DRAGGED INTO DRUG COURT

They Are Growing In Number And Political Appeal, But Special Courts To
Deal With Drug Users Can Still Get A Judge's Dander Up.

George Godwin doesn't like to be told what to do. As an administrative
judge in Harris County, Texas, he is willing to give convicted drug users a
shot at redemption. But he has his limits. "When they have demonstrated
that, despite your best efforts they are not interested," he says, "then
you slam dunk 'em."

Godwin has always wielded his sentencing discretion--jail time versus
probation--with supreme authority. For all his tough Texas talk, however,
Godwin is going to have to change his ways. The Texas legislature has
passed a new law that tells him--and other judges throughout the
state--precisely what to do with drug defendants: Put them in rehab. The
law requires all counties in the state to set up drug courts, a special
judicial regime that has been spreading rapidly throughout the country for
the past decade. Rather than sentence drug offenders to prison or
probation, drug courts put users in treatment programs. If they can become
drug free, their drug-use conviction is often cleared. If they can't, a
judge can lock them up.

When you ask Judge Stephen Manley of the Superior Court of Santa Clara
County, California, about the effectiveness of the system, his answer is
unequivocal: "Drug courts work." For Manley, that means they keep offenders
out of prison and from continuing to use drugs. California has been
operating drug courts for more than a decade--the nation's second such
court was established in Oakland in 1991.

But many judges--and Godwin is one of them--oppose the drug-court system.
They view the policy behind such courts as wrongheaded and the
effectiveness of the approach as unproven. Moreover, they see the system as
being a huge unfunded and unaffordable mandate.

Nonetheless, when it comes to drug-abuse problems, drug courts are clearly
a solution favored by state lawmakers. Just this year, 18 state
legislatures debated bills to modify, augment or establish drug courts in
local jurisdictions. The total number of states with some form of drug
court or a plan to implement one now stands, with the recent addition of
Texas, at 49. And as judges like Godwin and officials in court systems like
Harris County are told to put the additional program in place, the whole
issue of drug sentencing and the efficacy of drug treatment is being aired
again, with the ways and costs of implementing drug courts a secondary but
nonetheless hot- button issue.

Drug courts have been evolving over the past decade as state and local
governments, in the wake of tightened drug laws passed during the 1970s and
'80s, try to control the burgeoning number of drug cases and prisoners in
their jurisdictions. By 1990, drug prosecutions accounted for one-third of
all state felony prosecutions.

New York City was among the first places where drug cases were placed on
separate dockets. With the strict Rockefeller Drug Laws of the early 1970s
affecting caseloads, New York City created the Narcotics Courts to handle
the increasing number of drug cases. The courts offered no treatment
component and were established, says Denver District Court Judge Morris
Hoffman, an historian of drug courts, as "case management devices."

The first drug court to offer treatment instead of imprisonment was set up
in Florida in 1989. Dade County placed non-violent offenders in one-year
diversion and rehabilitation programs. As other jurisdictions developed
drug courts, they adapted approaches from both models so that today, most
of the 450 to 500 drug courts operating in the U.S. are hybrids of the case
management and treatment models. Texas legislators are relative latecomers
to drug-court mandates. But the new law, which will take effect September
1, is comprehensive: It requires every county in the state to start a drug
court and meet minimum enrollment figures in treatment programs. Lawmakers
were serious about the latter requirement: If counties don't meet the
minimums, the state can take away millions of dollars that counties use to
pay for criminal justice services.

Godwin says that, by and large, judges in his county were not asked for
comment when legislators debated the drug court bill because their position
on it was known to be lukewarm at best. But Godwin is hot- under-the-collar
against them. And one major reason is that in his court--as in many others
in his state--first-time drug offenders are generally put on probation,
complete their sentences and are not seen again in the corrections system.
"We're already doing what the drug courts do," he says.

Nor is he convinced that drug courts in other states have been more
effective than his approach has been.

One problem in assessing success is that there does not seem to be any
common definition of what success really is. One measure is whether or not
defendants stop using drugs; another is the rate of recidivism.
California's Manley, who also serves as the president of the California
Association of Drug Court Professionals, points to reports from the state's
Legislative Affairs Office and the U.S. General Accounting Office to back
up his belief that drug courts not only cut down on recidivism but produce
a whole host of other benefits for the corrections system as a whole--such
as cutting down on the amount of time and space drug offenders take up in
jails and prisons.

The LAO report, for instance, found that from January 2000 to March 2001,
1,489 people graduated from court-mandated treatment in the state. Keeping
them out of incarceration saved 79,078 prison days and 199,552 jail days.

The GAO study, published in 1997, looked at the issue of recidivism rates
among drug-court graduates and found that re-arrest rates in that
population were low. However, the report was not all that positive in its
affirmation of drug courts. GAO analysts reported that they "could not draw
any firm conclusions on the overall impact of drug court programs."
Complicating such a determination, the report said, was the fact that so
many of the programs differed from one another in their scope, methods and
objectives. For instance, more than half of the drug courts studied didn't
track the status of program participants after they left treatment, and 70
percent made no comparison of arrest rates of participants to
non-participants after the conclusion of the treatment program. If issues
raised about the efficacy of drug court programs are to be addressed,
"following up on participants and non-participants for some period after
they leave the program to find out whether they committed new crimes or
relapsed into drug use would be important," the report concluded.

