As of 2015, there were 2,800 drug courts in the United States and they were working with 120,000 defendants per year. The idea behind these courts is to use the criminal justice system to compel addicts to rehabilitate themselves. The ultimate goal is to reduce recidivism for drug use and the other crimes that often accompany drug addiction. In order to do this, drug courts use both a carrot and a stick approach with addicts. Courts promise to reduce or eliminate jail time in exchange for the successful completion of a drug treatment program–hopefully saving money for taxpayers along the way.

The first drug court program was started in 1989 and represented a very different approach to dealing with drug crimes. A traditional criminal justice approach is for the court to only analyze if the state has proved that the defendant committed the crime and then to sentence him or her. Drug courts are an attempt to cure the underlying cause of these crimes in the first place, based on a better understanding of the nature of addiction. Drugs were increasingly being viewed as a public health crisis and not an individual moral failing. Traditional criminal justice approaches can do nothing to combat that kind of problem and are not designed to take those factors into consideration.

Drug courts were therefore built on the idea that the court is part of a team–including law enforcement, prosecutors, social workers, and the defendant–that is engaged in helping the defendant to stop using drugs and not commit future crimes. The judge in a drug court also takes on an active role in the defendant’s treatment. This engagement by the court is actually a key factor in the lives of defendants where drug courts have proven successful. At the very least, drug courts represent a judicial system that is trying to adapt to our evolving knowledge about drug addiction and the best ways to combat it.

But drug courts may not be as enlightened a solution to the problem of drug addiction as they seem at first blush. There are serious concerns about the scope of drug courts in terms of who can participate, the role of judges, and the rights that defendants give up in order to be a part of this process. There are also questions about the efficacy of these programs and whether the same goals could be accomplished through different means.

How Do Drug Courts Work?

Drug courts actually come in two main varieties, which is a nuance that is sometimes lost in the debate–deferred prosecution, and post-adjudication. In the deferred prosecution model (sometimes referred to as a “diversion” model), defendants are sent to a rehabilitative program or are given a set of guidelines before they are prosecuted. If they successfully complete their program the charges are dropped. In contrast, the post-adjudication model requires that the defendants plead guilty to the charges they face and are then sent to a drug program. If they complete the program successfully the sentence will be waived and the record potentially expunged.

This may not seem like an important difference if, after a drug program is completed, the defendant avoids jail time in both cases. But it is a very important difference for defendants who don’t successfully complete their programs. This is because in a deferred prosecution model the defendant goes back to the beginning of the process and still retains their right to plea bargain or plead not guilty and receive a jury trial. For defendants with a weak case against them or sympathetic facts, that can be significant. The defendant in a post-adjudication model drug court goes right to the sentencing phase of their trial–because in order to participate in the program a defendant must first plead guilty.

In this short video, Mae Quinn, the co-director of the Civil Justice Clinic at Washington University in St. Louis, discusses drug courts and her experience working in one of the earliest ones in the 1990s.

Concerns about Drug Courts

Quinn’s video presents us with several concerns about drug courts that should be unpacked. The first concern is one that could be viewed as both a blessing and a curse. In drug courts, judicial involvement with the defendant is much more intimate than it is in a traditional court setting. Judges are less like the neutral arbitrators of a normal court proceeding. Instead, they are as Quinn suggests, part of a “team” of people–which includes the defendant–who are working on the defendant’s sobriety. This could be of enormous benefit to drug users. And, in fact, the research suggests that one of the main indicators of success for a defendant in a drug court program is the level of involvement that a judge has in the process.

One study found a startling difference between defendants who were required to attend biweekly hearings with the judge in their case and those who only attended hearings on an “as-needed” basis. In the former group, 80 percent of participants graduated (completed the program) and in the latter group, only 20 percent of participants did so. Both groups involved high-risk drug court participants, meaning participants who had previously failed treatment.

One of the criticisms of drug courts is that the people who need them the most often don’t have access to them. Federal grants to establish these courts, which are still managed on the state or local level, make excluding violent offenders a pre-requisite to taking grant money. These courts also tend to restrict access to drug court programs for addicts who have long criminal records or histories of failure. Placement in a treatment program can also be difficult to get, with long wait times before entering into a program. Since placement in a program within 30 days is one of the strongest predictors of a successful outcome, these wait times have a negative impact on the success of drug courts, especially for women who have to wait twice as long for an available spot in a treatment program.

