Drug Courts

DEPARTMENT OF JUSTICE

Office of Justice Programs

28 CFR Part 93

[OJP No. 1014]

RIN 1121-AA26

Drug Courts

AGENCY: Department of Justice, Office of Justice Programs.

ACTION: Proposed rule.

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SUMMARY: This notice announces a proposed rule and requests comments on

the Drug Court Program as authorized by Title V of the Violent Crime

Control and Law Enforcement Act of 1994. This rule gives general

[[Page 5153]] guidance regarding the program and specifically

delineates the prohibition on participation by violent offenders.

Detailed program guidelines and application materials for the Fiscal

year 1995 Drug Court Program will be available in early 1995.

DATES: All comments must be received by February 27, 1995.

ADDRESSES: All comments should be addressed to Reginald L. Robinson,

Deputy Assistant Attorney General, Office of Justice Program, 633

Indiana Avenue NW., Washington, DC 20531.

FOR FURTHER INFORMATION CONTACT: The Department of Justice Response

Center at 1-800-421-6770 or (202) 307-1480.

SUPPLEMENTARY INFORMATION:

Overview of Title V-Drug Courts

Federal discretionary grants are being made available under the

Violent Crime Control and Law Enforcement Act of 1994, Title V, Public

Law 103-322, 108 Stat. 1796 (September 13, 1994), 42 U.S.C. 3796ii-

3796ii-8 [hereinafter the ``Act''] to states, units of local

government, Indian tribal governments, and state and local courts for

assistance with drug court programs. The Act gives the Attorney General

and, through statutory authority contained in the Omnibus Crime Control

and Safe Streets Act, an authorized designee (in this case the

Assistant Attorney General for the Office of Justice Programs), the

authority to make grants to the above mentioned entities for drug court

programs that involve continuing judicial supervision over non-violent

offenders with substance abuse problems and the integrated

administration of sanctions and services including: (1) mandatory

periodic testing for the use of controlled substances or other

addictive substances during any period of supervised release or

probation for each participant; (2) substance abuse treatment for each

participant; (3) diversion, probation, or other supervised release

involving the possibility of prosecution, confinement, or incarceration

based on noncompliance with program requirements or failure to show

satisfactory progress; and (4) programmatic, offender management, and

aftercare services such as relapse prevention, health care, education,

vocational training, job placement, housing placement, and child care

or other family support services for each participant requiring such

services.

Section 50001 of Title V of the Act requires that regulations be

issued to ensure exclusion of violent offenders from these funded

programs. This proposed rule responds to that requirement. To more

fully develop and define the grant program and to provide direction and

guidance to potential applicants, program guidelines will be issued

subsequent to the publication of this proposed rule. This Supplementary

Information section is intended, in part, to elicit comment on a broad

range of issues relevant to the development and implementation of those

program guidelines.

Statement of the Problem

More than half of all individuals brought into the criminal justice

system have substance abuse problems. Many of these individuals are

non-violent offenders who repeatedly cycle through the court,

corrections and probation systems without help to change their

behavior. The underlying problem of such non-violent substance abusing

offenders frustrates and inhibits judicial effectiveness. All too

often, the non-violent drug offender faces little certainty of

punishment and represents a long term recurring problem for both the

criminal justice system and society.

In too many cases, the criminal justice system fails to subject

non-violent, drug abusing offenders to intervention measures that

provide the mix of services and sanctions necessary to change their

behavior or, if necessary, coerce abstinence. Some courts and

prosecutors, however, have cost-effectively addressed the problem

through the use of treatment drug courts. Their results suggest that

``drug courts'' can significantly enhance the offender's opportunity to

break the cycle of substance abuse and crime. Those who are coming into

contact with the criminal justice system for the first time may be

particularly susceptible to effective early intervention.

Indeed, research and evaluation demonstrate that the ``drug court''

approach is effective in reducing both drug abuse and drug-related

crime. The Drug Court discretionary grant program of Title V seeks to

support the development of innovative measures that provide courts

additional resources to assure certainty of punishment for drug abusing

offenders through the integrated administration of services and

sanctions, including close supervision and coerced abstinence.

