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Criminal Justice Magazine
Summer 2004
Volume 19 Number 2

Prosecution Backs Alternative to Prison for Drug Addicts

by Charles J. Hynes

Charles J. Hynes, is district attorney of Kings County, New York, and a member of the ABA Criminal Justice Section.

 

I remember countless nights of desperate runs for drugs and doing whatever it took to get high. Most of all, I was alone, wishing my life [were] in control, instead of my addiction controlling me.
—Former drug addict and DTAP graduate

Drug addiction is a disease that often drives men and women to commit criminal acts to feed a voracious habit that devastates, isolates, and destroys the individual. Its widening gyre as well shatters families, wrecks communities, and, ultimately, challenges our ability to maintain a free and safe society. Criminal justice practitioners must meet that challenge head on by examining the disease and adopting the most effective means of confronting it in the context of the justice system.
Although the goal of the criminal justice system is “to control crime with justice,” (see Mark Moore, Looking Backward to Look Forward: The 1967 Crime Commission Report in Retrospect, NAT’L INST. OF JUST. J. (Dec. 1997, at 24, 25)), prosecutors must look beyond simple “control” to recognize that public safety may be achieved with tools other than imprisonment.
In the last 15 years, two servants of the public good—the substance abuse treatment community and the criminal justice system—have become increasingly better acquainted through new, intelligent, and creative collaborative efforts. One of those efforts, the Drug Treatment Alternative-to-Prison (DTAP) program, originated in Brooklyn, New York, in 1990. This prosecution-run prison-diversion treatment program targets nonviolent, repeat felony offenders with serious drug addictions—a population almost entirely overlooked for diversion when DTAP began, and one that even today is considered by many jurisdictions as too high-risk or difficult to divert. The DTAP program has achieved significant success in reducing drug abuse and criminal recidivism in its target population, and it offers other jurisdictions a cost-efficient option for dealing with drug addicts who commit crimes to support their habit.
The two key premises behind DTAP are (1) that the criminal recidivism of addicts can be reduced if the addiction is treated (see Steven Belenko, The Challenge of Integrating Drug Treatment into the Criminal Justice Process, 63 ALB. L. REV. 833, 837 (2000)), and (2) that legal coercion can be a powerful motivator to get addicts to succeed in treatment. In fact, sanctions and enticements can “increase significantly both treatment entry and retention rates and the success of drug treatment interventions.” (NAT’L INSTITUTE ON DRUG ABUSE, NAT’L INSTITUTES OF HEALTH, PRINCIPLES OF DRUG ADDICTION TREATMENT: A RESEARCH-BASED GUIDE 5 (1999) [hereinafter NIDA GUIDE].) Legal coercion can help addicts enter and stay in treatment, and extended treatment can successfully address their debilitating disease. Such an outcome has undeniable appeal to those in the criminal justice system who confront on a daily basis the grim reality of addiction: drug-involved crime.
Until 1990, it had been the practice in Brooklyn to occasionally send misdemeanants to drug treatment as part of a probationary sentence, but the notion of diverting prison-bound, drug-addicted offenders into treatment in lieu of incarceration was still a novel one. The nation’s first drug treatment court had only opened in Miami in 1989, and there were no prosecution-run treatment diversion programs anywhere in the country. Today, we know that substance abuse treatment reduces recidivism in drug-addicted offenders. As a result, there are drug courts operating in all 50 states, and diversion programs are no longer seen as a “soft on crime” approach. Norman K. Maleng, current chair of the American Bar Association’s Criminal Justice Section and prosecuting attorney of King County, Washington State, recently noted that “the criminal justice system can provide an effective intervention point to leverage drug addicts into treatment.” (Drug Abuse and Drug Prosecution: Beyond the “War,” 18 CRIM. JUST. 1 (Fall 2003).) Maleng was an early champion of treatment diversion and he remains convinced that it has a crucial role to play in any intelligent approach to the nation’s drug crisis.