As Professor Quinn discusses in the video, defendants sometimes receive a longer sentence than they otherwise would have if they participate in a drug court program and fail–sometimes two to five times the length of the prison term they would otherwise have received. Since “flash incarcerations,” or short prison stays, are also one of the sanctions available to judges they may also spend more time in jail even if they have the charges dropped after graduating from the program and therefore face no sentence for their initial crime. Drug courts may also encourage law enforcement officials to arrest more low-level drug offenders since they view drug courts as a better means of processing them, which puts additional stress on the system and exacerbates some of these concerns.

Yet there is evidence that for some individuals these programs can be very effective. Take a look at this Ted Talk by Judge David Ashworth, who is the presiding judge of the Lancaster County Drug Court.

Measuring Results

The courts that Judge Ashworth describes may be different from the “typical” drug court because they are controlled at the state and local level and can vary widely. For example, Judge Ashworth’s court specifically targets “high risk” drug users. Participation is also voluntary and is designed, by his own admission, for people who already want to get clean. It is, however, a post-adjudication style court, meaning that the defendant pleads guilty as the first step in their drug court process.

The statistics he cites suggest that the drug court of Lancaster County has been particularly successful for those who graduate, reducing recidivism rates to below those of the national average. But not all of the participants in drug courts end up graduating from the program. Most of the pro-drug court data out there is written in terms of how much recidivism is reduced among graduates, but may not include the number of initial participants who enter the program in the first place.

Critics claim that this can lead to an overly positive picture of the impact of drug courts, particularly in jurisdictions that cherry-pick data. Jurisdictions are forced to exclude many types of potential defendants, most notably anyone who has committed a violent crime, in order to receive federal funding. One study indicated that, because of the eligibility restrictions, only 7 percent of the 1.5 million arrested for drug offenses were eligible to participate. Only half of the initial participants in most drug court programs end up graduating. A study of New York’s drug courts by the Urban Institute and the Center for Court Innovation found that for those who participated in drug courts, 64 percent of the non-graduates were re-arrested within three years, versus 36 percent of the graduates. But of those who were arrested but did not participate in a drug court, only 44 percent were re-arrested in the same period. So defendants were actually more likely to be re-arrested if they went to drug court and failed to complete the program than if they had gone through the normal court process in the first place.

One of the most significant issues with drug courts that Judge Ashworth did not address is the issue of maintenance treatment. Maintenance treatment, which involves using drugs like methadone to treat opioid addiction, is by far the most effective means of treatment–reducing the risk of death by 66 to 75 percent. But a third of drug courts will not allow it.

Drug courts vary widely in different localities, just as their effectiveness varies widely based on the kinds of judges serving on them. That can be positive in that it allows jurisdictions to experiment with different methods of operation. However in jurisdictions where those experiments are unsuccessful, it can lead to tragic outcomes and the judges involved in drug courts may not be specially trained in the science behind addiction, particularly opioid addiction. The increased flexibility of judges to deal with drug addicts in a drug court setting is only a positive if these judges are both eager to help the addicts in their court and properly educated on how to do so.

Conclusion

As a society, we have acknowledged that drug addiction, and the crimes that accompany it, are somehow different than other crimes; that it is as much a public health crisis as it is an issue of safety. Conservatives and liberals are both willing to seek innovations in how we deal with these individuals. Drug courts actually end up appealing to both sides of the aisle for various reasons.

The truth about drug courts is more complicated than it appears. These programs are not “hug-a-thug” initiatives, as Judge Ashworth points out. And while they may save money, they only do so when they keep people from seeing jail time at all, not when they just delay incarceration until after participants fail the program. The best elements of drug courts–judicial flexibility and interdisciplinary teams working with defendants–should be encouraged. In fact, these characteristics could be beneficial in other parts of the justice system as well, even for violent offenses. But the negative aspects need to be addressed. Defendants should not be coerced into pleading guilty to participate in treatment. Access to rehabilitation should be opened up to more cases, not just the “easy” ones that make drug courts look better, access should be increased for female offenders, and maintenance treatment for opioid addiction needs to be addressed.

