As U.S. Attorney General Eric Holder was unveiling policy changes this summer that would cut the amount of time a nonviolent drug offender spends in federal prison, New Jersey was readying its own initiative to fight drug crime -- an expansion of the state’s drug court program, in which drug offenders are sent into treatment rather than jail.
The two initiatives showed that while Democrats and Republicans seem to be world’s apart these days, there’s one thing on which they agree: the war on drugs has been lost.
As Gov. Chris Christie signed the drug court legislation last year, he criticized the draconian drug laws passed in the wake of the crack cocaine epidemic, saying they did nothing more than warehouse people in state prisons.
The legislation made New Jersey’s drug court program eligible to more offenders, like those who have committed second-degree burglary or robbery. The law also made drug court mandatory, for some offenders. A judge can now impose it as a sentence. Until now, it was a voluntary program; defendants had to apply to get in.
But this shift in sentiment on how to treat drug crime shows politicians, particularly Republicans, no longer feel they have to be tough to be effective, said Todd R. Clear, interim chancellor and dean, School of Criminal Justice at Rutgers University in Newark.
“For years, politicians had it burned into their souls that you can’t be soft on crime,” Clear said. “I remember one time driving through Southern Georgia in the 1990s, and people running for court clerk were saying they believed in the death penalty. It was just crazy.”
Times have indeed changed. Not just a Republican but a former prosecutor, Christie actually championed the state’s new drug court program in a gubernatorial debate earlier this month, saying treatment is the more suitable response to addiction because “no life is disposable.”
Treatment may also be the more effective response, drug court proponents say. While 54 percent of drug offenders released from prison are rearrested for new crimes, that figure is just 16 percent for those who have graduated from the program, according to the state’s drug court website.
Under the state’s program, which is only open to nonviolent offenders, participants submit to regular drug tests and complete court-prescribed treatments. Those who fail a drug test or commit a new crime face sanctions and possibly jail time. In the past, addicts who weren’t ready to quit preferred to go to prison rather than be subjected to rigorous treatment. With the program being mandatory in some cases, offenders will no longer have that choice.
As of July, judges in three areas -- Hudson, Ocean, and Somerset/Hunterdon/Warren -- began sentencing certain offenders to drug court on a mandatory basis. Under the law signed last year, each year, judges in an additional three will be able to mandate drug court sentences, until all of the state is participating.
Bennett Barlyn, a former county prosecutor who at one time worked in drug court, said the system can be a very effective tool in the hands of someone who wants to change his or her behavior. In fact, it’s the only state-subsidized drug rehab program in New Jersey.
“The only way you can get the state to pay for drug treatment is to commit a crime and thereafter be sentenced to drug court,” he said.
Barnett Hoffman, a former presiding judge in the criminal division in Middlesex County, actually started his own treatment program there so that county prisoners could receive state-subsidized treatment in what would otherwise be dead time. There are now similar programs in Bergen, Atlantic, and Camden counties.“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.”But there’s the rub, say critics of the current system. Drug addicts, by definition, often fail at every other step. The question policymakers are now pondering is what to do with them when they repeatedly fail: incarcerate them or help them.
“Our current criminal code says repeat offenders should have an extended term. People in the treatment world think relapse is a normal part of recovery,” said Bruce Stout, an associate professor of criminology at The College of New Jersey in Ewing. “We made this decision to treat addiction as a criminal justice issue rather than a public health issue, and in doing so, we’ve incarcerated legions of drug users whose lives we could have changed.”
Stout, who served as a public member of a commission created in 2004 to review New Jersey’s sentencing laws, said the current drug laws were enacted with the view that if we could establish severe punishments for drugs, people wouldn’t use or sell them, but that hasn’t occurred. Instead, some 100,000 drug offenders have been incarcerated since the law was enacted, and use is not down, he said.
“If we get addicts into treatment and then into recovery, they stop committing crime to get high,” Stout said.
The war on drugs began in 1971 after two congressmen released an explosive report that showed a growing heroin epidemic among U.S. servicemen in Vietnam. A month later, President Richard Nixon called drug abuse “public enemy number one in the United States.” The Drug Enforcement Administration was created two years later to handle all aspects of the drug war, and not long after that, New York Gov. Nelson Rockefeller signed what came to be called the Rockefeller Drug Laws, which put some of the most severe drug penalties into law, such as mandating a minimum of 15 years in prison for selling just two ounces of heroin, cocaine, or marijuana.
