Arizona's Drug Sentencing Statute: Is Rehabilitation a Better Approach to the "War on Drugs"? "When it costs so much more to incarcerate a prisoner than to educate a child, we should take special care to ensure that we are not incarcerating too many persons for too long. '1 I. PROLOGUE In 1990, Gary Brown was convicted for drug possession with intent to distribute. 2 In 1996, he was convicted for attempted possession. 3 In 2005, Brown was convicted for a third possession offense and sentenced to life in prison. 4 The First Circuit upheld this sentence based upon the Controlled Substances Act, a federal law that mandates a life sentence without release if a person is convicted "after two or more prior convictions for a felony drug offense... have become final." 5 Brown, like most other drug offenders, probably has a drug dependence or abuse problem. 6 He was never caught manufacturing drugs or selling them, and yet, he is serving a longer sentence than most cold-blooded killers. 7 1. Anthony M. Kennedy, Assoc. Justice, U.S. Supreme Court, Speech at the American Bar Association Annual Meeting (Aug. 9, 2003), available at http://www.supremecourtus.gov/publicinfo/speeches/sp-08-09-03.html. 2. United States v. Brown, 500 F.3d 48, 59 (1st Cir. 2007). 3. Id. 4. Id. at 53. 5. Id. (quoting 21 U.S.C. 841(b)(1)(A) (2000)). 6. CHRISTOPHER J. MUMOLA & JENNIFER C. KARBERG, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT, U.S. DEP'T OF JUSTICE, DRUG USE AND DEPENDENCE, STATE AND FEDERAL PRISONERS, 2004, at 7 tbl.5 (2006), available at http://www.ojp.usdoj.gov/ bjs/pub/pdf/ dudsfp04.pdf. 7. BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, COMPENDIUM OF FEDERAL JUSTICE STATISTICS, 2004, at 10 (2006), available at http://www.ojp.usdoj.gov/ bjs/pub/pdf/cfjs0405.pdf [hereinafter BUREAU OF JUSTICE STATISTICS, COMPENDIUM].
CRIMINAL AND CIVIL CONFINEMENT [Vol. 35:397 II. INTRODUCTION Our prisons are packed with people like Gary Brown. In 2004, more than half of all state prisoners met the Department of Justice (DOJ) criteria for drug dependence or abuse. 8 Sixty-three percent of both property and drug offenders were dependent on or abusing drugs at the time of their offense. One-in-three property offenders and one-in-four drug offenders committed the crime to obtain money for drugs.' 0 These numbers reinforce the fact that there is a strong correlation between criminal behavior and drug dependence or abuse. To make matters worse, more arrests for drug-related crimes were made in 2006 than for any other category of crime. 11 The numbers are shocking: 1.9 million, or 13.1%, of the total number of arrests were for drug offenses. 12 Of this astronomical number, 82.5% of the arrests were for possession, leaving 17.5% of the arrests for sale or manufacturing violations. 13 These statistics, demonstrating that the overwhelming majority of drug arrests are for possession rather than sale or manufacturing offenses, provide more evidence that drug dependence or abuse is a major contributing factor in most drug offenses. 14 As a result, drug treatment programs and other rehabilitative techniques may prove to be more effective ways to reduce recidivism than incarceration. In response to findings like these, many states have begun to seek solutions to the many problems presented by the punishment-driven "War on Drugs."' 15 "Between 2004 and 2006, at least 13 states have either established or expanded drug treatment and diversion sentencing options."' 16 Arizona was one of the first states to implement a drug treatment program as an alternative to incarceration for first- and second- 8. MUMOLA & KARBERG, supra note 6, at 7 tbl.5. 9. Id. at 7 tbl.6. 10. Id. at 6. 11. CRIMINAL JUSTICE INFO. SERV. DIV., FED. BUREAU OF INVESTIGATION, CRIME IN THE UNITED STATES, 2006, at tbl.29, http://www.fbi.gov/ucr/cius2006/arrests/index.html (last visited May 18, 2009). 12. See id. 13. See id. 14. See id. 15. RYAN S. KING, SENTENCING PROJECT CHANGING DIRECTION? STATE SENTENCING REFORMS, 2004-2006, at 4 (2007), http://www.sentencingproject.org/admin%5cdocuments %5Cpublications%5Csentencingreformforweb.pdf [hereinafter KING, CHANGING DIRECTION]. 16. MARC MAUER & RYAN S. KING, SENTENCING PROJECT, A 25-YEAR QUAGMIRE: THE WAR ON DRUGS AND ITS IMPACT ON AMERICAN SOCIETY 26 (2007), http://www.sentencingproject.org/admin/documents/publications/dp-25yearquagmire.pdf [hereinafter MAUER & KING, 25-YEAR QUAGMIRE].
2009] ARIZONA'S DRUG SENTENCING STA TUTE time nonviolent possession offenders. 17 California followed shortly thereafter. 18 This Note explores Arizona's successful, state-implemented program as well as other states' similar attempts to rehabilitate rather than incarcerate drug offenders. It also recommends that a rehabilitative approach, rather than punishment, is the answer to the "War on Drugs" because it provides long-term solutions for both society and offenders. Part III surveys the history of our current punishment-driven criminal justice system as it pertains to drug crimes. Part III also provides an overview of the negative effects this system has produced. Part IV introduces Arizona's drug sentencing statute and analyzes its attempts to curb these existing problems. In addition, Part IV looks at similar state statutes and differing approaches states have used to introduce rehabilitation into drug sentencing. Part V considers the benefits and detriments of punishment versus rehabilitation and recommends rehabilitation as a more effective approach to the "War on Drugs." Part VI contains the author's conclusion. This Note does not suggest that punishment should be forgone entirely with regard to drug crimes. Rather, it proposes that a more realistic balance be struck between the impractical "tough on crime" approach and the developing rehabilitative approach. In addition, this Note proposes that more attention should be focused on whether an offender is violent or nonviolent when a determination is made regarding incarceration. III. THE "TOUGH ON CRIME" APPROACH Officially declared on October 2, 1982, by President Reagan in a radio address, 19 the "War on Drugs" has intensified to the extent that it has affected the entire American criminal justice system. 20 The theory was if law enforcement got "tough on crime" by securing more arrests and punishing offenders with harsher penalties, it would have a deterrent effect, thus decreasing the net volume of drug offenses. 21 However, over the course of two and a half decades, society has become increasingly aware that the intended result has not occurred. On the contrary, the promulgation of laws treating drug offenses more seriously and mandating longer sentences has produced atrocious prison overcrowding problems, increased costs to house and provide for those incarcerated, and increasingly 17. ARiz. REV. STAT. ANN. 13-901.01(D), (F) (2001 & Supp. 2007-08). 18. CAL. PENAL CODE 12 10.1 (a) (West 2004 & West Supp. 2008). 19. Ronald Reagan, President of the United States, Radio Address to the Nation on Federal Drug Policy (Oct. 2, 1982), available at http://www.presidency.ucsb.edu/ws/ index.php?pid=43085. 20. MAUER & KING, 25-YEAR QUAGMIRE, supra note 16, at 1. 21. See id.
