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Nearly 30 Years On, How Have Drug Courts Made a Difference?

by Caroline Cooper

If one reviews the reams of publications about drug courts over the past 30 years—and digests the range of profound benefits reported and the legitimate critiques levied—a fundamental question remains:

How have these special courts made a difference?

In developing the drug court “model” more than a generation ago, Judge Herbert Klein, the Miami (Fla.) Circuit Court jurist who was the key architect of the program and who died Aug. 30, described its purpose as follows: “to engage the public health system in dealing with a criminal justice problem.”

But the creation of drug courts, which were first introduced in August 1989, really had a broader goal. As Judge Klein reflected several years later:

What we are doing is a statement of our belief in the redemption of human beings. It is a pronouncement from those in authority to some of our least powerful and most ignored citizens that we care about you and want to reach out and help you: your lives and well-being are important to us. . . . [T]his may be the first time in the lives of many of these people that someone is actually listening to them—hearing what they are saying and telling them that they care about them and what happens to them is important. . . . We tell them we care about them, and they begin to feel worthwhile. [When] some pretty important people (judges, lawyers, and others in authority) are telling them we don’t want them to fail, they begin to believe they can transcend.1

Halting the Revolving Door Between Jail and Court
The architects of the drug court model, and those who followed with the development of mental health courts, approached the problem of drugs and crime from a practical perspective. These judges, prosecutors, and defense counselors had handled thousands of cases involving drug-using defendants who came through the court’s “revolving door”—with their cases adjudicated, the defendants doing their jail time and, within a short period after release, appearing back in court with a new charge to begin the cycle again.

Long before research would vindicate their observations, the justice system practitioners recognized that

  • Drug addiction is a disease, not a moral failing.

  • A far more effective court response to drug-using defendants than incarcerating them is to provide treatment. Incarceration by itself is not only ineffective but also often exacerbates the addiction and mental health disorders many defendants present.

  • Most important, treatment, if effectively structured and delivered, is a far more effective response of the criminal justice system than traditional punitive approaches.
The Model Uses a Carrot and a Stick
The architects of the drug court model developed its legal guidelines astutely, using a “carrot and stick” approach, providing defendants the opportunity to enter into treatment while the legal process in their case would be held in abeyance. But all the while that process would serve as the “stick” to promote their retention in treatment and ultimate recovery and continue to provide the constitutional protections to which criminal defendants are entitled.

Doubtless, the advent of the drug court model has triggered a profound transformation in the way the justice system operates that permeates most areas of justice system functions and, in many ways, has come to redefine the concept of “justice.” The drug court model introduced a new role the court could play in dealing with rampant drug use and associated criminal activity. The court could use its authority to punish also as leverage for engaging defendants in treatment and bringing together the agencies that could assist in this process.

These fundamental concepts of the drug court model—that treatment, adequately structured, was far more effective than incarceration; and that the authority of the court could be used to provide the leverage needed to promote retention in treatment and ultimate recovery and rehabilitation of defendants—are two of the most significant contributions the drug court model has made to transform the criminal justice system and, in so doing, also improve treatment, mental health, and associated ancillary services.

Two Noteworthy Operational Changes
Building on these fundamental concepts, numerous operational changes have emerged, with two in particular worth noting:

  1. A judge can play a key role in promoting the “redemption of human beings” that Judge Klein referenced, providing the oversight necessary to ensure that a) defendants comply with drug court conditions, reinforcing progress and promptly addressing noncompliance to maintain —and not terminate—defendants in treatment, and also that b) appropriate treatment and associated services are provided consistent with the individualized needs of the participating defendants.

  2. A multidisciplinary team approach in handling cases involving drug-using defendants has proven imperative. The approach must recognize that the issues underlying the criminal conduct that brought the defendants before the justice system generally entailed a complexity of factors that required the expertise of treatment, mental health, and other professionals to adequately advise the court in carrying out its mission of doing justice.
Recalling the Old Way
To grasp the enormity of these innovations, consider the way criminal cases were processed at the time the drug court model was introduced:

  • Cases were processed by case number and, perhaps, by offense type, with no attention given to the underlying substance use, mental health, socioeconomic, and related factors that brought the defendant before the court in the first place.

  • The basic performance measure courts used was the efficiency of the case process—generally a) time to disposition and b) keeping the backlog to a minimum.

  • Rarely was attention given to the frequency of probation violations and recidivism rates, which are characteristic of what we now know is the chronic disease nature of untreated addiction and mental health disorders, both of which were routinely anticipated after the case was disposed, and the fact that the same defendant, whose case was processed quickly, kept coming back.
Since court dispositions were generally reported in terms of cases, not defendants, court statistical reports generally indicated the volume of cases handled, without attention to the number of defendants, and without noting that often the number of “cases” far exceeded the actual number of “defendants” being processed, since it was not unusual for a single defendant to have 10 or more cases within a year. While many judges, prosecutors, and defense counselors recognized this revolving-door syndrome, the most common response was to escalate sentences, rather than address the underlying factors triggering the defendant’s initial involvement in the justice system.

Looking Forward
We still have a long way to go to fully implement the drug court model, to ensure the protection of participants’ constitutional rights and the provision of quality of treatment and associated services essential. The challenge becomes all the more complex, as new research and promising practices emerge and need to be built into the mainstream of day-to-day policy and operations. And staff turnover in all involved disciplines—both on the justice and on the treatment sides—presents the continual need for judicial leadership and training at all levels.

This said, the drug court model and the vision of Judge Klein have provided the foundation, reinforced now by almost three decades of experience, for probing beneath the criminal case “number ” to more effectively address the underlying factors that trigger criminal conduct.

This is not to say that incarceration or other punitive sanctions may not be appropriate in individual cases, even where drug use and mental health disorders are present. But what the drug court model has given us is an approach for triaging the criminal caseload, using the law and the authority of the legal process to promote treatment, mental health, and ancillary services, where appropriate, as well as punishment.

We just need to make sure we continue the momentum to keep this happening and do not compromise adherence to constitutional rights and evidence-based practices that have emerged and will continue to emerge.

Caroline Cooper is a private consultant working in national and international justice system reform. For many years, she served as the director of the Justice Programs Office of the School of Public Affairs at American University in Washington, D.C., and directed the Bureau of Justice Assistance’s national drug court technical assistance project.

1Judge Herbert Klein, Senior Judge, Circuit Court for Miami–Dade County (Fla.), credited for creating the drug court concept. Keynote Speech, “The Power of Connection: Fuel for Drug Courts.” 1996 Florida Drug Court Conference.