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."