Alternatives to Mass Incarceration: Why I Practice Law

I became an attorney due to a strong desire to practice criminal law. I found the subject matter to be intellectually stimulating at a young age and I quickly realized that the stakes were often tremendously high when someone is charged with a criminal offense. People charged with crimes are typically convicted of some offense and it is common for an individual to have liberties taken away or restricted because of a conviction. One of the most important liberties that can be lost is one’s freedom. In other words, being locked up in a cage (i.e. incarcerated) is a big deal and I wanted to play a role in ensuring the criminal justice system functions correctly. After working as a prosecutor for two years right out of law school, I decided that my role was best suited for defending the rights of clients. 

This article will discuss the issue of mass incarceration in the United States and examine alternatives that have been implemented via the development of problem-solving courts in Nebraska. The issues addressed in this article will highlight why I practice law: to help people charged with crimes with their problems in my capacity as an attorney and have a positive impact on my community by ensuring that my clients’ rights are protected.   

Criminal Law and Public Policy

For decades, American politicians have thought that being “tough on crime” is the same thing as being smart about how to deal with crime. Throughout my own life and professional career, I have met many individuals hold that hold the same stance. This is perhaps best illustrated by the mass incarceration of individuals in the United States. The statistics speak for themselves. According to the American Civil Liberties Union, the United States makes up close to five percent of the global population but has more than twenty percent of the world’s prison population. Notably, the prison population in the United States has increased by five hundred percent since 1970. For reference, the natural rate of incarceration for countries comparable to the United States tends to stay around 100 prisoners per 100,000 people; the U.S. rate was 500 prisoners per 100,000 residents, or about 1.6 million prisoners in 2010. In 2013, the rate rose to 725 prisoners per 100,000 residents.

This dramatic rise in incarceration over the last fifty plus years has largely been attributed to the modern-day “War on Drugs” which began under President Richard Nixon (Frontline). At a press conference in 1971, President Nixon named drug abuse as “public enemy number one in the United States.” Public policies enacted in the 1960s through the 1990s led to stricter sentencing laws, more enforcement, and more imprisonment. The federal inmate population was 24,640 in 1980; by 2013 the federal inmate population grew to 219,298. According to the Bureau of Prisons, 46.3% of the federal inmate population was incarcerated for a drug offense in October 2017. These prohibitionist drug policies were intended to reduce crime by keeping people behind bars, or deterring them from crime through the possibility of lengthy prison terms. Furthermore, I quickly learned as an attorney that prison has also became a means to treat mental health issues and drug abuse. The never-ending growth in the number of drug offenses over the past fifty years has shown incarceration does little to prevent or stop illicit drug use in the American public.

While the prohibitionist paradigm has dominated the drug policy arena for the last century, some significant efforts aimed at reforming the laws within the United States have been successful. Most notably, these efforts have included lessening federal sentencing laws for drug offenders and the legalization of marijuana at the state level for medical and recreational purposes. Although these methods have received the most media attention, they are not necessarily the most significant developments in the drug policy arena. Another notable response to the mass incarceration of drug offenders has been the development of “drug courts” across the United States.

History of Drug Courts

The drug court movement emerged as a response to the war on drugs. Instead of challenging the drug laws, these courts operate within the current legislative framework but attempt to channel offenders away from prison and into treatment. Rather than targeting the scope or application of drug statutes, drug courts work at the level of court process and procedure to re-institutionalize the goals of diversion and rehabilitation. 

Drug courts are a relatively new development in the law. The first drug court in the United States was established in 1989. The concept of a drug court was not popular within the legal community at the time. By 2000 there were more than eight hundred drug courts started or in the planning and implementation stages. By 2004, there were 1,621 operational drug treatment courts in the United States. All fifty states have developed and implemented drug courts. In order to understand the dramatic change in the popularity of drug courts, one must first know how a drug court typically works. 

How Drug Courts Typically Work 

 A lack of uniform characteristics shared by all the drug courts complicates comprehensive analysis of drug court practice and procedure. In practice there is no standard drug court, rather there are an immense number of local variations on the basic model. Further, there several different types of drug courts. These include Adult Drug Court, Veteran’s Treatment Court, DWI Court, and Juvenile Drug Court to name a few. For the purposes of this article, Adult Drug Court will serve as the representative model. Even though there is a great deal of variation among drug courts, there are several characteristics that can be attributed to drug courts generally. 

First of all, once defendants qualify for drug court, they must choose whether to participate in drug court or to proceed through the traditional adversarial process. If defendants choose to participate in the drug court program, many drug court programs require them to enter a guilty plea as a prerequisite to entering treatment. Programs requiring such a pre-treatment guilty plea are called "post-adjudicative drug treatment programs." Other courts allow defendants to begin treatment without pleading guilty or entering the criminal process. These programs are called "diversion programs."

Eligibility Criteria 

 Drug courts use eligibility criteria to identify potential participants in the drug court program. These criteria generally require that the defendant be an addict who is either a nonviolent offender or an offender who poses no security risk to the community. Drug courts typically have an extensive list of additional requirements that must be met as well. In other words, everyone charged with a drug offense is not eligible for a drug court program. When I worked as an Assistant Public Defender in Nebraska, I served as a member of the drug court panel in my jurisdiction. Some of the notable requirements for eligibility included that the defendant be charged with a felony drug offense and that they do not exercise their right to a preliminary hearing in County Court. There was a multitude of other criteria as well that is common with drug courts across the state. 

