By Mark David Blum

First, let me say “kudos” to Judge Brunetti for speaking out and making it clear that financial considerations to the taxpayers should not come into play when making decisions about a defendant’s sentence. (See below). From what I read in the newspaper, the plea was that Judges should sentence VOPs to lengthier incarcerative periods to pass the cost onto the State taxpayer. I stand with Judge Brunetti in recognizing that you do not cut county costs by locking people up for longer periods. When a defendant is deserving of ‘State time’, he or she should get ‘State time’. But when the Court determines that ‘State time’ is inappropriate, that finding should not be overruled by Mr. Pirro’s inability to balance his budget. What could be more offensive to basic notions of justice and the 14th Amendment than to lengthen prison sentences to reduce a county’s budget.

Now, as for the meat and potatoes of Mr. Pirro and Judge Tormey’s concerns: I too agree with you both. The county budget is a disaster. One of the biggest hogs at the tax trough is the criminal justice system. The Sheriffs Department, Jamesville, the Justice Center, the District Attorney’s Office, the Probation Department, the Assigned Counsel Program, the Court system, Drug Courts, and the myriad of related agencies and services are among the primary consumers of County tax dollars.

The County should do the same type of analysis as did former City Auditor, Minch Lewis. In doing so, the County would realize that the overwhelming and chief cost to all the County criminal and civil justice agencies is the enforcement of Prohibition. If the County managers were to sit down and isolate the dollars being spent on a failed policy, I am confident millions of dollars could be salvaged and redirected toward more needy and productive programs. Nationally, local police spending represented 31.1% of the Nation's total justice expenditure, and State corrections accounted for the second largest portion, 23.7%." (Gifford, Sidra Lea, US Department of Justice, Bureau of Justice Statistics, Justice Expenditure and Employment in the United States, 1999, Washington, DC: US Department of Justice, February 2002, p. 4).

This idea is not unique to me nor is it the battlecry of the pothead. Back in 1918, New York State was blessed with a four-term governor and one-time presidential candidate named Al Smith. During the era of alcohol prohibition, Governor Smith realized the futility and excessive costs of enforcing this national policy and concluded that New York was not going to participate. The governor refused to enforce the prohibition laws in New York; by not providing State police or State agencies the power to participate. In the end, the federal government did the only prohibition enforcement in New York.

I do not hope to change your attitudes toward drug use and drug abuse. For many people, their minds are made up one way or another. What I feel is necessary is for the County to realize that despite 30 years of warfare against Americans, billions of dollars being spent, millions of people imprisoned, use remains constant. More than 108.25 million Americans aged 12 or over (46% of the US population aged 12 and over) have used an illicit drug at least once in their lifetimes. (Substance Abuse and Mental Health Services Administration, US Department of Health and Human Services, Results from the 2002 National Survey on Drug Use and Health: National Findings, Rockville, MD: Office of Applied Studies, Sept. 2003, p. 199, Table H.1 & p. 200, Table H.2). Also, according to the 2002 National Survey on Drug Use and Health, 35.1 million Americans aged 12 or over (14.9% of the US population aged 12 and over) had used an illicit drug during the previous year. (Substance Abuse and Mental Health Services Administration, US Department of Health and Human Services, Results from the 2002 National Survey on Drug Use and Health: National Findings, Rockville, MD: Office of Applied Studies, Sept. 2003, p. 199, Table H.7 & p. 205).

Prohibition does not work and its social and economic costs are staggering. For example: According to the US Office of National Drug Control Policy, federal spending on the drug war in 2001 totaled $18.095 Billion, rising to $18.822 Billion in 2002 and $19.179 Billion for 2003. (Office of National Drug Control Policy, "National Drug Control Strategy: FY 2003 Budget Summary", Washington, DC: Office of the President, February 2002, Table 2, p. 6). Further, the RAND Corporation study found that additional domestic law enforcement efforts cost 15 times as much as treatment to achieve the same reduction in societal costs. (Rydell, C.P. & Everingham, S.S., Controlling Cocaine, Prepared for the Office of National Drug Control Policy and the United States Army, Santa Monica, CA: Drug Policy Research Center, RAND Corporation, 1994, p. xvi). From what I understand, New York’s last budget cut every single Department’s budget except the Department of Corrections which realized a 3% increase in funding.

