Sentencing Reform and Diversion: A Combined Approach

By: Allison Colker, Esq.

December 31, 2004

Introduction

The dismal state fiscal climate, coupled with overcrowding in state prisons and municipal jails, has renewed legislative interest in policies that provide treatment for substance abusers in lieu of incarceration. The trend recognizes that most people in the criminal justice system are charged with minor drug-related crimes and, if their addictions are treated, they are less likely to commit future misdeeds. This frees up jail and prison cells and other resources for more serious offenders. To achieve this goal, states have pursued several strategies, including drug courts, which operate or are planned in all 50 states; sentencing reform; and "diversion" programs.

Overview

Diversion, which has the potential for long-term cost avoidance, is growing in popularity. For the most part, programs do not require offenders to plead guilty; rather, they are put on probation and a case manager or probation, officer oversees their treatment. Judges have limited discretion to impose sentences for failure to comply with terms of probation. Sentencing reform for drug offenses also has become popular because, once the reforms are implemented, offenders serve less prison time and savings are immediate and tangible. Among the approaches being pursued are amending existing drug offender sentencing grids, establishing new grids, and/or eliminating punitive scoring. Several states recently have combined sentencing reform and diversion in an effort to save criminal justice funds and, at the same time, rehabilitate offenders. A 2002 Washington law, for example, gives nonviolent drug offenders the choice of completing treatment or facing conviction and a prison term--those who fail automatically do time--and reduces sentences for certain manufacture, delivery or drug possession offenses. A 2003 Kansas law substitutes a treatment option for time behind bars and makes major changes in state criminal law related to penalties and sentencing for possession of illegal drugs.

State Actions

Many states have enacted some version of sentencing reform and/or diversion, while many other states still are struggling to enact such measures. New York, for example, is attempting to amend its "Rockefeller Drug Laws." Although both political parties agree that these extreme drug offense penalties, enacted in the 1980s, must be rolled back, the parties cannot agree on how to accomplish this. A discussion follows of the most comprehensive state laws enacted to date--in Washington and Kansas--that completely reform drug offense sentences and divert offenders into treatment instead of extra prison time.

Washington

On April 1, 2002, Governor Gary Locke (D) signed House Bill 2338 (Chapter 290, Laws of 2002), which gives nonviolent offenders the choice to complete a treatment program or face conviction and a prison term--those who fail automatically receive jail or prison time--and reduces sentences for certain manufacture, delivery or drug possession offenses.

The Problem

Since 1989, growth in the Washington prison population has far outpaced growth in the state’s total population. The percentage of the state’s prison population that is incarcerated for drug offenses has increased tenfold--from 2.6 percent in fiscal year 1985 to 21.0 percent in fiscal year 2003. Adult felony drug offense cases have increased by more than 360 percent since 1986, while adult felony drug offense prison sentences have increased by more than 1,550 percent. Prison expenditures on drug offenders have ballooned from $3.2 million in FY84 to $89.1 million in FY03.

The Solution

Since prison spending has skyrocketed with no concomitant spending for substance abuse treatment, policymakers began examining drug offense sentencing laws. The goal was to produce prison bed savings through shorter felony drug offense sentences and to invest the estimated savings in treatment in the community for offenders who are "diverted" from incarceration. The concept was supported by nearly all stakeholders. Although it did not pass the Legislature the first year it was introduced, it did pass in 2002.

The law makes the following changes. It:

Reduces the seriousness level of dealing heroin or cocaine;
Eliminates triple scoring¹ for most drug offenses; and
Establishes a drug offender sentencing grid (that gives judges increased discretion).

The law then converts prison savings into funds for treatment.

75 percent of the funds go into the Criminal Justice Treatment Account (CJTA) for community treatment.
25 percent go to the Department of Corrections for treatment of inmates.

The funds in the Criminal Justice Treatment Account are distributed to counties to provide judicially supervised substance abuse treatment (drug court or other method) in lieu of incarceration.

