Thursday, February 16, 2012

Sale of Drugs Should Not Result in Automatic Exclusion from Judicial Diversion

            It is beyond argument that a significant percentage of defendants arrested for drug sales are also drug users.  To the extent that they either have a history of alcohol or substance abuse or dependence they should, pursuant to Article 216, be afforded the opportunity to be evaluated and considered for treatment through Judicial Diversion.  Unfortunately, some judges across the state routinely deny evaluation and treatment to people charged with or suspected of the sale of drugs.  An example of this unauthorized use of an ad hoc judicial “rule” was highlighted in a December 23, 2011 article published in the entitled “Drug Suspect Rejected for Diversion Program”.  The defendant, Joshua Meadows, was charged with possession of more than half an ounce of cocaine.  In an attempt to get his client drug treatment through Judicial Diversion, defense counsel explained that the defendant would, “buy and sell on a daily basis to support his habit.  It’s a tragic scenario, but it’s been real life for my client since the age of 12.”  The Assistant District Attorney, seeking to block drug treatment through Judicial Diversion argued that Mr. Meadows had sold drugs to undercover police several times prior to his arrest on the possession charge and had been unsuccessful in three previous efforts at drug treatment.  Judge Sara Sheldon Farkas denied treatment, concluding that “The judicial diversion program is meant for addicts, not dealers…” 

            This exclusion, based upon an illusory dealer/addict dichotomization, not uncommon among the gatekeepers of Judicial Diversion and drug courts, ignores two simple facts.  First, when the legislature enacted Judicial Diversion, it provided that individuals charged with a sale or possession with intent to sell would be eligible for treatment, including at least 9 specific drug offenses involving either a sale or intent to sell for which a defendant could be charged and be considered an “eligible defendant” for Judicial Diversion purposes.  Second, this exclusion ignores both the underlying purpose of the statute that has shifted away from punishment and towards treatment in order “[t]o significantly reduce drug-related crime by addressing substance abuse that often lies at the core of criminal behavior” and the legislature’s recognition, embodied in the statute, that “[e]xpanding the number of nonviolent drug offenders that can be court ordered to drug abuse treatment will help break the cycle of drug use and crime and make our streets, homes and communities safer” (see N.Y. Sponsors Memorandum, 2009 S.B. 2855/A.B. 6085).  If treatment for drug abuse and dependence will indeed make us safer, why would we not want to provide treatment to those who sell drugs because they suffer from drug dependence or abuse – and thereby eliminate their need to engage in such criminal conduct?

Providing treatment through Judicial Diversion for individuals who sell drugs but also have a history of substance abuse or dependence is sound policy.  First, doing so is consistent with the underlying statutory purpose and the legislative reasoning behind the Judicial Diversion Program. The legislation expanded the scope of non-incarcerative sentences for non-violent drug offenses, designing “a more lenient, more therapeutic, judicial response to all but the most serious drug crimes.”  People v. Danton, et al., 27 Misc.3d 638, 644 (Sup. Ct., N.Y. Co. 2010).  Second, the statute clearly indicates that defendants charged with the sale of drugs as a class B, C, D or E felony are eligible.  Third, if the individual has a history of drug abuse or dependence, the need and purpose for treatment is the same whether one possess drugs for use or for sale,  The dichotomy  between users and users who sell drugs to support their habit is a distinction without a difference.  Fourth, public safety is enhanced by providing treatment for drug abuse or dependence regardless of the nature of the drug offense – possession merely for use or possession for use and sale. 

Some critics of drug reform have argued that Judicial Diversion allows people who are “major dealers” to escape punishment. However, the statute itself resolves this argument by excluding such “big time” drug dealers from eligibility for Judicial Diversion.  See CPL § 216.00 (1) (excluding from Judicial Diversion eligibility anyone charged with possession of a large quantity of drugs as a Class A-I or A-I drug offense or anyone charged with the newly created offense of “Operating as a Major Trafficker”).

            Judicial Diversion is initiated by a defendant’s request for an alcohol and substance abuse evaluation (CPL § 216.05(1)).  Unfortunately, many eligible defendants charged with sales offenses encounter judges who flatly refuse to order the evaluation.  In these cases, counsel should point out that ordering the evaluation does not commit the judge to make an offer of Judicial Diversion to the defendant.  The evaluation simply provides the court with information necessary to make a well informed decision under CPL § 216.05(3)(b), including whether there is in fact a need for treatment.  In addition, the hearing that follows the evaluation gives the parties the opportunity to properly address the question of whether the defendant is appropriate for Judicial Diversion. 

Across New York State some judges have created their own unwritten rule barring anyone charged with the sale of drugs from even being considered for Judicial Diversion.  Such unwritten rules serve as the basis to summarily refuse a request for an evaluation with responses such as “this defendant has a ‘distribution problem,’ not a ‘use problem.’”  Judges should, however, consider the fact that most users of illegal drugs will at some point sell drugs, since selling drugs is often a consequence of using drugs.[1]   As an addiction grows, selling drugs helps finance larger purchases for personal use.  Some sellers actually receive drugs for themselves as payment for their services.[2]  It should come as no surprise that defendants arrested for selling drugs are almost as likely to be under the influence of drugs at the time of their arrest as those arrested for the possession of drugs.[3]  The conclusion is inescapable that many people selling drugs are also users who could benefit from the treatment offered through Judicial Diversion. 

            Defense counsel and treatment providers who confront the dichotomizing of “seller and user” on a daily basis, should be persistent and vigilant in pressing the eligibility issue.  Several themes should repeatedly be advanced: 1) public safety is increased by treating the drug dependence and history of abuse of all defendants, whether they are a user or a user/seller; 2) the human cost of drug abuse and dependence can effectively be reduced by treatment;  3) “the policy of incarceration and punishment of non-violent drug users ha[s] failed;”[4]  and 4) the cost of incarceration far outweighs the cost of treatment and is more effective in reducing recidivism.

            Eventually your persistent and well-grounded arguments will bear fruit, and we all will benefit from a more effective implementation of the 2009 Drug Law Reforms.

[1] Avelardo Valdez and Stephen J. Sifaneck. 2004.“Getting High and Getting By”: Dimensions of Drug Selling Behaviors Among American Mexican Gang Members in South Texas.
[2] Hunt, Dana E. 1990. “Drugs and Consensual Crimes: Drug Dealing and Prostitution” Crime and Justice: An Annual Review of Research, vol. 13: Drugs and Crime.
[3] Christopher J. Mumola. 1977. Bureau of Justice Statistics Special report: Substance Abuse and treatment, state and Federal Prisoners, 1977.
[4]  People v. Jordan, 29 Misc.3d 619 (Westchester Co. Ct. 2010).


  1. Andy Correia- Wayne County Public Defender2/16/12, 2:21 PM

    This is right on, and it's happening all over the state. Judges who unilaterally prevent drug addicted street level dealers from entering Diversion are doing their communities a great disservice. A reasonable decision in such a case simply cannot be made without ordering an evaluation. A flat policy keeping those charged with sales out of Diversion is indefensible.

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