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White Paper by King County Prosecuter Norm Maleng

Beyond the "War" : Using the Criminal Justice System to
Bring Addicts Into Treatment

A Bold New Approach to Fighting Drug Abuse

Presented to the 2001 Washington State Legislature
by Norm Maleng, King County Prosecuting Attorney

  1. Introduction: Beyond the "War"

    Drug addiction is a great human tragedy. Drug addiction ruins lives, imperils families and children, and tears apart communities. Any discussion of drug abuse policy must begin with this truism and avoid academic responses that do not consider the human cost of drug addiction.

    When it comes to engaging in rational policy discussions about illegal drug abuse in our nation and state, we often stumble and stall when we begin by using the tern "War on Drugs." Given its origin as a political symbol, the tern "War on Drugs," whether used favorably or derisively, sheds no light on the best way to approach a complex legal, social, and medical issue. Wars are fought with violence and force and are won by inflicting a superior number of casualties on the enemy; wars are not declared on a nation's own citizens. Wars have a beginning and end; drug abuse has been with us throughout history and requires a lifelong commitment. Surely, the term "War on Drugs" leas outlived its usefulness.

    Our best approach to illegal drugs must be comprehensive and consistent, reflecting a policy that is both anti?drug and informed by emerging science and medicine. A new approach to drug policy must look to law enforcement and the criminal justice system to play three critical roles:

    • first, to apprehend and incarcerate those who profit from the misery of drugs. This includes the importers, manufacturers and dealers.
    • second, the criminal justice system can provide an effective intervention point to leverage drug addicts into treatment. We have learned over the last decade that courts can coerce addicts into treatment. In many cases, it takes an arrest and the threat of incarceration to bring about the motivation and self-realization for an addicted person to confront the fact and consequences of their own addiction;
    • third, our society must provide a consistent message to our youngest citizens that drug use is wrong and harmful. This message can be delivered in a variety of ways within a school curriculum. It must be reinforced by maintaining laws against illegal drug use.

  2. The Promises of 1989 Omnibus Drug Act

    In 1989 the Washington State Legislature passed the Omnibus Drug Act in response to a emerging epidemic of drug use and related violence associated with the introduction of crack cocaine to the Northwest. The background for that legislative action was an unprecedented flood of cheap and addictive cocaine into our state. Random and senseless violence, drive?by shootings, and open gang activity followed crack cocaine's debut in communities throughout the state.

    The 1989 act doubled prison sentences for dealing heroin and cocaine, and it established protected zones around schools, school bus stops, and public parks that added a two?year sentence enhancement. This policy response was appropriate for the times and provided effective tools for law enforcement to maintain control of threatened neighborhoods.

    The tougher sentences were only one leg of a strategic triad envisioned by the Legislature in 1989. Parallel equal efforts were to be made in education and in treatment. A special tax on bottled beverages was levied to provide resources to build treatment centers for drug addicts, both in and out of the criminal justice system. The tax was repealed in the following session.

    In the dozen years that have passed since the passage of the act, it is clear that law enforcement has done what it was asked to do. The sheriffs' offices, police departments and narcotics task forces in our state have kept the pressure on drug sellers and users, making arrests, seizing assets, and shutting down neighborhood blights. The dedicated officers throughout our state have used the tougher laws and additional resources to preserve neighborhoods against the threat of illegal drugs. The crime rate in our state has dropped dramatically over the last several years, thanks, in part, to the law enforcement effort against illegal drugs.

    It is equally clear that the treatment infrastructure contemplated by the Act has never been built. With the notable exceptions of drug courts, which have been created by some counties with minimal state assistance, and the Drug Offender Sentencing Alternative (D.O.S.A.) within the Department of Corrections, which has just recently begun to be integrated into the mainstream of the state's sentencing scheme, the criminal justice system has no treatment alternatives to incarceration.

    The exclusive currency of the justice system remains incarceration.

  3. Building a Treatment Infrastructure Within the Criminal Justice System

    The criminal justice system can be an effective intervention point to bring addicts into treatment, but the options for treatment within the sentencing laws have been mostly illusory ? they exist in theory and statute, but not in reality.

    Drug treatment works. This statement can be debated, but the facts are that treatment does work for some people some of the time. The statistical rates of success must be measured not against a bell curve, but against the success rate of no treatment at all. A 20% success rate is not an 80% failure rate. It is 20% more people off of drugs than would be achieved through no treatment at all.

