“On sentencing day during their allocution, defendants would invariably say, ‘Judge, I’d like a program.’ But if you have no money or insurance, there are no programs. So I started one,” Hoffman said.
But some question the wisdom of forcing people to go to treatment when they haven’t indicated a will to change. They say drug court’s success depends largely on the defendant’s desire to change.
“Under the new program, the defendant’s desire to reform his or her destructive behavior is far less relevant,” Barlyn said. “It’s a big leap, and one I’m not quite convinced is going to be effective.”
Indeed, all 50 states now have drug courts, but New Jersey is the first to make treatment mandatory.
Others question whether there will be enough money to fund all the programs required to treat the hundreds of additional addicts expected to be funneled into the program.
The governor asked for $2.5 million in 2013 to fund the pilot program, which is expected to yield about 620 additional participants each year. Effective treatment programs will require substantially more than that, critics say.
In fact, some say initiatives at both the state and federal levels to treat rather than incarcerate drug offenders is more about budgets than benevolence. Gov. Christie cited those costs in the recent gubernatorial debate: it costs $49,000 a year to send an offender to state prison, while inpatient drug treatment costs just $24,000 a year.
“Some of the policies now are being driven by the budget crisis. You saw that in California, where they really started to cut people loose en masse because it costs so damn much to keep people in penal institutions,” said Dale Jones, assistant public defender in the state Office of the Public Defender.
Part of the problem with lengthy prison sentences is that states have wound up with aging prison populations that suffer some of the issues facing the aging population outside of prison, like senility, diabetes, and other health problems. But since they're in prison, the state must pay for their healthcare.
“So what do you do to cut down on the expense? You start finding ways to get those people out of the institutions, and the safest way to do it is to look to release people who are nonviolent offenders and not likely to cause serious damage,” Jones said. “That’s one of the solutions New Jersey is taking to address the corrections budget.”
But state prosecutors say they’re not sure where the savings are going to come from since most nonviolent drug users don’t even land in jail in the first place. Almost every offender in every state prison is there for offenses that were either violent or sexual, or it was a repeat offense, according to Scott Burns, executive director of the National District Attorneys Association (NDAA), which represents state and local prosecutors.
“When Holder made his announcement, we were all just shaking our heads, thinking, ‘What’s he talking about?’ Burns said.
In New Jersey, for instance, simple possession is a third-degree crime, which has no presumption of incarceration. Prosecutors say it’s difficult to get someone with a third-degree offense in prison, even if they wanted to. Indeed, the number of incarcerated drug offenders has dropped precipitously—from 10,385 in 1999 to 5,224 in 2012.
“If someone in New Jersey goes to prison for simple possession, they went because they have a horrible record, and they’ve flunked out of drug treatment programs. Prison is never the first stop for a drug user,” said one New Jersey prosecutor who preferred anonymity. “People simply caught for simple possession are only going to prison for specific circumstances or because they failed at every other step.”