Drug court use in state nosedives
Data shows sharp decline since ’19, when N.Y. changed bail, pretrial discovery laws
ALBANY — Justin Roti Roti polished off his drink of choice, a 1.75 liter bottle of Ten High whiskey. He left his friend’s house at around 2 a.m. three years ago. He soon saw flashing lights and pulled into a Burger King parking lot off Route 9 with a police car behind him.
Roti Roti stepped out, put his hands up and acknowledged he had been drinking. He was intoxicated at twice the legal limit. Police charged him with a felony for driving while intoxicated, the second time he had been charged with drunk driving.
When the case finally advanced more than a year later — delayed by the pandemic — he was offered a choice: spend up to three years in prison or enter a drug court program.
“I had no idea that was an option,” said Roti Roti, a military veteran. “Any sane person would’ve taken drug court over prison.”
Over the next 17 months, he participated in treatment for his alcohol addiction, which over the years had cost him close friends and strained his relationships with his mother and daughter.
Last month, he graduated from drug court in Albany. He has a new job, a new apartment and is sober, which he credits to the treatment he received through drug court.
“I’d still be drinking right now,” said Roti Roti, a Shaker High School graduate.
But his turnaround story is becoming increasingly rare in New York.
State data obtained by the Times Union shows usage of drug courts has dropped nearly in half since sweeping changes were made in 2019 to the state’s bail and pretrial discovery laws.
Those changes to the criminal justice statutes have contributed to an unintended consequence: Significantly fewer individuals are faced with choosing between incarceration or entering a drug court rehabilitation program. That drop in the number of individuals entering drug courts came after New York’s criminal justice statutes were overhauled three years ago. While access to drug or other treatment courts have always posed hurdles for public defenders and prosecutors, court watchers note a more
fundamental change has disrupted the system.
Drug court is premised on the idea of providing an alternative to incarceration. And for a defendant to be eligible for drug court, they have to first enter a guilty plea to a charge.
The guilty plea then creates a dynamic where if the person fails drug court, they face potential prison time. If they succeed, the charges are dropped. Agreeing to drug court by entering a guilty plea can also be used as an incentive when a defendant is sitting in jail awaiting trial.
But with fewer guilty pleas and fewer people awaiting trial in jail, the incentive to drive someone to consider drug court has substantially weakened.
Many public defenders contend it’s a good thing that the coercion model has been suppressed. They would prefer to change how people can enter drug court and point to “Treatment not Jails” legislation, which would remove the need for a person to enter a guilty plea in order to access treatment.
But prosecutors contend the setup was a credible path to incentivize people to seek help — especially as overdose rates soar and rehabilitation programs behind bars are lacking.
In New York City, state data reflect the starkest change: In January 2020, about 1,200 people were in drug court. But fewer than 200 people were participating in drug court during that same month this year.
Confronting the cycle of addiction
The drop in the use of drug courts comes just over two decades after the state’s judicial leaders decided it should invest in trying to break the “critical cycle of addiction and recidivism.”
“If the courts could help reduce the number of addicts, there should eventually be a decrease in the number of crimes and court filings,” reported a 2000 commission established by former Court of Appeals Chief Judge Judith S. Kaye and led by Robert B. Fiske, Jr., former U.S. attorney for the Southern District of New York.
The report sounded an urgent call to help those struggling with addiction, by suggesting reduced taxpayer costs, decreased prison population and lower crime levels while also offering substantial benefits to those suffering from addiction.
“If this type of treatment is to have a true impact, it must be expanded considerably, and in some coordinated way,” the report concluded.
It recommended screening all criminal defendants to “identify non-violent addicts who may be eligible for treatment.” That core tenet would never be fully realized.
‘They’re all drug addicts’
Last year, state Attorney General Letitia James, alongside New York City Mayor Eric Adams, announced the indictment of 41 people who were charged for their roles in an alleged “crime ring.” Law enforcement seized nearly $4 million of stolen retail items.
“Today’s takedown of this massive retail theft operation is part of our continued efforts to combat crime and restore an environment where all New Yorkers feel secure,” James said.
A story in New York Magazine profiled individuals caught in the retail crime ring who simultaneously were in the throes of addiction.
“If you looked at all of the pictures of all of those people who got busted, they’re all drug addicts. They’re all homeless,” Larraine Kurack, a mother of one of the accused, told New York Magazine.
Retail theft, such as petit larceny, has increased rates of rearrests since 2019, according to a Times Union analysis of state data. Yet the data has largely been divorced from any information on whether the defendant may have a drug addiction.
John Jay College, in a white paper released this month, found those with pending offenses, including retail-related crimes, or with a recent violent criminal history, had greater likelihood of rearrest than before the changes to the law. All other alleged offenses saw a decrease in rearrests.
With drug-related or retail-theft offenses typically ineligible or unlikely for a judge to set bail or remand someone at an arraignment, defendants have become less likely to be held in a jail. They are then less likely, if eligible, to enter a guilty plea for drug court as an alternative to jail, court watchers said.
Republicans, prosecutors and law enforcement officials have pointed to concerns that those accused of crimes face the likelihood of penalty less often than they did before the changes to criminal justice laws. They note that speedy trial requirements that were part of changes to the pre-trial discovery laws can also lead to less of an incentive to broker a plea deal.
