, Supreme Court Judge Jo Ann Ferdinand recently issued a written decision in People v. Cefarello, 32 Misc.3d 1204(A) regarding Judicial Diversion. Since there are so few written decisions on the topic, we felt it was worth some discussion. Kings County
The case involved a defendant with 2 prior drug felony convictions for which he had previously served time in state prison. He sought participation in Judicial Diversion for his most recent arrest for CPCS 3rd and Endangering the Welfare of Child. The District Attorney would not consent to Judicial Diversion, but did consent to the defendant participating in the District Attorney-run DTAP program which required placement in a long-term residential treatment program. The defendant rejected this offer, arguing that participation in Judicial Diversion with outpatient treatment was clinically more appropriate.
The good news is that the Court did not simply agree to the program consented to by the District Attorney. The Judge understood that it was ultimately her decision to determine whether or not the defendant was appropriate for Judicial Diversion, and if so, what the treatment modality should be. Additionally, she saw the value in conducting a hearing, during which she took testimony from the defendant’s substance abuse treatment expert and considered information obtained from research studies about the effectiveness of various treatment programs. This aspect of the decision may prove helpful to attorneys who find themselves in jurisdictions where judges do not hold Judicial Diversion hearings or are inclined to allow the District Attorney’s Office to dictate whether or not an eligible defendant will be accepted to the Judicial Diversion program, and if so, the modality of treatment to be offered.
While we credit the
Cefarello Court for holding a hearing and recognizing her ultimate authority to determine whether or not a defendant is eligible for Judicial Diversion, regardless of the prosecution’s position, it is unfortunate that she rejected the defense expert’s recommendation that the defendant be placed in an outpatient treatment program. The Judge instead ordered that the defendant be placed in a residential treatment program, citing two reasons: 1) her concern for public safety; and 2) research about the effectiveness of different treatment modalities. As for the public safety concern, it is true that taking the defendant off the street via residential treatment may secure public safety in the short term, but judges should be persuaded to look at what would be most effective in the long term. Removing the defendant from his community, where there are more supports in place, could produce negative results for the defendant once discharged from residential treatment. This is especially true for defendants who risk losing employment or stable housing if placed in residential treatment. This is why treatment providers do not recommend residential treatment in all cases, but instead reserve this recommendation only for those who have severe substance abuse problem.
As for the Court’s second reason – the research – the Judge cited two studies included in the Drug Abuse Treatment Outcome Studies (DATOS), which is a project of the National Institute on Drug Abuse (NIDA). A summary of these studies can be found at www.datos.org. Unfortunately, we were only able to find free access to one of the studies (Simpson et al) in its entirety. Please contact the Center for Community Alternatives for information regarding the second study (Hubbard et al). The
Cefarello Court summarized the studies as standing for the proposition that residential treatment programs of at least three months duration are particularly cost effective for use with criminal justice clients. But neither study supports this general proposition in all cases. One of the studies, (by Hubbard et al.) points out that treatment durations of 3 months or more were associated with more positive outcomes, regardless of whether the treatment was residential or outpatient. The second (by Simpson et al.), points out that residential treatment is more effective for individuals whose substance abuse dependence was identified as severe. However, this study goes on to state that, “Patients with moderate levels of problem severity can be treated with comparable effectiveness in either [long term residential] or outpatient drug-free (ODF) treatment if they stay for a minimum of 90 days.”
It is possible that the Cefarello decision may be improperly relied upon by other courts as supporting the proposition that residential treatment is always more effective, particularly by courts that mistakenly look to residential treatment as a means of getting a defendant “off the streets” rather than as a tool for dealing with a severe substance abuse problem. Effective advocates can draw upon the treatment literature to explain what propositions are supported by the research, and which are not, to help Judicial Diversion judges make clinically appropriate decisions about the modality of treatment for defendants who could benefit from treatment rather than punishment.