Rehabilitation not jail time
by Donald P. Lay; New York
Our federal justice system has a great deal to learn from our
state court systems. Today, nearly every state has a ''drug court'' to
deal with nonviolent drug offenders through a mix of treatment and
sanctions, all as part of an effort to reduce recidivism, substance
abuse and costs. Statistics show that drug courts are a success, yet
Congress persists in mandating ever stiffer sentences for federal
offenders who need treatment more than punishment.
While drug court programs vary from state to state, most try to
address the cause of an offender's behavior: addiction. All offer
community-based treatment in lieu of prison. Offenders who choose to
participate in a drug court and complete their treatment typically can
have the charges against them dropped, or can plead guilty without
being sentenced to prison.
In 2003, there were more than 1,500 drug courts either in
operation or in the planning stages. Drug court graduates have
substantially lower rates of criminal recidivism than offenders who are
imprisoned. In New York, for example, the re-arrest rate among 18,000
drug court graduates was 13 percent, compared with 47 percent for the
same type of drug offenders who served prison time without treatment.
Drug courts also cost less than incarceration and have high retention
and completion rates. Even Congress recognizes their worth; since 1994,
it has authorized the attorney general to make grants to states, state
and local courts, and local and tribal governments to establish drug
Years ago, Chief Judge James L. Oakes of the United States Court
of Appeals for the Second Circuit and I, as chief judge of the Eighth
Circuit, sponsored a sentencing institute. At that institute, I asked
the chairman of the United States Sentencing Commission why an
18-year-old who had received some drugs by mail for a friend should
face a mandatory minimum sentence of 10 years, under the commission's
federal sentencing guidelines set by the commission. The chairman
responded that because this teenager would be in prison during his
20's, the age when the likelihood of recidivism is greatest, the
sentence would cut down on re-arrests. The head of the Bureau of
Prisons whispered to me, ''Doesn't he realize when that young man gets
out of prison, he will be nothing more than a hardened criminal?''
Mandatory minimum sentences, enacted by Congress, have
contributed to the rising costs of imprisonment and crowding in federal
prisons. In federal drug cases, defendants could face a minimum of 5 to
10 years in prison, while a similar offense in some state courts would
allow a court, depending on the circumstances, to place the defendant
on probation. Justice Anthony Kennedy and several other scholars,
judges, professors and law reviews have openly criticized the use of
mandatory minimum sentences in federal criminal cases. To make matters
worse, a bill has been proposed in the Senate that would set a
mandatory sentence of 10 years for a first drug conviction and
mandatory life imprisonment for a second.
According to the Federal Bureau of Prisons' Web site (as of
Sept. 4, 2004), the total federal inmate population is 180,318. About
54 percent of that population are drug felons. The total cost for each
prisoner was $61 per day; for the entire population, almost $11 million
a day or $4 billion a year. It is predicted that by 2010 there will be
more than 216,000 individuals serving time in federal prisons.
Unlike the states, the federal criminal justice system offers no
alternatives for nonviolent offenders charged with drug-related crimes.
In the federal system, it is almost a certainty that a convicted drug
offender will be incarcerated rather than going through a
community-based treatment program. It is little wonder then that the
federal prison system will continue to be overburdened. Given the
success of drug courts in the states, the federal government should
study how to modify its sentencing to incorporate elements of the drug
court model and to assess the effectiveness of community-based
alternatives to imprisonment for nonviolent federal drug felons.
Congress would need to authorize the mechanics of federal drug
courts. One suggestion would be that magistrate judges could preside
over the drug court, while federal probation officers could oversee the
offenders' attendance at drug treatment programs as well as obtain
employment and housing for them. A good start would be to develop
sentencing policies that take drug dependency into account, and that
place as much emphasis on preventing crime as on punishing misconduct.
Sentences that combine treatment, monitoring and the threat of
imprisonment hold the promise of long-term solutions to crime. They
should be more readily available in the federal system.
The high cost of this incarceration policy falls on taxpayers.
However, beyond all of this is the fact that the real damage is
incurred by the individuals who must spend a large portion of their
life in prison. The damage to young prisoners cannot be measured in
dollars and cents.
Cases are now pending before the Supreme Court that will affect
sentences in all federal cases. This presents an opportunity for the
executive and legislative branches to bring sanity to federal drug
sentencing. Congress has nothing to lose and everything to gain by
passing legislation to carry out a program for federal drug courts.