A common belief among people unconnected
with the criminal justice system is that almost any criminal defendant
is practically entitled to choose to get a program as a means to avoid
going to prison for committing a crime.
As usual, this common belief is nearly the
opposite of the truth.
A program is NOT a sentence in a criminal
case. You can't simply "get" a program and have a
criminal prosecution disappear. A program is typically a special
condition of a sentence of probation. That means that the
defendant must plead guilty to something and then the judge must
sentence him to probation or conditional discharge. Then, the judge can add a special
condition of probation (or conditional discharge) that the defendant complete a drug program.
Failure to complete the program means
that the defendant is violation of probation and exposes the defendant
to up to the maximum amount of prison time the defendant faced on the
charge he plead guilty to.
For example, suppose a first arrest adult
defendant plead guilty to attempted criminal sale of controlled
substance, a C nonviolent felony and got probation with a drug program
condition. That sounds great. The defendant is on probation
and need not go to prison. If the defendant stops going to the
program or is kicked out of the program, however, that would be a violation of
probation.
Once violated, the defendant faces up to the maximum of
what he originally plead guilty to -- which in this example, was a C
nonviolent felony. A quick look at the sentencing chart for felony
drug offenses tells us
that the defendant in our example faces up to at least 1 year and up to
5 1/2 years in
prison.
Programs are not available to many
defendants for reasons that don't always seem to make sense. Most,
if not all of the court-accepted programs, for example, exclude
defendants who have any "violent" convictions in their
past. This seems to be an extremely strict policy that applies
even to crimes that are merely labeled violent by the legislature for
sentencing purposes but are not necessarily actually violent.
For
example, Burglary in the Second Degree is a "violent" crime in
New York, even though actual violence of any kind is not part of the
crime of Burglary in the Second Degree as most commonly charged.
If a person enters an apartment building basement to steal money from
the washing machines in the laundry room, that is considered Burglary in
the Second Degree even though he entered nobody's apartment, and without
regard even to whether anyone lives in the basement. The crime is
complete simply upon entering the building with the intention of
stealing quarters from the laundry room. The New York State
Legislature classifies this as a "violent" crime for
sentencing purposes, yet no actual violence to a human being is
necessary to commit Burglary in the Second Degree. Yet, our
laundry room thief, if convicted for such a burglary, would be forever
disqualified from a drug program for his "violent" past.
Programs are also not always available to
defendants who, in their prior contacts with the criminal justice system
have proven themselves unreliable by failing to appear on their
cases. This seems a rather peculiar disqualification since such
unreliability is often an outgrowth of the drug problem that the
defendant is seeking to address. Disqualifying people from drug
programs for prior unreliability is arguably like denying aspirin to someone
because he has a headache.
Another aspect of programs is
their high level of intolerance for misbehavior within the
programs. People are frequently kicked out of programs for a
variety of reasons related to violations of various disciplinary
policies. A frequent area of difficulty is the issue of
fighting. Fighting and violence are understandably taken quite
seriously. Nevertheless, the concept of self-defense, is something
that seems not to have penetrated these program disciplinary
policies. ALL participants in a fight are subject to extreme
discipline.
Also, failure to pass all drug tests is a
serious offense within the drug programs. Of course this is
something that must be taken seriously by the programs. It is
indeed the very core of the program - the need to steer away from the
drugs. Nevertheless, the programs recognize the problem as a
serious condition that requires months and months to address. And
yet, participants are subject to banishment for not being cured of their
problem immediately. The programs are usually more than merciful,
especially in the beginning, but continued relapses will quickly lead to
violation.
In defense of the strict policies
of the criminal justice system drug programs, one must realize
that the number of people with drug addiction issues who find
themselves in the criminal justice system is huge. For
every person who gets a bed in such a program there are probably
ten more who have to wait. Therefore, the system has a
right to be selective and have little tolerance for those who
are less than enthusiastic about the opportunity to save
themselves.
DTAP
DTAP is a drug program run
through criminal court that permits some people to obtain drug
treatment who otherwise might not be permitted to participate in
a program. DTAP is designed to help those whose prior
felony convictions (nonviolent) make probation an illegal plea
and therefore make a drug program an impossibility.
The DTAP system works around this
problem by allowing its participants to plead guilty to a
felony, but keep the sentence open until the defendant completes
the program. If the defendant completes the program, then
the defendant is permitted to withdraw the felony plea and
either have the case dismissed outright or substitute a
misdemeanor conviction. If the defendant fails to complete
the program, the defendant is sentenced to an extremely stiff
state prison sentence.
DRUG COURT
Drug Court is a diversionary
courtroom for people with identified drug problems who generally
have no other criminal history than some new drug case.
Those who participate in one of these innovative programs and
who complete the process will generally have their case
dismissed. The entire process is designed to help the
defendant overcome a demonstrated drug addition.
Qualification for drug court depends on a variety of factors and
those interested require interview and evaluation by the Drug
Court personnel. The good news is that the case will
usually end in dismissal. Drug Court, however, requires a
substantial commitment and involves an extremely high level of
judicial supervision. Defendants will be required to make
frequent appearances in court for progress reports. Cases
can least for more than a year in Drug Court.
CONCLUSION
Drug programs certainly play a
large role in the criminal justice system in New York City, but
they are by no means available all the time simply for the
asking. In the right situation they can be a wonderful
means to resolve a problem with the criminal justice system as
well as a wonderful means to resolve a life threatening
addiction. While the rules do tend to be strict, the
people involved are hard-working and dedicated and can make a
substantial difference in people's lives. At the same
time, drug programs will not always be available as a means to
resolve a criminal case nor will they always be a good idea even
when available. As usual, every case must be evaluated
individually with an experienced criminal defense lawyer.
