Want to Go to Drug Court? Say Goodbye to Your Rights

Why the bipartisan push for drug courts is overrated.

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.

* * *

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."

* * *

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.

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. 

Marc Levin of the Texas Public Policy Foundation agrees that there's a shortage of information about how many people go from drug court to jail, and for how long. "I do think that there is a need for more data on the number of times drug court participants are sent to jail or prison and the cumulative number of incarcerated days that result," Levin said.

"However," Levin added, "I think that data is only meaningful if one also looks at it alongside the data on the risk level and criminal backgrounds of those going into the drug court. If a drug court is using flash incarceration (weekend in jail) to deal with persistent non-compliance among participants who mostly would have otherwise been sent to prison initially had they not gone into the drug court, then that drug court is likely significantly reducing the total amount of incarceration and associated costs. Increasingly, research is showing it is the swiftness and sureness of the sanction, not the severity that is most impactful."

That claim is debatable. "Drug courts around the nation have been using [motivational jail] for over 15 years," says the California Society of Addiction Medicine, "yet not a single study isolates the impact of jail sanctions in generating improved treatment outcomes."

Tracy Velasquez put it more starkly: "Many offenders could get a lower sentence of they had just pled guilty in criminal court. They wouldn't have got treatment, but they would have spent less time in jail." 

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • Hyperion||

    CRONYISM ALERT!

  • Hyperion||

    AND FIRSSSSSSSSSSSSSSTTTTTTTTTTTTTTTT!!!!!!!!!!!!!

  • Hyperion||

    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." increasing the power of the corporate nannycrony superstate.

  • ||

    Drugs courts are stupid. These cocksuckers just can't bring themselves to admit that the war on drugs is a failure and we can't arrest our way into their version of morality. But, these rentseeking lawyers and judges...you spineless fucking judges..., don't want to give up your share of the pie, so you invent these useless drug courts to make sure you have enough of your fucking greedy hooks in there to justify your bloated fucking carcass.

  • Fist of Etiquette||

    Every vice should have its own court. Judges and prosecutors could specialize in deals for various sins. For instance, drug court could hand out ten Hail Marys for a first offense, whereas prostitution court could order 50 lashes and a wedding.

  • Robert||

    How about another drug court as backup for the original? Like if you fail at drug court, you get the option of going to drug court court, where they work out an arrangement.

  • Pip||

    The first rule of drug court - Never Talk About Drug Court.

  • R C Dean||

    If you really want to entrench the drug war, and make good and damn sure there is always a constituency for HITTING IT MOAR HARDER, create a bureaucracy whose only reason for existence is the drug war.

  • Fluffy||

    These cocksuckers just can't bring themselves to admit that the war on drugs is a failure and we can't arrest our way into their version of morality.

    I think it's even worse than that.

    They can't bring themselves to admit that everyone who doesn't obey their drug laws isn't suffering from a disorder.

    To their self-image, "refusing to obey them" can't be excused by anything other than pathology. So they see that the drug law is a failure, and rather than blame themselves they declare it a "public health problem". They're surrounded by addicts who are helpless to resist drugs, you see, and all those poor people need treatment.

    That's why the most important aspect of drug courts - more important than any of the standard Kafkaesque bureaucracy compliance shit Riggs is talking about here - is that you submit to "treatment". Because from the state's perspective, you have to admit that you're essentially insane before they'll be willing to tolerate the fact that you defied their will. No other reason is permissible.

  • sarcasmic||

    Drug use is thoughtcrime.

  • Hyperion||

    Nope. Thinking about using drugs, or criticizing the great evolved one, is thought crime.

  • Number 2||

    The very point I was going to make. The mere single use of marijuana is considered conclusive proof that one is an addict unable to control himself with respect to "substances" (hence the prohibition on alcoholic beverages)who in need of psychological treatment and counseling to force him to see the errors of his ways, together with the mandatory assumption that he is an unfit parent endangering his children.

    And this is supposed to be an improvement over the War on Drugs?

  • Robert||

    Actually what you describe is one of the criteria used by DEA y similar authorities for keeping a substance under controls: the prevalence of its illegal use. What they say is that the fact that people are willing to break the law to do it shows that the substance has a draw on them.

  • Mr Whipple||

    It's for the jerbz. Not just the jobs on the government farms, but also, the private consultants, and the companies that do the urine testing and sell the kits, and the rehabs..........I didn't RTFA, so if make a redundancy, you'll know why.

    Anyone who wants to get clean can do so by simply going to AA and NA meetings. And the first thing that they tell you is, you have to want it for yourself. If you don't want it for yourself, it ain't gonna work.

    Some might say that throwing someone in prison might help them to reach their "bottom" sooner, and seek help voluntarily. But I have seen little evidence to support this.

  • Fluffy||

    The bigger problem to me is that 90% + of the people sent to compulsory treatment don't need treatment and never will need it.

    It's not that the treatment being involuntary will stop them from "getting better". It's not there's nothing to recover from. There's no better to get.

    It's as if someone had caught me with a beer when I was a freshman in college and forced me to go to AA. Earth to fucking statist morons: I'm not an alcoholic. The fact that you found me with a beer in no way indicates that I am an alcoholic.

  • Almanian's Evil Twin||

    "We're going to have to engage in more aggresssive treatment with Fluffy. Potentially involving medication. Because he's just not acknowledging that he has a problem..."

  • Robert||

    Well, but they say that the fact that you were willing to break the law to get a drink shows you have a problem with drinking.

  • Mr Whipple||

    Only YOU can decide if you are an alcoholic/addict.

