July 6, 2013

Enforcement dispute jeopardizes future of county drug court

After the probation department withdrew its full-time officer, the district attorney who founded the concept calls for the program's end.

By Scott Dolan sdolan@pressherald.com
Staff Writer

PORTLAND - For more than a dozen years, the Cumberland County Drug Court program has provided an alternative to incarceration, helping convicted felons overcome drug addiction and re-establish themselves as productive members of society.

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Judge Jeffrey Moskowitz listens to a client during a drug court session recently in Cumberland County Unified Criminal Court. For most of the existence of the program, a dedicated probation officer would attend the drug court sessions, but after a change of policy by state officials, that is no longer the case.

Gabe Souza/Staff Photographer

Now, a clash between prosecutors and the state's probation officers -- in what has been described as "philosophical differences of opinion" over how aggressively drug court violations should be enforced -- threatens to undermine the program's very existence.

Even District Attorney Stephanie Anderson, who founded the drug court concept in 1998, is calling for the program to end.

"If it can't be done right, it shouldn't be done at all," said Anderson, who wants stricter enforcement of violations.

Rep. Mark Dion, D-Portland, House chairman of the Legislature's Criminal Justice and Public Safety Committee, says it's now time for the two sides to resolve the conflict. He said he plans to call key officials this week to discuss the impasse.

Dion, who only learned of the year-old dispute during a conversation with a Portland Press Herald reporter last week, said it's not productive "for everyone to hold their breath and wait for someone to bend."

The nature of the dispute stems from the program's resources and its effectiveness.

Drug court in Cumberland County, an intensive program for addicts who have already served part of their sentence and are now on probation, relies for its success on effectively supervising felons. Drug court participants have the threat of the remainder of their jail sentences hanging over their heads if they get into trouble again.

Until late last year, a probation officer was assigned to the drug court and would consistently file motions to revoke probation against clients for violations such as failing a drug test, or not reporting an address change. Clients were routinely sent back to jail for such infractions, court records show.

But basing their decision on the idea that incarceration is ineffective for nonviolent offenders, officials at the state's probation department shifted policy in October 2012.

"The more you put people in jail, the worse they get," said Lisa Nash, the regional correctional administrator in southern Maine. "The problem is, it doesn't change any behavior. Incarcerating people does not reduce recidivism."

The new policy was so badly received by the other members of the drug court team in Portland that the probation department withdrew its officer dedicated to the program, Nash said.

"We stepped away from drug court due to some philosophical differences of opinion," she said.

Anderson said that without the threat of incarceration, the program simply doesn't work.

"I think drug court has lost its teeth," she said. "The three important priorities of drug court are supervision, treatment and relationship to the court, and there has to be an understanding that supervision actually means something."

Although Anderson was instrumental in the founding of drug court, she said that without a probation officer and the active threat of punishment for infractions, the program should be abolished.

"Everybody in drug court has been convicted and has been sentenced," she said. "Their liberty is conditional. It is conditional on their compliance with the conditions of probation and drug court. If the conditions aren't enforced, then drug court, it's a sham."

While drug court is run by the state's judicial branch, it has no authority over the probation department, which answers to the Department of Corrections, the agency that runs the state's adult prisons and juvenile correctional facilities.

Judicial branch officials have declined to take any public position on the dispute or the future of the Cumberland County program.

"We have no comment on that issue," said Mary Ann Lynch, spokeswoman for the judicial branch.

Cynthia Brann, associate commissioner for adult community corrections at the Department of Corrections, said in a statement that while no high-level discussion took place within the department on the Cumberland County Drug Court, she supported Nash's decision to withdraw the probation officer.

"Lisa Nash and the probation officer had many discussions with the drug court team. After not making any progress and after consulting with me, it was determined that our limited resources were better needed elsewhere," Brann said. "I believe we are still providing information to the drug court team, but we are no longer a full-time presence."

