 Drug Courts: A Personalized Form of Justice It's hard to argue with the success of drug courts, where judges maintain personal contact with drug offenders and use the threat of jail to prod addicts into programs that include treatment, educational opportunities, and job training. Following are excerpts of a February 1994 article by Jeffrey Tauber in Corrections Today.
Interest in drug courts is sweeping the nation as a number of innovative courts have reported success in reducing the levels of drug abuse, incarceration, and criminal recidivism among drug-using offenders. That interest is heightened by the realization that these same offenders clog court calendars, strain treasuries, and flood the jails and prisons. According to a recent American Bar Association report, imprisonment of drug offenders alone increased by 327 percent between 1986 and 1991. Some have criticized drug courts as a radical and unwarranted departure for the courts. However, there is nothing radical or even particularly new about how a drug court works. Drug courts, in fact, mark a turning back to a time when judges ran their own calendars and were responsible for their court's operations, defendants had to answer directly and immediately to the judge for their conduct, and cases moved slowly and purposefully through the judicial system rather than relying on sentencing guidelines, mandatory minimums, and negotiated pleas to speed up the court process. This article describes how drug courts work and what the underlying principles are that make them successful. The Drug Court in Action There is a persistent belief in the judicial community that a drug-using offender's failures while under court supervision are willful and deliberate and consequently ought to be dealt with severely. Unfortunately, this belief fails to recognize the compulsive, addictive nature of drug abuse and the court's limited ability to coerce abstinence. Drug court judges recognize the limitations of coercion as a drug rehabilitation tool and reject the notion that failure of the program is necessarily the result of willful defiance of judicial authority and therefore something to be punished as a kind of contempt of court. Rather than using coercion, drug court judges use a pragmatic judicial intervention strategy based on the development of an ongoing, working relationship between the judge and the offender and the use of both positive and negative incentives to encourage compliance. In a drug court, communications between judge and offender are crucial. By increasing the frequency of court hearings as well as the intensity and length of judge-offender contacts, the drug court judge becomes a powerful motivator for the offender's rehabilitation. A successful drug court requires the judge and staff to work together as a team. The defense attorney takes a step back -- both literally and figuratively -- to allow the judge to have direct contact with the offender. The prosecuting attorney adopts a conciliatory position. All staff see their job as facilitating the offender's rehabilitation. Drug court judges hold hearings before an audience full of offenders. As appropriate, the judge assumes the role of confessor, task master, cheerleader, and mentor, in turn exhorting, threatening, encouraging, and congratulating the participant for his or her progress or lack thereof. The court hearing is used to educate the audience as well as the individual offender on the potential consequences of the program. Offenders who have failed the program are seen early in the hearing before a full audience of participants, while successful graduates are often handed diplomas by the judge, accompanied by the applause and congratulations of staff. Principles of a Drug Court Court-ordered drug rehabilitation programs suffer from the generally held belief that "nothing works" in treating drug offenders. Unfortunately, that perception, although untrue, becomes a self-fulfilling prophecy when financially strapped communities inadequately fund court-ordered treatment programs and skeptical judges halfheartedly implement those programs, often terminating participants at the first sign of drug relapse. It takes more than increased funding and full judicial support to create an effective drug court program. Such programs are based on an understanding of the physiological, psychological, and behavioral realities of drug abuse and are implemented with those realities in mind. Successful programs recognize that:
Immediate, up-front intervention. A drug addict is most vulnerable to successful intervention when he or she is in crisis. Therefore, intervention should be immediate and used up front. Even the best-designed court-ordered drug rehabilitation program will be less than effective when intervention is delayed. Recognizing this, drug courts order participants to begin treatment immediately after their court hearing. In Miami, Florida, participants are transported by van; in Oakland, California, they are ordered to appear within 15 minutes of the court hearing. For the same reason, supervision and treatment should engage the offender early and often, giving the program and treatment the opportunity to take root. In Miami, offender contact with the program is required five times a week for the first three weeks; in Oakland, an average of three contacts per week is required for the first 10 weeks. Coordinated, comprehensive supervision. If there are gaps in program supervision, the offender will find and exploit them. Therefore, supervision must be comprehensive and well-coordinated to ensure accountability. Few offenders enter a court's program with rehabilitation on their minds. They are in denial and are in a program mostly to beat the system and avoid incarceration. The challenge is to keep them in the program until sobriety and attitudinal changes can occur. This may be difficult to accomplish because drug offenders are often experts at avoiding responsibility, making excuses for their failures, and evading the court and its programs. Drug offenders must be held accountable for their conduct if rehabilitation is to be successful. A drug court program builds a "chain-link fence" around drug offenders. The links of that fence consist of frequent supervision contacts and drug testing, direct access to full information on the offenders' progress, immediate responses to program failures, and frequent progress report hearings before a single drug court judge and staff. Oakland allows a maximum of 90 days, Miami no more than 60 days, between hearings. Long-term treatment and aftercare. A drug addict is not created overnight and cannot be cured overnight. Therefore, the drug-using offender needs intensive long-term treatment and aftercare. Drug addiction is a serious, debilitating disorder that demands intensive long-term treatment. Miami and Oakland participants average approximately one year to graduation. Preferably, this treatment begins in a medically supervised jail drug detoxification unit. For most offenders, however, a community-based non-residential treatment program is the initial treatment experience. More costly residential treatment spaces are generally reserved for those who have not responded well to non-residential treatment. Without adequate aftercare, sobriety may be short-lived when offenders face the same problems that contributed to their drug use in the first place. A drug court rehabilitation