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QUITTING HARD HABITS: EFFORTS TO EXPAND

AND IMPROVE ALTERNATIVES TO INCARCERATION FOR DRUG-INVOLVED OFFENDERS

HEARING

BEFORE THE

SUBCOMMITTEE ON DOMESTIC POLICY

OF THE

COMMITTEE ON OVERSIGHT

AND GOVERNMENT REFORM

HOUSE OF REPRESENTATIVES

ONE HUNDRED ELEVENTH CONGRESS

SECOND SESSION

JULY 22, 2010

Serial No. 111–143

Printed for the use of the Committee on Oversight and Government Reform

(

Available via the World Wide Web: http://www.fdsys.gov

http://www.oversight.house.gov

(II)

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM

EDOLPHUS TOWNS, New York, Chairman

PAUL E. KANJORSKI, Pennsylvania

CAROLYN B. MALONEY, New York

ELIJAH E. CUMMINGS, Maryland

DENNIS J. KUCINICH, Ohio

JOHN F. TIERNEY, Massachusetts

WM. LACY CLAY, Missouri

DIANE E. WATSON, California

STEPHEN F. LYNCH, Massachusetts

JIM COOPER, Tennessee

GERALD E. CONNOLLY, Virginia

MIKE QUIGLEY, Illinois

MARCY KAPTUR, Ohio

ELEANOR HOLMES NORTON, District of

Columbia

PATRICK J. KENNEDY, Rhode Island

DANNY K. DAVIS, Illinois

CHRIS VAN HOLLEN, Maryland

HENRY CUELLAR, Texas

PAUL W. HODES, New Hampshire

CHRISTOPHER S. MURPHY, Connecticut

PETER WELCH, Vermont

BILL FOSTER, Illinois

JACKIE SPEIER, California

STEVE DRIEHAUS, Ohio

JUDY CHU, California

DARRELL E. ISSA, California

DAN BURTON, Indiana

JOHN L. MICA, Florida

JOHN J. DUNCAN, JR., Tennessee

MICHAEL R. TURNER, Ohio

LYNN A. WESTMORELAND, Georgia

PATRICK T. MCHENRY, North Carolina

BRIAN P. BILBRAY, California

JIM JORDAN, Ohio

JEFF FLAKE, Arizona

JEFF FORTENBERRY, Nebraska

JASON CHAFFETZ, Utah

AARON SCHOCK, Illinois

BLAINE LUETKEMEYER, Missouri

ANH ‘‘JOSEPH’’ CAO, Louisiana

BILL SHUSTER, Pennsylvania

RON STROMAN, Staff Director

MICHAEL MCCARTHY, Deputy Staff Director

CARLA HULTBERG, Chief Clerk

LARRY BRADY, Minority Staff Director

SUBCOMMITTEE ON DOMESTIC POLICY

DENNIS J. KUCINICH, Ohio, Chairman

ELIJAH E. CUMMINGS, Maryland

JOHN F. TIERNEY, Massachusetts

DIANE E. WATSON, California

JIM COOPER, Tennessee

PATRICK J. KENNEDY, Rhode Island

PETER WELCH, Vermont

BILL FOSTER, Illinois

MARCY KAPTUR, Ohio

JIM JORDAN, Ohio

DAN BURTON, Indiana

MICHAEL R. TURNER, Ohio

JEFF FORTENBERRY, Nebraska

AARON SCHOCK, Illinois

——— ———

JARON R. BOURKE, Staff Director

(III)

C O N T E N T S

Page

Hearing held on July 22, 2010 ............................................................................... 1

Statement of:

Burch, James H., II, Acting Director, Bureau of Justice Assistance, Office

of Justice Programs, U.S. Department of Justice; and Benjamin B.

Tucker, Deputy Director for State, Local and Tribal Affairs, Office

of National Drug Control Policy .................................................................. 10

Burch, James H., II ................................................................................... 10

Tucker, Benjamin B. ................................................................................. 21

Hawken, Angela, Ph.D., associate professor of economics and policy analysis, School of Public Policy; John K. Roman, senior researcher, Justice

Policy Center, Urban Institute; Douglas B. Marlowe, J.D., Ph.D., chief

of science, law and policy, National Association of Drug Court Professionals; Daniel N. Abrahamson, director of legal affairs, Drug Policy

Alliance; Melody M. Heaps, president emeritus, TASC, Inc.; and Harold

A. Pollack, Helen Ross professor, University of Chicago School of Social

Science Administration, faculty chair of the Center for Health Administration Studies .............................................................................................. 52

Abrahamson, Daniel N. ............................................................................ 108

Hawken, Angela ........................................................................................ 52

Heaps, Melody M. ...................................................................................... 119

Marlowe, Douglas B. ................................................................................. 88

Pollack, Harold A. ..................................................................................... 131

Roman, John K. ......................................................................................... 65

Letters, statements, etc., submitted for the record by:

Abrahamson, Daniel N., director of legal affairs, Drug Policy Alliance,

prepared statement of ................................................................................... 110

Burch, James H., II, Acting Director, Bureau of Justice Assistance, Office

of Justice Programs, U.S. Department of Justice, prepared statement

of ..................................................................................................................... 13

Hawken, Angela, Ph.D., associate professor of economics and policy analysis, School of Public Policy, prepared statement of .................................. 56

Heaps, Melody M., president emeritus, TASC, Inc., prepared statement

of ..................................................................................................................... 122

Kucinich, Hon. Dennis J., a Representative in Congress from the State

of Ohio, prepared statement of .................................................................... 4

Marlowe, Douglas B., J.D., Ph.D., chief of science, law and policy, National Association of Drug Court Professionals, prepared statement of ... 90

Pollack, Harold A., Helen Ross professor, University of Chicago School

of Social Science Administration, faculty chair of the Center for Health

Administration Studies, prepared statement of ......................................... 134

Roman, John K., senior researcher, Justice Policy Center, Urban Institute, prepared statement of .......................................................................... 67

Tucker, Benjamin B., Deputy Director for State, Local and Tribal Affairs,

Office of National Drug Control Policy, prepared statement of ................ 23

(1)

QUITTING HARD HABITS: EFFORTS TO EXPAND AND IMPROVE ALTERNATIVES TO INCARCERATION FOR DRUG-INVOLVED OFFENDERS

THURSDAY, JULY 22, 2010

HOUSE OF REPRESENTATIVES,

SUBCOMMITTEE ON DOMESTIC POLICY,

COMMITTEE ON OVERSIGHT AND GOVERNMENT REFORM,

Washington, DC.

The subcommittee met, pursuant to notice, at 2 p.m., in room

2154, Rayburn House Office Building, Hon. Dennis J. Kucinich

(chairman of the subcommittee) presiding.

Present: Representatives Kucinich, Cummings, Watson, and Jordan.

Also present: Representative Davis.

Staff present: Jaron R. Bourke, staff director; Claire Coleman

and Charles Honig, counsels; Charisma Williams, staff assistant;

Marc Johnson, assistant clerk, full committee; Ron Stroman, staff

director, full committee; and Adam Hodge, deputy press secretary,

full committee.

Mr. KUCINICH. The meeting will come to order. This is the Subcommittee on Domestic Policy of the Committee on Oversight and

Government Reform.

I want to thank all of you for your patience. The House had a

series of votes which unfortunately came at the very beginning of

the time that we wanted to commence this hearing. But your patience is much appreciated, and we will proceed now with the hearing.

I want to thank the ranking member, Mr. Jordan of Ohio, for his

presence, as well as Ms. Watson from California.

Today’s hearing is the fifth held by the Domestic Policy Subcommittee in this Congress on drug policy issues. This will be the

first held by Congress to examine in comparative perspective different alternatives to incarceration that are being administered

through the criminal justice system.

Without objection, the Chair and ranking minority member will

have 5 minutes to make opening statements, followed by opening

statements of 3 minutes by any other Member who seeks recognition.

And we are also joined by Mr. Davis of Illinois. Thank you for

being here, sir.

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Without objection, Members and witnesses may have 5 legislative days to submit a written statement or extraneous materials for

the record.

The number of individuals incarcerated for drug offenses has increased every year since 1980, despite recent efforts, including drug

courts and State-level initiatives like Proposition 36 in California

that are explicitly designed to minimize jail and prison time for

non-violent drug-related offenders and provide treatment for drugrelated offenders. Overall, the correctional population has increased

by nearly 21⁄2 million, or 57 percent from 1990–2005. And the inflation-adjusted expenditures on corrections have more than doubled

over the past 20 years.

Furthermore, the need for drug treatment among offenders still

far outstrips supply. These trends have continued, even as overall

illegal drug use, especially abuse of cocaine and heroin, has declined, and the drug-related offender population has aged, which

should naturally lead to a decline in the need for incarceration

given older offenders’ decreased propensity for violence.

Why, and what can be done to reverse these trends? Certainly

efforts at sentencing reform and improving how prisoners re-enter

society, while not the focus of this hearing, are essential to break

the cycle of drug abuse and crime and over-reliance on incarceration. Today’s hearing has a slightly different focus and is the first

congressional hearing to consider in a comparative perspective the

various efforts within the criminal justice system itself to avoid incarceration and to provide drug treatment.

Drug treatment court is an important part of the picture. I have

consistently supported the growth of drug and other problem-solving courts. And this subcommittee held a field hearing in Representative Cummings’ district in Baltimore to witness how these

courts are evolving to provide coordinated wrap-around services.

Despite efforts to bring drug courts to scale, however, they only enroll about 100,000 clients per year out of an estimated 11⁄2 million

yearly arrestees with drug-related issues.

While this disparity is partly a result of limited funding, it is

largely the result of eligibility restrictions that at times exclude offenders with histories of criminal violence, severe drug addiction

problems and co-occurring disorders. While witnesses today will express optimism that drug courts can be expanded to include some

of these offenders, and some of this expansion is justified by outcome studies and would be cost-effective.

It is clear that some aspects of their operation will have to

change to reflect the different populations they serve. It is also

clear that expanding the reach of drug courts is only part of the

solution.

We will learn about a new approach demonstrated by Hawaii’s

HOPE program. HOPE attempts to coerce abstinence through frequent drug testing and the provision of swift and certain sanctions

to probationers who continue to test positive. In contrast to drug

courts, HOPE initially does not provide drug treatment and reserves a judicially imposed treatment plan for participants who fail

to become abstinent in the face of graduated minor sanctions.

There has been some initial positive data on HOPE and there is

a possibility it can help target drug treatment, which is costly, to

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those who truly need it. Nevertheless, there are many important

questions that need to be answered and the Hawaii experience

needs to be attempted on the mainland before we can judge what

role HOPE should play.

Finally, we look at the legacy of Proposition 36, which was

passed by an initiative of California voters in 2000, and allows first

or second time drug possession arrestees with no record of violent

offenses to plead guilty to drug possession in return for diversion

to a drug treatment program. While it has been criticized for lacking sufficient mechanisms to enforce the requirement that participants complete drug treatment, Proposition 36 has enrolled over

50,000 participants a year, amassing a wealth of relevant data to

the proper design of diversionary programs.

The common feature of these programs and approaches that we

focus on today is that they are alternatives to incarceration administered within the criminal justice system. We should be wary of

thinking of one program, approach or set of approaches, no matter

how well conceived, is the answer to over-incarceration. It is possible that programs can cross-hybridize or that different approaches are best understood as complementary and thus should be

targeted to different drug-involved offending populations.

Congress must ensure that the Department of Justice and the

Office of National Drug Control Policy, as policy experts, researchers and grantmakers, constantly measure the effectiveness of these

programs, collect evidence about best practices, and, consistent

with our notions of a just and safe society, help States make informed judgments.

Thank you very much. The Chair recognizes Mr. Jordan of Ohio.

[The prepared statement of Hon. Dennis J. Kucinich follows:]

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Mr. JORDAN. Thank you, Mr. Chairman. I will be brief.

I want to thank you for holding this hearing to create continuing

disincentives for drug-involved offenders. And incarceration has

been a primary and an effective solution. Today, 1 out of 100 Americans has spent time behind bars, sometimes disproportionately repeat offenders.

Solutions to preventing incarceration are critical. Treatment in

the type of local community-based care given to those with substance abuse and mental health disorders are necessary to fostering permanent, positive behavior changes. Treatment, along with

training and skill development and stopping the flow of drugs

across the border are the only ways to ensure we no longer have

drug abusers.

We must bear in mind that solutions which work for one person

do not always work for another. Today I look forward to learning

about the various tried-and-true solutions from our witnesses. It is

my opinion, I just want to emphasize this, that legalizing drugs is

certainly not the solution to preventing incarceration. It is not the

solution to dealing with our drug problems. The harm to communities and families as a result of drug use has nothing to do with

our current laws. We must work to prevent, control and mitigate

addiction as we continue to fight this overall destructive behavior.

With that, I will yield back, and I look forward to our witnesses.

Mr. KUCINICH. I thank the gentleman.

The Chair recognizes Ms. Watson of California.

Ms. WATSON. Thank you so much, Mr. Chairman. I want to

thank you for holding this exceedingly important hearing on the

front-end alternatives to incarceration for drug-involved offenders

and abusers of illegal drugs.

This hearing occurs at an opportune moment. Each year, our

prison population grows, creating a heavy human cost for our communities and an increasingly large burden on the already strained

budgets of our States. In California at this time, we have a proposition on the ballot that attempts to legalize marijuana, which I am

very opposed to. But they are looking for a way to receive more revenues and they think they can do it this way. There is nothing to

resolve the problem of the addictive use.

So as we analyze the Nation’s approach to reducing the availability and abuse of drugs, it is important to emphasize both the individual and group costs of addiction. Domestically, the disease of addiction has devastating consequences for individuals, families, communities and our judicial and health care systems. While on an

international scale, as stated by Secretary of State Clinton while

in Mexico, our insatiable demand for illegal drugs fuels the drug

trade.

It is imperative that we define and demolish the barriers to

treatment for the millions of Americans struggling to regain themselves from the depths of addiction. By providing treatment and incentives to get clean, we can begin to reduce the rates of incarceration and recidivism for those who are abusing or addicted to

drugs.

In 2000, voters from my State of California recognized the need

for alternatives to incarceration by some non-violent drug offenders

and passed Proposition 36 by popular referendum. While there are

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clear limitations to this program, I am eager to hear from today’s

witnesses about Proposition 36 and other non-conventional methods of reducing incarceration levels while making our communities

stronger and safer.

I would like to thank all the witnesses today for their testimony,

and you, Mr. Chairman, for your leadership and your dedication to

this issue. I yield back the remainder of my time.

Mr. KUCINICH. I thank the gentlelady. And the Chair recognizes

Mr. Davis of Illinois.

Mr. DAVIS. Thank you very much, Mr. Chairman. Let me first of

all thank you for giving me the opportunity to sit in on this hearing, although I am not a member of this subcommittee. One of the

big tasks that I had to make in the last reorganization was to not

be on this committee. [Laughter.]

And I am always delighted to get a chance to come by.

Mr. KUCINICH. I would like to say, if I may, as chairman, that

I ask unanimous consent to permit Mr. Davis, who is not a member

of this subcommittee, to participate in this subcommittee. Without

objection you may proceed.

Mr. DAVIS. Thank you very much, again, Mr. Chairman. I want

to thank you for tackling the big issues, the heavy ones, the tough

ones. You have a long history of doing that, and so I wouldn’t expect you to do anything else.

I want to thank all of the witnesses for coming. Because given

the fact that our country, this country has the largest number of

individuals incarcerated of any nation on the face of the earth in

proportion to population, as well as in actual numbers. So trying

to find alternatives to incarceration, I think, is just one of the

major things that we ought to be doing.

I appreciate all of the witnesses who are here, especially one,

Melody Heaps, with whom I have worked for any number of years

and consider to be one of the foremost authorities on alternatives

to incarceration in the Nation in relationship to how you handle

the drug treatment problem, the issues related to drugs, and especially individuals who are also incarcerated, have been incarcerated, might become incarcerated, and also make use of drugs as a

part of the lifestyle.

So I thank you, Mr. Chairman, thank all of the witnesses and

yield back the balance of my time.

Mr. KUCINICH. Thank you very much, Mr. Davis.

If there are no other opening statements, the subcommittee will

now receive testimony from the witnesses before us today. I want

to introduce our first panel.

Mr. James H. Burch, II, is Acting Director of the Bureau of Justice Assistance, Office of Justice Programs, U.S. Department of

Justice, where he has served for nearly 15 years. Prior to his appointment as Acting Director, Mr. Burch served as the Deputy Director of Policy at BJA, overseeing an office and efforts designed to

provide leadership in criminal justice policy, training and technical

assistance, and to further the administration of justice.

Mr. Burch began his career in public service at the local level,

working for several years on case and records management and automation for the Circuit Court in Prince George’s County, Maryland as a civilian within a local law enforcement agency.

