Drug Courts & Treatment Alternatives to Incarceration

"At the end of 2014, there were a total of 1,540 operational ADCs [Adult Drug Courts] across the United States. The number of ADCs grew to 1,697 by the end of 2019, and at year-end 2021, 1,834 ADCs had been implemented in jurisdictions across the country. This equates to an 8% increase in ADCs between 2019 and 2021. Overall, between 2014 and 2021, the number of ADCs increased by 19%. The growth in number of ADCs between 2014 and 2021 is displayed in Figure 3.

"Some ADCs are classified as “hybrid drug/DUI” programs in that they enroll individuals that satisfy the requirements for ADC and DUI/DWI in one program. Between 2014-2019, the number of “hybrid drug/DUI” programs decreased from 407 to 351. Even fewer programs were in operation at the end of 2021 (n=302). These data suggest that while the general number of ADCs has increased since 2014, ADCs specifically classified as “hybrid drug/DUI” have been on the decline. Overall, there was a 26% reduction in these programs between 2014-2021. These data should be considered in tandem with the figures below regarding stand-alone DUI/DWI courts where there has been an observed increase in operational programs. It may be that programs previously classified as “hybrid drug/DUI” split into two stand-alone programs. In addition, some programs may in fact serve both of these target populations but not classify themselves as “hybrid drug/DUI” and therefore are not included in these figures."

"As shown in Figure 13, a total of 420 JDCs were operating across the United States in 2014. This number decreased to 305 by 2019 and again to 296 by the end of 2021. These data indicate a 3% decrease in JDCs between 2019 and 2021. Overall, between 2014 and 2021, the number of JDCs in the United States decreased by 30%."

"In 2012, the Bureau of Justice Statistics' (BJS) Census of Problem-Solving Courts (CPSC) counted 3,052 problem-solving courts in the United States (figure 1). The most common types of problem-solving courts were drug courts (44%) and mental health courts (11%) (figure 1). Most courts (53%) reported that they were established prior to 2005, including drug (64%), youth specialty (65%), hybrid DWI/drug (63%), and domestic violence (56%) courts.
"Problem-solving courts are a relatively recent development in the U.S. criminal justice system. These courts were created to address underlying problems that result in criminal behavior. Problem-solving courts are typically diversionary, meaning that a participant agrees to follow the guidelines of the court to avoid prosecution, incarceration, or other typical criminal justice outcomes. The criminal problem-solving court concept has been extended to civil and family court, such as family dependency matters, and to address the needs of certain populations, such as justice-involved veterans."

"The first Drug Court was implemented in Florida in 1989."

"The primary purpose of these [drug court] programs is to use a court's authority to reduce crime by changing defendants’ substance abuse behavior. In exchange for the possibility of dismissed charges or reduced sentences, eligible defendants who agree to participate are diverted to drug court programs in various ways and at various stages in the judicial process. These programs are typically offered to defendants as an alternative to probation or short-term incarceration."

According to a census of courts in the US:
Substance abuse treatment services are provided to clients in 86.8% of all courts overall, 95.5% of all drug courts, and 77.1% of all mental health courts.
Integrated substance abuse and mental health treatment services are provided to clients in 60.4% of all courts overall, 62.5% of all drug courts, and 85.5% of all mental health courts. Medication as a treatment strategy is available in 28.1% of all courts overall, only 22.5% of all drug courts, and 59.9% of all mental health courts.

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"Some services were offered by drug and mental health courts equally for adult and juvenile participants. Individual counseling services were the most common and were used in the vast majority of drug courts (94%) and mental health courts (95%) for both juveniles and adults (appendix table 9).
"For most services, the proportion of courts offering these services differed significantly between those serving adults and those serving juveniles. Services more common for adult drug courts included assistance in locating housing (56% of adult compared to 15% of juvenile drug courts), assistance in accessing benefits (48% compared to 26%), job training or assistance (65% compared to 41%), and use of medication to treat addiction (27% compared to 11%). In mental health courts, these services were also more commonly used by adults than juveniles. Conversely, cognitive behavioral therapy was used in a significantly higher percentage of juvenile mental health courts (81%) than adult mental health courts (72%)."

"Virtually all drug courts (98%) reported that at least some of their participants were opioid-dependent in 2010. Prescription opioids were more frequently cited as the primary opioid problem than heroin (66% vs. 26%). This trend is particularly apparent in less densely populated areas: prescription versus heroin rates across the three population areas were: rural (76% vs. 12%), suburban (67% vs. 33%), and urban (prescription opioids less likely to be selected than heroin as the primary opioid; 38% vs. 50%); p < .01. Almost half (48%) of the drug courts estimated that more than 20% of their participants were opioid-dependent; 20% of drug courts estimated 10–20% of their participants were addicted to opioids, and 28% of drug courts estimated that 1–10% of their participants were addicted to opioids; 2% answered, “none,” and 2% reported “don’t know.” As shown in Table 3, 56% of drug courts reported at least some of their opioid dependent participants were receiving some type of MAT, 76% of urban courts, 58% of suburban, and 45% of rural courts (p<.01). Overall, 47% report that agonist medications are available under certain conditions (62% of urban courts, 48% of suburban courts, 40% of rural courts), and 18% report that naltrexone -- oral or long-acting injectable -- is available for the treatment of opioid dependence. Buprenorphine maintenance was more likely to be reported than methadone maintenance, 40% vs. 26%, respectively. Fifty percent of drug courts also reported that at least some of their participants with an alcohol disorder were receiving MAT for alcoholism: oral naltrexone (40%), extended-release naltrexone (28%); disulfiram (43%), acamprosate (30%)."