Of course, changing our laws is a legislative act required of the State and Federal houses. I have no confidence that either of these two bodies will change the laws; though, hope always springs eternal. There is too much political special interest from police and prison guard unions whose incomes, retirement plans, vacation homes, and children’s education would be jeopardized if there was a change in policy. The pharmaceutical industry has a huge financial investment in maintaining the status quo. Even your income and mine is partially dependent on the continuation of this farce.

Up until recently, I have tried to make my point to end prohibition by discussing the human impact. The concerns I had over the human toll of incarceration, loss of constitutional protections through the courts’ “drug exception” to the 4th Amendment, and the concept of a “war” against Americans never seemed to have an impact. The problem is that people just do not care about human costs. Shifting the analysis to the financial costs of prohibition makes it all the more obvious that something has to be changed or we are going to continue our downward spiral of higher taxes and reduced services.

What I ask you to consider, Judge Tormey, is to go back to Mr. Pirro and recommend an evaluation of the costs of enforcing the drug war here in Onondaga County. Look at the monies being spent in not only the criminal and civil justice systems, but also the financial impact upon medicare, unemployment, social services, welfare, and the rest of the County’s agencies.

No, I do not advocate the use of drugs. Drugs are bad. Do not do drugs. But, as the empirical data reveals, drug use is going to continue in society. People are going to choose to live their lives and for the most part, manage to do so without any negative impact upon society. A drug user is not a drug abuser any more than an alcohol drinker is an alcoholic. The relative percentage of each defeats the argument that all drug users are abusers. While a change in policy may yield a higher percentage of drug abusers (a fact wholly disputed by experts), nevertheless, the costs of treatment are substantially lower than the costs of enforcement. Consider that domestic enforcement costs 4 times as much as treatment for a given amount of user reduction, 7 times as much for consumption reduction, and 15 times as much for societal cost reduction. (Rydell, C.P. & Everingham, S.S., Controlling Cocaine, Prepared for the Office of National Drug Control Policy and the United States Army, Santa Monica, CA: Drug Policy Research Center, RAND Corporation, 1994, p. xvi). According to CASA (National Center on Addiction and Substance Abuse), the cost of proven treatment for inmates, accompanied by education, job training and health care, would average about $6,500 per inmate. For each inmate that becomes a law-abiding, tax-paying citizen, the economic benefit is $68,800. Even if only one in 10 inmates became a law-abiding citizen after this investment, there would still be a net social gain of $3,800. (National Center on Addiction and Substance Abuse at Columbia University, Behind Bars: Substance Abuse and America's Prison Population, New York, NY: National Center on Addiction and Substance Abuse at Columbia University, January 8, 1998, Foreword by Joseph Califano). It has also been shown that treatment decreased welfare use by 10.7% and increased employment by 18.7% after one year, according to the 1996 National Treatment Improvement Evaluation Study. (Center for Substance Abuse and Treatment, National Treatment Improvement Evaluation Study, Washington DC: US Government Printing Office, 1996, p. 11).

What I might recommend to Mr. Pirro is a directive to County government to ‘opt-out’ of prohibition. Stop arresting people for use and possession. Stop throwing people out of their homes and jobs. Stop denying people the benefit of medical attention or job training or welfare because of a drug conviction or positive drug test. Let the federal agencies come in and enforce the drug laws. Call the State Police when a felony drug arrest is made and let the State pay the cost of prosecution and maintenance. Disband the drug task forces. Redirect the monies toward the productive citizens of the County.

No Sir, we cannot change the world single-handedly. Yet, doing what we have been unsuccessfully doing for the past 30 years ... for another 30 years and hoping for a different result is just insane. (Albert Einstein).

I stand ready to help. Just ask.

But hey, don't take my word on it. Trust the experts.

http://www.november.org/dissentingopinions/dissentingopinions.html

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http://www.syracuse.com/news/poststandard/index.ssf?/base/news-16/1085560643184231.xml

Cost of jailing sparks dispute Judge objects to suggestion to avoid having county pay for incarceration.

Wednesday, May 26, 2004

By Jim O'Hara Staff writer

State Supreme Court Justice John Brunetti said he is being pressured by the district supervising judge to put criminals who violate their probation in state prison - rather than the county's correctional facility - to save the county money.

In a memo he sent to 5th Judicial District Administrative Justice James Tormey III, Brunetti criticized what he considers was Tormey's suggestion during an April 20 meeting to place criminals who violate conditions of their probation in a state prison.

Local judges now have the discretion to do one of three things with probation violators: return them to the conditions of their probation; send them to either of the county's two correctional facilities; or send them to a state facility.