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We also have with us Mr. Benjamin B. Tucker. Mr. Tucker is the

newly confirmed Deputy Director for State, Local and Tribal Affairs

for the Office of National Drug Control Policy. Beginning his career

as a beat cop in New York City’s police department, Mr. Tucker

has 40 years of experience in the fields of law enforcement and

criminal justice. He is a recognized expert in community policing.

An attorney prior to joining the ONDCP, Mr. Tucker served as

a professor of criminal justice at Pace University, Director of Field

Operations and Senior Research Associate at the National Center

on Addiction and Substance Abuse at Columbia University, in the

Department of Justice and in various positions in the New York

City Government.

Director Burch and Deputy Director Tucker, this subcommittee

is very grateful for your appearance today and also grateful for

your service to the people and to this country.

It is the policy of the Committee on Oversight and Government

Reform, gentlemen, to swear in all witnesses before they testify. I

would ask that you stand and raise your right hands.

[Witnesses sworn.]

Mr. KUCINICH. Let the record reflect that both of the witnesses

have answered in the affirmative.

I have to say that in the 14 years I have been in Congress, I

don’t think I have ever had anyone say, I don’t. [Laughter.]

I would ask that each witness give an oral summary of your testimony. Keep this summary to about 5 minutes. Your complete

written statement will be in the hearing record.

Mr. Burch, you are the first witness on this panel. Thank you for

being here. I ask that you proceed.

STATEMENTS OF JAMES H. BURCH II, ACTING DIRECTOR, BUREAU OF JUSTICE ASSISTANCE, OFFICE OF JUSTICE PROGRAMS, U.S. DEPARTMENT OF JUSTICE; AND BENJAMIN B.

TUCKER, DEPUTY DIRECTOR FOR STATE, LOCAL AND TRIBAL AFFAIRS, OFFICE OF NATIONAL DRUG CONTROL POLICY

STATEMENT OF JAMES H. BURCH II

Mr. BURCH. Chairman Kucinich, Ranking Member Jordan, Congresswoman Watson, Congressman Davis, I want to thank you all

for the opportunity to be here today.

Today I hope to discuss alternatives to incarceration in the State,

local and tribal criminal justice systems, and the Department’s

commitment to supporting smarter approaches to preventing and

reducing crime. It is well known that crowded jails and prisons, as

you have talked about here today, and high recidivism, continue to

seriously strain State and county budgets.

In response, the Office of Justice Programs at the Department of

Justice and its Bureau of Justice Assistance has shifted its focus

to more strategic, more effective and sustainable approaches to addressing crime that recognizes the critical role of evidence-based

strategies and sentencing alternatives.

We believe that we have a responsibility to be not only tough on

crime, but more importantly, to be smart on crime. This means

supporting programs that are backed by evidence of effectiveness,

not simply ideology. The Bureau of Justice Assistance believes that

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pretrial justice strategies, for example, can play a major role in reducing recidivism and corrections costs.

A Bureau of Justice statistics survey found that more than 60

percent of people confined in jail on any given day were those

awaiting trial, frequently for a non-violent offense, and many of

whom were later sentenced to something other than incarceration.

This fact suggests that an alternative may have been appropriate

at an earlier stage in the justice process.

Further, by implementing pretrial justice strategies, including

the use of research based risk assessment instruments, communities may be able to more efficiently and effectively use community supervision alternatives and reduce spending on corrections.

To gain the foothold needed to be successful with community supervision and re-entry, we must capitalize on the opportunities presented at the front end of the system. For instance, many adults

and juveniles have been successfully diverted from further offending by programs that use the leverage and the monitoring power

of the court, together with treatment and broad community collaboration. One example of this problem-solving approach are drug

courts, which have been shown to be effective in addressing substance abuse problems, as well as reducing recidivism.

Through a National Institute of Justice multi-site drug court

evaluation, researchers are identifying what specific drug court

practices are most effective and under what conditions, both of

which will help us to further refine the drug court grant programs

that we administer and ensure that we are supporting evidencebased strategies. I understand that Dr. Roman will discuss some

preliminary results of this study later today.

BJA is also working to strengthen probation and parole strategies. For example, Hawaii’s HOPE program, which I go into greater

detail about in my written statement, is one such strategy. The

President’s fiscal year 2011 budget submission to Congress proposes a smart probation program that will provide $10 million in

funding for State, local and tribal jurisdictions to replicate strategies such as Hawaii HOPE.

Another example of a strategy designed to enhance safety and reduce corrections spending is the Justice Reinvestment Initiative.

Through this initiative, BJA is assisting State, local and tribal

communities in conducting a thorough review of the local drivers

of corrections costs and the identification of policy alternatives to

reduce costs and increase effectiveness. To date, this initiative has

shown significant results across the country. In one example, from

the State of Vermont, our efforts are expected to yield an estimated

$54 million in net savings through fiscal year 2018, with a portion

of this savings to be reinvested in improved assessments, expanded

residential treatment and vocational training.

In each of these programs, we see examples of how evidence

plays a role in shaping policy and practice. The Attorney General

has made it a priority to develop and enhance evidence-based practice that buildupon current approaches while also encouraging innovation. Hand in hand with supporting research is the responsibility for translating it for use and integrating evidence into the

work of justice professionals. This initiative is discussed as well in

greater detail in my written testimony.

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Recidivism is a complicated problem and there is a lot more for

us to learn in this area. Confronting recidivism in a more balanced

way means recognizing the role of prevention, pre-trial services,

treatment and sentencing alternatives. Each of the strategies I discuss today are valuable tools that represent opportunities to maximize the effectiveness of State, local and tribal justice systems, and

to make our communities safer.

Mr. Chairman, this concludes my statement. I welcome any questions that you may have.

[The prepared statement of Mr. Burch follows:]

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Mr. KUCINICH. Thank you, Mr. Burch.

The Chair recognizes Mr. Tucker. You may proceed.

STATEMENT OF BENJAMIN B. TUCKER

Mr. TUCKER. Chairman Kucinich, Ranking Member Jordan, distinguished members of the subcommittee, thank you for the opportunity to appear before you today to discuss alternatives to incarceration.

Having walked a beat as a New York City police officer and

working in criminal justice for more than 35 years, I understand

that in order to break the cycle of drug use, crime and incarceration, it is important to identify and foster effective alternatives to

incarceration.

The Obama administration’s 2010 National Drug Control Strategy also reflects this premise as it places an unprecedented focus

on the importance of such innovations in the criminal justice system and recognizes that prevention, treatment, recovery, support

and enforcement are all essential components of an effective approach to addressing drug use and its consequences.

Due to the desire to reduce recidivism, the high costs of incarceration, budgetary constraints and the recognition that incarceration

is not always the most effective solution for those with substance

use disorders, all levels of government are exploring new approaches and expanding proven efforts.

When discussing alternatives to incarceration, it is important to

recognize specific front-end alternatives, such as prevention, early

intervention and treatment, all of which keep individuals from ever

entering the criminal justice system. The President’s 2011 budget

request reflects the increased emphasis on prevention by requesting approximately $1.7 billion to support prevention programs.

Another important component to provide front-end alternative to

incarceration is facilitating effective early intervention and treatment for individuals with drug use problems. Addiction is a chronic, complex disease, both psychological and biological in nature, and

should be managed in the same way as other chronic conditions.

However, because substance abuse treatment is not fully integrated

into the health care system, too many substance abuse problems go

unrecognized. This decreases the chances abusers will seek treatment and increases the possibilities for criminal activity. Therefore,

involvement with the criminal justice system may be the first time

an individual has the motivation and the opportunity to address

his or her substance use problem.

For these reasons, it is important that the criminal justice system has the capacity to effectively treat drug use. It is why the fiscal year 2011 budget requests $3.9 billion to support treatment programs. The reality is that even the best prevention, intervention

and treatment efforts may not help every person. For some, drug

use results in criminal and delinquent behavior, disrupting family,

school, neighborhood and community life in fundamental and longlasting ways.

The majority of drug-involved offenders are in State correctional

systems, and many of the low risk offenders are sentenced to probation and supervised through a variety of programs. The type of

programs selected for the offender will depend on his or her parVerDate 11-MAY-2000 15:18 Jun 09, 2011 Jkt 000000 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\65558.TXT KATIE PsN: KATIE
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ticular set of circumstances. The range of programs includes specialty courts, community supervision, residential treatment programs, testing and sanctions programs, drug market interventions

and programs that use monitoring devices.

ONDCP is shepherding policies that will transform systems and

force partnerships, bringing together a wide range of services that

will help people in recovery, build and maintain a substance-free

lifestyle, while also reducing recidivism. Typical recovery support

services include safe and sober housing, medical and dental care,

mental health treatment, employment training and placement,

family counseling, child care and transportation. The Federal Government’s role in these efforts is to provide guidance by highlighting model programs, ensuring Federal assistance promotes effective

long-term approaches, and requiring evaluations to determine program effectiveness.

As reflected in the National Drug Control Strategy, combining effective and fair enforcement with robust prevention and treatment

efforts will enable us to be successful in addressing drug use and

its consequences.

I look forward to working with the subcommittee to address

these challenging and important issues. Once again, than you very

much for the opportunity to testify and for the support of the subcommittee on these vital matters.

[The prepared statement of Mr. Tucker follows:]

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Mr. KUCINICH. Thank you very much, Mr. Burch and Mr. Tucker.

I want to acknowledge the presence of Congressman Elijah

Cummings, who a few years ago opened up this area of inquiry in

the Congress, and his city of Baltimore is doing much to try to

bring about diversion from the criminal justice system into rehabilitation. So I appreciate Mr. Cummings’ presence here.

We are going to have the first round of questions. We will probably have two rounds of our panel.

To both Mr. Burch and Mr. Tucker, the Conference of Chief Justices has advocated expanding drug court funding to $250 million

and to distributing this funding to the States in a block grant program. Do you believe that the current evidence on drug court effectiveness warrants expanded funding, or do you believe that a block

grant program is the best way to administer drug court grants? Mr.

Burch.

Mr. BURCH. Thank you, Mr. Chairman. I appreciate the opportunity to address that question. We have certainly met often with

the Conference of Chief Justices, and we appreciate their support

for the expansion of the drug court program. We certainly have a

lot of respect for their views and their input. They have shared

with us some of their concerns about greater coordination of our efforts with the efforts in the State, and we will certainly continue

to do that.

Respectfully, however, we don’t agree that a block grant program

is the best way to administer these funds.

Mr. KUCINICH. Why not?

Mr. BURCH. What we did this year, sir, after the Conference

passed a resolution supporting this effort, we set aside some resources in the drug court grant program to test this approach. We

offered for States to come in, apply for essentially a block of funding under the drug court grant program that they could then administer to local jurisdictions within their State.

To our somewhat surprise, we only received six applications from

around the country for that effort, which demonstrates to us that

this may not be the best way to go.

Mr. KUCINICH. Mr. Tucker, do you have a response to that?

Mr. TUCKER. I would, given my newness to the office, but more

importantly deferring to Mr. Burch, where they have experiencing

in moving block grant funds to the local jurisdictions——

Mr. KUCINICH. Let me do this, then. Mr. Tucker, your testimony

acknowledges the hurdles that many cash-strapped States face in

implementing alternatives to incarceration. Because even over time

the result is net savings, at the front end, establishing alternatives

to incarceration can be costly. Is there a role for the Federal Government to incentivize States to set up programs through grants,

and is the ONDCP working with Congress to encourage States to

initiate such justice reinvestment and community supervision programs?

Mr. TUCKER. The answer briefly is yes. Without a doubt. I think

there is no question that we want to drive funding to local jurisdictions. Pretty much everything that we think about with respect to

how to deal with drug enforcement, drug treatment, prevention

issues is very much a local issue, particularly as it relates to prevention. So to the extent that we can get funds down to the jurisVerDate 11-MAY-2000 15:18 Jun 09, 2011 Jkt 000000 PO 00000 Frm 00042 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\65558.TXT KATIE PsN: KATIE
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dictions where it is most needed, obviously I agree with that

premise.

Mr. KUCINICH. Let me do a followup, if I may. We just have 5

minutes each. So I am trying to make sure I get your insight on

a number of different areas.

As a followup, does the Department of Justice and ONDCP support modifications of the Federal Drug Court authorizing statute

that would replace the categorical exclusion of violent offenders

from drug courts with a procedure by which local drug court teams

would have the responsibility to determine the class of offenders

that should be excluded from drug courts because of their criminal

history? Would you like to comment on that, Mr. Tucker?

Mr. TUCKER. Sure. The emphasis seems to be, in your question,

on violent offenders. The research, as far as I know, suggests that

drug courts have had some success in dealing with high-risk, highneed defendants. So to that extent, yes, it is certainly an idea

worth considering. I don’t know at this point in time how that

would be implemented. I think you are correct that it would be left

up to the local jurisdictions and the judges in those local courts to

make those determinations.

Mr. KUCINICH. Mr. Burch.

Mr. BURCH. I would agree with Mr. Tucker, the research is clear

on this point. We don’t think categorical exclusions or inclusions

are the way to go. This is a local issue. We can’t risk public safety.

But the research is clear on this. We need to do a better job of getting high-risk, high-need in.

Mr. KUCINICH. Thank you. My time is expired. I am going to recognize Mr. Jordan for 5 minutes. You may proceed.

Mr. JORDAN. Thank you, Mr. Chairman.

Thank you both for being here and for the work you do. Mr.

Tucker, we appreciate your background in law enforcement, and

appreciate Mr. Kerlikowske, the times that he has come before us

and talked with the chairman and myself and the full committee.

We appreciate his work.

Mr. Kerlikowske said in a Senate Judiciary hearing back in

March of this year that in 2008, over 23 million Americans 12 and

older needed treatment for some type of illicit drug or alcohol use

problem, but less than 10 percent received the necessary treatment

for their respective disorder.

Yesterday we learned in a hearing on the same general subject

from Mr. Ford at GAO that in 10 years, because I asked him the

question, I didn’t know the answer, I just asked the question, has

GAO done any studies on how effective our treatment programs

are. So if you kind of cut to the chase, only 10 percent of the folks

who have a problem are getting some kind of treatment. And we

have no idea how effective the treatment is that small percentage

are actually receiving.

The folks who get, who are actually put in prison, how many of

the incarcerated individuals for a drug offense in our prisons are

getting some type of treatment? Probably Mr. Tucker, I would assume, but we can go to both of you.

Mr. TUCKER. Sure. Well, I don’t think enough. I don’t know the

exact numbers. But I think that is our challenge. The data that you

40

have heard and from other sources suggests that we are not doing

enough.

Mr. JORDAN. I think it gets us to the obvious question, if we are

looking at alternatives to incarceration, that all makes sense if

they are non-violent and that is the best way to help people. I get

that. But if we are only getting 10, 11, 12 percent, I don’t know.

Are we really going to go down that road? We have them there,

they are not getting treatment right now.

Mr. TUCKER. I think the point is that we have to figure how to

do more. Clearly we need to do more. And I think we need to figure

out how to do more both in terms of providing the resources and

to your point earlier, making sure that whatever treatment is provided and however it is provided that the vehicles we use are effective and we are getting to the right population.

Mr. JORDAN. Let me ask Mr. Burch, then I will followup.

Mr. BURCH. As it relates to identifying children with those kinds

of needs, I think we need to be more creative about how we do that.

One of the examples of that is, we are training school resource officers now in how to identify children with those kinds of special

needs, and then link them up with the treatment that is available.

Because that is often the issue at that age.

In terms of residential treatment, I just want to thank the Congress for responding to the President’s call to double the funding

through the Residential Substance Abuse Treatment Program. We

are now providing States $30 million a year, State departments of

correction, to provide residential treatment for those who are incarcerated. That is on top of our investments. Thanks to Congress for

responding with the Second Chance Act, a $100 million that is

made available to serve offenders and to get them the treatment

they need.

Mr. JORDAN. With respect to treatments that actually work, for

the percentage we are giving some treatment to, HHS agency, Substance Abuse and Mental Health Services Administration

[SAMHSA], has stated that ‘‘the beneficial role that faith and spirituality play in the prevention of drug and alcohol abuse and in

programs designed to treat and promote recovery from substance

abuse and mental disorders has long been acknowledged.’’ Would

both of you agree with that statement? Faith-based treatment is effective, would you agree with that statement?

Mr. BURCH. I’m sorry?

Mr. JORDAN. Would you agree with the statement, and this is according to SAMHSA, has stated, ‘‘The beneficial role that faith and

spirituality play in the prevention of drug and alcohol abuse and

programs designed to treat and promote recovery from substance

abuse and mental disorders has long been acknowledged.’’ Would

you agree with that statement?

