Criminal policy and drug court effectiveness

Drug Courts: A Program to Reinvent Justice for Addicts

For the past several decades, drug use has had an overwhelming effect upon the American justice system, with drug and drug-related crime being the most common offense in almost every community (Drug Strategies, 1996). Beyond the troubling ability of these problems to fill prisons to capacity, the traditional judicial system seemed to have no deterrent effect on these crimes (Drug and Crime Facts, 1994). A disturbing "revolving door" pattern had emerged, with drug offenders moving through the system in a predictable pattern of arrest, prosecution, conviction, incarceration, and release. In a few weeks, sometimes only a few days, the same person was back in the system again, arrested for drug possession or a drug-related crime (National Association of Drug Court Professionals [NADCP], 1997). A particularly difficult problem faced by the system was the growing use of crack cocaine in the 1980s (Miller & Gold, 1994). The legislature passed tougher laws imposing longer sentences, such as the Comprehensive Crime Control Act of 1984 and the Anti-Drug Abuse Acts of 1986 and 1988, and the nation struggled to find a solution for its drug and crime problem ("The Effective National Drug Control Strategy," 1999).

One of the reasons that the traditional judicial system did not seem capable of dealing with the drug abuse problems was the way that it viewed the drug addict (Johnson & Waletzko, 1992, 199). In the early twentieth century, the system saw the problem as one needing punishment, a direct result from the moral justification of punishing people for using drugs, that is, a weakness of spirit or an inability to control oneself that leads to drug use ("A History of Drug Use and Prohibition"). Eventually, this moralistic attitude was replaced with a more medical point-of-view, which saw the drug addition problem as a disease (Morgan, 1980, 87). Although it was difficult for the legal and medical fields to come together on this issue, the disease formulation of addiction was expressed in a 1962 landmark Supreme Court decision, Robinson v. California. In this opinion, Justice William Douglas stated that the Court could not see how "under our system being an addict can be punished as a crime... Each has a disease and must be treated as a sick person" (Douglas, 1962, 674). The opinion stated that the ultimate goal of drug-control related laws should be "to cure, not to penalize" (Douglas, 1962, 660). Although it took a decade for this attitude to completely pervade the judicial system, this shift in approach brought about changes in the way the judicial system approached drug problems.

A concrete result of the Robinson decision was the formation of a special set of treatment centers known as Treatment Alternatives to Street Crime (TASC) in 1972 ("Treatment Accountability Fact Sheet," 1995). TASC was developed to provide a bride between the justice system and the drug treatment community, where the judiciary would sent the addict for treatment, and upon completion of the program, he or she would return to court for disposition, usually having the charges dropped (Nolan, 2001, 36-37). Although this was a method of bringing the disease model of addiction into the legal system, the treatment itself was still separate from the court. As will be discussed fully below, this is where TASC differs from drug courts. With the advent of the drug court system, TASC and the drug courts often work together in providing all the services needed for the addict population (Peyton & Gebelein, 1994).

Even with the development of TASC, the addict prison population still increased and the revolving door spun unabated, creating a growing feeling among judges and other members of the judicial system that the system was still failing the public in its attempts to deal with the drug and crime problem (Nolan, 2001, 44). The common refrain from court officials was, "What we were doing is simply not working." (Nolan, 2001, 59). An additional concern for the American judicial system was that it was losing its public support, being perceived as having no effect on the problem of crime. Thomas Merrigan, a Massachusetts judge described this situation in a speech that he made during a drug court convention:

If we don't change what we are doing in the next few years, and if we don't change how we go about serving the community with more relevancy, with more meaning, we are going to find that in twenty-five years, we have become irrelevant in the minds of the public. They will no longer consider us meaningful (Nolan, 2001, 58).

Thus, the popular opinion was that something had to be done to deal with the growing number of drug offenses, the high repeat offender rate by drug offenders, the overcrowded jails, the high cost of incarceration (as compared to a lower cost of treatment), and the heavy criminal case loads of the courts. So in response to these issues and upon the recommendation of a report by Associate Chief Judge Herbert Klein of the Eleventh Circuit, the first drug court was established in Dade County, Florida in 1989 in an attempt to reduce Miami's growing number of felony drug cases. (Nolan, 2001, 39). The NADCP defines a drug court by its mission. Specifically, t]he mission of drug courts is to stop the abuse of alcohol and other drugs and related criminal activity. Drug courts offer a compelling choice for individuals whose criminal justice involvement stems from AOD [alcohol and other drug] use: participation in treatment. In exchange for successful completion of the treatment program, the court may dismiss the original charge, reduce or set aside a sentence, offer some lesser penalty, or offer a combination of these (NADCP, 1997, 7).

Since its start in 1989, the drug court program has become an extremely popular new approach to the judicial treatment of drug and drug-related crime. Specifically, as of December 2000, the latest figures that are available, there are now 804 drug courts in operation, with 507 in the planning stage ("Drug Court Facts"). As Nolan observes, "[t]he rapid expansion of the drug court model has led participants and observers alike to label the phenomenon a 'movement,' even a 'revolution' in criminal justice" (2001, 39).

