When Pennsylvania's Republican Gov. Tom Corbett announced his support earlier this summer for expanding drug court funding, the left-leaning Center for American Progress praised him as "just one of several conservative governors to take steps toward important—and fiscally responsible—prison reforms in their states."
CAP's kinds words are a testament to the big-tent appeal of the drug court model. Two decades after the first drug court sprang up in Miami, bipartisan proponents are plentiful. The conservative Texas Public Policy Foundation has advocated for drug courts as a way to reduce Texas' prison population (once the second and now the fourth highest in the country), the Obama administration has declared drug courts a "third way" to address America's drug problem, and New Jersey Gov. Chris Christie recently announced his support for the model by saying, "If you're pro-life, as I am, you can't be pro-life just in the womb."
It's heartening that Christie, whose last job was in law enforcement, wants to stop throwing drug users in cages. It's more heartening still that he's working for change as governor, instead of waiting to propose reforms—as President Bill Clinton, U.N. Secretary General Kofi Anon, and Mexico President Vicente Fox all did—until he was safely back in private life and completely powerless.
But there are many flaws with the drug court model that Christie, Obama, and others now support, chief of which is that the model is just a cheaper means of enforcing prohibition. Their proliferation derives not from increased awareness of the harms of the drug war, but from fiscal woes at the state level.
"In terms of the politics," says Tracy Velasquez of the Justice Policy Institute, "one of the concerns we have is that drug courts are basically a way for policymakers to make it look like they're doing something on the war on drugs without actually addressing the war on drugs."
This is why drug court proponents haven't suggested changing drug laws, only reducing the cost of enforcing them. Take cost-savings out of the equation, and the drug court model loses its luster.
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In the summer of 2010, 22-year-old Georgia resident Latisha Floyd faced two options. She could go to trial for distributing a single gram of cocaine to two undercover Georgia police officers, or she could sign up for drug court. If she took her case to trial, and lost, she would face a minimum of five years in prison, and as many as 10 years. If she forfeited her right to a trial, pled guilty to the lesser charge of possession with intent to distribute, and entered her local drug court program, she could be spared jail altogether.
But complying with the drug court's various requirements proved tougher than Floyd expected. She didn't own a car, and she didn't make enough money to support herself and her son as well pay for regular drug tests and other drug court service fees.
In July 2011, Floyd was kicked out of the drug court program for missing appointments and missing drug court payments, according to her attorney. Because she pled guilty in order to enter drug court, Floyd couldn't contest the penalty for failing out of the program: 10 years of probation and five years in a correctional institution, with the latter penalty kicking in only if Floyd violated her probation. In February 2012, when not owning a car kept her from a series of meetings with her probation officer, Floyd was locked up. The only silver lining? She got four years, instead of five.
According to an estimate from the Drug Policy Alliance, Floyd is one of 95,000 drug offenders a year who are ejected from drug court and funneled back into the criminal justice system.
As a result of what happened to Floyd, Catherine Bernard, the public defender who represented her, says she doesn't "really recommend drug court to clients very often anymore, since the risks and burdens are so high."
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This is how the majority of the nation's 2,000+ drug courts work: A prosecutor will offer a low-level offender with no history of violent crime or mental illness a deal. He can enter drug court, so long as he pleads guilty to his drug-related charge. This isn't a traditional guilty plea, but it has some of the same elements: the offender forfeits his right to a trial, to discovery, and/or to contesting the circumstances of his arrest.
Then he begins participating in drug court.