CRIMINAL AND CIVIL CONFINEMENT [Vol. 35:397 frustrated populations who have served sentences they perceive to be unjust. 22 Sentences for drug violations increased in the 1980s as a result of law enforcement responses and stricter sentencing policies. 23 The Federal Sentencing Guidelines, combined with increased funding, supported a surge in arrests for drug offenses and resulted in offenders being placed in prison for longer terms. 24 Between 1985 and 1990, the budget for the Drug Enforcement Agency more than doubled, rising from $362.4 million to $769.2 million. 25 Correspondingly, the number of drug arrests between 1980 and 1990 also doubled. 26 A number of federal laws contributed to this surge in arrests. 27 The Anti-Drug Abuse Act of 1986 allocated $6 billion over three years primarily for "interdiction and enforcement measures." 28 It also imposed severe mandatory minimum sentencing for drug offenses. 29 The Anti-Drug Abuse Act of 1988 added additional funds for enforcement and increased penalties for drug violations. 30 In addition, this statute created the Office of National Drug Control Policy, with its director aptly named the "Drug Czar." 31 This addition extended the reach of the drug war to a brand new federal agency, charged with implementing and enforcing a political agenda aimed at punishing drug offenders with long periods of incarceration. The Federal Sentencing Guidelines became effective on November 1, 1987,32 thereby coinciding with the passage of the federal Anti-Drug Abuse Acts of 1986 and 1988. Because they were designed simultaneously, the federal drug laws had a significant impact on the formulas used in the 22. See id. at 7-9. 23. RYAN S. KING & MARC MAUER, SENTENCING PROJECT, DISTORTED PRIORITIES: DRUG OFFENDERS IN STATE PRISONS 1 (2002), available at http://www.sentencingproject.org/admin/documents/publications/dp-distortedpriorities.pdf [hereinafter KING & MAUER, DISTORTED PRIORITIES]. 24. MAUER & KING, 25-YEAR QUAGMIRE, supra note 16, at 7. 25. U.S. Drug Enforcement Administration, DEA History Book, 1985-1990, http://www.usdoj.gov/dea/pubs/history/1985-1990.html (last visited May 18, 2009) [hereinafter DEA]. 26. MAUER & KING, 25-YEAR QUAGMIRE, supra note 16, at 4 fig. 1. 27. See DEA, supra note 25. 28. Id. 29. Id. 30. Id. 31. Id. 32. U.S. SENTENCING COMM'N, GUIDE TO PUBLICATIONS AND RESOURCES 2007-2008, at 8 (2007), available at http://www.ussc.gov/publicat/cat2005.pdf
2009] ARIZONA'S DRUG SENTENCING STATUTE Guidelines. 3 3 Besides eradicating the parole system, the Guidelines imposed severe mandatory minimum sentences, which were much longer than state courts assessed at the time. 34 Furthermore, an enormous shift in the number of drug prosecutions filed in federal court brought defendants under the scope of the harsh penalties created by Congress in the Anti-Drug Acts of 1986 and 1988. 3 5 To put it in perspective, "these laws require a mandatory five-year prison term for possessing as little as five grams of crack cocaine (the weight of two pennies)." 36 Laws such as these, dedicated to winning the "War on Drugs," have led to undesirable results. The negative effect of the laws implemented in the wake of the "tough on crime" approach prompted many states to reconsider their sentencing laws or their entire criminal justice systems. 37 These laws have been the source of massive prison overcrowding, skyrocketing costs of incarceration, and negative effects on released individuals, all of which resulted in increased rates of recidivism. 38 A. Prison Overcrowding Prison overcrowding is one of the most significant factors in explaining the current crisis in corrections. 39 The "unprecedented" influx of inmates in the late 1970s and early 1980s 40 corresponded with the increased funding and tough sentencing that occurred at the onset of the "War on Drugs." 4 According to the DOJ, 216,000 people were incarcerated in 1974.42 That number rose to more than 1.3 million in 2001. With an increase of over 600%, it is easy to believe that this country is facing a phenomenal prison overpopulation problem. Adding to this dilemma, these numbers include only those that are incarcerated in state and federal prisons, failing to take 33. MAUER & KING, 25-YEAR QUAGMIRE, supra note 16, at 7. 34. Id. at 8. 35. Id. 36. Id. at 8-9. 37. Id. at 26. 38. See, e.g., id.; Craig Haney, The Wages of Prison Overcrowding: Harmful Psychological Consequences and Dysfunctional Correctional Reactions, 22 WASH. U. J.L. & POL'Y 265, 266 (2006). 39. Haney, supra note 38, at 266. 40. Id. at 269. 41. MAUER & KING, 25-YEAR QUAGMIRE, supra note 16, at 3. 42. Id. 43. THOMAS P. BONCZAR, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE SPECIAL REPORT, PREVALENCE OF IMPRISONMENT IN THE U.S. POPULATION, 1974-2001, at 2 tbl. 1 (2003), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/piusp01.pdf.