Mr. TUCKER. Actually I am not sure I understand the statement.

Mr. JORDAN. I will make it simple. Do you believe that faithbased treatment programs, do you think they are effective in helping people with their drug and alcohol problem?

Mr. TUCKER. I think there are multiple ways in which treatment

can be applied.

41

Mr. JORDAN. The question was, do you think faith-based programs, this is according to HHS, they seem to think so, do you

think so?

Mr. TUCKER. I think if they have tested it and they have had

some success, I mean, I think treatment is delivered in a number

of different modes in different places around the country. If faithbased, if the organization happens to be a faith-based organization

and their treatment modality is effective, then I would say, yes, I

agree with the statement. But I think there are multiple ways in

which treatment takes place.

Mr. JORDAN. Mr. Burch.

Mr. BURCH. I am not familiar with the research specifically. But

I think that the President and others have said that there is clearly a role for faith-based organizations and community-based organizations for those who want it in this recovery. So we support that,

and we have worked with that for a while.

Mr. JORDAN. OK. Mr. Chairman, I have a followup on that.

Mr. KUCINICH. The Chair recognizes Ms. Watson.

Ms. WATSON. I mentioned before my State of California started

one of the largest treatment diversion programs by passing Proposition 36 by popular referendum. Unfortunately, Proposition 36 has

not allowed us to significantly reduce the cost of our correction system, because one quarter of the offenders who have accepted the

Proposition 36 bargain never appeared for treatment. And then

only one third completed it.

So what do you think California needs to do to improve the level

of compliance with Prop 36? Should they incorporate any best practices from Hawaii’s Opportunity Probation with Enforcement, that

is the HOPE program? And given the severe budget crisis that we

face in California, do you think the State has the will and resources to successfully reform the Proposition 36 program? I guess

I could answer that myself, but let me start with Dr. Tucker.

Mr. TUCKER. I can’t speak to the issue of the State’s will. But

with respect to the parts of the program in California that don’t

seem to work effectively with respect to the success rate, I think

it is important to look at what is happening in Hawaii, certainly.

But we can look other places as well. I think there are a number

of opportunities around the country to look at places that have

been effective and have had high success rates. Drug courts, certainly, the research, as we have already mentioned, have been very

successful in keeping the recidivism rates down, for example, over

time.

So I think it is worthwhile, when we try these experiments, to

evaluate them as we go. And if they are not working, to think

about ways in which we can fix the parts that are not effective.

Ms. WATSON. My colleague mentioned faith-based. Sadly, those

who are hardly addicted don’t end up in these faith-based programs. These are the ones we would like to lure in. But it has been

something that is elusive thus far.

I would like to ask Mr. Burch, in your testimony you stated that

encounters with law enforcement play a critical role in whether or

not people with mental illness or co-occurring disorders, such as

mental illness and substance abuse, are identified and directed to

appropriate treatment instead of simply cycling them in and out of

42

our jails and prisons. So what is being done on the Federal level

to encourage collaboration between the police and the mental heath

community?

Mr. BURCH. Thank you so much, Congresswoman, that is a wonderful question. I am pleased to be able to respond. Through our

Justice and Mental Heath Collaboration program, we have been

working together with a number of different organizations, among

them the National Association of Chiefs of Police, to begin to develop models that can be replicated around the country for crisis

intervention to give law enforcement officers that are on the beat

the tools that they need to be able to respond to the individuals

that they encounter, under the premise that having a person enter

the justice system for treatment is simply not the best answer and

we can do better.

And we can do better by giving law enforcement the tools they

need to know how to recognize it, and then how to divert it locally.

And that training has been very successful. We have seen it be replicated not only in individual cities and towns, but also individual

States now have taken it on and replicated that training for their

entire public safety response core, if you will, not only law enforcement, but also EMTs, for example. Georgia is one example of where

that is happening.

So there is great news to report and we are making a lot of

progress.

Ms. WATSON. Well, maybe we need to improve the level of understanding of these particular treatments that seem to be effective.

We have to some way get that knowledge out there.

I would like to go on, Mr. Burch. You also stated that the Bureau

of Justice Assistance is directing $57 million in funding for problem-solving courts in fiscal year 2010 and has requested the same

amount for fiscal year 2011. And compared to traditional criminal

justice proceedings, the costs are on average $1,392 lower for drug

court participants and can get to a savings of as much as $12,218

if recidivism, victimization and other long-term societal costs are

factored in as well.

Given the savings that these alternative courts offer and their

potential positive impact on individuals, families and communities,

it is critical that there are consistently available alternatives to incarceration for those who could benefit. So are you confident that

the $57 million is enough to provide comprehensive access to problem-solving courts for all who could benefit from them? And when

you developed the request for $57 million for fiscal year 2011, did

you take into account the increasing budget constraints of our

States and local communities?

Mr. BURCH. Thank you, Congresswoman. Yes, we are taking into

account the economic situation that exists in the States and local

jurisdictions in everything that we do.

In developing the budget proposals that have been sent forward,

obviously the economic conditions and situation that we are in is

something that we have to take into consideration. But we also

look at the numbers of applications that we are receiving from local

jurisdictions to replicate these programs. In the last couple of

years, we have been able to fund almost every responsive applicaVerDate 11-MAY-2000 15:18 Jun 09, 2011 Jkt 000000 PO 00000 Frm 00046 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\65558.TXT KATIE PsN: KATIE
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tion that has come to us for drug courts or other kinds of problemsolving court programs.

That does not mean that we could not use additional resources,

if appropriated, to provide to additional communities. But it does

indicate to us that we are providing the responsiveness that we

need to provide on this, and that we need to continue to work with

communities to address these categorical exclusions that are addressing the people that are able to get into these alternatives.

That seems to be a big issue, as it relates to capacity.

Ms. WATSON. Thank you, and thank you for the extra time, Mr.

Chairman.

Mr. KUCINICH. The gentlelady is welcome.

The Chair recognizes Mr. Cummings.

Mr. CUMMINGS. Thank you very much, Mr. Chairman.

Gentlemen, thank you for being here today. Let me just ask you,

in Baltimore, we have had a lot of success with our drug court. As

a matter of fact, it has probably proven to be the most successful

thing I have seen. First of all, I guess it is because the judge has

a hatchet over the head of these folks. They know that if they mess

up, they are going to suffer the consequences.

I think the other piece is that it is comprehensive, helping them

to find jobs, get drug treatment, the whole bit. There are certain

elements that seem to be of certain significance as alternatives to

incarceration, that is so that the person, the defendant, most benefits, not just society, but the person benefits. What elements would

you say seem to yield, that you have noticed that programs have

that seem to yield the greatest benefit to the defendant? Both of

you look like you are lost. What is wrong? I thought maybe I was

in the wrong hearing or something. [Laughter.]

Mr. TUCKER. Let me respond to that. I think we are talking

about providing, to the extent that the person has a drug problem,

we want to provide treatment. It is important. And that treatment

has to be regular. We have to drug test folks to make sure that

they are staying clean. We have to, if they are leaving and returning to our streets, to our communities, then we have to make sure

that they are, that treatment can be continued as part of their recovery. That is really critical.

And you mentioned already what I call the wrap-around services,

this notion that you don’t want to leave these folks stranded. You

want to make sure that they have something to help them stand

up once they are back in the community. Those types of services

have to do with jobs, they have to do with, if we are talking about

juveniles, it has to do with making sure that they can cycle back

into school to the extent that they are not ready, that they haven’t

graduated.

But whatever it takes in terms of those wrap-around services,

that is what I think is important to help stand these folks up. That

is why I think drug courts who provide those kinds of services and

recognize that they have a link to service providers that can get

support for these individuals once they are back in the community

really is an effective way in which to proceed.

Mr. CUMMINGS. I am going to get to you in a minute, Mr. Burch,

but I just want to throw this out. I was sitting and listening to you,

and I was thinking to myself, alternatives may very well be a good

44

thing. Because I will tell you, one of the things that has always

bothered me as a lawyer and just as a citizen is how somebody can

go into prison and come out worse off than when they went in. In

other words, the dirty little secret is that sometimes that are drugs

floating around in the prisons.

See, people don’t like to talk about that. But that is serious. And

so if you have drugs in the prison, I mean, if you really think about

it, if you don’t have drugs in the prison, what does that mean?

That means somebody is doing some serious cold-turkey, because

that is all they can do.

But then when you see people come out of prison, still drugged

up and in some instances worse off than when they went in, that

is an uncomfortable subject, but it is real. I live in the inner city

of Baltimore, so I see that. So I am just, it kind of bothers me that

sometimes we don’t address those kinds of issues. You don’t have

to talk about it, but it is something that people don’t deal with, and

it is real.

And we have now seen in the Baltimore area more and more indictments coming out for folks who work in prisons. I am not

knocking, every headline tomorrow will be Cummings knocks security guards, I am not saying that. I am just telling you what I have

seen happen and I think it is happening all over the country, a few

bad apples are letting drugs flow into these prisons and it is very,

very sad.

So then you say to yourself, well, maybe it is better that the person be on the outside to get the kind of treatment that they need

or what have you. You can comment on that if you want, Mr.

Burch. Or do you want to comment, Mr. Tucker?

Mr. TUCKER. I agree with you that is a reality. We support, one

of the things that we are trying to do here is break the cycle. So

we have to think comprehensively. So we focus on drug use, we

focus on crime, we focus on delinquency. We also have to focus on

incarceration inside the facilities.

So there has to be law enforcement even inside the facilities looking for drugs. The drug trafficking happens inside as well as outside. I am as disturbed as you are we recognize that those conditions exist. But it is about additional law enforcement, I think both

at the State level and the Federal level, the institutions spend a

lot of time focused on law enforcement inside the institutions, conducting inspections, searches, drug testing and so forth. Those

kinds of activities should continue.

Mr. CUMMINGS. Mr. Chairman, I see my time is up. Thank you.

Mr. KUCINICH. We have a vote on, but what we are going to do

is give Mr. Davis an opportunity to ask his questions, which will

complete the first round. We will recess after Mr. Davis for two

votes, perhaps a half hour. Then we will come back and go to the

second round and we will get to the next panel after that. I appreciate everyone’s indulgence. We in the committee don’t have control

over the congressional schedule. But we do want to make sure our

committee work is thorough and that we hear from everyone.

Mr. Davis for 5 minutes.

Mr. DAVIS. Thank you very much, Mr. Chairman. Let me just say

that I am a real fan of drug courts. I have been for a long time.

A good friend of mine, Eugene Pincham, they used to call him all

45

kinds of things, the hanging judge. But Pincham started years ago

of probably going outside the rim of what people expected a judge

to do. He just started directing individuals to do certain things. He

would give them 60 days to do them and say, come back to my

court, let me see how you have made progress. If you haven’t made

any, I am going to lock you up, I am going to send you down to

Menard or wherever. Of course, Judge Pincham died not too long

ago. He was recognized as one of the most effective judges around.

Let me ask, how high is the Bureau on coalitions? The development of community coalitions as a real way of reducing recidivism?

I have seen some places like in North Chicago, Illinois, and Waukegan, that I consider to have a very excellent community coalition.

I have seen something in Bloomington, Illinois, where the Joy Center has put together a coalition of public defender, the State’s attorney, the NAACP, the churches, the schools, everybody is a part of

their action. How does the Bureau feel about that kind of activity?

Mr. BURCH. Thank you, Congressman Davis. I am glad to hear

you mention Bloomington, Illinois. In fact, we were involved in

working with Bloomington, Illinois, in setting up that group many

years ago when they began an anti-gang initiative in that community. That is where that group got started. I don’t remember the

name of the committee now, but it has been a very innovative

group. I think at one time they even started their own business to

generate revenues for their program. It is just a great community

and a great group of people.

And I am sure Mr. Tucker would like to talk about the DrugFree Community Support Program that also encourages collaboration. We are 100 percent behind that, and we are thankful to you

and others for ensuring that the Second Chance Act also includes

this notion as well, and the task force requirements as a part of

that program.

We see that, and you have to have that kind of broad-based community support behind every one of these initiatives. As we talked

to folks in Virginia earlier this week, in fact, you can’t just have

one part of the system trying to make change. We have to make

change in every part of the justice system, from the front door to

the back door and everything in between. All of those people have

to be at the table and have to be committed to making change.

So we are 100 percent behind that.

Mr. DAVIS. Thank you very much.

Mr. Tucker, let me ask you, there is an expression of concern on

the part of many people that there might be more focus in terms

of the drug control policy shifting toward trying to prevent the

spread of meth and not as much focus put on, say, crack cocaine

in central city areas. I happen to live in the inner city area of Chicago and have lived in a big, urban inner city all of my adult life.

Could you just address those two concerns that are being expressed?

Mr. TUCKER. Sure. I think I understand it. I think again, this s

a very local kind of issue. Even when I was on the streets as a cop,

these same kinds of questions would come up from neighborhood

to neighborhood, community to community. The fact of the matter

is that depending on what community we are talking about, what

State, what neighborhood, what county or whatever, you are going

46

to have different types of, as it relates to drug trafficking, different

types of illegal, illicit substances.

So as you point out, it could be meth in the Midwest, perhaps,

as it came across the country or it could be cocaine, it could be heroin, it just depends. So the response is going to be dictated by the

threat. So the way in which we do this is, for example, I am responsible for the High Intensity Drug Trafficking Areas, there are

28 of those around the country, 5 along the Southwest border and

in a number of other jurisdictions. Those are task forces, Federal,

State and local law enforcement offices, constantly looking at, gathering information, looking at the intelligence and then looking at

also developing the threat for that particular jurisdiction, wherever

it may be.

So that is, I think, the response has to be a function of what the

threat is. And then the authorities, the law enforcement officials

take the necessary steps to try and intervene.

Mr. DAVIS. Thank you very much, and thank you, Mr. Chairman.

I yield back.

Mr. KUCINICH. I thank Mr. Davis. Committee members, we will

be back here at approximately 4 o’clock to resume the second round

of questions. The committee stands in recess until 4. Thank you.

[Recess.]

Mr. KUCINICH. Thank you very much for your patience and your

presence. We are going to go to round two of questioning. To both

Mr. Burch and Mr. Tucker, lessons both positive and negative can

be derived from the over 1 million participants in Prop 36 that are

presumably important to the Federal Government’s role in promoting evidence-based, effective, State criminal justice policies. So it

seems logical that the Federal Government would be more involved

in the evaluation of its effects and perhaps take a position on its

success. But it doesn’t seem the Federal Government has taken a

role.

Do you want to comment on that, Mr. Burch?

Mr. BURCH. Thank you, Mr. Chairman. I think it is correct that

I don’t think we have a position or have taken a position on that

proposition.

Mr. KUCINICH. Do you have any comment on it at all?

Mr. BURCH. Well, not on the proposition itself, sir, but on the

general topic of alternatives to incarceration and the things that we

can be doing in this area is exactly what we are hoping to do more

of this coming year.

Mr. KUCINICH. I thank you. Mr. Tucker, would you agree with

that?

Mr. TUCKER. I think so. And again, both as we mentioned earlier

in the last session, to the extent that the program that has been

established is not working completely as expected and may not be

serving the population or getting the results that were expected,

then certainly it is important to reevaluate it and figure out what

the fixes might be.

Mr. KUCINICH. Now, Mr. Burch, in her written testimony, Professor Hawken notes that over half the criminal justice program designated as evidence-based and the SAMHSA’s National Registry of

Evidence-Based Programs were evaluated by the program developer. That research shows that outcome analyses are typically

47

more positive when conducted by those with a vested interest in

the program. While I have no reason to doubt the results of the

MADCE study on drug courts funded by the Department of Justice,

I will note that their principal researchers include prominent advocates of drug courts. What steps has the Department of Justice

taken in the design of its new Evidence Integration Initiative to ensure the integrity of the program evaluations?

Mr. BURCH. Thank you, Mr. Chairman, that is a great question.

The EII initiative is a broad initiative that will not just focus on

one or two evaluations, or evaluations that we have funded or that

our partners have conducted. The way that we expect to roll out

EII is a very broad-based effort to look at what other organizations

have found with regard to evaluations, including entities such as

the Campbell Collaboration and others. So it is a very broad look

at what the field has found with regard to effectiveness of certain

programs. It will not be focused exclusively on those that we have

funded or that our partners have implemented.

Mr. KUCINICH. What percentage of those who are currently incarcerated for drug-related offenses do you believe should not be subject to incarceration at all under an ideal criminal justice scheme

that balances concern for public safety and the need for deterrence

and a sober assessment of direct and collateral harms of incarceration? Mr. Burch.

Mr. BURCH. Thank you, sir. I think it would be hard to put a finger on an exact percentage. But as I noted earlier, I think one of

the concerns that we have with where we are today is this categorization of certain types of offenders or needs within certain categories. So what I would advocate for is that we go to a risk assessment based model. We can look at each individual offender to determine what the needs are. And that would tell us which of those

folks that are incarcerated really do need to be there and which

don’t.

