Interviewer: What options are available better than jail?
Attorney: In New York, luckily, in the last ten years we have made great strides in updating our sentencing on the drug laws. We had what was called the old Rockefeller drug laws where the sentencing was just off the charts and everybody went to jail on these drug cases like they do now for gun cases.
There are Numerous Diversion Programs Available through the Court System
There’s a strategy in place to help people, the thought being that, people who are addicted to drugs are not criminals and they have a habit that needs to be helped. There are a lot of drug programs that are available now through the court system so people who would ordinarily be mandatorily have to be sentenced to prison can be sentenced to certain drug programs or they’re at the jail. In the old days you had to go to jail. It really didn’t help anybody.
Then there are programs, diversion programs that are available for people who are not necessarily mandatory jail-worthy but discretionary. The court system is set up for that and the judges today are a little more lenient, but they recognize that people can be drug addicts and not criminals and will allow them to participate in and get into the drug programs during the case and will allow them to continue after the case as part of even sentencing that they would be in a treatment alternative program.
People Enrolled in Diversion Programs Have an Opportunity to Rehabilitate Themselves
They can get sentenced to non-incarceration, fulfill and finish these programs as part of a sentence, and then of course if they don’t, they can be brought back in front of the court as violating a provision of that sentence that they finish a drug program and can be sentenced to jail later.
It gives a particular person the incentive to help themselves, give them the opportunity to get better, go into rehabilitation, become drug-free, become sober. This way you can get rid of your case at the same time as you’re helping yourself get off of drugs; therefore not coming back into the criminal justice system and actually could be saving your own life.
We’ve come a long way in the last several years into recognizing that this is really what the criminal justice system needs rather than just putting people in jail.
The Process of Probation in New York
Interviewer: Where does probation fit into all that?
Attorney: Probation, if you sit on probation, it’s supervised release, and depending on if it’s a misdemeanor or a felony, a misdemeanor is three years of probation; a felony is five years of probation. Then probation will have the individual assessed, and if it comes out that they believe that the accused individual or the defendant, as we’re referred to, is in need of treatment, treatment is found and the person has to go to this treatment. If they don’t and they don’t do what they’re supposed to do in the treatment program, then probation can bring them back in front of the judge as what’s called a violating of probation.
Then the judge could have various options as to how to punish or not punish or give that person the incentive to get back on track and finish out their drug program or, if worst case scenario can be, they can actually be re-sentenced to jail time.
Violating Terms of Probation May Have Dire Consequences such as being Re-sentenced to Prison
Interviewer: If there’s a drug charge for someone who’s a repeat offender and they were to violate their probation, let’s say they were getting a drug test and something actually came out, what can happen in that case?
Attorney: Again, it can be sentenced to anywhere from extending the probation. I’ve had cases, I’ve seen cases where the judges will direct that the person go into an in-patient drug program and then from there complete an outpatient, go on and have these cases go on for a year or longer and then restore them to probation so the person actually had an extra two or three years of supervised release. Or the judge can actually say, “I’m rescinding your probation, terminating it unfavorably and I’m re-sentencing you to …” and they can put them into jail, whether it’s local or a state prison, depending on what crime it was that they were convicted.