program should include ongoing treatment and counseling, educational opportunities, job training and placement, and health and housing assistance. Progressive sanctions and incentives programs. Relapse and intermittent progress are part of successful drug rehabilitation. Therefore, the drug court must apply a patient, flexible approach in monitoring compliance. In most cases, progress toward rehabilitation will be slow-starting and fitful, with sobriety taking hold only over a period of months. The judge must apply progressive sanctions and incentives in response to an offender's failure or success in moving toward sobriety. Smart Punishment The judge who uses extended incarceration as the only response to drug use is like a carpenter who shows up at a job site with only a hammer. The drug court judge has a variety of tools he or she should use -- intensive supervision, counseling, educational services, residential treatment, acupuncture, medical intervention, drug testing and program incentives, as well as incarceration. The problem is not in using incarceration, but in overusing it. Incarceration can work for drug offenders by providing them with the opportunity to detox from drugs. It can work as a deterrent by subjecting them to the stressful, anxiety-producing experience of incarceration. And it can work by coercing them to enter and complete rehabilitation. The use of extended periods of incarceration, however, does not appear to increase the value of incarceration and may in fact be counterproductive to sentencing goals. Extended incarceration may disrupt whatever stability exists in a drug-user's life, initiate him or her into a criminal lifestyle, and reduce the deterrent effect of incarceration, thus limiting the effectiveness of court-ordered rehabilitation. "Smart punishment" is the imposition of the minimum amount of punishment needed to achieve the twin sentencing goals of reduced criminality and reduced drug use. It relies on the use of progressive sanctions -- the measured application of a spectrum of sanctions whose intensity increases incrementally with the number and seriousness of program failures -- and a set of incentives aimed at encouraging and motivating offenders toward program success. Progressive Sanctions. In a drug court, there are immediate and direct consequences for all conduct. Sanctions follow violations and are applied as close to the time of failure as possible. This calls for frequent court hearings to monitor the offender and mete out sanctions. In many drug courts, less serious violations, such as inadequate participation in a court-ordered program, call for sanctions that start with the intensification of supervision, treatment, or a day's incarceration. Those sanctions increase incrementally -- one day, two days, four days -- with continued violations. At the other end of the spectrum, complete program failure may call for a substantial period of incarceration -- at least a week -- to detox the offender and deter him or her from future program failure or drug use. Diversion and other Incentives. Drug rehabilitation is at best a difficult, demanding, and lengthy process. To motivate offenders to complete the process, drug courts offer them substantial positive incentives to do so. Encouragement, appreciation, and real incentives are given to participants for positive behaviors. A diversion program (that includes treatment as well as learning social, educational, and vocational skills) provides a powerful motivational tool for drug rehabilitation, offering the defendant the opportunity to work toward a complete dismissal of a felony drug charge. Hybrid diversion programs that do not offer a complete dismissal, such as those offering to reduce felony convictions to misdemeanors, are common but provide less incentive for participants to succeed. Even where a diversion program is not available at all, significant incentives often are offered to offenders through the innovative application of probation terms, such as offering participants reductions in the length, intensity, or cost of probation supervision. Contingency Contracting: A Program Example A contingency contract sets out the standards of and consequences for offender conduct during the program. Developed by the drug court judge, the supervision and treatment staff, and other participating agencies, it ensures that positive and negative behaviors are rewarded or penalized according to the number of rehabilitative tasks completed. In Oakland's diversion program called FIRST (fast, intensive, report, supervision, and treatment), the number of points achieved under the contract reflects the number of rehabilitative tasks completed. Over the life of the program, an offender's point total translates into rewards or sanctions. For example, an offender who achieves a high point total may have diversion reduced from 24 months to as few as six months and the diversion fee reduced from $220 to as little as $20. On the other hand, for an offender whose point total is low, the court may increase the intensity of supervision and treatment or impose a period of incarceration. The contract makes offenders accountable for their behavior and gives them control over their own rehabilitation, ultimately making them participants rather than self-described victims of the rehabilitation program. In addition, the court, supervision staff, and all participating agencies, having committed to the contingency contract, also are accountable to the offender and to each other for the contract's consequences. Oakland's FIRST diversion program (initiated in January 1991) has achieved a 50 percent graduation rate, about twice the number of successful diversions of the previous program. In addition, its felony recidivism rate is about half the old rate. Significantly, younger offenders placed in the program within three days of arraignment show nearly three times the success of younger offenders in the previous program. For the first time, Alameda County has been able to rent empty jail cells to neighboring counties, as FIRST diversion participants spent approximately 35,000 fewer days in custody over a two-year period. This represents a 45 percent reduction in incarceration time and a savings of more than $2 million for the county. The development of drug courts has been described as a golden opportunity to treat drug-using offenders in their communities with minimal incarceration, recidivism risk, and cost. In particular, U.S. Attorney General Janet Reno's support for drug courts and other alternative sanctions programs has drawn attention to the idea that we can do better than simply warehousing drug offenders in jails and prisons. However, with this opportunity comes a challenge: We must carefully and intelligently design and implement these programs or risk fulfilling the prophecy of the naysayers who say that nothing works. While local communities should be encouraged to create their own drug court programs, the federal government can play an important role by providing the technical assistance and funding incentives necessary to promote the adoption of proven design strategies. __________ Reprinted with permission of the American Correctional Association, Lanham, Maryland. This article is available for republication, translation, and abridgment by USIS and the press outside the United States.
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