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Back to list of Dissenting Opinions of Judges

November 18, 2004 - The New York Times

Op-Ed: Rehab Justice

By Donald P. Lay, senior judge for the United States Court of Appeals for the Eighth Circuit.

Our federal justice system has a great deal to learn from our state court systems. Today, nearly every state has a "drug court" to deal with nonviolent drug offenders through a mix of treatment and sanctions, all as part of an effort to reduce recidivism, substance abuse and costs. Statistics show that drug courts are a success, yet Congress persists in mandating ever stiffer sentences for federal offenders who need treatment more than punishment.

While drug court programs vary from state to state, most try to address the cause of an offender's behavior: addiction. All offer community-based treatment in lieu of prison. Offenders who choose to participate in a drug court and complete their treatment typically can have the charges against them dropped, or can plead guilty without being sentenced to prison.

In 2003, there were more than 1,500 drug courts either in operation or in the planning stages. Drug court graduates have substantially lower rates of criminal recidivism than offenders who are imprisoned. In New York, for example, the re-arrest rate among 18,000 drug court graduates was 13 percent, compared with 47 percent for the same type of drug offenders who served prison time without treatment. Drug courts also cost less than incarceration and have high retention and completion rates. Even Congress recognizes their worth; since 1994, it has authorized the attorney general to make grants to states, state and local courts, and local and tribal governments to establish drug courts.

Years ago, Chief Judge James L. Oakes of the United States Court of Appeals for the Second Circuit and I, as chief judge of the Eighth Circuit, sponsored a sentencing institute. At that institute, I asked the chairman of the United States Sentencing Commission why an 18-year-old who had received some drugs by mail for a friend should face a mandatory minimum sentence of 10 years, under the commission's federal sentencing guidelines set by the commission. The chairman responded that because this teenager would be in prison during his 20's, the age when the likelihood of recidivism is greatest, the sentence would cut down on re-arrests. The head of the Bureau of Prisons whispered to me, "Doesn't he realize when that young man gets out of prison, he will be nothing more than a hardened criminal?"

Mandatory minimum sentences, enacted by Congress, have contributed to the rising costs of imprisonment and crowding in federal prisons. In federal drug cases, defendants could face a minimum of 5 to 10 years in prison, while a similar offense in some state courts would allow a court, depending on the circumstances, to place the defendant on probation. Justice Anthony Kennedy and several other scholars, judges, professors and law reviews have openly criticized the use of mandatory minimum sentences in federal criminal cases. To make matters worse, a bill has been proposed in the Senate that would set a mandatory sentence of 10 years for a first drug conviction and mandatory life imprisonment for a second.

According to the Federal Bureau of Prisons' Web site (as of Sept. 4, 2004), the total federal inmate population is 180,318. About 54 percent of that population are drug felons. The total cost for each prisoner was $61 per day; for the entire population, almost $11 million a day or $4 billion a year. It is predicted that by 2010 there will be more than 216,000 individuals serving time in federal prisons.

Unlike the states, the federal criminal justice system offers no alternatives for nonviolent offenders charged with drug-related crimes. In the federal system, it is almost a certainty that a convicted drug offender will be incarcerated rather than going through a community-based treatment program. It is little wonder then that the federal prison system will continue to be overburdened. Given the success of drug courts in the states, the federal government should study how to modify its sentencing to incorporate elements of the drug court model and to assess the effectiveness of community-based alternatives to imprisonment for nonviolent federal drug felons.

Congress would need to authorize the mechanics of federal drug courts. One suggestion would be that magistrate judges could preside over the drug court, while federal probation officers could oversee the offenders' attendance at drug treatment programs as well as obtain employment and housing for them. A good start would be to develop sentencing policies that take drug dependency into account, and that place as much emphasis on preventing crime as on punishing misconduct. Sentences that combine treatment, monitoring and the threat of imprisonment hold the promise of long-term solutions to crime. They should be more readily available in the federal system.

The high cost of this incarceration policy falls on taxpayers. However, beyond all of this is the fact that the real damage is incurred by the individuals who must spend a large portion of their life in prison. The damage to young prisoners cannot be measured in dollars and cents.

Cases are now pending before the Supreme Court that will affect sentences in all federal cases. This presents an opportunity for the executive and legislative branches to bring sanity to federal drug sentencing. Congress has nothing to lose and everything to gain by passing legislation to carry out a program for federal drug courts.

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