Mr. KUCINICH. Mr. Tucker, would you like to comment on that?

Mr. TUCKER. I would agree with Mr. Burch. I think it is case by

case. I think that is the simple solution. We have to pay attention

to who these individuals are, why they are inside and then make

some determination whether or not either we continue to provide

them with treatment and services while they are incarcerated for

the long term, or under whether certain circumstances it would be

appropriate to put them on parole, as an example, to provide services.

Mr. KUCINICH. On the next panel, we are going to have many

witnesses who have recommended that we move toward evidencebased sentencing. Sentences based on risk and needs and cost-effectiveness data and not simply on offense-based factors. One witness

recommended both the amendment of the U.S. Sentencing Guidelines and that DOJ should make grants to States for them to formulate evidence-based sentencing reforms.

Where are you on the issue of sentencing reforms?

Mr. TUCKER. I understand that the Justice Department, actually

the Attorney General, has appointed a panel to take a look at sentencing reforms, and I think appropriately so. So I think it would

be wise for us to see what the panel has to say about sentencing

48

in all its aspects, and then be guided by that in terms of what we

do going forward.

Mr. KUCINICH. Mr. Burch.

Mr. BURCH. Yes, sir. I think as it relates to making grants available for States to do this, and recognizing each State, each local jurisdiction may have its own preferences and desires, we are funding efforts, through organizations such as the Justice Management

Institute, to go out and provide training and technical assistance

to States to go through that process of determining what is evidence-based, what is the smarter approach to sentencing.

And then this year we have offered funding for something called

the field initiated innovations parogram. I note that we go a couple

of applications from the field to begin applying that funding to

change the way the system works in terms of sanctions. Arkansas

was one example where we received a proposal like that this year.

So there is really, I think, a lot of movement in this direction.

Mr. KUCINICH. Incarceration rates, as I am sure both of you

know, in the United States, are much higher than those in Western

Europe and other developed nations. Does either the ONDCP or

the Department of Justice approach the issue of incarceration for

drug offenses in a comparative perspective and analyze the success

and failures of other nations’ approaches to drug crime and punishment? Mr. Burch.

Mr. BURCH. Thank you, sir. I know that our National Institute

of Justice does have an international component where we are looking at what is happening in other countries and how to apply those

lessons learned to this country. The Bureau of Justice Assistance

has done the same this year in making a grant award to the RAND

Corp. to help us identify similar gains in other countries, particularly those whose justice system looks similar to ours, and helping

us understand those lessons learned and the best practices from

those nations.

Mr. KUCINICH. Mr. Tucker, would you like to add to that?

Mr. TUCKER. I would just add that I think it is pretty clear that

we get, what we have been doing up to now has not been good, nor

effective. I think it is why we are here talking about alternatives

to incarceration, why the current drug control strategy has this

broad approach to thinking about that cycle.

When we talk about breaking the cycle, we are talking about

crime, delinquency and incarceration in every respect and as it relates in particular to incarceration, the notion that we recognize

that too many people are incarcerated and we are trying to redirect, along with our partnership agencies, including DOJ, to think

about ways in which we can get some relief in that respect, both

at the front end in terms of keeping people out of the system in

the first place, focusing on prevention and looking at ways in which

that prevention can impact the most at-risk people, such as young

people in particular, but also adults who happen to be using or addicted.

Mr. KUCINICH. I want to talk for a moment about women with

children. Women are the fastest-growing segment of the incarcerated population, increasing at nearly double the rate of men since

1985. Among female State prisoners, two thirds are mothers of a

49

minor child. Children of inmates are five to six times more likely

to become incarcerated than their peers.

This makes providing alternatives to incarceration for mothers

even more critical than other populations. Your testimony refers

generally to diversion initiatives focused on women with children.

What specific actions are being taken to encourage diversion initiatives in this particular group, women with minor children? I

would like to hear from both of you.

Mr. BURCH. I will take the first shot at that, if I could, Mr.

Chairman. One of the things that we have noticed in examining

this issue is the prevalence of mental health issues among women,

in particular, in jail, but also in prison. This is something that we

want to understand better, because we think this may represent

the best point of intervention for us and the best point of being

able to divert women from the justice system. So we are working

together with the National Institute of Corrections at the Department as well as other organizations to better study this issue. Once

we identify those points of intervention, we will then move on them

very quickly.

But we also have made a lot of efforts toward making sure that

we are providing opportunities to connect those women with their

families and children, but also focusing as well on fathers. You may

know the White House has an expansive initiative this year with

us to focus on fatherhood issues. And we will continue to do that

as well.

Mr. KUCINICH. Mr. Tucker.

Mr. TUCKER. No question, we need to do more there as well with

respect to this population. And ONDCP as part of our overall strategy is supporting the various programs that exist to facilitate and

to create a resource or provide resources that will help us deal with

the problem that you just described with respect to mothers and

children.

It is, to the extent that children are impacted, we need to make

sure that when we are talking about prevention it is clearly, we

recognize it is more cost-effective to impact those youngsters as

early as possible to prevent them from falling into the same habits

of drug abuse that perhaps their parents have.

Mr. KUCINICH. Is there much time being spent going into these

institutions and talking to the women about their situation and

what is being done to care for their children? What happens? Because the children end up paying a penalty, too.

Mr. TUCKER. Just from my personal experiences in this regard,

I go way back. I agree with you, and I recognize that children pay

the price because of domestic violence, because of drug use. More

recently, as it relates to drug-endangered children with respect to

methamphetamine, for example, but also in a much broader context.

So we recognize the impact on children. I know that we currently

have a working group that involves a number of the participating

Federal agency partners to look at the issue of the impact on children as it relates to drugs, meth in particular. But I think there

is a desire to look at it in a broader context as well.

Mr. KUCINICH. Mr. Tucker, just one final question. Your testimony acknowledges the promising result of the HOPE testing and

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sanctions community supervision program. How is ONDCP working with Congress and States to further support pilots and demonstration projects of HOPE and HOPE-type programs?

Mr. TUCKER. We acknowledge that HOPE is recognized as a success. We want to look at it in a much broader context. While HOPE

has been successful, we are not looking at it in the context of only

HOPE, but also other drug courts and other types of programs that

provides the same kinds of approaches to dealing with offenders.

So it is, while we recognize that HOPE has had its success, I

think we also want to look at it in a broader context, and continue

to look at and analyze some of the new models, new jurisdictions

that are going to be trying to implement the HOPE model and to

see whether or not what happened in Hawaii and how effective it

was translates to the same type of success in other jurisdictions.

Mr. KUCINICH. I want to thank both of you for your testimony

and for your presence at this subcommittee today. The subcommittee members will have followup questions to present to you in writing. And I appreciate your answering them to help us in our work.

I am going to dismiss this panel and we are going to take a very

brief, 3-minute recess while staff prepares the table for the next

panel. So again, thank you very much. Your attendance is appreciated. We are going to move to the second panel momentarily.

Mr. TUCKER. Thank you, Mr. Chairman.

Mr. BURCH. Thank you very much.

[Recess.]

Mr. KUCINICH. Thank you very much. We are going to begin the

testimony from the second panel. And it is a panel with extensive

background in this area. I think we will be moving expeditiously

through your testimony. I know that a number of you have commitments that are time-sensitive. This hearing already is about an

hour and a half behind schedule.

So I am mindful of that. I think that if all goes well, we could

probably get out of here within the hour, if that will work for everyone. That will be my goal. And we have no other votes for this

evening, so that gives us a pretty good clear track.

I will begin by making introductions of the second panel of witnesses. Angela Hawken, welcome. Angela Hawken is Associate Professor of Economics and Policy Analysis at the School of Public Policy at Pepperdine University. She taught graduate economics in

South Africa before moving to Los Angeles in 1988 to complete a

Ph.D. in policy analysis at the RAND Graduate School.

She teaches graduate classes in applied research methods, statistics, crime and social policy. Professor Hawken led the statewide

cost-benefit analysis of California’s alternative sentencing initiative, Proposition 36, and the randomized control trial of Hawaii’s

HOPE probation.

John Roman. Mr. Roman is Senior Research Associate in the

Justice Policy Center at the Urban Institute, where his research focuses on evaluations of innovative crime control policies and justice

programs. He is also the executive director of the District of Columbia Crime Policy Institute where he directs research on crime and

justice matters on behalf of the Executive Office of the Mayor.

Dr. Roman is directing several studies funded by the National

Institute of Justice, including a national study of the demand for

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community-based interventions with drug-involved arrestees. Dr.

Roman also manages the national evaluation of adult drug courts,

and is co-editor of the cost-benefit analysis in crime control and juvenile drug courts and teen substance abuse. Dr. Roman also

serves as a lecturer at the University of Pennsylvania and an affiliated professor at Georgetown.

Douglas B. Marlowe is Chief of Science, Law and Policy for the

National Association of Drug Court Professionals, a senior scientist

at the Treatment Research Institute and an adjunct associate professor of psychiatry at the University of Pennsylvania School of

Medicine. A lawyer and clinical psychologist, Dr. Marlowe has received numerous State and Federal research grants to study coercion and drug abuse treatment, the effects of drug courts and other

diversion programs for drug abusers involved in the criminal justice system, and behavioral treatments for drug abusers and criminal offenders. Dr. Marlowe has published over 125 professional articles and chapters on the topics of crime and substance abuse and

is editor in chief of the Drug Court Review.

Daniel N. Abrahamson is Director of Legal Affairs for the Drug

Policy Alliance, an organization devoted to drug policy and drug

law reform. Mr. Abrahamson is co-author of California’s Proposition 36, the Substance Abuse and Crime Prevention Act enacted

in 2000 and served on several statewide committees overseeing implementation and evaluation of the act.

Mr. Abrahamson has litigated public health matters in State and

Federal courts. He has taught interdisciplinary courses on criminal

justice and public health at Yale, Fisk, Hastings College of Law,

and the University of California Berkeley School of Law.

Ms. Melody M. Heaps founded Treatment Alternatives for Safe

Communities, TASC, in 1976, and led it until her retirement as

president in 2009. She is currently President Emeritus and a consultant to TASC. Under Ms. Heaps’ leadership the agency grew

from a small pilot program in Cook County, Illinois, to a $20 million statewide organization providing direct services to 25,000 individuals annually.

Ms. Heaps began her professional career as a community organizer and joined the Southern Christian Leadership Conference as

one of Dr. Martin Luther King, Jr.’s staff during the Chicago campaign. She also helped develop and implement the National Institute on Drug Abuse’s judicial training curriculum and organized

the first national managed care and criminal justice conference.

Ms. Heaps has provided consultation services for numerous public

and private agencies, including ONDCP, and served on numerous

drug policy-related task forces.

Finally, Mr. Harold A. Pollack. Mr. Pollack is the Helen Ross

Professor at the University of Chicago School of Social Science Administration and faculty chair of the Center for Health Administration Studies, and is also a co-director of the University’s crime lab.

He is published widely on the interface between poverty, policy and

public health. His substance abuse policy research appears in such

journals as Addiction, Journal of the American Medical Association,

American Journal of Public Health, Health Services Research and

other leading peer-reviewed journals. Professor Pollack has been

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appointed to three committees at the National Academy of

Sciences.

As we can see, we have a distinguished panel of witnesses. It is

our privilege to have you appear to testify in front of this subcommittee.

It is the policy of the Committee on Oversight and Government

Reform to swear in all witnesses before they testify. I would ask

that you rise and raise your right hands.

[Witnesses sworn.]

Mr. KUCINICH. Thank you. Let the record reflect that each of the

witnesses answered in the affirmative.

I would ask that each of you give an oral summary of your testimony. The entire account of your testimony will be included in the

record of the hearing. We just want to get a general idea of what

it is you are presenting.

I would also like to add for the record that the statements of this

particular panel were very thorough, very thoughtful. I want to

commend you for that. Much appreciated.

Professor Hawken, you are our first witness on this panel. I

would ask that you begin.

STATEMENTS OF ANGELA HAWKEN, PH.D., ASSOCIATE PROFESSOR OF ECONOMICS AND POLICY ANALYSIS, SCHOOL OF

PUBLIC POLICY; JOHN K. ROMAN, SENIOR RESEARCHER,

JUSTICE POLICY CENTER, URBAN INSTITUTE; DOUGLAS B.

MARLOWE, J.D., PH.D., CHIEF OF SCIENCE, LAW AND POLICY,

NATIONAL ASSOCIATION OF DRUG COURT PROFESSIONALS;

DANIEL N. ABRAHAMSON, DIRECTOR OF LEGAL AFFAIRS,

DRUG POLICY ALLIANCE; MELODY M. HEAPS, PRESIDENT

EMERITUS, TASC, INC.; AND HAROLD A. POLLACK, HELEN

ROSS PROFESSOR, UNIVERSITY OF CHICAGO SCHOOL OF

SOCIAL SCIENCE ADMINISTRATION, FACULTY CHAIR OF

THE CENTER FOR HEALTH ADMINISTRATION STUDIES

STATEMENT OF ANGELA HAWKEN

Ms. HAWKEN. Good afternoon, Mr. Chairman. Thank you for the

opportunity to testify today.

I would like to discuss the experience of offender management in

two States, California and Hawaii, and then end with a short list

of recommendations of how the Federal Government might improve

offender management with a goal of reducing incarceration.

In the 1990’s, hundreds of pieces of legislation were passed in

California, all of them tough on crime. Prop 36 was the first measure to turn the tough on crime tide. Under Prop 36, non-violent

drug offenders had the opportunity of being sentenced to community-based treatment, rather than to prison or jail, or to probation

without treatment.

Keeping drug users out of our jails and prisons made a lot of

sense to me, so I was very pleased to be invited to lead the costbenefit analysis to study the effects of the law.

This work showed that in the beginning, Proposition 36 saved

Californian taxpayers a great deal of money, as these drug users

were diverted from our prisons and jails. But my enthusiasm for

Prop 36 began to dwindle as more and more data showed that

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those initial years were a honeymoon period, and very soon the

prison diversion dried up. Many probationers made their way back

into the prison system.

Why did this policy fail? Many reasons. Under Prop 36, every

probationer has to be treated. This is true for diversion programs

in general. Every probationer, even probationers without a

diagnosable substance abuse condition. With limited treatment resources, if everybody must be treated, this results in a little bit of

nothing for everybody. Treatment resources are spread very thin.

There was next to no accountability under Prop 36. Nearly a

quarter of the probationers who accepted sentencing and a deferral

to treatment never appeared for a treatment session. Only a third

of those who did appear for treatment actually completed the program.

A UCLA study asked, what was the consequence for no-show?

The modal response, that is the most common response, was nothing. Nothing isn’t very motivating.

Proposition 36 was enacted into law as the Substance Abuse and

Crime Prevention Act. But the experience was quite the opposite.

Criminal activity among this group increased. Even the best of the

best, those who made it all the way through their treatment program and had a successful discharge, even this group had high

rates of followup arrests and convictions than a comparison group

of pre-Proposition 36ers.

Over half of them were arrested on a new drug charge while

under Proposition 36, and over a quarter were arrested for nondrug charges. Of those non-drug arrests, about a quarter were for

violent crimes against other persons.

There is very little accountability in the system. Compliance

under Prop 36 is so poor that when surveyed, 80 percent, that is

eight zero, 80 percent of California treatment providers support a

change in the program to allow the use of short jail stays to motivate treatment compliance.

There is another little-discussed sad consequence of Proposition

36. When our treatment system is flooded with referrals from the

criminal justice system, something has to give. Dr. Ian Hughes’ research from UCLA has shown that what gives are those people who

entered the system with a self-referral. People who are self-motivated to seek out care are being displaced. We have never studied

the consequences of pushing these drug users out of our system.

Our expectations are that these are primarily alcohol-individuals,

and as you know, alcohol is by far our most dangerous drug. My

expectation is a study of this kind would show quite devastating

consequences.

Loosening the reins on drug offenders has not provided a meaningful alternative to incarceration in California. As you can tell, I

was very disheartened by the Prop 36 data. And just about that

time, I heard of a new program in Hawaii that was supposedly

transforming probationers’ lives. The program was called HOPE,

Hawaii’s Opportunity Probation with Enforcement. It was designed

by a judge, in collaboration with police officers, with probation officers, with prosecutors, with public defenders. Together they tried

to resolve the problem.

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Revoking probation is very serious. It often results in years, typically months but sometimes years of incarceration, which leaves

probation officers with a dilemma. If their probationers are not

complying, they have only one of two choices. They can either let

those boo-boos go unchecked, boo-boo after boo-boo, typically 16, 17

violations before anything is done, or they can revoke probation. If

they revoke probation, the response is usually very draconian,

which lets very little in between.

