War on Drugs-Drug Court

-Karen Michelle

This installment on a continuing series on the war on drugs and its impact on criminal justice discusses the administration of justice through the court system itself. We are going to zoom in on one area we don’t hear a lot about…drug court and its pros and cons. Before we move forward, we want to make it clear we are working off a few core beliefs.

  1. We believe that marijuana should be legalized so we do not consider the devil weed in these discussions. Gallup shows at least half of Americans favor legalization and this number is trending upwards.
  2. In every other drug category, About 65-70 percent of Americans find them a somewhat serious problem, serious problem or a crisis, so across the board decriminalization for drug offenses is not on the horizon. Therefore we need to function, examine and offer solutions within that framework.
  3. One can denounce the “war on drugs” but drug addiction remains a problem. Bemoaning the tactics used to fight addiction (which wax and wane throughout presidential administrations) really aren’t offering solutions. Pointing out the problem does little to solve it without a focused and targeted mission. Which is likely how the term “war on drugs” really began.

We wanted to focus our attention to drug courts because they are one of the few actual solutions proposed and implemented.

I. Drug Courts

History of Drug Courts  

Since 1989, drug courts have spread throughout the country; there are now over 1,600 such courts operating in all 50 states. The drug court movement reflects a desire to shift the emphasis from attempting to combat drug crimes by reducing the
supply of drugs to addressing the demand for drugs through the treatment of addiction. Drug courts use the criminal justice system to address addiction through an integrated set of social and legal services instead of solely relying upon sanctions through incarceration or probation.

In our second episode in our war on drugs series, we discussed the surprising research that showed the Bush Administration pumped a lot of money and effort into drug treatment and rehabilitative programs. Drug courts were one of the main initiatives and Obama’s administration kept it going strong and even expanded them in many areas.

Legal Framework
There are generally two models for drug courts: deferred prosecution programs and
post-adjudication programs.

In a deferred prosecution or diversion setting,
defendants who meet certain eligibility requirements, such as no or little drug abuse history or a record of previous crimes are diverted into the drug court system prior to pleading to a charge.Usually these are misdemeanor cases. Defendants are not required to plead guilty and
those who complete the drug court program are not prosecuted further. Failure to
complete the program, however, results in prosecution.

Alternatively, in the post adjudication model, defendants must plead guilty to their charges but their sentences are deferred or suspended while they participate in the drug court program.
Successful completion of the program results in a waived sentence and sometimes an
expungement of the offense. However, in cases where individuals fail to meet the
requirements of the drug court (such as a habitual recurrence of drug use), they will
be returned to the criminal court to face sentencing on the guilty plea.

Eligibility Criteria
Though eligibility requirements differ by state and county, generally defendants must be charged with drug possession or a non-violent offense AND must have tested positive for drugs or have an established substance abuse problem at the time of arrest.
For drug courts receiving federal funding through the Bureau of Justice Assistance, there is a requirement to exclude persons with a current or prior violent offense.

A violent offense can include the mere possession of a weapon at the
time of arrest, even if it was not brandished, or used. Also, persons who
are currently facing charges for a drug offense may be denied entry into the drug court because of a past, wholly unrelated offense.

The narrow scope of eligibility can limit the program’s effectiveness.

Impact of Drug Courts on Recidivism and Cost
Researchers in several studies found that drug courts reduce recidivism among program participants in contrast to comparable probationers.

For example, one study found that within a two-year follow-up period felony re-arrest rate decreased from 40 percent before the drug court to 12 percent after drug court implementation.

In a study published in 2007 showed significant success and cost savings of drug courts.

Study results included reduced recidivism for drug court participants up to 14 years after drug court entry compared to eligible offenders that did not participate.

Drug court judges that worked longer with the drug court had better participant outcomes.

Reduced recidivism and other long-term program outcomes resulted in public savings of $6,744 on average , or an estimated $79 million over 10 years.