CRIMINAL AND CIVIL CONFINEMENT [Vol. 35:397 into account those housed in local jails. 44 When factoring these additional inmates into the equation, the statistics increase to 2 million persons incarcerated in 2003 and 2.2 million in 2006. 45 There are severe problems that stem from prison overcrowding that are not obvious by the term alone. 46 Overcrowding is more than the number of prisoners measured against a designated capacity; rather, it incorporates the effects that occur when a prison "houses more prisoners than its infrastructure can humanely accommodate." 47 This suggests that prisoners are not receiving adequate attention in virtually every aspect of prison life. Prisoners are forced to cohabitate in cramped, close quarters and are deprived of basic human needs, which were once routine. The increased number of bodies translates into more violence, more punishment, and less rehabilitation: a more cruel and ineffective prison experience. 49 Due to the explosion of the prison population in such a short amount of time, authorities quickly had to determine how to accommodate the prisoners. Double-celling, once a technique deemed "totally undesirable" because it violated the "basic standards of decent housing, health, and institutional security," became an instant necessity nationwide. 5 When considered along with the fact that "overcrowding has been associated with higher rates of disciplinary infractions," double-celling and overpopulation in general make prison life literally more painful.' Another unsettling result of overpopulation is inactivity. 52 According to one expert, the overcrowding crisis has led to an attitude by prison authorities that deprivation is more of "a goal rather than a problem." 53 Consequently, funding for programs and activities has been substituted for bed space and for security purposes. 54 The outcome is an idle, unproductive prison population that damages prisoners' lives while in 44. Id. 45. WILLIAM SABOL, PH.D., TODD D. MINTON, & PAIGE M. HARRISON, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, PRISON AND JAIL INMATES AT MIDYEAR 2006, at 8 tbl.12 (2007), http://www.ojp.usdoj.gov/bjs/pub/pdf/pjim06.pdf. 46. Haney, supra note 38, at 266. 47. Id. 48. Id. at 273. 49. Id. at 272. 50. Id. at 267. Double-ceiling refers to the practice of housing two inmates in a cell that was designed to house only one. Id. 51. Id. at 271-72. 52. Id. at 274. 53. Id. at 273. 54. Id.
2009] ARIZONA'S DRUG SENTENCING STA TUTE prison, as well as once they re-enter free society. 55 Because inmates leave the prison system lacking the skills necessary to help them in the workplace, they often fail to make positive changes once released. Educational and occupational programs are both stretched as a result of prison overcrowding. 56 Prisoners are often on long wait lists to obtain jobs, and most who receive them are placed in prison industry programs where they are likely to obtain little or no useful work experience to be applied in free society. 57 At one point, the Bureau of Justice Statistics reported that as many as 40% of the nation's prisoners had no work assignments. 58 The frustration that results from lack of productivity has been shown to greatly increase conflict among inmates. 59 In fact, "researchers [have] agreed that overcrowded conditions in which prisoners have a significant amount of idle time can contribute to a higher level of prison rapes." ' 60 Overpopulation in prisons is especially daunting for drug offenders. As mentioned above, more than half of all state prisoners in 2004 met the DOJ criteria for drug dependence or abuse. 6 1 However, only 14.1% of those state prisoners in 2004 received drug treatment. 62 Drug dependent or abusing prisoners are contributing to the crisis of prison overcrowding. Once these prisoners are released, they are likely to be charged with another drug offense due to lack of treatment while in prison. This cycle inevitably contributes to the overpopulation problem all over again. The cycle needs to stop, and the best possible solution is for every drug dependent or abusing offender to receive treatment while incarcerated. The overpopulation problem for drug offenders does not stop there. Prisons are not filled with a majority of high-level, dangerous drug lords. 63 Rather, the overwhelming number of drug offenders in prison are lowlevel, nonviolent prisoners. 64 According to a 2002 report, 75% of drug offenders in state prison were strictly nonviolent drug offenders, and 58% of prisoners overall had no history of violence or high-level drug selling activity. 65 These types of prisoners, with no history of violent conduct and no high-level drug offenses, are ideal candidates for alternative, 55. Id. at 275. 56. Id. at 274. 57. Id. at 274-75. 58. Id. at 274. 59. Id. at 275. 60. Id. at 276. 61. MUMOLA & KARBERG, supra note 6, at 7 tbl.5. 62. Id. at 9 tbl.9. 63. MAUER & KING, 25-YEAR QUAGMIRE, supra note 16, at 12-13. 64. Id. 65. Id. at 13.
CRIMINAL AND CIVIL CONFINEMENT [Vol. 35:397 rehabilitative approaches instead of the harsh punishments most prisoners currently receive. 66 Moreover, it would substantially aid in solving the present prison overcrowding problem to remove some of the prisoners who would be effectively treated in more appropriate settings. This could be accomplished by sentencing some of the nonviolent first- and second-time drug possession offenders to rehabilitation facilities and community service rather than prison; it would also cost significantly less. 67 B. The Costs of Incarceration According to the DOJ, correction expenditures increased 423% per U.S. resident between 1982 and 2003.68 This correlates with the "tough on crime" approach of the "War on Drugs," including the increased funding of law enforcement, the increased number of drug arrests, and the skyrocketing overpopulation problem, all starting in the early 1980s. 69 In 2001, the cost for one inmate in state prison was $22,650 per year or $62.05 per day. 70 The Federal Bureau of Prisons reported similar numbers with $62.01 per prisoner per day in 2001.71 Taken as an aggregate, state and federal prisons in the United States spent about $80,665,000 per day on prison inmates in 2001.72 In addition, the DOJ reported that $38.2 billion was spent by correctional authorities just to maintain prisons in 2001.73 The majority of these costs are borne by the states, which spent $29.5 billion for prisons in 2001. 74 This equates to 77% of states' correctional costs being consumed by prison expenditures and leaving a mere 23% for alternative correctional programs, probation, parole, and juvenile justice. 75 Therefore, it is understandable that sending first-time, nonviolent drug 66. See generally BUREAU OF JUSTICE STATISTICS, COMPENDIUM, supra note 7, at 10. 67. See infra Part III.B. 68. KRISTEN A. HUGHES, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE BULLETIN, JUSTICE EXPENDITURE AND EMPLOYMENT IN THE UNITED STATES, 2003, at 2 (2006), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/jeeus03.pdf. 69. See sources cited supra notes 27, 30, 40. 70. JAMES J. STEPHAN, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT, U.S. DEP'T OF JUSTICE, STATE PRISON EXPENDITURES, 2001, at 1 (2004), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/spe 01.pdf. 71. Id. 72. See id.; see also THOMAS P. BONCZAR, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT, U.S. DEP'T OF JUSTICE, PREVALENCE OF IMPRISONMENT IN THE U.S. POPULATION, 1974-2001, at 2 tbl. 1 (2003), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/piusp01.pdf (noting there were 1,319,000 Americans incarcerated in State and Federal prisons in 2001). By multiplying 1.3 million inmates by $62.05 per day, the product is $80,665,000 per day. 73. STEPHAN, supra note 70, at 1. 74. Id. 75. Id.