If you have ever had a dog, you will know this is not how you

train a puppy. You don’t spank them on the 17th puddle. You make

sure they understand the consequences at every step along the

way. But that is not how we have managed our probationers. We

have sent extremely mixed signals to them.

So Hawaii completely redesigned the system of how they handle

probation. The probationers are brought into open court and given

a warning hearing, where they are told that the conditions of probation are completely unchanged; the only difference from now on

is that they will actually be followed through on. There is some

honestly injected into the system.

They are also assigned a color that day, and every weekday

morning they have to call a hotline. If their color comes up, they

have to go for a drug test. If they test positive, they are immediately arrested and taken before a judge and sentenced to a brief

stay in jail, typically a few days, on a weekend if they are employed.

When speaking with probationers, we use the language of, I don’t

use any more, because knowing that I might go to jail tomorrow

ruins the high. Ruining the high is a good thing. If they continue

to test negative, in other words, good behavior, they get to change

their color and they are tested less regularly and ultimately earn

their way off of testing entirely.

Under HOPE, probationers only come before the judge if they

violate. This is a distinct difference between HOPE and the drug

court approach, which helps to save on the judiciary resources,

which has very large implications for costs of running the two models.

From the very beginning, we collected data on HOPE with the

help of the Attorney General’s office. There have now been two

evaluations. One of those included an intent to treat randomized

control trial. The subjects in a randomized control trial had long

histories of criminal justice involvement, long histories of drug use.

They averaged 17 priors by the time they entered the study.

The outcomes have been striking. There were large reductions in

drug use. By 3 months and 6 months we saw 80 percent, 90 percent reductions in drug use. Comparing HOPE probationers to a

control group of probationers as usual, we found large reductions

in no-shows, large reductions in arrests, they were slashed in half,

large reductions in revocation. That is very important because of

what that means for incarceration. There were huge differences in

the number of days incarcerated between the two groups.

We have this counter intuitive result that a program that allows

swift and certain jail sanctions has an overall reduction, large reduction, in incarceration. We found an average of 130 prison days

saved per probationer.

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The other advantage of HOPE is that it provides a strategic approach for managing our limited drug treatment resources. I like

to call HOPE a behavioral triage model, where we decide who

needs treatment based on their observed behavior. And in HOPE,

80 percent of these drug-involved probationers were able to desist

from drug use without any treatment whatsoever. What that

meant is we could divert 80 percent of the treatment dollars to the

20 percent of the group who really did need care. What that meant

was Cadillac-level treatment for those probationers.

What about the probationers? They liked it. Figure 2 of my testimony that I submitted showed a survey of HOPE probationers.

Across the board, they give the program high praise. Even those

who were surveyed while they were serving a jail sentence under

HOPE had positive reviews of the program.

So no doubt in Hawaii, HOPE has been a success. It is showing

that probation can indeed be a meaningful alternative to incarceration.

Another important point to note is that HOPE isn’t only being

applied to drug offenders. It is also letting in people who committed

other sorts of crimes while under the influence. So we are seeing

many people coming in, property crimes too, and even some violent

offenders are being successfully supervised under HOPE.

The HOPE court now oversees 1,600 probationers and it is not

a dedicated court. That judge also tries other cases. And the dedicated HOPE court is expected to oversee 3,000 probationers. One

court, 3,000 probationers. The cost implications of being able to

oversee such a large load successfully are enormous.

At the moment, we are in such trouble, we really do need a mass

solution. And a mass solution requires an inexpensive response.

HOPE has been shown to be that inexpensive response.

Briefly, we need to replicate this. We have seen it in Hawaii. It

has to be replicated on the mainland. We need to see what elements are essential. We just don’t know. Ideally, a continuum of

supervision, which the others will talk about, where HOPE is on

the front end, nice and cheap, moving them into drug courts with

its wrap-around services for those who can’t survive the HOPE program.

Thank you.

[The prepared statement of Ms. Hawken follows:]

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Mr. KUCINICH. Thank you very much.

Mr. Roman.

STATEMENT OF JOHN K. ROMAN

Mr. ROMAN. Mr. Chairman, Thank you for the opportunity to

speak today.

The U.S. criminal court system has two broad mechanisms to

protect citizens from crime by drug-involved offenders. Offenders

can be closely supervised and imprisoned, or public safety could be

improved by employing more sophisticated interventions that both

rehabilitate and deter.

For two decades, decisions have been made as if this was a zero

sum game, a choice between protecting the public and helping offenders onto a better path. We have consistently chosen detection

and punishment. But there is growing empirical evidence that this

choice has led to more spending and more crime than would have

been the case via a more balanced approach.

The challenge is to identify the right mix of intervention. To address this, I want to briefly discuss three issues today.

First, do those who enter drug court do better than if they were

subject to more routine case processing? Despite dozens of studies,

existing research has not yet definitively answered whether drug

courts reduce crime and drug use.

To answer this question, in 2004 the Urban Institute, RTI International and the Center for Court Innovation received funding from

the National Institute of Justice to conduct a rigorous, multi-site

evaluation of adult drug courts. In this study, we interviewed over

5,000 offenders, conducted more than 1,000 drug tests and collected

data on drug court clients in 23 drug courts in 8 States, and druginvolved offenders going through regular court processing in 4 of

the 8 States. That was our comparison group.

We found that drug court participants self-report significantly

less criminal behavior than the comparison group. During the 18-

month tracking period, for instance, the total number of criminal

acts was reduced by 52 percent. The reductions in offending persisted throughout the observation period, even after most in the

treatment group had left drug court. We also found that significantly fewer drug court participants self-reported drug use in the

comparison group.

Finally, we find that drug courts are cost-effective. The average

net benefit to society is about $4,000 per drug court participant regardless of how well that participant did in drug court.

Second, given these results, we want to ask the question, why

aren’t more drug-involved offenders getting into drug courts? I estimate that some time this year, in 2010, after two decades of drug

court operations, the one millionth drug-involved offender will

enter a drug court. That achievement is cause for both applause

and concern. While drug courts are now fixtures in most criminal

courthouses, the rate at which offenders enroll is only growing very

slowly. Each year, barely 3 percent of drug-involved offenders in

need of treatment enter a drug court because of severe restrictions

on eligibility.

Expansion of drug courts is also slowed by a lack of funds, limited treatment availability and concerns that drug court clients

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treated in the community may commit new crimes that prison

would have prevented. A 2008 Urban Institute study examined

whether expanding drug court to more drug-involved offenders is

cost beneficial. While we found that there are about 11⁄2 million

drug-involved arrestees entering the court system annually, we estimated only about 55,000 were treated in drug court. Again, that

is less than 4 percent of all drug-involved arrestees and less than

1 percent of all arrestees.

We estimate that the United States spends slightly more than

half a billion dollars a year to treat drug court clients. This investment yields more than a billion dollars in savings. So $2 in benefits

for every $1 in cost.

We then tested what those costs would be if those offenders commonly excluded from drug court were allowed into drug court. We

found in every category but one the benefits of adding these drug

court clients exceeded the costs of treatment. Expanding drug court

to all 11⁄2 million drug-involved offenders would be expensive, with a price tag exceeding $13 billion annually. But the return would be

more than $40 billion in benefits each year.

Third, given that drug courts are cost-effective but limited in

their reach, how can the criminal justice system maximize their

use without adding billions in new costs? One way would be to use

less expensive strategies to identify defendants who can be encouraged to desist from offending, allowing drug courts to focus on

those who cannot. For example, drug courts in a program like Hawaii’s project HOPE could be linked to provide a continuum of

more effective interventions for pre-trial defendants.

Adding a HOPE-like front-end diversion program would dramatically increase the criminal justice system’s ability to manage druginvolved offenders in the community. This would be far less expensive than incarceration, would result in less crime and those who

failed could go to drug court, which is in itself a cheaper, more effective option than prison. However, despite drug court success,

without some dramatic expansion of effective supervision strategies, there is little reason to believe that the amount of crime committed by drug-involved offenders can be substantially reduced

using current approaches.

Thank you, and I would be happy to answer your questions.

[The prepared statement of Mr. Roman follows:]

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Mr. KUCINICH. Mr. Marlowe.

STATEMENT OF DOUGLAS B. MARLOWE

Mr. MARLOWE. Good afternoon, Mr. Chairman, other members of

this distinguished committee.

As Chief of Science and Policy for the National Association of

Drug Court Professionals, it should not be surprising to you that

I will begin my testimony by arguing that drug courts work and

presenting the evidence. What might surprise you is that I will

argue that drug courts do not work for everybody. They should not

be applied to everybody in the criminal justice system. We do need

a continuum of interventions that include multiple evidence-based

programs, to include Proposition 36, to include Project HOPE in

Hawaii and other interventions.

First, the clear message about drug courts. Drug courts work. In

fact, there are people in this room right now taking medications for

cancer, heart disease, asthma that have less proof of efficacy than

drug courts. The highest level of scientific proof comes from what

are called meta-analyses. These are when scientists that are not

part of the drug court field review all of the studies that have been

done on drug courts, select out only the ones that are scientifically

rigorous, and then average the effects of the intervention across all

of those studies.

The placards at the front of the room show the results of five

meta-analyses conducted by independent organizations, all concluding that drug courts reduce crime by an average of approximately

10 to 15 percent better than the alternative. But that masks a lot

of variability. The best drug courts cut crime rates in half, which

is unbelievable. The worst drug courts increase crime rates, sometimes by as much as 15 to 20 percent.

The important question is, what separates the good drug courts

from the bad drug courts? And the answer is two-fold. The first is,

the good drug courts treat the hardest offenders. They do not pick

offenders who could be handled in Proposition 36. They do not treat

offenders who would respond to Project HOPE. We take the ones

who are seriously addicted, or should take the ones who are seriously addicted, the ones who other programs can’t handle, the ones

who drop in and out of treatment, who fail repeatedly on probation

and who keep committing crimes.

The drug courts that treat those offenders get large effects. The

drug courts that treat the easier offenders get small effects. Why?

Because they are no better than the alternative. Easy offenders get

better in any program. So drug courts are not worth the extra expense for those individuals.

Second, when drug courts are treating the appropriate target

population, the effective drug courts hold the line. They do not

skimp on treatment. They do not cut back on supervision. And God

no, they do not give offenders multiple chances to act out without

being held accountable for their actions.

But what about the other offenders who can do well in other programs? What about the offenders who are not in fact addicted to

drugs or alcohol? More than half of drug offenders are not clinically

addicted, and therefore treatment services are not appropriately indicated to that population. Programs such as project HOPE bring

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behavioral principles to bear that have not been brought to bear in

standard probation practice. It is about time, and that program

should be extended throughout the country at the State, national,

local level, with the appropriate evidence guiding its implementation and evaluation.

For individuals who are addicted to drugs or alcohol, who have

real drug problems but are not antisocial, who would be willing and

able to go to treatment on their own, they don’t need drug courts.

They can and did respond well to Proposition 36. Proposition 36

was effective with about 25 percent of the population. That 25 percent were exactly where they needed to be. It was the other 75 percent who were not.

Which brings us to Congress’ role. First, there are many drug

courts still treating non-addicted low-risk offenders. The Drug

Court Discretionary Grant Program and other Federal funding

needs to require drug courts as a condition of Federal funding to

treat their appropriate target population of high-risk offenders, including violent offenders. We can talk about that during the questions.

Second, drug courts are treating about 5 to 10 percent of the eligible population. It is time to fund drug courts at the level that was

originally intended in the crime control bill in the 1990’s, which

was $250 million a year, which is a drop in the bucket compared

to what we pay for incarceration and other correctional costs in

this country.

Third, we need evidence-based sentencing. It is not fair to hold

the people in this room accountable for poisoning our stream when

the poison is entering the water five miles uphill. The problem with

individuals being put into the criminal justice system is at the

point of law enforcement contacts, prosecution charging practices

and excessive punishment. That brings in evidence-based sentencing, and that is what we need.

Thank you very much, and I am happy to answer questions when

the time comes.

[The prepared statement of Mr. Marlowe follows:]

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Mr. KUCINICH. Thank you, Mr. Marlowe.

Mr. Abrahamson.

STATEMENT OF DANIEL N. ABRAHAMSON

Mr. ABRAHAMSON. Thank you, Mr. Chair, for inviting me to

speak today. I am going to speak about California’s Substance

Abuse and Crime Prevention Act of 2000, which represents the

most significant piece of sentencing reform legislation in terms of

the number of people diverted from incarceration and the dollars

saved since the repeal of alcohol prohibition in 1933.

Now, Prop 36 came about as a direct response to the shortcomings of California’s drug courts. Those shortcomings included

severe restrictions on who got access to drug courts, prosecutors

and judges frequently cherry-picking clients for the program, who

they thought would be most likely to succeed, as opposed to those

were most in need of drug treatment.

Another problem with drug courts was judges, not treatment professionals, making decisions about appropriate treatment placements. Relatedly, a vast majority of California drug court judges,

and this is true, I think, across the United States, denied opiatedependent persons access to the most successful and proven treatments for their condition, namely methadone and buprenorphine.

Finally, drug courts in California frequently used jail sanctions

to respond to drug use relapse even though relapse is a natural

condition in part of being addicted.

Prop 36 sought to create a more health-centered approach to

drug treatment within the criminal justice system. To this end,

Prop 36 eliminated cherry-picking of clients by making eligible all

persons convicted of non-violent drug possession offenses who did

not have a recent history of violence. Treatment professionals determine appropriate treatment placements. And medically assisted

treatments such as methadone and buprenorphine cannot be denied persons who need them.

Further, drug testing is used solely as a treatment tool, not as

a grounds to impose punitive sanctions. And in fact, Prop 36 prohibits the imposition of short-term jail sanctions to respond to

drug-related violations such as drug use relapse.

Prop 36 is perhaps the most rigorously evaluated treatment diversion program in the country. Over a series of 5 years, researchers at the University of California and elsewhere collected data,

crunched it and published it. Their findings include the following:

36,000 people a year in California took advantage of Prop 36,

roughly 10 times the number that were eligible and took advantage

of drug courts in California.

Importantly, one half of all clients entering Prop 36 had never

accessed drug treatment before. This was their first option and opportunity to get drug treatment. Moreover, Prop 36 treated persons

with very serious addictions. Over one half of all Prop 36 clients

had used drugs on average of 11 or more years. These were not

low-level, first-time drug users. And in fact, over half, or roughly

half of Prop 36 clients were there for methamphetamine use. And

they succeeded in completing the program at the same rates as

other drug users in Prop 36.

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Importantly, completion rates for Prop 36 ranged, from county to

county, from 30 to 60 percent, which is almost exactly on par with

the range of success rates of drug courts, both in California and nationally. And as UCLA itself reported, $2 to $4 was saved for every

$1 invested in Prop 36.

In short, we believe that Prop 36 represents an important improvement upon drug courts as they then existed in California.

But to end the discussion here would be misleading. In the larger

scheme of things, drug courts and Prop 36 are simply stop-gap

measures, and they always will be. As long as 1.4 million people

are arrested every year for nothing more than simple drug possession, drug cases will continue to swamp the criminal justice system

and cause unnecessary misery. Neither Prop 36 nor drug courts

can solve or even adequately mitigate the systemic problems created by continued massive low-level drug arrests.

Tinkering with alternatives to incarceration within the criminal

justice system will help some people. But it will fail a far greater

number of others. Mr. Chairman, we need to move beyond drug

courts to consistent, health-centered approach to drug use. We need

to end the criminalization of simple drug use and provide treatment to drug users outside the criminal justice system.

Thank you.

[The prepared statement of Mr. Abrahamson follows:]

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Mr. KUCINICH. Thank you.

Ms. Heaps, you may proceed.

STATEMENT OF MELODY M. HEAPS

Ms. HEAPS. Thank you, Mr. Chairman. Thank you for this opportunity.

More than any other time in the history of American justice, we

know what works and what doesn’t when it comes to criminal justice and drug policy. We have moved beyond the platitudes of ‘‘get

tough on crime’’ or ‘‘just say no.’’ It is time for a change, and it is

time to stop searching for that one silver bullet program and put

in place what we know works all the way from arrest through incarceration through release.

I would like to discuss a concept called No Entry. It is not a new

program, per se, but a new way of thinking about the administration of justice. It is an idea we have been discussing in Illinois with

our legislature and with our representatives in Congress and particularly I want to acknowledge the leadership and support that we

have had from Congressman Davis in these matters.

The core premise of No Entry is halting the penetration into or

further into the justice system. Every phase of justice involvement,

from arrest to jail to pre-trial to sentencing to release is an appropriate time for intervention, an opportunity for applying the best

of what we know in science and best practice, sanctions and supervision, all with the explicit goal of preventing further or more severe justice involvement.