Resources

The Sentencing Project: Drug Courts: A Review of the Evidence

Pacific Standard: How America Overdosed On Drug Courts

SADO: Michigan State Appellate Defender Office

WhiteHouse.gov: Drug Courts Fact Sheet

TribLive: Westmoreland District Courts First in PA to Offer Drug Treatment in Lieu of Punishment

National Institute of Justice: Drug Courts

U.S. Department of Justice: Drug Courts

DrugWarFacts.org: Drug Courts

Atlanta Journal-Constitution: Pro & Con: Drug Courts An Effective Alternative For Offenders?

Open Society Foundation: Drug Courts Are Not The Answer

Mary Kate Leahy

Mary Kate Leahy (@marykate_leahy) has a J.D. from William and Mary and a Bachelor’s in Political Science from Manhattanville College. She is also a proud graduate of Woodlands Academy of the Sacred Heart. She enjoys spending her time with her kuvasz, Finn, and tackling a never-ending list of projects. Contact Mary Kate at staff@LawStreetMedia.com

The post Are Drug Courts the Answer For Addicts Who Commit Crimes? appeared first on Law Street.

If you are an incarcerated individual in the United States, you can be found in one of two places: a government-run prison, or a private prison. Private prison is an interesting term though, as it doesn’t really explain what this kind of institutions is. A more appropriate label would be “for-profit prisons,” because at their essence, that’s exactly what they are. A small group of forward-looking thinkers in Washington, D.C. are starting to float the idea that there’s an alternative to these private, for-profit prisons. They base their concept on rehabilitation rather than punishment, and if their group continues to move forward, they could change the for-profit prison landscape for good.

Here’s a more in-depth look at private prisons and the problems they cause, but to sum it up, private prisons are the result of government prisons closing, and the government hiring private contractors to run prisons in their place. In 2011, there were 130,950 prisoners incarcerated in private facilities –more than 12 percent of the nationwide prison population. That number has grown quickly, nearly 700 percent from 1970 to 2005.

Given that the U.S. is pretty intent on locking up a larger proportion of its population than most any other country, it’s a smart business to be in. The top private prison contractor, the Corrections Corporation of America (CCA), posted $1.75 billion in revenue in 2012. And these contractors are smart enough to keep themselves in business — they have their own Super PACs and lobbying arms.

Finally, some individuals have started to point out that this isn’t a great idea. The whole purpose of prison is punishment,yes, but also rehabilitation. When the whole point of a business is making money off of those who have been incarcerated, what motive is there to rehabilitate them? Rehabilitation would almost certainly mean fewer repeat customers.

It was out of that idea that Citizens United for the Rehabilitation of Errants (CURE), a prison reform group, was born. Here is the group’s mission:

We believe that prisons should be used only for those who absolutely must be incarcerated and that those who are incarcerated should have all of the resources they need to turn their lives around. We also believe that human rights documents provide a sound basis for ensuring that criminal justice systems meet these goals.

CURE, which is composed mainly of those previously incarcerated, wants to create the first non-profit prison in the United States. They are focusing on Washington D.C., particularly on the Correctional Treatment Facility, one of D.C.’s two prisons. Given that CCA’s contract with the city will be up in 2017, CURE sees the prison as a place where they could potentially become involved and make a real change in the way prisoners are rehabilitated.

Charlie Sullivan, CURE’s Executive Director, went into more detail about its motivation, saying:

What both the private and government-run prisons are doing is just holding people. They’re playing defense; we need to play offense. We need to give people an opportunity to change their lives.

Right now the plan is by no means concrete. But the idea is there — the idea that our prisons can become more than just holding areas. That we can help those incarcerated turn their lives around. That our prison population does not need to keep growing at such a high rate. Whether or not CURE is successful, its work to change the way we in the U.S. handle prisoners can definitely have an impact.

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Anneliese Mahoney (@AMahoney8672) is Lead Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

Featured image courtesy of [Still Burning via Flickr]

Anneliese Mahoney

Anneliese Mahoney is Managing Editor at Law Street and a Connecticut transplant to Washington D.C. She has a Bachelor’s degree in International Affairs from the George Washington University, and a passion for law, politics, and social issues. Contact Anneliese at amahoney@LawStreetMedia.com.

The post Non-Profit Prison Group Aims to Change the Incarceration Landscape appeared first on Law Street.