It is important to note that drug courts did not just appear fully formed on the judicial scene. An enormous amount of planning and preparation occurred before any community was ready to set up its own drug court, and must occur whenever a new drug court is put into place (NADCP, 1997, 7-8). Some of the issues that have to be decided before formation include how offenders are going to be identified as eligible for the program; the treatment methods that the court is going to utilize, and the expectations that are going to be placed on the participants. The organizers must also determine what support service is available, how the different organizations involved are going to coordinate their efforts and the formal policies and procedures they are going to follow. Finally, there are also contractual and budgetary agreements to consider, the determination of who is going to provide ongoing supervision and how the process and outcome are going to be evaluated (NADCP, 1997, 8). Many new drug courts take advantage of the NADCP's mentoring court program that provides technical and education assistance, as well as visiting opportunities for the new court's personnel ("NADCP COURT Mentoring Program").

Many people are involved in this initial planning stage. Some of the central figures are those that will be running the court itself, include the judge, his or her clerk, a court administrator, and the prosecutors and defenders that will be still representing the drug court clients, as offenders are called in this program (Nolan, 2001, 6). In order to insure governmental support that will be necessary for the program, the initial planning group should also include representatives from State and local treatment providers, law enforcement, pretrial and probation services, the jails, and other community-based organizations. The operational, coordination, resource, and information management, and evaluation needs of the program are developed by this core group into a work plan (NADCP, 8). The work plan should be specific, describing roles and responsibilities of each program component. In this way, the different participants can become used to the often very different roles that they will play in the drug court system, as compared to their roles in the traditional legal setting (Tauber, 1993, 5).

So what are the particular characteristics of a drug court that make it so unique as to be considered "a revolution" in criminal justice? Because each court was independently developed, there is no clear consistency even in such basic qualities as the day-to-day function of the program or the criteria for participation. In essence, there are as many methods of running a drug court within the legal system as there are drug courts themselves (Bean, 1996). However, the NADCP has identified the key components shared by all drug courts that form the essence of their function and the primary differences between drug courts and the traditional judicial system (NADCP, 1997, 12-38).

The first key component of a drug court system is that it integrates the drug treatment programs directly into the judicial system. The goal of the program is to cure the offender of their drug habit and get them back into society with jobs and other responsibilities (Nolan, 2001, 64). Research has shown that someone judicially forced into detoxification programs is just as likely to be successful as those who voluntarily join a program (Hubbard, R., Marsden, M., Rachal, J., Harwood, H., Cavanaugh, E., & H. Ginzburg, 1989). Thus, in the drug court system, clients obtain both treatment and justice from the same organization.

The second component of a drug court system is that it uses a "a nonadversarial approach, with prosecution and defense counsel promoting public safety while protecting participants' due process rights" (NADCP, 14). This brings up a central factor in the success of a drug court that was mentioned briefly above, the need for all participants to adapt to very new roles. Both the prosecutor and defense attorney must adapt to the new nonadversarial role they play in the drug court, and adopt the team approach. The judge must set aside his or her nonbiased judgement function and work directly with the client in getting them the treatment, occupational counseling, and other resources that they need (Nolan, 2001, 136). These changing roles are sometimes difficult for those involved. Further, because the court is attempting to act in the best individual interests of the clients, it often requests information that raises confidentiality concerns, especially from attorneys that are more comfortable with the traditional adversarial judicial system ("Drug Courts: Can We Make Them More Effective?"). Some drug courts have even gone so far as to institute searches of clients' homes and cars, even without probable cause (Nolan, 2001, 203). The potential loss of important individual rights and the rightful protest of the client's defense attorney are the most serious arguments against the drug court system ("Can We Make Drug Courts More Effective?").

Early identification of eligible participants with prompt placement in treatment programs is the third major component of drug court systems. Although eligibility began with drug possession and other directly drug-related crimes, there has been an interesting trend noted that this criteria has widened over time and now the approach has been applied to other crimes that may or may not be drug-related (Nolan, 143). According to a 1997 Justice Department Report, a full 22% of drug courts had expanded into other non-drug charges, with such cases accounting for up to 68% of the total drug court docket (Cooper et al., 9-13). Expansion into violent crime, such as domestic abuse, is a concern of those who oppose the drug court system, because they do not believe it carries with it sufficient protection of society from the offender (Nolan, 149).

The fourth component key to drug courts, whatever other methods are used, is that they provide "a continuum of alcohol, drug, and other related treatment and rehabilitation services." (NADCP, 1997, 15). Really only limited by budget, some of the various treatment modalities that are available in American drug courts include acupuncture, individual and group counseling sessions, Alcoholics Anonymous (AA), Narcotics Anonymous (NA) and other 12-step group programs (Brumbaugh, 1994). In the few instances where participants have complained about aspects of the drug court program, it was to request even more access to treatment programs and even more choice about what the programs could be used (Cooper et al., 1997). Thus, this is an area that appears to be a central component of the high amount of client satisfaction reported by drug court participants.