The level and scoring changes became effective July 1, 2002. The Criminal Justice Treatment Account, established on July 1, 2003, provides $8.95 million in the first biennium and $16.5 million in the second for treatment. The drug offender sentencing grid, scheduled to become effective July 1, 2004, was moved forward to July 1, 2003, by ESSB 5990 (Chapter 379, Laws of 2003) to more quickly realize savings.

This law will save the state money in many ways. The level and scoring changes, as well as the new drug grid, will result in fewer and shorter prison sentences for many drug offenders. Using the savings to divert offenders into treatment instead of incarceration will reduce prison sentences. Providing substance abuse treatment to offenders has been proven to decrease recidivism. Treatment reduces medical costs, reliance on public assistance, unemployment, and child abuse and neglect, among others.

The Results

In the first 10 months under the Criminal Justice Treatment Account (CJTA), the judicially supervised treatment of more than 2,100 offenders was either partially or fully funded by money from the account. This has been well received by the Legislature, but the members want proof that the counties are not supplanting funds (that is prohibited by the law). An analysis of the publicly funded substance abuse treatment caseload proved that there has been an increase in the caseload--although perhaps not as much as expected.

The Criminal Justice Treatment Account is a new program and, therefore, is experiencing "growing pains." The state is:

Learning to balance new funds with existing sources, and
Instructing treatment providers on proper data entry and solving data issues.

The increase in total public treatment funds provided by the Criminal Justice Treatment Account has been partially mitigated by the loss of funds from several other sources. There is no evidence of supplanting by the counties.

Initial data shows that post-reform prison sentences for drug offenders are, indeed, shorter in length than those prior to the reform. Given that offenders are being treated under the Criminal Justice Treatment Account, thereby avoiding incarceration, they are being kept out of jail and prison. However, the prison population still is increasing and is expected to increase well into the future, due to factors beyond the scope of the reform.

Amendments to sentencing policy that apply to offenses committed on or after a certain date have a "phase-in" period--just over 79 percent of sentences will fall under the new policy at the end of the first year, reaching 99 percent in the fifth year. A dramatic reduction has occurred in use of the Drug Offender Sentencing Alternative; at the same time, revocations have increased. Those who violate community custody (probation) are sent to prison rather than to jail.

With the passage of ESSB 5990 in 2003, many prison offenders are eligible for up to 50 percent earned release,² there was no corresponding change for people in jail. The 6+ to 18-month cell in the new grid, which spans the jail/prison threshold, has resulted in a shift from jail to prison for simple possession offenders. Although the drug sentencing reform has resulted in shorter sentences and fewer prison admissions for certain offenders, prison admissions overall have steadily increased due to various other factors not related to drugs.

The Future

CJTA staff will continue to educate counties and treatment providers about the nuances of providing treatment and recording data correctly. They will begin research on outcomes such as length of stay in treatment and completion rates, determine how many offenders are being diverted from prison through treatment, and examine recidivism. This data will be available in reviews of account performance during the upcoming legislative session.

The Legislature is expected to take measures to reduce the continued rise in prison admissions. Improvements from sentencing reform have been totally surpassed by increased admissions due to various other factors. The Legislature may examine whether it went far enough with its initial sentencing reform or may consider new methods.

Kansas

On April 21, 2003, Governor Kathleen Sebelius (D) signed Senate Bill 123 (Kansas Statute No. 21-4729), which would sentence some drug offenders to treatment instead of prison. However, the bill was not fully funded and, therefore, was not fully implemented.

The bill makes major changes in Kansas criminal law relating to penalties and sentencing policies for possession of illegal drugs. It establishes a non-prison sentence or sanction of drug abuse treatment and reduces all criminal penalties that involve illegal drug possession (except first-time marijuana possession, which remains a class A misdemeanor)--regardless of whether it is the second, third or subsequent conviction--to a level 4 drug offense.³

Non-prison Sanction

The bill establishes " ... a non-prison sanction of certified drug abuse treatment programs for certain offenders." Specifically, those adult offenders who are convicted of the possession of opiates or depressants or who meet the following criteria are eligible.

