DOING TIME - IN REHAB

Drug Courts Keep Addicts Out Of Jail

Courtroom 202 in the District of Columbia's courthouse looks much like
any other inner-city courtroom - windowless, dimly lit, filled with
the city's downtrodden and the lawyers who prosecute and defend them,
On a Thursday morning, Judge Russell Canan processes a large number of
cases in matter-of-fact fashion, slowed only by the failure of
defendants and attorneys to appear at their appointed hour.

At 11:30, however, the court is transformed. The judge steps down to the
well of the courtroom and welcomes the assembled to a "graduation
ceremony." Sitting in the jury box and the first few rows of the courtroom
are thirty men and women who have successfully completed a lengthy course
of intensive drug treatment, Judge Canan calls each individual forward, to
thunderous applause from their assembled family and friends. He hands each
graduate a diploma and a book, Acts of Faith: Daily Meditations for People
of Color, and, most important, dismisses the criminal cases pending against
them. Each graduate then says a few words. Nest thank God, their families,
their treatment counselors and the judge, not necessarily in that order;
several give impassioned speeches about finally being drug-free, employed
and secure.

This is Washington, DC's drug court, where nonviolent offenders
addicted to drugs can avoid prison time if they complete a rigorous
course of drug treatment and monitoring. Drug courts have taken the
country by storm. Five years ago there were only twelve nationwide.
Today there are some 400, with 200 more in the planning stages. In
1999 Congress appropriated $40 million for drug courts. President
Clinton has proposed increasing that to $50 million next year,

Clinton's drug czar, Gen. Barry McCaffrey, calls drug courts "one of
the most monumental changes in social justice in this country since
World War II." Physician Leadership on National Drug Policy, a
bipartisan group of doctors, has strongly endorsed them. The
conservative American Enterprise Institute praises the courts in a new
book, Drug Treatment; The Case for Coercion. And John DiIulio, a
conservative criminal justice scholar who has long advocated
tough-on-crime policies, recently celebrated drug courts in an Op-Ed
for the Wall Street Journal titled "Two Million Prisoners Are Enough."

But many on the left remain skeptical of this new approach to drug law
enforcement. Critics assert that drug courts perpetuate the
criminalization of drugs, widen the criminal justice net, sacrifice
due process and privacy rights, and blur important lines between
treatment and law enforcement. Many of these criticisms have more than
a grain of truth, but in the end they do not outweigh the strongest
argument in favor of drug courts: They may finally make it politically
feasible to shift drug policy resources from law enforcement to treatment.

Drug courts began as a way to save on the costs of the drug war. In
1980, 19 out of every 1,000 people arrested for a drug crime went to
prison; by 1992, that figure had jumped more than 500 percent, to 104.
Drug offenders accounted for three-quarters of the total increase in
the federal prison population over that period. Today, there are some
400,000 drug offenders in state and federal prisons and jails. At a
cost of at least $20,000 a year per inmate, we spend $8 billion
annually to warehouse drug offenders.

By contrast, even though sending someone through a drug court program
requires intensive monitoring and counseling, it costs only $1,800 to
$4,400 a year for nonresidential treatment (residential programs,
however, cost significantly more). If drug courts reduce drug abuse
and recidivism, they also save on long-term criminal justice and
healthcare costs.

Drug courts are too new to evaluate definitively, but in theory they
ought to work. Virtually all experts agree that the single best
predictor of success in drug treatment is the amount of time spent in
the program. And few things are more likely to encourage retention
than the prospect of doing time behind bars, The most comprehensive
survey to date, written in 1998 by Columbia University researcher
Steven Belenko, found that 60 percent of drug court participants are
still in treatment one year after they began, compared with 10 - 30
percent of those in noncoercive programs. One of the studies he
surveyed found that over a two-year period in Riverside County,
California, 13 percent of drug court participants were rearrested,
compared with 33 percent of non-participants. Belenko also found drug
use and recidivism among drug court participants to be lower than
among comparison groups both during and after the treatment program,
In August 1999 the Urban Institute reached similar results in a
sophisticated sixteen-month study of the DC drug courts, finding that
the programs significantly reduced drug use during the program and the
likelihood of arrest for drug offenses thereafter.

