The debate about how
drug possession, saleand addiction should be treated by the criminal justice system has swirled for over
a hundred years. A few generations ago, cocaine, heroin and morphine were
not illegal. Beginning about 1914, the government slowly clamped down
on drug possession until 1970, when President Nixon is credited with launching
the modern "War on Drugs." New Yorkers lived under the most
severe sentencing regulations, known at the "Rockefeller Drug Laws"
from 1973, until very recently. Harsh criticism from both the Left and
the Right came in two essential forms:
- It was unfair to make sentences for selling or possessing drugs equal to
Murder and more severe than crimes like Robbery, Burglary and Rape
- It made no economic sense to lock an addict up for 20 years for making
relatively low-level drug sales, while society paid the bill for their
stay in jail
In 2009, a major change was made to the New York State drug laws. The law,
Section 216 of the Criminal Procedure Law, created a program known as
the Judicial Diversion Program. The goal was to provide people who committed
crimes because they were addicted to drugs the chance to change for the
better instead of locking them up.
Am I eligible for Judicial Diversion?
Defendants are eligible for Judicial Diversion if they have been indicted
for a non-violent felony or drug charge and they have not been convicted
of a violent felony or serious offense listed in the law, are not currently
accused of a violent felony or serious offense, and have not been convicted
of a Class A Felony.
If a defendant is eligible the judge determines whether he or she is allowed
to enter the program. The court must make a determination that:
- The defendant is addicted to drugs or alcohol
- The addiction led to the illegal conduct the defendant is charged with
- Society would benefit from treatment instead of incarceration
Any defendant with an appropriate charge can ask to be evaluated for addiction.
In some cases the prosecution and defendant will agree the defendant is
an appropriate candidate for Judicial Diversion. In contested cases, the
law calls for a hearing, where each side can present evidence about whether
treatment instead of other sentences would be fair for this particular
Can I get Judicial Diversion in a Rochester court?
The Judicial Diversion Program has had major effects in certain communities
and relatively little in others. Several Judges in Monroe County and the
New York City area have bought into the benefit of treatment instead of
incarceration. In more rural locations judges continue to fear the label
of not being "tough on crime" and rarely, if ever, find that
a defendant should be sent to the program.
In places where there is a reasonable chance a defendant being included
into judicial diversion, there are two important changes. First, if they
are taken into the program they get treatment instead of jail ‑ their
current situation can be greatly improved as well as future prospects.
Second, the threat of potential inclusion in the Judicial Diversion Program
pressures prosecutors to make better plea bargain offers ‑ they know that
if a judge grants the application for Judicial Diversion the get "nothing,"
so they often times make a very liberal offer, very quickly, in order
to get "something." If you are curious about whether your case
may be appropriate for Judicial Diversion please
contact our Rocchester juvenile criminal defense lawyer to discuss your case.