    That was kinda the point. AA is just a set of social tools and suggestions, and a support system to help excessive drinkers stay sober.

  • Duncan20903||

    The concept that one is a degenerate addict if one breaks the law in pursuit of getting high. This is a bastardized version of the concept which originated in the first couple of decades of the existence of A.A. When applied to drinking alcohol ii really is a good indicator that one's drinking alcohol consumption is out of control. But the premise came from people who were thinking of drunken driving, arrested for drunk in public, for assault, spousal abuse, etc.

    Another platitude spawned in the early days of A.A. was "a drink is a drink is a drink" This one was invented because of the habit of freshly minted A.A. members falling off the wagon after convincing themselves that they could handle beer or wine. It is very true that one 12 oz beer = 1 5oz glass of wine = 1 shot of 80 proof because they all contain the same amount of ethanol. When N.A. decided to re-coin the phrase to "a drug is a drug is a drug" it was laughable on its face. Sure, 1 aspirin = 1 joint of merrywanna = 1 shot of heroin. Sure it does.

  • Mr Whipple||

    There are people out there that have serious problems that should be addressed. But Drug Courts and prisons and institutions are just a giant mind fuck for the people that are suffering who need real treatment. You can't force someone into sobriety unless you handcuff them to the radiator....and even that is no guarantee.

  • jacob the barbarian||

    It is fucked to put drug users in prison for possession or use. Forced Sobriety is just another form of rights abrogation. So what makes it OK to chain them to a radiator in order to force the sobriety?

  • Mr Whipple||

    So what makes it OK to chain them to a radiator in order to force the sobriety?

    I didn't say it was OK.

  • sarcasmic||

    Rent seeking for the win!

  • Pip||

    There should be NO court for this.

  • Almanian's Evil Twin||

    Man, I hope that poor kid in Holland, MI doesn't have to go to Hotdog Court...

  • The Late P Brooks||

    "Due process? Fuck that."

  • darleenclick||

    I seriously doubt one commenter here has any real life experience either with addicts or their families or drug court.

    I cannot speak to other states, but in California, Drug Court is kind of the last stop after people have failed the other two programs.

    #1 PC1000 or Diversion = first time offender e.g. under influence, with no other additional charges (such as beating up your significant other) -- sentence suspended for 2 years. You keep yourself from getting in trouble again, you come back to court and the charges are dismissed.

    #2 Prop36 = unqualified for PC1000 - maybe multiple arrests, had other charges like manufacturing or distributing. Similar w/PC1000 in that 2 years of suspended sentence, but one has to pick a court approved rehab program and file a document of satisfactory completion plus stay out of trouble.

    #3 Drug Court = people who under the last two programs have proved they are incapable of personal responsibility. It is almost impossible to get kicked out of this unless you commit a serious violent felony or engage in major trafficking

    Call me a cynic, but while the War on Drugs as, indeed, failed on many levels the juvenile reaction of "just legalize drugs" is even worse. YOU don't pick up the dead bodies of the addicts, or their victims when they murder their significant others or kill their children. YOU don't deal with the property damage when methlabs blow up. (cont)

  • darleenclick||

    OHNOES! NO DUE PROCESS! FUCK THE SYSTEM!

    When the welfare state ceases to exist and my paycheck is no longer being tapped to buy the food on the table and the roof over the head of some assh*le junkie, then I'll say get rid of all drug laws.

    Until then, fuck you.

  • FAILtastic||

    Ann Coulter made a similar point on Stossel once and I have to admit that I found it to be at least somewhat valid. However, the logical response, rather than to go on a crusade against drug abusers in the name of the common good, is to "un-handcuff" us from one another vis-a-vis welfare (meaning that if Johnny decides to ruin his life getting cracked out then Jimmy shouldn't have to pay for his poor choices. And this can be applied to other things as well). Another point I would add is that if we're going to go that route, we'd have to relax gun ownership laws as well, so that if Johnny tries to rob Jimmy to support his habit, Jimmy can defend himself. A product of this may be that Johnny decides to clean up his act rather than face the many armed Jimmys he might otherwise try to rob.

  • sable||

    It appears none of you have ever been in DrugCourt because you really don't have a clue what happens. I have been through the program and it was nothing like you described. Yes I had to quit drugs which is what I was arrested for and drinking which I don't do, but guess I would have to in prison also. I UA'd but I was free. No one should have to pay for any of the UA's or treatmen if they can not afford it, that is what the funding is for, so that is the people running that specific court that is screwwing its participants not the program itself. I graduated in 12 months and have no record at all compared to a felony. Every try to get a decent job with a drug felony? doesn't happen. so until you know more about what you are talking about, shut the fuck up and give other people the chance to not go to prison. I was looking at 5 years any of you talking trash looking to give up your freedom for a belief based on half the truth? Didn't think so

  • sable||

    to darleenclick.
    it is the ignorance of people like you spouting all thebullshit aboutaddicts killing everyone is why people don't get help. My husband is a drug counselor and alcohol counselor. We both believe in legalizing drugs. Just because drugs are legal doesn't mean you are going to be an addict. Are you an alcoholic because liquor is legal. He has never had a drug addict client that killed anyone, but he has had an alcoholic or two who killed while driving drunk.

  • OBD2 Scanners||

    I appreciate the work of all people who share information with others.

    ------------
    Also visit my blogs:
    https://besttachopro2008.wordpress.com
    http://tacho-pro-2008.jimdo.com

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Video Game Nation: How gaming is making America freer – and more fun.
  • Matt Welch: How the left turned against free speech.
  • Nothing Left to Cut? Congress can’t live within their means.
  • And much more.

SUBSCRIBE

advertisement