The 2005 Legislature gave judges a sentencing option for non-violent, drug-addicted defendants, one that has the ability to restore lives and save public dollars. House Bill 2015 was resoundingly approved by state lawmakers, re-writing the Drug Offender Sentencing Alternative ("DOSA") law to allow judges to sentence eligible defendants headed for prison to community-based treatment instead. The bill includes stringent requirements for oversight and accountability.
Prior to HB 2015, the only options other than a standard-range prison sentence were drug courts in the few counties that had them - and then only if the prosecutor approved - or prison-based DOSA.
"This is a sea change in how we look at the addicted," said Clallam County Superior Court Judge Kenneth Williams, president of the Washington State Association of Drug Court Professionals. "This is being taken very seriously. These offenders will be held accountable for their crimes, but in the best way possible."
Judge Williams chairs a committee of officials - representatives of the Department of Corrections, the Department of Social and Health Services' Division of Alcohol and Substance Abuse, defense attorneys, prosecutors, drug court officials, legislative workers and more - that is working on protocols for implementing the new DOSA provisions.
The implementation committee has learned that one of the few things as challenging as enacting a sea change is implementing one. The bill was to take effect on Oct. 1, but implementation was delayed until mid-2006 to ensure that it will be successful, said King County Superior Court Judge Deborah Fleck, who was involved in development and passage of the bill and is now involved in the protocols committee.
"Responsibly implementing this bill is critical and the stakeholders have been working hard to ensure that happens," Judge Fleck said of implementation, which involves creation of community-based treatment beds as well as a system of protocols.
How It Got Started
Interest in a local-option DOSA that gives judges more discretion in sentencing eligible drug offenders began brewing about the time drug courts were born. Meetings, hearings and discussions about restorative justice gave rise to other ideas about what was needed to make drug offenders accountable, yet also provide a stronger possibility of success in treatment and "restoring" the offenders to the community. "Anyone who has attended a drug court graduation knows what a difference treatment can make in restoring lives," said Judge Williams.
"There are a lot of non-violent drug offenders who are choosing to go to prison for a short time on a prison-based DOSA sentence rather than going to drug court and really facing their addiction," said Rep. Ruth Kagi, D-Lake Forest Park, who was prime sponsor of the bill.
The new DOSA provisions mean judges can hold offenders accountable and order long-term residential treatment in the community - with a full prison term waiting if the offender fails treatment - even outside of drug court.
Rep. Kagi also was concerned that prosecutors, as gatekeepers to drug court, had sole discretion over which offenders entered drug treatment, a process over which judges now have little or no control.
"I just think there needs to be more of a balance," she said.
She gives the Superior Court Judges' Association a great deal of credit for passage of the bill, saying that judges who got active calling their state lawmakers created a lot of support for the bill.
Judges supported the change as a growing body of information clarified the picture of the average drug offender, Judge Fleck said.
For instance, a study of King County drug offenders requested by the Joint Select Committee on the Drug Offense Sentencing Grid in 2002 found that nearly 65 percent of cocaine offenders were arrested and convicted of selling less than one gram - less than a restaurant packet of artificial sweetener - of the drug. The study also showed that racial disparities worsened as the amounts sold decreased, with a typical transaction involving one-tenth or two-tenths of a gram.
"Judges have had virtually no option except to sentence non-violent drug-addicted defendants, who dealt very small amounts to support their own habits, to prison," Judge Fleck said.
The incarceration costs were high and so was recidivism, because many offenders weren't getting treatment.
"This bill gives judges what we need in gatekeeping authority, treatment options, oversight and final control," Judge Fleck said in a thank-you e-mail to legislators. "It gives us the carrot of treatment at a fraction of the cost of incarceration, but it also gives us the big stick of prison if the defendants fail."
Local-option DOSA gives judges the discretion to suspend standard sentencing for drug offenders with the following provisions and considerations:
The offender is not convicted of a violent or sex offense, has no violent or sex offenses within the past 10 years, is charged with selling only a small quantity of a controlled substance and has no prior DOSA within 10 years, among other requirements.
The offender is assessed as drug-addicted - the Department of Cor-rections has now contracted with chemical dependency professionals to prepare DOSA evaluations.
Residential chemical dependency treatment is available, likely to be effective and will benefit the community; a proposed treatment plan; and the offender's ability to provide transportation (these are established through the assessment process).
The midpoint of a standard sentencing range for the offense is 24 months or less.
Restoring Discretion, Proportionality
Rep. Kagi and many judges felt that circumstances and the chance at effective treatment should be evaluated individually and that judges should have a voice, and "that's the heart of the difference," she said.
"Tight budgets around the country have led to many sentencing innovations, particularly for non-violent, drug-addicted defendants," Judge Fleck said, "with the focus changing from being tough on crime, to being smart on crime. This statute also restores proportionality in sentencing for these non-violent, drug-addicted defendants compared, for example, to defendants charged with violent offenses such as assault or robbery."
Although the standard range for a defendant convicted of a drug-dealing offense with no prior felonies is still 12 months and a day to 20 months, the statute gives judges the discretion to impose a sentence with three to six months of residential chemical dependency treatment, compared to the standard range of three to nine months for defendants with no priors convicted of second-degree assault or second-degree robbery.
What's Next?
The HB 2015 protocols committee began meeting in May 2005 after final passage and signing of the bill, and soon learned that implementation would need to be delayed while community residential treatment beds were developed.
The Department of Corrections agreed to pay for evaluations and the treatment beds, but needed to go to the Legislature for funding. During this delay, committee members worked out other details such as what exactly will be included in assessments, how sentencing will proceed, details of residential treatment, progress reports to the court, aftercare and monitoring and termination hearings.
The 2006 legislature included $3.5 million requested by the Department of Corrections to fund 100 residential treatment beds, which are expected to be available by July 1. Although the need for beds far exceeds 100, Judges Williams and Fleck see this as a good start.
Other issues such as health care, random urinalysis and researching potential jail costs for offenders who fail treatment will be addressed in future meetings of the committee. Plans also are under way to inform judges, prosecutors and defenders across the state of the implementation details.
"I think we're all looking for the same thing," Judge Williams told committee members. "We want the offenders to be successful and we want accountability to the community."
The Bar Bulletin wishes to thank Judge Deborah Fleck for shepherding this article to publication.
