Melissa Hostetler

Rethinking Drug Courts

Welcome to the San Francisco County drug court, just one of nearly a thousand courts in the country and one of more than a hundred in California alone offering drug treatment over incarceration. The court begins to come alive as the defendants -- or clients as drug court professionals like to call them -- arrive and speak in hushed tones with their counselors and attorneys.

In the hall, a counselor hugs a client twice her size and encourages him to stay with the treatment program. The client is later sent to jail on Judge Julie Tang's order for testing positive for drugs. Though this weekend-long prison stay is only considered a sanction, this client may very well end up in jail long-term.

A female clad in an orange jumper sits and watches as a half dozen soon to be ex-clients tell their story of how treatment and a second chance has change their lives. As a new drug court recruit, she hears about their new jobs, new lives, and a new outlook on staying sober. She decides drug court is for her -- the freedom of a probation-style life, the allure of having all charges dropped upon completion of the program, and the hope of finally being rid of the drug addiction disease seem all too convincing.

And though the argument for treatment-based drug courts seems convincing -- the media are sold on the idea of treatment over prison, and the drug court movement is picking up steam as politicians who strive to be tough on crime and compassionate in one swoop are singing its praises -- there are many who are starting to question whether or not the drug court movement is the panacea of good will everyone says it is.

Since the first treatment-based program was founded in Miami, Fla. ten years ago, the drug court epidemic has spread to nearly every state, adding up to more than 800 drug courts nationwide either operating or in the planning stages. US federal funding for the program now totals more than $80 million since 1995 in a political phenomenon that is getting support from all sides. Actor Martin Sheen, former Drug Czar Barry McCaffrey, and Attorney General Janet Reno (who helped found the Florida drug court when she was Florida Attorney General) have lined up behind the program.

They call them the elixir to cure prison overcrowding, the cycling of drug offenders in and out of the criminal justice system, and the skyrocketing price-tag of the US prison system. In a closer look though, many have found that drug courts not only don't accomplish their goals but they may be widening the criminal justice net, increasing costs to the system, taking treatment slots away from voluntary, community-based programs, and blurring the traditional roles of judges, prosecutors, and defense attorneys.

"Drug courts are just the latest Band-Aid we have tried to apply over the deep wound of our schizophrenia about drugs," says Denver, Colo. Judge Morris B. Hoffman in a North Carolina Law review article that is one of the few critical pieces on drug courts. "Drug courts themselves have become a kind of institutional narcotic upon which the entire criminal justice system is becoming increasingly dependent."

Though they are designed to relieve the criminal justice system of some of it's burden -- one in four American prisoners are incarcerated for a non-violent drug offense -- drug courts may actually be increasing the number of people brought into the system and thus also negating most of their expected savings.

"What we've started to see happening is people who previously would have essentially not been arrested at all or given a short term of probation or a fine wound up getting arrested," says Katherine Huffman of the Lindesmith Center for Drug Policy Foundation.

In Denver, Colo. drug filings tripled just two years into the drug court program. Not only had the number tripled, but the percentage of drug filings went from 30 percent of all filings to 52 percent in that same period.

California, home to more than 100 drug courts, also saw drug arrests for possession only offenses increase from 40 percent of all drug arrests to 53 percent in the past ten years. It is not clear though what effect if any drug courts have made directly.

"All we know is that drug courts have not resulted in fewer people sentenced to prison for drug possession offenses in California," says Dan Macalair of the Justice Policy Institute. "In fact, the evidence is just the opposite."

The increased arrests, says Jeff Tauber, president of the National Association of Drug Court Professionals, is that the justice system has chosen to start dealing with those previously ignored. By bringing offenders into the system early on, drug courts can avoid repeated offenses, he says.

A survey suggests, though, that law enforcement see drug courts as a solution to America's drug problems. Two-thirds of the 300 police chiefs polled in a recent survey do not want to cut federal drug court funding, and 60 percent claim drug courts are more effective than prison or jail time.

"The very presence of the drug court … has caused police to make arrests in, and prosecutors to file, the kinds of ten- and twenty-dollar hand-to-hand drug cases that the system simply would not have bothered with before, certainly not as felonies," says Judge Hoffman.

With the increased number of drug offenders coming into the criminal justice system, the cost savings promised by drug courts are largely non-existent. According to the Vera Institute of Justice, many cost-savings analyses fail to account for common drug court practices that ultimately erode savings -- detaining offenders for detoxification and punishing non-complaint participants with jail time. When interim jail stays are counted, drug court participants could spend more time in jail than if they had simply been sentenced. The Vera Institute also found evidence to suggest that participants who fail in drug court may be sentenced more harshly than those never entering a drug court.

