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.

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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.

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." 

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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."