Testimony to the Committee on the Judiciary, Council of the District of Columbia

Good afternoon. I am Bill Piper, Director of the DC Campaign for Treatment. I'm also Director of National Affairs for the Drug Policy Alliance, the nation's largest drug policy reform organization. I have been a DC resident and voter for more than ten years. I want to think Chairman Mendelson and other members of the Judiciary Committee for allowing me to testify today.

The DC Campaign for Treatment is a coalition of treatment providers, criminal justice reform groups and civil rights groups that support increasing access to treatment in the District of Columbia. It is impossible to discuss improving the conditions of DC jails, reducing the jail population, and saving money without talking about how the city deals with people with substance abuse problems. I want to talk first abut the need to keep many non-violent drug offenders out of jail. Then I want to talk about improving how we treat people in jail.

The DC Campaign for Treatment was formed in 2002 to draft and pass a treatment-instead-of-incarceration ballot measure in DC. That initiative, Measure 62 on the 2002 general election ballot, passed with 78% of the vote. Unfortunately, Mayor Williams subsequently sued the campaign and the initiative was overturned in court. Now, the Campaign is hoping to work with council members to pass comprehensive treatment-instead-of-incarceration legislation.

I wanted to testify after the Deputy Mayor for Public Safety and Justice for three reasons. For starters, we think it is important that council members take the Mayor to task for overturning the will of the people. Secondly, I wanted to hear what the Deputy Mayor was going to say. Mayor Williams overturned the initiative at a time when the city had significant fiscal problems. It is our hope that he is willing to support treatment now that the city is doing better financially. Finally, as I will explain in a few minutes the Office of the Deputy Mayor for Public Safety and Justice oversees federal grants that could be used to pay for programs diverting non-violent offenders to drug treatment.

Measure 62 was modeled after California's successful treatment-instead-of-incarceration initiative, Proposition 36, which is diverting 30,000 people a year into drug treatment. Since California voters enacted Prop. 36 in 2000, the state has saved close to $1.5 billion in prison, health care, foster care and other expenses. Other states that have recently enacted good legislation diverting non-violent offenders to drug treatment include Arizona, Kansas, Hawaii, Maryland, and Texas.

The need to expand treatment options in DC is clear. A 2003 report by the Mayor's Interagency Task Force on Substance Abuse Prevention, Treatment and Control found that approximately 60,000 DC residents - nearly 1 in 10 - are addicted to drugs or alcohol. Nearly 40 percent of all emergency room visits in the District involve patients under the influence of drugs or alcohol. 85 percent of foster care placements are connected with substance abuse. The total social and economic costs of drug and alcohol abuse in the District could exceed $1.2 billion a year or $2,100 per resident.

The District will never be able to deal with crime until it deals with drug addiction. The DC Pretrial Services Agency (PSA) Strategic Plan for 2000-2005 notes that during the first quarter of 1999 alone, 69 percent of arrestees tested positive for cocaine, marijuana, opiates, methamphetamine or PCP at the time of their arrest. A startling 100 percent of defendants arrested for burglary tested positive for illegal drugs. Over 85 percent of defendants arrested for larceny or theft tested positive. A more recent report by the White House Office of National Drug Control Policy found that 65 percent of men and 61 percent of women arrested in DC tested positive for illegal drug use.

The District will also not be able to deal with its growing jail and prison population and the damage it is causing to families and communities until it establishes a comprehensive treatment-instead-of-incarceration program. A 2002 technical assistance report for the city, conducted by the Justice Policy Institute, found that a full 33.4 percent of those sent to prison in DC between 1993 and 1998 were convicted of drug offenses. The 2000 Metropolitan Police Department Annual Report (the most recent report that I'm aware of) found that 5,706 people were arrested in DC for possession or use of an illegal drug in 2000 (this constituted 12 percent of all arrests). The 2002 technical assistance report also found that approximately 387 people are sentenced each year for trying to escape custody or violating the District's Bail Reform Act. Many of these offenders flee because they fear failing a drug test which will result in them being incarcerated.  The report estimated that more than 1,000 DC offenders violate their parole or probation every year. These violations include failing a drug test, which often land them in jail.

