Reform of the Rockefeller Drug Laws and the Impact on Criminal Justice

Reform of the Rockefeller Drug Laws and the Impact on Criminal Justice Hon. Judy Harris Kluger Chief of Policy and Planning New York State Unified Court System Michael Rempel Director of Research Center for Court Innovation NADCP Conference - July 2013 NADCP Conference - July 2013 1

Session Overview New York State Drug Law Reform Research Questions and Answers NADCP Conference - July 2013 2

Drug use surged in New York during the early 1970s State responded by developing programs to treat addicts In 1973, the Legislature enacted the Rockefeller Drug Laws Despite these efforts, lawmakers feared New York s drug epidemic was growing out of control NADCP Conference - July 2013 3

Limited judicial discretion in sentencing Increased minimum sentences & imposed maximum life sentences for many low-level offenders Prosecutor controlled access to non-prison dispositions Mandatory state prison sentences for certain sale and possession charges NADCP Conference - July 2013 4

Increase in prison population of non-violent drug- addicted offenders Without addressing the underlying issues of drug addiction, recidivism rates soared with increased arrests for second drug felony offenses that carried mandatory state prison sentences NADCP Conference - July 2013 5

Development of Drug Courts Represents a change in thinking: By addressing the underlying addiction, courts can reduce the rate of recidivism by diverting offenders away from prison and into community-based drug treatment programs NADCP Conference - July 2013 6

Drug Courts Time Line In the early 1990s, District Attorneys developed diversion programs statewide (DTAP) Midtown Community Court began to utilize treatment programs as an intervention Rochester City Court opened New York s first drug court, followed by Brooklyn Treatment Court in 1995 Prison diversion program (Willard) was developed 91 operational adult treatment courts NADCP Conference - July 2013 1990 1993 1994 1995 2007 7

Mechanism for Change In 2009, the Governor s Statewide Sentencing Reform Commission recognized that: Drug Court and diversion programs are an effective alternative to prison for non-violent, drug-addicted offenders The Commission recommended that: State prison sentences be reserved for high risk offenders Community-based drug treatment programs be an available option statewide Legislation be enacted that establishes a Statewide Drug Diversion Model NADCP Conference - July 2013 8

Eliminated mandatory prison sentences for most first and second drug felony offenders Established a mechanism for previously convicted drug offenders to apply for resentencing NADCP Conference - July 2013 Established a statewide judicial diversion program for certain felony offenders (Criminal Procedure Law Article 216) 9

Judicial discretion Legal eligibility criteria NADCP Conference - July 2013 Clinical screening criteria Hearings on eligibility 10

Defendant can request an evaluation Finding of addiction required (DSM4) Plea required, absent showing of exceptional circumstances Statute allows for the sealing of prior misdemeanor conviction anywhere in the state Upon completion, outright dismissal or conditional sealing of record of conviction Judicial monitoring, case management, drug testing, sanctions and incentives (drug court) NADCP Conference - July 2013 11

Addressing Relapse In determining what action to take for a violation of a release condition, the court shall consider. the extent to which persons who ultimately successfully complete a drug treatment regimen sometimes relapse by not abstaining from alcohol or substance abuse CPL 216.05(9) NADCP Conference - July 2013 12

Statewide Implementation Judicial Diversion courts established in each of New York State s 62 counties. Training program developed for judges, court staff, and attorneys Established linkages to local treatment providers Research NADCP Conference - July 2013 13

Statewide Participation (Felony Arrests) From 2005 through 2008, New York Drug Courts averaged ~ 2700 new participants entering Drug Treatment Courts with Felony Top Charges in a calendar year. Judicial Diversion for Drug Treatment began on October 7, 2009. NADCP Conference - July 2013 14

Impact (October 2009 December 2012) Prison commitments for drug offenses decreased Cases diverted for drug court consideration increased Felony Drug Court participation increased NADCP Conference - July 2013 15