2009] ARIZONA'S DRUG SENTENCING STATUTE offenders to prison contributes to the overcrowding problem, which in turn leads to consumption of the majority of correctional resources. 76 This cycle may be avoided if avenues are pursued to ensure more efficient sentences for these types of offenders in the form of rehabilitative measures, rather than long, ineffective incarceration terms. As mentioned above, in 2001 it cost about $22,650 per year to maintain one inmate in state prison. 77 Part IV discusses more thoroughly that Arizona saved more than $6.5 million in 2001 by diverting low-level, nonviolent drug offenders to treatment and probation as opposed to prison. 78 Arizona estimates it avoided costs of nearly $12 million in fiscal year 2004 due to alternative treatment programs. 79 In addition to the financial benefits gained through alternative sentencing for drug offenders, studies have shown reductions in drug use and criminal behavior through such programs. 80 Accordingly, it is clear that prison diversion for certain types of drug offenders offers real results and advantages for states, taxpayers, and correctional authorities. Likewise, it offers the drug offenders tremendous long-term benefits. C. The Effect on Releasees and Recidivism Rates The average prison sentence for someone convicted of a drug offense in 2004 was 83.6 months, or just under seven years. 81 This was significantly higher than the average sentence for a felony, which was 61.2 months. 82 In light of these prison sentences, many convicted drug offenders who are eventually released become incredibly angry and frustrated, believing their sentences were both unfair and unjust. 8 1 Many do not receive drug treatment, occupational experience, or educational programs while in prison. 84 Additionally, most, if not all, face an uphill battle towards assimilation with society while carrying the stigma of a felony record and 76. Id. 77. Id. 78. ADULT PROB. SERVS. Div., ADMIN. OFFICE OF THE COURTS, ARIZ. SUPREME COURT, DRUG TREATMENT AND EDUCATION FUND: REPORT DETAILING YEARS 2001-2004, at 27, available at http://www.supreme.state.az.us/apsd/pdf/final%2oreport%20w_o%20 ADC6.pdf. 79. Id. 80. STEVEN BELENKO, NAT'L CTR. ON ADDICTION & SUBSTANCE ABUSE AT COLUMBIA UNIV., RESEARCH ON DRUG COURTS: A CRITICAL REVIEW, 2001 UPDATE 1 (2001), available at http://www.drugpolicy.org/docuploads/2001 drugcourts.pdf. 81. BUREAU OF JUSTICE STATISTICS, COMPENDIUM, supra note 7, at 10 (2006). 82. Id. 83. See Haney, supra note 38. 84. Id.
CRIMINAL AND CIVIL CONFINEMENT [Vol. 35:397 time served in prison. 85 It is extremely difficult for someone with a criminal conviction, especially a felony drug conviction, to find employment after release. 86 Most releasees searching for employment are required to disclose their criminal background, and most employers simply refuse to hire those with criminal records. 87 According to a sociological study in 2003 performed in Milwaukee, Wisconsin, the callback percentage for those with a criminal record was minimal compared with those whose records were clean. 88 The study used the felony record of drug possession with intent to distribute, which, as discussed above, is much more common than sale or manufacturing offenses. 89 The drug conviction and the race of the offender were the only disparities in applicants. 90 Among white people with a clean record, 34% were called back after interviews, and only 17% with the drug conviction on their records were called back, thus decreasing the chance for employment by 50%.91 Among black people, the statistics were much worse. Without a criminal record, 14% of black people were called back after interviews compared to only 5% who had the drug conviction on their record. 92 Apparently, "even whites with criminal records received more favorable treatment (17%) than blacks without criminal records (14%)." 93 Regardless of the overarching disparities on account of race, this study shows how hard it is for drug offenders with a possession conviction to get a job after release. Because there are so many people who enter and exit the prison system today, and since society has attached a stigma to those with criminal convictions, this equates to a majority of society suffering from what has been deemed the "engines of inequality." 94 Without employment, drug treatment, or a fair chance, many releasees face incredible hardships after believing they paid their debt to society. As a result, poverty and recidivism are likely consequences. According to a 1994 DOJ report, drug offenders 85. Margaret Colgate Love, The Debt That Can Never Be Paid: A Report Card on the Collateral Consequences of Conviction, CRIM. JUST., Fall 2006, at 16, 16-17. 86. Id. 87. Devah Pager, The Mark of a Criminal Record, 108 AM. J. Soc. 937, 955-56 (2003). 88. Id. at 955. 89. Id. at 949. 90. Id. at 955. 91. Id. 92. Id. at 957-58. 93. Id. at 958. 94. Christopher Shea, Life Sentence, BOSTON GLOBE, Sept. 23, 2007, at E.
