State Legislatures Magazine: June 2002

Editor's Note: This article appeared in the June 2002 issue of NCSL's magazine, State Legislatures. To order copies or to subscribe, contact the marketing department at (303) 364-7700.


The Treatment Option
Working with Service Groups
Looking Again at Mandatory Sentences


Conviction for Addiction
States are reconsidering whether no-nonsense drug policy should mean prison or treatment.

By Donna Lyons

"There are two parts to this problem that we are trying to address. First, we want to keep people from using drugs and out of the criminal justice system," says Senator Ryan Deckert of Oregon. "Second, we want to spend our resources more wisely." An act he sponsored last year provides probation for people convicted of possession of a controlled substance or a property offense motivated by dependence on an illegal drug. Local public safety councils are developing plans to integrate treatment into the criminal justice system.

Voter initiatives in Arizona in 1996 and California in 2000 that prescribe treatment for certain categories of drug offenders have instigated the laws in Oregon and elsewhere. "It was definitely an influence," Deckert says, "especially when you look at the numbers coming in from Arizona. It looks like they are saving money."

Indeed, a report on the effects of the Arizona act released late last year said that $6.7 million in prison costs were avoided in FY 1999 when qualified offenders received probation instead of prison time. The figure takes into account money spent supervising and providing substance abuse treatment. Further, the report says, the Drug Treatment and Education Fund, paid for by a tax on beer, wine and liquors is adequately meeting the increased demand for treatment services. And the majority of offenders were completing treatment and passing drug tests.

Prevention Message Links Drugs and Terror


"The conclusion is simple: Probation with treatment works," the state's director of adult probation, Barbara Broderick, told a House Subcommittee on Criminal Justice, Drug Policy and Human Resources. Those who violate probation may be ordered by the court to participate in intensified drug treatment, community service, house arrest or any other sanction short of incarceration. Some prosecutors, judges and others have been skeptical about diverting offenders without the authority to be able to jail them if they slip up.


California voter approval of Proposition 36 last year began a large-scale implementation of a similar policy. The measure imposes treatment rather than imprisonment for first-and some second-time drug offenders. Since its passage, California counties have worked to put in place programs to assess the needs of qualifying offenders and to provide various levels of supervision and treatment. The proposition appropriated an initial $60 million and then $120 million annually through 2005-06, to be distributed to the state's 58 counties. County drug program administrators have said that since Prop. 36 went into effect July 1, more clients than expected are hard-core addicts in need of more intensive-and expensive-treatment services than some counties are prepared to provide. Whether that will be a lasting effect or a waning response by users long in need of treatment is not yet known.


"The story so far does seem to be that treatment needs in some counties are more acute than projected, but that the overall numbers of Prop. 36 referrals in several counties are much lower than was expected," says Dan Carson, who handles health services in the California Legislative Analyst's Office, the nonpartisan department providing fiscal and policy information and advice to the California Legislature. Caseload data still being compiled will begin to shed light on numbers and needs of diverted offenders.

Oregon's recent measure also creates a special fund to support local services, by capturing 40 percent of all civil forfeiture money for treatment. This was the hardest fought aspect of the legislation, according to Deckert, since law enforcement often has other ideas about the use of those funds. Most states have laws to place forfeiture money in the state's general fund or distribute it to education, law enforcement, drug prevention or some mix of those purposes. Oregon's new law is generous in its funding of treatment.

State legislation in Oregon and elsewhere tends to be less prescriptive than the Arizona or California ballot initiatives. "There is a strong fiscal incentive for judges to use this option," Deckert says. County attorneys also must consent to dismissal of a charge when a defendant completes a drug treatment plan. Deckert says that in selling the legislation, members wanted a clearer picture of what happens in the criminal justice system and believed that many drug offenders could be safely diverted from prison. "Now with money on the table for treatment, the system adaptations need to take place," he says.


A new law in Indiana last year similarly makes a person charged with delivering a controlled substance eligible for treatment in lieu of prosecution. It allows courts to place those convicted of certain controlled substance felonies directly in community corrections programs. The measure also allows young people who otherwise would have been transferred to district court on drug trafficking charges to remain in the juvenile justice system. The new sentencing options were paired with provisions to make methamphetamine penalties equal to cocaine offenses. The use of agricultural chemicals in meth production, and the seclusion in rural areas that allows illegal labs to operate, make methamphetamine production and use a growing concern in the farm belt, according to Representative Michael Dvorak, chairman of the Courts and Criminal Code Committee. At the same time, he says, the new law gives courts flexibility to pursue treatment options that address substance abuse as an underlying problem contributing to drug crime. 

