Drug Courts: A cause for celebration or a misguided attempt at progress?

In 1989 the first known drug treatment court was established in Miami in response to a crack epidemic. Two decades later, such courts are widespread across the US, offering treatment instead of prison time to some defendants arrested for drug-related felonies. Who is offered treatment is entirely at the discretion of the judge and defendants are usually required to plead guilty in order to be considered. Those who are offered and accept treatment are routinely drug tested throughout the process. Additionally judges can reward or punish the behaviour of those in treatment; incentives used includes certificates, cards and applause from the courtroom while sanctions include admonishments, assigned essays and, disturbingly, increased drug testing and court appearances or even a few days in jail.

This year, according to the National Association of Drug Court professionals, 120,000 people will be tried in 2734 drug courts spread across all 50 states. The question of whether these courts are a step in the right direction, towards viewing drug addiction through the sphere of public health as opposed to criminality, has never been so pertinent. 

The clear positive aspect of this model is that less people are going to prison for drug offences. Many people convicted for non-violent drug-related offences are offered an opportunity to reclaim their lives and access the treatment they need. It is also worth celebrating that people under this model can be saved from needless incarceration and that fewer families will be arbitrarily separated as a result of this.

A reported 75% of people who complete the drug court programme are not arrested again for 2 years. This also means that one in every four is, usually for another drug-related offence. Judges acknowledge that relapse is extremely common for an individual fighting an addiction, and the role of a strong support network along the road to recovery cannot be emphasized enough. Given that drug courts appear to subscribe to a model of addiction that allows for relapse, it is odd that relapse is punished and treated as ‘non-compliance’. Could it be that the pressure of an environment in which failing to complete the program successfully could result in incarceration is not conducive to effectively battling an addiction? Perhaps being publicly admonished in a courtroom in front of others who are in treatment, being given a telling off at the point when support and compassion are most needed, is not the best incentive to give up drugs. The use of a few nights in jail as a sanction is an incredibly irresponsible part of any treatment program and can only be a means by which to satisfy the public’s desire to see criminals punished. Given the high levels of stress, helplessness and guilt often associated with attempted recovery, especially in the first year, an experience as stressful as being given jail time, even for only a few nights, could easily push someone back into relapse. It is also likely that not everyone successfully completing ‘treatment’ is addicted to drugs: given that some people have been offered treatment as opposed to sentencing for the crime of possession, it is probable that some recreational users have accepted treatment as preferable to jail. The success rate with genuine addicts would therefore be lower than 75% in reality.

The figure of 75% becomes even less impressive when we consider that a meta-analysis by Latimer, Morton-Bourgon and Chrétien indicates that 45% of those admitted to treatment via drug courts drop out. It is likely that these 45% who are let go by the treatment system are in fact the most in need. What happens to them instead is that they face jail time and, often, an increased sentence for ‘non-compliance’ with the treatment. The drug courts’ treatment program fails nearly half of those attending. The International Drug Policy Consortium claims that judges are biased towards those who are perceived as ‘easy’ cases; in their eagerness to prove that the increased federal funding is justified, judges choose cases in which they believe the individual has the greatest chance of success under the minimum financial and institutional effort. This systematically excludes the most problematic users who are the most in need of help.

The problem with an arrangement that twins principles of treatment and punishment is that it cannot deliver treatment effectively. The drug court is first and foremost an instrument of the law, and therefore treatment is compromised because the program is still a part of the justice system, and the punitive element will always dominate this arrangement.

There is a huge tension between the act of sending someone who is in court for a drug-related felony to a treatment program and sending anyone failing this program to prison. While judges apparently understand that ‘relapse is part of addiction’, and try to accommodate this, individuals who are unable to do what the court asks of them, including abstaining from drugs, are let go from the program and are incarcerated. If the court recognizes, at the point at which treatment is offered as an alternative to prison, that an individual’s criminality derives solely from their dependence on drugs and that they need and deserve help, how then do they justify punishing those addicts who fail the program and are surely the most in need by forcing them to carry out a prison sentence? 

