With Maryland judges increasingly concerned about a lack of drug rehabilitation slots for lawbreakers who seem better suited for treatment than jail, defense lawyers in a Baltimore County case are making an unusual appeal to hold the state responsible for the shortage.
At a hearing today in District Court, the county public defender's office is to argue that the state has violated the law by failing to find a slot for a defendant who was ordered into inpatient treatment by a judge more than three months ago.
The public defender's brief argues that the state's failure to provide treatment for the man, who was convicted of unlawful use of a motor vehicle and is sitting in jail while waiting for a slot, is as clear a breach of the state's duty to carry out a judge's sentence as if it had failed to make room for someone sentenced to jail.
The brief faults the state for failing to fund enough long-term inpatient slots to serve the roughly 150 court-referred defendants who are on waiting lists, most of whom suffer from mental health problems as well as addiction and have failed at shorter bouts of rehabilitation. As a result of the lack of funding, the brief charges, the state is effectively annulling a sentencing option that was created by state lawmakers to allow judges to assign defendants with serious substance-abuse problems to treatment.
"The [state Health] Department has made no indication that it is working on solving this problem, or even that it sees this as a problem," Assistant Public Defender Margaret C. Betts writes in the pleading. "The court has no power to enforce its own sentencing commitment."
Peter Luongo, director of the Alcohol and Drug Abuse Administration, which oversees drug treatment within the health department, declined to comment on the case. In the past three years, the agency has had to make do with level funding from the state while also facing cuts in some of the federal funding it receives.
The pleading arose in the case of Andrew Schmale, 25, who was convicted of unlawful use of a motor vehicle in Baltimore County by District Judge Nancy M. Cohen in June, after already having been sentenced to 18 months in jail for a fourth-degree burglary conviction in Circuit Court. Cohen ordered a substance-abuse evaluation for Schmale, and a county substance health worker determined that Schmale, who had not succeeded in short-term treatment programs, needed long-term treatment for heroin and cocaine addiction. The evaluator recommended that Schmale be committed for a year of inpatient treatment at Crest House in Frederick County.
Taking advantage of alternative sentencing allowed under Maryland law, Cohen ordered Schmale to spend a year at Crest House starting in September, and the Circuit Court consented to having him serve out the rest of his burglary sentence in treatment rather than jail. But when his planned transfer came around last month, he was told there was no room in the program. The waiting list for defendants assigned to long-term inpatient treatment is now more than one year, according to the public defender's filing.
Instead of going into treatment, Schmale continues to be held at Baltimore County Detention Center. The public defender's office expects that his jail time will be up by the time a slot opens up for him next summer, which means he will not be required to submit to the treatment the court sentenced him to.
Betts declined to comment on the case in advance of today's hearing. In her pleading, she notes that the legislature changed the language in the law last year to make it clearer that it is the state's responsibility to find slots for defendants ordered into inpatient treatment. While the law used to require the state to engage in "reasonable efforts" to find a slot, it now requires it to "find prompt placement" for defendants.
The state's budget decisions have not fallen in line with this requirement, the brief argues. Luongo's agency has a budget of about $133 million, but only about $2.7 million is devoted to long-term slots needed for defendants such as Schmale. The state has recently added 11 slots, Betts notes, but this brings the total number of slots statewide to only 201, a fifth of which are set aside for women with children.
The lack of inpatient slots for defendants sentenced to treatment is to be the focus of a legislative hearing tomorrow in Annapolis, where several judges are expected to testify. One, Baltimore City District Judge George M. Lipman, recently wrote to the governor's office, saying that judges, lawyers and defendants were losing confidence in treatment as a sentencing option.
"Trial judges are thoroughly frustrated by their inability to obtain the prompt placement promised by" the law, he wrote. "Thus, mentally ill and seriously addicted defendants remain jailed even when the state, defense, health department assessor and the court agree that public safety would be served by appropriate ... residential treatment."