Whose offense is classified in Category 4-E through 4-I of the drug sentencing grid and have no felony conviction for unlawful acts involving proceeds derived from violations of the Uniform Controlled Substances Act, unlawful manufacturing or attempting such of any controlled substance, and unlawful acts relating to sale or distribution of opiates, depressants, etc., within 1,000 feet of school property, or any substantially similar offense from another jurisdiction; or
Whose offense is classified in Category 4-A through 4-D of the drug sentencing grid and who meet the criteria in (1) above and whose person felony convictions were severity level 8, 9, 10, or nongrid offenses of the non-drug sentencing grid and the sentencing court finds that the offender is not a risk to the public safety.

Assessment and Treatment Provisions

A drug abuse assessment must be made by the court to assign a high- or low-risk status to the offender and must include a recommendation concerning drug abuse treatment. The law requires the state to use a consistent risk assessment tool to determine the appropriate level of treatment.
The sentencing court is required to order a drug abuse treatment program for each offender until the court determines the offender is suitable for discharge, not to exceed 18 months. Offenders will be supervised by community corrections departments. However, the placement of offenders with prior person felony convictions⁴ also is subject to departure sentencing provisions.⁵
Offenders in the drug abuse treatment program will be discharged from the program by the court if the offender is convicted of a new felony offense other than drug possession, or for intentional conduct that demonstrates a refusal to comply with or participate in the treatment program.
Drug abuse treatment programs conduct presentence investigation report (PSI) assessments, provide treatment for eligible offenders, develop one or more treatment options in a continuum of services, involve the family, and coordinate auxiliary support services.

The cost for all drug abuse assessments and certified drug abuse treatment programs for any person will be paid by the Kansas Sentencing Commission from funds appropriated for that purpose. The Kansas Sentencing Commission will contract for payment for services with the supervising agency. The sentencing court will determine the extent, if any, that the offender is able to pay for the assessment and treatment, and payments will be used by the supervising agency to offset costs to the state. If financial obligations are not met or cannot be met, the sentencing court will be notified for the purpose of collection or review and further action on the offender's sentence.

Disposition Changes

The bill amends the authorized dispositions statute by changing categories 4-E and 4-F on the drug sentencing grid from "border boxes"⁶to presumption of probation boxes.⁷ It creates a special sentencing rule for offenders who are convicted of drug possession that mandates participation in the new, certified drug treatment program and the approved after-care plan. In the event an offender fails to participate in, or has a pattern of intentional conduct that demonstrates a refusal to comply with, the certified drug abuse treatment program by a judicial finding, then the offender would serve the underlying prison sentence.

The bill modifies the provision for restitution to be paid to include it as a condition of post-release supervision, and it also modifies dispositional departures⁸for offenders whose offense is classified in grid blocks 4-E and 4-F of the drug sentencing grid but who do not otherwise qualify for the drug abuse treatment program. Those offenders would be added to the target population for consideration for placement at Labette Correctional Conservation Camp prior to any placement in a Kansas Department of Corrections (KDOC) correctional facility. The secretary of corrections also is authorized to make direct placement of such offenders at Labette.

The bill adds a provision to require a drug and alcohol assessment for the target population for the drug abuse treatment program. The drug and alcohol assessment would be a restricted court document.

Condition Violation Changes

The condition violator/post-release supervision statute is amended to create a non-prison sanction of up to 60 days for those offenders who violate conditions of the new drug and alcohol abuse treatment programs. The non-prison sanctions could include county jail time, fines, community service, intensified treatment, house arrest or electronic monitoring.

The Senate Committee of the Whole deleted provisions that would have made the new sentence structure retroactive; clarified that drug abuse treatment can include community-based and/or faith-based programs; made the bill effective in the statute books; provided for implementation on or before November 1, 2003; and provided that, if funds appropriated are insufficient, then drug abuse treatment programs no longer will be offered to eligible offenders.

