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 defendant.
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.