But No Entry is not an automatic or one size fits all approach.

Rather, it is all about levying the appropriate response for the appropriate individual in the appropriate circumstances. And I want

to acknowledge the work that Dr. Marlowe has done in terms of his

sentencing and identifying of tiers of offenders and how good sentencing ought to be applied.

The TASC model, which I have had the privilege of leading over

40 years, is but one element of the No Entry approach. The TASC

model emerged in the 1970’s under LEAA, as an alternative to incarceration. The phrase used at that time is the phrase used now:

it is time, after 40 years, we got serious and began to move ahead

with this.

The TASC model involves the use of an independent case management entity to serve as a bridge between criminal justice and

the treatment system. This entity provides independent assessment, diagnosis, treatment planning, referral and ongoing recovery

management. TASC serves every court in the State of Illinois,

every criminal court. Last year we conducted 6,700 clinical assessments and referred 3,800 individuals to treatment.

TASC takes great pride in our effectiveness. Last year, in 2009,

two thirds or 64 percent of all of our clients completed treatment

successfully, compared to only 33 percent of other criminally involved referred clients.

Additionally, client arrests for drug and property crimes were reduced by 71 percent. TASC is obviously cost-effective. The cost for

TASC in treatment is $5,000 per year. The cost of 1 year of incarceration is $24,000.

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Over the years, I have worked to expand the TASC model from

its original court and probation role into other components of the

Illinois justice system, all the way from diversion at the first offenders program that works much like project HOPE, and whose

data and success rate is equal, to jail treatment programs, to reentry programs. So it is across the spectrum.

Our basic philosophy hasn’t changed in 40 years. What has

changed is how much we know about what works. Decades of research have changed the way drug treatment is applied to criminal

justice populations. We understand the brain chemistry and the

chronicity of addiction like never before. We understand the overlap between substance abuse and mental health.

We understand that episodic acute care in a treatment setting

must be followed by long-term recovery management in the community. And we understand that new medications are developed

every year that hold out tremendous promise for treating addiction.

We know what cognitive and behavioral therapies and case management strategies can be applied and are most effective.

So what can Congress do to encourage States to put in place everything we know about effective drug and justice policy? I have

some recommendations. No. 1, I would like us to begin to treat this

as a system-level issue that will require the development of diversion programs or treatment alternatives at every juncture of the

justice system, thereby requiring a multiplicity of partners and programs. There is no one silver bullet program. I want to reiterate

that.

The response should be nuanced as to the jurisdictions in which

they are applied. We have an array of proven initiatives. Certainly

drug courts is one of them. Project HOPE looks promising. There

are a number of them. But they all require and all include certain

basic elements, which can be applied across the justice system.

Addressing alternatives to incarceration on a systems level

means we need to bring the response to scale. We need to invest

enough resources that have significant impact on the numbers of

offenders coming through. Even in Illinois and in TASC in Cook

County, we were only able to assess 2,700 people. But we know

that the Cook County jail houses 9,000 individuals every year, half

of which have a serious drug problem. So bringing it, while we

have the infrastructure that could bring it to scale, the resources

are obviously not there.

Second, I think Congress should consider mechanisms to fund

demonstration programs that apply a systemic approach. These

programs would be charged with developing the infrastructure and

service capacity to intervene with as many justice-involved individuals effectively and efficiently. They would leverage and expand, leverage and expand, and improve existing programs and partnerships such as drug courts, TASC programs and other offender management programs. They should also be rigorously evaluated for

their effectiveness.

Congress must also use the Justice block grant fund, and I know

you talked about this early, to incentivize States to develop programs for prison crowding. Obviously, the Council of State Governments and the Justice Department reinvestment strategy is one

way to do that. Those States demonstrating a reduction in popuVerDate 11-MAY-2000 15:18 Jun 09, 2011 Jkt 000000 PO 00000 Frm 00124 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\65558.TXT KATIE PsN: KATIE
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lations and cost offsets applied to expanding community treatment

should be eligible for a different formula for calculating and expanding future year block grant funding.

Third, I think we need to require the National Institute of Drug

Abuse to continue to prioritize research and the discovery of effective interventions for persons with substance use disorders. And

further ensure, and I think this is really important, that NIDA

support efforts to translate that research to practice by supporting

initiatives such as they do now called the Addiction Technology

Transfer Center and blended conferences, bringing researchers and

practitioners together.

Further, we need to prepare for the impact national health care

will have on making treatment available for all offenders now not

eligible for treatment. The advent of universal eligibility represents

a fundamental shift in treatment funding and will likely result in

new partners and new types and modes of treatment. It will definitely result in new levels of planning and coordination.

Finally, I want to commend the Office of National Drug Control

Policy on their support for interagency work and planning through

their interagency work groups. I also want to encourage that there

be more experiences of blending funding between agencies, Justice,

SAMHSA, etc., so that supports some of the demonstration on

other programs.

And last, what is not in my testimony, I would be remiss if I did

not say it is time that Congress stopped legislating according to the

latest drug du jour. It is not the drug du jour that is the problem.

There will be a new drug available to Americans to take their

hearts and minds and souls every year, every month. What we

need to do is look at the issue of addiction and what works in

terms of helping that addiction as opposed to responding to the latest drug of choice.

Thank you, Mr. Chairman. Thank you. It is a pleasure to be

here.

[The prepared statement of Ms. Heaps follows:]

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Mr. KUCINICH. Thank you, Ms. Heaps.

Professor Pollack, you are recognized.

STATEMENT OF HAROLD A. POLLACK

Mr. POLLACK. Thank you very much, Mr. Chairman. I also would

like to acknowledge Representative Davis’ wonderful work, particularly on behalf of injection drug users in Illinois.

I would like to emphasize several points today, many of which

have come up before. First, drug courts and other diversion programs help many individuals and are highly cost-effective and require more resources. These programs cannot as currently operated

be expected to much reduce the prison population. This may seem

counter intuitive, so let me say something about that. Many diversion programs are based on two completely correct premises. One

is that treatment reduces drug use, and the second is that reducing

drug use will reduce crime.

Interventions channel drug-using offenders into treatment and

for the individuals involved, these interventions are very important

and effective. So expanding these programs is something that deserves high priority.

When we think about this at the population level, however, we

see these programs have basic limitations, which helps to explain

why the proliferation of drug courts and other diversion programs

has not slowed the incarceration of drug users. As noted in our accompanying materials and as has been talked about by several previous witnesses, the number of Americans incarcerated every year

for drug offenses has increased since 1980. In our data, the number

of prisoners with drug problems markedly increased over the past

20 years, despite the fact that in many ways the overall drug use

population is actually going down, at least when we look at heroin,

cocaine and methamphetamine.

So what is going on here? There are three obstacles that really

require attention. The first of which we have discussed already is

that the overall capacity of drug courts is quite limited. Drug

courts handle about 55,000 offenders per year. To put this in context, there are about a million drug-involved offenders that pass

through the criminal justice system every year. So as several witnesses have discussed, the value of something like HOPE as a

front-end intervention would be very important. But we have to

somehow address that obstacle.

Second, drug courts do serve a relatively low-risk population,

rather than the much larger criminally active groups that are the

ones that actually determine the prison population. Only 12 percent of drug courts accept clients with prior violent convictions. Individuals facing drug selling charges, even if the seller is drug-dependent, are often excluded. Other charges that routinely lead people to be excluded include theft, fraud, prostitution, domestic violence.

We find in our own statistical work that the typical drug court

eligibility requirements would exclude about 70 percent of newly

sentenced offenders who present with heroin, cocaine or methamphetamine disorders. So many of the offenders who are eligible

for drug courts are really not the people who are contributing numerically to the prison population right now.

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So as currently operated, drug courts help many, many specific

individuals. But they can’t really be expected to reduce the prison

population unless we expand the categories of individuals that

these interventions will serve.

And this brings us to the third issue that we talk about, which

is the systematic mismatch between sentencing practices and actual criminal careers of drug-involved offenders. And this is very

much the evidence-based sentencing set of issues that have been

talked about before. Between 1986 and 2004, the median age of

newly admitted inmates with cocaine disorders increased by 8

years, from 26 years old to 34 years old. We see similar, although

somewhat less dramatic patterns for other substances. We actually

don’t see the same aging of the population for prisoners who don’t

have drug disorders.

Why is that important? As drug users get older, they are treated

increasingly harshly for each successive offense. And they become

less eligible for a lot of the diversion programs that we have. Many

of these individuals have long criminal careers that include property crime, failed drug tests and violations that might land them

back in prison. They are progressively more likely to get harsh sentences even as we know they are progressively less likely to actually be violent and to commit violent crimes.

We examined prison data from the year 2004, and we compared

young drug-involved offenders to old drug-involved offenders. What

we found was that drug users under the age of 25 were twice as

likely to have committed a violent crime, but they were much less

likely to be labeled habitual offenders or to face sentencing enhancements.

So if we want to prevent violence, policymakers need to explore

alternative mechanisms, alternative sentencing policies and postrelease policies that match the dangers that offenders are posing.

And really, we think there are two different populations that deserve attention.

One is we need to explore the expansion and improvement of intensive programs for young drug users. These are by far the most

violent segment of the drug-using population. They are difficult clients to serve. Judging by the standard clinical criteria, programs

are going to look bad if they really focus on this population. They

often achieve poor treatment outcomes. They can be difficult clients

for a lot of programs. The crime control benefits of serving this population are very great.

Two final thoughts. One is that offenders’ everyday experiences

in programs is what is really decisive in determining whether programs are effective. And I very much agree with the sentiment expressed, we spent a lot of time looking for a breakthrough program

model or theoretical perspective. The quality of how programs are

implemented is really much more important. And if you say, what

is special about HOPE, what is special about a lot of interventions,

they are done well. And that is really important.

Offenders learn very quickly from their daily experience whether

a program is going to respond predictively, swiftly, and credibly, either to the violations or to their positive behavior. If the program

responds quickly, you can influence offenders. If it doesn’t, you very

quickly lose the ability to be effective in behavior changes. So I

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think John Roman’s work certainly speaks to many of these issues

very well.

Finally, we lack strong data to evaluate the most common or the

most promising interventions. I think it is true that drug courts are

the most carefully studied interventions we have in the area. Even

so, recent systematic reviews identify only four studies that use

random assignments that really reach perspective to help us. We

need to do more rigorous intervention trials, particularly ones that

explore how we can serve offenders who are unlikely to participate

or who are unlikely to be permitted to participate in our traditional

efforts.

Focusing on the young offenders who need more intensive services and the older offenders who are less violent are really two

areas that we need to emphasize. We do need to expand drug

courts to serve people who are not currently being served. It won’t

be easy, and an evidence-approach to it is quite important.

Thank you very much, and I would be happy to answer your

questions.

[The prepared statement of Mr. Pollack follows:]

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Mr. KUCINICH. Thank you to each and every one of you for your

testimony. As I said, having reviewed the fullness of your testimony, I felt very constrained to interrupt any of you. I know that

some of you were as brief as you could possibly be. I appreciate

your help with that. I honor your work and your presence here.

We held a hearing last month where the ONDCP Deputy Director, Dr. McLellan, and the NIDA had explored the theme of treating drug addiction as a disease. What I would like to hear from

each member of the panel, describe for me the tension between the

operation of any programs that we are discussing here with the

idea of criminal punishment for continuing to use drugs or suffering from chronic relapsing conditions. Underpinning that, assumptions of whether individuals have control over that at all. I would

like to hear from you.

So let’s start with Professor Pollack and go right down the line.

Just give me your thoughts about that.

Mr. POLLACK. Well, there are gradations of drug use that are important to think about. But it is something that we need to approach as a public health concern. And one of the——

Mr. KUCINICH. As a disease? As a health condition?

Mr. POLLACK. Certainly, for people who are dependent, it is a

disease. Also, many diseases that we treat have behavioral components that have common elements with substance use. If you look

at diabetes, diabetes has a substantial behavioral component to it.

When people eat candy bars when they’re diabetic, we don’t kick

them out of the diabetic clinic. We need to understand, many diseases have the kind of psychological and behavioral dimensions

that we deal with in substance abuse as well.

Mr. KUCINICH. Ms. Heaps.

Ms. HEAPS. I understand there is a tension. It always amazes me

that we don’t seem to understand that they are not mutually exclusive. We do know that now addiction, beyond a reasonable doubt,

is a brain disease and it is chronic. There are consequences to not

complying with treatment. And if that——

Mr. KUCINICH. You are saying addiction is a brain disease based

on neuroscience research?

Ms. HEAPS. Based on the neuroscience and all that we have seen.

It has been, I think, one of the most remarkable advances in treatment by coming to really understand that.

However, there are consequences to not complying with treatment. And if that non-compliance means that individuals have engaged in a criminal activity which is at harm in the community,

they need to pay those consequences. We know very much that consequences are important in terms of helping individuals comply.

Therefore, there has to be an understanding.

Now, does that mean if an individual is in, has complied with

treatment and has a relapse in the community and is using drugs

and all of a sudden we yank them back and send them back to

prison? Not necessarily. It is certainly possible that we can look at

that person, assess the level of treatment they are getting, assess

where they are, and like any other disease, suggest perhaps a new

treatment intervention, a new increase in dosage, etc. I think we

have to be able to blend more carefully what we know about interVerDate 11-MAY-2000 15:18 Jun 09, 2011 Jkt 000000 PO 00000 Frm 00144 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\65558.TXT KATIE PsN: KATIE
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ventions with regard to chronic disease models and recovery in the

community.

Mr. KUCINICH. Mr. Abrahamson.

Mr. ABRAHAMSON. [Remarks off mic.] There is no question that

there should be criminal justice involvement. And that the rule for

treatment within the criminal justice system is an important one

and must be provided consistent with evidence-based proven principles of how to provide that treatment.

There is a fundamental tension, however, when dealing with

drug use in and of itself where there is no harm to others or property. And there is a fundamental tension in using the criminal justice system to assess and to address that type of drug use. I believe

that fundamental tension of incorporating the criminal justice system in those circumstances actually serves to undermine core principles of treatment, to weaken treatment and distort how treatment is delivered, and that treatment ought to be delivered to

those persons who should not be involved in the criminal justice

system in community-based settings.

And that their relapse on drugs, as discussed earlier, as a common condition of being addicted, should not be addressed through

punitive sanctions.

Mr. MARLOWE. Any concept, over-applied, will fail. Addiction is

a brain disease except when it isn’t. People require punishment except when they don’t. And they require treatment except when they

don’t.

In other words, there isn’t one type of drug-involved offender.

Most drug-involved offenders do not suffer the brain damage that

we are referring to as addiction, when they have exposed their

brain repeatedly to a toxin and changed the neurochemistry of

their brain in many respects permanently. Most offenders are not,

in fact, addicts. So treatment——

Mr. KUCINICH. Most offenders are not in fact what?

Mr. MARLOWE. Addicts. Most offenders, drug-involved offenders,

are abusing, using drugs but have not damaged their brain sufficiently. So we need to make a distinction between the abusing offenders and the addicted offenders.

We then need to make a distinction between the antisocial offenders and the non-antisocial offender. If somebody is addicted

and antisocial, they need both treatment and criminal justice monitoring. If they are addicted and not antisocial, treatment in and

of itself would be an appropriate disposition. If they are antisocial

and not addicted, the criminal justice system in its traditional

manner would be the appropriate disposition. And if they are neither addicted nor antisocial, we should divert them out as quickly

as possible.

In other words, if we come up with a policy that overapplies one

concept to a heterogeneous population, we will keep making the

same mistakes over and over again.

Mr. KUCINICH. Is that what we are doing?

Mr. MARLOWE. That is what we are doing. No question about it.

It is a pendulum and you can watch it go back and forth. I can predict where the conversation will go over the next 10 years. Right

now we are going toward diverting out, primarily because of the extensive correctional costs, legalizing people are out pushing for nonVerDate 11-MAY-2000 15:18 Jun 09, 2011 Jkt 000000 PO 00000 Frm 00145 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\65558.TXT KATIE PsN: KATIE
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consequences. We are going to be moving more toward a public

health model in and of itself. Crime rates will go up. Violence rates

will go up.

Don’t you believe for 1 second that the drug problem is going

down in this country. It may be that there is less crack cocaine and

methamphetamine. We now see oxycodone, Vicodin, it is just

changing the face. If we don’t do both, hold people accountable and

provide treatment when it is necessary, we will be 10 years from

now talking about the failed rehabilitation efforts and the need to

reincarcerate, because we have been there five times before and we

will be there five times again.

Mr. KUCINICH. Mr. Roman, and then I have a followup question

to everybody on the panel after Professor Hawken responds.

Mr. ROMAN. Let me try and say something that hasn’t been said.

