The Hippo


May 31, 2020








Hillsborough County Superior Court North. Photo by Ryan Lessard.

Drug courts coming
Change in law means several new courts are launching soon

By Ryan Lessard

 The state’s courts are undergoing a sea change right now with a form of alternative sentencing known as drug courts. Instead of seeing the same group of individuals repeating the same cycle of criminal activity — getting arrested, imprisoned, released and arrested again — because they’re deep in their addiction to drugs, judges are starting to get behind a program that gives the most addicted and the most-likely-to-reoffend folks a chance at treatment and intensive accountability instead of going back to prison.

“You take the worst of the worst in drug court, meaning they cost the most money, they’re the biggest drain on the system. They’ve been in and out of jail the majority of their lives,” said Alex Casale, the newly appointed head of the statewide drug court system.
For example, if a person is charged with their second drug possession offense, a class A felony, they’d be facing up to 15 years in prison. But if they qualify, a county attorney will recommend them for drug court. They may even petition for it themselves. If the top prosecutor admits him or her, what follows is a suspended sentence and an intensive schedule of frequent meetings with their court team, regular treatment, drug tests, and a system of minor sanctions if the person relapses. If they graduate, they manage to avoid prison and hopefully overcome their addiction for good.
Individuals in the program are usually nonviolent addicts who might steal or sell drugs to support their addiction, and they’re defined as “high risk, high need” in the parlance of drug court policy wonks.
Casale and other advocates say the program saves taxpayer money, reduces recidivism and helps treat a mental illness. 
A staggered rollout
Superior Court Judge Ken Brown, who currently serves at Hillsborough North in Manchester, said the first drug court opened in Strafford County in 2004, and he oversaw the team there for years.
Since then, other drug courts popped up in other superior courts like Cheshire, Grafton, Rockingham and most recently in Hillsborough South in Nashua.
But despite several attempts at securing grants and local county funding, Manchester has failed to create its own drug court.
That’s expected to change this fall thanks to legislation signed into law earlier this year creating the statewide drug court office, which promises to fully fund current and future drug courts in each superior court with more than $2 million set aside for two years’ worth of grants.
But a couple requirements in the law could delay the creation of new drug courts and limit how much money they get.
The most basic box a court needs to check off before getting the state money is applying for a federal implementation grant, usually from the Bureau of Justice Administration. If a court fails to get awarded the grant, they can get the state funding. If they are awarded the grant, then they have to wait until those federal dollars run out before turning to state dollars.
For Manchester, the court technically already qualifies since it applied for and failed to get such a grant a few years ago. But since it applied again this past spring, the court is going to wait and see if it gets it this year before asking the state for money. 
It would be for $350,000 over three years.
Unfortunately, this process is long. The grant parameters are set at the start of the year and applications are due in March, but applicants don’t hear back until September.
For the Queen City, the waiting and uncertainty should be over in a little more than a month. It will get started with either federal funds or state funds. 
The only thing left to do will be to round out their team, which must include the same judge, prosecutor, defense attorney, probation officer and treatment provider and can also include a member of law enforcement or a physician. 
The Hillsborough North drug court team-in-waiting had been assembled and trained ahead of the grant, but there’s been some turnover, and Brown says they still need to partner with a treatment provider. And the person who will be paid to coordinate the whole thing still needs to be hired.
“Right now we don’t know if we’re going to be hiring our … program coordinator ourselves, or whether the provider … will be hiring that staff person,” Brown said.
And for the first year, since state funding will tend to begin in the fall, the money will be prorated for the partial year.
Other places like Merrimack County Superior Court will have to wait another year before getting a drug court underway. That’s because Concord’s future team was recently awarded a training grant. The team will receive the training from the National Drug Court Institute for three days in October.  
Building a team takes time.
“I’ve seen it take a year to set a team up. It’s not an easy feat, especially if you have agencies that aren’t familiar with the process,” Casale said.
After that, they will be better positioned to apply for an implementation grant next spring. So there won’t be a drug court in Concord until at least the fall of 2017. 
Next on the to-do list will likely be Belknap County. They technically already have a small drug court that is operated out of their circuit court, but unlike the other drug courts in the state they have no grant or county funds. The local treatment provider and the court are offering in-kind services with a small crew. They’ll need to apply for a training grant to start the process Merrimack is currently embarking on.
Meanwhile Superior Court Chief Justice Tina Nadeau, a longtime champion of drug courts, says she’ll be working with Casale to meet with the remaining northern counties to convince them to start drug courts of their own.
Those might be smaller, given their populations, but Nadeau says the return on investment still makes it worthwhile.
“Even if you have 15 or 20 people in drug court, it’s still well worth it to run a drug court,” Nadeau said.
Felonies First
The state funding model is wrapped up in an effort to roll out an unrelated court program, Felonies First, which could mean some courts, including Manchester, get less than 100 percent funding. 
Casale said the legislation was written based on a calculation of felony cases in each county superior court, which breaks down the counties into three size groups, determining how much money they’d likely need and qualify for. 
Hillsborough and Merrimack counties are in the large size group, and for each of their drug courts the state would provide up to $490,000 annually. But there’s a catch. Lawmakers want local courts to fully implement the new Felonies First program, which became law last year. It’s a system that aims to save money and eliminate inefficiency by having felony cases skip the circuit courts and go straight to superior court. 
Right now, it’s only up and running in Strafford, Cheshire and Belknap counties. As an incentive to the rest, half of the potential funding for drug courts is held back until they launch Felonies First. 
Nadeau has been publicly against this provision, saying it is unnecessary since Felonies First is already law and a process change like this needs to happen slowly.
But if Manchester doesn’t get the federal grant, how soon they start Felonies First and how a word in the law gets interpreted may mean the difference between getting $490,000 and getting $245,000, prorated. 
Nadeau is hoping Felonies First at Hillsborough County will start in April 2017, but she said county officials want to delay the rollout to September 2017. If it happens in spring, they qualify for the full amount. 
The law says a court will need to implement Felonies First within a year of the state grant being awarded but there’s confusion about whether to interpret that as a fiscal year or calendar year.
The state fiscal year ends June 30. 
High need, in aggregate
The future of the statewide drug court system is uncertain. Right now, it enjoys the full bipartisan support of the legislature, and as awareness of the state’s opioid crisis has grown, attitudes in the general public have shifted in favor of more treatment and less incarceration. 
But that can change. And the state drug court office will need to ask for new appropriations every two years. 
“Two years from now, who knows what will happen,” Casale said. 
And the roughly $2 million set aside in this biennium is still only about a quarter of what might be needed if every county is state-funded down the road, based on the maximum qualifying amounts for each county.
He and Nadeau are optimistic that the program will bear the promised fruits of savings and reduced recidivism between now and then, securing its place in New Hampshire courts long term.
“Whether you’re a Republican or a Democrat, it makes economic sense, it makes corrections sense, it makes human sense. So, at every level there’s sort of something in it for everybody,” Nadeau said.
Manchester’s drug court, meanwhile, will start out with a population of at least 60, according to Brown. Casale estimates it might be anywhere from 75 to 100 individuals. But it may need to expand depending on demand, as heroin and fentanyl addiction continues to take root in the Queen City. 
If that happens, it may require a second team and additional funding. Nadeau says they’ll find a way to make it work. 

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