State of New York
Act of 2001
Sentencing non-violent drug offenders to mandatory drug treatment — the best way to reduce drug-related crime
Chair, Codes Committee
Chair, Correction Committee
The next step in reducing New York’s crime rate — ensuring non-violent
offenders complete drug treatment
New York has achieved great success in reducing the
crime rate in recent years, in part, by cracking down hard on violent
felons. To achieve further dramatic success in reducing crime, however, our state will have to make a
concerted effort to eliminate the substance abuse which lies at the core
of most criminal behavior. Expanding the number of non-violent drug offenders
sentenced to drug treatment programs will help break the cycle of addiction and
crime and make our streets, homes and communities safer. It will make New York’s
criminal justice policies not only tough — but smart.
Numerous comprehensive studies have indicated that drug treatment is
a significantly more effective and cost-effective means of reducing
crimes committed by drug offenders than incarceration. A 1997 Rand
corporation study found, for example, that drug treatment was 15 times
more effective at reducing serious crimes committed against people
and property by drug offenders than mandatory minimum sentences. Chief
Administrative Judge Jonathan Lippman, in recent testimony before the
legislature’s budget committees, estimated that graduates of drug
court diversion programs operated by the court system commit 2\3 fewer
crimes than drug offenders who are simply incarcerated for a period
Expanding drug treatment programs would save millions of taxpayer
dollars and help addicted offenders turn their lives around. But there
is an even more compelling reason to expand such programs — providing
more drug treatment will reduce crime.
Under the Assembly’s reform plan, judges would be given the discretion
to divert Class "B", "C", "D" and "E"
felony drug offenders whose non-violent crimes resulted from drug abuse to
drug treatment programs as an alternative to a mandatory state prison term.
Drug treatment programs would generally have to last at least one year and include a
residential component. Offenders who successfully completed treatment
would not face a felony conviction. Those who did not successfully
complete treatment would face a felony conviction, which, for repeat
offenders, would mean a mandatory state prison sentence. Diversion
would not be applicable to offenders who had committed violent felonies
or to offenders who sold or attempted to sell drugs to minors.
Each drug treatment program would have to include a drug testing
component and measures to ensure that offenders were held accountable
for their behavior during the treatment program. Offenders would
generally be sentenced to probation while receiving treatment and
would be supervised by probation officers.
The new diversion program would be applicable to current inmates who
could petition their sentencing courts for early entry into the drug
treatment program operated by State Department of Correctional
Services (DOCS) (the "Comprehensive Alcohol and Substance Abuse
Treatment" (CASAT) program). Under the current CASAT program (which
is preceded by a preliminary prison-based drug treatment program called
"ASAT"), inmates undergo a total year-long period of drug treatment
while incarcerated followed by six months of treatment outside prison
under correctional supervision. Inmates who successfully complete this
18 month regimen are eligible for release from prison.
Judges would also be given two additional sentencing options for non-violent drug offenders. Eligibility for placement at the Willard drug treatment campus would be expanded (see discussion below) and the Willard program would be enhanced. Judges would also be given the authority to sentence eligible drug offenders directly to the shock incarceration program. Under current law, only DOCS can place an inmate into the shock program. Shock incarceration provides eligible non-violent offenders with the ability to earn release from prison by completing a six month military boot camp style program. Judicial shock placements would have to include a drug treatment component and also provide continuing drug treatment upon release from prison.
Ensuring the law’s harshest penalties
fit the facts and circumstances of each crime
Sentences for Class "A" felony
drug offenders would be modified under the Assembly’s plan. Changing
class A-1 felony sentences would not impact a great number of
offenders (roughly 600 of the approximately 22,000 inmates
incarcerated on drug charges are currently serving class A-1 felony
sentences.) This reform, however, would give judges needed discretion
to tailor the law’s harshest penalties to those offenders whose conduct
warranted a life sentence.