Notes

"Scoring" an offender’s criminal history is the most complex element in determining the appropriate sentence to impose. The horizontal axis of the felony sentencing grid displays the number of "points" to be assigned in a particular case, depending on the offender’s previous criminal record. "Scoring" an offender is not merely as simple as counting the offender’s previous felony convictions. Adult and juvenile offenses in an offender’s history are counted differently, for instance, and certain offenses are permitted to "wash out" of an offender’s record, as well. The Legislature has amended the scoring rules many times, so that previous drug offenses and previous sex offenses often count for more than one point, depending on the current offense. Previous violent offenses are "double scored" and previous "serious violent" offenses are "triple scored." Offenses committed while the offender is being supervised in the community also augment an offender’s score. Multiple current convictions also affect the procedure for calculating an offender’s criminal history score. When "scoring" a particular case, it is essential to refer to the specific provisions that apply to the current offense of conviction and to previous offenses.
The term of the sentence of an offender committed to a correctional facility operated by the department may be reduced by earned release time in accordance with procedures that shall be developed and promulgated by the correctional agency having jurisdiction in which the offender is confined. The earned release time shall be for good behavior and good performance, as determined by the correctional agency that has jurisdiction. The correctional agency shall not credit the offender with earned release credits before the offender actually earns the credits. Any program established shall allow an offender to earn early release credits for presentence incarceration. If an offender is transferred from a county jail to the department, the administrator of a county jail facility shall certify to the department the amount of time spent in custody at the facility and the amount of earned release time. In the case of an offender who qualifies under ESSB 5990 (2003), the aggregate earned release time may not exceed 50 percent of the sentence.
Two grids are used for sentencing on felony convictions. The drug grid is used for sentencing on drug crimes described in K.S.A. Chapter 65, Article 41. The non-drug grid is used for sentencing on all other felony crimes. Both grids are similar in appearance. The criminal history categories make up the horizontal axis, and the crime severity levels make up the vertical axis. Each grid contains nine criminal history categories. The drug grid contains four severity levels. A thick, black dispositional line cuts across both grids. Above the dispositional line are unshaded grid boxes that are designated as presumptive prison sentences. Below the dispositional line are shaded grid boxes that are designated as presumptive probation sentences. The grids also contain boxes that have vertical lines passing through them, referred to as "border boxes." A border box has a presumptive prison sentence, but the sentencing court may choose to impose an optional nonprison sentence, which will not constitute a departure. The drug grid contains five border boxes, in levels 3-E, 3-F, 3-G, 3-H and 3-I.
A "person" felony is a felony crime committed against or upon a person, e.g., homicide, rape, battery, or kidnapping.
"Departure sentencing" refers to when the state seeks an increase (or decrease) in the defendant’s sentence above (or below) the presumptive sentence provided by law. When imposing a departure sentence, the sentencing court should begin with the grid box corresponding to the severity level of the crime of conviction and the offender’s criminal history. A sentence that is an upward durational departure cannot exceed twice the maximum presumptive sentence. There is no limit on a downward durational departure. The sentencing court also may depart from the presumptive disposition in the case by sentencing an offender for whom the presumptive sentence is probation to prison, or by sentencing an offender for whom the presumptive sentence is prison to a nonprison sanction. When a prison term is imposed as a dispositional departure that also is combined with an upward durational departure, the sentencing court must define separate substantial and compelling reasons for both the durational and the dispositional departure. However, this requirement does not apply in the case of a downward dispositional and durational departure.
A border box has a presumptive prison sentence, but the sentencing court may choose to impose an optional non-prison sentence that will not constitute a departure. The drug grid contains five border boxes, in levels 3-E, 3-F, 3-G, 3-H and 3-I.
A thick, black dispositional line cuts across both grids. Above the dispositional line are unshaded grid boxes, which are designated as presumptive prison sentences. Below the dispositional line are shaded grid boxes, which are designated as presumptive probation sentences.
The sentencing court may depart from the presumptive disposition in the case by sentencing an offender for whom the presumptive sentence is probation to prison, or by sentencing an offender for whom the presumptive sentence is prison to a nonprison sanction. When a prison term is imposed as a dispositional departure that also is combined with an upward durational departure, the sentencing court must define separate substantial and compelling reasons for both the durational and the dispositional departure. However, this requirement does not apply in the case of a downward dispositional and durational departure.

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