The 2002 report is revealing:

The experience of those profiled speaks to key gaps in DC's system of services and gaps in the treatment network for offenders and returning ex-offenders. Their drug abuse treatment needs set the context for the dilemma facing the corrections systems: the recycling of low level offenders through our prisons, jails, and halfway houses for continuing drug use, as reflected by the failure of conditions for parole. Some inmates return to prison and jail multiple times as a result of testing positive for drug use. Many of these people have lost years of their lives in prison and jail, and have remained in far more restrictive settings than their crimes might warrant, because of their drug use.

DC's current drug treatment system fails drug addicts and their loved ones in numerous ways. For starters, people have to wait too long to get access to drug treatment, especially if they lack health insurance. While they are waiting for treatment they are at risk of contracting AIDS or Hepatitis, dying from a drug overdose, and getting arrested.

There are many deficiencies in DC's current approach to people arrested for drug-related crimes. Measure 62 sought to correct seven of them. I'll touch on each of them briefly.

1) Under current law offenders are only eligible for diversion to drug treatment if they test positive for drugs. Yet, with the exception of marijuana most drugs leave your system within several days. This means all but the most hard-core drug users will test negative and not be eligible for treatment. It is a common - but unstated - policy of some defense attorneys to encourage people arrested for drug possession to use drugs before they are drug tested so that they test positive for drugs, thus making them eligible for drug treatment.  Measure 62 would have fixed this eligibility problem by allowing anyone that was arrested for drug possession or could otherwise be shown to have a drug problem to be diverted to drug treatment.
2) Existing law only allows pre-trial diversion which means that people that test positive for drugs while on parole or probation cannot be sent to drug treatment instead of prison (unless, in the case of probation, the judge goes through the trouble of re-sentencing a violator, which is unlikely). Measure 62 would have made it clear that failing a drug test while on parole or probation makes one eligible for drug treatment. This would close the door that sends otherwise good probationers to jail or prison.
3) Current law makes anyone that has ever been convicted of a violent felony ineligible for diversion to treatment for life.  Thus, someone that committed a violent offense 10 years ago who is arrested for using drugs cannot be diverted to treatment even if it is in the best interest of the offender and the community. Measure 62 would have only excluded people convicted of a violent felony within the last 5 years.
4) Unlike existing DC policy, Measure 62 would have ensured that any non-violent offender that is arrested for simple possession or use of an illegal drug (and no other offenses) is automatically eligible for diversion to treatment if it is their first or second offense. This reduces racial disparities and other prejudices in the criminal justice system and ensures that every eligible drug offender receives treatment.
5) Current law generally excludes people arrested for felonies from being diverted to drug courts. Two exceptions are those arrested for intent to distribute and unarmed distribution of drugs. Measure 62, as written, would not have applied to people that sell drugs, but it would have allowed judges to divert people that have committed other felonies to drug treatment, provided it is a non-violent offense and the court finds that diversion would not jeopardize public safety. (Drug sellers could still be eligible for diversion through the existing drug courts).
6) Both existing law and Measure 62 allow courts to sanction offenders for violating conditions of their release or treatment program. Measure 62, however, would have given judges greater authority to sanction offenders for treatment violations. But, while existing law allows courts to use incarceration as a sanction, Measure 62 reserves jail as a last resort. If the court ultimately determines that an offender is unamendable to treatment (or has committed a major offense) the offender could be removed completely from the program and sentenced to incarceration.
7) Measure 62 would have bridged the gap between the needs of the offender, the needs of the treatment provider serving them, and the needs of the criminal justice system by creating an Office of the Ombudsman within the Department of Health.

