Side Events: Drug Courts: The Promise and the Reality

Chair: Daniel Abrahamson, Senior Legal Adviser, Drug Policy Alliance (USA)

 

Denise Tomasini-Joshi, Open Society Foundations

Drug courts have become increasingly popular, and the rhetoric around them is increasingly positive – when people talk about them, they talk about successes and reduced recidivism, etc. But what we find is that the real story is more nuanced and, in the international context, there are concerns that need to be put forward. If drug courts work in the way that they are supposed to, we would not be spending a whole lot of time talking about them. But we find that this is not the case.

Drug courts started in 1989, when judges sent people to treatment rather than adjudicate on a case – making it a pre-trial intervention and, when treatment was complete, there was no criminal record left over. This was an initial response to mass incarceration and prison overcrowding. From this first pilot, we now have around 3,000 courts in less than 30 years. There are several myths that need to be addressed:

 

  1. That drug courts are alternatives to incarceration: In reality, many people spend more time in jail due to drug courts than otherwise. If you fail in the treatment (by using drugs again), you can face a much larger jail sentence than you would have under the original drug charge. A lot of people also chose to take jail time in order to get out of the never-ending drug court processes and programmes.
  2. That drug courts are evidence based. Most evaluations have been done by the courts themselves, and tend to be process evaluations rather than more robust trials with intervention and control groups. This makes it very difficult to find causal impact, and to know if the drug court itself made a difference compared to other treatments and responses. There is also a great variety of different drug court models, so talking about them as universally positive is very difficult. Some do work fine, but some do a great deal of harm.
  3. Drug courts only target the highest risk individuals and cases. The recommendation not to target low-level drug users is rarely followed. In Mexico, they are basically re-criminalising personal use through drug courts.
  4. Drug courts provide people with access to treatment. They can only send treatment that is available – if there is no, or poor quality, treatment in your community then that is what people will be sent to. Judges also use their personal discretion, and we have seen cases where people have died because judges have removed them from doctor-prescribed treatments. Plus, there are settings where the only way to access treatment is to get arrested. Other considerations include the problem of the addiction as a disease model.

 

Morris Hoffman, Trial Judge from the State of Colorado (USA)

Colorado started drug courts in 1994, and ended it effectively in 2001. I will focus on three main issues with this models: net-widening, moral inversion, and procedural perversion. The first two issues in particular must be considered by any government before deciding to go down the drug court road, as they seem to be endemic to all drug court models.

In Denver, drug courts led to massive net-widening, which means that they reached a greater number of people than the previous criminal justice approaches. In 1993, before drug courts, 27% of felonies were drug-related. By 1995, 52% of felonies were drug-related and this stayed above 50% for the duration of our drug courts experience. Some see this as a good thing: more services and more treatment to more people. But the treatment was so ineffective that, in reality, more people were being sent to prison for drugs. In 1993, 265 people were jailed for drug offences. By 1997, this had risen to 625 people, and stayed at this level for the duration of drug courts.

With regards to moral inversion, drug courts are also a strange cross between the disease model of addiction and continued criminalisation. But what other diseases do we send people to prison for if they fail treatment? These two ideas are incompatible, but drug courts pretend that they are. You get the worst of both worlds, which is what happened in Denver.

For the last point on procedural perversion, courts are the place of last resort for dealing with a problem – the adversary judicial process is expensive and cumbersome and is the worst place to treat somebody. The drug courts did not have the time or capacity to conduct do trials for anyone who had the audacity to plead not guilty, so this was always shifted over to the regular courts. But what kind of court does not do trials or motion hearings? These are not courts. It is only in the judiciary sector so that they can threaten people with prison – something that the health sector cannot do. But we end up sending many more people to prison that we did before drug courts.

 

Rafael Torruella, Executive Director, Intercambios Puerto Rico

Intercambios Puerto Rico do syringe exchange and harm reduction as their core work, so they are in constant contact with people who use drugs. They also focus on policy reform, which is much needed in Puerto Rico, where there is mass incarceration among the youth. Puerto Rico is also still classed as a territory of the USA. To echo other speakers, courts are not the right setting for a public health intervention. In Puerto Rico these have not addressed problematic drug use. Even though they say they are, and try to be, more of a health approach, they fundamentally remain through a lens of prohibition. They do not reflect or refer into best practice treatment – such as methadone and buprenorphine treatments which are available in Puerto Rico. When they do refer to treatment, they use very restrictive models of treatment – with 24 month programmes for young people caught in possession of marijuana. They target these low risk individuals in order to have good statistics. They refer to one or two centres that do not follow the evidence base and international standards for drug treatment, and do not use DSM criteria to assess drug use disorders. Instead, the judge decides on medical issues rather than an evaluation being held by medical staff. These centres are also associated with civil and human rights violations – things such as shaming rituals, forced labour as treatment (called “sales and representation therapy”) and ineffective confrontational therapies – yet the referrals from drug courts bring these centres money and validation.