"There are generally two models for drug courts: deferred prosecution programs and post-adjudication programs. In a deferred prosecution or diversion setting, defendants who meet certain eligibility requirements are diverted into the drug court system prior to pleading to a charge. Defendants are not required to plead guilty and those who complete the drug court program are not prosecuted further. Failure to complete the program, however, results in prosecution. Alternatively, in the post-adjudication model, defendants must plead guilty to their charges but their sentences are deferred or suspended while they participate in the drug court program. Successful completion of the program results in a waived sentence and sometimes an expungement of the offense. However, in cases where individuals fail to meet the requirements of the drug court (such as a habitual recurrence of drug use), they will be returned to the criminal court to face sentencing on the guilty plea."

"Problem-solving courts varied by the point at which they intervene in a case. Some courts took cases that had reached a specific processing stage, while others took on cases at multiple processing points. Additionally, problem-solving courts accepted multiple case types and identified different entry points for criminal or civil and family cases. In 2012, 35% of problem-solving courts accepted a case at filing or prior to a plea, while 64% accepted a case after a plea was entered (table 4). Most (73%) domestic violence courts accepted cases at case filing or prior to a plea. Half (50%) of youth specialty courts accepted a case prior to a plea. Most (61%) family problem-solving courts accepted a case after a judicial order, which can occur at any point during a case’s life-cycle. More than 8 in 10 (85%) hybrid DWI/drug courts accepted a case after a plea was entered."

"Drug courts are an application of therapeutic jurisprudence theories in which the judge does not ask whether the state has proven that a crime has been committed but instead whether the court can help to heal a perceived pathology.⁹ Drug courts adopted the disease model¹⁰ that posits that people struggling with drugs have a chronic disease that reduces their ability to control their behavior.¹¹"

"Standard drug court programs usually run between six months and one year, but many participants remain for longer because they must complete the entire program cycle in order to graduate. Program completion entails being drug and arrest?free for a specified period of time and meeting such other obligations as securing housing or employment. Participants frequently meet with the drug court judge and other judicial and clinical staff in status meetings aimed at monitoring each individual’s progress.¹⁴ Participants are regularly drug tested and receive rewards or face sanctions based on how well they follow the rules of the court. Rewards can include verbal praise, certificates or other tokens of approval, as well as moving to the next level of supervision, which may include less frequent visits to the court. Sanctions can include everything from verbal admonishment and writing essays to spending time in jail or being kicked out of the program and facing traditional sentencing."

"The Drug Court model includes a higher level of supervision, particularly by the Court and (generally) a standardized treatment program for all the participants within a particular court (including phases that each participant must pass through by meeting certain goals). There is also regular and frequent drug testing. In contrast, most of the state-mandated program models for drug offenders have less criminal justice supervision (particularly less court involvement) and a less standardized, sometimes more individualized, treatment regimen. In addition, the non-Drug Court treatment model uses drug testing less frequently."

"Drug Courts ($92.0 million)
"Department of Health and Human Services - Substance Abuse and Mental Health Services Administration
"Department of Justice - Office of Justice Programs
"Drug courts help reduce recidivism, provide treatment to individuals with substance use disorders, and improve the likelihood of successful rehabilitation through early, continuous, and intense judicially supervised treatment, mandatory periodic drug testing, community supervision, appropriate sanctions, and other rehabilitation services. HHS ($50.0 million) and DOJ ($42.0 million), work together to enhance court services, coordination, and the substance use disorder treatment capacity of juvenile, family and adult drug courts."

"The drug court movement started in Florida, but at the time of our survey the largest share of adult drug courts reported that they were based in the Midwest (28.0 percent, see Figure 2-2.1).4 About one-fifth of drug courts reported being in each of three regions: the New England/Mid-Atlantic region (20.6 percent), the South (22.5 percent), and the West (20.1 percent). The Mountain region had the smallest number of drug courts, with less than 10 percent reporting being based there (8.7 percent)."

"In summary, of the almost 1.5 million arrestees at risk of drug abuse or dependence, 109,921 (about 7%) met drug court eligibility requirements. Of the 109,921 eligibles, approximately half (55,364) were actually enrolled in a drug court program. In aggregate, just 3.8% of the at-risk arrestee population was treated in drug court."

"Participants had to meet certain criteria to be accepted into a problem-solving court. In 2012, most problem-solving court participants with a history of violent (57%) or sex (65%) offenses were ineligible (figure 2). Domestic violence and veterans courts were exceptions to this pattern. The majority of domestic violence courts accepted participants with a history of violent crime (89%) or sex offenses (88%). The majority of veterans courts (62%) accepted participants with a history of violence."

"Urban Drug Courts
"Prior to entering Drug Court, the primary substances of abuse among urban participants were reported to be cocaine/crack (27%) and alcohol (27%), followed by cannabis (22%), methamphetamine (16%), illicit opiates (7%) and prescription medications (2%) (see Figure 4).
"Suburban Drug Courts
"Prior to entering the program, the primary substances of abuse among suburban Drug Court participants were reported to be alcohol (33%), cannabis (20%), cocaine/crack (18%), methamphetamine (18%), illicit opiates (10%) and prescription medications (3%) (see Figure 5).
"Rural Drug Courts
"The primary substances of abuse among rural Drug Court participants were reported to be methamphetamine (30%) and alcohol (30%), followed by cannabis (14%), illicit opiates (12%), cocaine/crack (7%) and prescription medications (7%) (see Figure 6)."

"Caucasians and African-Americans were reported to be the most prevalent racial groups in Drug Courts (see Table 4). On average, Caucasians were reported to represent nearly two-thirds (62%) of Drug Court participants nationwide. However, there was considerable variability across jurisdictions. In some Drug Courts, nearly all of the participants were reported to be Caucasian, whereas in others, Caucasians were reported to be virtually absent.
"On average, African-Americans were reported to represent approximately one-fifth (21%) of Drug Court participants nationwide. Again, however, there was considerable variability across programs. In some Drug Courts, nearly all of the participants were reported to be African-American, whereas in others, African-Americans were reported to be virtually absent.
"Other racial groups each accounted for less than 5% of Drug Court participants nationally, and were not represented in many Drug Courts. Native-Americans and Pacific Islanders were reported to be prevalent in a small number of Drug Courts located in specific geographic regions of the country."