When Jabbar Collins was arrested in 1994 for the murder of Rabbi Abraham Pollack, no one believed him when he said he was innocent. Now, after 16 years in a maximum security prison and three years following his exoneration, Collins is slated to receive $3 million from the state of New York in one of the largest wrongful conviction settlements ever awarded by the state.

Collins is one of the lucky ones. Only 30 states and the District of the Columbia provide compensation to exonerated criminals. A total of 1,405 innocent people have been wrongfully imprisoned since 1989. In 46 percent of these cases, the government and its officials were at fault. Official misconduct (police, prosecutors, or other government officials abusing their power) is responsible for putting 647 innocent people behind bars over the past 25 years. Despite these numbers, the road to compensation is far from easy.

Even in the states that have compensation laws on the books, the process for receiving money is fairly difficult, requiring years of waiting and expensive legal battles. On average there is a minimum of a three year wait (as in Collins’ case). Additionally, a successful lawsuit depends on the person’s ability to prove that their wrongful conviction was caused by intentional misconduct. This requires naming a responsible party such as a prosecutor, police officer, or witness. It also excludes compensation for legal technicalities and unintentional errors made during the original investigation and trial.

If that isn’t bad enough, compensation laws vary widely state-by-state, and most of the money that exonerees receive is taxed. Some states deny compensation to any exoneree that falsely confessed or pleaded guilty, while others deny money to those who were exonerated without the use of DNA testing. Florida refuses to compensate anyone that has an unrelated prior offense under its “clean hands” provision, and Montana offers no money at all, instead offering educational aid for state or community college. New Hampshire offers a flat maximum of $20,000 no matter how many years an exoneree spent wrongfully imprisoned.

According to federal standards, exonerees should receive up to $50,000 per year of wrongful imprisonment and $100,000 per year spent on death row, but these standards are currently met by only 5 states. More often than not, exonerees receive small amounts–if anything at all–which do not even begin to cover the damages they suffered as a direct result of their wrongful confinement.

One thing that all exonerees almost uniformly receive is the horrific experience of being falsely imprisoned. Most suffer from post-traumatic stress disorder, institutionalization, and depression as a result of years they spent behind bars. They have to endure the censure for a crime they never committed and the psychological damage of being branded a criminal by the public.

Even after an exoneree is released from confinement, the consequences of their imprisonment has the potential to taint every aspect of their lives. For some exonerees, half a lifetime has passed them by; family members have died, children have grown up, and spouses have moved on with their lives while they spent years behind bars. Others suffer physically from years spent with sub-par prison health care, while others suffer professionally as they lack the job experience, vocational training, and educational skills that are needed to secure a job.

Perhaps worst of all is the fact that their wrong conviction is not even immediately expunged from their records upon exoneration and release, often appearing on background checks and inhibiting their ability to fully reintegrate into society years later. Despite all this, most states do not provide transitional services for exonerees, leaving a large portion without a means of transportation, a source of income, or even a place to call home upon release.

It seems rather counter-intuitive to not provide these people with immediate and automatic compensation. They have clearly suffered unjustly at the hands of a flawed criminal justice system and it seems only natural that the government should take on the responsibility to help them rebuild their lives, regardless of liability.

The fact that these people are left with no other option but to sue for the compensation they rightfully deserve is adding insult to injury. They have already proved their innocence-they would be in jail otherwise–and while you cannot put a price on freedom, exonerees should not have to suffer through an expensive, protracted legal battle in order to be compensated for the years they spent unjustly serving time for a crime they did not commit.

[Innocence Project] [National Registry of Exonerations]

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Nicole Roberts (@NicoleR5901) a student at American University majoring in Justice, Law, and Society with a minor in Mandarin Chinese. She has a strong interest in law and policymaking, and is active in homeless rights advocacy as well as several other social justice movements. Contact Nicole at staff@LawStreetMedia.com.

Featured image courtesy of [Luigi Caterino via Flickr]

Nicole Roberts

Nicole Roberts a student at American University majoring in Justice, Law, and Society with a minor in Mandarin Chinese. She has a strong interest in law and policymaking, and is active in homeless rights advocacy as well as several other social justice movements. Contact Nicole at staff@LawStreetMedia.com.

The post Compensation for Exonerees: A Fundamental Right? appeared first on Law Street.