Pubdate: Sat, 22 Jul 2000
Source: Newsday (NY)
Copyright: 2000, Newsday Inc.
Contact:  (516)843-2986
Website: http://www.newsday.com/
Section: News
Page: A42
Author: Zachary R. Dowdy

AROUND THE ISLAND / CRIME & COURTS / LAW AND ORDER / NASSAU'S DRUG COURT 
STILL SEEKING SUCCESS

It's been nearly a month since the state's top judges unveiled a plan to 
expand "drug diversion" courts, which steer addicted non-violent offenders 
into treatment instead of prison.

The June 22 announcement promised a drug diversion program in every county 
in the state, a plan that is expected to reform addicts, curb crime, unclog 
overloaded courts and save the judicial system $ 500 million a year. The 
program gives drug users the option of undergoing rigid treatment or 
serving jail sentences if convicted.

There are about two dozen such courts in New York State, including two in 
Suffolk County that were installed in 1996. Each county fashions its own 
requirements for participants.

But the new Nassau County District Attorney Drug Treatment Program still 
needs its first round of drug users who are willing to plead guilty to 
participate. That's because while law enforcement officials tout the 
drug-court program's virtues, Nassau-based defense attorneys say it's a raw 
deal for the first-time felony offenders it is geared to help.

They argue that their clients are better off taking their chances in court 
because the program offers too little in exchange for a guilty plea.

To participate, offenders must plead guilty to both a drug felony and a 
misdemeanor, and live at a drug-treatment facility for up to 18 months. 
They then would be placed on probation for three years. If there are no 
setbacks, the felony conviction is dismissed, leaving only the misdemeanor. 
However, if participants flunk the program, they may be sentenced to two to 
six years in an upstate prison.

Defense attorneys point out that first-time felony offenders normally are 
sentenced to only six months in the Nassau jail and placed on probation for 
five years. They also can get high-quality drug treatment without the 
threat of an upstate prison sentence.

"I don't know of a defense attorney that I have spoken to who thinks this 
is a good program," said Bruce Barket, an officer of the criminal courts 
bar association of Nassau County.

"What they've done is maximize the time where our clients' freedom is 
deprived and maximized the risk," he said.

This lack of acceptance by defense lawyers has all but frozen the 
initiative that State Administrative Judge Jonathan Lippman had hoped would 
make a dent in a staggeringly high caseload: 38 percent of the criminal 
cases in Nassau are drug cases.

But now it seems the dearth of willing participants is forcing Nassau 
County to bend a little.

Last week, District Attorney Denis Dillon broadened the program's scope to 
include second-felony offenders, too, said Harvey Levinson, the program's 
architect. That's the way it works in Suffolk drug courts, which officials 
say have been successful.

The option is attractive to second-felony offenders because they face heavy 
sentences if convicted at a trial. Typically a second conviction brings 4 
1/2 to 9 years in prison, Levinson said.

"We expect a long line of people to apply," said Levinson.

Both Levinson and Lippman expressed disappointment at the reluctance of 
defense attorneys to encourage first-felony offenders to participate, 
saying the lawyers hurt clients by discouraging them.

"It would be foolish to not take this program," Lippman said. "This is a 
very severe program. It's tough love and constant monitoring."

Susan Timler, whose agency, Education and Assistance Corp. in Hempstead, 
helps place defendants into treatment and monitors them, said the program 
"rehabilitates a damaged human being."

No one disputes the effectiveness of the drug treatment itself, which will 
be funded through federal Medicaid dollars. The issue is the terms under 
which the offender receives the treatment.

Levinson, Dillon's chief assistant, said the attorneys who advise against 
the program face an ethical dilemma and are possibly forfeiting their 
clients' health and future for the sake of retaining their freedom in the 
short term.

"Misdemeanors people can overcome," Levinson said. "A felony they can't. 
There's a real ethical dilemma. Should a lawyer really advise them not to 
take advantage of this?"

Levinson said he tailored the program for first-time felony offenders to 
capture people early and divert them away from crimes by controlling their 
addiction.

Most such programs across the state, though, target second-felony 
offenders. Because that people in that group face long prison terms if 
convicted of a second felony after a trial, they are more likely to try 
harder in the diversion program, Levinson said.

A recent state Office of Court Administration study said the success rate 
in programs that penalize failure with prison terms is high. On average, 60 
percent of drug court participants are still in the program after a year.

Reports on graduates of New York's drug court programs show one-year 
re-arrest rates of less than 15 percent, far below the 34 to 35 percent 
re-arrest rates for drug offenders who have not gone through the programs, 
the study said.

While defense attorneys say the price of failure for first-time offenders 
in Nassau is too high, they applaud the revision to include second-felony 
offenders.

"I like the... change a lot," Barket said. "That's certainly a program that 
I would recommend to any client who has a prior felony conviction."
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