DRUG COURTS: Proposed Rule

DEPARTMENT OF JUSTICE 28 CFR Part 93

Office of Justice Programs [OJP No. 1014]

January 26, 1995 RIN 1121-AA26

Drug Courts

AGENCY: U.S. Department of Justice, Office of Justice Programs.

ACTION: Proposed Rule.

SUMMARY: This notice announces a proposed rule and requests comments on the Drug Court Program as authorized by Title V of the Violent Crime Control and Law Enforcement Act of 1994. This rule gives general guidance regarding the program and specifically delineates the prohibition on participation by violent offenders. Detailed program guidelines and application materials for the Fiscal Year 1995 Drug Court Program will be available in early 1995.

DATE: All comments must be received by February 24, 1995.

ADDRESS: All comments should be addressed to Reginald L. Robinson, Deputy Assistant Attorney General, Office of Justice Programs, 633 Indiana Avenue, N.W., Washington, D.C. 20531.

FOR FURTHER INFORMATION CONTACT:

The Department of Justice Response Center at 1-800-421-6770 or 202-307-1480.

SUPPLEMENTARY INFORMATION:

Overview of Title V-Drug Courts

Federal discretionary grants are being made available under the Violent Crime Control and Law Enforcement Act of 1994, Title V, Public Law 103-322, 108 Stat. 1796 (September 13, 1994), 42 U.S.C. 3796ii-3796ii-8 [hereinafter the "Act"] to States, units of local government, Indian tribal governments, and state and local courts for assistance with drug court programs. The Act gives the Attorney General, and through statutory authority contained in the Omnibus Crime Control and Safe Streets Act, an authorized designee (in this case the Assistant Attorney General for the Office of Justice Programs), the authority to make grants to the above-mentioned entities for drug court programs that involve continuing judicial supervision over non-violent offenders with substance abuse problems and the integrated administration of sanctions and services including: (1) mandatory periodic testing for, the use of controlled substances or other addictive substances during any period of supervised release or probation for each participant; (2) substance abuse treatment for each participant; (3) diversion, probation, or other supervised release involving the possibility of prosecution, confinement, or incarceration based on noncompliance with program requirements or failure to show satisfactory progress; and (4) programmatic, offender management, and aftercare services such as relapse prevention, health care, education, vocational training, job placement, housing placement, and,child care or other family support services for each participant requiring such services.

Section 50001 of Title V of the Act requires that regulations be issued to ensure exclusion of violent offenders from these funded programs. This proposed rule responds to that requirement. To more fully develop and define the grant program and to provide direction and guidance to potential applicants, program guidelines, will be issued subsequent to the publication of this proposed rule. This Supplementary Information section is intended, in part, to elicit comment on a broad range of issues relevant to the development and implementation of those program guidelines.

Statement of the Problem

More than half of all individuals brought into the criminal justice system have substance abuse problems. Many of these individuals are non-violent offenders who repeatedly cycle through the court, corrections, and probation systems without help to change their behavior. The underlying problem of such non-violent substance abusing offenders frustrates and inhibits judicial effectiveness. All too often, the non-violent drug offender faces little certainty of punishment and represents a long-term, recurring problem for both the criminal justice system and society.

In too many cases, the criminal justice system fails to subject non-violent, drug abusing offenders to intervention measures that provide the mix of services and sanctions necessary to change their behavior, or if necessary, coerce abstinence. Some courts and prosecutors, however, have cost-effcctively addressed the problem through the use of treatment drug courts. Their results suggest that "drug courts" can significantly enhance the offender's opportunity to break the cycle of substance abuse and crime. Those who are coming into contact with the criminal justice system for the first time may be particularly susceptible to effective early intervention.

Indeed, research and evaluation demonstrate that the "drug court" approach is effective in reducing both drug abuse and drug-related crime. The Drug Court discretionary grant program of Title V seeks to support the development of innovative measures that provide courts additional resources to assure certainty of punishment for drug abusing offenders through the integrated administration of services and sanctions, including close supervision and coerced abstinence.