Probation and county jail costs are both paid by the county. State prisons are funded by state taxpayers.

Brunetti said he felt his judicial integrity and that of the other three judges who handle felony cases in Onondaga County Court would be compromised by having to consider the financial implications of their sentencing decisions.

"My interpretation of the April 20th meeting is that, at the behest of county budget officials, the Administrative Judge summoned four Superior Court Judges to his office to convey a message from county budget officials that the judges should be sending more people to state prison on probation violations in order to save the county money," Brunetti wrote in his memo to Tormey, which he also released in court during a recent probation violation case.

"My attendance at that meeting, without a subsequent statement of disagreement with the meeting and its message, might create the appearance of impropriety in my handling of VOP cases in the future, so that is the purpose of this memo."

Tormey acknowledged that judges should consider the financial issues of their decisions, but denies pressuring them or suggesting they send probation violators to state prison to save money.

The meeting in his office with Brunetti and County Judges Anthony Aloi, Joseph Fahey and William Walsh was a discussion on how to make the criminal justice system more efficient, he said.

"There was no directive. We had a well-informed discussion of what is going on," he said. "Cost is one factor in the whole system. It's not the overriding factor."

In his letter inviting the judges to the April 20 meeting, Tormey included each judge's sentencing record on felony probation violation cases.

That memo ended by pointing out the judges had occasionally told defendants at sentencing that they would receive state time if they violated the terms of their probation, only to have the judges then impose a sentence to be served inside the county.

"It costs the County of Onondaga to house a prisoner in either the Justice Center or in the Onondaga County Correctional Facility (Jamesville) $102.50 a day and $37,412 a year," Tormey wrote. The cost of housing an inmate at a state facility is about $30,000, according to the state Division of Criminal Justice Services.

He also noted County Executive Nick Pirro had contacted him in March to enlist him onto a committee to discuss increased budget expenses caused by housing prisoners in the local jails. Pirro said he talked in his "State of the County" address earlier this year about the need for everyone involved in local government to find ways to cut costs, including the rising costs of housing prisoners locally while state prison facilities were closing due to falling numbers.

The population in the state prison system has dropped from about 72,000 to about 65,000 during the past few years, allowing state officials to cut back on available cells.

The meeting with Tormey, prosecutors, probation and corrections officials in March was aimed at exploring ways to cut costs, Pirro said, though he stressed there was never any directive to handle all cases the same by imposing state prison sentences.

"We simply were asking that they keep in mind that somebody is paying the bill for all this stuff," Pirro said.

Sending them to state prison would mean longer sentences for criminals who violate their probation. A judge can send a criminal to a county facility for only up to one year.

If a judge opts to send a criminal to a state facility, it would require a sentence of more than a year - up to the maximum of the charge of which they were convicted - and likely in a facility farther away from the criminal's home. It would, therefore, be considered a harsher sentence.

Historically, a judge bases sentencing decisions on input from probation officials, prosecutors and defense lawyers.

"Whether or not you should be working with county budget officials to avoid the hiring of a consultant who might scrutinize the judiciary is not for me to comment upon," Brunetti wrote in his memo to Tormey.

"Among all the factors that a judge considers in re-sentencing after a probation violation, one of them should not be whether or not a statistical survey conducted two years from now will demonstrate that he or she compromised his or her integrity and succumbed to the pressure of the executive branch by sending more probation violators to state prison."

First Chief Assistant District Attorney Rick Trunfio said the prosecutor's office supports sending probation violators to state prison because they have essentially given up their chance at a lighter probation sentence.

Defense lawyer Bonnie Levy, though, said she opposes any policy that erodes the discretion of judges - including having to consider budgetary concerns.

"Our system is supposed to be based on punishing people for the crimes they commit and imposing appropriate punishments and not based on doing what the county wants," she said.

On one side of the paper Brunetti released to lawyers recently was Brunetti's April 23 response to the April 20 meeting with Tormey. On the other side was a copy of Tormey's April 19 memo setting up that meeting.

While he and the other three judges have refused to comment on the matter, Brunetti said court officials and the public should be aware of the matter.

"Having had the opportunity to reflect upon the substance of the meeting and the content of the memo, I felt that my failure to respond might constitute the appearance of impropriety in the discharge of my responsibilities in future probation violation cases," Brunetti's memo read.

(By the way, why havent the remaining County Court Judges issued the same Memorandum? Are they going to go along with Judge Tormey's request?)