2009] ARIZONA'S DRUG SENTENCING STATUTE 407 had a recidivism rate of 66.7%. 95 However, even as the White House's Office of National Drug Policy admits, "[r]esearch has shown that combining criminal justice sanctions with drug treatment can be effective in decreasing drug use and related crime." 96 Perhaps by diverting low-level, nonviolent drug offenders to rehabilitation-based programs, a large portion of would-be releasees can avoid the stigma of a criminal record, the time spent in prison, and the high rates of recidivism. By implementing drug treatment programs and probation rather than incarceration, these offenders are actually given a chance to succeed. D. The Need for Change What can be taken from this analysis is that the "tough on crime" approach has produced an overpopulation crisis in prisons that is costing America billions of dollars. Furthermore, it has produced a growing class of releasees who lack the resources for proper reentry into society after serving time in prison. The recidivism rates for drug offenders are historically high and can be reduced with drug treatment programs; however, as reported above, only 14.1% of persons in prison actually received drug treatment. 97 The "tough on crime" approach has failed to win the "War on Drugs," and this country is in need of a change. Supreme Court Justice Anthony Kennedy recognized this need for change in our criminal justice system. In a speech to the ABA on August 9, 2003, he directed attention to the "inadequacies-and the injustices-in our prison and correctional systems." 98 Justice Kennedy implored that it is the "concern and responsibility of every member of our [legal] profession and of every citizen" to stay involved in this issue. 99 He further advised that the Federal Sentencing Guidelines be revised downward and that Congress not retain unjust laws simply because they were declared constitutional by a court of law. 1 00 Lastly, and perhaps most importantly, Justice Kennedy asked the ABA to study these problems and to start a public discussion pertaining to the current state of the prison system. 101 95. PATRICK A. LANGAN & DAVID J. LEVIN, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT, DEP'T OF JUSTICE, RECIDIVISM OF PRISONERS RELEASED IN 1994, at 2 (2002), available at http://www.ojp.usdoj.gov/bjs/pub/pdf/rpr94.pdf. 96. Office of National Drug Control Policy, Drug Treatment Homepage, http://www.whitehousedrugpolicy.gov/treat/treatment.html (last visited May 18, 2009). 97. MUMOLA & KARBERG, supra note 6, at 9 tbl.9. 98. Kennedy, supra note 1. 99. Id. 100. Id. 101. Id.
CRIMINAL AND CIVIL CONFINEMENT [Vol. 35:397 The ABA answered Justice Kennedy's call. On October 6, 2003, the ABA announced that a new commission would be formed to research and make recommendations on the issues brought to light by Justice Kennedy. 1 02 The ABA Justice Kennedy Commission (Kennedy Commission) has already made numerous significant findings, but one is especially important. In a report released in June 2004, the Commission stated that "America's criminal justice systems rely too heavily on incarceration and need to consider more effective alternatives." 1 03 Moreover, the Commission's report said that "[1]engthy periods of incarceration should be reserved for offenders who pose the greatest danger to the community and who commit the most serious offenses[,]" while "[a]ltematives to incarceration should be provided when offenders pose minimal risk to the community and appear likely to benefit from rehabilitation efforts."' 1 4 In other words, the time for change had arrived, and Arizona was one of the first states to act. 1 05 IV. STATE STATUTES ADDRESSING ALTERNATIVE DRUG SENTENCING A. Arizona's First- and Second-Time Nonviolent Drug Offender Sentencing Statute The Arizona statute at issue was established by Arizona voters in 1996.106 It was known as Proposition 200, or the Drug Medicalization, Prevention and Control Act of 1996 (DMPCA). 1 07 The purpose of the Act as conveyed to the Arizona electorate was to medicalize Arizona's drug control policy by recognizing that drug abuse is a public health problem that should be treated as a disease. Accordingly, drug treatment and prevention would be expanded for nonviolent persons as an alternative to 102. News Release, Am. Bar Ass'n, ABA Forms New Commission to Review Mandatory Minimum Sentences, Prison Conditions and Pardons (Oct. 6, 2003), available at http://www.abanet.org/media/oct03/100603_1.html. 103. News Release, Am. Bar Ass'n, ABA Commission Cites Over-Reliance on Incarceration, Calls for New "Smart on Crime" Approach (June 23, 2004), available at http://www.abanet.org/ media/kencomm/release.html. 104. AMERICAN BAR ASSOCIATION JUSTICE KENNEDY COMMISSION, REPORTS WITH RECOMMENDATIONS TO THE ABA HOUSE OF DELEGATES 9 (2004), available at http://www.abanet.org/ crimjust/kennedy/justicekennedycommissionreportsfinal.pdf. 105. ARIz. REv. STAT. ANN. 13-901.01(A) (2000 & Supp. 2007). 106. Adult Probation Division Grant Fund Descriptions, Arizona Supreme Court, http://www.supreme.state.az.us/apsd/programs.htm (last visited May 18, 2009). 107. ARIz. REv. STATE. ANN. 13-90 1.1. 108. Proposition 200, 1996 Ballot Propositions, Arizona Secretary of State, http://www.azsos.gov/election/1996/general/1996ballotpropstext.htm (last visited May 18, 2009).
