The emergence of drug-treatment courts and other specialized “problem-solving courts” (PSCs) has been among the most important developments in American criminal justice over the past three decades. Founded in 1989, Miami’s drug-treatment court is often credited as the nation’s first PSC. The court was developed out of a sense of frustration that conventional criminal-justice responses to drug crime failed to address underlying addiction problems, resulting in a seemingly never-ending cycle of arrest, incarceration, return to use, and rearrest for many individuals. Treatment might be offered, or even required, within the conventional system, but the results were often disappointing. However, the drug-treatment court aimed to provide treatment within a different framework. The judge kept close tabs on the defendant’s progress, working with a team of court personnel and treatment providers to ensure adequate support for the defendant’s rehabilitation and appropriate accountability for backsliding.
The drug-treatment court concept spread rapidly. Hundreds of such courts were created by the late 1990’s, and thousands exist today. Moreover, the drug-treatment court model—specialized caseload handled by an interdisciplinary team, provision of social services to address underlying causes of criminal behavior, close judicial supervision, and use of carrots and sticks to keep defendants progressing through treatment—has been adapted to handle a wide range of other offender groups. The PSCs now in operation in many jurisdictions include mental health courts, homelessness courts, DUI courts, prisoner reentry courts, and veterans courts.
A large body of research indicates that a well-designed, well-administered drug-treatment court is capable of achieving better outcomes (reduced drug use, reduced recidivism) than conventional criminal-justice processing. No other type of PSC has been studied as extensively, but a few studies suggest that similarly positive outcomes may be achieved with some of the other targeted offender groups.
The most recent issue of Marquette Lawyer magazine includes a helpful article by Alan Borsuk that surveys the now-robust PSC scene in Milwaukee, including a drug court, veterans court, and family drug court. Although Milwaukee was initially slow to jump on the PSC bandwagon, these courts now seem well-established and widely accepted in the community.
However, in Milwaukee and many other cities, lingering concerns remain that PSCs may exacerbate racial disparities in the criminal-justice system. PSCs are typically framed as diversions from incarceration. If a PSC disproportionately admits White defendants, then it is possible that the disproportionate representation of Black defendants in jails and prisons may increase. Additionally, in many PSCs, half or more of the participants fail for one reason or another and are returned to the conventional system—where they may face the same (or even a longer) term of incarceration. Thus, if Black participants are kicked out of a PSC at a disproportionate rate, this, too, may add to racial disparities in incarceration.
Research on racial disparities in drug courts has produced mixed results, with some studies finding such disparities and others not.
A newly published study by Alyssa Sheeran and Amanda Heideman examines racial disparities in the Milwaukee drug court. Their findings are quite fascinating, but an important caveat should be noted at the outset. Their data cover the years 2016-2019. Since changes have since been made to the Milwaukee drug court, their analysis may not accurately convey the current situation.
Sheeran and Heideman first sought to assess racial disparities in admission to the drug court. Based on a comparison of individuals who were admitted to the drug court with those who were referred to drug court and denied admission, Sheeran and Heideman found that Black defendants were 44% less likely to be admitted than White. (Black versus White comparisons here exclude individuals who are identified as Hispanic.) Notably, they found this racial gap despite controlling for age, gender, risk level, prior criminal charges, and current offense severity (felony versus misdemeanor). Closer analysis found that most of the excluded Black defendants were excluded for failing to meet eligibility criteria, including criteria relating to violence or weapons possession.
The authors then examined graduation data for those who were admitted to the drug court. They found that Black participants were 61% less likely to graduate than White, again controlling for age, gender, and other variables. The most common reason for Black participants to be revoked from drug court was a new criminal charge.
Finally, the authors assessed recidivism rates for program participants, as determined by new charges filed within 12 months of program graduation or (for those who were revoked) completion of the resulting sentence. Sheeran and Heideman found no statistically significant difference in Black and White recidivism.
The authors performed the same analysis with Hispanic/Latino defendants. They found no statistically significant ethnicity-based disparities in admission, graduation, or recidivism. However, the number of Hispanic/Latino individuals in their sample was sufficiently small (about 10%) that such disparities would have been hard to detect.
Overall, the analysis suggests that White defendants may have been better served than Black defendants by the Milwaukee drug court over the 2016-2019 time period, but that racial disparities in this area may have resulted less from discretionary choices made by drug court officials than by the operation of general eligibility criteria.
Excessive rigidity with entrance criteria has been a common criticism of drug courts nationally. One dimension of this criticism is that policing practices may make it more likely for Black individuals to acquire disqualifying criminal history than White individuals, leading to higher rates of drug-court exclusion for Blacks. It is possible, although by no means certain, that such dynamics contributed to the racial disparities observed by Sheeran and Heideman.
Nothing in the new article undermines prior research indicating that drug courts may be beneficial for some defendants, but it does highlight the need to remain vigilant that these benefits are made equally available without regard to race.