The crisis

Drug abuse in the United States is indeed a widespread and costly national crisis. In 2000, there were an estimated 3.3 million hard-core cocaine users and 977,000 hard-core heroin users. (Office of Nat’l Drug Control Pol’y, Exec. Office of the President, What America’s Users Spend on Illegal Drugs: 1988-1998, at 8, 10 (2000).) The same group estimated the cost of drug abuse to be approximately $143.4 billion in 1998, and projected $160.7 billion in 2000. (Office of Nat’l Drug Control Pol’y, Exec. Office of the President, The Economic Costs of Drug Abuse in the United States, 1992-1998, at 3 (2001).) Of the $160.7 billion, it was estimated that crime-related costs, such as loss of productivity, the cost to administer the criminal justice system, and health care costs of crime victims, accounted for $100.1 billion. (Id. at 9).
The precise nature of the nexus between drugs and crime is under investigation and the subject of debate, but that such an nexus exists appears beyond cavil. According to the Arrestee Drug Abuse Monitoring Program (ADAM) Annualized Site Report for Manhattan, New York, 81 percent of samples of adult males arrested in 2002 tested positive for at least one kind of illicit drug, and 26 percent tested positive for multiple drugs. The most prevalent drug was cocaine (crack or powder), for which 49 percent of all male arrestees tested positive. Among a sample of female arrestees, 61 percent tested positive for some kind of drug with 39 percent testing positive for cocaine. Among males and females arrested for drug offenses, 91 percent and 92 percent, respectively, tested positive for some kind of illegal drug, and more than three-fourths of both sexes arrested for property offenses tested positive.
Nationwide in 2000, urinalysis at half of the 35 ADAM test sites found 64 percent or more of adult male arrestees had recently used at least one of five drugs: cocaine, marijuana, opiates, methamphetamine, or PCP. (Nat’l Inst. of Justice, U.S. Dep’t of Justice, Arrestee Drug Abuse Monitoring 2000 Annual Report 1 (2003).) ADAM researchers estimate that at most test sites there are 750 arrests and bookings annually for every 1,000 hard-core drug users, and hard-core drug users range from approximately 1,500 in Minneapolis to 126,000 in New York. (Id. at 4).
In a 1997 survey of inmates in state prisons, 83 percent reported past drug use and 57 percent were using drugs in the month before their offense. (Christopher J. Mumola, U.S. Dep’t of Justice, Bureau of Justice Statistics, Special Report: Substance Abuse and Treatment, State and Federal Prisoners, 1997, at 1 (1999).) A third of the prisoners said that they had committed their crime while under the influence of drugs. Nineteen percent said that they had committed their current offense to obtain money for drugs, (id. at 5), while the highest incidence of drug use at the time of the offense were reported for those convicted of drug offenses (42 percent) and property offenses (37 percent). (Id. at 3).
Ominously, statistics tell us that when these drug-abusing inmates leave prison, they will most likely reoffend. In a 15-state study of prisoners released in 1994, 67 percent of the drug offenders were rearrested within three years and 47 percent were convicted of a new crime.

The cost

In a seminal 1998 report, Behind Bars: Substance Abuse and America’s Prison Population, researchers at the National Center on Addiction and Substance Abuse (CASA) at Columbia University concluded, based on 1995 figures, that taxpayers spent over $1.1 billion to incarcerate drug-abusing and addicted drug sellers for an average sentence of 22 months in state prison. (Id. at 157.) CASA also estimated that taxpayers spent more than $2.4 billion to incarcerate drug abusers convicted of nonviolent offenses (excluding drug selling) with an average of 47 months in state prison. (Id.) According to the U.S. Department of Justice, the state prison population had grown to more than 1.2 million by 2002. (See Bureau of Justice Statistics, U.S. Dep’t of Justice, Prison and Jail Inmates at Midyear 2002, at 2 (2003).) And the average annual cost to incarcerate an inmate in a state prison is $20,261. (Office of Nat’l Drug Control Pol’y, Exec. Office of the President, Drug Treatment in the Criminal Justice System (March 2001), available at http://www.whitehousedrugpolicy.gov/publications/factsht/
treatment/ index.html.) Drug treatment, even at a residential community-based facility, costs considerably less. In New York State, for example, the average cost of incarcerating an individual in prison has been estimated at $29,000, but the average cost of a residential treatment slot is $18,400.

Diversion and safety concerns

Although criminal justice practitioners have a responsibility to support cost-effective diversion programs with track records of successfully reducing recidivism, there is a legitimate concern about the risk to public safety. That concern understandably increases with the severity of the criminal offender’s pending charges, criminal history, and addiction. For example, drug sellers are more likely to commit crimes using weapons. (See Scott H. Decker, Susan Pennell & Amy Caldwell, U.S. DEP’T OF JUSTICE Illegal Firearms: Access and Use by Arrestees 3 (1997) (based on arrestees in 11 cities, study found that of those who owned a gun, overall, 23 percent said that they had used one to commit crimes; the figure for drug sellers was 42 percent).) Also, the most severely addicted offenders are more likely to relapse, miss appointments in outpatient treatment programs, and return to the streets to feed their habit.
A now-prevalent mechanism for diverting addicted offenders into substance abuse treatment is the drug treatment court. (See the sidebar Drug Courts, an Effective Treatment Alternative on page 34.) While staunch supporters of drug courts, Kings County prosecutors also believe that they are not the best mechanism by which to address the diversion of the chronic drug user who is a serious, albeit nonviolent, repeat felony offender. These offenders, who combine the desperation of the hard-core addict with the demonstrated propensity to repeatedly reengage in criminal behavior despite previous periods of incarceration, pose a higher risk to public safety than an offender charged with drug possession as a misdemeanor or first felony. At the same time, it is precisely from the successful treatment of this group that society stands to gain the most. In order to reap the benefits without sacrificing public safety, DTAP was created as the nation’s first prosecution-run treatment diversion program aimed at prison-bound, repeat felony offenders. Designed to minimize the risk to the public, prosecutors thoroughly screen all DTAP candidates to ensure that any with a background of violence are ruled out; they monitor the progress of each participant at the residential treatment program; and the district attorney’s warrant enforcement team checks the background of program candidates and stands ready to swiftly apprehend any participants who abscond from treatment.
A recent study comparing a sample of DTAP participants with a group of “paper-eligible” offenders found that only 12 (or 4 percent) of the 272 DTAP participants were rearrested while undergoing treatment—four charged with misdemeanors and eight with nonviolent felonies. In contrast, 28 (or 13 percent) of the 215 nonparticipants were rearrested—23 charged with nonviolent felonies, three with violent felonies, and two with misdemeanors. These findings indicate that DTAP’s diversion of drug offenders into community-based residential facilities does not pose additional risk to the community. (Paul Dynia & Hung-En Sung, The Safety and Effectiveness of Diverting Felony Drug Offenders into Residential Treatment as Measured by Recidivism, 11 CRIM. JUST. POL’Y REV. 299, 306–07 (2000).)
As of March 1, 2003, 1,950 defendants have been accepted into DTAP since the program’s inception. Of those, 390 are still in treatment and 743 have completed the program and have had their charges dismissed, reflecting an economic benefit to the community—based on savings in correction, health care, public assistance and recidivism costs, and tax revenues generated by the 743 DTAP graduates—of $28.8 million.
In 2003, the National Center on Addiction and Substance Abuse (CASA) at Columbia University completed a five-year, federally funded study of DTAP and issued the white paper, Crossing the Bridge: An Evaluation of the Drug Treatment Alternative-to-Prison (DTAP) Program (2003) [hereinafter Crossing the Bridge]). Joseph A. Califano, Jr., CASA’s chairman and president, and former U.S. Secretary of Health, Education and Welfare, hailed the Brooklyn program as a “promising example of what law enforcement can do to reduce the number of addicted drug offenders.” (Id. at ii.) He noted that “[m]ost significantly DTAP demonstrates that we should not write off repeat, drug-involved offenders.” (Id.) The CASA research team, calling DTAP a “concrete approach to dealing with high-risk substance involved nonviolent offenders,” urged corrections agencies, courts, and prosecutors nationwide to consider such a program as a cost-effective alternative to incarceration. (Id. at 13.)