Non-Adversarial Procedure 

 Unlike the traditional court system, drug courts are characterized by non-adversarial procedure. Drug court procedure embodies a non-adversarial partnership among the criminal justice, correctional, and treatment systems. This partnership works together to find care for defendants and to ensure that they remain in treatment. The procedure is designed to maintain the courts’ continuing jurisdiction over offenders by delaying final disposition of cases, enabling judges to maintain frequent ongoing contact with defendants. Thus, the change in court procedure is designed to ensure defendants receive treatment for their substance abuse issues. 

Change in Roles 

The roles of the various courtroom actors change in a drug court proceeding. The drug court procedures change the roles of judge, prosecutor, and defense counsel, each of whom participates as a part of a “treatment team”. In drug court, the judge retains his authority to set the terms of the treatment and also assumes the role of regulating it. The court, rather than the treatment center, becomes the focal point of the treatment process. The prosecutor, defender and defendant are required to adopt non-traditional roles. They form, along with the judge, a treatment team dedicated to the rehabilitation of the drug-addicted defendant.

The drug court judge takes a direct and interventionist role in supervising the rehabilitation process. In drug court, the judge’s primary role shifts from the determination of guilt to the provision of therapeutic aid. Instead of playing the role of neutral fact-finder, the judge actively directs the proceedings, tracks the progress of participants, and administers a system of rewards and sanctions. The judge’s goal is, “to develop a flexible, individuate, responsive interaction with each offender, directed at curing the offender of his or her addiction.” Thus, the role of a drug court judge is fundamentally different than the role of a judge in a traditional criminal proceeding. 

The role of the defense attorney is minimized in drug court proceedings. Under the treatment team model employed in a typical drug court, the defendant’s most direct relationships are not with his or her counsel but are instead with the judge and the treatment officer. The defender must modify or mute his traditional role, “take a step back, and not intervene actively between the judge and the participant… to allow that relationship to develop and do its work.” The role of the defense attorney is far more critical during the initial court proceedings before the defendant is accepted into drug court. 

Whether or Not to Pursue Drug Court 

The drug offender’s defense attorney must ensure that the defendant makes an informed decision when deciding whether to pursue a drug court program over the traditional punishment. It is important to never lose sight of the fact that drug courts leverage criminal sanctions in order to coerce individuals with substance abuse problems into rehabilitative programs. In other words, drug offenders may pursue treatment merely because it is more appealing than prison. With this in mind, it becomes easier to understand why entering a drug court program is not necessarily the best decision for every drug offender. For some, entering a drug court program is merely setting oneself up for failure in which they will ultimately be kicked out of the drug court program, convicted of the original criminal offense and ultimately sentenced to a period of incarceration. The strict rules associated with drug court programs create a reality in which a particular offender may be better off taking the traditional punishment rather than participating in an intrusive drug court program that can last for years. Thus, it is critical that the defense attorney ensures their client makes an informed decision about whether to pursue drug court after being charged with a drug offense. I have personally known individuals that remained on a drug court for multiple years and ultimately served time in the state penitentiary because they were ultimately being kicked out of drug court. 

Treatment Program 

Drug courts engage in a practice of invasive behavior modification as a therapeutic alternative to incarceration. Drug courts require offenders to attend a designated treatment program. The treatment program is comprised of several components such as random drug sampling, participation in individual and group counseling sessions, and regular appearances before the drug court judge. Other requirements may include community service, educational sessions, and job training sessions intended to help drug offenders adapt to a law-abiding lifestyle.

Drug courts are typically structured with several phases of diminishing intensity that the participant must pass in order to graduate. Ultimately, the participant, “must live drug and crime free for a significant period of time, participate in treatment, and reestablish a productive and contributing lifestyle before the judge allows the defendant to graduate.” Although defendants are expected to live drug-free and to comply with program requirements, relapse is anticipated. Drug courts handle such relapses and noncompliant behavior by imposing graduated sanctions. Sanctions may include an increase in the frequency of drug testing, more frequent meetings with the court, or brief periods of incarceration in the county jail. A defendant is typically not terminated unless the frequency or severity of the noncompliance necessitates such a drastic response. Drug Court duration can range from 12 to 18 months or longer. Timeframes vary and are dependent upon each individual’s level of participation and needs. Some offenders even take a few years to complete a drug court program. The “hands on” treatment approach used by the drug court is a stark contrast to the traditional method of referring out drug offenders to third party treatment providers. 

Conclusion 

 As a criminal defense attorney, one of my most important responsibilities is to ensure that the State does not violate the rights’ of my clients. Furthermore, I work hard to ensure that my clients charged with criminal offenses receive the best result for their individual criminal matter. For some individuals, this means pursuing a drug court program in order to receive help they need for a substance abuse problem with the hope that the client will successfully complete the drug court program and have their criminal matter dismissed. However, drug courts typically have strict rules and it is important that a client makes an educated decision on whether to pursue that path if it is available in their jurisdiction. Notably, not all counties in Nebraska have drug courts.   

 In my time practicing criminal law, I have observed that the vast majority of individuals charged with a criminal offense are not bad people. Individuals charged with a criminal offense are usually regular people who may have made some mistake or a series of mistakes in some cases. Perhaps most importantly, I have learned that just because a prosecutor has charged an individual with a crime does not mean the individual is guilty of the crime. Believe it or not, prosecutors are not perfect and they make mistakes too. My role is to ensure that the State is doing their job correctly and to correct mistakes by defending my clients in my capacity as a defense attorney.