The Violent Crime Control and Law Enforcement Act of 1994

The Department of Justice (Department) recognizes that no single model exists for an effective drug court. To the contrary, the Department believes there may be a variety of valid approaches that deal effectively with non-violent offenders with substance abuse problems. Consequently, the Drug Court grant program will maintain flexibility in providing funds to support the development of a variety of initiatives that coordinate treatment and coerced abstinence.

The Department also recognizes the great diversity in the structure and operation of state and local courts and criminal justice systems. Hence, the Department is committed to a flexible approach that allows jurisdictions to tailor local initiatives to best suit their needs and local conditions. Program flexibility, however, is necessarily balanced by statutory requirements concerning the design and administration of the funded programs. Accordingly, Drug Court programs that receive grant awards must:

• exclude violent offenders from program participation;
• include a long-term strategy and detailed implementation.plan;
• explain the applicant's inability to fund the program adequately without Federal assistance;
• use Federal support to supplement, and not supplant, State, Indian tribal, and local sources of funding that would otherwise be available;
• identify related governmental or community initiatives which complement or will be coordinated with the proposal;
• consult with all affected agencies and insure that there will be appropriate coordination with all, affected agencies in the implementation of the program;
• certify, that participating offenders will receive continuing judicial supervision by one or more designated judges with responsibility for the drug court program;
• specify plans for obtaining necessary support and continuing the proposed program following the conclusion of Federal support; and
• describe the methodology that will be used in evaluating the program.

Consistent with Congressional intent, program evaluation will be crucial. Grant recipients will be required to cooperate with a national evaluation team throughout their involvement with the program. Recipients will also be required to provide for independent evaluation of the impact and effectiveness of their funded programs. The following issues will be especially important in determining whether programs receiving grants under this initiative are effective: (1) reduction in recidivism rates of program participants, (2) maintenance of acceptable substance abuse treatment completion rates among program participants, (3) decreased drug use by program participants, and (4) maintenance of a cost effective program in relation to the overall criminal justice system.

FY 1995 Drug Court Initiative

The Fiscal Year 1995 Department of Justice Appropriations Act, Public Law 103-317, has allocated $29 million for the Drug Court grant programs. Eligibility of applicants to receive grants will be based on requirements of the statute and these regulations, as well as assurances and certifications specified in detailed program guidelines and application materials that will be available in early 1995 for the Fiscal Year 1995 Drug Court initiative.

While detailed program guidelines will follow the publication of this notice of proposed rulemaking, the Department has made some broad programmatic decisions upon which it welcomes comment. Three types of funding will be available under this program during Fiscal Year 1995. First, planning funding will be available for those jurisdictions that express interest in initiating a drug court but have not engaged in the comprehensive planning necessary to make such a program successful. Second, jurisdictions currently operating drug court programs may seek funding to expand enhalace, or augment these ongoing efforts. Finally, for those jurisdictions that have engaged (or are currently engaged) in a comprehensive drug court planning process, funding may be available to implement the plans their efforts have produced.

Call For Comments Concerning The Drug Court Initiative

Substance abuse-related offender case management is primarily a state and local issue; thus, the Drug Court grant program contemplates collaboration between federal and state and local agencies. State and local government officials were involved in Congressional hearings and meetings that guided the development of this legislation and will continue to be involved as the Department moves forward in developing this regulation, establishing policy guidance, and implementing program guidelines. At this time, comments are welcome regarding the basic program design requirements described in Section 93.4 of the proposed rule and to the entire scope of the program.

Administrative Requirements

This regulation has been drafted and reviewed in accordance with Executive Order 12866, § 1 (b), Principles of Regulation. This rule is not a "significant regulatory action" under Executive Order 12866, § 3(f), Regulatory Planning and Review, and accordingly, this rule has not been reviewed by the Office of Management and Budget.

The Assistant Attorney General for the Office of Justice Programs, in accordance with the Regulatory Flexibility Act (5 U.S.C. S 605(b)), has reviewed this regulation, and by approving it, certifies that this regulation will not have a significant economic impact on a substantial number of small entities.

Subpart A-Drug Courts

§93.1 Purpose.

This part sets forth requirements and procedures to ensure that grants to States, State courts, local courts, units of local government, and Indian tribal governments, acting directly or through agreements with other public or private entities, exclude violent offenders from participation in programs authorized and funded under this part.

