Jump to Navigation | Jump to Content
American Bar Association
Legadv0.gif - 800 Bytes
spacer.GIF - 56 Bytes

Letters to the 107th Congress

July 24, 2001

The Honorable Patrick J. Leahy
Committee on the Judiciary
United States Senate
Washington, DC 20510

The Honorable Orrin G. Hatch
Ranking Member
Committee on the Judiciary
United States Senate
Washington, DC 20510

Dear Chairman Leahy and Senator Hatch:

On behalf of the American Bar Association, I write to commend you on the drug treatment and prevention provisions of S.304, the "Drug Abuse Education, Prevention and Treatment Act of 2001." The bill represents significant progress in the shift from an approach based primarily on incarceration and law enforcement to one grounded in the demonstrable benefits of treatment and education. The bill effectively balances offender accountability and public safety on the one hand, and alternatives to incarceration on the other. This is a critical component in the development of a comprehensive approach to addressing the needs of defendants with drug and alcohol problems. However, and although the American Bar Association does not have official policy covering all areas included in the bill, we wish to highlight here our concerns regarding some of the bill's specific provisions.

1. Section 203 of Title II modifies 18 U.S.C. 3565 which currently requires mandatory probation revocation if the defendant possesses illegal controlled substances, possesses a firearm, or refuses to comply with drug testing. Section 203 would add a fourth condition: if a person tests positive for illegal controlled substances three times within a one-year period. While we agree that it is necessary to hold accountable those who fail repeatedly to meet the conditions attached to early release, this provision removes the sentencing judge's discretion to determine most appropriately and effectively how a probation or supervised release violation should be addressed. Mandatory sentencing provisions such as this transfer discretion from judges to prosecutors (and, in this case, to probation officers). A hallmark of the drug court movement is the frequent and direct contact of the defendant with a supervising judge who has the authority to return an individual to prison for failing drug tests. In fact, it is the central role of the judge in ordering treatment and monitoring a defendant's progress that distinguishes the treatment-oriented drug court from other diversion approaches. Moreover, drugs courts, as well as the vast majority of drug treatment programs, recognize, sadly, that addiction is a chronic, relapsing disorder. Judicial discretion to select from a range of sanctions -- based on a defendant's record and personal history -- is critical to an effective drug court program.

2. Title III offers a substantial and significant emphasis on alternatives to incarceration, including prevention and treatment services for juveniles (Section 302, on Juvenile Substance Abuse Courts; Section 303, on school- and community-based Education and Prevention efforts; and Section 306, on Drug Treatment for Juveniles). We believe that when a juvenile offender has been adjudicated within the juvenile justice system, and has been evaluated and found to have alcohol and/or other drug abuse problems, any disposition of the case should include treatment for those problems.

We note that Section 301 specifies funding for Prosecution Drug Treatment Alternative to Prison Programs. While such programs may be an interesting addition to the broad spectrum of extant model diversionary programs, we are concerned that giving prosecutors jurisdiction over a defendant's treatment contradicts the basic premise of the drug court movement -- the court's intervention with drug-involved defendants immediately after arrest, coupled with diversion of eligible defendants to treatment programs in lieu of criminal prosecution. The program specified in Section 301 could undermine the ability of an impartial judge - in consultation with the prosecutor as well as public defenders and treatment providers - to decide compliance and to assess sanctions.

Thank you for considering our concerns. While we believe that the interests of society are served better by allowing judges the flexibility necessary to determine the most effective sanctions in the context of a defendant's background and personal history, we recognize the significance of S. 304 in promoting drug treatment, prevention, and education. We welcome its contribution to addressing our country's drug problems.


Robert D. Evans
Director, Governmental Affairs Office

107th Congress Letters Home

Governmental Affairs Office
740 Fifteenth Street, NW
Washington, DC 20005
ph: 202-662-1760
fx: 202-662-1762

Back to Top