 

Jorge V Paladines, Ecuador

As opposed to other Latin American countries, the new Ecuador constitution (2008) article 364 states that addiction is a public health problem, and states that “In no case will criminalisation be allowed”. In a 2008 amnesty, 2,223 drug offenders were released from prison. Drug courts have been attractive as they are described as humanist and empathetic, alternatives to incarceration, and they were seen as practical and social. But there are contradictions in their implementation: a person has to be found guilty before accessing treatment, the judges are making medical decisions, and they work under the assumption that consumption causes criminality. In an Inter-American Court of Human Rights case, the case put forward was that these measures would prevent people from committing crimes in the future. The problems with criminalisation were the legal issues but also the associated social and human costs. While drug courts present a less drastic option compared to sentencing and incarceration, their implementation can prejudge citizens, does not guarantee rehabilitation, (re)introduces people to the criminal justice system, and can end up re-criminalizing drug consumption through repressive social policies.

 

Question from Daniel (Chair): While drug courts are sold as an alternative to incarceration, they can often in practice be a continuation or exacerbation of prohibition. But best practice and guidelines exist, so how have drug courts been implemented in a way that does not reflect these?

  • Denise reply: I have experienced seeing drug courts operate in more than 20 states in the USA, and there is a great variety in the way that they operate, and a large disconnect in how they are described and how they reflect the theory and best practice. This happens because there is no way to ensure that they follow a certain model – the guidelines are entirely optional and many are not funded by federal government. The rhetoric is also so positive that there is no push to evaluate or review the different courts that exist. For example, in Kentucky, judges were asking for people to be removed from opioid substitution therapies, which led to a spate of overdose deaths. So the SAMHSA in the USA sent directives that opioid substitution therapy should not be discontinued, but this is rarely listened to.
  • Morris reply: Judges, at least in the USA, are generalists and we are not trained in psychiatry, pharmacology, etc. We tend to follow what the specialists are telling us, but there is the risk that judges do not follow the suggestions of others. In the end, it becomes our decision when to pull the plug on people’s treatment. I also argue with the notion that drug courts are good in theory but sometimes applied badly. They are fundamentally problematic. They punish relapse with jail time for a few days, but this is the nature of addiction, and so the cycle continues until we pull the plug and send them to prison. So the central problem is the drug court idea itself, sending more people to prison than before.

 

Question from Kevin Sabet: Please comment on the recent changes to sentencing in Ecuador, where there has been a surprise increase?

  • Jorge reply: Ecuador is a country of contradictions. They had sentencing proportionality but then this was reversed to a ‘tough on crime’ approach in response to consumption of heroin.

 

Question from Kevin Sabet: A large percentage of people in drug courts are not there simply for drug possession, but for drug-related crimes such as drug-driving, property theft etc. So isn’t this why it has to be dealt with in the criminal justice system?

  • Morris reply: That was not the case in Denver, as we only used drug courts for drug offences, which again shows how there are different models around the world. The rules were that a person was not eligible if they had two previous felonies, so we were cutting out the very people we were supposed to be tackling.
  • Daniel reply: This is what drug courts were supposed to do, but what we have seen in many states is exactly the opposite, as in Denver. Crimes other than drug use alone are actually deemed ineligible for drug courts.
  • Denise reply: Justice systems are inherently risk averse, so they do not want to take high-level or more complex cases, and end up taking low-level drug users instead. This is not where the impact can be made, but these are seen as the safest bets for the drug courts. Some courts are even relying on voluntary participation, as the crimes being committed are so low-level that they would not be subjected to criminal charge otherwise. This is why these models represent the re-criminalization of drug use in some settings.

 

Statement from Trinidad and Tobago: We implemented drug courts in 2012. Much of the discussion in this session is applicable to the US reality, but it does not apply to the Trinidad and Tobago situation. We have trained our judges and magistrates on how to understand addiction. I was in Puerto Rico and heard from Intercambios about the atrocities there. But as a common law country, we have been able to do things differently. Our reality is that, in Trinidad and Tobago and most of the Caribbean, possession of drugs remains a criminal offence, so drug treatment courts has been a way for us to address and redirect those people who have been caught with small amounts of drugs, as well as some other related crimes and cases on their individual merit. We have a full, collaborative system that involves the treatment services. Drug treatment courts are working for us because we have set the team to work directly with individuals, and we have a supervisory layer of multi-sectoral organisations to provide oversight to the operations of the courts. These are new, and as we go we will learn more and experience more, but in our reality we had to find some other mechanism to redirect substance users to treatment. This is why we call them drug treatment courts, and not just drug courts.

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