HOW IT STARTED

There are five drug courts in Maine, but only Cumberland County has been affected in the dispute. The probation department continues to assign an officer to drug courts in York, Hancock, Androscoggin and Washington counties. The programs in each county are primarily funded by the Maine Office of Substance Abuse and Treatment Services, with costs totaling $2,588,609 in fiscal year 2013, according to John Martins, a spokesman for the Department of Health and Human Services.

Anderson founded the state's pilot drug court program in 1998 with a $288,000 federal grant and additional county money. After the pilot program launched, lawmakers approved the program in 2000 and the judicial branch began replicating it elsewhere in the state.

From its inception to the end of 2012, 1,435 men and women participated in drug courts statewide, with a graduation rate of 57 percent in the most recent evaluation.

The judicial branch, in a 2012 report, found that drug court graduates are 50 percent less likely to be arrested in the first year after they graduate than a felon sentenced in traditional court.

The probation department began advocating against incarcerating drug court clients for some probation violations even before its policy change. Nash said there were discussions with Department of Corrections Commissioner Joseph Ponte about research by the National Institute of Corrections and other entities that show incarceration for lower-risk offenders can be counterproductive.

Nash said the Corrections Department is receptive to discussions with other officers in the program, which includes a judge, a prosecutor, a defense attorney, a representative from Maine Pretrial Services and a representative from Catholic Charities, which provides drug treatment for the addicts.

"Our change in philosophy is to put less people in," she said. "The commissioner has asked us to look at intermediate sanctions and alternatives."

Under the new policy, probation devotes most of its attention to more dangerous offenders such as high-risk sex offenders, murderers and rapists, rather than shoplifters, Nash said.

If a client commits a violation, probation officers must rank the violation as low, medium or high and issue a corresponding sanction unless they get permission to deviate. They must also get permission to file a motion to revoke probation and send a client to prison, even for moderate- or high-severity violations.

Violating curfew, for example, is now ranked a low-severity violation, punishable by sanctions ranging from a verbal reprimand to 10 hours of community service. Changing residence without approval is a medium-level violation. Refusing a home visit is a high-severity violation.

"Up until October, probation officers could do whatever they wanted. We want to be fair," Nash said. "The goal is to get at what's driving the criminal activity. Is it because of substance abuse? Is it because of lack of education?"

Nash said years ago, she would have jailed someone for a probation violation for five to 30 days to "teach them a lesson."

"That turned out to be just long enough to lose everything they had," Nash said. Even during that short period in jail, the client could lose his job and home, leaving him more likely to return to crime, she said.

Jailing someone for relapsing while fighting a drug addiction has the same consequences, she said.

"Substance abuse is a disease, and we expect relapses," Nash said.

But Anderson said drug court has lost credibility with clients because they know infractions won't be punished severely.

The defense attorney assigned to the drug court team, Portland lawyer Kristine Hanly, said the policy change has hurt the program.

"If the clients don't feel like they are being held accountable, they lose incentive to avail themselves of the great resources we're providing," she said.

Hanly said the absence of a probation officer can be too much of a temptation.

"I don't want my clients to get in trouble. I'm never happy when they get arrested or are sent back to jail for violations. However, it needs to be a carrot-and-stick approach," Hanly said. "As long as that's there, they can stay more focused on what needs to be done for recovery."

HOW IT WORKS

There are about 30 addicts in Cumberland County's drug court program at any given time. Some graduate, but those who fail end up back in jail.

Drug court convenes every Friday with Judge Jeffrey Moskowitz, who meets in private with the drug court team. Until last year, the group included probation officer Mike Lyon.

The judge reviews how the clients are progressing, and in the courtroom, asks them about their treatment and their outside lives.

The first few months in drug court is an intense process. Clients are required to meet daily appointments and attend classes, in addition to basic probation requirements. They have daily treatment sessions and focus on establishing a stable place to live.

As they progress through drug court, clients then begin to focus on developing skills to find jobs, establish healthy personal relationships, balance budgets and further their education.

