Missouri Lawyers Weekly
April,
2010
Drug Courts Save Lives and Money: So Why the Criticisms?
by
Dr. Douglas Marlowe, Chief of Science, Law and Policy, NADCP
More
research has been published on the effects of Drug Courts than on
virtually all other criminal justice programs combined. By 2006, the
scientific community had concluded beyond a reasonable doubt from what
are called meta-analyses (highly advanced statistical procedures) that
Drug Courts reduce crime and return financial benefits to society which
are several times the initial investments. A large-scale study funded
by the National Institute of Justice and recently completed in
2009—called the Multi-Site Adult Drug Court Evaluation, or MADCE— has
confirmed, once again, that Drug Courts reduce crime, reduce substance
abuse, improve family relationships, and increase employment and school
enrollment.
Yet, just as the scientific evidence is coming in
decidedly in favor of Drug Courts, criticisms of Drug Courts appear to
be reaching a surprising crescendo in opinion editorials and
non-scientific law journals. How can we explain this seeming paradox?
If the criminal justice system endorses evidence-based practices, why
should negative sentiments be rising alongside favorable research
findings?
The answer is at least two-fold. One group of critics
appears to be turning an intentionally blind eye to the research
evidence to serve a drug-decriminalization policy agenda. Although they
may use scientific language to defend their objections, no amount of
data could ever dissuade them from their position. A second group of
critics, however, recognizes the proven efficacy of Drug Courts, but
worries that some Drug Courts might produce other negative side-effects
which should also be taken into account, such as impeding zealous
representation by defense counsel. Because these latter critics are
swayed by data, their concerns are capable of being empirically tested;
and if confirmed, can point the way toward corrective measures that will
advance the field rather than move it further and further behind.
One
would be hard-pressed to point to a negative commentary on Drug Courts
that does not, within the same pages, endorse a drug-decriminalization
or legalization agenda. For decades, drug legalizers could take steady
aim at the so-called “War on Drugs” with its undue emphasis on mandatory
sentencing and incarceration. Such criticisms were easy to level,
because the War on Drugs has been both prohibitively costly and largely
ineffective at reducing drug abuse or crime.
But Drug Courts
throw a potential curve ball to these arguments. Drug Courts prove that
drug abuse can remain illicit without necessitating a costly and
draconian punitive response. We can hold people accountable for their
dangerous behavior, while at the same time supervising them in the
community and providing them with needed treatment and other services.
This finding could be seen by some as sweeping the legs out from under
the strongest rationale for drug decriminalization. And for this
reason, it has elicited a steady stream of vehement antagonism framed in
the guise of an objective scientific analysis.
Other critics,
however, recognize that even beneficial treatments have the potential to
cause unwanted side-effects. For example, aspirin is proven to reduce
pain but in some cases can cause unintended ulcers or blood thinning.
This has required the medical field to take remedial measures to reduce
the likelihood that such side-effects will occur and to treat any
negative symptoms that do emerge. By analogy, there is always the
possibility that some Drug Courts might misapply their authority or
mishandle their operations to the detriment of their participants.
Moreover, there is the possibility that some types of addicted offenders
might not respond well to the Drug Court model and should be treated in
other ways.
There are two problems, however, with how these
arguments have typically been framed by critics of Drug Courts. First,
they assume facts not in evidence, and second, they often seek the wrong
remedy. A review of the research literature through February of 2010
failed to uncover a single empirical study confirming any of the
untoward effects that have been attributed by critics to Drug Courts.
For example there is no reliable evidence (apart from some critics’
personal anecdotes) that Drug Courts impede adequate evidentiary
discovery by defense counsel or sentence terminated defendants more
harshly than if they had never entered the Drug Court.
It would
not be a difficult matter, however, to study these questions in a
scientifically defensible manner. If such negative effects do exist,
then corrective measures can be developed and tested to address them.
And finally, practice guidelines can be developed to ensure that all
Drug Courts adhere to best practices and take reasonable efforts to
avoid foreseeable injuries. There is no need to “throw out the baby
with the bath water.” The indicated remedy is not to abandon the most
successful program we have in the criminal justice system. The
appropriate course of action is to conduct more sophisticated research
to improve the intervention and to develop standards to guide the
actions of Drug Court professionals.
Drug Courts are here to stay
not because they are politically palatable, but because they have
withstood, time and again, rigorous empirical scrutiny. They work where
few other programs have. The time has come for the Drug Court field to
reach full maturity. And like other mature disciplines, such as
medicine or psychology, this means developing guidelines for effective
and ethical practices.
The time has come for serious-minded
constituencies to cease taking blind swipes at Drug Courts and vying for
attention and limited resources. We need to come together to determine
who should be treated in Drug Courts, how to optimize Drug Court
operations, and how to avoid or redress any potential harms. This is
what is meant by rational drug policy.