2009] ARIZONA'S DRUG SENTENCING STA TUTE incarceration, while the drug laws against violent persons would be strengthened, and such persons would be ineligible for the sentencing alternatives.1 09 According to the statute, "any person who is convicted of the personal possession or use of a controlled substance or drug paraphernalia is eligible for probation." 110 In addition, "the court shall require participation in an appropriate drug treatment or education program... 111 Persons not eligible for probation include those who have been convicted three times of personal possession or use of a controlled substance; have refused drug treatment as a term of probation; have rejected probation; were convicted of personal possession or use of a controlled substance where the offense involved methamphetamine; and finally, anyone who was convicted of a trafficking offense, such as possession for sale, production, manufacturing, or transportation for sale. 11 2 Consequently, the statute succeeds in targeting those individuals who would likely benefit from probation and a drug treatment programnonviolent people with possession or usage offenses. In this way, Arizona is attempting to target those prisoners who would not benefit from incarceration and who actually burden the correctional system. A system such as this is more beneficial to both society and offenders because it is focused on a long-term solution, not a short-term punishment. The statute created a Drug Treatment and Education Fund (DTEF), which receives much of its funding from taxes on liquor, to provide the drug treatment and services the statute requires. 1 13 A report that focuses on the progress of the DTEF is produced annually by the Administrative Office of the Courts, a division of the Arizona Supreme Court, and will be used in this Note to analyze the impact of the statute on such topics as prison overcrowding, costs of incarceration, and recidivism. 114 Also included in the statute was a mandate to report the costs avoided through diverting offenders from prison to probation. 11 5 In the calculation, the number of offenders diverted must be determined. However, since judges are not required to state on the court record whether an offender would have been sent to prison if not for the statute, there was no absolute 109. Id. 110. ARIZ. REv. STAT. ANN. 13-901.01(A). Ill. Id. 13-901.01(D). 112. Id. 13-901.01(H). 113. ADULT PROB. SERVS. Div., ADMIN. OFFICE OF THE COURTS, ARIZ. SUPREME COURT, DRUG TREATMENT AND EDUC. FUND: REPORT DETAILING FISCAL YEAR 2005, at 4 (2006), available at http://www.supreme.state.az.us/apsd/dtef/2005%20dtef%2oreport%20 card.pdf [hereinafter ARIZ. SUPREME COURT, YEAR 2005 REPORT]. 114. See id. 115. Id. at 14.
CRIMINAL AND CIVIL CONFINEMENT [Vol. 35:397 way to determine the number of offenders who would have been incarcerated. 116 Consequently, researchers developed a method of estimating the number of prison diversions as a result of the DMPCA. 117 Using information obtained from the Arizona Department of Corrections (ADC), researchers analyzed the number of actual prison commitments from the seven years preceding the enactment of the statute (1990-1996) and used them to predict estimated prison commitments following fiscal year 1996 based on a trend system. 11 8 The predictions were then compared to the actual prison commitments to ADC during 1997-2005, and the difference between the two calculations was the estimated number of prisoners who received probation instead of incarceration due to the statute. 1 19 This calculation helps to analyze the costs avoided from implementation of the statute as well as prisoners diverted from the correctional system. 120 1. Prison overcrowding The passage of the DMPCA has helped Arizona reduce the number of prisoners in its correctional system. 12 1 The annual DTEF report for fiscal year 2000 recognized that while not all of the 1652 offenders sentenced to probation under the statute would have been incarcerated an estimated 790 would have, based on the trend analysis formula discussed above. 122 This finding is significant because it suggests that almost 800 persons were spared from entering the already crowded and overstretched United States prison population. 123 It is also important to note that those offenders diverted from the system were all placed on probation with mandatory terms of drug treatment and rehabilitation. 124 There may also have been terms of community service, house arrest, or both in some instances, at the judge's discretion. 125 For these reasons, those skeptical of such a system need not be as concerned about lack of supervision over such candidates or 116. Id. 117. Id. 118. Id. 119. Id. 120. Id. 121. Id. 122. ADULT PROB. SERVS. Div., ADMIN. OFFICE OF THE COURTS, ARIZ. SUPREME COURT, DRUG TREATMENT AND EDUC. FUND, ANNUAL REPORT FISCAL YEAR 2000, at 15 (2003), http://www.supreme.state.az.us/apsd/dtef/dtef%20reports%202000/dtefrepoo.pdf [hereinafter ARIZ. SUPREME COURT, YEAR 2000 REPORT]. 123. Id. 124. ARIZ. REv. STAT. ANN. 13-901.01(D) (2000 & Supp. 2007). 125. Id. 13-901.01(E).
2009] ARIZONA'S DR UG SENTENCING STA TUTE that an acceptable punishment has not been put in place. The nonviolent offenders whose crimes may be addressed via rehabilitation should not be burdening the nation's prison system if it is not in the community's or offender's best interests. Since the passage of the Arizona statute more than ten years ago, the number of offenders diverted from the prison system and placed on probation has increased. 126 According to the DTEF report from fiscal year 2005, the number of estimated offenders sentenced to probation instead of prison has risen to 1072.127 In terms of discussing the benefits of this statute for purposes of prison overcrowding, this is one issue that has clearly been addressed successfully. If a statute can divert more than a thousand persons from a state's prisons and still realistically attend to the problem presented, it is worth considering. As a result of the program, there are now more than one thousand free beds to assign to violent prisoners, one thousand fewer meals to prepare multiple times a day, and one thousand cost-per-day scenarios avoided for the state of Arizona and its taxpayers. Furthermore, the latest DOJ report discussing the nation's prison population revealed that drug convictions with federal prison sentences reached a high of 93,751 in 2006, constituting 53% of the federal prison population, which was 176,268 prisoners. 128 This does not pertain to state prisons at all, yet the number of drug convictions is significant. 1 29 If a statute like Arizona's was put in place nationwide, the numbers associated with probation and rehabilitation eligibility would multiply, thus immensely reducing the prison population and the costs of incarceration. 130 2. The costs of incarceration According to the 2005 DTEF report, the 1072 diverted offenders saved the state a total of $11,703,554, even after deducting the $2,857,378 cost of probation. 131 Prison costs alone, without considering probation, totaled $14,560,932. 132 This figure represents the "practical" costs of how Arizona incarcerates its criminals. 133 One-third of all prisoners are typically 126. ARIZ. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 14. 127. Id. 128. WILLIAM J. SABOL ET AL., BUREAU OF JUSTICE STATISTICS BULLETIN, U.S. DEP'T OF JUSTICE, PRISONERS IN 2006, at 26 tbl.13 (2007), available at http://www.ojp.usdoj.gov/ bjs/pub/pdf/p06.pdf. 129. Id. 130. ARIZ. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 15. 131. Id. 132. Id. 133. Id.