"On average, Spanish, Hispanic or Latino(a) persons were reported to represent 10% of Drug Court participants nationwide. However, there was considerable variability across jurisdictions. In some Drug Courts, such as those in Puerto Rico, nearly all of the participants were reported to be of Spanish, Hispanic or Latino(a) ancestry, whereas in others, individuals with these ethnic backgrounds were reported to be virtually absent (see Table 5)."

"Although drug courts provide an alternative to the immediate incarceration of drug users, these courts are still connected to a criminal justice system that treats drug use as a crime. Therefore, when participants enter the drug courts, there is an institutionalized stigma attached to drug use.¹⁹² Drug courts perpetuate this stigma because they are based on a system of rewards and punishments. When participants act 'badly' (either by testing positive for drugs or breaking other imposed conditions that create a presumption of drug use), they are treated as pariahs, not patients. For continuing 'bad' behavior, drug court participants can be eventually incarcerated, which is the ultimate representation of societal segregation and ostracism."

"Additional results reveal that, in practice, large numbers of drug courts are admitting offenders who are abusing alcohol and marijuana, but may not be clinically dependent or abusing more serious drugs. Consistent with the number of courts admitting individuals with lower levels of substance use and the number admitting individuals with DWI/DUI offenses, 65.6 percent of courts reported that a participant can be admitted into drug court for alcohol abuse only. An even larger percentage of courts (87.7 percent) indicated that participants can enter drug court for marijuana abuse only. Allowing participants into drug court based on alcohol abuse only did not vary by type of geographic area; however, allowing participants into drug court based on marijuana abuse only did vary geographically (X2=10.2, p<.01). The majority of courts that do not accept participants into drug court based only on marijuana abuse are located in urban areas (62.2 percent), suggesting they may have a greater focus on more serious drug problems."

"In general, suburban and urban courts serve populations with significantly more severe drug use problems than rural drug courts. Table 2-2.8 shows that nearly 40 percent of urban drug courts and approximately 30 percent of suburban drug courts serve populations of primarily severe cocaine/crack, heroin, or methadone dependent users compared with only 10 percent of rural drug courts. In addition, just over 9 percent of rural drug courts serve populations with primarily mild dependencies compared with only 3.5 percent of urban drug courts and 4.4 percent of suburban drug courts. Rural drug courts are also most likely to serve a mix of people with mild and severe dependencies (80.7 percent). As mentioned above and consistent with the information in Table 2.8, rural and suburban drug courts are significantly more likely than urban programs to admit participants to the program for marijuana abuse only."

Approximately 45% of courts in the US often or always have difficulty finding available residential treatment slots for clients.

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"In the evaluations we reviewed, adult drug-court program participation was generally associated with lower recidivism. Our analysis of evaluations reporting recidivism data for 32 programs showed that drug court program participants were generally less likely to be re-arrested than comparison group members drawn from the criminal court system, although the differences in likelihood were reported to be statistically significant in 18 programs.³⁸ Across studies showing re-arrest differences, the percentages of drug court program participants rearrested were lower than for comparison group members by 6 to 26 percentage points. One program did not show a lower re-arrest rate for all drug-court program participants relative to the comparison group within 3 years of entry into the program, although that study did show a lower re-arrest rate for drug court participants who had completed the program than for members of the comparison group. In general, the evaluations we reviewed found larger differences in re-arrest rates between drug-court program completers and members of the comparison group than between all drug-court program participants and the comparison group members. The rearrest rates for program completers ranged from 12 to 58 percentage points below those of the comparison group.³⁹ The completion rates reported in the evaluations we reviewed ranged from 15 percent to 89 percent."

"Importantly, Belenko et al. (2005) have shown just the opposite result for DTAP [Drug Treatment Alternative to Prison]: 57% of DTAP participants were rearrested for any offense at least once in the follow-up period compared with 75% of the comparison group. Similarly, only 42% of DTAP participants were reconvicted of any offense compared with 65% of the prison comparison group. Finally, only 30% of the DTAP participants had a new jail sentence (compared with 51% of prison comparisons) and only 7% had a new prison sentence (compared with 18% of prison comparisons).
"When these outcomes are monetized, our study shows that the DTAP program is cost beneficial from the CJS [criminal justice system] perspective; it is less costly to divert drug abusing offenders to treatment instead of prison. In addition, the findings suggest that a long-term perspective is important in evaluating treatment diversion or other criminal justice-based treatment programs. We find that benefits increase in each subsequent year of analysis. Findings from this analysis provide an economic justification for the DTAP program. In addition, our unit cost estimates for the CJS and diversion expenses for New York City may be used by policymakers and researchers to evaluate other diversion programs."

"In the first six months of follow up, we found that drug court offenders were significantly less likely than the comparison group to report engaging in any criminal behavior (28 percent vs. 40 percent, p < .05); and drug court offenders averaged significantly fewer total instances of such behavior (12.8 vs. 34.1 criminal acts, p < .001). We detected additional significant differences in the prevalence of drug-related, DWI/DUI, and property-related criminal behavior.
"During the following year (the one-year period prior to the 18-month survey), the same patterns persisted. Specifically, drug court offenders were significantly less likely to engage in any criminal behavior (40 percent vs. 53 percent), drug-related crime (36 percent vs. 50 percent), DWI/DUI (19 percent vs. 27 percent), and property crime (4 percent vs. 10 percent). Among drug crimes, drug court offenders were significantly less likely to engage in both drug possession and drug sales offenses. Finally, drug court participation appeared to have a powerful impact on the total quantity of criminal activity, averaging more than 50 percent fewer criminal acts than the comparison group (43.0 vs. 88.2, p<.01); and more than 50 percent fewer drug-related crimes as well (30.6 vs. 83.1, p<.001). Of final note, both samples engaged in little violent, weapons-related, or public order offending, and differences on these latter measures were not significant."

