LOCKPORT – Success stories are relatively rare in a program that tries to keep nonviolent, drug-abusing felons out of prison by compelling them to obtain treatment.
State statistics show that in Niagara County, more than twice as many people have failed than have succeeded since the program began in 2009.
But the winners, relatively few though they are, find that the judicial diversion program of court-supervised drug treatment can save their lives.
Gina M. Frey, 26, of Niagara Falls, was one of the biggest winners in diversion. She managed to complete the grueling program despite having three young children at home.
On Dec. 13, Niagara County Judge Sara Sheldon Farkas marked Frey’s graduation from the program that took her 16 months by reducing her felony conviction for selling crack cocaine to a misdemeanor and then granting her a conditional discharge instead of placing her on probation.
“This is a terrific program if you are successful. It can literally turn lives around, but those people are few and far between,” Farkas said in court Jan. 3. “Sometimes this can feel overwhelming. It’s a lot of work.”
“For many years, there had been a lot of discussion of whether the best place for an addict was in prison,” said Judge Judith H. Kluger, chief of policy and planning for the New York State Unified Court System. “It was very much a revolving door. There was a cycle of addiction, arrest, prison, and then the person would be released, and their addiction would not be treated.”
Drug courts for nonviolent offenders were instituted at the city level in the early 1990s. Kluger said studies showed that defendants who went through treatment with a judge riding herd on them were less likely to commit new crimes than those who weren’t in such a program.
When the State Legislature repealed the Rockefeller drug laws in 2009, reducing the sentences for almost all drug felonies, it also created the judicial diversion program.
In this carrot-and-stick program, if a person graduates, the felony is reduced to a misdemeanor and the sentence is three years of probation, with the time spent in the program counting toward that time.
However, judges can grant conditional discharges or even dismiss the case altogether.
But, to really make the program a gamble, the Niagara County District Attorney’s Office usually requires that defendants plead to the highest level of crime they face before being allowed to enter diversion.
In Frey’s case, which was typical, she was required to plead guilty to a Class B drug felony. The maximum sentence for that is nine years in state prison.
If you were to liken judicial diversion to a game of Monopoly, most of the players land on “Go to Jail.”
In Niagara County, as of Jan. 2, 189 felons had been placed on diversion since the program started. Of those, 22 have successfully graduated; 47 have failed; four left the program for various other reasons; and the others are still battling.
The statewide average is better. Through Jan. 2, there were 2,303 defendants who graduated from the program and 1,447 who flunked out.
“You sure you want to do this?” is a question that Farkas often asks would-be members of the diversion program. “It’s pretty much certain that if you fail in diversion, you’re going to state prison.”
She promised one defendant “18 to 24 months of pure hell while you struggle to get clean and sober.”
Although the program can be completed sooner – Frey did it in 16 months – it’s just about guaranteed to take more than a year.
“There’s a reason this program isn’t quick,” Farkas told a defendant Jan. 11. “Quick doesn’t stick.”
Before they plead guilty, defendants are screened by court staff members in Buffalo to determine whether they are in fact drug addicts whose drug use contributes to their crimes. There have been instances of defendants trying to pretend they’re drug addicts in hopes of avoiding jail time.
“You get some people going into the program who are trying to game the system,” said Assistant District Attorney Peter M. Wydysh, who prosecutes most of the county’s drug felonies. “If they somehow get through it, they get no jail time. Those are the people who are going to fail, and they get what’s coming to them.”
Frey said she became addicted to the painkiller hydrocodone after it was prescribed following a cesarean section. She also smoked marijuana.
“I got in trouble because I was selling the crack cocaine to support my family,” Frey said. “I’m different from other people because I never lost my kids.”
It could have happened. She was arrested three times in quick succession, piling up five felony charges, three misdemeanors and two violations in less than four months.
The diversion program isn’t just for those caught selling or possessing drugs. Burglars and others who commit nonviolent offenses may be admitted, although the District Attorney’s Office may object to anyone’s assignment to diversion. Also, a sentencing judge may refuse to admit someone to the program.