The Violent Crime Control and Law Enforcement Act of 1994

The Department of Justice (Department) recognizes that no single

model exists for an effective drug court. To the contrary, the

Department believes there may be a variety of valid approaches that

deal effectively with non-violent offenders with substance abuse

problems. Consequently, the Drug Court grant program will maintain

flexibility in providing funds to support the development of a variety

of initiatives that coordinate treatment and coerced abstinence.

The Department also recognizes the great diversity in the structure

and operation of state and local courts and criminal justice systems.

Hence, the Department is committed to a flexible approach that allows

jurisdictions to tailor local initiatives to best suit their needs and

local conditions. Program flexibility, however, is necessarily balanced

by statutory requirements concerning the design and administration of

the funded programs. Accordingly, Drug Court programs that receive

grant awards must:

Exclude violent offenders from program participation;

Include a long-term strategy and detailed implementation

plan;

Explain the applicant's inability to fund the program

adequately without federal assistance;

Use federal support to supplement, and not supplant,

State, Indian Tribal, and local sources of funding that would otherwise

be available;

Identify related governmental or community initiatives

which complement or will be coordinated with the proposal;

Consult with all affected agencies and insure that there

will be appropriate coordination with all affected agencies in the

implementation of the program;

Certify that participating offenders will receive

continuing judicial supervision by one or more designated judges with

responsibility for the drug court program;

Specify plans for obtaining necessary support and

continuing the proposed program following the conclusion of Federal

support; and

Describe the methodology that will be used in evaluating

the program.

Consistent with Congressional intent, program evaluation will be

crucial. Grant recipients will be required to cooperate with a national

evaluation team throughout their involvement with the program.

Recipients will also be required to provide for independent evaluation

of the impact and effectiveness of their funded programs. The following

issues will be especially important in determining whether programs

receiving grants under this initiative are effective: (1) Reduction in

recidivism rates of program participants, (2) maintenance of acceptable

substance abuse treatment completion rates among program participants,

(3) decreased drug use by program participants, and (4) maintenance of

a cost effective program [[Page 5154]] in relation to the overall

criminal justice system.

FY 1995 Drug Court Initiative

The Fiscal Year 1995 Department of Justice Appropriations Act,

Public Law 103-317, has allocated $29 million for the Drug Court grant

programs. Eligibility of applicants to receive grants will be based on

requirements of the statute and these regulations, as well as

assurances and certifications specified in detailed program guidelines

and application materials that will be available in early 1995 for the

Fiscal Year 1995 Drug Court initiative.

While detailed program guidelines will follow the publication of

this notice of proposed rulemaking, the Department has made some broad

programmatic decisions upon which it welcomes comment. Three types of

funding will be available under this program during Fiscal Year 1995.

First, planning funding will be available for those jurisdictions that

express interest in initiating a drug court, but have not engaged in

the comprehensive planning necessary to make such a program successful.

Second, jurisdictions currently operating drug court programs may seek

funding to expand, enhance, or augment these ongoing efforts. Finally,

for those jurisdictions that have engaged (or are currently engaged) in

a comprehensive drug court planning process, funding may be available

to implement the plans their efforts have produced.

Call for Comments Concerning the Drug Court Initiative

Substance abuse-related offender case management is primarily a

state and local issue; thus, the Drug Court grant program contemplates

collaboration between federal and state and local agencies. State and

local government officials were involved in Congressional hearings and

meetings that guided the development of this legislation and will

continue to be involved as the Department moves forward in developing

this regulation, establishing policy guidance, and implementing program

guidelines. At this time, comments are welcome regarding the basic

program design requirements described in Sec. 93.4 of the proposed

rule, and to the entire scope of the program.

Administrative Requirements

This regulation has been drafted and reviewed in accordance with

Executive Order 12866, section 1(b), Principles of Regulation. This

rule is not a ``significant regulatory action'' under Executive Order

12866, section 3(f), Regulatory Planning and Review, and, accordingly,

this rule has not been reviewed by the Office of Management and Budget.

The Assistant Attorney General for the Office of Justice Programs,

in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)),

has reviewed this regulation and, by approving it, certifies that this

regulation will not have a significant economic impact on a substantial

number of small entities.

List of Subjects

Grant Programs, Judicial Administration.

For the reasons set out in the preamble, Title 28, Chapter I, of

the Code of Federal Regulations is proposed to be amended by adding a

new Part 93 consisting of Subpart A as set forth below.