"Regarding criminal acts that were officially detected, 52 percent of drug court offenders compared with 62 percent of comparison offenders were re-arrested over 24 months. Drug court offenders also averaged fewer total re-arrests than the comparison group (1.25 vs. 1.66). Yet, these results, as well as additional results that isolated drug-related re-arrests, were not statistically significant. (After implementing a time-at-risk adjustment, drug courts did appear to produce fewer re-arrests per year at risk at the .10 significance threshold.)
"A virtually identical percentage of drug court and comparison offenders reported that they experienced at least some incarceration during the 18 months (58 percent vs. 57 percent, n.s.). Drug courts may have reduced the total number of days incarcerated, as the drop from 95.3 days on average for the comparison group to 62.7 days for the drug court sample represents a meaningful 34 percent relative reduction, but the difference was not statistically significant. Additional analyses (not shown in Table 4-4.3) revealed drug court graduation to be a critical intervening factor. Among drug court offenders who had completed their participation by the 18-month mark (n = 630), 27 percent of graduates compared with 93 percent of those failing experienced any incarceration; and graduates averaged only 11.8 days incarcerated, compared with 143.9 days for those failing."

"In addition, and important to criminal justice stakeholders and participants, themselves, is what happens to a person’s criminal charges after s/he successfully graduates from drug court. Recognizing that some courts may have multiple tracks for drug court participants with perhaps varying kinds of criminal justice outcomes, we asked courts what happens to the criminal charges for the majority of their participants after graduation (see Table 2- 3.33). Charges are dismissed in 46.3 percent of courts, charges are reduced in 7.3 percent of courts, and charges and the conviction are expunged in 7.1 percent of courts. The charges and conviction stand, but with a reduced sentence in 22.5 percent of courts."

"As shown in Table 4-3.4, offenders in the drug court used drugs significantly less often than did offenders in the comparison group during the initial six-month tracking period. Overall, 40 percent of drug court participants as compared with 55 percent of comparison offenders reported that they had used at least one of the eight measured substances (p < .05). Drug court offenders also averaged fewer days of drug use per month (1.5 vs. 3.7 days; p < .01) and fewer days of serious use per month (1.0 vs. 2.2 days, p < .05).3 Regarding specific illegal substances, 13 percent of the drug court sample had used marijuana versus 26 percent of the comparison group (p < .05). One- third (32 percent) of the drug court sample reported drinking alcohol compared to more than half (52 percent) of the comparison group (p < .05). A significantly lower percentage of drug court offenders also reported illegal prescription drug use (6 percent versus 10 percent; p < .05). Analogous findings were detected when isolating drug use in just the most recent month prior to the six-month survey. Finally, drug court and comparison offenders had, on average, similar six-month scores on the Addiction Severity Index (5.4 versus 5.0; non-significant) and experienced similar reductions between baseline and six months (-4.0 vs. -3.7; n.s.)."

"To further investigate how certain and swift consequences are for program requirement infractions, we asked about how courts responded to particular scenarios; first to positive drug test results and second to other types of infractions. The majority of courts (77.3 percent) indicated that every positive drug test results in a sanction. Additionally, 45.3 percent of courts reported that sanctions escalate and are always more severe than the prior sanction when participants have had repeated infractions. Another 54.4 percent reported sanctions are sometimes more severe for repeated noncompliance than the previous response to the last infraction. In terms of swiftness, 13.6 percent of courts impose a sanction for a positive drug test within a day of the results, regardless of whether the participant has a court appearance at that time, and 34.3 percent do so within a week (see Table 2-3.26). Another 41.2 percent wait until the next court appearance to impose the sanction, which could be quite swift—within a few days or a week—or it could involve a great deal of time if the participant is not required to attend hearings on a weekly basis."

"As shown in Table 4-3.5, drug court offenders continued to report less drug use than the comparison group in the year prior to the 18-month survey. Drug court offenders had significantly fewer occurrences of any use (56 percent vs. 76 percent, p < .01), serious use (41 percent vs. 58 percent, p < .01), days of use per month (2.1 vs. 4.8, p <.001), and days of serious use per month (1.1 vs. 2.3; p < .001). Regarding specific substances, drug court offenders were significantly less likely than the comparison group to report use of marijuana (23 percent vs. 36 percent), alcohol (47 percent vs. 67 percent), “heavy” use of alcohol (29 percent vs. 42 percent), illegal use of prescription drugs (6 percent vs. 15 percent) and illegal use of methadone (2 percent vs. 4 percent). Although the sample differences for cocaine, heroin, amphetamines, and hallucinogens were all non-significant, every one of these latter differences also trended towards less use in the drug court sample. Once again, in the most recent month prior to the 18-month follow up, the differences between the two samples generally mirrored those detected for the entire previous year."

"However, one counter-explanation for the seemingly powerful linkage between reduced drug use and reduced criminal behavior is that both outcomes are, essentially, measures of compliance with drug court, probation, or other supervision requirements. In this view, it is perfectly logical that offenders who were more influenced to become compliant with drug court requirements in one way (by reducing their drug use) also were more likely to comply in another way (by reducing their criminal behavior). Hence, the existence of a strong and direct statistical association between the two outcomes might not mean that reduced drug use brought about the reduced criminal behavior. Rather, reduced drug use and criminal behavior might be better interpreted as parallel outcomes, both involving compliance. One way of examining this counter-explanation would be to include a variable that directly taps compliance. After including such a variable, one could then test whether compliance appeared to be the essential link explaining reduced criminal behavior, or whether reduced drug use truly exerted an independent effect. For this reason, Model 3 included a variable for the number of supervision violations in the year prior to the 18-month survey. As expected, more supervision violations predicted more criminality. Yet, drug use still exerted a strong, independent effect on criminal behavior as well. Therefore, the results in Model 3 provide additional reason to conclude that a causal linkage does exist between reduced drug use and crime."

