Drug Courts

Allison C. Colker, Esq.

December 31, 2004

Introduction

Prison overcrowding and criminal recidivism are enormous problems in the criminal justice system. Yet, states and municipalities cannot afford to continue to build new jails and prisons. A significant number of those in prison or jail are there for drug related crimes. One solution to these problems is treatment in lieu of incarceration for drug offenders. Criminal offenders who use drugs can receive drug treatment instead of serving time in jail or prison. Once their addictions are treated, drug offenders are less likely to commit future crimes. This frees up prison cells and resources for more serious offenders. Governors and legislators in several states have recently expressed greater interest in revamping sentencing laws for drug offenses and increasing substance abuse treatment for those moving through the criminal justice system.

Overview

The first drug court was established in Florida in 1989. Since then 697 have been established in all 50 states. The popularity and success of drug courts has grown to the point that legislators in 28 states identified the issue as a high priority for the 2002 legislative session, according to a survey conducted by the Health Policy Tracking Service.

Drug courts often are confused with diversion programs and vice versa. They are actually two different models of treatment within the criminal justice system. The two models are similar in that offenders are sentenced to a drug treatment program rather than to jail or prison; however, there are many key differences between the two models. Drug courts differ from diversion in that most drug courts are probation-based or post-plea programs. Also, in drug courts, the judge remains active in the offender's treatment through the offender's regular appearances in the drug court and through judicial oversight of the treatment. Furthermore, in the drug court model, the judge has much more discretion to impose prison sentences for failure to participate in treatment and remain drug free, the threat of which coerces many offenders to report to treatment and not use drugs. Conversely, most diversion programs are pre-plea programs. In diversion, the offender is placed on probation and the case manager or probation officer oversees the offender's treatment. In the diversion model, the judge has limited discretion to impose sentences for the offender's failure to comply with the terms of probation.

Definitions

A drug court is defined as "a special court given the responsibility to handle cases involving drug-addicted offenders through an extensive supervision and treatment program" ^(1).In the drug court model, all intervenors work together to force the offender to deal with his or her addiction. These intervenors include defense counsel, prosecutors, judges, law enforcement and correctional personnel, probation officers, educational and vocational experts, and treatment providers. In addition, drug courts ensure consistent judicial decisions and enhance the coordination of agencies and resources, thus improving the program's cost-effectiveness ⁽²⁾.

Key Components of Drug Courts

The National Association of Drug Court Professionals (NADCP) identifies 10 key components of drug court ^(3):

Drug courts integrate alcohol and other drug treatment services with justice system case processing.

Using a nonadversarial approach, prosecution and defense counsel promote public safety while protecting participants' due process rights.

Eligible participants are identified early and promptly placed in the drug court program.

Drug courts provide access to a continuum of alcohol, drug, and other related treatment and rehabilitation services.

Abstinence is monitored by frequent alcohol and other drug testing.

A coordinated strategy governs drug court responses to participants' compliance.

Ongoing judicial interaction with each drug court participant is essential.

Monitoring and evaluation measure the achievement of program goals and gauge effectiveness.

Continuing interdisciplinary education promotes effective drug court planning, implementation and operations.

Forging partnerships among drug courts, public agencies and community-based organizations generates local support and enhances drug court program effectiveness.

Drug Court Programs

Drug courts began as diversionary programs for less serious offenders who are charged with simple drug possession or under the influence. Because drug courts have succeeded in controlling the drug use and criminal behavior (recidivism) of offenders, communities have broadened such courts to serve drug-using offenders who are charged with non-drug offenses. Currently, most drug courts are probation-based or post-plea programs rather than diversionary programs ^(4).

Some drug courts also serve as post-incarceration programs. The most serious offenders typically are sentenced to incarceration rather than to treatment. These offenders usually are sent directly to state prison, but those who are not sent to prison may be sent to county jail for up to one year. Upon release from jail, the drug court becomes an intensive and comprehensive way to control the offender's drug use and criminality. This usually involves monitoring by the drug court judge, weekly supervision by probation officers, daily drug testing, and drug treatment sessions. Traditional court supervision at most would include is probation supervision, drug testing once a month and judicial monitoring ^(5).

A critical issue for drug courts is whether violent offenders should be eligible. The original appropriation of federal funds for drug courts excluded "violent offenders" from participation. Currently, experts--including former proponents of that restriction--believe that the excluded offenders are among those most in need of the supervision, drug testing and control provided by drug courts ^(6).