I would really caution against minimizing how much criminal activity surrounds drug trade and drug use. The correctional system,

the courts, the law enforcement——

Mr. KUCINICH. Is anyone here minimizing it?

Mr. ROMAN. There are suggestions that a lot of the people who

are getting into drug courts in particular aren’t people who have

any serious criminal involvement. That is true, because we exclude

the people with serious criminal involvement from drug courts. But

the population that we would like to have into drug court, if you

expand it in the ways that I sort of discussed earlier, would be people who have involvement in serious criminal activity. So to that

extent, the courts do seem an appropriate place to work with them.

That is more true now for two reasons. One is that the courts

are more and more integrating public health principles. We talked

about drug courts today, but there are all sorts of alternatives.

Mr. KUCINICH. Those principles being?

Mr. ROMAN. The sort of principles of including therapeutic jurisprudence, this sort of idea that relapse is part of recovery, that you

don’t just the first time somebody relapses, you don’t just send

them back to prison, you give them sanctions, the graduated sanctions model. It has really begun to permeate the criminal justice

system. I think I am more optimistic than Doug that we can continue to head in that direction and that we should.

And the other thing is really just from a purely practical perspective, our research really suggests that coercion works. The main

thing that we see in our drug court study that predicts how well

a drug court works, not practices, but the court itself, is how well

the judge, how effective the judge is at communicating to the defendants in front of them, and that courts that really have good

judges, good leadership, have the best results. Better than we have

seen in the public health model.

Mr. KUCINICH. Professor Hawken, the question I have asked everyone to address is the overall question of treating drug addiction

as a disease. I know that your background is very strong on policy

analysis. So help us go in that direction. Give us your opinion on

this.

Ms. HAWKEN. I think we had the example of diabetes earlier. If

we had a group of 100 diabetics and we looked them in the eye tonight and we said, if you wake up tomorrow with diabetes, you are

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going to jail. Well, tomorrow morning all 100 of those diabetics are

going to continue to be diabetic.

If we did the same thing with 100 drug offenders, tomorrow

morning only 20 of them are going to be drug offenders. Eighty percent of them are not. That’s what the Hawaii data are showing us.

The problem we have is figuring out who is that 20 and who is

that 80. Who is the true addict and who is just misbehaving? Because we don’t want to spend our treatment resources on those who

are just misbehaving.

This is the issue, we have very weak mechanisms of deciding

who is in which camp. Primarily we rely on assessments of these

drug offenders, and the assessments rely heavily on self-report.

Now, if you have ever met a drug offender, you will know these

guys are not stupid. These are very smart individuals. If you tell

them, they know very quickly that certain kinds of responses will

lead to different kinds of consequences. So if I exaggerate my drug

use, I am likely to get a treatment referral rather than a jail stay.

The incentive is to exaggerate.

Or if they know that if they under-report their drug use, they are

more likely to get into a less intensive treatment program, well,

today they are going to under-report. They lie. And we have very

compelling evidence, as David Farady’s research has shown, a 70

percent disconnect between what they say and what their hair says

they have been doing. My research shows a 50 percent disconnect.

In other words, we know nothing from what they tell us.

So we are in a pickle. If we could brain scan all of them and see

the brain damage, we would know who goes where. But that is too

expensive. We need programs like HOPE, and it doesn’t have to be

HOPE, HOPE is one, we need to experiment with others, but that

can very quickly help us identify who belongs where, who is the

true addict and who can be managed inexpensively by just looking

over their shoulder more closely.

Mr. KUCINICH. You raise a question. Is there a Munchausen syndrome amongst addicts, people just making up the degree of use?

Ms. HAWKEN. Well, misreporting, there is an incentive to

misreport your drug use if there is an outcome you know that you

can change. And there ultimately is, there’s a decision about what

will happen with you within the criminal justice system, or there

is a decision that can be made by someone else about where you

will end up in the drug treatment system. Those are consequences,

so you can game. It is a gaming problem.

Mr. KUCINICH. Mr. Marlowe, I saw you shaking your head there.

Mr. MARLOWE. The problem with addicts is not over-reporting.

The problem with addicts is under-reporting. Munchausen syndrome is so that you can gain positive attention. Since addicts don’t

get positive attention in our society, it is never the part of a Munchausen syndrome. The issue is to be able to identify the person

who is minimizing their drug use, who really has an addiction

problem. And the way you do it is you talk to their mother, or you

talk to their father, or their friends. And you will know immediately who the addicts are and who the non-addicts are, because

their behavior is fundamentally different.

If you are only going to ask them, hey, Mr. Chairman, are you

an addict or not, and rely on your answer, then you are right, we

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are going to do a lousy job. But if I talk to the people who know

you, I will know. And if I look at your record and your background

and treatment, I will know very reliably whether or not you are an

addict.

Mr. KUCINICH. Which gets into the second question I wanted to

ask each member for a brief response. Are there predictors, social

predictors, of who becomes an addict and who does not? And the

more fundamental question, which I try to ask of everyone who testifies in front of this committee, if I have the chance to, what is

this in our society or any society about this tremendous move toward addiction? What is it about, how does it happen? Certainly

every one of you has a theory about what drives addiction generally

to anything. But we are talking specifically about drugs that can

have a very damaging effect on peoples’ lives.

So if you would like to try a stab at that in any way, I would

appreciate it, Professor Hawken.

Ms. HAWKEN. I don’t think I can give a very good response to

that. I don’t really know. I think we have some evidence on genetic

links. I think primarily the issue is drugs are very nice for most

people. They take them and they enjoy them. And people want to

do more of that.

I think in tough economic times, people want more of something

really pleasant and will do it. I think it is very difficult to try to

pinpoint one particular explanation for something as complex as

drug use.

Mr. KUCINICH. I would like to hear some generalities at this

point. Because we are having hearing after hearing on this matter,

our subcommittee is charged with the responsibility to review these

policies. But what we are doing is trying to get some fundamentals,

even if it is speculative, I would like to hear it. Mr. Roman.

Mr. ROMAN. It is a very good question and one I wish I had

thought more about. I think what we see in looking at the statistics

about who comes into drug court, what you are seeing are people

who have an enormous number of problems. There is a lot of cooccurring mental health disorders, since people are to some extent

self-medicating. There are a lot of people who have personal lives

that are in absolute disarray.

We looked at a study in Brooklyn, and I think the average

woman who entered the Brooklyn treatment court had had four

children and had custody of less than one. These are people who

have, we see evidence that drug court increases income among people who get drug court. It increases it from like $12,000 a year to

$13,000. So these are people who on average wouldn’t even qualify

to take a GED program.

So, people who have just enormous structural deficits in their

lives are the population who tend to come into drug court. Doug

and other people can talk better about this. But you look at other,

you look at a DWI court when you are dealing with alcoholics and

you are talking about, you would see people with a different set of

predictors. But at least for drug court, that seems to be the story.

Mr. MARLOWE. It is a matter of Darwinian evolution. Drugs were

developed because plants needed to control the behavior of insects

and rodents in order to have their pollen spread, in order to avoid

predators. So they created chemicals that are meant to speak to

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our brains in ways that we like our brains spoken to, in ways that

are fundamentally rewarding and eventually make you sick if you

stop taking them.

So plants that are addictive were created through eons of evolution to do exactly what they are doing. We are wired to want to

feel good. We like it when certain parts of our brains light up. And

that is why the primary motivation for drug use is to do the happy

dance that Professor Hawken was talking about. Then it switches

to making the withdrawal symptoms and the cravings go away.

Now, the issue about the more broken the population the higher

the rates, there are several things at work. One is downward drift.

The more people use drugs, the less competent and effective they

are, they get poor, they get sick and their families suffer and their

offspring suffer as a result. So drug use leads to poverty as much

as poverty leads to drug use.

In addition, the more pain and disorganization people experience,

the more they want that to go away by replacing it with mood altering drugs. So there are many reasons why addiction is so rampant. But from a Darwinian perspective, we should wonder why it

isn’t more rampant than it in fact is.

Mr. KUCINICH. Let me ask you, since you have this background

in psychiatry, if a mother or a pregnant woman, rather, is an addict, is it more likely that the fetus, development of the fetal brain

will have the kind of hard-wiring characteristics that you talk

about that creates a greater propensity toward addiction for that

fetus?

Mr. MARLOWE. Yes and no. If a first degree relative is an addict,

you have a 50 percent greater likelihood of developing addiction.

That is because of genetic vulnerability.

Mr. KUCINICH. We are talking about addiction, we could be talking about any kind of addiction, alcohol, drugs, anything.

Mr. MARLOWE. Correct. As Melody made the point earlier, the

drug of abuse really isn’t that relevant. All drugs of abuse work on

the brain pretty much the same way. Some are dirtier than others,

but they are triggering the same brain regions that cause reward.

That is basically what is going on.

The mother who is using drugs is passing on two problems to her

child. Actually three problems to her child. One, she has a genetic

vulnerability that just because it is her child, her child will have.

Two, she is modeling misbehavior for that child by using drugs

during that child’s growing up years. So the child has a genetic vulnerability and is witnessing the bad behavior.

Third, the in utero exposure to drugs of abuse damages the

brain, no question about it, including marijuana, cigarettes, particularly alcohol. So that fetus, when it is born, is now less capable

of functioning well in society. So now it has a genetic vulnerability,

bad modeling from mom and dad, and it can’t function as well as

his friends and other colleagues. So it is a triple threat. You do not

want a mommy or a daddy using drugs. It is the last thing in the

world you want.

Mr. KUCINICH. Mr. Abrahamson.

Mr. ABRAHAMSON. Mr. Chairman, I don’t have the background to

speak to the social predictors of who uses drugs or who becomes

addicted. But I can speak to the social predictors of who uses drugs

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and becomes an offender within the criminal justice system. I think

the leading social predictor for that is poverty, lack of resources.

For people with means, for people with money, people who can

afford drug treatment in the community, those people do whatever

they can to keep themselves, their family members, out of the

criminal justice system and to provide substance abuse treatment

when it appears that such treatment is needed. We have resorted

to using the criminal justice system for providing treatment to

those without means. So we have essentially a two-tiered system.

I think the recent reforms in health care, which seek to assure

that private insurance provides insurance for substance abuse

treatment on par with other medical conditions is an important

background fact for this entire discussion that places substance

abuse and addiction squarely within the health sector. And it is for

the people without means that we resort to the criminal justice system to provide what ought to be provided in the community. Thank

you.

Mr. KUCINICH. Ms. Heaps.

Ms. HEAPS. It is a wonderful question, Mr. Chairman. We take

drugs because we want to feel better, we want to relax, we want

to get energy, any thousand reasons why we take drugs in this

country. And I am so glad we are talking about alcohol. We have

to understand that our fascination with alcohol in this country is

generations and centuries old.

There is a new book out called The Last Call, and I recommend

it to everybody. The Last Call. It has actually gotten quite good reviews, and it really is looking at alcohol, its policy over the last two

centuries. It is an amazing discussion of how we have come from

women who were WCTU individuals, because their families were

being broken up because of the degree of alcoholism, and the

United States, when we were awash with alcoholics, to the amendment which absolutely said we couldn’t drink at all to where we

are today.

So there are reasons why we either sensationalize drug and alcohol use and make it a Hollywoodesque approach. Or we are embarrassed by it, and say, oh, we don’t want to be purists, we don’t

want to be WCTU, we are going to put it in the closet. Or we say,

medical marijuana seems to be OK, and we don’t put the rigorous

test of what that means and how it is dispensed in the same way

we do other medications for illnesses.

It seems to me, until we come up with a public health approach

to drug use and addiction, just as we did to cigarette use, until we

get messages out that, yes, taking drugs is really maybe a potentially dangerous, dangerous game, and you need to understand the

consequences of it, you need to understand the effects of it. It needs

to be on the media. We need to approach it just like we did cigarette use.

I think until we get to that place in our society, we are not going

to be able to tackle this problem. It is in some ways an infectious

disease. The more you see people use it, the more they seem to be

excited by it, the more, the kids in high school are trying it and

getting high and isn’t that fun, and a little bit here and a little bit

there. But we don’t know what their genetic deficiencies are. We

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don’t understand when that initial poor judgment on drug use is

going to trip into perhaps a more serious abuse and even addiction.

So I really do think we need to take a real look at our drug policy

and start to very seriously say, drug use has consequences, and

Americans, we need to know what those consequences are. It is and

can be a very devastating disease.

Mr. KUCINICH. Professor Pollack.

Mr. POLLACK. I want to make a general comment and a specific

comment about prenatal substance use, which you mentioned. I

think as a general comment, the use of intoxicating substances is

really very deeply embedded in our culture and our economy. I

think the alcohol issue is so profound in every area of public health

and public policy. It is striking, actually, I realized at some point

I knew very little about marijuana. I had done all this public

health and criminal justice research, and for most of the issues

that I studied, alcohol was so critical and marijuana was a little

bit less critical, although it is also a significant issue. But alcohol

just comes up so often.

When people use intoxicating substances, they sometimes lead to

problems in their lives. You go to college, you drink a lot at parties

and you graduate, and then you realized you can’t get hung over

and go to work the next morning. Most people have cues in their

lives that allow them to stop using at that point, or to reduce the

use so it is not harmful. Some people, either due to genetics or because of their life circumstances are such that they don’t generate

sufficiently powerful ways to control that use, and they have use

disorders. Those are the people that end up in our treatment.

But I think there is a much broader issue about how do we reduce or control things like alcohol that are just out there, normative, tobacco another one.

On prenatal substance use, I think the most serious issues that

we need to focus on are really two-fold. One is, for most of these

substances, the most serious biological issue is that they are going

to increase how much mom uses alcohol. One of the ironies in the

cocaine debate was that biologically, the cocaine wasn’t all that

harmful to the fetuses. But these moms were doing a lot of alcohol

use and other things during pregnancy that were embedded in the

cocaine use that created an issue.

The second issue of course is, it is really hard to take care of

your baby if you have a drug use disorder. And a lot of these infants are quite healthy when they are born. But then the question

comes in, how do we take care of that child. So we have to be very

careful, one of the ironies in the cocaine debate was, we really stigmatized a lot of these infants as biologically damaged. But the real

damage was pediatric, it wasn’t obstetric. It was, how do you take

care of this basically physically healthy baby if mom has a cocaine

disorder.

So I think that there are changes to the brain in utero and so

on. But we have to be a little bit careful about that. Because the

real issue is just who is going to take care of this child after that

child is born. Most of these kids are quite capable of leading very

healthy lives if they are raised with the resources and the nurturing that they deserve.

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Mr. MARLOWE. I am sorry, I can’t let that go unchallenged. There

were a lot of assumptions about crack babies and all kinds of terrible things that were going to happen that didn’t occur. So therefore, everybody has breathed a sigh of relief and said that there is

no damage.

I can assure you, Mr. Chairman, you would not be the chairman

of this committee if your mother was smoking marijuana or using

cocaine when you were in utero. Because you would probably on

average be about 5 to 6 IQ points lower. And that 5 to 6 IQ points

would make you much less adaptive to the world as it is.

Mr. KUCINICH. Given that I am a Member of Congress, I am not

going to comment on that. [Laughter.]

But I appreciate your generosity.

Mr. MARLOWE. The point is that we are seeing that the disruption occurs after fourth grade, probably sometimes closer to fifth,

sixth, seventh grade. Disinhibition, lack of attention, lower IQ.

There is no question about it.

Mr. KUCINICH. There is a lot of research available in the Journal

of Endocrinology and other places where, if a pregnant woman consumes a lot of alcohol, the potential for, for example, the

neuroendocrine system to be adversely affected is possible. There

are some studies that would suggest that.

I know that Professor Hawken has a plane to catch. And if you

are flying out of BWI, based on my experience, if your flight is at

8 o’clock, this would be a perfect time for you to leave. Is there anything that you wanted to add before you are excused? And if there

is anybody else that has any flight arrangements that would require that you leave right now.

Ms. HAWKEN. I do have one final comment, and I would like to

thank you for mentioning one of the recommendations that I never

made it to today. That was the use and abuse of evidence-based

practices and how weak our evidence base really is.

But the last recommendation I would implore you to take seriously as I fly out of the room, quite literally, is to try to encourage

truly independent evaluation. To grow this research field, we really

have to do more good research. I am saying this because I was an

evaluator of Proposition 36. And the State agency that was being

evaluated under Prop 36 also oversaw the evaluation.

We really have to make sure we have truly independent evaluations and try to find some way of separating the task of evaluation

from the organization that is being evaluated. That is something

that happens all the time, and we are never going to improve the

field. The evaluations that came out of those studies where the

evaluated is being evaluated are always much higher. They never

look bad, because they control the dissemination of information,

which is not good for the field at all.

Mr. KUCINICH. I appreciate your testimony and the subcommittee

will be in touch with you regarding some followup questions that

we have.

