(Page 2 of 3)
Once in the drug court program, the offender is prohibited from using drugs and alcohol (the latter even if alcohol had nothing to with the offender's arrest), and is subjected to regular urine testing (federal guidelines recommend tests be conducted twice a week, with little notice, for the first few months or so). The offender is required to attend regular drug treatment counseling (regardless of whether he is an addict) and appear regularly before the drug court judge to discuss his or her performance. If an offender has children, or a curfew, he is subjected to regular home visits by social workers and/or law enforcement.
If the offender can manage to follow the drug court rules for x amount of time (anywhere from 12 to 36 months), he gets to graduate. From there the paths diverge, depending on which of the nation's 2,000+ drug courts the offender is in: In some cases, the offender's record is expunged upon completion of drug court. In many other courts, the offender carries the conviction on their permanent record forever.
But that's only if the offender completes the drug court program.
If the offender tests positive for drugs or alcohol, misses an appearance with their treatment provider or drug court judge, and/or fails to pay all the fees and fines associated with the program—including between $50 and $100 for those twice-weekly urine tests—the infractions lead to exactly what drug courts are supposedly designed to prevent: jail time.
Drug court proponents call this “motivational jail.” In some programs, the offender is initially jailed for only a weekend, or a week, or a month. If the offender continues to miss his mark, he is ejected from the drug court program and sentenced according to his guilty plea. In others courts, there is no escalation of penalties; one mistake gets them the full sentence. In every court that receives federal funding, jail is a mandatory penalty.
Proponents of drug courts point to statistics that say people who manage to navigate this process with few or no mistakes are less likely to reenter the criminal justice system and are less likely to use drugs. These stats only tell half the story. According to a 2005 GAO report, between 30 and 70 percent of people who enter drug courts do not complete the program.
And there's very little their attorneys can do to stop offenders from being crushed by stiff sentences.
"In many drug courts," says Elizabeth Kelley of the National Association of Criminal Defense Lawyers, "the defense attorney is asked to forfeit the traditional role of being the zealous advocate of the client, and is asked to be part of the proseuctor or judge as part of 'treatment.'" Federal drug court guidelines say that defense attorneys are to "explain all of the rights that the defendant will temporarily or permanently relinquish," and then work with prosecutors "to build a sense of teamwork and to reinforce a nonadversarial atmosphere."
But the lack of an adversarial atmosphere hardly helps users who mess up in drug court. In 2009, the National Association of Criminal Defense Lawyers published a report that found offenders who relinquish their rights in order to enter drug court oftentimes get locked away for longer than they otherwise would have.
"For example," the NACDL report reads, "a simple crack possession case will usually net a 10- to 20-day jail sentence in Manhattan. A defendant may wait 20 to 30 days for placement in a program. If defendants enter a treatment program and fail, they may be sentenced to six months in jail." According to other testimony in the report, drug court judges in Nebraska and California gave participants who relapsed "the full maximum sentence."
According to a report from the Texas Public Policy Foundation, that's likely what would happen to users in Texas if that state's legislature passes the pro-drug court Senate Bill 1076, which says that users who "failed to comply with the conditions of probation, failed to attend treatment, or failed out of the drug court...could be revoked to prison for up to the 10 year maximum."
* * *
Despite the best guesses of the Drug Policy Alliance and other groups, exactly how many people end up in jail as a result of failing out of drug court, and how much time they spend there, is something of a mystery.
"We can't get a straight answer on people who relapse, who screw up and miss appointments, and then get bounced out of drug courts," Velasquez says. "We have never been able to get a straight answer on that."
Government reporting on drug court success rates excludes people who don't complete the program, and independent studies tend to focus on specific drug courts. One of those studies took place in Baltimore and was released in 2006. In a report titled “The Long-Term Effects of Participation in the Baltimore City Drug Treatment Court,” researchers reported that 45 percent of Batlimore drug court participants were booted from the program after 17 months. Which means that nearly half of the program's participants spent more time in jail than they would have if they had simply pled guilty to possession.