Costs Stack Up in War on Drugs


The Florida Legislature last year took both front- and back-end approaches to treating drug offenders. A House measure signed into law expands treatment-based drug courts to each judicial district in the state. The law requires integration of treatment and criminal case processing. An act that came out of the Senate creates a mandatory, post-prison release program for substance abusers, as well as expanding community-based treatment services for probationers and those who have violated probation. The Department of Corrections is to contract with community service providers, including faith-based service groups, to operate transitional housing and substance abuse programs.


"We can't rely on prisons alone to rehabilitate people who have been involved with drugs and crime," says Alex Taylor, who administers chaplain services for the Florida Department of Corrections. "The community must also be involved in their treatment and transition, and the faith-based community traditionally is one prepared to be of service."
The department currently contracts with Kairos Horizon for a residential program for prisoners who are within three years of release, many of whom have had substance abuse problems. The program stresses personal responsibility and uses peer support and religious instruction to rehabilitate inmates who volunteer for and are accepted into it.

This year Washington lawmakers sent their governor legislation that allows nonviolent drug offenders the choice of completing a drug court treatment program or facing conviction and a prison term.

"For years our prisons have acted as a revolving door for drug addicts," says Representative Ruth Kagi, the bill's primary sponsor. "This will hold drug offenders accountable for their addictions, but give them a chance at recovery."
The measure retains tough penalties for serious drug offenders, while allowing less serious offenders the option of treatment program supervision by the county's drug court. Those who fail automatically receive jail or prison time. It also reduces sentences for certain manufacture, delivery or drug possession offenses. Prison savings will go to a newly created criminal justice treatment account.

"The law assures that drug courts will continue and treatment will occur whether it's coerced or whether it's voluntary, " says Representative Ida Ballasiotes. A tough-on-crime veteran legislator and victim advocate, Ballasiotes co-sponsored the recent act.


Wyoming passed a law this session that amends state sentencing statutes to provide treatment in lieu of incarceration for certain drug offenders. The comprehensive legislation sets up programs to prevent substance abuse, offer early intervention and make treatment easily available and cost effective. It will be funded with $25 million in tobacco settlement money. Policymakers expect to recover their investment via reduced incarceration costs and less money spent on special education, health care and family services that are required for families affected by alcoholism and drug abuse.
"I'm convinced that we're on the right track," says Representative Doug Osborn. "We're going to get a good return on our investment."

State Spending for Substance Abuse, 1998

Growth of Sentenced State Offenders


The mood in states to rethink drug policy also is prompting reconsideration of mandatory minimum sentences, long a mainstay of drug control. New laws in several states last year eliminate or create alternatives to mandatory sentences. Louisiana lawmakers eliminated mandatory life imprisonment for certain controlled substance distribution, giving courts discretion to impose five- to 50-year sentences. The act also allows probation, parole or suspension of sentence for certain nonviolent offenses, including certain drug possession crimes that before carried mandatory imprisonment. North Dakota legislation removes first-time drug offenders from mandatory minimum sentencing for possession or delivery of controlled substances.


Connecticut lawmakers also have given courts discretion to depart from mandatory minimum sentences for certain drug offenders. Like many states in the late 1980s, Connecticut enacted three-year mandatory minimum sentences for drug possession or sale within 1,500 feet of schools, day care and public housing. Judges now can sentence to less than the mandatory minimum when a defendant's actions did not involve the use, or attempted or threatened use, of force. The reforms were proposed by Governor John Rowland in his state of the state address and carried forward by the legislature last year with bipartisan support.

"These policies have a much greater impact in urban areas, and therefore on minority populations, than they do in suburban neighborhoods," says Representative Michael Lawlor, co-chair of the General Assembly's Joint Judiciary Committee and a former prosecutor. Their analysis included crime-mapping the areas of the state from which drug felons were getting mandatory minimum sentences. Disproportionately, they were minority defendants in the most dense, urban areas, Lawlor says. And the mandatory sentences were being applied in situations unrelated to drug sales to kids, which is what the policies were designed to deter and respond to, he says, and giving prosecutors almost unchecked advantage in plea bargaining.