Anecdotal

Vice, along with the Marshall Project shares a story that highlights the positive effect of drug court for one young lady.  The scene is a idyllic small town in Maine. A young girl, Abby, 12 years old, feeling like she didn’t belong in her world, as most 12 year old girls tend to do, met drugs and decided she loved them. By 17, she was drinking and smoking weed but also snorting pills, doing cocaine and experimenting with hallucinogens. She also became a dealer and thrilled on the power that came from that. An unexpected pregnancy didn’t even stop the usage and her little son was born in 2004 with neonatal abstinence syndrome. They took her baby to the Neonatal Unit to weather withdrawal of horrific proportions. She went on to describe how being a mother didn’t stop her from both using and selling. Finally she was arrested for drug trafficking. For a year she cycled in and out of court, waiting for sentencing. Over a year later, she was arrested again for violating bail with continued drug use. After 3 weeks in jail, this young woman was offered the opportunity to enter “drug court” or “treatment court”. The choice was to attempt the rigorous program or serve a 30 month sentence. Abby described the experience with : “It was clear from Day One that treatment court would be nothing like what I used to seeing in the justice system. The courtroom no longer felt adversarial, and I didn’t just feel like I was another number on a docket.”  As part of her treatment initiative, she had to go before her judge every week- a judge she felt knew, cared about, and was invested in her. Abby completed the program in 2006, intent on maintaining sobriety. She credits that opportunity with changing her life.

Abby’s situation brings up another important thing to consider-the physical and social cost of neonatal exposure. Research shows that Neonatal intensive care expenses can range from $25,000 to $35,000 for the care of low-birth weight newborns and may reach $250,000 over the course of the first year of life. And that is just withdrawal effects alone. There are massive costs when looking at the effects of substance abuse on infants…

-hospital/medical costs for neonatal services during the immediate period following birth -special costs relating to babies exposed to crack/cocaine

– costs associated with babies afflicted with fetal alcohol syndrome

– costs associated with opiate exposed babies

– in-house housing costs for drug-exposed babies (generally during the longer term period following birth) C

– outside (foster/nursery) care costs for drug exposed babies

As of 2005, Statistics show at least 3,000 healthy births due to drug court intervention programs. Just imagine how many there are now.

So, Drug Court sounds perfect, right?

Not so fast.

Problems with Drug Courts

  1. Constitutional Questions

The legal and constitutional issues arising in drug court are pervasive and
complex:

-.First Amendment issues (and religious freedom issues) with mandating treatment. Generally the courts have ruled that because a person can lose their freedom if they do not attend faith based programs, that defendants  are in a “coerced position”. Thus mandating participation in AA and other faith based programs does violate the Establishment clause (Karen gives some clarification)

.However, if alternative, non-faith based programs are available, defendants can be required to attend them.

-.(Searches/Testing) The reliability of certain drug tests, especially initial “roadside tests”

– Due Process- Basically from having to plead guilty to be eligible.


2. Possible lack of scientific based treatment

Much of the cited problems with drug courts is the perception that a judge is allowed to “play doctor” by deciding what treatments are best for someone in their courtroom. When a judge rejects a medical treatment alternative such as methadone, this criticism is true. The question, and one that we found difficult to answer, how often does this type of rejection actually occur?

One of the major players trying to take down the “war on drugs” is the National Drug Policy Alliance and they state that the problem with drug courts is that they do not utilize a biological health approach. It seems that utilizing a biological only approach and accusing courts of playing doctor are contradictory criticisms.

Despite these issues, The idea of a drug prevention arm of the court system is not a bad thing and in fact, is one of the few programs that is somewhat effective against a tragic and debilitating problem. We believe it is beneficial to expand such programs but there does need to be streamlining. Here is what we see as proposed solutions.

– Continuing to adapt to the bio and social research presented is key. Judges must not deny something just because they don’t understand it and they need to rely on and defer to medical professionals on proper medical treatment options.

-There needs to be consistency within court offered drug intervention programs. Maintaining a (possibly federal) standard operating procedure would mitigate many of the cited problems.

