Stevie Moyer nearly cried when a Tulsa County judge said he would erase two drug-related charges from her record.
“There’s a lot of things that I wouldn’t have been able to do with a drug charge,” Moyer said, holding her certificate of completion after a graduation ceremony from Tulsa County’s new misdemeanor diversion program. “The judge said they can’t help with everything, but it’s dang near.”
Unlike traditional drug court, the free, six-month program doesn’t focus on sobriety and has no drug testing. More than 200 people are now enrolled. As long as participants are engaging with services for counseling, food, housing and employment, they don’t have to come to court as often, which can remove transportation barriers. Possession of methamphetamine is the most common charge. People with prior convictions can also participate.
Moyer, 33, participated in the program to gain access to treatment and services. She also got a chance to get her misdemeanor charges for possession of methamphetamine and obstructing an officer expunged with the court costs dismissed. The program linked her with counseling, access to prescription medications, help paying her bills and clothes and food.
Tulsa County launched a different misdemeanor drug court program in 2018, but participation was only ever a couple dozen, and many never completed the program. Officials scrapped that program in favor of this new low-barrier diversion program about a year ago with the help of a federal grant and some state funding. The new program has about a 60% completion rate and was put in place to capture those no longer eligible for felony drug court.
Participation in felony drug courts statewide has fallen by more than 40% since simple drug possession and some low-level property crimes became misdemeanors in Oklahoma following the implementation of State Question 780 in 2017, according to state Mental Health Department data from fall 2021. State law requires a felony charge for people to access the state’s long-standing, traditional drug court programs.
The ballot measure reduced penalties for many drug and property crimes with a goal of shrinking the state’s prison population. The coronavirus pandemic also likely impacted participation numbers. But program administrators say many counties are now struggling to serve people with misdemeanor charges who may be less motivated to participate in highly structured, sometimes expensive and time-consuming drug court programs without the threat of a felony conviction and prison.
The shift is forcing court officials to reimagine how diversion programs operate.
There’s also a shortage of money to address the problem. Another ballot measure, State Question 781, called for the state to send the savings from putting fewer people in prison to county mental health and treatment services. But state lawmakers have yet to send counties the money.
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Without additional funding and agreements from district attorneys and others to implement new diversion programs, officials said many people with misdemeanor drug or property charges only cycle in and out of county jail instead of prison and don’t have opportunities to access the treatment and services they need. Rural parts of the state with limited access to mental health and treatment services are particularly hard hit.
“It’s not just that State Question 780 happened, and now there’s no more drug courts. It’s 780 happened, and lawmakers haven’t done enough to fund the programs that are supposed to absorb those changes,” said Damion Shade, a criminal justice policy analyst with the Oklahoma Policy Institute. “Since we haven’t made the investment, then all we see is the deterioration of drug court numbers.”
Oklahoma has long relied on felony drug courts as a core way to provide treatment for people involved with the criminal justice system. Graduates of felony drug court have lower recidivism rates, are often able to reunite with their children and have better access to housing and employment, according to Mental Health Department data. It’s about $14,000 cheaper a year for someone to complete drug court than live at a state prison. Roughly 67% of participants graduate statewide, according to a report by Oklahoma Watch.
Officials hoped these successes could be replicated through misdemeanor programs.
But today, only about a dozen of Oklahoma’s 77 counties have set up any sort of new misdemeanor diversion program. Only Tulsa and Oklahoma counties have robust, low-barrier misdemeanor diversion programs. Most of the new programs are misdemeanor drug courts, which are shorter than felony drug courts but still require drug tests and court appearances. Successful completion of those programs still requires sobriety to dismiss charges.
Many of the misdemeanor drug courts have had a hard time retaining participants. The state Mental Health Department has told counties to try to replicate the Tulsa County program.
While drug court programs typically rely on sanctions or the threat of prison or jail to prod participation, Tulsa County’s new program aims to entice people with free, easily accessible social services and the promise of waived court costs and charges. Participants can save up to $1,000 by participating in the program. But if a person doesn’t engage, they can still face jail or probation.
“The essential shift was picking them up where they are and moving them forward six months in a positive way,” said Stephanie Younis, director of alternative courts for the Tulsa County District Attorney’s Office.
Rural counties face even more challenges
Felony drug court has sometimes been one of the only diversion programs available to adults with substance use issues and criminal justice involvement in rural parts of the state.