    The effectiveness of drug treatment can be calculated both in terms of the financial gains for society and the user's rehabilitation. Recent studies show this:

    • A joint study by the RAND Corp., the U.S. Army, and the Office of National Drug Control Strategy, found that treatment is seven times more cost-effective than other programs aimed at controlling the supply of drugs -- for every dollar spent on treatment, $7.46 are saved on local crime enforcement alternatives.
    • Major studies have shown that drug treatment cuts drug use by 50-70%, depending on modality.
    • The same RAND study showed that domestic treatment is twenty?three times more cost-effective than efforts to eradicate drug use with source?county control efforts.
    • A recent California drug treatment assessment study showed that:
      • Treatment reduced serious crimes 10 times more effectively than conventional enforcement efforts and 15 times more effectively than imposing mandatory minimums;
      • Illegal drug use by participants dropped by 40% as a result of drug treatment;
      • Hospitalization rates dropped by a third after treatment;
      • The greater time spent in treatment, the greater the reduction in individual criminal activity.
    • In Oregon, drug treatment programs saved the state over $83 million over a 3-year time period. For every dollar spent on treatment, the state saved $5.60 in costs for prisons, welfare, food stamps, and Medicaid.
    • A recent U.S. Dept. of Health and Human Services Study of 5,388 drug treatment participants showed that:
      • Clients reported a substantial decrease in drug use in the year following treatment:
        • Cocaine use dropped by 55%;
        • Heroin use dropped by nearly 50%;
        • Use of crack dropped by 25%;
        • Reports of arrest decreased by 31 % following treatment;
        • Substance abuse-related medical visits decreased by more than 50%;
        • 60% of all treatment participants were employed after treatment;
        • Homelessness dropped from 19% before treatment to 11 % after treatment.

    The most effective drug treatment programs within our state's local criminal justice system have been county drug courts.

  4. Drug Courts

    There were over 700 Drug Courts operating in 46 states the United States according to a study conducted by the RAND Corporation last summer. Within Washington State there are drug courts operating in King, Pierce, Spokane, Clallam, Clark, Cowlitz, Kitsap, Skagit, Snohomish, Thurston, Whatcom and Yakima counties. There are also tribal drug courts operating in the Yakama, Makah and Spokane Nations. Drug Courts offer charged offenders the option of treatment in lieu of traditional prosecution. While criteria and details vary among individual courts, defendants often waive all trial rights as a condition of entering the treatment option. If defendants "graduate" from Drug Court, typically after a minimum 12-month program, the charges are dismissed. If they fail the program, they are found guilty and sentenced to the standard sentencing range.

    The national proliferation of drug courts are testament to their success, as are the numerous local and national evaluations now being published throughout the country. In nearly all of the studies, researchers have concluded that drug court participants commit new crimes at, a significantly lower rate than those who do not participate. Research shows that drug court participants have lower rates of incarceration and are re-arrested less frequently than comparable probationers and other non?drug court participants. A recent Florida study showed that drug court graduates were significantly less likely to be arrested during the 12-month period of the program and the 30-month follow-up period than non-graduates. In addition, in all states where drug court studies have been conducted, recidivism among drug court participants decreased.

    "Even offenders who do not succeed in drug court appear to be less criminally active than they were previously," concludes a researcher for the National Institute of Justice. "This may be due to the benefits of treatment or the supervision, sanctions, intensive surveillance, and specific deterrence of the drug court."

    In addition to the original goals of reducing recidivism and drug usage, drug courts nationally have also helped more than 750 pregnant addicted women to deliver drug-free babies. Many offer educational and vocational opportunities as well.

    Treatment services relied on by drug courts nationwide have been subsidized in large part by $33 million in federal funds disbursed pursuant to the 1994 federal crime act. The federal grants are now expiring for many jurisdictions, including those in our state. This has placed an additional strain on county criminal justice budgets, which already account for between 60% and 70% of the total current expense funds of most counties. Drug courts have proven themselves worthy of a place within the justice system based on their human results and cost-effectiveness. The only remaining question regarding drug courts is how to sustain the costs of treatment within declining county budgets.

  5. Elements of Proposed State Legislation: SSB 5419 and HB 2003

    Now, 12 years after the Omnibus Drug Act, with no new revenue available to the state, and with local government coffers in even worse shape, the only way to fulfill the promise of integrating treatment options into the Criminal Justice system is to reduce prison sentences and re-invest the savings realized by the Department of Corrections into building a treatment infrastructure at the local level.

    This can be done without undermining the law enforcement mission, if we retain the principle that drug dealers face prison sentences. What can change is the length of those sentences. The Legislature has the opportunity to accomplish this mission through the vehicles of SSB 5419 and HB 2003, identical bills that contain these elements:

    1. Reduce Drug Delivery-class offenses from Seriousness Level VIII to VII.
    2. Eliminate the "triple-counting" rule that counted past and other current delivery-class convictions as a "3" in the calculation of the offender score.
    3. The consequences of these two changes are as follows: (all sentences displayed in months):

      First Second Third Fourth
      Now 21-27 36-48 67-89 108-144(120 max.)
      Bill 15-20 21-27 26-34 31-41

      These changes will still permit judges to impose exceptionally high sentences for dealers convicted with large quantities.