-One of biggest issues is that we have is with the word “court”.  “Drug court” is not a court.

It is an arm of the sentencing aspect of the court system.  It is a diversion treatment option designed to keep people out of prison. Which is a worthy goal.


The other problem that we see is the fact that a defendant must plead guilty before being eligible.  As we said, drug courts typically require a guilty plea for admission, and according to the National Association of Criminal Defense Lawyers, prosecutors in many cases require defendants to waive certain rights. Defense attorneys are not given ample time to gather and review evidence and properly advise their clients. Defendants may plead guilty without knowing their options or may be innocent of all charges.


In our view, what is best for society is that if the person completes the program, they should walk away WITHOUT that crime on their record.

We applaud the effort to try to curtail low level drug offenders from getting stuck in the penal system abyss. The intention behind this intervention, while although not always executed perfectly, is a positive and an important step in the right direction. There needs to be improvement,  but to the critics of this system we ask…what is a better solution?

Remember Abby I told you about earlier? There is a little more to the story.

After finishing her treatment, Abby was able to begin working at a local medical center and eventually obtained her state license as a substance abuse and addiction counselor.

Eventually in 2012, Abby was asked to serve as the treatment provider for the very court program that she graduated from. She had stood behind that podium as an addict and now she was working alongside the same judge that presided over her case.

On her eight year sobriety anniversary, Abby approached the judge in chambers, “Your honor”, she asked “Do you remember where you were on this day eight years ago?” He laughed and said “I don’t think so”. And Abby proudly reminded him..”I was standing before you as a criminal.”.

Just think…These two went from defendant and judge to colleagues working together to achieve worthy goals. Which means we all ca

Sources:

https://www.ndci.org/ (click on publications)

Pro-Drug Court sources:

***http://www.nadcp.org/wp-content/uploads/2018/03/NADCP-Brief.pdf

https://www.nadcp.org/sites/default/files/nadcp/One%20Page%20Overview%20for%20Legislators.pdf

https://www.ncjrs.gov/pdffiles1/bja/188086.pdf

(National Institute of Drug Courts) https://www.ndci.org/

Anti-Drug Court sources:

https://www.drugpolicy.org/sites/default/files/Drug%20Courts%20Are%20Not%20the%20Answer_Final2.pdf

http://physiciansforhumanrights.org/assets/misc/phr_drugcourts_report_singlepages.pdf

(budget study)

http://ndcrc.org/sites/default/files/mono8.sustainability.pdf

Pew Research on drug policy:

http://www.pewresearch.org/topics/drugs/

Gallup Research on drug policy:

http://news.gallup.com/poll/1657/illegal-drugs.aspx

Drug Courts as a byproduct of the war on drugs

Stanford paper on the War on Drugs

https://web.stanford.edu/class/e297c/poverty_prejudice/paradox/htele.html

War on Drugs and Constitution

https://www.thefix.com/content/how-drug-war-violates-constitution?page=all

The link between the War on Drugs and the War on Terror

https://www.justice.gov/archive/olp/pdf/drug_court_study.pdf

Patriot Act Started Federal Drug

https://www.nij.gov/topics/courts/drug-courts/Pages/welcome.aspx

Drug courts-

First drug court
https://psmag.com/news/remembering-drug-court-revolution-80034

War on drugs and rule of law

https://www.usatoday.com/story/news/nation/2014/01/27/supreme-court-heroin-death/4938381/

State Drug Courts

https://www.bjs.gov/content/pub/pdf/dudsfp04.pdf

Effectiveness and Recidivism

https://www.nij.gov/topics/courts/drug-courts/pages/work.aspx

https://www.tandfonline.com/doi/abs/10.1300/J076v33n04_06

https://www.ncjrs.gov/pdffiles1/nij/grants/219225.pdf

https://www.ncjrs.gov/pdffiles1/bja/188086.pdf

Court that reject certain treatments:

https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4176483/

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