Pittsburg County shares a felony drug court and a mental health court with McIntosh County. Over 100 people were participating each month in the local felony drug court before State Question 780 was implemented. But by last fall, the number had dropped to a little more than 30. The area doesn’t have a misdemeanor diversion program yet.
Pittsburg County District Attorney Chuck Sullivan said without additional funding, the area would likely not be able to set up a new misdemeanor program. There are also fewer treatment and mental health providers in this mostly rural part of the state. People may have to travel to a different town or city to access services, which would be a challenge even if the area eventually sets up a new misdemeanor diversion program.
“These people without these diversions are struggling with the biggest challenge of their life being this drug addiction. And there’s really nothing and no one to help them,” he said.
Julia Curry runs Oklahoma Court Services, a private company that provides supervision services to nine counties across central Oklahoma.
In Seminole County, Oklahoma Court Services operates a misdemeanor drug court that routinely has fewer than 10 participants as of last fall, according to Mental Health Department data. The low numbers are partially attributable to legal changes following the U.S. Supreme Court’s McGirt decision, Curry said.
Getting people to participate in a time-consuming misdemeanor drug court program instead of completing a short jail sentence or probation for a misdemeanor drug charge has been a challenge, Curry said. Misdemeanor drug and property crimes are punishable by up to a year in the county jail, though officials said that punishment isn’t usually given since county jails are already underfunded and overcrowded.
“We have a hard time getting people to continually participate,” Curry said. “But my concern with that is that we still have a serious drug problem in Oklahoma…. And we’re not getting these people help until they reach the felony level. And that can be a lot of criminal activity, a lot of family drama and damage that’s done before they’ve even had a real opportunity to participate.”
Reimagining drug court
In Cleveland County, where traditional drug court participation dropped by about half in the last few years, District Judge Lori Walkley said only about 40 people have joined the county’s misdemeanor drug court program, operated by Oklahoma Court Services, since it began in 2019. Only 13 have graduated. Misdemeanor drug court can be “a lot of hoops to jump through,” Walkley said.
“We’ve really pushed this whole issue of substance abuse to the local level. I don’t mind that,” Walkley told a panel of lawmakers last year. “We just have to have the structure — which we don’t have yet — to make local government and accountability work.”
Some advocates disagree that the threat of prison is the best tool to help someone get sober. People who are incarcerated can still get drugs, and access to mental health treatment is limited.
Oklahoma County Public Defender Bob Ravitz said he isn’t concerned with falling drug court participation numbers. Before State Question 780 changed state law, many people with charges for simple drug possession or low-level property crimes ended up in prison when they failed to complete felony drug court.
“I think the key is making sure that people who need programs get them. That doesn’t have to be drug court,” he said.
It’s a myth that harsher punishment leads to better results, said Nicole Burns, supervisor for misdemeanor programs in the Oklahoma County Public Defender’s Office.
Oklahoma County tried a misdemeanor drug court program that also faced low participation. Fewer than 50 people at a time ever participated in the program, according to state records. That program wound down last year, and the county started a new misdemeanor diversion program last fall. The three-month program funded by the Mental Health Department and a local nonprofit has up to about 85 spots, Burns said. And much like the Tulsa County program, it has been successful in getting people to engage by not requiring sobriety and offering dismissed charges and court costs upon program completion.
Low-barrier programs allow participants to keep jobs, housing and care for their children while still getting treatment, Burns said. The programs benefit people with charges related to substance use but without a history of serious crimes, she said.
“Low-risk people need to be treated differently,” Burns said.
Tammy Westcott, director of alternative courts for the Mental Health Department, said much of how diversion programs function is up to local judges and district attorneys. District attorneys usually have veto power over who can get into diversion programs, and district attorney’s offices make money off of supervision fees, which people participating in diversion programs sometimes don’t have to pay. That can mean a lack of support for creating new programs.
Programs are also limited to the resources of each county. The Mental Health Department covers the cost of treatment for drug courts and programs like Tulsa County’s, and also provides a small amount of money for administration. The department has used some of the money that previously went to felony drug courts to help start new misdemeanor programs. But the availability of providers and services depends on the county.
“We are committed to playing the hand that we’re dealt,” she said. “We’re going to be creative, and we’re going to find ways to reach the offenders that are in need of treatment.”
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