Assuming that all those involved agree that diversion is warranted, the first step is an assignment to a drug court.
In Niagara County, City Judges Mark A. Violante of Niagara Falls and William J. Watson of Lockport preside over the drug courts, and they have the power to send transgressors to jail for short periods if they violate the rules.
Outpatient drug counseling is usually ordered. “You have to go sometimes four times a week at the start,” Frey said. “Then it gets reduced to two times a week.”
The judges place a premium on honesty. “If you lie, deny, fabricate, it doesn’t work,” Farkas said in court Dec. 19.
“A lot of people have problems listening to someone giving them direction,” Frey said. “You really have to listen to what the judge tells you.”
Frey, who went through Violante’s drug court, said that the judge took an especially dim view of people trying to talk their way out of trouble.
“You hear the craziest excuses for why people test positive,” Frey said. One man who tested positive for cocaine and pills said that he had hired a woman and that she placed the drugs in his drink.
“We all just looked at him and said, ‘You dumb fool; you’re going to jail,’ ” Frey said with a laugh.
But in addition to the drug treatment, which also bars defendants from using alcohol, those in the program must obey the normal rules of being on probation. Technically, diversion members are on interim probation for as long as two years.
Defendants are drug-tested frequently. A positive test often means a “sanction,” which normally means a trip to jail. But it doesn’t necessarily mean flunking out of the program – unless the transgressions are repeated.
“It’s hard, and you struggle a little bit,” Farkas told a defendant Dec. 19. “We expect that, quite frankly. It’s how you handle the setbacks that determines whether you succeed.”
“If there’s a sanction involved, there’s a greater incentive to complete treatment,” Kluger said. “We all recognize that relapse is part of recovery.”
“I received one sanction,” Frey said. “I made the mistake of smoking the ‘K2/Spice,’ or ‘parolee weed.’ It’s not marijuana. It’s like a synthetic marijuana. … I went to jail, with a 5-week-old baby [at home], for two weeks.”
That happened four months after Frey entered the program in August 2011. She was pregnant at the time with her third child by three different fathers. The baby, a boy, was born Nov. 28, 2011. She also has a 2½-year-old son and a 6-year-old daughter.
The father of the youngest child, who is still in Frey’s life, cared for the infant while Frey was behind bars.
Having three young children, along with the time demands that go with the various counseling sessions required in diversion, posed quite a challenge.
“I think it made it a lot harder,” Frey said. “My two older ones’ grandparents are awesome.”
Drug treatment isn’t all that’s involved in diversion. Frey said that those who don’t have high school diplomas or equivalency diplomas must obtain them during the program.
“You have to have paid employment before you graduate,” Frey said. “I’ve been at Walmart since May.”
Lifestyle modification also is part of the program. “It’s positive reinforcement to live a positive life,” Frey said.
But some people just don’t get it. Among them was Danielle L. Leighton, 31, of Niagara Falls, who was placed in diversion in July 2011, when she pleaded guilty to a six-count indictment issued after her car struck a 79-year-old pedestrian in front of Niagara Falls City Hall on June 8, 2010.
Instead of completing the program, Leighton left the state. She was captured in California after 10 months on the lam and had to be extradited back to Niagara County. She’s the mother of a 3½-month-old son.
On Jan. 17, Farkas took Leighton out of the diversion program and jailed her without bail pending sentencing April 12 for the pedestrian hit-and-run. Leighton will be sent to state prison for between 3½ and seven years.
Farkas said that keeping Leighton in diversion “would set a terrible precedent. People in that program are struggling mightily. For them to know that someone who walked away from the program for 10 months [can get back in], that’s not going to happen.”
Frey said she earned a certified nurse’s aide certificate when she was 19 but has never had a chance to put it to use. “Now that my charges are discharged, I’m looking for a job” in that field, she said, adding that she’s confident she’ll never be an addict again.
“We’ve had both failures and successes,” Wydysh said. “In a perfect world, they’d succeed, clean themselves up and live a good life. That’s what we want.”