How DTAP works

When DTAP launched in 1990, prosecutors recognized that this novel diversion/treatment program could only succeed with the support and involvement of others, and enlisted the input of the judiciary, defense bar, New York State Division of Parole, New York City Department of Probation, and New York State Division of Alcohol and Substance Abuse Services, in addition to treatment providers. Although some program modifications were made in 1998—most significantly, a shift to a deferred-sentencing model (see, infra)—the basic structure remains the same. The program strives to incorporate three fundamental ingredients for effective treatment: a high level of structure, a long period of intervention, and flexibility. First, DTAP targets repeat nonviolent felony offenders who, if convicted, face mandatory imprisonment under the state’s predicate offender sentencing laws. (See N.Y. Penal Law § 70.06 (Gould 2004).) Second, eligible offenders must be drug addicted and in need of substance abuse treatment, and the addiction must have been a significant contributing factor to their crime. Third, in lieu of incarceration, offenders are diverted into 15 to 24 months of long-term, intensive residential substance abuse treatment that includes educational and vocational training and a period of aftercare. Fourth, prosecutors carefully monitor an offender’s progress in treatment. Fifth, if offenders fail the program, either by violating the treatment provider’s rules or by absconding, they face a set term of imprisonment that was clearly conveyed prior to diversion. Sixth, prosecutors maintain a warrant enforcement team that investigates the background of each DTAP candidate, swiftly apprehends offenders who abscond from treatment, and returns them to court for sentencing. And finally, when offenders successfully complete the DTAP program, the felony charge or charges are dismissed and the graduates continue to have the employment assistance services of the DTAP job developer at their disposal.

The evolution of DTAP

Initially, DTAP targeted only those charged with drug sales in undercover “buy-and-bust” operations, where cases remained “trial-ready”—with easily accessible evidence and police witnesses—many months after the crime. If a defendant dropped out of DTAP, the cases could be prosecuted and won despite the passage of time. In addition, the program was at first limited because the defense bar voiced concern that prosecutors would use it to employ “net-widening,” in which they would offer DTAP only to those defendants who were unlikely to be convicted because of weak evidence. Why should their clients be forced to choose between treatment and acquittal, they argued.
In 1998, DTAP shifted to a deferred-sentencing model. Now, offenders enter a guilty plea prior to diversion, and sentencing is deferred. If the offender fails the program, a prison sentence is imposed; if the offender completes the program, the guilty plea is withdrawn and charges are dismissed. Under the deferred-sentencing model, the concern over being able to prosecute a case in the event of treatment failure is moot. This allows DTAP to accept a wider variety of drug cases, including addicted second felony offenders who face nonviolent, nondrug charges. At the same time, defense attorneys have seen the benefits of the program and now advocate that their clients in non-buy-and-bust cases be considered for DTAP.
The DTAP blueprint has already been adopted by the district attorneys in all five New York City counties. It has also been implemented, with some local modifications, by several other offices throughout the state. For the last several years, the New York State Office of Alcohol and Substance Abuse has funded an increasing number of residential treatment beds for DTAP clients.
It bears emphasizing that wherever a local prosecutor has established a DTAP program, the program’s success has depended in significant part on the support of the substance abuse treatment community and the involvement of the other criminal justice players within that jurisdiction, most importantly, the defense bar and the judiciary. Open lines of communications between prosecutors and others in the support network are crucial both during the planning stage and once the program is up and running.