Impact on Prison Commitments Statewide Trends: Statewide prison commitments declined by 38% from 2008 to 2012 (5,190 to 3,193) Felony drug arrests declined by 26% (40,361 to 29,960) Implication: About one-third of the statewide decline in prison commitments may plausibly be attributed to drug law reform. County Variations: New York City (NYC) saw virtually identical declines in felony drug arrests (32%) and prison commitments (30%) Excluding NYC, the 17 next largest counties saw only a 15% reduction in felony drug arrests, coupled with a 55% reduction in prison commitments (Albany, Broome, Chautauqua, Dutchess, Erie, Monroe, Nassau, Niagara, Oneida, Onondaga, Orange, Rensselaer, Rockland, Schenectady, Suffolk, Ulster, Westchester). NADCP Conference - July 2013 16 Source: NYS Division of Criminal Justice Services (DCJS 2013).

Testing the Cost Savings of Judicial Diversion NPC Research Mark S. Waller and Shannon M. Carey and Center for Court Innovation Erin Farley and Michael Rempel Available at: www.npcresearch.com or www.courtinnovation.org

Research Questions 1. To what extent did court-ordered treatment participation actually increase in the year after judicial diversion was implemented as compared with the previous year? 2. To what extent did sentences differ between judicial diversion participants who enrolled after implementation and similar defendants who received conventional sentences in the previous year? 3. What are the costs and savings associated with judicial diversion as compared with conventional case processing and sentencing practices employed with similar defendants prior to implementation?

Research Questions 1. To what extent did court-ordered treatment participation actually increase in the year after judicial diversion was implemented as compared with the previous year? Samples: Enrolled in court-ordered treatment (85% drug court) AND judicial diversion-eligible charges felony drug or select property level felony charges: Pre: October 7, 2008-October 6, 2009 Post: October 7, 2009-October 6, 2010

Statewide Impact of Article 216 on Judicial Diversion Enrollment 3,500 3,000 3,192 Pre-Sample 2,500 77% Post-Sample 2,000 1,801 1,500 1,426 1,000 122% 857 813 500 641 589 537 0 96 34 All Charges Sale Possession/Use Marijuana Specified Property Article 216 Charge Type

Impact of Article 216 on Judicial Diversion Enrollment by State Region 1,600 1,400 1,473 Pre-Sample Post-Sample 1,200 53% 1,000 962 800 600 621 632 45% 400 728% 435 42% 329 466 200 0 75 New York City NYC Suburban Rural/Semi-Rural Mid-Sized City

Distribution of County-Specific Changes after Implementation New York City NYC Suburban Upstate New York All Counties Total Number of Counties 5 4 53 62 Average Change in Enrollment 53% 728% 44% 77% Number of Counties with Each Change Decrease in enrollment 2 0 16 18 No change in enrollment 0 0 6 6 Increase in enrollment by 1-50% 1 0 10 11 Increase in enrollment by 51-100% 0 1 3 4 Increase in enrollment by 101-200% 1 0 9 10 Increase in enrollment by 201-500% 1 1 6 8 Increase in enrollment by more than 500% 0 2 3 5 Total Number of Counties 5 4 53 62 Counties with Dramatic Changes: New York City: Manhattan (63 to 280, 344%) Suburban: Nassau (7 to 326, 4,557%) and Suffolk (30 to 315, 617%)

Changing Treatment Population Region: 4% to 20% NYC suburban (other regions decline) Drug Use and Treatment History: More years of drug use (15.7 v. 14.6) More primary drug of cocaine or opiates (51% v. 45%) More previously in treatment (60% v. 52%) Criminal Justice Characteristics: More prior arrests (8.2 v. 6.8) and prior convictions (3.8 v. 2.9) More serious prior history: felony conviction (34% v. 25%), drug conviction (43% v. 36%), weapons conviction (9% v. 5%) More drug sales charges (v. possession or property) (45% v. 36%) Bottom-Line: Judicial diversion legislation makes treatment available to higher-risk/higher-need pool of defendants. NADCP Conference - July 2013 24

Research Questions 1. To what extent did court-ordered treatment participation actually increase in the year after judicial diversion was implemented as compared with the previous year? 2. To what extent did sentences differ between judicial diversion participants who enrolled after implementation and similar defendants who received conventional sentences in the previous year? Samples for Sentencing Analysis: Treatment: Judicial diversion participants (first year) who would not have received treatment if not for legislation Comparison: Similar defendants, pre-implementation year