With no solid research on drug courts, supporters and critics continue to
debate the merits and the legal prerogative to set up the courts. And that
situation is exactly what makes Denver's Hoffman uneasy about the momentum
behind the wholesale creation of the courts. "Perhaps the most startling
thing about the drug court phenomenon," he says, "is that they have so
quickly become fixtures of our jurisprudence in the absence of satisfying
empirical evidence that they actually work."

Aside from whether drug courts work, there are questions about mandated
treatment and who will pay for it, issues that are surfacing in both Texas,
where drug courts are being set up, and California, where they have long
been in existence.

In Texas, judges are under the gun to enroll offenders in treatment
programs. And the state quota--Harris County has to place 200 participants
in the program in the next few years--should be do-able. But Godwin doesn't
want to move defendants into treatment just to make his drug-court
statistics look impressive--when he can be just as successful using
probation to keep recidivism down.

There's also a fundamental issue of legal authority involved in the Texas
law. The bill delegates criminal court authority to a commissioners court,
which is really not a court at all but an executive body that would be
given the power to tell the counties to set up the courts. By law, the
Harris County district attorney has the sole ability to charge and
prosecute cases. Therefore the drug-court law, Godwin says, encroaches upon
his legal purview as well as the judicial discretion of the courts as a whole.

But the same authority that the district attorney and judges have could
allow for a back door escape from the law. Prosecutors, in theory, could
refuse to bring any cases before the drug courts. A presiding judge could
just sentence defendants to prison terms or probation programs, forgoing
the treatment process altogether.

The ax over any judge's head, of course, is the cut-off of state funding.
While Godwin doesn't see that happening, he's not pressing his luck,
either. At the moment, he is "cobbling together" the personnel he'll need
to run a drug court in Harris County. He's also trying to hash out what it
will really cost. Proponents of the law have told him yearly costs will be
in the range of $200,000 to $300,000. Ever the skeptic, Godwin says it
should cost precisely what it takes to run any normal district court for
the same time period: about $1 million. The lower figures, he says, are
"incredibly underestimating" what it's going to take to make the system work.

In the meantime, anti-drug-court points are still being made by the likes
of Chuck Rosenthal, the Harris County district attorney, who calls the drug
courts an unfunded mandate. Rosenthal looked at other drug courts around
the country and found no significant difference between their success rates
and those of Harris County's probation program. "I'm not sure the drug
courts are worth the expenditure," Rosenthal says.

The Texas legislature has suggested that the county seek federal grants to
pay for the new courts. In 1994, Congress authorized the U.S. Attorney
General to make grants and loans to state and local governments to set up
drug courts, and then-Attorney General Janet Reno established the Drug
Courts Program Office to dole out the money.

California's treatment debate has a different twist. Although 47 of the
state's 58 counties already have drug courts, voters passed Proposition 36
last November, which calls for all first- and second- time non-violent drug
defendants to be diverted into treatment programs. The county drug courts
were serving a small portion of the substance-abusing population--only
about 7 percent. Now, with the implementation of Proposition 36, the number
of offenders going into treatment programs will certainly grow, and it's
questionable whether the counties can provide service for those offenders,
much less pay for it.

And just like Godwin in Texas, Manley in California worries that this
additional step is not taking the courts and the drug-abuse problems in the
right direction. As Godwin believes that his county's existing practices
were doing the job, so too Manley says California judges already had a
drug-court model that worked. They were free to use their discretion on
cases in deciding whether an individual should be allowed to opt for
treatment as opposed to prison. But with Proposition 36, that judicial
review is taken away.

Opponents of Proposition 36 said its level of intervention would strip
judges of their ability to compel drug users into a sober lifestyle by
taking away the threat of hard time for those who don't comply with the
treatment program.

Proponents of the initiative wanted to frame the conflict as treatment
being better than incarceration, says Jean Munoz, the spokeswoman for
Californians United Against Drug Abuse, which ran the anti-proposition
campaign. But, she argues, they failed to ask the underlying question of
how effective the treatment programs already in place actually were and to
set aside funds to support drug testing in rehabilitation programs.

The accusations of Munoz and her group struck supporters of Proposition 36
as entirely unjust. "As a general matter, the drug courts were something
that we admired but were entirely too small," says Dave Fratello, a
co-author of Proposition 36. Fratello says the system was reliant on a few
motivated judges willing to go after the special funding necessary to run
the programs.

California has set aside $120 million a year to fund treatment programs and
drug courts over the next five years. Few think that will be enough money.

During the debate over Proposition 36, many judges joined the fight against
the initiative because they felt it would destroy the drug courts. Manley
is quick to point out, money issues aside, that Proposition 36 should not
harm drug courts. To the contrary, the drug-court model will be the
cornerstone of implementing Proposition 36.

Whatever the differences of opinion, California voters and the Texas
legislature have spoken clearly on the issue. In the end, that may go a
long way toward easing the tensions over drug courts and mandated treatment.