PART 93--PROVISIONS IMPLEMENTING THE VIOLENT CRIME CONTROL AND LAW

ENFORCEMENT ACT OF 1994

Subpart A--Drug Courts

Sec.

93.1 Purpose.

93.2 Statutory authority.

93.3 Definitions.

93.4 Grant authority.

93.5 Exclusion of violent offenders.

Subpart B--[Reserved]

Authority: 42 U.S.C. 3796ii-3796ii-8.

Subpart A--Drug Courts

Sec. 93.1 Purpose.

This part sets forth requirements and procedures to ensure that

grants to States, State courts, local courts, units of local

government, and Indian tribal governments, acting directly or through

agreements with other public or private entities, exclude violent

offenders from participation in programs authorized and funded under

this part.

Sec. 93.2 Statutory authority.

This program is authorized under the Violent Crime Control and Law

Enforcement Act of 1994, Title V, Public Law 103-322, 108 Stat. 1796

(September 13, 1994), 42 U.S.C. 3796ii-3796ii-8.

Sec. 93.3 Definitions.

(a) State has the same meaning as set forth in section 901(a)(2) of

the Omnibus Crime Control and Safe Streets Act of 1968, as amended.

(b) Unit of Local Government has the same meaning as set forth in

section 901(a)(3) of the Omnibus Crime Control and Safe Streets Act of

1968, as amended.

(c) Assistant Attorney General means the Assistant Attorney General

for the Office of Justice Programs.

(d) Violent offender means a person who either--

(1) Is currently charged with or convicted of an offense during the

course of which:

(i) The person carried, possessed, or used a firearm or other

dangerous weapon; or

(ii) There occurred the use of force against the person of another;

or

(iii) There occurred the death of, or serious bodily injury to, any

person;

without regard to whether proof of any of the elements described herein

is required to convict; or

(2) Has previously been convicted of a felony crime of violence

involving the use or attempted use of force against a person with the

intent to cause death or serious bodily harm.

Sec. 93.4 Grant authority.

(a) The Assistant Attorney General may make grants to States, State

courts, local courts, units of local government, and Indian tribal

governments, acting directly or through agreements with other public or

private entities, for programs that involve:

(1) Continuing judicial supervision over offenders with substance

abuse problems who are not violent offenders, and

(2) The integrated administration of other sanctions and services,

which shall include--

(i) Mandatory periodic testing for the use of controlled substances

or other addictive substances during any period of supervised release

or probation for each participant;

(ii) Substance abuse treatment for each participant;

(iii) Diversion, probation, or other supervised release involving

the possibility of prosecution, confinement, or incarceration based on

noncompliance with program requirements or failure to show satisfactory

progress; and

(iv) Programmatic, offender management, and aftercare services such

as relapse prevention, health care, education, vocational training, job

placement, housing placement, and child care or other family support

services for each participant who requires such services.

(b) Applications for grants under this program shall be made at

such times and in such form as may be specified in guidelines or

notices published by the Assistant Attorney General. Applications will

be evaluated according to the statutory requirements of the Act and the

programmatic goals [[Page 5155]] specified in the applicable

guidelines. Grantees must comply with all statutory and program

requirements applicable to grants under this program.

Sec. 93.5 Exclusion of violent offenders.

(a) The Assistant Attorney General will ensure that grants to

States, State courts, local courts, units of local government, and

Indian tribal governments, acting directly or through agreements with

other public or private entities, exclude violent offenders from

programs authorized and funded under this part.

(b) No recipient of a grant made under the authority of this part

shall permit a violent offender to participate in any program receiving

funding pursuant to this part.

(c) Applicants must certify as part of the application process that

violent offenders will not participate in programs authorized and

funded under this part. The required certification shall be in such

form and contain such assurances as the Assistant Attorney General may

require to carry out the requirements of this part.

(d) If the Assistant Attorney General determines that one or more

violent offenders are participating in a program receiving funding

under this part, such funding shall be promptly suspended, pending the

termination of participation by those persons deemed ineligible to

participate under these regulations.

(e) The Assistant Attorney General may carry out or make

arrangements for evaluations and request information from programs that

receive support under this part to ensure that violent offenders are

excluded from participating in programs hereunder.

Subpart B--[Reserved]

Laurie Robinson,

Assistant Attorney General, Office of Justice Programs.

[FR Doc. 95-1903 Filed 1-25-95; 8:45 am]

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