Identifying DTAP candidates

Most offenders are now identified as “paper eligible” for DTAP at their initial arraignment on the criminal complaint. Both the defendant’s pending charges and rap sheet are reviewed to see whether the defendant: (1) is presently charged with a nonviolent felony; (2) has at least one prior nonviolent felony conviction; and (3) may have a substance abuse problem—a history of drug possession charges, for example.
In a 2003 collaboration between the New York State Office of Court Administration, Kings County District Attorney’s Office, and Brooklyn defense bar, arraignment court clerks began systematically identifying paper-eligible DTAP cases and forwarding them to two centralized court parts. However, all prosecutors in the district attorney’s office are trained to spot paper-eligible candidates even if they are not identified by the arraignment clerk. The judiciary, other court personnel, and defense bar are also all well aware of the DTAP criteria, and they will flag appropriate cases. Educating all the parties on the eligibility requirements ensures that time and effort are not wasted on inaccurate referrals, and fewer eligible defendants fall through the cracks.
Most paper-eligible candidates are facing some kind of drug-related charge, but not all. Some may face nondrug charges such as larceny. Here, the defense attorney plays an especially important role in alerting the prosecutor to the defendant’s potential suitability for DTAP as the defendant’s history of drug abuse may not be evident from the pending charges, rap sheet, or other paperwork in the file.
It’s important to identify eligible candidates as soon as possible after their arrest—at arraignment if possible—to cut down on prediversion incarceration costs and allow defendants to begin treatment when the crisis of their arrest is still fresh in their minds. However, even after arraignment, the district attorney’s office will screen a potential candidate so long as the case has not yet gone to trial. This flexible approach may not be feasible in all jurisdictions, but when possible, its use helps ensure that no eligible offender is denied treatment.

The screening process

Although the sequence can be modified, DTAP relies on the presence of three components for its success: (1) a prosecutor’s assessment, (2) a clinical assessment, and (3) a background investigation. These components ensure that the twin maxims of the DTAP program—“drug treatment for the drug-addicted” and “never compromise public safety”—are upheld.
In Brooklyn, paper-eligible defendants are referred to the Alternative Programs Bureau of the District Attorney’s Office where prosecutors have an expertise in assessing cases for the DTAP program, as well as for other treatment diversion programs. The bureau also has an assigned paralegal to maintain a case-tracking database. In a smaller prosecutor’s office, a single prosecutor or a prosecutor aided by a paralegal could handle the screening and tracking. No matter what size office, centralization of DTAP screening and tracking is useful to afford comprehensive understanding of the offender’s substance abuse and treatment and ensures that the criteria for program eligibility are consistently applied.
Prosecution assessment. Once eligibility has been flagged, a prosecutor reviews the case file in detail, paying close attention to the facts of the pending case and what is known of the defendant, including criminal history. At this stage, a prosecutor may learn that a candidate was selected based on a pending drug sale charge, but that, in fact, the defendant was selling drugs near school grounds or trafficking in a large quantity of drugs and has had codefendants on prior cases who were convicted on weapons possession charges. The screening prosecutor may learn from colleagues that a defendant is known through confidential informants as a drug kingpin. DTAP is not designed to sidestep the punishment due such vicious and predatory drug dealers.
The screening prosecutor also assesses the strength of the case. If the felony charge will be reduced or dismissed, DTAP is not appropriate, as the defendant is no longer facing a prison sentence. In a case reduced to a misdemeanor, the defendant may still be diverted into treatment, but under the auspices of Brooklyn’s Misdemeanor Drug Court.
Lastly, the screening prosecutor will determine if the defendant is currently on probation or parole, which is common because all program candidates have at least one prior felony conviction. The screening prosecutor contacts the relevant agency to solicit its view on diverting the defendant. The defendant is eligible for DTAP consideration on the new arrest, if the supervising agency grants its approval and violations are cleared prior to the defendant’s admission into the program.
Clinical assessment. DTAP accepts only offenders who are drug-addicted and amenable to substance abuse treatment. It is not an appropriate use of public funds for those repeat felony offenders who engage in only casual drug use. For this reason, all program candidates are screened for clinical eligibility by personnel specifically trained in substance abuse assessment. In Brooklyn, the assessments are conducted by the experienced staff of the nationally known EAC-TASC (in Brooklyn, the acronym stands for Treatment Alternatives to Street Crime), a nonprofit criminal justice case management organization. The clinical screening includes analysis and verification of the offender’s substance abuse history and severity of addiction, as well as a psychosocial assessment. TASC rejects defendants who do not present a substance abuse problem. Additionally, defendants who exhibit a serious and persistent mental disorder, in addition to a substance abuse problem, are deemed ineligible for DTAP; they will, however, be referred to another prosecution-based diversion program, Treatment Alternatives for the Dually Diagnosed.
During DTAP’s early years, the district attorney’s office staff coordinated directly with treatment providers regarding the admission and tracking of defendants in residential facilities. Representatives of the treatment providers conducted the clinical assessments on a rotating basis. However, as the number of participants grew, the office decided to enlist TASC to conduct clinical assessments, place participants with appropriate providers, and act as a case manager. The use of an independent case manager is not necessary in a small jurisdiction, though, where the experienced staff of the treatment provider could do the clinical assessments.
The Warrant Enforcement Team’s investigation. When TASC concludes that an offender is clinically eligible for DTAP, the district attorney’s Warrant Enforcement Team conducts a field investigation of the candidate with an eye to protecting public safety. One must be ever mindful of the safety risk posed by the DTAP participant to treatment staff and other clients while the participant is in treatment, as well as the risk posed by the participant to the public at large if the participant flees. Detective investigators interview a candidate’s family and friends, looking for community ties and other elements that indicate that placement into treatment is inappropriate. Violent tendencies, an unwillingness to participate in treatment, or a lack of community roots excludes a candidate from placement in DTAP. Due to this stringent criteria, 95 percent of all program absconders have been returned to court to face the original charges in a median time of 12 days. (Charles J. Hynes & Anne J. Swern, DTAP, Drug Treatment Alternative-to-prison: Thirteenth Annual Report 8 (December 2003).)
The investigation serves two additional purposes. First, by speaking directly with the family and friends of the DTAP candidate, investigators can enlist their support of the defendant’s effort at rehabilitation, involve them in the treatment process, and prompt them to convince the defendant to stay in treatment. Sometimes, detective investigators help families to reestablish contact with a drug addict, which, from a therapeutic perspective, may play an important role in treatment. It also helps community members see that criminal justice personnel are involved in their community in a positive, constructive way.
Second, because a DTAP participant is aware that the enforcement team has checked his or her contact information and is ready to swiftly return absconders to court, the DTAP participant feels greater pressure to stay and complete the program than would otherwise be the case. In fact, independent researchers have posited that dedicated warrant squads can boost retention rates. (See Douglas Young & Steven Belenko, Program Retention and Perceived Coercion in Three Models of Mandatory Drug Treatment, 32 J. DRUG ISSUES 297, 321 (2002).)