Most drug users are not problematic drug users. However, for those who are, it is important to ask ourselves, why did it take choosing treatment over prison for these people to receive help? Why were these people allowed to find themselves in court – in some cases for stealing to fund their addiction – and be processed by the legal system before they could be identified and helped by a health professional? The illegality of certain drugs, as well as the media's perpetuation of the stereotype of drug users as feckless and incompetent, stigmatises those who use them, including and especially those who are addicted.

Public antipathy towards people who are dependent on drugs is widespread, and this is fuelled by irresponsible and offensive media reporting. Stigmatising language such as ‘junkie’ is used in the media as bywords for social deviance; their effect is to dehumanize the subject, reducing the sum of a person’s character to their drug use. This heavily perpetuated stigmatisation can make it extremely difficult for an individual to admit to their doctor, their family or even themselves that their drug use is no longer recreational and has become problematic. The specific stigma associated with illegal drug use, on top of the more generalised stigma towards seeking help that exists in capitalist Western societies, means that many individuals who need professional help are not getting it. Attempts to recover from an addiction without the professional help of any kind can be incredibly dangerous if an individual decides to go cold-turkey and suffers the effects of a sudden withdrawal. In addition to the social stigma, many drug users are denied or have restricted access to healthcare. The fear of judgement and arrest deters the hardest-to-reach individuals from seeking treatment. The lack of empathy by many hospital staff towards drug users further exacerbates this. 

To this extent, the existence of drug courts is a good thing, because many people who may not have otherwise sought help are offered treatment. However, there is also a risk that drug courts can increase the stigmatisation associated with drug use, and specifically with those who are in rehabilitation from drug addiction. The fact that the treatment is accepted only to avoid prison unavoidably links treatment with punishment in an unhealthy way. People in this treatment program are made to attend court frequently, and  one of the punishments handed out for ‘non-compliance’ is having to attend court more often. This is creates an environment in which recovering addicts feel like they are there to be punished more than helped. Moreover, in wider society, if people see judges handing out treatment programs as sentences, this can only further entrench the stigma attached to all people in recovery from drug addiction, whether voluntary or not.

Another problem with the treatment program offered by drug courts is the metric by which they measure success. Due to prohibitionist drug laws, these treatment programs are abstinence-only. Many people fail at abstinence and, surely, a harm reduction program of treatment would be preferable to incarceration?

Furthermore, it's interesting to look at who benefits from the massive amounts of discretion given to judges in deciding who should be offered treatment. Despite the fact that there is almost no difference in drug use between Black and White people in the US, Black people are over 10 times more likely to be imprisoned for a drug offence than White people. African Americans are more significantly more likely to be stopped and searched, arrested and prosecuted for drug-related offences than people of any other race in the US. The NYCLU report that Black people and Latinos combined make up 90% of those imprisoned in New York for drug offences. Most illegal drug users in New York are White.

Surely then, if the judges exhibit no institutional racism, and 90% of those tried in court for drug-related offences are African-American, then around 90% of people going into treatment should also be African-American. However, figures from the Brooklyn Drug Treatment Court show that this is not the case: 75-80% of people tried in this court are Black, 15% Latino and 10% White, yet Black people are at least 30% more likely than White people to be expelled from drug court than White people being tried for the same offence. 

It appears that when judges are allowed large margins of discretion, the same institutional racism that poisons much of the justice system at the level of ‘random’ stop-and-searches, and at the level of detainment and arrest, is apparent in the court room. Given the close correlation that still exists between race and class in the US, and given that richer individuals can afford to deal with a struggle with addiction in a private setting, the all too familiar treatment of African Americans within the drug courts seems even more pernicious.

While it is tempting to celebrate the expansion of drug courts as a progressive step towards a more tolerant attitude to drug use, the reality is far removed from this image. In reality, drug courts are just as rife with institutionalised racism as much of the justice system, focus narrowly on those who are the least in need of help, and take a punitive attitude to recovery because they are, by necessity, bound up with the criminal justice system.