412 CRIMINAL AND CIVIL CONFINEMENT [Vol. 35:397 assigned to the ADC, while two-thirds are placed in private facilities under contract with ADC. 134 If broken down and analyzed alternatively, offenders placed entirely in ADC facilities would cost the state $4,266,352, while those placed in private facilities would cost $19,708,223.135 After accounting for the approximately $2,857,378 for the cost of probation, the state would avoid $1,408,974 and $16,850,845 respectively, with implementation of the statute in these alternative cost scenarios. 136 This is an incredible amount of savings. For just over one thousand offenders diverted, millions of dollars can be spent on countless alternative projects, such as educating youth about drug problems, building private drug rehabilitation centers for addicted, non-criminal citizens, or keeping the money in the correctional system to modernize and maintain prison facilities. 137 While the costs avoided are an excellent benefit, the Arizona statute has also led to significant progress each year with regard to the cost of treatment per probationer, the number of probationers served, and the number of treatments completed. 138 For example, the average cost of treatment per probationer was $678.87 in 2000, while it decreased to only $363.09 per probationer in 2005.139 This shows that, as the treatment program continues to be applied each year, its efficiency has risen considerably. 1 40 Furthermore, the number of probationers treated continues to rise. 141 In 2000, 5397 probationers were treated. 142 In 2005, that number grew to 8575 probationers. 143 Most importantly, even with the influx of additional probationers needing treatment, the percentage of treatment completions has increased. 144 In 2000, 54% completed treatment and in 2005, 56% completed treatment and complied with the treatment requirements. 145 Thus, within five years, the cost of treatment per 134. Id. 135. Id. 136. Id. 137. Id. 138. Id. at 8; see also ARIz. SUPREME COURT, YEAR 2000 REPORT, supra note 122, at 8. 139. ARIZ. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 8; see also ARIZ. SUPREME COURT, YEAR 2000 REPORT, supra note 122, at 8. 140. ARI. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 8; see also ARIZ. SUPREME COURT, YEAR 2000 REPORT, supra note 122, at 8. 141. ARIZ. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 8; see also ARIZ. SUPREME COURT, YEAR 2000 REPORT, supra note 122, at 8. 142. ARIZ. SUPREME COURT, YEAR 2000 REPORT, supra note 122, at 8. 143. ARIZ. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 8. 144. Id.; see also ARIZ. SUPREME COURT, YEAR 2000 REPORT, supra note 122, at 8. 145. ARIZ. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 8; see also ARIZ. SUPREME COURT, YEAR 2000 REPORT, supra note 122, at 8.
2009] ARIZONA'S DRUG SENTENCING STATUTE probationer decreased almost by half, and 3000 more offenders needed treatment; yet the percent of completions and compliance has increased by 2%. 146 3. The effect on releasees and recidivism rates The Arizona statute has made a significant impact on the drug offenders who qualified for treatment and services; this equates to success in many different ways. 147 The most relevant success is highlighted in a 2005 report on the recidivism of inmates compiled by the ADC. 148 Although the subjects are those who have been incarcerated rather than those placed on probation under the statute, 149 the value of drug treatment can be easily understood. According to the ADC, inmates who have completed treatment for drug, alcohol, and narcotics abuse have contributed to reducing the rate of recidivism by 47.1%.150 In addition, the ADC cited that less-intensive substance abuse programs helped reduce the recidivism rate by 28%, and that 2171 fewer inmates were recommitted within two years due to their participation in various programs. 1 51 Another way in which to observe the success of drug treatment is to study its effect on juveniles. According to a 2005 report on the impact of drug treatment on the recidivism rates of juveniles, researchers found that "18% of the juveniles released in 2004 and 20% of the juveniles released in 2003 received some type of substance abuse treatment in addition to [random] drug testing." '15 2 The releasees that received drug treatment had a reduced recidivism rate of 10% over all other releasees. 153 This demonstrates that drug treatment has an impact on the recidivism rates of those that complete the programs, and they should be made more available to both adult and juvenile offenders. 1 54 B. Other Implementations of Alternative Sentencing for Drug 146. Compare ARIZ. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 8, with ARIZ. SUPREME COURT, YEAR 2000 REPORT, supra note 122, at 8. 147. See ARIZ. SUPREME COURT, YEAR 2005 REPORT, supra note 113, at 8. 148. See Arizona Department of Corrections, Arizona Inmate Program Evaluation 2005: Summary of Findings (Feb. 2005) (on file with the New England Journal on Criminal and Civil Confinement). 149. See id. 150. Id. 151. Id. 152. Research & Development News, ARIz. DEP'T JUVENILE CORR. (Phoenix, Ariz.) May-June 2005, at 1, available at http://www.azdjc.gov/offices/research/publications/ PdfFormat/R&DNews/R&DJun2005.pdf. 153. Id. at 1 fig.1. 154. Id. at 1.