Some jurisdictions have specialized drug courts called "Comprehensive Drug Court Systems." Denver, Colorado; Minneapolis, Minnesota; and Tampa, Florida have successful Comprehensive Drug Court Systems that deal with all drug-using offenders while they are in the community, placing those offenders in appropriate drug court tracks that match the intervention level and commitment of resources with each offender's needs and with the needs of the community. In Comprehensive Drug Court Systems, all arrestees are drug-tested, and arrestees who are found to have a drug abuse problem are monitored by the drug court team, led by the judge ^(7).

The drug court model varies among jurisdictions. The structure and design of drug court programs are established locally to meet the needs of each community. Entities that are involved in the planning and implementation of a drug court program include law enforcement, criminal justice, substance abuse treatment, educational and vocational entities, and community anti-drug organizations ^(8).

Drug courts bring many advantages to the larger community. Drug court programs free limited jail and prison space for habitual and violent criminals. Furthermore, a significant cost savings is associated with drug courts. The cost to incarcerate drug-using offenders is between $20,000 and $50,000 per person per year, and it can cost as much as $80,000 to build a prison cell. Conversely, it costs less than $2,500 per person per year to sentence drug-using offenders to a comprehensive drug court system ^(9).

Many experts believe that coerced participation in drug treatment is just as effective--or more effective--than non-coerced treatment. Drug courts rely on sanctions for program violations that include incarceration, increased drug-testing and intensive supervision. In traditional courts, drug-using offenders receive little jail time, supervision, drug testing or treatment, so they have no reason to change their behaviors ^(10).

Drug Court Research

The National Center on Addiction and Substance Abuse at Columbia University conducted a review of research findings on drug court. The review found that drug court research shows ^(11):

Drug courts provide more comprehensive and closer supervision of the drug-using offender than other forms of community supervision.

Drug use and criminal behavior are substantially reduced while clients are participating in drug court.

Criminal behavior is lower after program participation, especially for graduates.

Drug courts generate cost savings, at least in the short term, from reduced jail/prison use, reduced criminality and lower criminal justice system costs. For every $1 spent on drug court, a $10 savings is realized.

Drug courts have been successful in bridging the gap between the court and the treatment/public health systems and spurring greater cooperation among the various agencies and personnel within the criminal justice system, as well as between the criminal justice system and the community.

Drug Court Statistics

According to the Office of Justice Programs Drug Court Clearinghouse and Technical Assistance Project, as of June 20, 2001, there were ^(12):

697 Drug Courts in Operation in the 50 States

483 Adult Drug Courts

167 Juvenile Drug Courts

37 Family Drug Courts

10 Combination Adult/Juvenile/Family Drug Courts

427 Drug Courts in the Planning Process

257 Adult Drug Courts

113 Juvenile Drug Courts

49 Family Drug Courts

8 Combination Adult/Juvenile/Family Drug Courts

All 50 states, the District of Columbia, Guam, Puerto Rico and two federal districts have adult drug court programs operating or being planned (including Native American Tribal Courts).

More than 1,500 judges have served as drug court judges (including 39 percent who were former prosecutors, 32 percent who were former defense attorneys, and 30 percent who served as both prosecutors and defense attorneys).

Thirty states have enacted legislation relating to the planning, operation and/or funding of drug courts (including three that allocated tobacco settlement funds for drug courts).

Eight states have introduced legislation related to the planning, operating and/or funding of drug courts.

Ten states have court rules related to drug courts.

Two Native American tribal councils have enacted legislation related to the planning/operation of drug court programs.

According to the OJP Drug Court Clearinghouse and Technical Assistance Project, as of December 2000 ^(13):

More than 300,000 adults and 12,500 juveniles had enrolled in drug courts to date;
73,000 adults and 4,000 juveniles have graduated;
There is a more than 70 percent retention rate, which means that more than 70 percent of offenders who enroll in drug court remain in the program;
75 percent of drug court participants were previously incarcerated;
More than 1,000 drug free babies were born to participants;
More than 3,500 parents were able to regain custody of their children;
More than 4,500 re-engaged in child support payments; and
73 percent retained or obtained employment.

Drug Courts in the 50 States

Currently, all 50 states have or are planning drug courts. The structure of each state's drug court program is unique; therefore, it is impossible to describe a typical drug court program. Descriptions follow of the drug courts in Florida, the first state to establish a drug court, and Delaware, the first state with a statewide drug court program. At the end of this section, table 1 summarizes the key characteristics of each state's drug court program.

