Judges confront `exercise in futility'

Inpatient wait lists undermine alternative sentencing for addicts


For Jennifer McCready, the break came halfway into a 10-year prison sentence for dealing cocaine, when a judge sent her to a long-term, residential drug treatment program in Crownsville. A year later, the 30-year-old native of eastern Baltimore County is holding down a job and renting her own apartment for the first time in years.

"It worked out awesome for me," she said. "There are a lot more people out there who could do the same if given the chance."

But few are getting to follow in her footsteps. A track that has been set up to empower Maryland judges to use alternative sentencing for addicted offenders is essentially broken.

At a recent legislative hearing, three judges testified, in unusually heated language, that their authority to sentence seriously addicted lawbreakers to long-term treatment has been virtually nullified by waiting lists that run to 18 months, so long that many defendants' jail terms have ended by the time a slot opens up. And in Baltimore County District Court, a public defender argued last week that the state was violating the law by failing to find an inpatient slot for a defendant who was still sitting in jail after being sentenced to treatment three months ago.

It is no secret that the demand for substance abuse treatment exceeds supply in Maryland, a state with relatively high levels of drug abuse, particularly heroin. But the recent protests revealed the shortage's effect on one particular feature of the criminal justice system: judges' ability to sentence people with serious addictions to long-term, residential treatment rather than prison or jail.

`Judges are desperate'

"Judges are desperate for viable alternatives to incarceration. Judges are desperate for accessible, suitable treatment for defendants," Baltimore District Judge Charlotte M. Cooksey wrote to the House panel that held the hearing. But "most judges have come to the conclusion that ordering the [state health] department to obtain treatment is an exercise in futility."

There is growing consensus in Maryland that it makes sense to divert nonviolent offenders with substance abuse problems into treatment rather than jail or prison. Gov. Robert L. Ehrlich Jr. speaks strongly in favor of such diversion, a stance the Republican acknowledges is not shared by many in his own party.

But the resources directed to treatment don't match the belief in it, say lawyers and judges. "We were so pleased to hear [Ehrlich] say that he believes in treatment, not incarceration, but I'm not sure if he's aware that a program in his administration is not working," said Nancy S. Forster, the state public defender.

The shortage is most apparent in one particular route of alternative sentencing, a provision in state law that empowers judges to commit defendants to the state Department of Health and Mental Hygiene for long-term, inpatient treatment, which typically lasts nine months to one year. This provision, which has existed since the 1970s but was strengthened in legislation last year, is used mainly for offenders with serious addictions who have failed in shorter treatment and who in many cases have concurrent mental illnesses.

The law requires the health department to "promptly" find beds for those sentenced under the provision. But the list of people waiting in jail for their slot to open has grown to 140, and those sentenced in recent weeks have been told the wait will last well into 2007. Judges say the list would be even longer had many judges not given up on the provision altogether.

The problem is not hard to explain. Many judges who are open to alternative sentencing for addicts like being able to sentence them to a long-term residential program because such programs have relatively high success rates. Judges also like knowing exactly where the offender will be living while in treatment.

But at $70 a day, residential treatment is more expensive than outpatient care. The state has purchased only 141 slots in private facilities for those sentenced under the provision, at a cost of $4 million of its $133 million treatment budget. Because of the high cost, the vast majority of nonviolent drug offenders who are diverted into treatment are simply given probation with the condition that they attend outpatient programs.

The state is in the process of seeking new contracts with treatment providers that would create about 20 more slots for addicts sentenced under the long-term provision. Judges say the added slots, which have been held up by legal challenges to the bidding process, still will not meet the demand.

`Take a broader view'

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