Under current law, the possession of four ounces or more of a
narcotic or the sale or attempted sale of two ounces or more of a
narcotic result in a mandatory sentence of 15-25 years to life in
prison, the same penalty as that provided for murder. Possession or
sale of smaller amounts, for example, the sale of 1\2 an ounce or
more of a narcotic, results in a Class A-II felony sentence with a
mandatory maximum life sentence for every offender and a minimum
term of 3-8 years (for first offenders) or 6 to 12 1\2 years
(for second offenders). Under the revised sentencing structure
- The weight thresholds required to meet Class A-I and Class A-II felony sentences would be increased. For example, a defendant would be required to possess 8 or
more ounces rather than 4 or more ounces of a narcotic in order to
trigger the law’s harshest penalties. A similar proposal has been made
by Senator DeFrancisco. This change would not apply, however, to
offenders found to be drug traffickers or to offenders who had been
convicted of violent felonies.
- Penalties for major drug traffickers would be increased: from 15-25 years to life to 15-30 years to life.
- Mandatory minimum sentences for most Class A-1 felons who were not major drug traffickers would be reduced; courts would retain the discretion, however, to impose the
current 15-25 year to life sentence in any case where the court found such a sentence was justified. For first offenders, the new standard sentence would range from an indeterminate sentence of 5-15 years to an indeterminate sentence of 8 1\3 to 25 years. For second offenders with a prior non-violent felony conviction the standard indeterminate sentence would range from 7 1\2-15 years to 12 1\2 to 25 years. Offenders with a prior violent felony conviction would not receive any sentencing reductions under the plan.
As noted above, a court could impose a 15-25 year to life
sentence on an offender who was not found to be a major
drug trafficker if the court found that this higher
sentence was justified.
- Similarly, mandatory sentences for most Class A-II
felons who were not major drug traffickers would also be
reduced. First offenders would normally receive an
indeterminate sentence between 3-9 years and 8 1\3 to 25
years. Offenders with a prior non-violent felony
conviction would also normally receive an indeterminate
sentence between 5-10 years and 12 1\2 to 25 years.
Offenders with a prior violent felony conviction would
not receive any sentencing reductions under the plan.
Offenders found to be drug traffickers or any other
offender who the court determined should receive a life
maximum sentence would be subject to the same penalties
as under current law: 3-8 years to life for first
offenders and 6 -12 1\2 years to life for repeat
- Offenders currently incarcerated could petition their
sentencing courts to have their sentences modified under
- In an initiative similar to that proposed by the Governor,
Class A-1 felons with no violent felony convictions could
also be sentenced as Class B felony offenders, with the
consent of a prosecutor, and receive lower sentences.
Ensuring effective sanctions for
non-violent lower level drug offenders
Providing Additional Sentencing Options
Judges would be given additional discretion in sentencing
non-violent drug offenders with no current or prior
violent felony convictions. Maximum sentences for such
offenders would remain unchanged.
For example, the current minimum sentence for a Class B
felony drug offender with a prior non-violent felony
conviction would be lowered from 4 1\2 to 9 years in
prison to 2 1\2 to 5 years in prison. The current maximum
sentence for such offenders of 12 1\2 to 25 years in
prison would remain unchanged. Additional discretion
would also be given to judges in imposing sentences for
lower level offenders.
Expanding the range of sentences judges could impose in
such cases, and limiting this expansion to cases where a
defendant had not been convicted of a violent felony,
would allow judges to better tailor sentences for
non-violent drug offenders to fit the facts and
circumstances of each case. In all cases, judges would
retain the discretion to continue to impose the maximum
penalties available under current law. Under current law,
the possession of any quantity of a narcotic with the
intent to sell it can result in a maximum sentence of up
to 25 years.
Adoption of Governor’s Merit Time Proposal
"Merit time" is a sentencing option which authorizes DOCS,
in its discretion, to reduce the minimum sentences of non-violent
inmates who successfully perform such productive activities as
completing a drug abuse treatment program, earning a GED or receiving
vocational training. Under merit time, DOCS may reduce a non-violent
offender’s minimum sentence by up to 1/6 of its total term. Last year,
the Governor proposed expanding the merit time allowance from 1/6 to 2/7.