Florida and the First Treatment-Based Drug Court

The drug court movement began when the first treatment-based drug court in the nation was created in Florida in 1989. Dade County (Miami, Fla.) developed the drug court concept because of a federal mandate to reduce the inmate population or lose federal funding. In recognition of the severity of the situation, the Florida Supreme Court directed Judge Herbert Klein to research the problem. Judge Klein concluded that a great majority of criminal inmates were incarcerated because of drug charges and were returning to the criminal justice system because of underlying drug addiction problems. Therefore, Florida recognized 1) the need to couple the delivery of treatment with the criminal justice system and 2) the need for strong judicial leadership and partnerships to join treatment services and the criminal justice system. This led to the development of the model for treatment-based drug courts ^(14).

As of September 2002, Florida has ^(15):

Thirty-seven operational adult drug courts,
Four planned adult drug courts,
Twenty-one operational juvenile drug courts,
One planned juvenile drug court,
Eleven operational dependency drug courts,
Four planned dependency drug courts, and
Two reentry drug court programs.

Florida has both pretrial adult drug courts and post-conviction adult drug courts. A pretrial adult drug court is a diversionary program in which, if the offender successfully graduates from the program, the charges pending before the court are dismissed. A post-conviction adult drug court is a post-plea program in which the offender pleads guilty to or is convicted of the offense and then is sentenced to treatment as a condition of probation and/or a suspension or reduction in the length of a sentence of incarceration ^(16).

Delaware and the First Statewide Drug Court Program

Delaware's Drug Court Program initiated full operation in April 1994 and expanded into the first statewide program in the country in 1997. The drug court processes cases on two tracks, Track I and Track II ^(17).

Track I targets defendants who are arrested while on Superior Court probation and charged with one or more drug offenses without a minimum mandatory sentence. Within 14 to 21 days of arrest, a violation hearing is held to resolve both the violation and the new charge. If a plea agreement is entered into to resolve both the violation and the new charge, a punishment and treatment program are established. The Track I judge actively monitors each case. If no plea agreement is entered into, the violation is heard and a trial for the new charge is scheduled within 90 days of arrest ^(18).

Track I has successfully expedited the resolution of charges stemming from offenses committed by individuals on probation. Many of these offenders are quickly referred to residential substance abuse treatment and then to outpatient treatment. A recent study showed that those who successfully completed Track I treatment had lower recidivism rates (were less likely to be re-arrested) within 18 months of release. Statistics also show that this program has successfully reduced the number of drug-addicted babies born to previously addicted mothers who completed Track I^(19).

Track II targets defendants with no or minimal prior felony convictions who are arrested for drug offenses and are charged with offenses other than trafficking or delivery (which carry minimum mandatory sentences). Defendants who are eligible for diversion waive their right to a jury trial and agree that, if they do not comply with the diversion conditions, they will have a stipulated fact trial. At monthly hearings, defendants appear before the Track II judge, who monitors the defendant's progress in the drug treatment program. The case against the defendant is dismissed upon successful completion of the program requirements ^(20).

The Track II diversion program had had great success in placing qualified defendants into substance abuse treatment. As of Dec. 31, 1999, more than 1,700 people had entered the diversion program in New Castle County, of which 63 percent have successfully graduated or were still active in treatment. Significantly fewer graduates were re-arrested within 18 months of graduation from the program than those who were terminated from the program ^(21).

50-State Overview

Table 1 summarizes drug court activity in the 50 states. The table distinguishes between drug courts that have been operating for more than two years, drug courts that were recently implemented and drug courts that are being planned. These designations encompass all types of drug courts (adult, juvenile, family, combined and tribal). A state can have more than one of these designations because it might have a drug court that has been operating for more than two years, another drug court that was recently implemented and yet another drug court that is being planned.

The table also distinguishes between juvenile drug courts, family drug courts, combined drug courts (adult/juvenile/family, adult/juvenile, juvenile/family or adult/family) and tribal drug courts. These designations encompass all stages of drug courts (operating over more than two, recently implemented and being planned). There is no designation for adult drug courts because all 50 states have or are planning adult drug courts.