For years afterward, politicians campaigned on tough-on-crime legislation and in 1987, in response to the crack cocaine epidemic; New Jersey passed the Comprehensive Drug Reform Act (CDRA). Its aim was to deter drug use and sales through harsh penalties. One of the offenses for which there was a mandatory minimum sentence was a new offense of selling, or possessing with intent to sell, illegal narcotics within 1,000 feet of a school or school bus. The Act also limited judicial discretion.
But New Jersey’s approach to drug crime has shown how the war on drugs can go awry. After years of racially profiling motorists on state highways as part of its drug interdiction efforts, state police were forced to acknowledge a pattern of disparate treatment of minority drivers. The attorney general issued a report in 1999 saying the practice was tied to enforcement of the CDRA’s provisions.
In 2005, the New Jersey Commission to Review Criminal Sentencing found the drug–free school zone provision of the CDRA was “profoundly discriminatory” toward minorities.
In fact in the decades after the CDRA was passed, the state’s prison population more than doubled, and because of provisions in the drug law (particularly the drug-free school zone) and the fact that minorities were often the focus of enforcement, New Jersey’s prison population became one of the most racially disparate in the country.
“When you have all these mandatory minimums, you wind up locking up a bunch of people for petty drug offenses, and most of them are minorities,” said Hoffman, who is chairman of New Jersey’s sentencing review commission. “In cities like Newark and Paterson, everything is in a school zone.”There was a fiscal toll as well. The budget of the Department of Corrections more than tripled, from $359.9 million in 1987, the year the CDRA was enacted, to $1.1 billion in 2011.
Barlyn says he was always skeptical of the way the drug war was waged. He believes it’s a skepticism other prosecutors may share but will only express after they’ve left law enforcement.
“It’s difficult to speak forcefully when it’s expected that you will take an invariably hard line against illicit drug use and trafficking,” he said.
Barlyn, who also served as the sentencing commission’s executive director, said the sentencing commission didn’t just find the long sentences problematic. There were also disabilities imposed, such as fines and having driving privileges revoked, exclusion from licensed professions, and bars from public housing and student loans, penalties that impair person’s ability to rehabilitate.
“It’s been well established that drug laws disproportionately impact people of color. But the disabilities imposed make it that much harder for all convicted drug offenders to successfully integrate back into a law-abiding community,” Barlyn said.
In some ways, New Jersey has been ahead of the curve. It actually started a drug court pilot program in several counties as far back as 1996, though it didn’t go statewide until 2004. And for addicted offenders who do wind up in jail, some are now sent to halfway houses as much as two years before their parole dates, where they receive drug treatment and other counseling aimed at helping them prepare for life on the outside.
Lawmakers also amended the CDRA so that offenders’ did not automatically lose their drivers’ license. Judges were also given more discretion in sentencing, particularly in cases that fell under the drug free school zone provision of the Act.
And in 2009, a U.S. District Court judge dissolved the federal consent decree that provided for federal oversight and monitoring of state police for 10 years because the force had made significant reforms with regard to racial profiling, and data showed minorities were no longer being treated differently.
These changes have had a significant and dramatic impact on how the New Jersey criminal justice system responds to drug offenders, Barlyn and Stout wrote in an article published this year in the Albany Government Law Review. The proportion of the state’s prison population incarcerated for drug crimes has dropped from 36 percent in 2002 to less than one-quarter, or 22 percent, today.
Despite the modifications, the state’s drug act remains largely intact, with repeat drug offenders still subject to lengthy mandatory terms of imprisonment, and neither judges nor prosecutors having much discretion to alter that sentence.
“Have we modified the school zone law? Yes. Have we made the drivers’ license discretionary on the part of the judge? Yes. But all other aspects of the law are unchanged. And what is resulting is a huge number of nonviolent drug offenders, the vast number of whom are in the drug business [to support their own habits], are in jail,” Stout said.
In the end, the question for policymakers is whether people with just a small quantity of drugs should be exposed to the criminal justice system, or whether drugs should be legalized, as marijuana was recently in both Colorado and Washington.
“There’s a very strong body of evidence that suggests that the criminalization of drugs has created far greater crime than it was intended to address,” Barlyn said, noting it was Prohibition that entrenched organized crime in this country. “The argument is, ‘Look, the cure is turning out to be worse than the disease.”