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Back to list of Dissenting
Opinions of Judges
 November
18, 2004 - The New York Times
Op-Ed: Rehab Justice
By Donald P. Lay, senior judge for the United States Court
of Appeals for the Eighth Circuit.
Our federal justice system has a great deal to learn from
our state court systems. Today, nearly every state has a "drug
court" to deal with nonviolent drug offenders through a
mix of treatment and sanctions, all as part of an effort to reduce
recidivism, substance abuse and costs. Statistics show that drug
courts are a success, yet Congress persists in mandating ever
stiffer sentences for federal offenders who need treatment more
than punishment.
While drug court programs vary from state to state, most try
to address the cause of an offender's behavior: addiction. All
offer community-based treatment in lieu of prison. Offenders
who choose to participate in a drug court and complete their
treatment typically can have the charges against them dropped,
or can plead guilty without being sentenced to prison.
In 2003, there were more than 1,500 drug courts either in
operation or in the planning stages. Drug court graduates have
substantially lower rates of criminal recidivism than offenders
who are imprisoned. In New York, for example, the re-arrest rate
among 18,000 drug court graduates was 13 percent, compared with
47 percent for the same type of drug offenders who served prison
time without treatment. Drug courts also cost less than incarceration
and have high retention and completion rates. Even Congress recognizes
their worth; since 1994, it has authorized the attorney general
to make grants to states, state and local courts, and local and
tribal governments to establish drug courts.
Years ago, Chief Judge James L. Oakes of the United States
Court of Appeals for the Second Circuit and I, as chief judge
of the Eighth Circuit, sponsored a sentencing institute. At that
institute, I asked the chairman of the United States Sentencing
Commission why an 18-year-old who had received some drugs by
mail for a friend should face a mandatory minimum sentence of
10 years, under the commission's federal sentencing guidelines
set by the commission. The chairman responded that because this
teenager would be in prison during his 20's, the age when the
likelihood of recidivism is greatest, the sentence would cut
down on re-arrests. The head of the Bureau of Prisons whispered
to me, "Doesn't he realize when that young man gets out
of prison, he will be nothing more than a hardened criminal?"
Mandatory minimum sentences, enacted by Congress, have contributed
to the rising costs of imprisonment and crowding in federal prisons.
In federal drug cases, defendants could face a minimum of 5 to
10 years in prison, while a similar offense in some state courts
would allow a court, depending on the circumstances, to place
the defendant on probation. Justice Anthony Kennedy and several
other scholars, judges, professors and law reviews have openly
criticized the use of mandatory minimum sentences in federal
criminal cases. To make matters worse, a bill has been proposed
in the Senate that would set a mandatory sentence of 10 years
for a first drug conviction and mandatory life imprisonment for
a second.
According to the Federal Bureau of Prisons' Web site (as of
Sept. 4, 2004), the total federal inmate population is 180,318.
About 54 percent of that population are drug felons. The total
cost for each prisoner was $61 per day; for the entire population,
almost $11 million a day or $4 billion a year. It is predicted
that by 2010 there will be more than 216,000 individuals serving
time in federal prisons.
Unlike the states, the federal criminal justice system offers
no alternatives for nonviolent offenders charged with drug-related
crimes. In the federal system, it is almost a certainty that
a convicted drug offender will be incarcerated rather than going
through a community-based treatment program. It is little wonder
then that the federal prison system will continue to be overburdened.
Given the success of drug courts in the states, the federal government
should study how to modify its sentencing to incorporate elements
of the drug court model and to assess the effectiveness of community-based
alternatives to imprisonment for nonviolent federal drug felons.
Congress would need to authorize the mechanics of federal
drug courts. One suggestion would be that magistrate judges could
preside over the drug court, while federal probation officers
could oversee the offenders' attendance at drug treatment programs
as well as obtain employment and housing for them. A good start
would be to develop sentencing policies that take drug dependency
into account, and that place as much emphasis on preventing crime
as on punishing misconduct. Sentences that combine treatment,
monitoring and the threat of imprisonment hold the promise of
long-term solutions to crime. They should be more readily available
in the federal system.
The high cost of this incarceration policy falls on taxpayers.
However, beyond all of this is the fact that the real damage
is incurred by the individuals who must spend a large portion
of their life in prison. The damage to young prisoners cannot
be measured in dollars and cents.
Cases are now pending before the Supreme Court that will affect
sentences in all federal cases. This presents an opportunity
for the executive and legislative branches to bring sanity to
federal drug sentencing. Congress has nothing to lose and everything
to gain by passing legislation to carry out a program for federal
drug courts.
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