Diverting Drug Addicts and People with Mental Illness from Prison

Aug 22, 2018

Despite a falling crime rate, Virginia continues to spend more than a billion dollars a year on corrections.  A commission appointed by Governor McAulifee considered restoring parole as a means of reducing the prison population but recommended, instead, that judges consider punishments other than prison. 

Charlottesville and Albemarle County have been doing just that, diverting people convicted of possessing or using drugs.

Once a heroin addict, Herb Dickerson says he's drug free and helping others thanks to an alternative sentence for his crimes.

Herb Dickerson spent most of his adult life addicted to drugs.

“I was a heroin user for 30 years and caused a lot of crime," he recalls. "In order to use it everyday, which I had to, I had to have money to purchase it.  I could steal, I could lie, I could manipulate—whatever it took.”

He was in and out of state prison for years – each time costing taxpayers thousands of dollars according to Nina Antony, Senior Assistant to the Commonwealth's Attorney:

"It’s resources from the police department every time a police officer has to be dispatched to deal with an individual engaged in some sort of criminal behavior," she explains.  "It’s an impact in cost on merchants whose items are being stolen or a victim of crime who now has to deal with criminal behavior being directed toward them.  It’s jail staff time and energy in booking individuals, bed space at the jail, court resources."

Locking up non-violent criminals was also a problem at the regional jail according to Charlottesville Judge Robert Downer. "Back in 2001 when I first became the judge of the General District Court, the jail was so horribly overcrowded that the gymnasium was actually used to house inmates, especially on weekends," he says.

And the city’s Public Defender Liz Murtaugh points out that innocent children and spouses suffered when the breadwinner was locked  up. "If people are counting on somebody to be going to work, when they get incarcerated it has a complete ripple effect through the entire family," she explains. "It’s really difficult!  Children seeing their parents get locked up.  It’s a big problem."

So the community decided to offer an alternative called a Drug Court.  Judge Ted Hogshire oversaw the program that began by looking at personal information about a convicted criminal -- his or her record of addiction,  mental health problems, lack of education, lack of job skills and traumatic experiences.

Using those and other details, studies had shown it was possible to predict with considerable certainty whether they posed a risk to public safety or might do well in a local program rather than state prison.  Hogshire heard the case against Herb Dickerson, assessed the risk he posed and explained that he could be held in the local jail, enrolled in an intensive drug treatment program.

"Given your history, you’re going to be out selling drugs, then you need to be out of the community," Hogshire told Dickerson. "But if you think you can get your act together and complete the therapeutic community program, which is going to be very difficult for you given your behavior and your attitudes, I’ll look at it again, but if you wash out of it, get kicked out of it or you withdraw, you’re going down the road.  You’re going to do your time."

Dickerson was willing to try it.  He wanted to avoid more time in state prison, and he’d become an embarrassment to his family.

“I’d been a major embarrassment to my family," he says.  "All of my siblings went to college and had good jobs, and took care of my mother, whereas I was taking from them, and that went on for years.  I mean my mother was the biggest enabler you could have.  Her son never did anything wrong.  It was always someone else’s fault, and I let her believe that.  She passed away in 2000.  As a matter of fact, I went to court that particular morning, and when I got back she was laying on the floor. She had just passed, maybe 15-20 minutes earlier, and I always blamed myself to some degree."

Hoping to redeem himself – to do something positive in his mother’s memory – he committed to the program.

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Virginia is in the midst of an experiment – trying sentences other than state prison to address non-violent crime.  Some offenders have a drug problem and are allowed to enroll in an intensive treatment program.  Others have been diagnosed with serious mental illness and are given a choice – treatment or time behind bars.  But as Sandy Hausman reports, many communities don’t offer these lower- cost, life-saving options.