Plea agreement and guilty plea

If the defendant is still found eligible after the screening, clinical assessment, and background check, the prosecutor will convey the formal plea offer to the defendant in court. The offer sets out the felony charge to which the defendant must plead guilty and the “prison alternative”—the sentence to be imposed in the event of program failure. The prison alternative will usually range from an indeterminate sentence of two to four years in prison, to an indeterminate sentence of four-and-a-half to nine years’ imprisonment. Factors considered in determining the prison alternative are (1) the severity of the charges, (2) the defendant’s criminal history, and (3) the likelihood that the defendant may abscond. The prison alternative will be higher for defendants who pose a greater risk for program failure, because it is precisely those defendants who need the threat of a heavier “hammer” to convince them to stay in treatment rather than go to prison for a lengthy term.
The judge must approve the plea deal; only in a very small number of cases does the judge refuse. At this juncture, defense attorneys play a crucial role. They review with their clients the strengths and weaknesses of the evidence against them, the challenges of entering drug treatment, the sanctions that may be imposed in the event of failure, and the rewards of completing DTAP. If the defendant rejects the plea offer, prosecution of the case to disposition proceeds along the usual lines. The defendant will not be extended any other nonincarceration plea offer.
Defendants who agree to participate in DTAP plead guilty to a felony charge with the following understanding: If they successfully complete the substance abuse treatment program and all the requirements of DTAP, they will be permitted to withdraw the plea of guilty and the charges will be dismissed. If they fail to complete the program, the court will impose the previously negotiated prison sentence applicable to the felony. Defendants execute a written plea agreement and TASC contract. These documents spell out the rules and expectations of DTAP. The consequences of noncompliance are emphasized by the court. Following the plea, the case is adjourned, sentencing is deferred, and the defendant enters a long-term residential treatment facility.
Under this “deferred-sentencing” model (see supra at 18), everyone—defense counsel, prosecutor, judge, and, most importantly, defendant—understands that a clearly defined prison sentence will be imposed in the event of treatment failure. Because there is greater certainty that program dropouts will indeed be incarcerated for a substantial prison term, as per the plea agreement, DTAP participants now have a greater incentive to remain and complete treatment than they did under the previously utilized deferred-prosecution model. Significantly, the CASA research team found that, since the model shift in 1998, DTAP’s 12-month retention rate climbed from 64 percent to 81 percent and the 24-month retention rate increased from 49 percent to 62 percent. These rates are greater than those typically seen in therapeutic communities or other residential treatment programs. (Crossing the Bridge, supra, at 7).

