By Aaron Reiss
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By Dianna Wray
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Attorney Marc Carter had a client, 18 years old. A first-time offender, she'd been smoking crack cocaine since she was 14. She was the mother of a young child. Everyone involved in the case agreed that what she needed was rehabilitation, Carter says, and the court gave her an offer of drug treatment and probation. Her alternative was six months in county jail, which would mean 90 days.
"You ask a crackhead what do you want to do: 90 days in the county or do you want to go through three years of treatment and probation?" he says, smiling ruefully. She turned them down and did the time.
Do the time in jail or prison, get it over with, and be out on the streets again with no strings attached, no accounting to anyone. Lawyers throughout the Harris County courthouse say most addicts think this is a better deal than being "on paper," doing urine tests for dope month after month stretching into years, people looking over their shoulders, messing in their business, waiting for them to trip up again and send them back to the courthouse where the punishment will be even worse if they get "revoked."
So they go to prison, get out, do the drugs again, till they're caught again. If the drug habit escalates, they spend a lot of money on it, maybe steal from other people, hurt other people to get the money they need for the drug habit for which they never got treatment. They get caught again, go to jail again, get out and start up the drugs, the stealing and the hurting again.
It is a ruinous cycle of complete frustration to Judge Jan Krocker of the 184th District Court, who says: "There's a general feeling out there that the courts aren't rehabilitating anyone on drugs, and that's probably true. The system has not been set up to handle this."
The system is set up to put offenders in jail or prison. The system also is set up to distribute a certain amount of grace, that dispensation of a second chance that is never earned, only given. Grace and rehabilitation are supposed to be enlightened and welcomed. Recipients are not supposed to thumb their noses at the offer.
"My client, initially she wanted probation," Carter says. "But she thought that was getting out today and not having to deal with all her problems."
His clients who want drug treatment and probation are those who've hit rock bottom, who're on their third felony drug arrest, Carter says. Of course, by then probation generally gets filed under the heading of wishful thinking.
A judge can sentence someone to a substance abuse felony punishment facility, shortened to the clumsy acronym SAFPF, which is pronounced "safe-pee" -- either an acknowledgement that it's impossible to say "safe-pfff" or an allusion to the frequent urinalysis people in the program must undergo. Or both.
SAFPF reportedly has a high success rate. Some 70 percent of people sent its way make it through and remain off drugs afterward, according to Holli Rich, SAFPF coordinator, who says they track people for up to five years after release. But it's not an easy tour of duty.
A judge amends the conditions of probation to include the drug treatment plan. After being sentenced to a SAFPF, an offender is put on a waiting list and may wait two months or more before even getting help. The wait is not done at home, but in jail. Once in the program, it will be another nine to 12 months before an enrollee graduates. The program is not an outpatient one; participants are incarcerated in a correctional facility. Then it's on to a halfway house for 90 days, followed by aftercare for the next two years.
If there is a mess-up anywhere along the way, the judge can order the person back to court, revoke probation and sentence the offender to prison. A participant can accumulate violations for such things as stealing, not participating in group discussions, or refusing to get out of bed. Major violations are such things as assault and sexual misconduct. Members of the counseling team will meet with someone who's going south, but if they can't turn him around, Rich says, that's reported back to the court. If probation is revoked, no credit is given for days and months already spent in the program. So 15 to 18 months of your life are already gone and you have to start all over with a prison sentence.
"Being eligible for parole doesn't mean being a good risk for parole," says defense attorney Eric Hagstette. "I think a lot of people who recognize that about themselves don't think they can make probation work."
Dial back to another decade when not all of Harris County's judges were elected on strong conservative and Republican platforms. A probationer could fail a drug test and get another chance. It's a whole different atmosphere these days.
"It's become very tough," Hagstette says. "Lots of judges, on technical violations, will revoke. There's closer to a zero tolerance. A lot of us try to encourage drug treatment. Some people just know themselves, know they'll fail and know they'll get slam-dunked if they do."
Attorney Aaron Howard agrees. "I tell the client, "If you're not prepared to change the way you live and the people you know, you're not likely to make it.' "
After successfully negotiating the SAFPF program, probationers face another terror: supporting the probationer lifestyle.