Merit time encourages inmates to reform their behavior, contributes
to the safety of the prison system by providing an incentive for
inmates to act lawfully and has helped control the size of the prison
population. The Governor’s 2000 proposal to expand merit time should
While the Governor’s proposal would apply an expanded merit time
allowance to new determinate sentences, the proposal outlined here
would not include a determinate sentencing component. Merit time
would thus be applicable to the minimum term of an inmate’s
sentence, as under current law.
Enacting tougher sentences for
In conjunction with the dramatic reforms outlined here, sentencing increases and some additional measures to reduce gun violence would be adopted. Under the plan:
- As noted above, sentences for major drug traffickers would be increased
from 15-25 years to life to 15-30 years to life.
- Sentences for any adult offender convicted of selling or
attempting to sell drugs to a minor would be increased.
- Sentences for any adult offender who sold or attempted to
sell drugs over the Internet would be increased.
- The state police would be directed to promulgate a standard
for adoption by the legislature to ban the sale of "Saturday
night specials" or "junk guns" in New York. Junk
guns are cheap, easily concealable and poorly constructed handguns
which are often the gun of choice for criminal offenders.
- All persons convicted of committing violent felonies would be permanently barred from owning guns.
- The new gun interdiction funding program for district attorneys
enacted last year would be enhanced and modified to provide that half
of the funds provided to district attorneys each year to combat illegal
gun trafficking would have to be targeted to programs which prosecuted
illegal gun sales to drug gangs and other drug enterprises.
DOCS corrections officers would continue to provide
security for CASAT inmates and program services would
continue to be provided by state employees under the
Assembly’s plan. However, management of these programs
would be transitioned over to not-for-profit service
providers who would also be responsible for providing a
continuity of care to inmates once they were released.
The CASAT program was originally designed by the legislature
to have experienced drug treatment organizations with a track
record in reducing offender recidivism run prison-based drug
treatment programs. In practice, the vast majority of CASAT
services provided in the prisons have not used such experienced
Pennsylvania Governor Tom Ridge has begun an effort to adopt a
similar reform in Pennsylvania’s approach to drug treatment in
the prison system, which emphasizes a continuity of treatment
services once inmates are released from prison, with initially
promising results. This proposal would begin a similar effort in
The Willard drug treatment program was created by the legislature in
1995 to divert certain non-violent offenders to a 90 day term of
incarceration at the Willard drug treatment campus in Seneca, New York
as an alternative to a state prison sentence. The Willard program has
not functioned effectively for several reasons.
- Making Willard an Effective Crime Reducing Tool
Statutory restrictions on the ability of judges to sentence Willard-eligible
offenders to the Willard program has significantly limited program
participation. 90 days is recognized as too short a period of time
within which to eliminate hard-core addictions. Willard participation
is currently limited to Class “D” and “E” felons, making most
offenders arrested on drug charges ineligible for the program. There
is also no documented evidence that Willard has been successful in
reducing offender recidivism. To remedy these deficiencies:
- Judges would be given the discretion to sentence
statutorily eligible offenders to the Willard program.
This has been proposed in program legislation submitted
by the Office of Court Administration.
- Willard participation would be expanded to include
non-violent Class "B" and "C" drug
- Willard graduates would be statutorily required to
undergo an additional year long drug treatment program
following release from the Willard drug treatment campus.
The administration has taken steps to implement this
requirement for Willard graduates on a pilot basis but
such extended drug treatment is currently not required
by law or provided to most offenders. Ensuring that all
Willard graduates participated in an extensive drug
treatment program would increase the number of offenders
who were able to eliminate their substance abuse problems.
Simply sending drug addicted offenders to a 90 day prison
boot camp program will not eliminate addiction or reduce crime.
New York can and must do better.
- The state would be required to contract with an
outside entity to study whether the Willard program has
been effective in reducing offender recidivism and make
recommendations for improving the program.