The treatment phase

All DTAP participants are diverted into intensive long-term residential treatment, run by state-licensed providers with experience in dealing with criminal justice-mandated clients. Providers include such nationally known and respected organizations as Samaritan Village, Inc., Daytop Village, Inc., Phoenix House, Odyssey House, and Veritas, Inc. All these providers principally rely on the therapeutic community (TC) model of treatment: a highly structured, supervised community-based residential environment, where the emphasis is on self-help through the use of peers as well as staff and where participants must move through defined, successive stages of rehabilitation. The program’s entire community becomes active components in the “resocialization” of the individual. (See NIDA GUIDE, supra, at 28.) Following an orientation period, the participant advances to the primary treatment phase, which focuses on resolving personal and relationship problems through individual, group, and family counseling. The residential facilities have rules and regulations with which all the clients must comply. The rules are enforced not only to maintain order at the facility, but also to instill new values and enable clients to internalize models of productive social behavior. (See Hung-En Sung et al., Predicting Treatment Noncompliance among Criminal Justice-Mandated Clients: A Theoretical and Empirical Exploration, 26 J. SUBSTANCE ABUSE TREATMENT 315, 315 (2004).) Participants undergo vocational training, develop job skills, gain work experience, and, if necessary, prepare to take the high school diploma equivalency examination. Assistance in finding housing and employment is provided as participants eventually prepare to reenter the community. The primary treatment phase lasts a minimum of 12 months and often extends longer—the amount of time will vary with each treatment provider and with the individual defendant’s progress.
Once a defendant secures a job and appropriate living arrangements, gradual reentry into the community begins. The focus of treatment during reentry shifts to maintaining sobriety, preventing relapse, and adjusting to independent living.
The use of the successful TC model is a distinguishing characteristic of the DTAP program. (See Faye S. Taxman, Unraveling “What Works” for Offenders in Substance Abuse Treatment Services, 2 NAT’L DRUG CT. INST. REV. 91, 108, 112 (1999) (in assessment of various therapeutic approaches, noting that research has found the “therapeutic community” to be “successful.”)) Defendants with extensive drug histories who have repeatedly engaged in criminal activities to finance their drug habits, i.e., DTAP’s target population, require intensive intervention and rehabilitation to support reintegration into society. For many DTAP participants, the environment in which they were living (the people with whom they were associating and the places that they frequented) bolstered their drug addiction. The participants need to be removed from that environment for a significant length of time to begin the process of recovery and resocialization. Moreover, many participants need a range of supportive services in addition to substance abuse treatment—services such as medical care, educational and vocational training, parenting training, and HIV education, testing, and counseling. The TCs associated with DTAP provide those additional services and the supportive and structured environment that these chronic addicts need.
While the DTAP participant is in treatment, TASC receives regular updates on the participant’s progress from the treatment provider. (DTAP participants sign consent forms permitting treatment staff to discuss their progress with TASC, the DTAP staff, their attorney, and the judge.) These updates include assessments of the participant’s compliance with the provider’s rules, the participant’s psychological and mental status, and the results of drug tests (urinalysis). Regular drug testing can be a powerful therapeutic tool. A “dirty urine” forces a participant to confront the stark reality that he or she has relapsed, and it assists treatment staff in evaluating a participant’s progress in treatment, identifying personal issues that may be acting as barriers to success, and adjusting the type of counseling (more individual sessions, for example) in response. (See Taxman, supra, at 121–22.)
TASC, in turn, provides constant updates to the district attorney’s office and the court. TASC and the district attorney’s office are in daily contact regarding both DTAP participants and DTAP candidates. Before Brooklyn DTAP enlisted TASC as a case manager in 1998, the staff of the district attorney’s office received participants’ periodic updates directly from the treatment providers, all of whom had written agreements with the office to closely monitor DTAP clients and regularly report to the office on their progress. Even now, the office’s DTAP staff will often speak directly with the treatment providers about particular participants, especially those who are having difficulty adjusting to the treatment setting.
If a defendant is progressing favorably through treatment, the defendant appears before the court about once every three or four months. The defendant will also come to court if he or she has succeeded in proceeding to the next phase of treatment (such as reentry). At these appearances, the judge offers encouragement to the defendants. The judge may also take the opportunity to remind the defendants about the ultimate rewards if they complete treatment (the dismissal of the charges and a better, healthier life), as well as the sanction that will be imposed in the event of failure (the previously agreed-upon prison sentence). DTAP participants have fewer regularly scheduled appearances before a judge than drug court participants. Because of this reduced load and the fact that a specific courtroom dedicated to DTAP participants is not necessary for the program’s successful operation, DTAP can be less costly for the court system than drug courts.
While highly successful, there are still those who fail to comply with the DTAP requirements. Noncompliance with treatment can range from disobedience towards staff, psychological withdrawal, conflicts with peers, and sexual acting out, to theft or drug use relapse. (See Hung-En Sung, Steven Belenko & Li Feng, Treatment Compliance in the Trajectory of Treatment Progress among Offenders, 20 J. SUBSTANCE ABUSE TREATMENT 153 (2001) (describing types of noncompliance, prevalence and frequency of noncompliance, and responses to noncompliance).) Each treatment community implements its own system of sanctions in response to incidents of noncompliance (for example, removing telephone privileges or imposing stricter curfews); however, certain incidents, if sufficiently egregious or if repeated, will lead to the defendant being brought to court and the judge reprimanding the defendant and imposing a sanction, such as remanding the defendant for 10 days in jail. The sanctions are graduated—the more egregious or frequent the offensive conduct, the more severe the sanction imposed.
A participant’s unauthorized departure from a treatment facility is usually the most serious infraction. In such an event, the treatment provider will immediately notify TASC and the district attorney’s office, which, in turn, will notify the court. The judge issues a bench warrant for the defendant’s arrest, and the enforcement team begins searching for the defendant using contact information previously acquired. A defendant involuntarily returned to court on a warrant, or returned to court pursuant to an arrest for a new crime committed while away from the treatment facility, is deemed ineligible for readmission to DTAP.
On the other hand, if the defendant voluntarily returns either to the treatment provider, TASC’s office, or the court soon after the unauthorized departure, DTAP will generally readmit the defendant to the program, albeit with some kind of sanction, such as jail time. Depending on the cause of the defendant’s unauthorized departure, the defendant may or may not be placed with the same treatment provider. DTAP adopted this readmission policy in 1998; prior to that, noncompliant defendants were not readmitted under any circumstances. The more flexible policy recognizes that the treatment of drug addicts is a recovery process in which relapse and adjustment problems are part of rehabilitation. Many DTAP participants have initial difficulties adapting to the TC modality, but, given a second chance, they successfully complete the DTAP program. (See Crossing the Bridge, supra, at 9 (summarizing findings of study of 150 DTAP participants, including that 83 percent had at least once incident of noncompliance and that the noncompliance rate was highest in the first three months of treatment).)