Yet drug courts continue to generate criticism. Some charge that
precisely by making the failed policy of drug criminalization less
expensive, drug courts undermine decriminalization efforts. This may
well be true, but the nation is so far from decriminalization that
this argument seems academic. With or without drug courts, hard drugs
will remain illegal for some time. The real question is what we do now
with drug offenders - treat them or not.

A related concern is that drug courts "widen the net" by capturing an
unusually broad array of drug users in the criminal justice system,
According to Graham Boyd of the ACLU, "drug courts are not actually an
alternative to incarceration, because most of those deemed eligible
for them would not otherwise face prison time," It's true that many
participants picked up for possession or other drug misdemeanors would
not have been imprisoned had they chosen to take their chances in the
system, but drug court gives them the chance to avoid a criminal
record, which might lead to incarceration the next time they're
arrested. Moreover, in some jurisdictions, such as the District of
Columbia, drug courts are also open to people charged with nonviolent
felony offenses who would almost certainly otherwise serve time. In
the end, the fact that defendants choose to participate in drug court
is a major constraint on net-widening, because they can opt not to
enroll if they believe they would be better off otherwise.

Civil liberties advocates point to potential due process problems:
Many drug courts require a defendant to plead guilty and waive all
trial rights as a condition of entry into the program. They may also
require that decision to be made immediately after arrest, when
defendants and their lawyers are not likely to be fully informed about
the case. This is unfair and also unnecessary. In the DC drug court,
for example, defendants do not have to plead guilty, and they may go
to trial with all rights intact even if they flunk out of the program.
Speedy entry into treatment is desirable, but it should not require
surrender of an individual's basic due process rights.

Some treatment professionals lament the blurring of lines between the
criminal justice system and the medical profession. "Judges are not
equipped to make treatment decisions, and treatment providers' first
obligation should be to the patient, not the criminal justice system,"
says Dr. Robert Newman, president of Continuum Health Partners, which
manages several hospitals and drug treatment programs in New York.
These are valid concerns, but there may also be advantages to the
blurring of such lines. Drug courts expose judges and prosecutors to
the world of drug treatment, potentially creating a new and especially
credible ally for treatment advocates. The introduction of judicial
authority and criminal sanctions appears to make treatment programs
more effective. And as long as drugs are criminalized, some blurring
of treatment and criminal lines is probably inescapable,

Drug treatment advocates are on stronger ground when they criticize
the drug courts' failure to allow methadone maintenance. Drug courts
are uniformly based on abstinence, and methadone does not fit that
model. Whether drug courts will be able to respond to the increasing
prevalence of heroin addiction will turn on their willingness to
incorporate methadone maintenance into their programs.

Finally, and probably most fundamentally, critics question whether
drug courts and other coercive treatment programs for the criminally
accused come at the expense of voluntary treatment spaces. The Office
of National Drug Control Policy estimates that half of the 3.6 million
people who need treatment in this country cannot get it. Why should
treatment be more available to those who have been arrested than to
those who have not?

That's a good question - but there's no solid evidence that drug
courts use dollars that would otherwise go to voluntary treatment. If
these courts enhance the political appeal of treatment as an
alternative to incarceration, they may in fact attract more dollars
for treatment, rather than stealing from voluntary programs. Experts
have long known that treatment is less expensive than incarceration,
yet because our drug policy is driven by what politicians believe the
populace will bear, drug policy has emphasized law enforcement. Drug
courts, because they demand hard work in treatment, frequent drug
testing (with swift and certain sanctions) and regular court
appearances, are less susceptible than other treatment programs to
being dismissed as soft on crime and therefore more politically acceptable.

Like the book that Judge Canan gives to his graduates, drug courts are
still "acts of faith." But because of their broad political appeal,
they may finally offer a realistic opportunity to redirect dollars
from law enforcement to treatment.