"The people we represent come from a poorer background," says attorney Riddhi Desai. "Probation is expensive. There's the $140 supervision fee. The fines to be paid off. The random urinalysis they must undergo almost every month; they must pay for that." Costs usually average out to $100 a month, she says.
"These are people who do not have $200 to get out of jail on bond," she says. "And people don't want to be in jail." Once in the probation system, they are at the mercy of the probation officer who supervises them, the people who do the drug testing and the judge. "Any one person complaining about them could wipe out all they've tried to do and start them back up."
While many folks around the country say it's frightening that we incarcerate so many people for drugs, Kaylynn Williford, chief prosecutor in Judge Krocker's courtroom, flips that argument on its back. What's frightening to her, she says, is that we have a lot of violent crimes committed because someone was high on drugs or was breaking into someone's house to get money for drugs. Drug use is often cited by victims as the reason someone attacked them, the assistant district attorney says.
"It's not my job as a prosecutor to fix everyone," says Williford. It is her job, she says firmly, to put people in prison who break the law.
Yet it's a mistake to just dismiss Williford as a knee-jerk prosecutor, intent only on her conviction record. In court one day last week, she made a plea for a drug offender to receive a second chance, and she was doing more of the talking to the judge than the defendant's own attorney. She sees some grays; she remains rigid, however, in her belief that people need to accept responsibility for their own actions and accept the punishment due them.
"You choose to take those drugs, and you hurt someone because of it," she says. Her philosophy: Refuse drug treatment, great, go into prison and go cold turkey. At least you're not out on Harris County streets with drugs.
No attorney, judge or parent can force a defendant to opt for the SAFPF program. For the $1,600-a-person program to work, like all programs for addicts, those enrolled have to be committed to changing, Krocker and many others say. Besides, putting someone in a program who is disruptive just makes it difficult for others in the group to make any progress and can endanger the personnel running the program, says Williford.
While inmates can get drug treatment in Texas state prisons, Rich says only the Kyle unit offers a therapeutic drug program. And in any case, there's no incentive like probation revocation to keep a prisoner going to those counseling sessions.
So what's the solution? Carter says he would like to see an alternative to jail or prison. Desai says she thinks all drug offenders should be forced into mandatory treatment whether they go to jail or not. A lot of people are in denial, she says, and they need help to face what they're really doing.
"Many people say, "I don't have any problem with drugs. It's just I can't take the test today,' " Desai says.
Although she believes violators should have their probation revoked, sending first-time drug offenders on to prison in Texas isn't working, Desai says. "What we are doing, we're writing them off when we send them to TDC or the state. When he gets out, he's just going to come back to the only thing he knows. A lot of people come back."
Judge Krocker is a conservative Republican who believes in the war on drugs. "To sit here day after day, to see the cruel things that people do while on drugs.People can't work. They can't take care of their families. They lie, steal. It's a tragedy. We need to stop it." At the same time, she can't get people to agree to enroll in the kind of program she believes stands a good chance of stopping the recycling.
Going cold turkey for six months or a year in prison isn't solving the drug problem. The state sounds like it has come up with a great treatment plan, but if many first-time offenders won't go to it, then we're not getting where we want to be. We have a probation system that deals sternly with people, using up most of their resources of time and money. It hits hardest and most often at the poor rather than the rich, who have their private clinics to turn to for retooling sessions.
This is the classic conflict between the rights of the individual and the rights of society. It isn't desirable to have drug addicts out in our communities unable to take care of themselves or their children, stealing money, endangering other people. Society is not served by that. But let's also recognize that everyone who's caught doing drugs isn't an addict, isn't stealing and attacking other people.
Let's recognize too that it's also not desirable to write people off when they're 18, consigning them in many cases to ruined lives, and consigning the rest of us to paying for their room and board in prison for the rest of those lives.
And finally, let us recognize that many of us are just incredibly lucky that we were never caught when we experimented, used regularly or depended upon drugs to get us through.
Ah, for those clearer, less convoluted days when "Just Say No" reigned in the land. Those of us who thought that was a pretty stupid motto could just chortle away. Others embraced the phrase like a protective shield. But there's no laughter and little protection in the notion of an 18-year-old crackhead mother going to prison because she thinks that's her best option. Not when no one with any surety can really say it's not.