Enacting a comprehensive treatment-instead-of-incarceration program that eliminates many of the deficiencies in the District's criminal justice system would not be without cost, but it would be cheaper than you probably think. The District's Office of Research and Analysis estimated that Measure 62 would have cost about $1.5 million a year to operate. That estimate was based on an expected eligible population of 525 offenders a year, with an average treatment cost of $3,100 per an offender. This expense would be offset by a decrease in jail and prison, health care, foster care, and other expenses. A California study found that every dollar invested in alcohol and drug treatment saved taxpayers over seven dollars, due to reductions in crime and health care costs. In fact, California's treatment-instead-of-incarceration initiative (Proposition 36) is saving the state hundreds of millions of dollars a year after treatment expenditures.

The question of how to finance a good treatment-instead-of-incarceration program is not easy to answer. It could be paid for by either the District of Columbia or the federal government. On the one hand, it is clearly in the city's interest to implement a comprehensive treatment-instead-of-incarceration program. On the other hand so much of the city's criminal justice expenses are paid for by the federal government that a large part of the savings from diverting people to treatment would go to the federal government.

While the DC Campaign for Treatment believes that $1.5 million a year is a bargain to reduce drug addiction and save lives, we stand ready to help the DC government lobby Congress for federal funding. In particular, we encourage council members and the Mayor to look into the many federal grant programs that could pay for the program, such as the Byrne Justice Assistance Grant program and the Access to Recovery program.  The Office of the Deputy Mayor for Public Safety and Justice controls DC's share of Byrne grants. To my knowledge, the District has yet to tap into the federal Access to Recovery program, which provides drug treatment vouchers to people with substance abuse problems.  Some states are giving these vouchers to people arrested for low-level drug offenses as part of diversion to treatment programs. Other states are giving the vouchers to people coming out jail or prison as part of a package of re-entry services.

Measure 62 would also have ensured that drug addicts on methadone, buprenorphine, or other narcotics replacements continued to have access to their medicine while incarcerated. Uninterrupted narcotics replacement therapy is essential to keeping opiate addicts off drugs. It is also essential to reducing the number of people that die each year from drug overdoses. Many overdoses occur after a period of abstinence (self-imposed abstinence, drug treatment, replacement therapy, prison or jail, etc). Making methadone and other anti-addiction drugs available in jail is common practice in Canada and Western Europe. It is beginning to become standard in the United States too, in cities like Baltimore, New York, and Seattle.

In addition to allowing the use of methadone and other narcotics replacements in jail, there are basic harm reduction measures the city could institute that would reduce drug overdoses and keep people alive long enough for them to seek treatment. First responders, law enforcement officers, and jail officials should all be trained to deal quickly and effectively with drug overdoses. Naloxone and other short-acting opiate antagonists should be widely available, both inside and outside of jail. Since so many people arrested in DC have a history of drug use, everyone coming out of jail should be provided with information educating them on how to prevent drug overdoses. People coming out of jail should also be provided with information on how to avoid contracting and spreading AIDS and Hepatitis, including information on safe sex, safe injection, and safe tattooing, as well as contact information for area needle exchange programs.

The criminal justice system is often the only contact many drug offenders have with the government. It is crucial that law enforcement officers, jail officials and other criminal justice workers be trained to save lives and educated on the best ways to refer drug offenders to private and public health services. I was moved reading Councilmember Patterson's opening statement from hearings in 2003 on the Jail Improvement Act. One sentence from her statement says it all, "What we are doing today at the DC Jail is, I believe, inhumane and dangerous". The DC Campaign for Treatment and Drug Policy Alliance agrees. The city has a good opportunity to improve the lives of thousands, but is not doing so.

Finally, I want to speak briefly about another diversion program you should consider. I am very intrigued with an idea being put forward by the new Director of the District of Columbia's Department of Youth Rehabilitation Services, Vinny Schiraldi.  He has suggested diverting certain youths arrested for selling drugs into an entrepreneurial program that moves them out of drug dealing into legitimate businesses. The Drug Policy Alliance's San Francisco Office worked closely with the San Francisco Board of Supervisors and District Attorney's Office to implement a similar program in San Francisco, including helping them secure funding for it. That program, called "Street to Work", has become a national model. I encourage council members to work with Mr. Schiraldi on developing such a program here.

Thank you for your time.