New York state drug courts' caseloads have shrunk by almost half in the three years since lawmakers changed the state's laws on bail and pretrial discovery, the Albany Times-Union reports. The unintended effect of the laws appears to stem from the loss of leverage prosecutors have to extract plea bargains that put people into drug courts, since many fewer people are faced with choosing between incarceration or entering a mandatory rehabilitation program. In New York City, state data reflect the starkest change: In January 2020, about 1,200 people were in drug court. But fewer than 200 people were participating in drug court during that same month this year.
The state placed restrictions on judges' ability to set bail, effectively freeing most people charged with misdemeanors. The statute changes also placed tougher pretrial discovery requirements on prosecutors. Both laws are under attack in the current legislative session. But, at least for now, the combination of these laws means fewer people have an incentive to plead guilty. Drug court is premised on the idea of providing an alternative to incarceration. And for a defendant to be eligible for drug court, they have to first enter a guilty plea to a charge. The guilty plea then creates a dynamic where if the person fails drug court, they face potential prison time. If they succeed, the charges are dropped. Agreeing to drug court by entering a guilty plea can also be used as an incentive when a defendant is sitting in jail awaiting trial. With fewer guilty pleas and fewer people awaiting trial in jail, the incentive to drive someone to consider drug court has substantially weakened. Many public defenders contend it’s a good thing that the coercion model has been suppressed. They would prefer to change how people can enter drug court and point to "Treatment not Jails" legislation, which would remove the need for a person to enter a guilty plea in order to access treatment. But prosecutors contend the setup was a credible path to incentivize people to seek help — especially as overdose rates soar and rehabilitation programs behind bars are lacking. "There’s no incentive," said Tony Jordan, Washington County District Attorney, the outgoing president of the District Attorneys Association of New York. "Somebody might use, ‘What, are you trying to coerce them into recovery?’ I want people to get into recovery and save their life."