The Governor’s proposal to establish a transitional program for
inmates being released from prison at the Queensborough correctional
facility to serve approximately 100 inmates would be enacted. Such
transitional programs are recognized as being an essential component of
efforts to reduce offender recidivism. DOCS would also be directed to
expand such transitional programs to at least 5 additional facilities
over the coming two years and review whether at least one DOCS medium
security facility should be fully modified to become a pre-release
- Adoption and Expansion of the Governor’s
Proposed Transitional Services Program
As a part of their transitional planning efforts, DOCS would be
directed to arrange for the preparation of medicaid applications
for eligible offenders being released from prison to out-patient
drug treatment programs. This would speed-up the process of accessing
medicaid payments to pay for such drug treatment programs, access
federal support for these efforts and help ensure that offenders
began receiving drug treatment and supervision as soon as possible.
Reducing crime by
eliminating addiction: dramatically reforming the
justice system’s approach to drug treatment
Drug treatment programs operated in prisons, by the
courts, by the division of parole and by probation
departments would be dramatically reformed under the
Assembly’s plan. Reforming the drug laws must mean more
than simply modifying drug law sentences. Meaningful
reform must also provide the comprehensive drug treatment
which is necessary for offenders to eliminate their
addictions and reduce crime.
Every inmate on probation, on parole or in a correctional
facility with a documented drug or alcohol abuse problem
would be required by law to undergo a drug or alcohol
treatment program lasting at least one year. This new
requirement would be phased-in over a three year period.
- Mandatory Substance Abuse Treatment
for All Appropriate Offenders
Each treatment program would be required to include a
drug or alcohol testing component.
Mandatory drug or alcohol treatment would also be
required for all appropriate juvenile delinquents or
juvenile offenders placed in Office of Children and
Family services facilities or programs.
- Reform and Expansion of the CASAT
Eligibility for the CASAT prison based drug treatment
program would be expanded for non-violent drug offenders
with no previous violent felony convictions. Under
current law inmates must be within 2 years of their
minimum sentence to begin the CASAT program. Eligibility
would be increased so that non-violent drug offenders
within 3 1\2 years of their minimum sentence would be
eligible to begin the CASAT program.
Judge Kaye’s ambitious plan to expand drug courts to every county in the
state over a three year period would be adopted and fully funded. Drug
courts provide the necessary judicial infrastructure to accomplish the
drug treatment diversions which would be necessary in any dramatic
reform of the Rockefeller drug laws.
- Expanding Drug Courts to Every County in the State
OCA’s current efforts would be strengthened by mandating a comprehensive
training program in drug court operations for drug court judges and
staff to be developed and operated by OCA and by directing OCA to
develop uniform protocols for the operation of drug courts.
- Strengthening Post-Release Supervision
In order to help ensure that drug offenders released
from prison and on post-release supervision did not
repeat their crimes, additional parole officers would be
hired to supervise released drug offenders and a new requirement would be enacted that caseload ratios for appropriate drug offenders not exceed 25 active cases per officer for designated periods of time.
Providing the resources to make
drug law reform work
In order to provide the resources to eliminate
drug addiction and reduce crime, the Assembly’s plan would back up its
proposals for expanded judicial discretion and reform of the drug
treatment system with new resources and a long term plan to use cost
savings from the prison system for drug abuse prevention and treatment
programs. In addition to the funding proposals outlined above
(for example, providing financial support for OCA’s efforts to expand
drug courts) the Assembly’s plan would include the following components:
Any effort to dramatically reform New York’s drug laws
will require significantly more drug treatment services
both for criminal offenders and, optimally, for substance
abusers who have not yet come into contact with the
justice system. Moreover, any new residential drug
treatment beds will take at least two years to finance,
develop and construct. A meaningful reform plan should at
least begin the effort of identifying the resources which
will be necessary to change New York’s approach to
fighting drug addiction.
- 2000 New Drug Treatment Residential Slots
Although vacancies currently exist in some residential drug treatment programs, the diversion of thousands of offenders from prison to residential drug treatment programs every year, as envisioned under every reform plan which has been proposed in New York, would necessarily result in a need for a significant number of new drug treatment beds.
