We need treatment instead of jail

During my time at the Office of the Special Narcotics Prosecutor, I prosecuted powerful doctors who illegally sold prescriptions for opioids, lining their pockets at the expense of their patients. During those prosecutions, I spent a lot of time talking to the victims of those crimes — people who struggled with substance use or mental health needs that these doctors exploited. Many of them cycled through our criminal courts, never getting the help they needed, only a short-term jail sentence and a criminal conviction that would make it harder for them to get a job, housing, or any kind of meaningful stability.

The Treatment Not Jail Act, proposed in Albany, can start to change that.

Treatment courts are imperfect solutions to substance use and mental health disorders, which are more effectively treated outside of the criminal system. But in an imperfect world, they help reduce recidivism and lead to better outcomes than traditional prosecutions. Specialists assess the root causes of criminal behaviors and offer resources in response. When people successfully complete a treatment court, prosecutors reduce or dismiss their charges, and they avoid harmful and unnecessary incarceration and supervision.

Current treatment courts are either controlled exclusively by prosecutors or are only for a narrow set of individuals suffering from substance use disorder. As a result, they exclude many people who could benefit from them and create barriers that keep people from succeeding in them. State Sen. Jessica Ramos and Assemblywoman Phara Souffrant Forrest introduced the Treatment Not Jail Act to directly address those concerns. It is a solutions-oriented plan for helping get people out of the criminal justice system rather than simply cycling through it.

First, the Act expands eligibility to people with substance use problems, mental health needs, and intellectual, neurological, or physical disabilities. Those entering diversion would receive treatment instead of incarceration. If they successfully complete treatment, they can resolve their criminal case without a criminal conviction, making it easier to access care. We know treatment-based diversion can be life-changing for people in keeping them out of prison and from committing new crimes, but right now it is being withheld from individuals who can benefit from it simply because they do not fit into the current narrow category of qualifying conditions.

Second, the Act removes a critical barrier: offense restrictions. Presently, necessary treatment is foreclosed from individuals accused of committing certain offenses — often the very people who would likely benefit the most from a treatment court. Removing this restriction will allow judges to offer diversion to more people who could benefit from treatment. In turn, this will make communities safer by providing treatment and stability for those who need it, lowering the risk of future crimes.

Third, the Treatment Not Jail Act eliminates a critical barrier that has served to deter many people in need of treatment from participating — the requirement of a guilty plea. Unfortunately, this requirement categorically excludes noncitizens from participating because any admission of guilt can cause deportation. A plea requirement also exposes an individual to prison terms far longer than they would have received had they not entered treatment at all. Finally, having to plead guilty significantly slows down the admissions process. Operating without a plea allows courts to swiftly intervene when those in need of treatment enter the criminal legal system, which is why New York’s Opioid Courts have adopted this model.

When we default to arrests and punishment, we know we make circumstances worse for people and make our communities less safe. Rikers Island is the city’s largest psychiatric care provider. Half of the people who are sent to Rikers have a mental health condition, which is dramatically worsened by incarceration at the inhumane institution. The large number of deaths are mainly attributable to suicide and overdoses. People are routinely released from Rikers without housing, employment, or any ongoing care. All too frequently, this results in new arrests in the future, and the cycle of institutionalization continues.

We not only fundamentally fail to address the reasons people get entangled with the criminal legal system — we often exacerbate them. Of course, in an ideal world, we would never have to rely on arrests and criminal charges as an entry point to health care. But, until then, the Treatment Not Jail Act would be a significant step forward in ensuring people get the help they need instead of another traumatic experience. In doing so we can help prevent harm before it happens and create a safer, healthier community overall.

Cohen, a defense and civil rights attorney at ZMO Law, is a candidate for Bronx district attorney.