Drug Courts in the United States: Punishment for 'Patients'?

By Joanne Csete

A central theme of the 2016 United Nations General Assembly Special Session (UNGASS) on the 'world drug problem' was the need for governments to see minor, non-violent drug infractions – particularly simple use and possession of minor amounts – as health concerns rather than matters to be dealt with by the use of criminal sanctions (United Nations General Assembly [UNGA], 2016a). That is, as many of the government representatives at the Special Session put it: people who use drugs and others where addiction is part of the reason for comitting a crime should be regarded as 'patients, not criminals' (UNGA, 2016b). The unanimous outcome statement from the UNGASS encouraged countries, within the constraints of their legal systems and their treaty obligations, to implement 'alternatives or additional measures with regards to conviction or punishment in cases of an appropriate nature' (UNGA, 2016a, Paragraph 4.j).

In 2016 the United States (US) was among the United Nations (UN) member states espousing a more health-oriented and less prison-oriented approach to drug dependence and related problems. In the view of US government officials, at least through early 2017, the US's move to more health-oriented management of drug use and related infractions was well represented by specialised drug treatment courts (hereinafter 'drug courts') (US Office of National Drug Control Policy [US ONDCP], 2014; Pelley, 2015). Drug courts are meant to offer court-supervised treatment for drug dependence in cases where drug dependence is deemed to be an underlying determinant of a non-violent criminal act. In the US, the accused persons in question would likely otherwise be incarcerated; drug courts are meant to divert them from this fate. Thus, drug courts, in theory, offer both an alternative to incarceration for certain drug infractions and a means to address drug dependence as a cause of drug-related crime.

As discussed in this chapter, drug courts are widespread and politically very popular in the US. The US government has made the promotion of and support for drug courts in other countries a centrepiece of its drug-related foreign policy. The purpose of this chapter is to examine the reality of the US drug court experience with an eye to identifying whether these special courts constitute a just and effective alternative to incarceration and whether they realise their objective to provide appropriate medical services to those in their charge.

US DRUG COURTS: HISTORY AND EVOLUTION OF THE MODEL

Addressing mass incarceration

That the US leads the world in per-capita incarceration is a well-documented phenomenon of long standing. The 'War on Drugs' is far from the only factor contributing to mass incarceration in the US, but it is an important one. From 1980 to 1989 alone, the number of people convicted for drug-related crimes in state (as opposed to federal) prisons increased more than fivefold (Franco, 2010). In 1980, drug-related offenders represented 6% of people in state prison systems; in 2006, the figure was 20% (Franco, 2010, p. 4). The number of people incarcerated for drug-related offences overall in both state and federal systems was about 41,000 in 1980 and about 470,000 in 2015, an increase driven in part by mandatory minimum sentences for a wide range of drug infractions, including non-violent offences (Sentencing Project, 2017).

The first drug court, established in 1989 in the state of Florida, was meant to respond to this dramatic rise in the number of drug-related offenders entering the justice system. It also aimed to address judges' perceptions that many people were cycling through the courts with repeated offences that were linked to unresolved drug dependence (National Association of Drug Court Professionals [NADCP], n.d.). It was thought that through combining 'the coercive power of the criminal justice system' with treatment for drug dependence, problematic substance use, and thus also the crimes associated with it, might be reduced (Franco, 2010). From that time, drug courts spread rapidly across the country. By 2001 there were over 1,000 drug courts (Douglas and Hartley, 2004), and by mid-2016, there were an estimated 3,057 drug courts in the US (NADCP, 2016). The non-partisan Congressional Research Service (CRS), a research agency linked to the US Library of Congress that works exclusively for the US Congress, characterised this growth as a 'movement' since, especially in the early years, it was not based on empirical evidence of the benefit of the courts (Franco, 2010).

Drug courts have also become a pillar of drug-related US foreign policy. The US has been a key supporter of an effort by the Organization of American States (OAS) to set up drug courts and related 'problem-solving courts' in Central and South America and Mexico (US Department of State, 2016). In 2013, the OAS reported that there were drug courts in Argentina, Barbados, Bermuda, Chile, Colombia, Costa Rica, the Dominican Republic, Mexico, Panama, Peru and Trinidad and Tobago, as well as the US and Canada (OAS, 2013). There are also drug treatment courts of some kind in Australia, New Zealand, Belgium, Norway, Austria, the UK and Ireland (Marlowe et al., 2016, p. 61).