CRIMINAL AND CIVIL CONFINEMENT [Vol. 35:397 Offenders A variety of states, as well as Congress, are beginning to analyze the effects of a punishment-driven criminal justice system. As The Sentencing Project admits, "[c]hanges in sentencing law and policy, not increases in crime rates, explain most of the six-fold increase in the national prison population."' 155 A recently enacted bill, the Second Chance Act of 2007, garnered much support. 156 A New York Times editorial had called on Congress to pass the Act because a program to reintegrate former inmates into their communities would help the law evolve much faster with federal involvement. 157 Many states are trying to fix the punishment problem, most commonly reforming their correctional systems by expanding options and funding for drug treatment. 158 During the last three years, nine states passed legislation that either established or expanded sentencing diversion options for drug offenders. 159 This demonstrates that rehabilitative measures are gaining traction, and states like Arizona serve as models for change around the country with regard to alternative drug sentencing measures. In New York, former Governor Elliot Spitzer established a prison sentencing reform committee to reassess the controversial Rockefeller Drug Laws, which impose harsh mandatory minimum sentences for even first-time offenders. 16 0 Under these laws, first-time offenders could be sentenced for terms of incarceration equal to second-degree murderers. 161 The Rockefeller Drug Laws were established in 1973 and were consistent with the "tough on crime" approach examined in depth earlier in this Note. 162 Slight reforms were established in 2004, but they have only applied to about 1000 people and only about 350 have been released. 163 As a result, the newly established New York State Commission on Sentencing Reform was assigned the task of reviewing the Rockefeller Drug Laws and 155. The Sentencing Project, Sentencing Policy, http://www.sentencingproject.org/ IssueAreaHome.aspx?IssueID= (last visited May 18, 2009). 156. Second Chance Act of 2007, Pub. L. 110-199, 122 Stat. 657 (2008). 157. Editorial, A Much-Needed Second Chance, N.Y. TIMES, July 2, 2007, at A 17. 158. KING, CHANGING DIRECTION, supra note 15, at 3 (citing twenty-two states including, but not limited to, Arizona, Arkansas, California, Illinois, Michigan, Minnesota, Montana, New York, Oklahoma, and Virginia). 159. Id. at 4-7 (citing Connecticut, Hawaii, Indiana, Louisiana, Maryland, North Dakota, Pennsylvania, Texas, and Washington). 160. Madison Gray, Mandatory Sentencing: Stalled Reform, TIME, Aug. 17, 2007, http://www.time.com/time/nation/article/0,8599,1653862,00.html. 161. Id. 162. See supra Part III. 163. Gray, supra note 160.
2009] ARIZONA'S DRUG SENTENCING STA TUTE compiling a report. 164 The commissions Final Report detailed a series of recommendations addressing New York's sentencing structure and drug laws, implementation of evidence-based practices, and reformation of reentry programs and community based corrections. 165 Pennsylvania is another state that witnessed drug sentencing reform within the last few years. Governor Ed Rendell proposed drastic changes in sentencing "to reduce the number of convicts who return to crime after they are released from prison, ease financial pressures on county goverunents and rein in inmate overcrowding that is driving a prison construction boom in Pennsylvania." 166 Legislators established a drug diversion program in Pennsylvania, created by Senate Bill 217.167 This statute mandates the Department of Corrections to create a drug treatment program for offenders. 1 68 For those who qualify, the program lasts twenty-four months: seven months are within the custody of a correctional facility, at least four months require participation in a treatment facility, two months are for community-based treatment, and six months are for out-patient treatment. 169 The Restrictive Intermediate Punishment program (RIP), which began in 1994, is another successful drug treatment program established in Pennsylvania. 170 As part of a "comprehensive revision" to the state sentencing guidelines, offenders sentenced to twelve months in jail or less were considered for this treatment program, and the recommendations were broadened in 1997 to include offenders sentenced to jail for thirty months or less. 171 Studies revealed that offenders who successfully completed their drug treatment program were significantly less likely to be re-arrested than those sentenced to jail or probation, which is a significant sign of success. 172 Full-time employment decreased the odds of recidivism 164. NEW YORK STATE COMMISSION ON SENTENCING REFORM, THE FUTURE OF SENTENCING IN NEW YORK STATE: RECOMMENDATIONS FOR REFORM 11 (2009), available at http://criminaijustice.state.ny.us/pio/csr-report2-2009.pdf 165. Id. at III-IV. 166. Peter Jackson, Sentencing Changes Proposed To Reduce Recidivism, Crowding, PITT. POST-GAZETTE, Sept. 2, 2007, at B 1. 167. KING, CHANGING DIRECTION, supra note 15, at 6. 168. Id. 169. Id. at 6-7. 170. Cynthia A. Kempinen, Evaluation of Restrictive Intermediate Punishment Drug and Alcohol Treatment, PA. COMM'N ON SENTENCING RESEARCH BULLETIN (Pa. Comnm'n on Sentencing, University Park, Pa.), May 2007, at 1, http://pcs.la.psu.edu/research%20 bulletins/rip%20bulletin%202007%20april%2027,pdf. 171. Id. 172. Id. at 4.
CRIMINAL AND CIVIL CONFINEMENT [Vol. 35:397 tremendously when combined with drug treatment. 173 Those who were employed full-time while completing treatment had success rates that increased by 49% compared to offenders who were unemployed. 174 Additionally, the length of drug treatment proved important "with offenders receiving 16 months of treatment being least likely to recidivate."' 175 However, researchers admitted that the average length of treatment was eleven months or less. 1 76 In order for Pennsylvania to reach its highest success rate, offenders must be placed in mandatory treatment programs that have the greatest likelihood of reducing recidivism and treating the drug dependence, abuse, or both. 177 Thus, if treatment for sixteen months yields the best results, sixteen months should be required for all participants. 178 Perhaps at that point, the effectiveness of rehabilitation will truly be at its peak, and lawmakers will be able to make an educated policy decision as to whether it should be implemented in those situations where it provided positive, documented results. V. ARGUMENT-REHABILITATION VS. PUNISHMENT One of the reasons that punishment, through the expanded use of incarceration, became so popular in this country was the belief that it furthered crime prevention and enhanced the overall safety of society. 1 79 Indeed, "between 1970 and 2005, state and federal authorities increased prison populations by 628%" in an effort to make society safer. 8 0 A major problem with this criminal justice policy, however, was that lawmakers did not distinguish between serious, violent offenders and nonviolent, "marginal" offenders. 181 As a result, the number of incarcerated drugpossession offenders increased more than 1000% between 1980 and 2000.182 By 2004, 419,000 drug possessors were incarcerated in state prisons or local jails at a cost of nearly $8.3 billion. 183 Not surprisingly, the New York Times recently reported that the United 173. Id. 174. Id. at 3. 175. Id. 176. Id. 177. See id. at 4. 178. Id. 179. DON STEMEN, VERA INSTITUTE OF JUSTICE, RECONSIDERING INCARCERATION: NEW DIRECTIONS FOR REDUCING CRIME 3 (2007), available at http://www.vera.org/ publicationpdf/379_727.pdf. 180. Id. at 1. 181. Id. at 8. 182. Id. 183. Id.