State data show a decline in those entering guilty pleas in all criminal cases. In New York City, about half of misdemeanor cases resulted in a guilty plea in 2019. By 2022, less than a quarter of the cases resulted in a guilty plea. As the rate of guilty pleas have declined, dismissals have gone up.
Following the changes to the state’s bail and pre-trial discovery laws, there’s “much less of an incentive” for a defendant to opt into a treatment court, according to a source with close knowledge of operations in a New York City prosecutor’s office, but who was not authorized to speak publicly. All five offices of the district attorneys in the city are run by Democrats.
Overly punitive?
Assembly Speaker Carl E. Heastie, a Bronx Democrat, told reporters earlier this month he recently spent time in a mental health court in Brooklyn, where “clearly the wheels of justice have gotten bogged down.”
“Only one trial a week,” Heastie said. “That’s a problem.”
Public defenders contend there may be several variables at play leading to the low intake: the COVID -19 pandemic causing a backlog in the court system; a lack of staffed beds at treatment facilities; and people who are funneled to other programs because of co-occurring disorders, such as a severe mental illness.
Defenders, too, see fundamental issues with the “coercive” system — a term the 2000 commission used to describe the drug courts it endorsed.
“If people end up embroiled in the legal system, there should be noncoercive opportunities for treatment that support them getting back on their feet,” said Katie Schaffer, director of advocacy and organizing at Center for Community Alternatives, a progressive lobbying group that pushed for the criminal justice changes.
An example public defenders point to is when the proposed treatment plan’s length is based on the crime and not the clinical need.
“It’s overly punitive and it’s just asking more of people than is actually clinically necessary, just for the sake of punishment,” said Julia Solomons, senior policy social worker with the Bronx Defenders, which is advocating for the “Treatment not Jails” legislation.
Prosecutors say the changes to the state’s bail and discovery laws are the overwhelming reason for the decline in the usage of drug courts.
“There’s no incentive,” said Tony Jordan, Washington County District Attorney, the outgoing president of the District Attorneys Association of New York. “Somebody might use, ‘What, are you trying to coerce them into recovery?’ I want people to get into recovery and save their life.”
Jordan sees the coercive model as having value.
He points to family, friends and employers who try to urge a person to treat their addiction before it leads to them committing crimes. “We’re one of the last stops before the addiction consumes them,” Jordan said of the criminal justice system.
Jordan described individuals in his county who overdosed recently and previously may have been offered treatment through the court system.
“The problem is very real,” Jordan said ‘The person gets to walk out the door, right back to the same community they were using.”
‘Second chances’
“Treatment not Jails” legislation sponsored by state Sen. Jessica Ramos, D - Queens, could dramatically overhaul the mechanism needed to access mental health, drug or other treatment courts by removing the need to enter a guilty plea in order to be enrolled in drug court. It’s an approach backed by public defenders and progressives, along with at least one state Senate Republican.
“When it’s punitive, people don’t feel as inclined to help themselves because they don’t see the light at the end of the tunnel,” Ramos said.
The former police chief of the Albany Police Department, Brendan Cox, has echoed a similar view.
“We have thought for too many years we can punish our way out of mental health issues, that we can punish our way out of substance abuse issues — that it somehow is going to solve public safety,” Cox said at a rally for the
legislation at the Capitol earlier this year.
Cox, now the director of policing strategies at the LEAD National Support Bureau, said the “war on drugs” just contributed to the problem.
Another believer in treatment and “second chances” is state Sen. Jake Ashby, R-Castelton, whos is the lone Republican co-sponsor of the “Treatment not Jails” legislation.
“I believe people are redeemable,” Ashby, a veteran, said in an interview. “When they find themselves facing the consequences of their choices, they should have that ability to seek redemption and the state should be a part of that.”
Still, he finds some value in the coercive model of needing to enter a plea to enter drug court as a last resort.
“It could be that their addiction landed them in the position that they’re in and now, in a sense, we’ve removed their ability to seek help,” Ashby said. “That’s a loss for the state and that’s a loss for those individuals and their families. We need to do a better job in recognizing that.”
Solomons, with the Bronx Defenders, said there are instances when the court and programming take too long to coordinate a plan. It can lead to a defendant being sentenced to time-served without receiving treatment for their addiction.
“Those are the saddest situations because sometimes people really want treatment and (are) asking for it, but all the time it took to try to figure it out, it ends up not being the smartest legal decision to resolve their case,” Solomons said.
She points both to the need to remove barriers to access to treatment in criminal justice proceedings, but also to the need for up-front, long-term investments in mental health, education, stable housing and employment opportunities.
Hochul and the Legislature have varying proposals for how to invest in those systems.
One of the original plans of the state’s criminal justice changes in 2019 was to provide defendants released under supervision while their case is pending to have access to social services that could help treat issues that may have led to criminal activity. But those pretrial supervised release services have been underfunded and overwhelmed with massive increases in caseloads.
Senate Democrats are proposing an additional $20 million to fund supervised release while Assembly Democrats have not earmarked additional money for it. Neither side has directly proposed more funding for treatment courts, which the state’s next chief judge could direct and use to expand access to those services.