I’ve been meaning to blog about the interesting new report from the National Association of Criminal Defense Lawyers on drug courts, but alum Tony Cotton (a member of the NACDL Board of Directors) has beaten me to the punch.  (For my own take on drug courts — voicing some of the same concerns as Tony — see this recent article.)  Tony offers these insightful and timely thoughts on drug courts:

This year marks the twentieth anniversary of a criminal justice innovation that was supposed to help solve the drug problem in this country and reduce the mass incarceration of men and women whose substance abuse habits lead them toward criminal behavior and, more often than not, to prison.

In 1989, then-State’s Attorney for Miami-Dade County, Florida (later United States Attorney General) Janet Reno designed a new approach to mitigate the crushing loads of drug-related criminal cases in South Florida. Defendants charged with low-level drug felonies would be diverted into treatment programs instead of prison. The idea caught on, and today there are 2,100 such “problem solving” courts around the country, receiving federal funds and dealing with not only drug abuse, but also drunk drivers and domestic violence offenders. 

Whatever relief these reforms brought about, in 2008 there were more than 1.7 million individuals arrested and more than 500,000 men and women in jail or prison for drug offenses, according to the FBI’s new Uniform Crime Report.  Someone is arrested in this country for drug possession or related infractions every eighteen seconds.

Reno’s drug court idea was compassionate: use the trauma of the moment to move individuals caught in the system into treatment in the hope of breaking the addiction and transitioning them toward a less dangerous existence. There are many success stories, people whose downward spiral reversed and who live normal, productive lives.

Wisconsin has at least twenty-one problem-solving courts, all in different counties. These courts focus on a variety of problems, from repeat drunk driving to drug charges. These courts have both positive and negative components. Three years ago, Waukesha County began an alcohol treatment court for defendants convicted of a third-offense DUI. A recent study completed by Temple University compared the 141 Waukesha residents who entered the program against the 81 others who were denied entry for lack of space. The 141 defendants who completed the program had a twenty-nine percent recidivism rate, as opposed to a forty-five percent recidivism rate for those who did not.

Another success story comes out of Milwaukee County. Shortly after his election in 2006, District Attorney John Chisholm, with the input of the defense bar and judiciary, developed protocols to allow for diversion or deferred prosecution for many low-level drug users. At the end of 2007, more than 700 people had benefited from a diversion or deferred prosecution agreement, with a sixty-five-percent success rate.

However, for every case with a happy ending, there are examples of lives ruined and families disrupted when treatment fails and the offending individual winds up in prison or jail. One of the central problems with specialty courts is that they have grown in an ad hoc way, so that each operates differently. Most of the courts were created by prosecutors and judges without the input of defense counsel. In response to the twenty-year anniversary of the creation of the first problem solving court, the National Association of Criminal Defense Attorneys (NACDL) commenced a national in-depth study of the effectiveness of these courts. This report can be located at www.nacdl.org/drugcourts.

Some of the findings published in the NACDL study include:

• Short-cuts built into many drug court systems make it difficult to protect the accused person’s rights. Not every person accused of a crime is guilty. However, when faced with the grim choice between treatment and prison, there is great pressure to plead to the crime and avoid risk. In order to ensure that innocent defendants are not pleading guilty, problem solving courts should allow participation at the earliest possible stages.
• Money that goes into these court-run systems could be more efficiently spent reaching out to substance abusers before they commit a crime, through public and private health programs. 
• Nationwide, many problem solving courts are structured so that prosecutors act as “gatekeepers.” Prosecutors often offer a devil’s deal with addicted offenders: plead guilty to a felony and you get into treatment. Under this “deal” even if the diversion works, the individual is left with a criminal record that makes it hard to find work, vote, or live a successful life. If the defendant is unable to comply with treatment and falls out of the program, he or she goes to jail for a lengthy sentence, at considerable taxpayer expense. An additional consequence to the “prosecutor as gatekeeper” approach is that the problem solving court then becomes a dumping ground for the prosecution’s weak cases.  
• Drug courts induce defense lawyers to become part of a “team” with the judge, prosecutors, and treatment specialists. That raises troublesome ethical issues for a lawyer whose overarching obligation is to defend his accused client. 

The cost of our current system is enormous, both in tax dollars and damaged lives. In these times of economic strife and budget deficits, it is time to start a national conversation around decriminalizing drugs and offering access to substance abuse therapy outside the legal system for all who want it. By expanding access to treatment and meaningfully restructuring the way in which prosecutions are handled, we will save money, restore lives, and preserve the dignity of low-level drug offenders.