The National Association of Drug Court Professionals (NADCP), a non-governmental organisation that promotes drug courts and issues standards for their operation, describes drug courts as 'a sentencing alternative providing life-saving treatment to people living with substance use and mental health disorders, offering a public health response to addiction within the criminal justice system' (NADCP, 2016, n.p.). It might be supposed from this description that every effort is made in these courts to keep participants (the accused) focused on treatment by putting them at a remove from criminal sanctions to the greatest degree possible. However, this is not the case for most US drug courts. The vast majority of drug courts in the US offer court-supervised treatment only after a person has made a plea to a criminal charge and appeared before a judge – that is, post-adjudication (Franco, 2010; Marlowe et al., 2016). In the early years of drug courts, there were more pre-adjudication programmes – that is, ones that offered entry into a treatment programme before a charge is 'booked' or entered into the record. In the dominant post-adjudication model, most drug courts require participants to plead guilty. That practice means that if for some reason a person is unable to complete the drug-court-supervised treatment programme successfully, he or she may be redirected to normal criminal courts, where the prior guilty plea means no opportunity to engage in plea-bargaining. Post-adjudication models are also less likely to offer expungement of the criminal record to drug court 'graduates', even to people with no prior convictions (National Association of Criminal Defense Lawyers [NACDL], 2009).

There are virtually no binding rules to govern drug court operations, including the kind of treatment they offer, the way in which drug court staff engage (or not) with health professionals, or the frequency of participants' required court appearances or mandatory drug tests. All of these factors are determined largely by the presiding judge. As noted by one drug courts scholar, these courts are defined by 'a model where the judge is the central figure in the recovery process' (Tiger, 2011, p. 177). As a result, drug court processes vary somewhat from jurisdiction to jurisdiction. A common feature of most drug courts, however, is that the usual adversarial roles of the prosecutor and defence attorney are abandoned as all of these parties become part of a team meant to support the participant through the court-supervised treatment programme. Mandatory, random and repeated drug testing (urinalysis) is also generally used to monitor treatment adherence, and relatively frequent appearances before the court are standard. These are among the 'key components' of drug courts recommended by the NADCP and the US government (US Department of Justice [DoJ], 1997).

In the US, the drug courts helped to usher in a wider phenomenon of establishing 'problem-solving' courts of various kinds, including courts for persons convicted of driving while intoxicated, mental health courts, domestic violence courts and special courts for veterans of the armed forces. According to the federal government's monitoring of these courts, about two-thirds of them require a guilty plea to be entered before the accused person can participate in diversionary treatment in any of these areas (Strong et al., 2016).

Evaluations of the US drug courts: methodological challenges

A large and widely cited evaluation of US drug courts is the 2011 multi-site adult drug court evaluation (Rossman et al., 2011), financed by the US National Institute of Justice (NIJ), a government agency that also gives grants to drug courts. Covering 23 courts in six sites, this study found lower self-reported rates of having committed a crime among drug court 'graduates' in the 24 months after being in court and lower official re-arrest rates, though the difference in the latter was not statistically significant. The drug court participants were significantly less likely to report using all drugs in the two years after court supervision, and this was also the case for 'hard' drugs – that is, drugs other than marijuana and alcohol. The drug court group had significantly lower prevalence of positive drug tests (buccal swab) 18 months after leaving the court (29% versus 46%) (Rossman et al., 2011).

Drug court evaluations, however, face considerable methodological challenges. In 2011 the non-partisan US Government Accountability Office (GAO), a federal auditing agency, reviewed 260 drug court evaluations, most of them studying recidivism as the outcome of interest. This included the NIJ's six-site evaluation. Of the 260 studies it reviewed, the GAO concluded that only 44 studies (20%) used sound social science methods (GAO, 2011). A 'lack of equivalent comparison groups' was one of the main concerns raised by the GAO (GAO, 2011, p. 9), valid comparison groups being an important pillar of any attempt to make causal conclusions about drug court impact. This concern is hardly surprising since so many elements of the drug court experience differ significantly from what people in other parts of the justice system experience. An evaluation design with random allocation of persons to drug courts (or another fate) would also be ideal for making causal conclusions. However, randomisation of people is generally not possible, and if it is possible it would raise ethical concerns. The GAO nonetheless concluded that 56% of the methodologically valid studies suggested that drug court participation was associated with a reduction in re-arrest rates (GAO, 2011, p. 19). Meanwhile, in the CRS's review of drug court evaluations in 2010, the methodological difficulties of evaluating these institutions was also highlighted. The CRS also noted that many evaluations do not try to take into account the people who drop out of drug court programmes without completing treatment, who are numerous in most jurisdictions.