Sentence in the event of failure

The decision to impose the prison sentence on a defendant (rather than readmit him or her) is most often reached because the defendant absconded from treatment and was returned to court involuntarily on the warrant or was arrested for a new crime. Other reasons include engaging in serious violations of the treatment provider’s rules (such as bringing a weapon into the treatment facility or engaging in gang recruitment), and having several “dirty urines” combined with a demonstrated disengagement from treatment. (See Hung-En Sung, Steven Belenko & Li Feng, supra, at 161 (noting that “[h]igh-rate noncompliant clients are very disruptive in the therapeutic setting and may consume a disproportionate share of resources”).) The prosecutor, bearing in mind the duty to ensure the safety of the general public and of the staff and other clients of the TC, reviews with the treatment provider discharging the defendant and with TASC the evidence supporting termination from DTAP. The decision to terminate is conveyed to the court and the defendant. Both the prosecutor and TASC explain the reason(s) for termination and they offer the court the treatment provider’s discharge letter and any other relevant documentation supporting the conclusion that the defendant violated the terms of the DTAP agreement. The court will then sentence the defendant to prison in accordance with the DTAP agreement if it finds by a preponderance of the evidence that he or she is guilty of the accused malfeasance resulting in the breach of the DTAP agreement. (See Torres v. Berbary, 340 F.3d 63 (2d Cir. 2003).)

Successful completion and post-completion assistance

To graduate from the DTAP program, a participant must have successfully completed all phases of the drug treatment plan, including remaining drug-free during the reentry phase. The participant also must have housing and a job or comparable means of subsistence (for example, the defendant is in funded vocational training or, if seriously ill, on some kind of medical disability). These conditions are fully explained to the defendant prior to entry of the guilty plea, and they are integral to the DTAP agreement. The DTAP participant knows from the outset that, unlike a prescribed sentence of incarceration at the end of which a defendant is released from custody, graduation from DTAP does not occur automatically after a certain number of months in treatment. Individual participants progress through the phases of treatment at their own pace, depending on their motivation and ability to stay clean and sober. For example, those participants who have drug use relapses or unauthorized departures during their primary treatment phases may remain in that phase several months longer than those who maintain abstinence and become quickly engaged in treatment.
The employment requirement poses a challenge for many participants, but it is extremely important to the ongoing sobriety and social stability of the participants once they complete DTAP. Work is not simply a means of subsistence; it imposes discipline and regularity on one’s daily behavior and enhances one’s self-esteem. DTAP participants receive in-treatment educational and vocational training. As they move to the reentry phase, they also meet with DTAP’s job developer. The job developer works with the individuals to create an employment plan. The developer provides vocational counseling and connects defendants to employment possibilities. A Business Advisory Council, composed of dozens of large and medium-sized local businesses, work with the job developer to identify and develop job opportunities for DTAP graduates. The services of the DTAP job developer remain available to DTAP participants even after they graduate from the program. In short, the developer is dedicated to assisting DTAP graduates in finding and retaining jobs.
As part of its evaluation of the DTAP program, the CASA research team found that DTAP graduates are three-and-a-half times likelier to be employed upon program completion than they were before their arrest and entrance into the program (92 percent versus 26 percent). (Crossing the Bridge, supra, at 10.) According to the CASA report, “[r]econnecting ex-offenders to the world of legitimate employment is crucial to maintaining recovery and reducing future criminal behavior.” (Id.) For example, CASA found, from an analysis of 117 employable graduates, that among those DTAP graduates who were working at the time of program completion, 13 percent were rearrested during the three-year follow-up. In contrast, 33 percent of those who were not working were rearrested during the same period. (Id.)
If a DTAP participant has apparently met all the requirements for graduation, TASC, in consultation with the treatment provider, makes a recommendation to the district attorney’s office that the participant be considered to have completed DTAP. The prosecutor will review the participant’s file and confirm that the participant has no new arrests. The parties appear in court. The court permits the defendant to withdraw the previously entered guilty plea, and, on motion by the prosecution, the charges are dismissed. The court and prosecutor congratulate the DTAP graduate on gaining and maintaining sobriety.