To address this need, the Assembly’s plan includes a capital appropriation to support the construction or rehabilitation of 2000 new drug treatment beds. These new beds would be available both for criminal offenders and for substance abusers who had not yet come into contact with the justice system.
Dramatic reductions in New York’s prison population over the past year will result in prison operating cost savings to the state of roughly $100 million in the upcoming fiscal year. Such savings would be greatly increased in the event that a dramatic reform of the drug laws were enacted. When fully implemented, the Assembly’s plan would save the state more than $160 million annually. Moreover, these savings will recur every year so long as any declines in the prison population are maintained.
- Using Prison Savings to Reduce Crime
Cost savings will also occur in future years because effective drug treatment should result in further dramatic declines in the state’s crime rate. Simply put, treating non-violent drug addicts, rather than warehousing them in expensive prisons, will reduce the number of addicted offenders the justice system will have to deal with in the future. Reduced crime, declining prison populations and fiscal savings will not only mean lower costs for state taxpayers, but safer streets and communities for all New Yorkers.
On the other hand, of course, any dramatic expansion in the drug treatment delivery system will cost money. While treating addicted non-violent offenders is more effective and cost-effective than incarceration, drug treatment will still cost significant sums.
The obvious resource which could be used to pay for this treatment are the savings New York will realize from reducing the number of non-violent addicted drug offenders warehoused in state prisons. But these savings promise to be so significant, that they could be used by New York for an even more important purpose — protecting our children from ever using drugs in the first place. Under the Assembly plan:
- The state comptroller would be directed to annually
determine the number of drug offenders who had been
diverted from state prison to drug treatment programs,
and to estimate the extent to which any reduction in the
crime rate was attributable to New York’s expanded use
of drug treatment. The number of such diversions would
be multiplied by the prison operating cost savings
attributable to each diversion. The amount of money
saved would be paid into a new "Crime Reduction Fund."
- Roughly three quarters of these monies would be used to fund
expanded drug treatment, offender supervision, court operations and
alternative to incarceration services, fully funding all of the
initiatives proposed under the Assembly’s plan. The remaining
funds — more than $40 million annually — would be used to provide
additional state aid to school districts to enhance drug abuse
prevention education and related counseling and treatment
initiatives in elementary, middle and secondary schools. Ten
percent of the total funds every year could also be used to enhance
crime victims’ assistance programs.
- Community Justice Drug Crime Information System
To assist the legislature and criminal justice agencies
in allocating justice system resources to reduce drug
crime, the Assembly’s plan would provide funding for an
innovative drug crime information mapping system under
which the precise physical locations of drug offenders
sent to prison or jail was plotted. Similar types of
mapping systems have been used with great success by the
New York City police department in targeting police
resources (COMSTAT) and have most recently been developed
to attempt to determine the incidence of cancer
throughout New York state (Cancer Mapping).
The new drug crime information mapping system would be
used to target resources towards the communities in New
York most impacted by drug prosecutions and to help
empower communities to use locally based interdisciplinary
solutions to fight the pervasive problem of illegal drug
use and drug crime.
Using prison savings to fund necessary crime reduction
initiatives will provide a long term resource to make drug law
- Providing Immediate Financial Assistance
to Reduce Crime
However, increased funding in the upcoming fiscal year will also
be necessary to provide effective drug treatment, alternative to
incarceration and offender supervision resources. Under both the
Governor’s plan and the Assembly’s plan, offenders would begin to be
diverted from prison to treatment programs over the coming year.
Despite the obvious need for immediate additional resources, the
Executive budget proposes not increasing, but actually reducing
the funds spent by the state on drug treatment and alternative to
incarceration programs. The Executive budget proposes a reduction
of $10 million in the Office of Alcohol and Substance Abuse
Services (OASAS) budget during SFY 01-02. Alternative to
incarceration programs would be reduced by $4 million under the
Executive budget plan.
The Assembly’s budget plan will provide increased funds for drug
treatment and alternative to incarceration programs in order to
ensure that drug offenders are not simply released from prison but
reform their behavior and become law abiding citizens. Public
safety demands no less.