§93.2 Statutory Authority.

This program is authorized under the Violent Crime Control and Law Enforcement Act of 1994, Title V, Public Law 103-322, 108 Stat. 1796, (September 13, 1994), 42 U.S.C. 3796ii-3796ii-8.

§93.3 Definitions.

(a) "State" has the same meaning as set forth in Section 901(a)(2) of the Omnibus Crime Control and Safe Streets Act of 1968, as amended.

(b) "Unit of Local Government" has the same meaning as set forth in Section 901 (a) (3) of the Omnibus Crime Control and Safe Streets Act of 1968, as amended.

(c) "Assistant Attorney General" means the Assistant Attorney General for the Office of Justice Programs.

(d) "Violent offender" means a person who either -

(1) is currently charged with or convicted of an offense during the course of which:

(i) the person carried, possessed, or used a firearm or other dangerous weapon; or

(ii) there occurred the use of force against the person of another; or

(iii) there occurred the death of, or serious bodily injury to, any person;

(iv) without regard to whether proof of any of the elements described herein is required to convict; or

(2) has previously been convicted of a felony crime of violence involving the use or attempted use of force against a person with the intent to cause death or serious bodily harm.

§93.4 Grant Authority.

(a) The Assistant Attorney General may make grants to States, State courts, local courts, units of local government, and Indian tribal governments, acting directly or through agreements with other public or private entities, for programs that involve:

(1) continuing judicial supervision over offenders with substance abuse problems who are not violent offenders, and

(2) the integrated administration of other sanctions and services, which shall include--

(i) mandatory periodic testing for the use of controlled substances or other addictive substances during any period of supervised release or probation for each participant;

(ii) substance abuse treatment for each participant;

(iii) diversion, probation, or other supervised release involving the possibility of prosecution, confinement, or incarceration based on noncompliance with program requirements or failure to show satisfactory progress; and

(iv) programmatic, offender management, and aftercare services such as relapse prevention, health care, education, vocational training, job placement, housing placement, and child care or other family support services for each participant who requires such services.

(b) Applications for grants under this program shall be made at such times and in such form as may be specified in guidelines or notices published by the Assistant Attorney General. Applications will be evaluated according to the statutory requirements of the Act and the programmatic goals specified in the applicable guidelines. Grantees must comply with all statutory and program requirements applicable to grants under this program.

§93.5 Exclusion of Violent Offenders.

(a) The Assistant Attorney General will ensure that grants to States, State courts, local courts, units of local government, and Indian tribal governments, acting directly or through agreements with other public or private entities, exclude violent offenders from programs authorized and funded under this Part.

(b) No recipient of a grant made under the authority of this Part shall permit a violent offender to participate in any program receiving funding pursuant to this Part.

(c) Applicants must certify as part of the application process that violent offenders will not participate in programs authorized and funded under this Part. The required certification shall be in such form and contain such assurances as the Assistant Attorney General may require to carry out the requirements of this Part.

(d) If the Assistant Attorney General determines that one or more violent offenders are participating in a program receiving funding under this part, such funding shall be promptly suspended, pending the termination of participation by those persons deemed ineligible to participate under these regulations.

(e) The Assistant Attorney General may carry out or make arrangements for evaluations and request information from programs that receive support under this part to ensure that violent offenders are excluded from participating in programs hereunder.

Subpart B - [Reserved]

List of Subjects

Grant Programs, Judicial Administration

For the reasons set out in the preamble, Title 28, Chapter 1, of the Code of Federal Regulations is proposed to be amended by adding a new Part 93, consistent of Subpart A as set forth below.

PART 93 - PROVISIONS IMPLEMENTING THE VIOLENT CRIME CONTROL AND LAW ENFORCEMENT ACT OF 1994

Subpart A-Drug Courts

Sec.

93.1 Purpose

93.2 Statutory Authority

93.3 Definitions

93.4 Grant Authority

93.5 Exclusion of Violent Offenders

Subpart B - [Reserved]

Authority: 42 U.S.C. 3796ii-3796ii-8