"Net-widening refers to 'an expansion in the number of offenders arrested and charged after the implementation of [a drug court] because well-meaning police and prosecutors now believe there to be something worthwhile that can happen to offenders once they are in the system (i.e., treatment instead of prison).'³⁸⁷ When drug courts are created, police in some cities have arrested more people and prosecutors have filed more charges.³⁸⁸
"The very presence of the drug court, with its significantly increased capacity for processing cases, has caused police to make arrests in, and prosecutors to file, the kinds of $10 and $20 hand-to-hand drug cases that the system simply would not have bothered with before, certainly not as felonies."³⁸⁹"

"In drug court, the traditional functions and adversarial nature of the U.S. justice system are profoundly altered. The judge – rather than lawyers – drives court processes and serves not as a neutral facilitator but as the leader of a 'treatment team'¹⁴ that generally consists of the judge, prosecutor, defense attorney, probation officer and drug treatment personnel. The judge is the ultimate arbiter of treatment and punishment decisions and holds a range of discretion unprecedented in the courtroom,¹⁵ including the type of treatment mandated, whether methadone prescription is acceptable (and at what dosage) and how to address relapse. The defense lawyer, no longer an advocate for the participant’s rights, assists the participant to comply with court rules.¹⁶"

"Importantly, representation of African-Americans in jails and prisons was nearly twice that of both Drug Courts and probation, and was also substantially higher among all arrestees for drug-related offenses. On one hand, these discrepancies might be explained by relevant differences in the populations. For example, minority arrestees might be more likely to have the types of prior convictions that could exclude them from eligibility for Drug Courts or probation. On the other hand, systemic differences in plea-bargaining, charging or sentencing practices might be having the practical effect of denying Drug Court and other community-based dispositions to otherwise needy and eligible minority citizens. Further research is needed to determine whether racial or ethnic minority citizens are being denied the opportunity for Drug Court for reasons that may be unrelated to their legitimate clinical needs or legal eligibility."

"Another reason for the proliferation of drug courts is the failure of probation departments to adequately address the needs of clients with addictions. Some of the same mechanisms drug courts use (treatment services, supervision, and case management) have traditionally been part of probation. But as the number of people on probation continues to grow and caseloads increase, probation departments complain that they do not have the resources or time to dedicate to their clients and provide the services their clients need to be successful and stay away from the criminal justice system.²³ Drug courts can be more resource intensive,‡ but do basically the same thing as probation departments are tasked with doing — provide case management and treatment resources while under criminal justice supervision. And often, probation and parole officers are more limited in the options they have to respond to either positive achievements or relapses than drug court judges."

"Proposition 36 introduced an unprecedented number of clients into California’s drug treatment system. Overall treatment admissions increased by 11% to 34% during the first year in 4 of the 5 counties studied, with an 11% increase statewide. No parallel increases have been observed in drug use prevalence¹⁴ or in drug law enforcement¹⁵ during these periods. In the law’s second year, few changes in overall admissions were observed in the 5 counties and the state, but the number of Proposition 36 offenders entering drug treatment continued to increase in all counties and statewide (50% increase over Year 1). Except for San Francisco county, Proposition 36 clients in Year 2 constituted 18% to 42% of the total admissions in the studied counties’ treatment systems and 20% of the state’s treatment system, which is a significant proportion given the brief time since implementation. This expansion has occurred mainly in ODF [Outpatient Drug Free] programs, with concurrent reductions in self-referrals and admissions to methadone programs. These findings suggest that treatment capacity and availability for non–Proposition 36 clients might be compromised in the majority of California counties."

"Proposition 36 has successfully brought a large number of drug-abusing offenders to treatment in a very short time period, many for the first time.^15,17 Although this is an important first step, positive therapeutic effects require clients’ engagement in appropriate treatment over a sufficient period of time,⁸ and positive outcomes depend on services that effectively address clients’ multiple needs.^19–22 Treatment capacity expansion for Proposition 36 offenders was observed mostly in ODF [Outpatient Drug Free] programs, often with short planned durations, which may not be adequate for severe-level drug abusers, for heroin addicts, and particularly for clients with co-occurring mental disorders and other problems. Undertreatment (inadequate intensity and duration) has been found to be associated with high rates of recidivism.²³ Although more direct evidence for displacement (e.g., longer wait time for non–Proposition 36 clients) should be sought, our findings suggest that displacement may be an unintended negative consequence of Proposition 36 that needs further investigation. Is the perceived or actual unavailability of treatment or inadequate level of available treatment for voluntary clients contributing to a lower rate of help seeking and, thus, to the ongoing public health and safety problems of untreated addiction? There has been some indication that policies promoting 'treatment on demand' have increased access only for some populations, but not for the indigent or for opiate addicts needing methadone maintenance.²⁴ It has also been suggested that increased caseloads result in increased pressures on programs and staff, which undermine treatment objectives.²⁵"

"Carey and Finigan (2004) estimated the benefits and costs of the Multnomah County Drug Court in Portland, Oregon. They evaluated a sample of 1,173 individuals to determine the cost and criminal justice outcome differences between the drug court and the business-as-usual process over a 30-month period following the initial court appearance. Based on their cost and benefit estimates, the benefit-cost ratio associated with Multnomah County Drug Court was 2.5.
"In an unpublished report, Harrell, Cavanaugh, & Roman (1999) estimated benefit-cost ratio of about 2 for the sanctions docket program that was part of the D.C. Superior Court Drug Intervention Program. Similarly, in an evaluation the Multnomah County, Oregon, S.T.O.P. (Sanction Treatment Opportunity Progress) Drug Court Diversion Program, Finigan (1998) estimated a benefit-cost ratio of 2.5 from the taxpayer perspective. In these studies, benefits were calculated as the dollar value of averted crime costs (Harrell et al.) or averted CJS [criminal justice system] costs (Finigan) due to decreased criminal activity."

