Justice Policy Institute Report on Reliance on Drug Courts

A March, 2011, report released by the Justice Policy Institute, "Addicted to Courts: How a Growing Dependence on Drug Courts Impacts People and Communities," authored by Nastassia Walsh, both cautions about the increasing reliance on a criminal justice option to deal with drug users, abusers and addicted persons, and provides recommendations for a more cost-effective and holistic community treatment approach to the issue.

Between 1989 -- when the first drug court was started in Dade County, Florida -- and today, the number of drug courts, and other specialized courts, has grown to 2,559 drug courts and 1,219 specialty problem-solving courts in the U.S. A large number of specialty courts have arisen nationwide, including: Tribal Healing and Wellness Court, Reentry Court, DWI Court [often in conjunction with drug courts], Juvenile Drugs Court, Family Dependency Treatment Court, Veterans Treatment Court [the first of which was created in 2008; currently, 21 states provide veterans courts], Mental Health Court, Community Court, Domestic Violence Court, Gambling Court, Truancy Court, Prostitution Court, and Homelessness Court.

There are two main types of drug courts; the first is a deferred prosecution program and the second is a post-adjudication program. The deferred prosecution programs do not require a guilty plea or conviction before entry into the program; the post-adjudication programs require a guilty plea or conviction and utilize probationary periods or deferred or suspended sentences during the program term. When drug courts were started they were almost exclusively deferred prosecution programs; however, currently only about 7 percent of the adult drug courts involve deferred prosecution, about 59 percent of the courts involve post-adjudication programs, and about 19 percent of the courts have some mixture of the two types of programs.

Between 1980 and 2008, the number of people in state prisons for drug offenses increased by 1,223%. About 53 percent of state inmates may be classified as substance abusers or dependents; nationally, about 9% of the general population have drug or alcohol abuse or dependence, but less than 25% receive treatment. Of those receiving treatment, about 37% are from criminal justice system referrals. Drug courts were initiated to address treatment and provide incarceration-alternative options, for low-level and non-violent offenders with substance abuse problems; they were meant to facilitate an additional alternative to incarceration. However, the proliferation of drug courts has had the effect of removing funds from other possible reforms, including from probation services, community treatment services, and prevention and research, and the existence of drug courts -- now providing judges, prosecutors, and police with a criminal justice option -- make it more likely that the criminal justice option, instead of a non-system treatment referral, will be chosen for use. "It is clear that the very presence of drug courts is causing 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." [Quoting Denver District Court Judge Morris B. Hoffman]. The report noted that one reason for the proliferation of drug courts is the failure of probation departments to meet the needs of the clients -- due in part to growing caseloads and inadequate resources -- so that some of the traditional mechanisms of probation departments, e.g., treatment, supervision, and case management, are now done by the drug courts.

The report stated that about 62 percent of people referred to treatment by the criminal justice system complete treatment or are moved to another level of care. However, about 60% of people referred by other, non-criminal justice system sources complete treatment or are transferred to another level of care, without having the "collateral damage" to communities caused by drug and/or alcohol addiction. For example, those referred to treatment by the criminal justice system, in contrast to those referred by other sources, are more likely to end up incarcerated (4% to 1%, respectively). More specifically, of those referred to treatment by the criminal justice system, 49% completed treatment, 13% were transferred to another level, 22% dropped out, 7% were terminated, and 4% were incarcerated. For those referred by other sources, 46% completed treatment, 14% were transferred, 27% dropped out, 7% were terminated, and 1% were incarcerated. The report noted that relying upon the criminal justice system is a twofold problem: participants face collateral consequences of criminal justice system involvement (including loss of food stamp benefits, loss of student loan opportunities, and public housing denial), and treatment for an addiction is usually delayed until after the arrest. "Drug courts only reduce incarceration of and provide treatment to people who already are in contact with the justice system, doing nothing to help people avoid addiction-related criminal justice police contact in the first place." [Emphasis in original]. Lower-income abusers, who may not have the means or local resources available to obtain treatment before an arrest, and who are subject to current policing policies and procedures, often thus are disproportionately represented in the criminal justice system.

Ms. Walsh cited a report by the Washington State Institute for Public Policy examining studies of 57 drug courts for rates of recidivism. Adult drug courts reduced recidivism rates by 8.7%, and produced about $2 in benefits to victims and taxpayers for every dollar spent; however, community-based drug treatment programs reduced recidivism rates by 8.3%, and produced $21 in benefits to victims and taxpayers for every dollar spent. Intensive supervision drug treatment programs were found to reduce crime by 18%. If the drug courts worked as planned, with people being diverted from prison, successfully completing treatment, and becoming law-abiding citizens, there would be great cost-savings realized from the drug courts. For example, instead of the average cost of $22,650 per prison inmate, the annual cost for a participant in a drug court program would be about $4,300. However, the report notes that not everyone who is offered drug court would have gone to prison, the average number of days a participant was sentenced to jail by the drug court is 50, or more -- at a cost of about $68 per day -- and only a fraction of those entering a drug court program actually complete it, with those who are kicked out receiving potentially longer prison sentences than they would have realized had they not entered the drug court program. For example, one study cited suggested people receive sentences up to two or even five times longer than people who were not admitted into a drug court program. Community treatment is almost as effective as drug courts in reducing recidivism rates, and is almost ten times more cost-effective than drug courts.

The report stated that drug courts "cherry pick" offenders, with the result that not everyone is treated equally. For example, in order to receive federal funds drug courts must focus on non-violent offenses and those persons without violent records. However, Ms. Walsh noted that studies show drug courts have the greatest benefit for those with prior felony convictions and who have failed previous dispositions. One study showed that of the 1.5 million people arrested for a drug offense, only about 7% met the current eligibility requirements for drug court. Also, by "cherry picking" the "easier cases," drug courts may demonstrate a better success rate and avoid defunding of the programs. However, "the people who may benefit most from drug court [are left] without access to treatment to help them live a successful life."

Older people are more successful than younger people in completing drug court programs. Racial minorities and people from poorer areas are statistically more likely to be under police surveillance and more likely to be arrested, and, as a result, are more likely to be terminated from drug court programs than are whites and people with more resources. "The most likely treatment failures are genuine addicts and members of historically disadvantaged groups, who thereafter receive harsh termination sentences that often outstrip conventional plea prices [quoting Josh Bowers, University of Chicago Law School]."

The report presented five recommendations: a) "invest in front-end treatment and services;" b) "implement "real" diversion policies and alternatives to incarceration;" c) "collect better data on drug courts;" d) "focus court treatment programs on those who would have gone to prison;" and e) "evaluate current drug court policies and practices."

Sources: http://www.justicepolicy.org/research/2217; http://www.justicepolicy.org/uploads/justicepolicy/documents/addicted_to_courts_final.pdf