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October 2, 2009 -- Drug War Chronicle (US)

Drug Court Program Needs Serious Reforms, Defense Attorneys Say

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Drug courts have spread all across the country since the first one was instituted in Miami 20 years ago by then local prosecutor Janet Reno, but now, the nation's largest group of criminal defense attorneys says they have become an obstacle to cost-effective drug treatment and a burden on the criminal justice system.

In a report released Tuesday, America's Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform, the National Association of Criminal Defense Attorneys (NACDL) argued that drug addiction should be considered a public health problem, outside the criminal justice arena.

More than 2,100 drug courts are now in operation in the US, the group noted, but they have had no noticeable impact on drug use rates or arrests. Furthermore, the courts, which empower judges and prosecutors at the expense of defendants and their attorneys, too often limit treatment to "easy" offenders while forcing "hard cases" into the jails or prisons.

Minorities, immigrants, and poor people are often underrepresented in drug court programs, leaving them to rot behind bars at taxpayer expense. Drug courts also mean that access to drug treatment comes at the cost of a guilty plea, the group said.

"Today's drug courts have been operating for over 20 years yet have not stymied the rise in both drug abuse or exponentially increasing prison costs to taxpayers," said NACDL president Cynthia Orr. "It is time for both an extensive review of these courts and for the average American to ask themselves: Is our national drug policy working, and perhaps it is a public health concern rather than a criminal justice one?"

In the report, NACDL recommended the following reforms:

* Treating substance abuse as a public health issue rather than a criminal justice one;

* Opening admission criteria to all those who need, want and request treatment;

* Enforcing greater transparency in admission practices and relying on expert assessments, not merely the judgment of prosecutors;

* Prohibiting the requirement of guilty pleas as the price of admission;

* Urging greater involvement of the defense bar to create programs that preserve the rights of the accused;

* Considering the ethical obligations of defense lawyers to their client even if they choose court-directed treatment; and

* Opening a serious national discussion on decriminalizing low-level drug use.

Read the full NACDL report, "America's Problem-Solving Courts; Criminal Cost of Treatment," here.

September 29, 2009 -- Miami Herald (FL)

Rethink How We Fight Drugs

By Cynthia Hujar Orr

Twenty years ago, South Florida's jails and courts were bursting at the seams with low-level drug suspects, mostly users who sold small amounts of cocaine to feed their habits. Pretrial urine screenings revealed that 73 percent of all arrestees tested positive for drugs, with cocaine and marijuana leading the list.

The jails became so overcrowded that most people arrested for drug felonies were released back to the streets pending trial, where they would be arrested again, usually on another drug felony. Plea bargains resulted in mandatory minimum prison sentences for many offenders. Violent felons were gaining early release because the Florida prison system was holding so many nonviolent drug offenders with mandatory sentences.

In 1989, then-Miami-Dade State Attorney Janet Reno instituted a novel plan -- ``drug court.'' Defendants charged with low-level drug felonies would be diverted into treatment programs instead of prison. The idea caught on, and today there are some 2,100 similar ``problem solving'' courts around the country, dealing with drug defendants and other problems such as drunken drivers and domestic-violence offenders.

But state courts and prisons are still overflowing with people charged with use or street-level sale of drugs. The FBI Uniform Crime Report for 2008 issued this month listed 1.7 million drug arrests -- 12.2 percent of all reported crimes: 4,658 arrests every day, roughly one arrest every 18 seconds.

Diversity of courts

There is no single model for drug courts. Some work fairly well; many do not. The National Association of Criminal Defense Lawyers recently completed a two-year study of these specialized courts, to be released today. Hearings were held in seven cities around the country, including Miami, to try to find out what succeeds, and what doesn't.

One problem is that many courts force people to enter a guilty plea in order to get into court-supervised treatment programs. Even if an addict achieves lasting sobriety or learns to control antisocial behavior and is unlikely to recommit a crime, the consequences of a criminal conviction -- felony or misdemeanor -- can be lifelong and devastating.

In many programs, the individuals most able to help themselves, or those with more resources, find their way through drug courts into treatment, while defendants most in need of treatment, the hard cases, are set up for failure -- a one-way ticket to jail. This sort of ``skimming'' may give drug courts impressive success statistics, but doesn't make efficient use of the limited resources available. Programs that help people conquer addiction save tax dollars; programs that put addicts into prison for long sentences cost the taxpayers money.

Most drug courts were created by prosecutors and judges faced with overloaded court dockets, and there often has been little opportunity built into the process for defense lawyers to protect the rights of their clients.

But there are positive exceptions. In Philadelphia, for example, before an accused person is pressured to enter treatment, he is given a reasonable opportunity to defend himself against the cause of his arrest. That way, innocent people are not pushed to plead guilty and drain program resources to make the case go away. Not everyone arrested for a drug crime is guilty, and treatment slots should be reserved for those who want and need it.

Push to dismiss charges

Spurgeon Kennedy, of the District of Columbia Pretrial Services Agency, said ``under the radar'' programs exist where judges lean on prosecutors to dismiss charges and enable defendants to get treatment. In Tennessee, state law allows a charged person with no recent felony offense to have his case set aside to make treatment possible.

Drug courts give tough-on-crime politicians cover to support spending money for treatment programs in the criminal-justice system. But treatment usually can occur more efficiently in the public-health system. ``What we're doing is back-loading the treatment, enabling our legislators and leaders to fail to properly fund treatment, education and health services,'' the late Robert Hooker, a Pima County, Ariz., public defender, testified at a hearing. It's a misallocation of scarce resources.

The country needs to take a new look at the way we deal with drugs and drug users. About 500,000 men and women are incarcerated for a drug offense, and they are disproportionately poor, minorities or immigrants. Substance abuse really is a medical, not a criminal-justice, issue. Moving away from a ``war on drugs'' to a strategy for controlling drugs and treating drug abusers is the next step.

Cynthia Orr is president of the National Association of Criminal Defense Lawyers.

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