Drug courts are specialized tribunals designed to process individuals who have committed nonviolent, drug-related criminal offenses. These courts are intended to punish drug users and deter drug use while concurrently treating problematic substance use. Research is equivocal regarding the extent to which drug courts represent an efficient means to improve public health and safety. Experts also note the inherent tension between treatment and punishment, and thus question the suitability and sustainability of the drug court model for managing individuals with problematic substance use who run afoul of the law.
Drug courts emerged in the United States in the late 1980s as a response to the dramatic increase in incarceration that resulted from the War on Drugs. Processing drug offenders through the traditional legal system was leading to prison overcrowding, and drug courts emerged as a means of reducing strain on correctional resources. Drug courts were also hailed for their potential to address offenders’ problematic substance use, and thus their risk of drug-related recidivism. Twenty-five years later, drug courts are the most prevalent specialty court in the United States and are supported by diverse constituencies. Adoption of the drug court model has been slower outside of the United States, as many nations have not encountered U.S.-style increases in drug-related incarceration and have thus been hesitant to adopt the drug court model, and may be further inhibited by concerns regarding the lack of sound evidence attesting to the effectiveness of the model.
The overt aim of drug courts is to deter offenders from use of prohibited substances and thus avoid the commission of drug-related crimes. In typical drug court programs, abstinence and engagement in substance use treatment are rewarded with dismissal of charges, reduction of sentence, or conviction for a lesser penalty. In most drug court models offenders who drop out of the program or do not successfully complete treatment are returned to the regular court system to proceed with the original charges. Drug court programs also generally require sustained abstinence from substance use and administer negative consequences for relapse. For example, the flash incarceration method administers rapid and brief periods of incarceration as a consequence of any drug use during the course of treatment with the rationale of providing a deterring sample of the consequences that will result from treatment noncompliance.
Success and Concerns
The extent to which drug courts are successful remains largely unclear. Although proponents point to positive outcomes, critics assert that the empirical literature on drug courts is methodologically flawed to an extent that prohibits the confident interpretation of findings, and maintain that most methodologically sound studies have not produced supportive results. One commonly cited methodological limitation of much drug court research relates to problems with assignment to groups. Specifically, participants are rarely randomized to conditions, as offenders are frequently invited to participate in drug court based on their likelihood of successful completion of the program. This selection bias results in the disproportionate assignment of lower-risk participants to the drug court condition, and may thereby bias results in favor of drug courts. Drug court programs are also subject to a high dropout rate, which may result in an overestimation of the success of the program if noncompleters are excluded from analyses.
Another notable limitation of drug court research involves the selection of appropriate indices of success. Although the benchmark typically involves sustained abstinence from all substances, this may not be the most appropriate measure of success in drug treatment. Finally, reduction in the cost of processing drug offenders through the legal system is a principal reference of success for drug court programs. However, it has been contended that extant cost analyses have exaggerated the typical length of sentences for drug offenses when comparing costs of treatment and incarceration, and in so doing have exaggerated the cost-effectiveness of drug courts. In sum, further methodologically sound research is required to establish an evidence-based consensus regarding the extent to which drug courts represent a cost-effective means of decreasing substance use and inhibiting drug-related recidivism.
Several theoretical issues have also been noted as posing problems for the drug court model. Specifically, the term therapeutic punishment has been used to describe the potentially incompatible aims of simultaneously treating and punishing offenders. Indeed, critics have proposed that drug courts adhere to a medical model of drug use that encourages treatment, while at the same time criminalizing addiction and punishing those who are unable to recover. Moreover, evidence indicates that those who “fail” treatment may ultimately receive relatively longer sentences than comparable offenders processed through the traditional legal system. Thus, it has been argued that it is unethical to present this alternative to offenders as a treatment “opportunity,” only to administer harsher punishment than may have been delivered had “patients” not “failed” treatment. Indeed, although participation in drug court is putatively voluntary, many participants may not be fully informed of the potential consequences of failure, and the potential lure of an immediate delay in incarceration may inhibit informed, sober reflection. This concern is particularly salient given robust evidence of deficits in long-term decision-making ability among individuals in the acute stages of substance dependence (i.e., delay discounting).
The incorporation of judges and lawyers into a “treatment team” represents a further concern related to drug courts, as it may obscure roles and induce legal professionals to engage in practices that fall beyond their expertise and training. This is particularly problematic given the complexity of addiction treatment and the high rate of comorbid psychopathology that characterizes individuals who struggle with problematic substance use. Indeed, research indicates an inverse association between symptoms of depression and successful completion of drug court programs. More generally, many experts express reservations about the efficacy of mandated treatment, which may encourage participation by less motivated individuals whose aim is primarily to avoid incarceration, and thereby displace better motivated candidates from scarce treatment resources.
In sum, drug courts emerged as a solution to the practical problem of prison overcrowding and have evolved into a popular mechanism designed to treat and punish. Although drug courts may be preferable to dysfunctional incarceration-based alternatives, their effectiveness remains unclear, and concerns remain regarding the extent to which the adoption of drug courts may inhibit the consideration of alternative policy options for addressing problematic substance use (e.g., legalization, harm reduction). Indeed, the ethically and theoretically problematic nature of the therapeutic punishment model highlights the larger social tension between moralistic and medical models of substance use. Although drug courts may appear to present an efficient and humane option for the treatment of drug-involved criminal offenders, evidence-based examination raises substantial questions regarding their effectiveness and highlights their potentially problematic nature.
- DeMatteo, David, Sarah Filone, and Casey LaDuke. “Methodological, Ethical, and Legal Considerations in Drug Court Research.” Behavioral Sciences & the Law, v.29 (2011).
- Morgen, Keith, Lauren Gunneson, and Lisa Maietta. “‘Order in the Drug Court’: Understanding the Intersection of Substance Abuse and Law.” In Tina Maschi, Carolyn Bradley, and Ward, Kelly, eds. Forensic Social Work: Psychosocial and Legal Issues in Diverse Practice Settings. New York: Springer Publishing, 2009.
- Murphy, Jennifer. “Drug Court as Both a Legal and Medical Authority.” Deviant Behavior, v.32/3 (2011).
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