Other concerns about the drug court model

Other evaluations and analyses of drug court experiences have suggested a range of problems associated with the US model of these specialised courts and their claims of positive transformation of the lives of people who use drugs.

Lack of provision of appropriate treatment

At the time of writing, the US is in the midst of a historic crisis of opioid overdose mortality. The estimated 63,000 opioid overdose deaths in 2016 was more than triple the rate in 1999 on a per-capita basis. The age-adjusted rate of overdoses increased by an average of 10% annually from 1999 to 2006, 3% from 2006 to 2014, and 18% annually from 2014 to 2016 (Hedegaard et al., 2017). In such a situation, it should be a priority for all institutions in contact with people living with opioid dependence to make the greatest possible range of scientifically sound treatments available, with as few obstacles to access as possible. The drug courts, however, have a long history of denying access to opioid dependence treatment that is scientifically proven and effective, in many cases supposedly because of the belief of judges or drug court coordinators that methadone or buprenorphine maintenance therapy is no better than dependence on illicit drugs (Matusow et al., 2013; Physicians for Human Rights, 2017). In some cases, people already receiving medication-assisted treatment (MAT) with methadone or buprenorphine are required to 'taper off' and stop this therapy in an arbitrary period of time as a condition of drug court participation (Csete and Catania, 2013; Physicians for Human Rights, 2017).

Federal authorities recognised this problem and in 2015 issued a notice that federal funding would not be available to drug courts that 'deny any eligible client for the drug court access to the program because of their use of FDA [Food and Drug Administration]-approved medications for the treatment of substance use disorders' (DoJ, 2015, p. 6). The statement continued:

Specifically, methadone treatment rendered in accordance with current federal and state methadone dispensing regulations from an Opioid Treatment Program and ordered by a physician who has evaluated the client and determined that methadone is an appropriate medication treatment for the individual's opioid use disorder must be permitted. (US Department of Justice, 2015, pp. 6–7)

It is difficult to assess the impact of this policy, but the political popularity of drug courts in some jurisdictions may allow for state, county or municipal funding for courts that are functioning in the absence of federal funds in case judges wish to continue to deny MAT for opioid dependence. The impact of that denial can be disastrous. Treatment providers in New York noted that people required to stop methadone maintenance therapy are likely to seek illicit and dangerous opioids on the street, and in some cases they expressed despair that judges were making medical decisions for which they were unqualified (Csete and Catania, 2013). In its investigation of drug court practices in three states, the non-governmental organisation Physicians for Human Rights found that:

Diagnosis and initial treatment plans for drug court participants were often developed by people with no medical training or oversight, at times resulting in mandated treatment that was at odds with medical knowledge and recommendations.

(Physicians for Human Rights, 2017, p. 3)

Investigative reporting in Kentucky recounted numerous cases of dangerous relapses and worse among people denied MAT by drug courts (Cherkis, 2015). Cherkis cited the view of one Kentucky judge who does not allow MAT as a treatment option in her court: 'I understand they are talking about harm reduction; those things don't work in the criminal justice system. It sounds terrible, but I don't give them a choice. This is the structure that I'm comfortable with' (2015, n.p). It is true that in many US counties there are simply not enough providers of MAT to meet the demand, with or without drug courts (Physicians for Human Rights, 2017). However, in these environments it is unhelpful for influential justice officials to disparage therapies that can be life-saving for many at a time of great need.

Unlike in much of Europe, in many US jurisdictions cannabis offences dominate drug-related arrests and criminal charges (Sentencing Project, 2017). With the legalisation of recreational use of cannabis in more US states, this dominance will likely fade, but for now cannabis offenders find themselves in drug treatment courts in many states. New York doctors specialising in drug dependence told Physicians for Human Rights that many people brought into drug courts on cannabis possession charges showed no signs of dependence but were forced to go through treatment designed for dependence on 'hard' drugs, even as many other defendants who were 'literally dying' for treatment were unable to get it (Physicians for Human Rights, 2017). In some cases, people in drug courts for minor cannabis offences are required to pay for lengthy residential treatment that is not appropriate to their situation (Halper, 2014). Some drug court personnel have reported, however, that they are constrained in their choice of treatments by what can be covered by health insurance or Medicaid (Physicians for Human Rights, 2017).