"In identifying target populations, drug courts need to be sensitive to class and race bias. Unless care is taken, diversion courts may tend disproportionately to work with white and middle-class substance abusers."

"Courts allow participants to enter the program at a variety of points in the criminal justice process (see Table 2-3.1). Most courts reported multiple ways people could get into their drug court. The greatest percent of courts reported the point of entry for participants is 'after a plea is entered, but final disposition is suspended during treatment,' while the least frequent points of entry include 'as a part of parole violation' and 'as a community reentry from jail/prison program.'
"To understand the variety of paths into drug court that exist, we grouped courts into mutually exclusive categories of points of entry based on their answers to the measures in Table 2-3.1. For some courts, there was only one point in the process for entry; while for others, there were combinations of entry points. The most frequent court type for points of entry was the single selection of 'after a pleas is entered, but final disposition is suspended during treatment,' with 17.5 percent of courts selecting only this response. The next most frequent type of court in terms of points of entry was the combination of 'after case disposition' and 'as a part of probation violation,' with 11.1 percent of courts indicating these two responses. The frequencies of the remaining possible combinations of entry points ranged anywhere from 0.3 to 8.2 percent, indicating a wide variety of drug court entry structures among the courts.
"Despite the various entry points for participants allowed by courts, we examined at which point the majority of participants enter a single program. Consistent with the findings above, the largest portion of drug courts (44.7 percent) reported that the majority of participants enter the program 'after a plea is entered, before final disposition' (see Table 2-3.2). In very few cases are the majority of drug court participants probation violators (9.9 percent), parole violators (0.3 percent), or entering as part of a community reentry program (0.6 percent)."

In a 2003 report, New York's Center for Court Innovation compared recidivism rates between drug court graduates and attendees from six different drug courts, and control groups of similar defendants not entering drug court. They found: "All six drug courts (Bronx, Brooklyn, Queens, Suffolk, Syracuse, and Rochester) produced recidivism reductions compared with conventional case processing. The six courts represent a mix of geographic areas and policies (e.g., regarding eligibility criteria, screening and assessment protocols, graduation requirements, approach to sanctions, and supplemental services). Since the measurement periods tracked defendants at least three years after the initial arrest and at least one year after program completion, the results indicate that positive drug court impacts are durable over time.
"The six drug courts generated an average 29% recidivism reduction over the three-year postarrest period and an average 32% reduction over the one-year post-program period."

"An individual who has an out-of-control addiction commits about 63 crimes a year. Assuming this could be reduced to 10 for someone who is in or has completed treatment, and multiplying it by the 200 offenders in Delaware's probation revocation track who comply with all requirements, a single drug court may prevent more than 10,000 crimes each year."

The Drug Court Clearinghouse and Technical Assistance Project at the American University in Washington, DC, released the results of a survey of drug courts in 2001. Based on information reported by 372 of the 420 adult family drug court programs which were in operation as of January 1, 2001, DCC/TAP estimated:

"Likewise, in a study conducted by W. Clinton Terry, professor of criminal justice at Florida International University, no real differences were found between the recidivism rates of those who completed and those who dropped out of Broward County's Drug Court treatment program. Only a 4 percent difference in the number of felony rearrests and a 1 percent difference in the number of misdemeanor rearrests were found between the two groups."

Treatment options must be carefully considered by the courts. Various Federal court rulings have determined that offering only Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) programs, because of their religious basis, violates the establishment clause of the US Constitution. Ruling in the case of Kerr v. Farrey in the 7th Circuit Federal Court of Appeals, Judge Diane P. Wood wrote: "The question pre- sented in this case is whether a state correctional institution may require an inmate, upon pain of being rated a higher security risk and suffering adverse effects for parole eligibility, to attend a substance abuse counseling program with explicit religious content, consistent with the Establishment Clause of the First Amendment to the U.S. Constitution. Applying the test of Lemon v. Kurtzman, 403 U.S. 602 (1971), the district court concluded that the prison program did not violate the Establishment Clause and granted the defendants' motion for summary judgment. We find, to the contrary, that the state has impermissibly coerced inmates to participate in a religious program. We therefore reverse and remand for further proceedings." Judge Wood further noted that "the Court of Appeals of New York has recently come to the same conclusion we reach today in Matter of David Griffin v. Coughlin" and that "Our conclusion is thus in harmony with that of other courts that have considered similar questions."

"Specialized forums like drug or domestic violence courts require a judicial temperament in interacting directly with litigants and an openness to insights from fields like mental health.
"It is unclear that legal training is the best preparation for judging in specialized contexts."

"As with drugs themselves, however, the promises of drug courts to not measure up to their harsh reality. They are compromising deep-seated legal values, including the doctrine of separation of powers, the idea that truth is best discovered in the fires of advocacy, and the traditional role of judges as quiet, rational arbiters of the truth-finding process."

"Reductions in recidivism are so small that if they exist at all they are statistically meaningless. Net-widening is so large that, even if drug courts truly were effective in reducing recidivism, more drug defendants would continue to jam our prisons than ever before."

"Most drug courts require a guilty plea as the price of admission. When guilty pleas are required before offering treatment, drug courts become little more than conviction mills. In post-adjudication courts, the defendant must plead guilty before entering drug court, and even if he or she is successful and completes the program, the conviction will never go away. In pre-adjudication courts, the defendant must plead guilty, but then, if he or she successfully completes the program there is a possibility that the plea can be withdrawn and the charge dismissed. Although procedures vary, the hoops through which participants must jump result in dismissals for relatively few defendants. Profound consequences flow from every failure."

"It is unlikely that the level and intensity of services required for drug court participants will be supported by managed care. Pressures to reduce treatment expenditures and manage costs associated with Medicaid are driving States to shorten length of stay in treatment and increasing the thresholds for admission to intensive treatment."

"When a drug court judge steps down, it is not always possible to find a sufficiently motivated replacement. Without a highly motivated judge, the drug court approach simply does not work."