Table 1. Drug Courts in the 50 States

State

Operating More Than Two Years

Recently Implemented

Being Planned

Juvenile

Family

Combined

Tribal

AL

X

X

X

X

X

X

X

AK

X

X

X

X

X

X

AZ

X

X

X

X

X

X

X

AR

X

X

X

X

CA

X

X

X

X

X

X

CO

X

X

X

X

X

X

CT

X

X

X

X

X

DE

X

X

FL

X

X

X

X

X

GA

X

X

X

X

X

HI

X

X

X

X

X

ID

X

X

X

X

X

X

IL

X

X

X

X

IN

X

X

X

X

IA

X

X

X

X

KS

X

X

X

X

X

KY

X

X

X

X

X

LA

X

X

X

X

ME

X

X

X

X

X

X

MD

X

X

X

X

X

MA

X

X

X

X

X

MI

X

X

X

X

X

X

MN

X

X

X

X

X

MS

X

X

X

X

MO

X

X

X

X

X

MT

X

X

X

X

X

X

X

NE

X

X

X

X

X

NV

X

X

X

X

X

X

X

NH

X

X

X

NJ

X

X

X

X

X

NM

X

X

X

X

X

X

NY

X

X

X

X

X

NC

X

X

X

X

X

X

ND

X

X

X

X

X

OH

X

X

X

X

X

OK

X

X

X

X

X

X

X

OR

X

X

X

X

X

X

X

PA

X

X

X

X

X

RI

X

X

X

X

SC

X

X

X

X

X

SD

X

X

X

X

X

X

TN

X

X

X

X

X

TX

X

X

X

X

X

X

UT

X

X

X

X

X

X

VT

X

X

X

VA

X

X

X

X

X

WA

X

X

X

X

X

X

WV

X

X

X

WI

X

X

X

X

X

X

WY

X

X

X

X

X

X
Sources: OJP Drug Court Clearinghouse and Technical Assistance Project, Summary of Drug Court Activity by State and County (Washington, D.C.: OJP, May 27, 2004). OJP Drug Court Clearinghouse and Technical Assistance Project, Summary of Drug Court Activity by State and County Juvenile and Family Drug Courts (Washington, D.C.: OJP, November 7, 2003). OJP Drug Court Clearinghouse and Technical Assistance Project, Summary of Drug Court Activity by State and County Tribal Drug Courts (Washington, D.C.: OJP, November 7, 2003).

Cost Benefits of Drug Courts

Many cost benefits are associated with drug courts because treatment in lieu of incarceration results in savings in jail and prison costs, reduced criminal activity, savings in public assistance costs resulting from employment of drug court graduates, savings in foster care costs resulting from parental regaining of custody of minor children, currency in child support payments, savings in medical and related costs, and savings in other system costs ^(22).

Savings in Jail/Prison Costs

The Drug Court Clearinghouse conducted a survey of adult drug courts in June 2000 and June 2001. The following results were reported ^(23):

Median Reported

Average Reported

2000

2001

2000

2001

Estimated annual per program jail/prison days saved

12,458 days

6,900 days

4,015 days

10,333 days

Estimated annual per program costs saved

$903,700

$201,937

$330,000

$667,694

Courts provide this information using estimated costs for the jail or prison days that would have been imposed on drug court participants had their cases gone through the traditional court process based on prevailing statutory provisions and sentencing practices. Jail prison day costs are calculated at a minimum rate of $40 per day, but usually are much greater; this daily cost does not include jail or prison construction costs. Depending upon the nature and extent of treatment and ancillary services provided, daily costs of drug court program participation and services typically range between $8 and $14. The actual number of days and costs saved is correlated with the number of people in the drug court program. Furthermore, jurisdictions also report that the jail and prison capacity made available as a result of the drug court program allows them to use this capacity for offenders who are public safety risks ^(24).

Estimated Reductions in Criminal Activity

Jurisdictions that have implemented drug court programs report substantial reductions in recidivism based on various measures. The most notable measures are 1) significantly lower arrest and conviction rates for both drug court participants and graduates and 2) significantly reduced and, in most cases, eliminated drug use, indicated by drug test results. Recidivism rates continue to be significantly reduced--ranging between 1 percent and 20 percent--for drug court graduates. Drug court participants are drug tested weekly or more often, and the results of such tests indicate substantial reductions in drug use. Positive test results typically are 18 percent overall and decrease as the period of program participation increases. Defendants under probation supervision are drug tested much less frequently, if at all, and their positive test results are reported to be at least three times higher ^(25).

Estimated Rate of Employment for Drug Court Graduates (vs. Public Assistance)

Fewer than half of drug court participants had full- or part-time employment at the time they entered the program. Many participants were on public assistance upon program entry. A condition of graduation in most drug courts is employment or full-time study, and drug courts report that more than 90 percent of participants were employed by the time of graduation ^(26).

Custody and Child Support

More than 3,500 drug court participants with minor children regained custody of their minor children as a result of participating in drug court. These children had been cared for by relatives or were in foster care, which costs the state money in foster care payments. More than 4,500 additional drug court participants who were in arrears for child support payments when they entered the program became current in those payments ^(27).

