Drug courts are not the answer

Drug addiction is a health problem. So why are U.S. drug policies still seeking solutions within the criminal justice system?

The use of drug courts — programs that seek to reduce drug use through mandated drug treatment and close judicial oversight — has grown drastically over the last 20 years thanks to moving success stories and enthusiastic proponents within the criminal justice system. In Maryland, the Drug Treatment Court Commission was established in 1993, and Baltimore City's first drug treatment court started in 1994. There are now 39 treatment courts in the state. These success stories are real and deserve to be celebrated, but they provide only a partial picture.


On the face of it, drug courts appear to be aligned with a growing sentiment that incarceration is not an effective response to drug use and that treatment is a better option because it gets at the root of the problem. In other words, drug courts are promoted as more like a public health approach. Unfortunately, drug courts appear to be a case of good intentions being mistaken for a real solution.

Drug courts may actually increase the criminal justice involvement of people charged with drug law violations and people with drug problems. In a Baltimore drug court, for example, research has found that participants were incarcerated more often while in drug court and for the same amount of total days compared with a control group of probationers, generally for program violations (not even including the incarceration later experienced by the 45 percent of people expelled from the program).


According to two new reports, "Addicted to Courts" and "Drug Courts Are Not the Answer," the research clearly shows that drug courts can come with significant unintended negative consequences that make these programs little, if any, better than the system they intend to improve upon. In fact, drug courts may actually be making the criminal justice system more punitive toward addiction because the participants most likely to do well in drug courts are those without a drug problem (about one-third of participants, according to one national survey).

Based on our analyses of the existing research, we have independently come to the same conclusion as several academics and even the federal government's General Accountability Office: Claims that drug courts have significantly reduced costs, incarceration or drug use are unsupported by the evidence.

More troubling is that drug courts may actually increase the criminal justice involvement of people with drug problems. The widespread use of incarceration as a sanction in drug courts — for failing a drug test, missing an appointment or having a hard time following the strict rules of the court — means that some participants end up serving more time behind bars than if they had not entered drug court. And some participants may face longer sentences when they are ejected from drug court than those who did not enter drug court in the first place (often because they lost the opportunity to plead to a lesser charge). Even people who are not in drug court may be negatively affected by them, since drug courts have been associated with increased arrests and incarceration in some cases. This is often because law enforcement and others believe people will "get help" if they are arrested. But drug courts have limited capacity and strict eligibility requirements, which mean that many of the people arrested end up conventionally sentenced instead.

Some might argue that, for the right results, increased criminal justice involvement is worth it. But it isn't. Treatment through the criminal justice system, including drug courts, is not found to be more effective than treatment in the community — though it is significantly more expensive. A federal study by the Substance Abuse and Mental Health Services Administration, for example, showed that people referred to treatment from the criminal justice system do not fare better than those referred through other means (such as a loved one or an employer). And, according to the Washington State Institute for Public Policy, drug courts do not reduce recidivism by even a half a percentage point more than treatment in the community without a judge's oversight.

More than 1.4 million people are arrested every year in this country simply for possessing a small amount of drugs for personal use — about half for marijuana. Only some of them have a drug problem and need treatment. Even if drug courts were greatly expanded to cover all of the people in the justice system who needed treatment, between 500,000 and 1 million people would still be ejected from a drug court and sentenced conventionally every year. Drug courts would be more appropriate and certainly produce better results (at least in terms of cost savings) if they focused on people with drug addiction who are facing prison time for more serious offenses.

Certainly, people who are in the criminal justice system should have access to the health services they need, including drug treatment. But the cart shouldn't drive the horse. One person in Baltimore whom the Justice Policy Institute interviewed for its 2009 report, "Bearing Witness," said: "I was intravenously using heroin and cocaine for about ten years … when I realized I had a problem, I knew I couldn't afford to get treatment … I deliberately got myself caught in order to get treatment … [the judge] gave me the drug court program ... I was facing 25 years, and all I wanted was an 18-month treatment program."

No one should be imprisoned or face the collateral consequences of a conviction in order to access services for a drug addiction. Instead, we need to expand access to treatment and other health interventions in the community so that they are available when people seek them.

About 7.8 million Americans want drug treatment, according to the 2009 U.S. National Survey of Drug Use and Health; this is more than the number of people facing lung, breast and prostate cancer combined. Currently, many people who want treatment can't access it outside the criminal justice system. This must change.


Margaret Dooley-Sammuli is deputy state director, Southern California, for the Drug Policy Alliance and a contributor to the DPA's new report, "Drug Courts Are Not the Answer." Nastassia Walsh is research associate at the Justice Policy Institute in Washington, D.C. and author of "Addicted to Courts: How a Growing Dependence on Drug Courts Impacts People and Communities."