Impact on Sentencing Outcomes Judicial Diversion Comparison (N = 503) (N = 503) SENTENCE TYPE *** Prison 23% 20% Jail or Jail/Probation Split 13% 35% Other Sentence 31% 54% No Sentence/Case Dismissed 34% 0% DAYS OF INCARCERATION AND SUPERVISION Average Prison Days 186.77 193.17 Average Jail Days 27.88*** 59.78 Average Probation Days 12.85*** 28.69 Average Parole Days 59.23 38.13 Summary: Judicial Diversion Produced: Significantly less use of jail Significantly less use of probation Increased case dismissals (for those who graduate) Benefits for felony drug cases, not property cases + <p.10 * p <.05 ** p <.01 *** p <.001

Summary (Questions 1 and 2) Court-ordered treatment enrollment increased 77% Regional differences revealed the impact of Article 216 depended on local practices at regional and county levels Judicial diversion makes treatment available to higherrisk/higher-need population Judicial diversion cases spend significantly less time in jail or on probation than similar non-treatment cases in the pre-implementation period Judicial diversion produced better sentencing outcomes for drug than for property offenders

Research Questions 1. To what extent did court-ordered treatment participation actually increase in the year after judicial diversion was implemented as compared with the previous year? 2. To what extent did sentences differ between judicial diversion participants who enrolled after implementation and similar defendants who received conventional sentences in the previous year? 3. What are the costs and savings associated with judicial diversion as compared with conventional case processing and sentencing practices employed with similar defendants prior to implementation?

Cost: TICA Methods Step 1: Determine the flow/process Step 2: Identify the transactions Step 3: Identify the agencies involved Step 4: Determine the resources used Step 5: Identify costs associated Step 6: Calculate cost results

TICA Methods Cost to the Taxpayer Opportunity Resources

Cost-Benefit Questions 1. What are the investment costs associated with judicial diversion compared to conventional case processing? 2. What are the outcome costs after the instant case has ended of judicial diversion compared to conventional case processing? 3. What are the net savings produced by judicial diversion for taxpayers overall and for each individual public agency (difference in investment costs plus difference in outcome costs)?

Study Sites 10 Sites for Collecting In-Depth Cost Data New York City (NYC): The Bronx and Brooklyn NYC Suburbs: Nassau and Suffolk Upstate: Mid-Sized Cities: Onondaga (Syracuse) and Monroe (Rochester) Upstate: Rural/Semi-Rural: Broome, Orange, Oswego, and Saratoga

10-Site Averages: Investment Costs Program Costs: court appearances, case management, drug testing, jail sanctions (by agency) Arrest Costs (local Sheriff/law enforcement) Case Processing Costs (court, prosecutor, defender) Jail Sentences (county jail data) Probation Sentences (county probation data) Statewide Averages: Treatment Costs (OASAS state averages) Prison and Parole Costs (Dept. Corrections data) National Average: Property and Violent Victimization Costs (NIJ s Victim Costs and Consequences: A New Look (1996).

Judicial Diversion Costs (Judicial Diversion Cases Only) Transaction Average Unit Cost Average Number of Events per Participant Average Cost per Participant Drug Court Sessions $73.53 25.27 $1,858 Case Management $3.28 447.10 $1,466 Residential Detoxification $322.16 0.97 $312 Outpatient Detoxification $210.65 0.04 $8 Short-Term Rehabilitation $273.82 11.62 $3,182 Long-Term Inpatient Treatment $86.58 68.97 $5,971 Day Treatment $127.01 0.32 $41 Methadone Treatment $19.71 2.46 $48 Intensive Outpatient Treatment $97.58 34.41 $3,358 Outpatient Treatment $95.26 20.36 $1,939 UA Drug Tests $5.11 52.08 $266 Jail Sanctions $151.88 0.55 $84 TOTAL $18,533