Ms. HAWKEN. Good. Thank you very much for your time.

Mr. KUCINICH. For the rest of the panel, if you could just remain

for a few more minutes, because I have a number of other questions, if you have the time. Why don’t we just agree that no matter

what, by a quarter after 6, can all of you stay until then? And I

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know there are people in the audience who have to go and have

been very patient. It has been a long day here already.

I want to go to Dr. Marlowe and Dr. Roman. Both of you support

the expansion of drug courts to enroll offenders with more serious

drug abuse problems and criminal histories. However, it appears

that drug court clients in these populations may have different

needs, and hence that drug court operations must also change to

meet them.

What does the research have to say about the effectiveness of the

current drug court model in meeting the needs of these offenders?

And does more research need to be conducted on the issue? You can

answer that now that Professor Hawken is gone. [Laughter.]

Mr. MARLOWE. The drug court model was built for the high risk

addicted offender in mind. That is what the 10 key components was

built for. The weak link in drug court practice is treatment. That

is where the weakness is. Many drug courts can only draw from

outpatient programs that have a handful of hours a week to provide service. You need to be filling 40 to 70 percent of a high-risk

addicted offender’s time with treatment and vocational and other

services. That is really where the biggest weak link is. Probation

is already suited to the job. The judiciary is already suited to the

job. It is in the clinical services.

Mr. ROMAN. I would just add to that, I think one of the things

that I see when I go to drug courts is that I think they don’t take

the, one of the things people always say about drug courts is if you

have seen one drug court you have seen one drug court. And they

are all different. When we did our study, we got 23 drug courts and

they are all over the map in terms of outcomes. There is very little

standardization. NDCI has done a terrific job trying to provide

training to try and get drug courts to read from the same sheet of

music. I think they have been effective, but there is a long way to

go there.

One of the things that we find is that the sanctioning model that

comes out of HOPE is the sanctioning model that comes out of drug

court. It gets applied very haphazardly in drug courts in a lot of

places. If you are going to work with a more serious population

that is of higher risk to the public from being treated in the community rather than being incarcerated, then you have to take very

seriously the piece of drug court that is most effective at managing

their behavior. That is graduated sanctions.

So the one thing that I advocate is that we need to start saying,

we find these great pieces of research like what Doug found with

the relationship between high-risk offenders and the judge. Then

what we have to do is set up some sort of mechanism that credentials drug courts that use those best practices. It has two advantages. One is that it is an easy place to go for them to get information about what works.

The second thing is, we don’t have to continue to say, wow, we

need to do more drug court evaluation. All we need to do is for you

to demonstrate that you adhere to best practices. Then when you

go to your county commissioners for additional funding, you don’t

have to pull out a drug court evaluation. You just say, I have this,

I have been accredited, I have been certified, whatever the thing

is.

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Mr. MARLOWE. I second that. That is exactly what we need to do.

Mr. KUCINICH. Professor Pollack, in a paper you co-authored, you

report that you find the fact that only one third of Prop 36 clients

completed treatment, encouraging given comparative outcomes

from other criminal justice referrals, and the fact that the sanctions for not completing treatment were not severe. Some point to

this one third number as a disappointment and a prime motivating

factor to the failed attempt to modify the program.

Why should this be considered a success? I would also like to

have Mr. Abrahamson reply to that.

Mr. POLLACK. Others here know more than I do about Prop 36.

I would say, if I were to design an optimal public policy, I would

have a more, I would have a deeper infrastructure than they have

been able to establish in Prop 36. Clearly, there is a significant

management challenge of that number of people and how do we

really sort through it, as Angela discussed, how do we really sort

through it to find the appropriate people.

Given some of the shortcomings of the program, when I look at

the outcomes, they are not bad. There were a lot of people who

were effectively served through Proposition 36, even though it was

not a particularly, it was a policy that was not implemented in the

way that drug courts over time can be done.

If you look at traditional treatment programs, a lot of people

don’t finish treatment in all the treatment modalities. So we have

to take that one-third number and keep it in some perspective.

I will let others comment.

Mr. KUCINICH. Mr. Abrahamson, do you want to comment on

that?

Mr. ABRAHAMSON. Yes, thank you, Mr. Chair.

The one-third figure, three comments. First, the one-third figure

of successful completion of treatment in Prop 36 is on par with the

completion rates in drug courts and other criminal justice interventions and the UCLA study says as much. Now, there is a separate,

slightly different issue also involving the term one-third or onefourth which is the no show rate of people who agreed to participate in Prop 36 but never showed up to treatment.

Now, that no-show rate, there are three points to that. First,

again, that would be on par with the data that we have for other

criminal justice interventions of who agrees at first to accept that

intervention and doesn’t show up. But the second, more important

point is, when that figure was published by UCLA, counties around

California stood up and said, that just doesn’t resonate with us.

Our experience with Prop 36 was quite different.

So they went back and they looked at the data that UCLA had

used about the no-shows. And they discovered a couple of things.

First, that no-show data included people who, after accepting Prop

36 treatment, changed their minds and said, no, sentence me to the

traditional incarceration term that I would be subject to without diversion. That number also included people who had pending court

actions and who were rendered ineligible for Prop 36 because they

had another court case in the system.

That no-show figure also included people who participated in

drug treatment programs not funded by the counties, namely veterans, who received treatment through the VA system, and persons

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with money who could pay for their own treatment outside of the

county system. Those people went to treatment, completed treatment but were listed as no-shows in the data.

When the data for L.A. County was recalibrated to take account

of each of those categories, the no-shows dropped from 45 percent

in 2001 to 6.7 percent. And for 2002–2003, the no-show rates

dropped from 35 percent to 2.6 percent. Those are critical drops. So

I would suggest that the data that was published on that issue was

deeply flawed.

One last comment. Prop 36 has not and likely will not meet its

full potential, providing adequate treatment to people in the system. By the law’s own terms, people are to be assessed according

to their treatment needs and placed in the appropriate treatment.

So a person who is not addicted to drugs should not be receiving

traditional drug treatment through Prop 36. And those that are

deeply addicted and need inpatient treatment should receive that.

That promise has not been met in Prop 36 for the chief reason

that starting in 2005, Prop 36 became dramatically underfunded.

According to the legislative analyst’s office and the Little Hoover

Commission in California, adequate treatment funding for Prop 36

should be set at 2008 levels of $220 million a year. Instead, in

2007, Prop 36 was cut from $120 million to $100 million. And last

year it was cut to $30 million. And this year, funding for Prop 36

might be cut altogether.

And so that is the situation we find ourselves in. Thank you.

Mr. POLLACK. Could I just quickly add that the State and local

budget crisis is so fundamental to everything we are talking about.

I get the sense that drug policy, we have health reform coming in

2014 in a big way. And until 2014, we are really going to struggle,

because States and localities just do not have the funds to do services. And substance abuse and mental health services are precisely

the kinds of things that are getting very deep budget cuts all over

the country.

I think we actually all have a really strong degree of consensus

about a lot of the programs that need to be done. I think these are

just not going to be funded at the level that they need to be funded,

particularly as stimulus funds run out. The budget crisis in Illinois,

California and many other States is just killing a lot of programs

that have a strong evidence base. That hasn’t come explicitly today,

but it is fundamental.

Mr. KUCINICH. One of the things that I noted in Ms. Heaps’ testimony, which really went the distance toward addressing some of

these underlying economic issues, where I think you had talked

about preparing for the impact national health care will have on

making treatment services available, I think that you really spoke

directly to a mechanism that could change everything as far as, if

we are talking about a public health crisis here, if we are talking

about a disease-based approach to drug abuse, at least for the ones

who aren’t socially regressive patients, then I think your testimony

was right on.

Mr. HEAPS. Thank you, Mr. Chairman. Yes, I absolutely believe

it will be a fundamental shift, with one modification. With all the

promise of national health care, and therefore the eligibility of individuals who essentially are offenders, not eligible for Medicaid, etc.,

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and not eligible therefore for a significant funding stream for treatment. When that becomes available, it still has to be integrated

into the justice system. And the fact that we don’t yet, have not

put in place the right infrastructure to help make that available is

really, really critical.

So one of the challenges for national health care policy is to look

at how that will be delivered to people who are under the jurisdiction of the system, so that the courts and other members of that

system have access to the services for those individuals. That infrastructure needs to be put in place. Whether we call it specialty

managed care——

Mr. KUCINICH. As the person who with John Conyers actually

wrote the bill, H.R. 676, I took note of what you said, and I take

further note of your comments now about fitting that particular

population into the program. It is very well taken and it could be

a fundamental part of trying to get real care delivered for people

who have this difficulty.

I am going to ask each one of you to just give me a kind of a

wrap-up statement about the direction you would like to see us go

in. But before we do that, I was struck by the response of Dr. Marlowe, when you were talking, I had asked the question, why do people do this, why do people go for drugs. You gave a very learned

response with respect to Darwinian evolution. This is where, as

chairman, my staff gives me a whole list of questions. Occasionally

somebody says something and it gets me thinking and I may not

have a chance to ask this question again.

If you on one hand, a philosophical output of Darwinian evolution is determinism. On the other hand, there has been a lot of

research in the last few decades on concepts that deal with brain

plasticity. A principle of evolutionary biology which is called punctuated equilibrium, where the species develops very quickly and

rapidly, breaking out of a linear progression, going kind of into an

upward spiral.

My question to you is, do you foresee, is there a potential, based

on your research and understanding of psychiatry, the science of

the brain, that human beings have the capability of evolving beyond this desire for this level of gratification? Or is this just where

we are?

Mr. MARLOWE. That sounds like a term paper I might have assigned to my graduate students. [Laughter.]

It is actually a very good question. Because I didn’t mean to suggest, although I am a Skinnerian behaviorist by background, if you

couldn’t figure that out, I didn’t mean to suggest that the seeking

of pleasure and dispelling pain are the be all and end all of human

behavior and cognition. We are capable already of higher aspirations than that. We are capable of not engaging in immediate

pleasure for greater good that doesn’t actually come back to us. We

have now proven altruism exists.

Mr. KUCINICH. This is important to hear this. I will tell you why.

Because there are a number of Members of Congress that when we

talk about the kinds of challenges that people face, whether it is

alcoholism or hard drug abuse, they will cite the value of faithbased initiatives. And I understand that. And I understand the

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idea of the human spirit having the potential to actually leap over

a whole series of consequences and transform.

Mr. MARLOWE. Right.

Mr. KUCINICH. Would you comment on that? Because I want to

make sure that those who have been watching this, and it does go

to a Webcast, aren’t left with the idea that we are just hard-wired.

Mr. MARLOWE. There are many roads to recovery. I think this is

the best way I can answer the question. There are people who

never get that spark. The people from the 12-step community call

it a spark where they just all of a sudden, there is a realization,

there is something they feel that they have touched and they are

different people. Thank God for the people who experience that

spark. Where it comes from, I can’t answer. I don’t know if it is

biochemical or spiritual, I don’t know.

I also know that there are a lot of people who got better and

didn’t experience anything remotely resembling a spark for 20 or

30 years after sobriety. So if you are saying that everybody has to

have a spark to get better, you are going to be damning a lot of

people to terrible pain. On the other hand, if you discount this

faith-based community and these faith-based principles, you are

also going to be damning a lot of people to pain.

Mr. KUCINICH. So there are variable factors on the road to recovery?

Mr. MARLOWE. Exactly. I think that is right.

Mr. KUCINICH. And you wouldn’t discount any of them?

Mr. MARLOWE. Absolutely. Just talk to people from AA. You will

hear something very powerful.

Mr. KUCINICH. I appreciate your taking a moment so that we

could engage in a colloquy about that.

Why don’t we start with Professor Pollack. If you would just,

based on your career and your research, if there is anything you

would like to put on the record as a closing comment that would

guide the deliberation of this committee on national drug policy.

Mr. POLLACK. I think that all of us today expressed many common elements of what needs to be done. What I would like to see

is a real focus on being evidence-based, providing the resources to

do it, and really paying careful attention to the public management

and implementation challenges that need to be addressed to do it

well. I think that is going to be fundamental in our success.

Ms. HEAPS. Let me build on that statement. I concur completely.

We have to look at the total justice system, from arrest all the way

through parole. At every point, there is an opportunity of intervention which builds exactly on what Professor Pollack talked about,

with appropriate interventions, appropriate evidence-based practices. There is no silver bullet program. Every court should have

elements of a drug court. Every criminal court ought to be able to

refer people into treatment and have available to them assessment

diagnosis, court reporting and compliance issues.

So there has to be a systemic approach in which we can bring

to scale the numbers of people who are being put into various levels of intervention or acute treatment, so that we really grasp and

get at the issue of reducing the numbers of people who are addicted

or using drugs or under some level of influence by drugs and thereVerDate 11-MAY-2000 15:18 Jun 09, 2011 Jkt 000000 PO 00000 Frm 00157 Fmt 6633 Sfmt 6633 C:\KATIES\DOCS\65558.TXT KATIE PsN: KATIE
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fore reduce the impact on the justice system and the cost to our

communities.

Mr. KUCINICH. Mr. Abrahamson.

Mr. ABRAHAMSON. My focus for today’s hearing would be simply

that the criminal justice system cannot adequately address the

needs of the 1.4 million people arrested every year for simple drug

possession. We need to focus on when those people first come into

contact with the criminal justice system, typically a police officer

on the beat. That we figure out a way to keep people who have

used drugs and may have a drug problem, but have not caused

harm to other individuals, how to keep them out of the criminal

justice system and provide the services or treatment that they need

in the community, and then use the criminal justice system to deal

with the offenders who actually deserve to be in the criminal justice system. Thank you.

Mr. MARLOWE. I would just reiterate what we have already said,

which is that we need to move away from programs to systems,

and to continuum in the criminal justice system. We actually do

know what the elements of an effective system would look like. We

have just never ever done it. And I think that Melody’s idea about

moving pilot funding toward system development is exactly on the

money. I always turn to Melody Heaps for the policy implications

of science, because she knows how to make that translation.

But the reality is, we can’t put everyone in drug court, nor

should we. We can’t put everybody in project HOPE. We can’t put

everybody in Prop 36. We need something like a TASC model of assessment, placement, monitoring at the systemic level. I think we

are there. I think the time has come to do that.

Mr. ROMAN. Four points in 30 seconds. One way to do that is to

start talking about reducing crime in drug use and stop talking

about recidivism. Talking about recidivism makes us think small.

If you want to do something about drug policy and reduce crime,

you have to talk about it in those terms.

Second, we have to start standardizing practice. The do anything

you want anywhere thing, we know too much to keep doing that.

We don’t want to stifle innovation, but we have to start getting

drug courts and these other alternatives to incarceration programs

to implement best practices that we know exist. We have to start

doing something HOPE-like, because of the budget pressures that

the States are under. We have to start finding cheap solutions to

these problems. What HOPE does is it makes the defendant signal

to the court how they are going to do. What could be cheaper than

that?

Then finally, what we do when we do those things is to take the

money that we would have spent on those people in the court system, in the processing and take it off the table and redirect it to

more expensive things like drug court. Because if we just wait for

the end of the day for project HOPE to leave money in the budget,

it won’t be there and we will never be able to use it. We have to

do it up front.

Thank you for having me testify.

Mr. KUCINICH. Your last point is very well taken in this era of

cost-consciousness. It is actually cost-effective, as you are pointing

out, by far.

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I am very grateful to each member of this panel and to Dr.

Hawken as well as to our first set of panelists for the time that

you spent here today. What I am going to ask my staff to do is to

gather this transcript, to take your testimony and gather this transcript as quickly as possible and to see if we can find a means of

editing it for publication and getting it distributed as quickly as

possible to Members of Congress and the community beyond. The

papers that you delivered to the committee were very important.

You have absolutely proven the urgency of your testimony to this

committee. Each of you has experience which is quite valid in the

larger sphere of drug policy, its effectiveness or lack thereof.

So the subcommittee staff will continue to be in touch with you.

I want to thank the minority staff for their presence and for the

participation of Mr. Jordan as well as our own staff of the majority

for helping to schedule this hearing.

This is the Domestic Policy Subcommittee of Oversight and Government Reform. I am Dennis Kucinich, Chairman of the subcommittee. Today we have talked about Quitting Hard Habits: Efforts to Expand and Improve Alternatives to Incarceration for

Drug-Involved Offenders. We have had a distinguished list of witnesses.

This subcommittee will continue to reserve jurisdiction over all

matters affecting the Office of National Drug Control Policy and

drug control policy generally. We will do so, gratefully with the assistance of our panelists. I want to thank, again, each and every

one of you.

This subcommittee stands adjourned.

[Whereupon, at 6:18 p.m., the subcommittee was adjourned.]

[Additional information submitted for the hearing record follows:]

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