DTAP success

Using data from more than 1,400 DTAP participants, the CASA research team concluded that program participants remain in treatment a median of 17.8 months, six times the three-month median stay for long-term residential treatment reported in the most recent national study of the general drug treatment population, the Drug Abuse Treatment Outcome Studies (DATOS). (Crossing the Bridge, supra, at 4, 7.) Retention is important because good outcomes are contingent on adequate lengths of treatment. (See NIDA GUIDE, supra, at 16; Press Release, NORC of the University of Chicago, “Best Drug Treatment Lengths Identified” (April 22, 2003), available at http://www.norc.uchicago.edu/ about/press
04222003.asp (study of patients treated for addiction to cocaine, heroin or marijuana showed that treatment needs to be prolonged beyond three to six months and treatment in residential setting for up to 18 months yielded greatest reductions in illicit drug use).)
CASA researchers further found, based on data from over 1,000 DTAP participants who were admitted into the program before November 2000 that 52.6 percent graduated. (Id. at 5.)
With regard to the crucial measure of recidivism, DTAP also excelled. The CASA researchers compared a group of 280 DTAP participants (a group that included both dropouts and graduates) to a group of 130 defendants who went through the criminal justice process in New York City. According to CASA’s findings, two years after leaving the program, DTAP participants had rearrest rates that were 26 percent lower and reconviction rates that were 36 percent lower than those in a comparison group of offenders two years out of prison. DTAP participants were also 67 percent less likely to return to prison two years after leaving the program than were members of the comparison group. (Id. at 6.) CASA’s analysis comparing just those who graduated from DTAP to those of the matched comparison group who served time in prison reveals findings that are even more dramatic. DTAP graduates had rearrest rates that were 33 percent lower, reconviction rates that were 45 percent lower, and were 87 percent less likely to return to prison two years after completing the program than the comparison group. (Id.)
Finally, the CASA team concluded that DTAP’s results were achieved at about half the average cost of incarceration. CASA calculated that the average cost for a DTAP participant was $32,975, and compared that to the average cost of $64,338, if that same person had been sent to prison. (Id. at 13.)
As a consequence of the demonstrated success of DTAP, the United States Congress has entertained legislation to promote the DTAP model beyond the boundaries of New York State. In 2000, the House of Representatives passed legislation, introduced by Congressman John L. Mica of Florida that provided funding for prosecution-run drug treatment alternatives to prison. The Senate passed similar legislation, but, unfortunately, Congress adjourned before the two versions could be finalized. During the 107th Congress, at the request of Senator Charles E. Schumer, federal funding for state and local DTAP programs was included in an omnibus “Drug Abuse Education, Prevention and Treatment Act of 2001” (S. 304), which was introduced by Senator Orrin G. Hatch and which had the bipartisan support of several cosponsors. Meanwhile, Congressman Mica introduced in the House of Representatives the “Prosecution Drug Treatment Alternative to Prison Act of 2001” (H.R. 2580), which also provided federal funding for state and local DTAP programs. Although this DTAP legislation was not enacted by the 107th Congress, DTAP legislation was again introduced in the Senate during the 108th Congress, both as section 5103, “Drug Treatment Alternative to Prison Programs Administered by State or Local Prosecutors,” of the Justice Enhancement and Domestic Security Act (S. 22), and, under the same title, as section 704 of the Office of National Drug Control Policy Reauthorization Act of 2003 (S. 1860). The latter is a bipartisan bill that was introduced by Senator Hatch in November 2003 and it is cosponsored by Senators Schumer and Charles E. Grassley. If enacted, this DTAP legislation would authorize new federal funding for state and local prosecutors to establish and oversee drug treatment diversion programs for nonviolent offenders, including providing payments to the treatment facilities participating in the programs. In light of DTAP’s proven effectiveness, this federal funding legislation deserves the support of criminal justice practitioners from both sides of the courtroom, as well as the bench.
Each year, Brooklyn DTAP hosts a graduation ceremony to celebrate the achievement of the graduates. Family and friends of the graduates are invited, as are representatives from DTAP’s many treatment providers. The graduates are presented with certificates marking their achievement, and several graduates usually address the audience to talk about their DTAP experience. The event is emotional, and, for a prosecutor, one of the most gratifying to attend. Program graduates are the true spokespeople for DTAP. Their words testify to the immense challenge of the drug treatment experience and the courage and commitment necessary for an addict to achieve and maintain sobriety. Unlike incarceration, treatment has given DTAP graduates the self-knowledge and self-respect to abstain from drug use and crime and to rejoin the Brooklyn community as productive and caring citizens.
As one DTAP graduate said: “Now, I am blessed with the understanding of my past addiction and the knowledge of the things that I have to be aware of for my successful recovery. It is the first time in my life that I have made a commitment to something positive and I know in my heart that I will achieve a happy and fulfilling life. . . . Today, I have so much respect for the most precious thing in life, the freedom to choose the way I live. I am proud of the man that I have learned to be.” n

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