Comparison Group Conventional Case Processing Costs Cost of Processing a Felony Case in New Costs to the court, prosecutor, law enforcement, and defense agencies) = $7,783 $10,750 Net Case Processing Cost of Judicial Diversion ($18,533 - $7,783)

Instant Case Sentencing Costs per Person by Agency Agency Average Cost per Comparison Group Individual Average Cost per Judicial Diversion Participant Difference in Cost County Jail $9,079 $4,234 $4,845 Probation $139 $62 $77 Dept. of Correctl. Services (prison and parole) $27,720 ($27,250 prison) $27,078 ($26,248 prison) $642 ($902 prison) TOTAL $36,938 $31,374 $5,564

Bottom-Line: Investment Costs Bottom-Line: Considering higher case processing costs and lower sentencing costs, judicial diversion produces a net investment cost of $5,186 per participant

Net investment in judicial diversion per case TOTAL 5,186 Dept. of Correctional Services ($642) Law Enforcement $0 Treatment $14,248 Probation $226 County Jail Defense Attorney District Attorney ($4,743) ($1,935) ($2,990) Court $1,012 ($9,000) ($4,000) $1,000 $6,000 $11,000 $16,000

Three-Year Outcome Costs (based on three-year recidivism analysis) Transaction Average Outcome Costs # of Events per Person Over 3 Years from Drug Court Entry per Average Cost # of Events Comparison per per Drug Average Cost Group Comparison Court per Drug Average Individual (N= Group Participant Court Unit Cost 3,141) Individual (N= 3,288) Participant Re-Arrests $226.29 1.72 $389 1.28 $290 Felony Court Cases $7,782.77 0.69 $5,370 0.51 $3,969 Probation Days $4.84 84.60 $409 64.94 $314 Parole Days $12.32 18.96 $234 18.96 $234 Jail Days $151.88 23.42 $3,557 25.10 $3,812 Prison Days $141.07 112.20 $15,828 77.76 $10,970 SUBTOTAL $25,787 $19,589 Property Victimizations $12,881.00 0.49 $6,312 0.37 $4,766 Person Victimizations $41,728.00 0.31 $12,936 0.23 $9,597 TOTAL $45,035 $33,952

Five Year Outcome Benefit/Savings per Judicial Diversion Participant TOTAL $10,330 Dept. of Correctional Services $8,098 Law Enforcement Probation County Jail Defense Attorney District Attorney Court $165 $158 ($425) $642 $1,000 $692 ($2,000) $0 $2,000 $4,000 $6,000 $8,000 $10,000 $12,000

Overall net benefit (investment and outcome costs) 5 years from Judicial Diversion entry TOTAL Dept. of Correctional Services $5,144 $8,740 Law Enforcement $165 Probation ($78) County Jail Defense Attorney District Attorney $4,318 $2,577 $3,990 Court ($320) Treatment ($14,248) ($20,000) ($10,000) $0 $10,000

Investment Costs Plus Outcome Savings Without Victimizations: Outcome Savings ($10,330) Minus Investment Costs ($5,186) = Net 5-Year Saving of $5,144 Per Participant With Victimizations: Outcome Savings ($18,383) Minus Investment Costs ($5,186) = Net 5-Year Saving of $13,197 per Participant

Net System Savings Without Victimizations: $7,155,304 Without per Victimizations: Year (Assumes $7,155,304 1,391 new per participants Year due to Judicial Diversion) (Assumes 1,391 new participants due to Judicial Diversion) With Victimizations: $18,357,027 With Victimizations: per Year (Assumes $18,357,027 1,391 new per participants Year due to Judicial Diversion) (Assumes 1,391 new participants due to Judicial Diversion)

Summary (Question 3) Judicial diversion produces resource savings especially for those facing felony drug charges (not property) The state prison agency sees the greatest savings, followed by county jails, district attorneys, and public defenders. (The court essentially breaks even.) How resource savings affect actual budgets is unknown. Whether net system savings are sustained depends on: Future case volume (20% reduction in judicial diversion volume in years 2 and 3 post-implementation). Mix of cases (continuing to enroll felony drug cases, especially high-risk/high-need, will maximize benefits)

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