"Under the traditional drug court model, an individual must waive significant rights when entering drug court, even though litigants often do not have access to discovery before being asked to waive these rights.²³⁶"

"The drug court movement reflects a desire to shift the emphasis from attempting to combat drug crimes by reducing the supply of drugs to addressing the demand for drugs through the treatment of addiction. Drug courts use the criminal justice system to address addiction through an integrated set of social and legal services instead of solely relying upon sanctions through incarceration or probation."

It is possible that managed care will become a barrier to the success of drug courts and treatment as alternative to incarceration. The National Institute of Justice notes, "The premise of managed care, increasingly the norm, is that the least treatment required should be provided. This is at odds with research on substance abuse treatment, which has shown that the longer a person remains in treatment, the more successful treatment will be. Furthermore, managed care assumes the patient will aggressively pursue the treatment he or she deems necessary. Because most drug court clients initially prefer not to be treated, they are likely to welcome a ruling by the health care provider or the managed care insurer that treatment is not needed. Finally, drug court clients frequently encounter delays in obtaining treatment funding or must cobble together bits and pieces of various programs because the "exhaustion" rules of health care plans limit treatment."

In a North Carolina Law Review article, Colorado Judge Morris B. Hoffman writes, "By existing simply to appease two so diametric and irreconcilable sets of principles, drug courts are fundamentally unprincipled. By simultaneously treating drug use as a crime and as a disease, without coming to grips with the inherent contradictions of those two approaches, drug courts are not satisfying either the legitimate and compassionate interests of the treatment community or the legitimate and rational interests of the law enforcement community. They are, instead, simply enabling our continued national schizophrenia about drugs."

"The policy in itiative was developed without the use of interventions deemed effective in other researched and evaluated initiatives such as the Drug Court model. For example, SACPA [Substance Abuse and Crime Prevention Act of 2000] did not use criminal justice leverage or sanctions found to be effective in Drug Courts. Consequently, retention in the SACPA and in treatment was lower than might have been anticipated. Nevertheless, on a large scale, California diverted many more people to treatment than the Drug Courts alone. In other words, treatment access was significantly increased. Further, it is likely that the total number of participants who entered recovery and did not recidivate exceeds the total number of Drug Court participants in recovery, even though the rates for Drug Court were higher.
"Therefore, the state-mandated treatment in California (SACPA) has succeeded in two important ways that were central to its initial logic. First, it has provided an enormous benefit in being able to reach nearly all eligible offenders and offer treatment for their substance use issues instead of incarceration. Second, it has allowed offenders to have more total treatment than Drug Court. In this sense, it has had a much greater impact on the total system of offenders than Drug Court that often serves only a small number of offenders."

"Even offenders who do not succeed in drug court appear to be less criminally active than they were previously. This may be due to the benefits of treatment or the supervision, sanctions, intensive surveillance, and specific deterrence of the drug court."

In a 2003 report, New York's Center for Court Innovation compared recidivism rates between drug court graduates and attendees from six different drug courts, and control groups of similar defendants not entering drug court. They found that "When in-program participation time was included in the calculation, processing time for participants was far longer than for comparison defendants (due to the length of the drug court program). Hence to achieve positive impacts such as lower recidivism, drug courts require a significant up-front investment of court resources."

In a 2003 report, New York's Center for Court Innovation compared recidivism rates between drug court graduates and attendees from six different drug courts, and control groups of similar defendants not entering drug court. They found that "Graduation is itself a powerful predictor of avoiding postprogram recidivism; those who failed drug court were far more likely to recidivate in the post-program period. Further, contrary to previous research with non-drug court populations, no benefit was found to spending more total time in treatment only to fail in the end. Among those who failed, more time in the drug court program (measured in four courts) or more days specifically attending treatment (measured in one court) had no impact on post-program recidivism. These results strongly point to drug court graduation as the pivotal indicator of long-term outcomes."

"The evaluations we reviewed showed that adult drug-court program participation was also associated with reduced drug use. Our analysis of evaluations reporting relapse data for eight programs showed that drug court program participants were less likely than comparison group members to use drugs, based on drug tests or self-reported drug use, although the difference was not always significant.42 This was true for both within-program and post-program measures, and whether drug use was reported as the difference in the frequency of drug use or the proportion of the treatment and comparison groups who used drugs."

In a 2003 report, New York's Center for Court Innovation examined eleven different adult drug courts in New York state. They found that "Relapse and noncompliance are common, even among those who ultimately succeed. In seven of eight courts examined, at least half of all graduates had at least one positive drug test, and many had several positives - usually in the earlier stages of participation. This highlights the value of drug courts according multiple chances to participants experiencing early problems."

According to the US General Accounting Office in 2002, the Department of Justice failed to collect adequate data on drug courts. "One of the Drug Court Clearinghouse's functions has been to identify DCPO-funded drug court programs. However, the Drug Court Clearinghouse has only been tasked since 1998 with following up with a segment of DCPO [Drug Courts Program Office] grantees to determine their implementation date. Thus, the information provided to DCPO on the universe of DCPO-funded drug court programs is at best an estimate and not a precise count of DCPO drug court program grantees. Noting that its current grant information system was not intended to readily identify and track the number of DCPO-funded drug court programs, DCPO officials said that they plan to develop a new management information system that will enable DOJ to do so. Without an accurate universe of DCPO-funded drug court programs, DCPO is unable to readily determine the actual number of programs or participants it has funded or, as discussed below, the drug court programs that should have responded to its semiannual data collection survey."