Alternative sentencing advocates Albie LaFave of the Charlottesville Public Defender's Office, Senior Assistant Commonwealth's Attorney Nina Antony, Judge Robert Downer, Albemarle County Commonwealth's Attorney Robert Tracci and Charlottesville Public Defender Liz Murtaugh

Sixty-five-year-old Herb Dickerson was once addicted to heroin. For most of his adult life he was in and out of prison, but a new program in Charlottesville allowed him to do time in the local jail, taking part in an intensive drug treatment program called as Therapeutic Community.

“That was probably the foremost thing that changed my life, because I started looking at the behaviors and the thinking process that led to the decisions I was making to get in trouble.  It changed the way I thought!”  he explains.

After 19 months, he graduated – got a job at a local restaurant and volunteered at the Haven, a homeless shelter and social service center.  He’s been clean for 17 years and inspires pride in his four children and six grandkids.  Judge Ted Hogshire, who sentenced Dickerson to intensive drug treatment rather than prison, was also pleased with the outcome.

"A light went on in his head when he was going through this program that he had to lead a different life, and he chose to do that," Hogshire recalls. "For the last I would say at least 15 years he’s been a leader in the recovering community here – sponsoring people in NA, helping people through crisis, helping to run the Haven – the population there. I was able to watch it work and be a part of it working, and that was a real delight for me.  It was one of the things I enjoyed most about the job."

Albemarle County and the City of Charlottesville recently launched another program to divert people who are mentally ill from prison to treatment.  Commonwealth’s Attorney Robert Tracci says the first person to qualify clearly needed care and not incarceration.

"He was the veteran who discharged a firearm into his dwelling, and he had called 911 several times.  He wanted help, and by the time emergency services got there, he surrendered to law enforcement and it clearly was a call for help, and it was very emotional when he saw other people there in a uniform he could identified.  It was clear to us immediately that this docket should exist for people like that."

He and Judge Robert Downer add that charges are not dismissed.  Instead, someone with a mental illness will get treatment under court supervision.

"These folks, if they’re going to enter the docket, are going to be making a commitment to come to court twice a month in front of me, and we’re going to have a discussion about what progress they’re making toward the things that have been set up for them as a treatment plan," Tracci says.

"The hope is that once they get into a pattern of taking their medication regularly, seeing people who can help them with their mental illness that that pattern will continue after we’re done with the therapeutic docket, and as a reward their conviction may be reduced from a felony to a misdemeanor.  It may end up being a suspended jail sentence, or it may be a dismissal."

Not only is this a better approach, Tracci says, but it saves taxpayers money. It costs about $30,000 to keep someone in a state prison for one year, and Tracci says people are likely to break the law again when they’re released, unless their underlying problems are solved.

"It’s very disturbing to a citizen who may find somebody under their porch because they’re homeless, and they’re looking for someplace warn to stay.  Putting them in jail is certainly going to stop that," he admits, "but that’s not a very effective punishment, because it’s not dealing with the problem."

For all of these reasons, you might expect alternative sentencing to prove popular statewide, but a recent survey showed that wasn’t so.  UVA Law Professor Brandon Garrett and colleagues surveyed judges and found only 42% of low risk defendants getting supervised probation, drug or mental health treatment.  In some courtrooms the rate was as low as 7%.  One reason – judges didn’t believe in the risk assessment system created by the state.

“There was a sizable minority of judges who hate the idea and said, ‘We don’t consult psychics.  I have a gavel not a crystal ball,'” Garrett recalls. 

A majority of judges did trust the official method of risk assessment, but Garrett says some were unsure of what to do next.

“There’s nothing in these guidelines or recommendations that give judges guidance on what to do if someone is low risk. They’re eligible for alternative sentences, but the judges don’t have information on whether this is someone who would benefit from supervised probation?  Is this someone who really needs treatment in a structured environment like jail?”

And, finally, some judges said they’d like to hand down alternative sentences, but their communities lacked programs for people with drug or mental health problems.  That’s why Garrett is recommending that Virginia give more training to judges and fund more programs to help non-violent, low risk offenders to avoid prison and become more productive members of society.  

Editor's note:  Since we spoke with him, Professor Garrett has taken a new job.  He is now a distinguished professor of law at Duke University.