Estimated Medical and Related Costs

Reductions in medical and related costs as a result of drug court programs are evident through several indicators, the most notable of which are 1) birth of drug-free babies and 2) referral to treatment for infectious diseases. More than 2,000 drug-free babies have been born to drug court participants. Experts estimate that the care and treatment costs for each child born addicted to drugs is a minimum of $250,000 for the first year of life, with additional medical and related costs that accrue in subsequent years until the child reaches age 18 estimated to be as high as $750,000. Researchers are just beginning to compile data on the frequency with which drug court participants are referred for treatment of infectious diseases identified during drug court screening. Substantial public health savings are expected to accrue through these referrals ^(28).

Other System Cost Savings

Drug courts achieve substantial costs savings in a number of other areas, including, but not limited to 1) savings in probation supervision costs and 2) other criminal justice system savings. Costs of intensive probation for supervision services only (noninclusive of treatment or other support services) have been estimated at $7,200 per person per year. Costs of routine probation (less frequent contacts) have averaged $4,700 per person per year. The per person cost of drug court participation is typically less than the cost of probation, and drug court provides significantly enhanced services and supervision. Other criminal justice savings include costs associated with arrest, adjudication, supervision, victimization, theft, increased police protection, medical assistance, food stamps, other public assistance, crime lab testing, grand jury, court process time (motions to suppress evidence and trial/juror), parole and probation ^(29).

GAO Report to Congressional Requesters

According to the United States Government Accounting Office's (GAO) April 2002 Report to Congressional Requesters Drug Courts: Better DOJ Data Collection and Evaluation Efforts Needed to Measure Impact of Drug Court Programs, the United States Department of Justice (DOJ) has not sufficiently managed its requirement that Drug Court Program Office-funded (DCPO) drug court programs collect and provide performance measurement and outcome data. Additionally, various research and administrative factors have hampered DOJ's ability to complete the National Institute of Justice-sponsored (NIJ) two-phase national impact evaluation study. DOJ's alternative plan to address the impact of federally funded drug court programs is not expected to provide information until year 2007. Therefore, DOJ continues to lack vital information that the Congress, the public, and other program stakeholders may need to determine the overall impact of federally funded drug court programs and to assess whether drug court programs are an effective use of federal funds. The GAO makes no recommendations in the report for improving DOJ's efforts to collect outcome and performance data on federally funded drug court programs and to address the need for more immediate data on the impact of these programs. In DOJ's April 3, 2002, written comments on a draft report, it noted that the GAO makes several valuable recommendations to improve the collection of data on the performance and impact of federally funded drug court programs and outlined steps it is considering to address some of the recommendations the GAO makes for improving DOJ's collection of data on the performance and impact of federally funded drug court programs ^(30).

Notes

"Facts on Drug Courts," URL=http://www.nadcp.org/whatis/facts.html; World Wide Web, December 11, 2002.
Ibid.
"Defining Drug Courts: The Key Components," URL=http://www.nadcp.org/whatis/key/Components.html; World Wide Web, December 11, 2002.
"Facts on Drug Courts," URL=http://www.nadcp.org/whatis/facts.html; World Wide Web, December 11, 2002.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
"Drug Courts Today," URL=http://www.ndci.org/courtfacts.htm; World Wide Web, December 11, 2002.
OJP Drug Court Clearinghouse and Technical Assistance Project, Drug Court Activity Update: Summary Information on All Programs and Detailed Information on Adult Drug Courts (Washington, D.C.: OJP, June 20, 2001), 1-2.
"Drug Courts Today," URL=http://www.ndci.org/courtfacts.htm; World Wide Web, December 11, 2002.
"Drug Court Program," URL=http://www.flcourts.org/osca/divisions/criminal/drugct/index.html; World Wide Web, December 11, 2002.
Ibid.
Eve Janocko, Court Operations Consultant, Office of the State Courts Administrator, e-mail to author, January 14, 2002.
"Delaware Drug Court," URL=http://courts.state.de.us/superior/drug.htm; World Wide Web, December 11, 2002.
Ibid.
Ibid.
Ibid.
Ibid.
OJP Drug Court Clearinghouse and Technical Assistance Project, Cost Benefits Reported by Drug Court Programs (Washington, D.C.: OJP, June 20, 2001).
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
Ibid.
United States Government Accounting Office, Drug Courts: Better DOJ Data Collection and Evaluation Efforts Needed to Measure Impact of Drug Court Programs (Washington, D.C.: GAO, April 2002).

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