The need for constant monitoring of drug use, through involuntary urine tests or other types of drug testing, is the fifth common component of drug court systems. More than one commentator has noted how the nonadversarial nature of drug courts transforms them into a type of theater, with storytelling between the judge and the client a central aspect (Tauber, 1993, 8). One judge in Amherst, New Hampshire utilizes the urinalysis test to heighten the theatrical nature of his drug court. This is how Nolan described this judge's technique.

Every court session clients are chosen "randomly" to take a urinalysis test... Clients chosen for a test leave the court and return, literally, with a small container of urine, which is tested by the director of treatment in front of the bench. When the testing is complete, the treatment provider asks the client, who is now standing before the judge, when the client last used cocaine, smoked marijuana, and drank alcohol (75).

The judge stated that the whole presentation is done for deterrence effect. Certainly the judge is using courtroom theatrics with this technique.

The sixth key component of drug courts is a coordinated response to compliance and non-compliance on the part of the clients (NADCP, 1997, 24). It is important that failure to follow the program has consequences, and these consequences get more serious as the failures increase. This is especially true given the often indeterminate time period that clients can have to complete the program steps (Brumbaugh, 1994). Although drug courts recognize that individuals have a tendency to relapse, continuing drug use is not condoned. This tendency for failure by the clients can be one of the most difficult adjustments for the judge involved, probably because they have not spent as much time in the treatment mode as other members of the drug court (Nolan, 135).

However, the judge must overcome this problem in order to comply with key component number seven, which is "ongoing judicial intervention with each drug court participant" (NADCP, 1997, 27). Many judges are highly enthusiastic about this role, and cite their work in the drug court as the most satisfying during their career (Nolan, 108). But some critics of the drug court system see the increased role of the judge in another light (Hostetler, 2002). This article quotes Judge Morris Hoffman, of Colorado, as saying, "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." The results of efficacy studies, discussed next, are probably the only fair way to resolve these opposite points-of-view.

Drug courts recognized the need for evaluation of the results to determine if the new approach to drug addiction is working. Thus, key component number eight is consistent monitoring and evaluation of the program to ensure it is meeting the goals of the program (NADCP, 1997, 29). This is one of the more difficult areas of the drug court literature to evaluate. Unfortunately, studies done by the drug courts themselves have been flawed making it difficult to accept the very positive numbers on face value and make it difficult for even outside agencies, such as the General Accounting Office (GAO) to interpret the results (U.S. GAO, 1997).

Results on recidivism have run the gamut of being highly successful, running almost a third below traditional court, to being almost identical (Hoffman, 2000, 1496). Because it is the drug courts themselves that are often doing the evaluating, there is no motivation to provide unbiased reports of the results, making the results little more than moral boosters for the drug court personnel (Hofstetler, 2002). A very recent follow-up report by the GAO, titled "Drug Courts: Better DOJ Data Collection and Evaluation Efforts Needed To Measure Impact of Drug Court Programs" reveals that good data about questions as basic as recidivism still have to be collected about the drug court system. Until that data is available, it is difficult to make any concrete conclusions about whether drug courts truly addressed the problems they are set up to cure.

The final two characteristics of drug courts are, in effect, a request for community involvement in the drug court development over time. Specifically, the NADCP calls for c]ontinuing interdisciplinary education promotes effective drug court planning, implementation, and operations" and "[f]orging partnerships among drug courts, public agencies, and community-based organizations generates local support and enhances drug court program effectiveness" (NADCP, 1997, 34-37). The drug court system is adamant about community involvement and has been quite successful in garnering support from a wide spectrum of political groups, from conservatives to liberals (Nolan, 2001, 57).

Thus, drug courts have been seen as a revolution in criminal justice. By breaking down the adversarial techniques of the traditional court system, the advocates of the drug court system believe they have the ability to get treatment to drug addicts and return them to productive, tax-paying society. By shifting the treatment role into the court system itself, and placing the judge in charge, persons convicted of drug offense and other drug-related crime have the ability to stay clean and have their records erased. However, until data collection in an unbiased, scientific manner is performed, it is difficult to evaluate whether drug courts have been statistically successful. No matter what the end result of the research, there can be no doubt that drug courts are in the process of reinventing justice for the drug-addicted criminal. It just remains to be seen whether the reinvention is for the better.

Annotated Bibliography

Bean, Philip. (1996, October). "America's Drug Courts: A New Development in Criminal Justice." Criminal Law Review. 720-740.

A scholarly review of the American drug court by a British attorney.

Brumbaugh, Alex. (1994) "Why Drug Courts Work." 3 Dec. 2002. http://www.silcom.com/~alexb/drugcrts.htm