(Updated) U.S. drug courts, which divert non-violent drug cases and assign offenders to treatment and supervision rather than jail, are championed by the left, right and center. The left likes them because they favor treatment over punishment; the right likes that they save money; for the center, they strike a middle ground between getting tough on drugs and getting help for addicts.
On Friday, drug courts got another vote of confidence from Martin Sheen, at a Congressional briefing on the importance of the courts. Nearly 2,500 such courts currently operate in all 50 states and the District of Columbia. But, meanwhile, two think tanks last week released reports harshly critiquing them.
“We’re all here today with one purpose,” Sheen said. “That is to ensure that Congress holds the line on the $88 million dollars that they are currently investing in drug courts. … Drug courts are the very best deal Congress can make to reduce crime and the social consequences related to drug addiction.”
In a 2007 interview, Sheen expressed similar sentiments, regarding the prospect of a family friend’s potential death from addiction: “You have to be prepared to say, ‘I did everything that I possibly could.’ Well, I had not yet. I had one more option, and that was drug court. That’s what saved his life and mine.”
In 1998, Sheen had his son Charlie arrested, reporting him to a judge himself, which prompted court-mandated treatment, though not through an official drug court.
But setting aside the question of whether the Sheen family’s experience is a positive example, are drug courts and coerced rehab the best way to deal with addiction?
At the briefing, which was sponsored by the National Association of Drug Court Professionals (NADCP), Doug Marlowe, chief of science, law and policy for the organization, noted, “More research has been published on the effects of drug courts than virtually all other criminal justice programs combined.”
He added, “Scientists have put drug courts under the microscope and concluded that they are more effective than jails or prison, probation or treatment alone. These facts are no longer up for debate. Drug courts reduce crime by up to 45% and have been found to save up to $13,000 for every individual they serve. And we now know that 75% of those who complete drug court are never arrested again.”
But drug court critics disagree. In two reports, issued by the Drug Policy Alliance and the Justice Policy Institute, they claim that drug courts “cherry pick” the criminals most likely to succeed — thereby inflating success rates.
Critics also question the extraordinary power given to judges in drug courts, and note that offenders who participate in drug court but fail to recover quickly may end up with much longer prison terms, at greater overall expense to the government, than they would have if they had pleaded guilty to the crime and avoided drug court altogether. At least 33% of participants “fail” drug court; in some courts the proportion is as high as 75%.
A horrifying example of both problems was recently explored on public radio’s This American Life. Lindsey Dills, 17, has been under the supervision of a Georgia drug court run by Judge Amanda Williams for seven years, nearly two of them spent doing hard time in prison.
Dills’ original offense? Forging checks for $60 and $40 in her parents’ name to buy marijuana and cocaine. Several months remain in her current prison term, after which she faces four-and-a-half more years of probation. Ordinarily, her offense would have resulted in a few weeks of probation at most. The typical drug court case lasts 15 months.
In another case before the same judge, Brandi Byrd, 22, who had no health insurance, was caught with two of her mother’s pain pills when a friend was arrested for drunk driving. Byrd had put them in her purse after a minor gynecological operation and forgotten about them. She was sentenced 20 months in prison because she refused to admit to an addiction she didn’t have and was seen as being resistant to treatment — again for an offense that would have otherwise resulted in short-term probation.
Williams’ court in Georgia violates policies promoted by the NADCP in a multitude of ways, but NADCP has no enforcement power and there is little regulation in place to prevent abuses of power by drug court judges.
Byrd’s case demonstrates two other worrying issues raised by drug court critics: First is the fact that not all drug offenders are addicts. Research shows that about one-third of offenders placed in drug court do not suffer from addiction and therefore don’t require addiction treatment.
Yet all drug courts mandate treatment — and virtually all treatment requires people to admit addiction — posing a catch-22 for these offenders: how to be honest while complying with their sentence? Treating people who don’t need it also ties up treatment resources, which wastes money and reduces availability for those who actually need help.
Second, rather than decreasing criminal justice involvement, drug courts can potentially “widen the net,” bringing in people whose minor offenses would not previously have resulted in intensive supervision. This is especially problematic for African Americans, who use and sell drugs less than whites, but make up 75% of those in prison for drug offenses.
It’s clear that participating in drug court is superior to enduring long prison terms for people whose crimes are driven by true addiction. But the evidence is much shakier when it comes to whether drug courts are generally superior to other systems.
For example, Mark Kleiman, professor of public policy at UCLA and a leading drug policy expert, has studied a system used in Hawaii called HOPE. Rather than mandating treatment, this program mandates drug testing — with rapid, short sanctions including the possibility of a few days in jail resulting from positive tests. Treatment is offered only to those who fail tests repeatedly. A study that compared a similar system to drug court-mandated treatment found that they were equally effective.
The HOPE model addresses several problems seen in current drug courts, such as providing treatment to people who don’t need it and using long prison terms, which haven’t been shown to be effective in changing behavior. Think of it like parenting: parents who ignore bad behavior for years, then suddenly and unpredictably impose intensely harsh punishments are far less effective than those who use milder sanctions consistently.
Another alternative to drug courts is the system used in Portugal, where possession of small amounts of drugs has been decriminalized. People caught with small quantities of drugs are offered treatment if it is needed, through a civil system that uses sanctions like fines and license restrictions rather than jail.
(More on TIME.com: What Were the Effects of Decriminalization in Portugal?)
Or, consider a system that Martin Sheen once worked strenuously to oppose, the one enacted into California law by Proposition 36 in 2000. It requires drug offenders to fail treatment at least three times before jail terms can be used at all. According to an evaluation by UCLA researchers, the state saves $2.50 in prison costs for every $1 spent on treatment — over five years, the system saved California at least $1 billion.
Sheen opposed Prop 36 because he believed that the threat of prison was needed to make treatment succeed. He says his own multiple stints in jail were essential for his recovery from alcohol (he never addressed the fact that alcoholics generally manage to get help without this threat since their drug is cheap and legal and many never drive drunk). The research shows that prison threats aren’t necessary: people legally coerced into treatment do just as well as those who are not, and some studies even suggest that coercion makes things worse.
One factor that neither drug court critics nor supporters address seriously is this: if addicts don’t want treatment, maybe the problem is not their “disease,” but a treatment system that gets 40% of its clients by threats of prison. After all, it’s not treatment providers who go to prison if their customers fail — it’s the people suffering from addiction. This gives rehabs a steady stream of replaceable customers, but no incentive for improvement.
The benefits of drug courts clearly outweigh those of the war on drugs, but they aren’t the only alternative and some courts are clearly in need of reform themselves.
Correction [April 1, 2011]: The original version of this story reported that Sheen’s comments about drug court in a 2007 interview referred to his son’s experience; rather, it was that of a family friend.