March 20, 2005


District attorneys in the five boroughs believe the success of drug treatment programs is hurting their crime statistics.

The strange twist, prosecutors said, stems from the fact that dismissal rates -- a crude indicator of the effectiveness of district attorneys' investigations -- are being inflated by the popularity of treatment programs.

Felony defendants who successfully complete drug treatment usually see their cases dropped and the charges dismissed.

Under current state record-keeping practices, those dismissals are lumped together with others that result from flimsy cases. The overall effect is to increase the total number of tossed indictments -- sometimes by as much as 50 percent, prosecutors said.

As a result, the city's five top prosecutors and their counterparts in New York's 57 other counties are asking Gov. George Pataki's top criminal justice official to change the way the dismissals of felony indictments are categorized.

Drug treatment dismissals, which began in the early 1990s, run into the hundreds each year in the city. Last year they totaled more than 1,400 citywide, according to preliminary figures.

The prosecutors want so-called "diversionary" dismissals -- such as those resulting when certain drug defendants successfully complete a treatment program -- to be listed in a separate category. They believe those kinds of dismissals, rather than indicating poor law enforcement effectiveness, prosecutorial neglect or lack of merit, show action taken to benefit the public.

"To include dismissals resulting from successful completion of various drug treatment alternatives ... significantly skews our dismissal rates," Queens District Attorney Richard Brown said.

If drug treatment dismissals were counted separately, Brown said, his office's overall indictment dismissal rate in 2004 would have dropped from 6.8 percent to 3.1 percent.

The drop would be even more dramatic for Brooklyn, where a separate classification of drug treatment dismissals would lower the 2004 indictment dismissal rate from 11.2 percent to 3.8 percent, according to figures provided by prosecutors. Brooklyn District Attorney Charles J. Hynes is facing opposition in his re-election bid this year, and all of his statistics will be gone over with a fine-tooth comb by opponents.

Kevin L. Wright, president of the New York State District Attorneys Association, recently wrote Chauncey Parker, director of the state Division of Criminal Justice Services, to press for the change.

"When these [drug treatment] dismissals are included with prosecutions that have been terminated for lack of evidence or failure to give the defendant a speedy trial, it makes it appear that we, as prosecutors, are not doing our jobs," Wright, the Putnam County district attorney, wrote in his Jan. 31 letter to Parker.

Parker told Newsday he understands why the prosecutors are making the request, but is concerned that federal privacy laws about a person's drug addiction might interfere with any attempt to recalculate the dismissal rates.

"We are trying to find a way in which we can help them," Parker told Newsday in a recent telephone interview. "I think what they are asking for makes sense."

Parker said there is a restriction in federal law that bars placing information on a criminal record that indicates a person has a drug problem. Presumably, this would complicate the way prosecutors report a drug treatment dismissal to the Department of Criminal Justice Services, which compiles indictment processing information on a statewide basis.

Prosecutors, however, believe the statistics can be refined to give a more nuanced view of the reality of drug treatment programs and other innovations.

"The design of these [drug treatment] programs is to prevent recidivism and thus protect public safety," said Anne Swern, counsel to Hynes. "So how is the public to know the difference between a public safety dismissal and one that is based on the merits of the case?"