Throughout the program, they are required to call every day to see if they must report for a drug screening. They are also required to check in with a probation officer, usually once a week but sometimes more often.

The Department of Corrections does not track the number of times the probation department filed motions to revoke probation and has no available records of how the department's practices have shifted year over year.

In response to a Freedom of Access Act request filed by the Portland Press Herald/Maine Sunday Telegram in May seeking probation data for recent years, the Department of Corrections said it is not required under the law "to create records that do not otherwise exist."

"We don't compile that data. Under the Freedom of Access Act, if we don't compile it, we are not obligated to provide it," said Scott Fish, the department's spokesman. "It's not compiled. It's paper files in manila folders."

A Press Herald reporter reviewed case files in Cumberland County of every drug court client who has been in the program for a year or more.

Some of the files contain hundreds of pages, and some clients have multiple criminal cases. The records, some of them handwritten, show that in the last year, the number of motions filed by probation officers finding probation violations has fallen sharply.

Drug court clients are currently assigned to other probation officers who have no active role in drug court and whose time is often taken up with other criminal cases. Some of those officers continue to file probation violations against the clients, but the records for most of the current ones have no new entries since Lyon's departure.

Nash said the probation department withdrew the officer because the drug court team continued to push back against the policy.

"We told the drug court that we were more than happy to help, that we would help in any way we can and that we support them, but there is a difference in the way we are doing business," Nash said.

Dion said drug court was created because traditional criminal justice methods didn't work for addicts. He served as Cumberland County sheriff for 12 years before becoming a legislator. He ran the county jail, where he saw a revolving door of repeat offenders with substance abuse problems.

"Addiction isn't getting any better," he said. "If we need to change our game or step it up, we need to do that."

Dion said the drug court team needs to remember that sanctions in the program aren't supposed to mirror sanctions in a traditional court setting.

"Probation is supposed to be the eyes and ears. They are supposed to provide the supervision so the addict has some boundary for their behavior," Dion said. "Drug court held out the promise that they could make the compliance more compulsory."

Without a probation officer, no other member of the Cumberland County team has the power of arrest.

The judge frequently takes matters into his own hands, ordering court marshals to take clients into custody during the regular Friday court sessions and imposing sanctions he chooses himself.

Several current drug court clients approached for this story declined to comment, citing concerns their remarks would be held against them. Moskowitz did not respond to a request to be interviewed.

The poster child for the program's early success is Linda Jalbert, who was 36 when she was first admitted to drug court in Cumberland County.

She didn't do well initially. She relapsed, was jailed, returned to drug court and relapsed again.

"I just couldn't stay clean," said Jalbert, who is now 50 and lives in Washington, D.C.

She was ordered into a residential treatment program.

"I would never, unless they had taken me into that residential treatment center in handcuffs in the back of a cruiser, I would never have gone," she said. "Did I need to go to jail for four years? No. Did I need to go to jail for two years? No. I knew I had played my last card. I knew that if I didn't go through that program I wouldn't have done it."

Jalbert described drug court as "intensive."

"I had counseling three times a week. Then I had probation. My probation officer did house checks. Most of them don't," she said.

She credits her probation officer, Allen Wright, now a regional correctional manager for southern Maine.

"He was probably the best thing that happened to me, even if at the time I didn't think so," she said.

Jalbert graduated from drug court in 2000 and went on to the University of Southern Maine, receiving a degree in political science with a minor in economics. She was the first person in her family to graduate from college.

She went on to work first as an intern in the office of U.S. Sen. Susan Collins, then worked for four years on the senator's staff. Her son now works for Collins in the same office where she once worked.

"If I had gone to prison, what happened with my life wouldn't have happened. Two years or four years in prison wouldn't have done me any good," Jalbert said. "I don't think I would have made it."

Jalbert recently received a rare full pardon by Gov. Paul LePage. 

Scott Dolan can be contacted at 791-6304 or at:

sdolan@pressherald.com

 

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Today's poll: Drug courts

Do you think so-called drug courts are a good idea?

Yes

No

View Results