"With regard to drug courts’ effectiveness, however, drug courts have been difficult to evaluate because they are so varied, and the resources required to conduct a study that would allow conclusions about the effectiveness of drug courts can be substantial. In particular, while drug courts generally adhere to certain key program components, drug courts can differ in factors including admission criteria, type and duration of drug treatment, degree of judicial monitoring and intervention, and application of sanctions for noncompliance. In February 2005, we studied drug courts and reported that in most of the 27 drug-court program evaluations we reviewed, adult drug court programs led to recidivism reductions during periods of time that generally corresponded to the length of the drug court program.¹⁹ Several syntheses of multiple drug court program evaluations, conducted in 2005 and 2006, also concluded that drug courts are associated with reduced recidivism rates, compared to traditional correctional options. However, the studies included in these syntheses often had methodological limitations, such as the lack of equivalent comparison groups and the lack of appropriate statistical controls.²⁰"

"Drug court evaluations have been widely criticized for methodological weaknesses and data inconsistencies. Some criticisms stem from the fact that the majority of drug court program evaluations (1) have either no comparison group or a biased comparison group, such as offenders who refused or failed the drug court program; (2) report outcomes only for participants who complete the program (graduates), while excluding participants who did not complete the program (dropouts); and (3) use flawed data-collection methods, such as drug court participants’ self-reported surveys.⁵²"

"Consistent with the results reported above, we found that drug court participation led to significantly less drug use on both outcome measures in Table 4-3.6. Not surprisingly, we also found that a greater frequency of drug use at baseline significantly predicted a greater frequency at 18 months for both drug court and comparison offenders. Among other background characteristics, a younger age, male sex, black race, having been classified with depression (based on a multi-item screening tool), and having been classified with anti-social personality disorder (also based on a multi-item tool), all predicted greater drug use on at least one if not both of the outcome measures in Table 4-3.6. On the other hand, our results did not provide any evidence of a relationship between offender social ties (e.g., based on employment/school status, marital status, involvement of blood relatives with crime or drugs) and less drug use; nor did we find that prior criminal history predicted future drug use. Overall, the strongest and most consistent predictors of drug use outcomes were participation in the drug court, less frequent drug use at baseline, and the absence of mental health problems at baseline."

"Based on our analyses mainly of the self-report data, we find that drug courts were effective in reducing substance abuse relapse. Six months after entering drug court, program participants averaged fewer days of drug use per month (1.5 vs. 3.7 days; p < .01) and fewer days of serious drug use per month (1.0 vs. 2.2 days, p < .05) than the comparison group. By the 18-month follow up, the drug court cohort had significantly fewer occurrences of any drug use (56 percent vs. 76 percent, p < .01), serious use (41 percent vs. 58 percent, p < .01), days of use per month (2.1 vs. 4.8, p <.001), and days of serious use per month (1.1 vs. 2.3; p < .001). Regarding specific substances, drug court participants were significantly less likely than the comparison members to report use of marijuana, alcohol, 'heavy' use of alcohol, illegal use of prescription drugs, and illegal use of methadone; there were no significant differences between the two groups for cocaine, heroin, amphetamines, and hallucinogens, although the differences reported trended in the direction of less use by the drug court sample.
"Additionally, statistically significant percentages of drug court participants report no relapse during the 18-month period; similarly, drug court participants were statistically significantly less likely to relapse in the first six months. Conversely, a small, but statistically significant, percentage of the comparison group reported no sobriety within the 18 months."

"Overall, extremely few interaction terms were significant, broadly indicating that drug courts were comparably effective for all types of drug-involved offenders. Three exceptions were as follows. The drug courts were especially likely to produce a reduction in criminal behavior among offenders with a history of violence—indicated by a self-reported prior violent conviction (p < .001). On the other hand, drug courts were especially unlikely to produce a reduction in criminal behavior among offenders with narcissistic personality (p < .05) and among black offenders (p < .05). None of 14 other tested interactions was significant in either direction. As a follow-up analysis, we had contemplated developing a 'risk' classification, enabling us to draw general conclusions as to whether drug courts work particularly well with high- or low-risk offenders. However, because so few of the interaction terms were significant in our initially parsimonious three-variable models—and of those that were significant, only prior violence was readily classifiable as connoting “risk,” we considered it pointless to take that next step."

"The lifetime societal net benefits accruing to the United States from our diversion scenarios are statistically significant and sizable, at US$8.5 billion (when diverting 10% of eligible offenders) and US$22.5 billion (when diverting 40% of eligible offenders), relative to baseline. The national criminal justice savings are similarly significant and sizable, at US$4.8 billion and US$12.9 billion, respectively. Importantly, the net benefits and cost savings estimates are conservative because the model follows only the single cohort of offenders who were incarcerated in 2004. As additional cohorts are considered in future years, the net benefits would be even larger."

"A limited number of evaluations in our review discussed the costs and benefits of adult drug court programs. Four evaluations of seven drug court programs provided sufficient cost and benefit data to estimate their net benefits (that is, the benefits minus costs). The cost per drug court program participant was greater than the cost per comparison group member in six of these drug court programs. However, all seven programs yielded positive net benefits, primarily from reductions in recidivism affecting both judicial system costs and avoided costs to potential victims. Net benefits ranged from about $1,000 per participant to about $15,000 in the seven programs. These benefits may underestimate drug court programs' true benefits because the evaluations did not include indirect benefits (such as reduced medical costs of treated participants). Financial cost savings for the criminal justice system (taking into account recidivism reductions) were found in two of the seven programs."

"Drug court judges and coordinators ranked improving staff skills to engage and retain drug court participants in treatment as the most needed improvement in the court's treatment component."

"Drug courts report that screening, assessing, and determining drug court eligibility occur quickly, and most participants are able to enter treatment less than 2 weeks after drug court admission. However, not all drug courts use screening or assessment instruments that have proved reliable and valid, and some do not appear to use appropriate clinically trained staff to conduct assessments."

"The greatest frustrations described by drug courts include limited access to residential treatment, treatment for mental health disorders, and specialized services for women, racial and ethnic minorities, and the mentally ill. Problems with client engagement and retention in treatment are also identified. Followup interviews with a sample of respondents suggest that, while services may be available, they may be limited in quantity or otherwise very difficult to access."