The problem though with determining whether or not drug courts are actually working is in the research itself.

For example, drug courts claim to reduce the cycle of drug offenders coming in and out of the prison system. The Department of Justice's Drug Courts Program Office claims a reduction in recidivism between five and 28 percent, but not all studies show these results. An Arizona drug court study found no difference in recidivism between those in standard probation and those in drug court. Another evaluation of 21 drug courts found that five could not claim they reduced recidivism.

The problem says Judge Hoffman is the method of evaluation. Drug court professionals who have a vested interest in continuing the program are often the ones doing the drug court impact studies, resulting in what is little more than a morale booster for drug court professionals.

The very nature of localized drug courts allows for survey results that cannot be compared. Without a comprehensive data source, there is no telling how well the drug court program is actually working, says Macalair. Not to mention, he adds, the surveys themselves do not seem to be asking the right questions -- for example, true cost analyses of drug court treatment programs have seldom been done.

Tauber says the results are not solely in speculated recidivism improvements. Retention, he says, is the defining factor of how well the program is working, citing that drug courts keep people in treatment longer making it more likely they will stick to their new lifestyle.

But on top of these woes are the concerns for the larger picture of drug treatment in America.

Most who question the drug court strategy prefer treatment to incarceration, but would rather see resources put into voluntary treatment and court-mandated treatment. But instead of creating new slots to answer the call of the thousands waiting for treatment, drug courts are absorbing some of these treatment slots, says Graham Boyd, Director of the ACLU Drug Litigation Project.

Drug courts have flourished largely because of the enormous political support given them. But there is no such will for adding more community-based treatment, leaving the system skewed in favor of the criminal justice system at the cost of voluntary treatment, says Daniel Abrahamson, director of legal affairs for the Lindesmith Center.

It's logical to want to treat everyone, Tauber says, but the motivation and consequences of drug court are much stronger and tangible for addicts to complete the program and get off drugs than if they entered treatment on their own. In fact, Tauber says drug courts provide better results than voluntary treatment because they tend to keep addicts in treatment longer.

But even if drug courts are working, their essential nature runs contrary to the traditional roles of the justice system. That, say critics, is not only bad for drug court defendants but for the public as well.

This non-adversarial nature found in drug courts -- where the judge, the prosecutor, and the defense attorney are all working toward the uniform goal keeping the defendant in treatment -- is precisely why drug courts work, say drug court professionals. Drug court judges are able to exercise a fair amount of discretion, thus making the system more tailored for each individual. The drug court system though allows judges become social workers and pseudo-doctors, and critics say this is not the type of discretion that the criminal justice system needs or deserves. The judicial branch, they say, is not the arena for handling what is essentially a public policy issue.

"The real problem with the drug courts is that the judges don't know what treatment is," says Dr. John McCarthy, a psychiatrist and addiction medicine specialist at the Bi-Valley Medical Clinic in Sacramento. Judges aren't doctors, he says, and the drug court structure makes "every judge his own king."

Though in some jurisdictions treatment professionals are in the court to directly advise a judge on what to do, the judge ultimately gets to make the final decisions.

"I cannot imagine a more dangerous branch than an unrestrained judiciary full of amateur psychiatrists poised to 'do good' rather than to apply the law," says Judge Hoffman.

The drug court method, in fact, is just the first sample of what may come if the problem-solving court model spreads to the arenas of domestic violence, mental health, and prostitution as many like Tauber hope it will. To function, these courts will need these non-traditional roles and judges willing to institute them, says San Francisco Superior Court Judge Julie Tang.

"In other courts, the outcome is punishment and rehabilitation if necessary," she says. "In our case it's rehabilitation as the goal and purpose of the court. You need to have a different structure to produce outcomes."

Though the idea may be a noble and humane one -- helping people and keeping them out of prison -- critics say it is wrong to treat these problems as diseases and then punish offenders in a system where no one is working for the offenders themselves. And in a system that is being exported across borders -- Canada's federal government has plans to set up drug courts in every major city by 2004 -- this, critics say, could end in a strange downward spiral where the judicial system serves the welfare state and no one serves the law or the people.


Don't Sit on the Sidelines of History. Join Alternet All Access and Go Ad-Free. Support Honest Journalism.