Establishes a drug treatment alternative to incarceration for certain offenders; appropriation

Summary of specific provisions

The bill amends the correction law by adding a new section 72-b to establish substance abuse treatment alter- native programs for certain low-level, non-violent second felony offen- ders. The programs shall either be licensed by DDS or DAAA; they shall be approved by the division of probation and correctional alternatives or by the division of parole. Any program not licensed by DDS, or DAAA shall provide treatment services in accordance with criteria outlined in the bill.

The legislation amends section 390.30 of the criminal procedure law to provide for the pre-sentence report to include a treatment plan and a listing of available substance abuse treatment alternative programs for the care and treatment of the eligible offender.

The measure amends section 70.06 of the Penal Law to afford judges wider discretion in sentencing second felony offenders convicted of a D or E level drug offense whose predicate offense was non-violent to mandatory residential drug treatment as an alternative to state prison. Before exercising this discretion, a judge must first determine that the offen- der does not merit a long period of incarceration, that the person is in need of substance abuse treatment, and that the offender is not a significant player in a drug enterprise. The treatment would be imposed as a condition of a sentence of conditional discharge. Upon successful completion of the treatment program, the offender's conditional discharge will be terminated. If the offender absconds or otherwise violates the conditions imposed or if the court determines that the confinement of the offender in the substance abuse treatment alternative program is no longer suitable because it endangers the safety, security or order of such facility, the offender will be sentenced to mandatory prison time as a second felony offender.

The initiative amends the executive law by adding a new section 837-m authorizing the division of criminal justice services to establish with- in the division of parole an enforcement unit to work with district attorneys in counties with five hundred or fewer eligible offenders sentenced to alternative treatment programs and the treatment providers. The unit will be established for the purpose of locating, apprehending and re-arresting offenders who have absconded from or violated terms or conditions of conditional discharge during participation in a treatment alternative program. In counties with more than 500 eligible offenders

participating in substance abuse treatment alternative programs, the D.A. shall apply to the commissioner of DCJS for funds to establish the enforcement unit.

Finally, the bill amends the penal law by adding a new section 220.70--Operating an illegal drug enterprise to increase the penalty for drug dealers who control the street trade. A person guilty of operating an illegal drug enterprise when he knowingly and unlawfully has a substantial proprietary or other authoritative control of an enterprise dedicated to the illegal sale or distribution of drugs could be sentenced as a class C felon.

Effects of present law which this bill would alter

Currently, it is mandatory for a judge to sentence a non-violent second felony addict to incarceration in a state prison cell. The judge has no discretion to decide whether incarceration is an appropriate or effective penalty. Pursuant to this amendment, a judge would have the option of sentencing a second felon with a D or E drug conviction to incarceration in a state prison or residential drug treatment.

Justification

It is futile in the name of public safety and the drug war to use a limited number of expensive jail and prison cells to incar- cerate easily replaceable addicts who sell drugs to support their own habit. The only way to break this cycle is effective treatment. This bill affords the judiciary the flexibility to decide on a defendant by defendant basis whether long periods of incarceration are warranted by low-level drug offenders. To the extent that low-level drug offenders are given other forms of punishment, prison cells will be available to incarcerate violent offenders and major drug operators.

Prior legislative history

A.9847 of 2008

Fiscal implications for state and local governments

The bill appropri- ates $21 million to DCJS in consultation and coordination with DDS and DAAA, the division of parole and the division of probation and correc- tional alternatives to fund treatment slots and the enactment of the bill due to the reduction in the need for capital construction of correctional facilities and the elimination of the operating costs for maintaining these offenders in state correctional facilities.

Effective date

The first day of November next succeeding the date on which it shall have become law; provided that the amendments to subdivi- sion 2 of section 70.06 of the penal law made by section four of this act shall be subject ot the expiration and reversion of such subdivision pursuant to section 74 of chapter 3 of the laws of 1995, as amended, when upon such date the provisions of section five of this act shall take effect.