Inside NACDL: Addicted to a Flawed Solution: Drug Courts Revisited

Addicted to a Flawed Solution: Drug Courts Revisited Norman Reimer April 2011 7   It has been two years since NACDL released a seminal study that focused on the burgeoning drug court phenomenon. The report, America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for R

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 It has been two years since NACDL released a seminal study that focused on the burgeoning drug court phenomenon. The report, America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform, fundamentally challenged the growing national acceptance of drug courts.1 For the first time, a major investigation conducted under the auspices of the criminal defense bar documented flaws in what many had perceived as a universally popular and effective alternative to lengthy incarceration.

NACDL based its report upon hearings conducted around the country. The task force received testimony from an array of stakeholders, including defense lawyers, prosecutors, drug court professionals, judges and ex-addicts.2 It found a widely disparate approach to drug courts. A few featured open admissions, did not require irrevocable waiver of rights, and carried minimal negative consequences for failure in treatment. But those were the exception.

All too often, drug courts denigrate fundamental rights, extracting broad waivers as the cost of admission, and expose even the most well-intended to dire consequences, often worse than if they avoided drug court and simply pleaded guilty. They tend to place a premium on early guilty pleas, thereby insulating questionable law enforcement search and seizure practices, and provide a convenient means for prosecutors to shed defective cases. And some drug courts impede the attorney-client relationship and undermine an accused person’s Sixth Amendment right to a vigorous defense. Worse, many drug courts operate without transparent admission criteria, and most bar eligibility to recidivists and those most in need of treatment. These factors tend to exacerbate racial and economic disparities in the criminal justice system.

NACDL’s report spawned a great deal of discussion. While some commentary has been critical, others are beginning to take a second look at drug courts and whether this approach is the best solution. On March 22, 2011, two new reports were released, both of which confirm NACDL’s concerns.

The Justice Policy Institute (JPI) issued Addicted to Courts: How a Growing Dependence on Drug Courts Impacts People and Communities. The report makes the case that drug courts not only widen the net of criminal justice control, but they are less cost-effective, less fair, and no more successful in treating addiction.3 The report identifies several of the same problems NACDL detailed in its earlier report — “cherry picking” of those most likely to succeed, increased racial and economic disparity, and harsher outcomes for those who try and fail to complete drug court treatment programs.

The Drug Policy Alliance (DPA) released Drug Courts Are Not the Answer: Toward a Heath-Centered Approach to Drug Use. The DPA’s report finds that drug courts have not demonstrated cost savings, reduced incarceration, or improved public safety. In fact, the report finds that drug courts leave many worse off for accepting that approach and have made the criminal justice system more punitive toward addiction.4 The DPA report asserts that there is an urgent need for a non-criminal, health-centered approach to drug use, and cites a wide range of data to support the contention that such an approach saves a fortune and reduces crime.5

NACDL members and others with an interest in this subject should read these illuminating reports in their entirety. They both survey a plethora of data, research, and publications on this vitally important public policy issue. Taken together, they provide important support for NACDL’s core position that addiction and the crime it causes, including possession and low-level distribution to support addiction, cannot be addressed by the criminal justice system. The DPA report underscores the magnitude of the problem. In 2009, 21.8 million people, which is 8.7 percent of the population over age 12, reported using illicit drugs.6 With about 7.8 million of those surveyed indicating that they need treatment, the DPA report notes that this represents more potential patients than those suffering from lung, breast, and prostate cancer combined.7 It borders on the delusional to think that a criminal justice system can address this need. But that has been the nation’s primary approach. Each year police make more than a million arrests for drug offenses, and hundreds of thousands are sent to our nation’s jails and prisons. The direct social and economic costs of these policies are staggering. The indirect costs that flow from the stigma of conviction and the attendant collateral consequences cannot possibly be calculated.

Let there be no mistake. Drug courts have helped many people. They have saved lives. They have probably saved hundreds of thousands of prison years. For clients facing a lengthy prison sentence, even a long shot at successful diversion must be considered. And therein lies the dilemma. As long as draconian penal policies drive America’s drug policy, drug courts will thrive — irrespective of their flaws.

The JPI and DPA reports both cite a report finding that over 55,000 enter drug courts annually.8 This number represents only a tiny and select percentage of drug defendants. But if drug courts can only treat a sliver of those who need help, if they perpetuate inequity, reject the individuals most in need of treatment and divert precious resources toward a dead end solution, then they are not the answer. Drug courts may be a stop-gap measure that allows some to avoid harsh prison sentences and others to recover and end the cycle of self-destruction and despair. But they are no substitute for a long-term solution.

NACDL has long believed that addiction to any substance, whether legal or illegal, is really a health problem best treated by the medical community.9 The Association reiterated that view when it released its report on problem-solving courts. At the same time, the report listed a panoply of reforms that would make the drug court approach fairer and more widely available. With little progress toward real reform and the release of these new reports urging a public health approach, it is time to underscore NACDL’s fundamental position: drug abuse and addiction are health problems. They are not criminal problems. Drug abusers are someone’s sons and daughters, brothers and sisters, colleagues and neighbors. They are not inherently bad or evil. They are not criminals, and they should not be treated as such. A serious national conversation about the merits of decriminalization is long overdue.
 

Notes


1. The report, which was adopted by NACDL Board of Directors on August 8, 2009, was the work of a task force that included Adele Bernhard, Jay Clark, Rick Jones, Elizabeth Kelley, Marvin E. Schechter, Gail Shifman, and Vicki Young. Professor Joel M. Schumm of the Indiana University School of Law served as the reporter. The report may be found at www.nacdl.org/drugcourts.
2. A link to the hearings transcript can be found at www.nacdl.org/drugcourts.
3. JUSTICE POLICY INSTITUTE, ADDICTED TO COURTS: HOW A GROWING DEPENDENCE ON DRUG COURTS IMPACTS PEOPLE AND COMMUNITIES (2011).
4. DRUG POLICY ALLIANCE, DRUG COURTS ARE NOT THE ANSWER: TOWARD A HEALTH-CENTERED APPROACH TO DRUG USE (2011) [hereinafter DPA REPORT].
5. DPA REPORT at 22.
6. DPA REPORT at 1, citing OFFICE OF APPLIED STUDIES, SUBSTANCE ABUSE AND MENTAL HEALTH SERVICES ADMINISTRATION, RESULTS FROM THE 2009 NATIONAL SURVEY ON DRUG USE AND HEALTH (2010).
7. DPA REPORT at 1.
8. A.S. BHATI, J.K. ROMAN & A. CHALFIN, URBAN INSTITUTE, JUSTICE POLICY CENTER, TO TREAT OR NOT TO TREAT: EVIDENCE ON THE PROSPECTS OF EXPANDING TREATMENT TO DRUG-INVOLVED OFFENDERS (2008).
9. National Association of Criminal Defense Lawyers, Board Resolution to End War on Drugs (Nov. 4, 2000); read the resolution on the Press Room page at www.nacdl.org.
 

 

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