    4. Keep D.O.S.A.

      The Drug Offender Sentencing Alternative program within the D.O.C. reduces incarceration time by 50%, converting that time to Community Supervision and outpatient treatment monitoring.

      It is important to keep the Seriousness Level at VII, and not VI or below, in order to maintain the incentive for offenders to participate in D.O.S.A. If the Seriousness Level were dropped down to VI with a standard range mid-point of only 13 months, offenders would lose all incentive to participate in the D.O.S.A. and instead choose to serve 2/3rds of 13 months (8.7 months total, including credit for time served in the county awaiting trial), instead of 50% of 13 months (6.5) months. By serving an additional 60 days, offenders could avoid D.O.S.A.'s year-long community supervision, treatment regimen, urinalysis, and the potential of being sent back to prison for violations.

    5. Methamphetamine

      The new scourge of Methamphetamine requires a more cautious approach until we understand more about it. The proposal retains meth manufacturing at level X (51 to 68 months) and the triple counting rule. It retains meth delivery at level VIII, but returns to the single counting method for priors.

    6. Criminal Justice Treatment Account for Local Treatment Infrastructure

      The savings within the D.O.C. budget will be invested in a Criminal Justice Treatment Account (CJTA) in the State Treasury to allow counties to build local/regional treatment infrastructure within their criminal justice systems.

      The bill requires that these amounts be invested in the CJTA:
      fy 2003: $2,415,000
      fy 2004: $7,680,000
      fy 2005: $11,535,00
      fy 2006: $14,277,000
      fy2007: $16,322,000 and thereafter increased by the CPI

      A distribution methodology shall be established to continue to fund the CJTA based on the percentage change in the estimated savings to the State through prison bed reductions. Funds will be distributed to county criminal justice systems through the combination of a set formula plus grants awarded by a panel consisting of representatives of D.O.C., D.A.S.A., law enforcement and judicial participants.

      Funds within the Criminal Justice Treatment Account will be distributed by a combination of 70% by formula (fair and equitable as determined by the Secretary of DOC, the SGC, the DASA, and anyone else the secretary wants to include) and 30% by grants awarded to county criminal justice systems by a panel made up of WAPA, WSPC, Judges, DOC and DASA.

    7. State Budget Impacts: Savings to D.O.C.
      1st Biennium       $763,000
      2nd Biennium       $19,480,000
      3rd Biennium       $31,175,000

      Savings are marginal costs per year ($5,800 per inmate) until 272 beds are reduced, when savings are calculated at $23,775 per inmate per year for each unit of 272 inmates. Savings are not as substantial in the first biennium because persons convicted of drug delivery will go to prison during that period of time. They will not, however, be kept in prison as long as under current law, resulting in significant savings in the future.

    8. Effective Date: New sentencing laws apply to crimes committed after July 1, 2001

  6. A Wrong Turn: The California Initiative

    Last November, California voters approved Proposition 36, an initiative financed by billionaire financier George Soros, that has left those in the treatment community and criminal justice system in a state of bewilderment as they try to carry out the law. The campaign was run on a simple message of whether the "War on Drugs" was a success or a failure, and garnered over 60% "yes" vote, despite opposition form the major newspapers, law enforcement, judges, and prosecutors.

    The California initiative prohibits a judge from imposing even a single day of incarceration for the first two felony drug possession convictions. The court is supposed to refer the defendant to treatment instead, but is powerless to impose sanctions for the defendants failure or refusal to participate in treatment. Courts are now concerned that no felony drug defendants will enter guilty pleas since conviction cannot result in jail time, even after a jury trial. Drug court judges acknowledge that the initiative has eviscerated their programs, removing their ability to coerce offenders into treatment or punish those who fail.

    "Drug courts work ...because they provide precisely what Prop. 36 fails to deliver: court-supervised treatment with regular drug testing and consequences that hold participants accountable if they fail to take treatment seriously," observed John Schwarzlose, director of the Betty Ford Center in Rancho Mirage, California.

    The California initiative need not be repeated in Washington if we take bold steps immediately to fund treatment within the criminal justice system.

  7. Conclusion

    The 2001 Legislature has the opportunity with this proposal to fulfill the promises of the 1989 Omnibus Drug Act by funding a treatment infrastructure at the local level. This can be done with no new money from the state, but instead through savings realized from anticipated expenditures for prison-beds. The future savings from this investment, coupled with the reduction in sentences, will be realized in terms of reduced prison population, deferred new prison construction, and in terms of lives saved through effective drug treatment.

    We can get beyond a debate on the success or failure of the "War on Drugs" and integrate proven treatment models into our local justice system options.

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