"Over time, this will both take pressure off prisons and address some of the racial disparities in the system," Lawlor says. "As a matter of public policy it sends a message that for violent offenders, we intend to lock you up. For nonviolent drug offenders, there may be better options than prison."

Federal Drug Control Budget

Breaking the Cycle

Criminal justice and treatment personnel in four jurisdictions have been working together to change the way their systems do business with drug-using adults and juveniles. A program called Breaking the Cycle is field testing early identification and assessment of drug users, with judges overseeing their supervision and treatment. Initial findings indicate that this court-based model does reduce drug use and crime.

"Among key lessons learned is the importance of early screening of offenders, and then targeting resources correctly," says Janice Munsterman, an analyst working on Breaking the Cycle for the National Institute of Justice (NIJ) "Not everyone has the same treatment needs. Some don't even need treatment. There's no one-size-fits-all approach."
The joint effort of NIJ and the Office of National Drug Control Policy has projects in Birmingham, Ala., Tacoma, Wash., Jacksonville, Fla., and Eugene, Ore. Three of the sites work with adult offenders. Clients at the Oregon site are juveniles. Offenders are supervised and services are provided before trial, as part of probation and after sentencing.

A recent analysis shows there is reason to be encouraged that offenders can break the cycle of drugs and crime. A comparison of felony defendants in Birmingham, Ala., shows significant reductions in drug use and criminal activity among program participants compared with a similar group of offenders the year before. Both self-reported drug use and arrest records are being used to compare the two groups, according to Adele Harrell, the lead researcher on the study at the Urban Institute.

A big challenge in each of the Breaking the Cycle sites has been interagency collaboration, Munsterman says. Site participants have suggested that a well articulated, written understanding of specific agency responsibilities, case handling procedures and lines of communication would aid in this effort. The agencies also found that their information systems didn't match so more time and money had to go to solving that problem and less was left for treatment.

Some courts were innovative in applying sanctions and incentives for drug offenders. The juvenile program in Tacoma used a "jury box" in which young offenders had to watch court proceedings involving others. This exercise prompted youngsters to recognize their own behavior in the actions of others and see that sanctions are applied fairly and evenly.
Drug courts, which have taken off in states in recent years, use the influence of the court and the threat of sanctions for continued drug use to deal with drug-abusing defendants. All states now have drug courts in operation or in planning, often with state legislation and support. Legislatures in Florida, Idaho, New Mexico, Texas and Wyoming recently passed measures to expand drug courts. Under the Texas law, large counties are required to establish drug courts and to apply for federal funds. Since 1995, the Justice Department's Drug Courts Program Office has made 650 grants of more than $125 million for the special-jurisdiction courts. The Bush administration has pledged to continue support for drug courts, citing research showing that for every $1 spent on a drug court, $2.50 is saved in standard criminal justice costs and as much as $10 is saved when adding victim costs.


Prevention Message Links Drugs and Terror -

An independent survey showed that more than half of the Super Bowl viewers remembered the message and most agreed that educating people about the link between drugs and terror was a new way to discourage illegal drug use.

One of the most provocative ads during the Super Bowl warned people that when they use illegal drugs, they may be supporting international terrorists. The Office of National Drug Control Policy (ONDCP) used the high-profile event to debut an aggressive antidrug campaign that links drugs and terror.

"Where previous antidrug ads have focused on the devastating toll that drugs take on individuals, these ads speak to young people's desire to make the world a better place," said John Walters, "drug czar" director of ONDCP. He says there is evidence that many of the most dangerous criminal and terrorist organizations around the globe rely on drug trafficking to finance their actions. "These ads put to rest once and for all the cynical lie that drug use 'doesn't hurt anyone,'" he said.

The powerful prevention message has been well received, according to ONDCP. Broadcast and print ads have prompted more than 180,000 visitors to the media campaign's Web site to learn more about the drug and terror connection at

The ads are part of the National Youth Anti-drug Media Campaign authorized by Congress in 1998.


©2002, National Conference of State Legislatures. All rights reserved.

Donna Lyons heads NCSL's Criminal Justice Program in Denver.

Breaking the Cycle
Conviction for Addiction