Drug Courts Are Not the Answer

Toward a Health-Centered Approach to Drug Use
Drug Policy Alliance
March 2011

Drug Courts Are Not the AnswerDrug Courts are Not the Answer finds that drug courts are an ineffective and inappropriate response to drug law violations. Many, all the way up to the Obama administration, consider the continued proliferation of drug courts to be a viable solution to the problem of mass arrests and incarceration of people who use drugs. Yet this report finds that drug courts do not reduce incarceration, do not improve public safety, and do not save money when compared to the wholly punitive model they seek to replace. The report calls for reducing the role of the criminal justice system in responding to drug use by expanding demonstrated health approaches, including harm reduction and drug treatment, and by working toward the removal of criminal penalties for drug use.

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This report seeks to address the lack of critical analysis that stymies the policy discussion on drug courts, to foster a more informed public debate on the 20-year-old criminal justice phenomenon, and to encourage policymakers to promote drug policies based not on popularity but on science, compassion, health and human rights.

This report attempts to answer two questions: 1) What impact have drug courts had on the problem they were created to address: the deluge of petty drug arrests that began to overwhelm courts and fill jails and prisons in the 1980s?; and 2) How do drug courts compare with other policy approaches to drug use in terms of reducing drug arrests, incarceration and costs as well as problematic drug use?

To answer these questions, the Drug Policy Alliance analyzed the research on drug courts, other criminal justice programs and non-criminal justice responses to drug use. We also received input from academics and experts across the U.S. and abroad. This comprehensive review of the evidence reveals the following:

Drug courts have not demonstrated cost savings, reduced incarceration, or improved public safety. Oft-repeated claims to the contrary are revealed to be anecdotal or otherwise unreliable. Evaluations are commonly conducted by the creators of the programs being evaluated, and the result is research that is unscientific, poorly designed, and cannot be accurately described as evidence.
Drug courts often “cherry pick” people expected to do well. Many people end up in a drug court because of a petty drug law violation, including marijuana. As a result, drug courts do not typically divert people from lengthy prison terms. The widespread use of incarceration – for failing a drug test, missing an appointment, or being a “knucklehead” – means that some drug court participants end up incarcerated for more time than if they had been conventionally sentenced in the first place. And, given that many drug courts focus on low-level offenses, even positive results for individual participants translate into little public safety benefit to the community. Treatment in the community, whether voluntary or probation-supervised, often produces better results.

• Drug courts leave many people worse off for trying. Drug court success stories are real and deserve to be celebrated. However, drug courts also leave many people worse off than if they had received drug treatment outside the criminal justice system, had been left alone, or even been conventionally sentenced. The successes represent only some of those who pass through drug courts and only a tiny fraction of people arrested.
Not only will some drug court participants spend more days in jail while in drug court than if they had been conventionally sentenced, but participants deemed “failures” may actually face longer sentences than those who did not enter drug court in the first place (often because they lost the opportunity to plead to a lesser charge). With drug courts reporting completion rates ranging from 30 to 70 percent, the number of participants affected is significant. Even those not in drug court may be negatively affected by them, since drug courts have been associated with increased arrests and incarceration in some cases.

• Drug courts have made the criminal justice system more punitive toward addiction – not less. Drug courts have adopted the disease model of addiction but continue to penalize relapse with incarceration and ultimately to eject from the program those who are not able to abstain from drug use for a period of time deemed sufficient by the judge. Unlike health-centered programs, drug courts treat as secondary all other measures of improved health and stability, including reduced drug use and maintenance of relationships and employment.
Some people with serious drug problems respond to treatment in the drug court context; not the majority. The participants who stand the best chance of succeeding in drug courts are those without a drug problem, while those struggling with compulsive drug use are more likely to end up incarcerated. Participants with drug problems are also disadvantaged by inadequate treatment options. Drug courts typically allow insufficiently trained program staff to make treatment decisions and offer limited availability to quality and culturally appropriate treatment.

Based on these findings, the Drug Policy Alliance recommends better aligning drug policies with evidence and with public health principles by:

  • Reserving drug courts for cases involving offenses against person or property that are linked to a drug use disorder, while improving drug court practices and providing other options for people convicted of drug law violations;
  • Working toward removing criminal penalties for drug use to address the problem of mass drug arrests and incarceration; and
  • Bolstering public health systems, including harm reduction and treatment programs, to more effectively and cost-effectively address problematic drug use.