Obama's Drug Czar Is Lying to You About Drug Courts

It's possible that Drug Czar Gil Kerlikowske is getting bad intel from the people beneath him, or that he's too busy restricting access to pain medicine to read the wealth of independent reports highlighting the flaws of the increasingly popular drug court model, which promises to divert drug offenders from prison. It's also possible that he's intentionally lying. 

What's not disputable is this: Increased funding for drug courts is the signature drug policy reform of Obama's first term; and whenever Kerlikowske talks about them, he says things that are verifiably untrue.

I first noticed Kerlikowske fibbing during the Q&A session after his speech at the Center for American Progress earlier this year. Scott Morgan of StopTheDrugWar.org asked Kerlikowske why so many drug courts were targeting recreational marijuana users.

Kerlikowske's response? "That's a bit of a myth."

His full response:

Again, that's a bit of a myth. If someone's arrested for a small amount of marijuana, and the determination is made they have to go into treatment, treatment beds and space are a valuable commodity. I think professionals can clearly assess when someone is in need of treatment. Compulsory treatment is not something I'm as familiar with in great detail at the local level

Is the large number of recreational marjuana users going through drug court a "myth," or is it something that Kerlikowske "is not familiar with"?

Let me help the czar with that: According to a 2008 report from the National Drug Court Institute (rendered into graph form by the Drug Policy Alliance), marijuana offenders make up the plurality of drug court participation in every community save for rural communities, where pot is the second most popular drug among program participants. So, yes: Drug courts are focusing on marijuana users. And they do it because marijuana offenders are plentiful and easy to scare. 

Kerlikowske: 0; Facts: 1

Now we go back to the fall of Nov. 2011, when Kerlikowske was interviewed by The Root. In that interview, Kerlikowske cited a July 2011 Urban Institute study as proof that drug courts save money. The only problem is that the Urban Institute study in question says drug courts only save money when they do something that very few drug courts do.

Here's the relevant exchange:

The Root: Another part of your outreach involves the expansion of drug courts instead of focusing on incarceration. What kinds of gains is this yielding -- are more of these popping up more around the country? It doesn't really seem that they are.

Gil Kerlikowske: In 22 years they've gone from one in Miami to about 2,600. So there's a pretty good growth, and I think what will spur the growth even further is this most recent piece of research by the Urban Institute. They compared sites over five years that had a drug court versus sites that did not, and they showed that the drug courts were not only cost-effective but reduced many of the problems associated with those offenders. So now you have the real hard data. For anybody that says, "Drug courts are soft on drugs and don't make a real difference," now you have a piece of really strong evaluative research that says they do make a difference.

And here's one of the Urban Institute's "key findings" from the study linked in that interview:

Although drug courts prevent a great deal of small-cost crime, overall savings are driven by a reduction in the most serious offending by relatively few individuals. Drug courts are especially likely to save money, therefore, if they enroll serious offenders.

Read that next to UI's recommendation that "courts broaden participant eligibility, particularly to include those with mental health problems and histories of violent offenses," and you can see that drug courts save money only when they admit offenders that most drug courts do not admit. 

As if actually reading the UI report Kerlikowske cites isn't enough, it's worth mentioning that every single critique of the drug court model--from the Drug Policy Alliance, the Justice Policy Institute, and the National Association of Criminal Defense Lawyers--focuses on the fact that drug courts don't enroll these "serious offenders," opting instead for recreational users and first-time, nonviolent offenders.

From a rent seeking point of view, this practice--called "cherry picking" by the National Association of Criminal Defense Lawyers--makes perfect sense: Federal drug court funding is contingent on keeping participants clean of alcohol and drugs for at least 12 months, and having a lower recidivism rate for drug court graduates. If you're a first-time drug offender and you're not addicted, you're more likely than a hardcore addict to stay clean for the duration of drug court, and less likely to reoffend (or get caught reoffending) once you've graduated. That means you help drug courts keep their numbers up, which helps keep them flush with grants.

Once again, Kerlikowske blows smoke, and a media outlet buys it. 

Kerlikowske: 0; Facts: 2

Here's a pro tip for journalists covering the drug war, or any other policy issue: Do your homework and then ask real questions. Whether the drug court model is spreading, as The Root interviewer above asks, is not nearly as important as whether it works as advertised. And that's why journalists need to do homework; because Kerlikowske says they work as advertised, and independent research says they don't.  

What's more alarming about the drug court coverage I've seen to date is the unwillingness of drug court advocates to admit the model has shortcomings. No public policy reached through compromise is perfect. Drug reformers are generally pretty good about acknowleding this, as evidenced by Initiative 502 in Washington state, where drug reformers are having a vigorous debate about the bill's per se DUID clause. 

The same professionalism is on display among pro-decriminalization/legalization critics of the drug court model. "There are now so many in this country that, if you will, they are a fact of life and we are stuck with them," Elizabeth Kelley of the NACDL told me. "We realize that, and have suggeted a number of reforms." Even DPA thinks drug courts--done right--are an acceptable way of helping violent drug offenders whose crimes are a result of addiction. 

Yet despite the many concessions made by critics of the model, drug court advocates like Kerlikowske continue to claim that they've found a magic bullet that will slay all the negative externalities associated with treating drug use as a criminal justice issue. People who say otherwise are either ignored, or accused of peddling "myths"…and then ignored. 

Being an honest participant in the drug debate--something Washington, D.C. has almost never been--doesn't mean giving up on controlling drug use. It only means that the Obama administration and its allies at places like CAP would have to stop crowing about ending the War on Drugs.