Drug Courts as an Alternative to Incarceration in Light of the U.S.’s Shifting Marijuana Policy

I.               Marijuana Policy in the United States Today

November 6, 2012, marked a shift in drug policy in the United States, for while many voters took to the polls to elect a variety of political figures, voters in the states of Colorado and Washington passed two voter initiatives which marked a shift in drug policy in the United States.  At the beginning of  January 2014 recreational use marijuana dispensaries opened up in Colorado—Washington State’s dispensaries are not fully set up yet and may take until June—with people traveling from as far as Ohio to purchase some of the United States’ first legally sold recreational marijuana.

Other states have followed Colorado and Washington’s spirit.  Alaska has just recently submitted a petition with enough signatures to put the question of legalization on a ballot on August 19, making it one of four states and the District of Columbia which U.S. News and World Reports’s Steve Nelson believes may see such referendums.  In addition to recreational legalization, sixteen states have decriminalized possession of marijuana, with light sanctions of fines or minimal incarceration for those caught in possession.  It should be noted that this count included Colorado as it decriminalized before legalization.  Outside of recreational use, approximately twenty-two states already have medical marijuana programs in effect, with New York potentially becoming a twenty-third.

Given the present state of marijuana laws in the United States, these recent victories can be looked to as an indicator that public sentiments on drug usage are starting to shift, especially when one takes into account that for many, marijuana was once considered a gateway drug.  The current measures and initiatives for legalizing recreational marijuana may only be a handful of states, but they are also potentially indicative of the coming future regarding drug policies, both relating to marijuana and possibly even beyond.

With current reform measures in mind, it is well time that we begin to examine the treatment of drug offenses and alternative methods to incarceration, namely, the use of drug courts as an alternative sentencing method.  Because change won’t come overnight, especially considering the large variety of opinions on the topic of drug use as a whole, we must consider a middle ground that addresses not only state interest in enforcing drug laws, but also the changing sentiments of the American public relating to drug use, especially in light of incarceration statistics.

II.             What are Drug Courts?

Drug courts are intended to be a rehabilitative-centric method of alternative sentencing focusing on the treatment of drug-addicted individuals who comport with eligibility requirements.  There are multiple different types of drug courts at various stages of the criminal justice system, each with a focus tailored to assist the types of individuals at whom these courts are aimed.  Such focused drug court models include DWI Court, Juvenile Drug Court, Reentry Drug Court, and Family Dependency Treatment Court (better known as Family Drug Court) as well as the newest model of drug court: Veterans Treatment Court.

In order to be referred to drug court, an individual must meet eligibility requirements.  These can vary according to the various state and local guidelines and will typically include specific guidelines for the type of drug court model being utilized.  In general, drug courts do not accept violent offenders and, in cases which have victims, the courts typically require the victim’s consent as well as restitution.

Once accepted, drug courts aim to treat the drug addicted individuals who qualify for the program.  Participants are supervised closely for a minimum of one year, and are provided intense rehabilitation and related services so that they not only get clean, but stay sober.  Additionally, participants are held accountable and subjected to regular and random drug tests; required to appear in court for progress evaluations; and rewarded or sanctioned depending on how well they fulfill their obligations to the court, society, themselves, and their families.

III.           How Can Drug Courts be Used Today?

Let’s face it, America incarcerates a lot of people.  And by a lot, I mean that according to one infographic using data from organizations such as the Vera Institute of Justice, the NAACP, and SUNY Suffolk and Albany, the United States has an incarceration rate of 760 inmates per 100,000 persons.  In 2010, the United States had around 2,000,000 inmates throughout a prison system that costs $39,000,000,000 to run.

The breakdown of offenders in the federal prison system reveal that of that number, 46.8% of inmates are serving drug-related prison sentences.  The second largest number after that is immigration, coming in at 11.7%.  The most shocking comparison?  There are almost 1.5 times more federal inmates serving time for drug-related charges than all of the violent crime categories combined.  Some middle ground must be found, and that middle ground is the use of drug courts as alternative sentencing.

Drug courts are not a new invention, nor is their use as alternative sentencing schemes.  The first drug court dates back to 1989, where criminal justice personnel in Miami, Florida sought to create alternative methods for handling the increases in caseloads and prison overcrowding caused by the War on Drugs.[1]  From the beginning, drug courts were intended to handle drug crimes in a way that was radical compared to the sentiments of the tough on crime ideology of the 1980s: helping offenders[2].

If for no other reason than this, drug courts are a good middle ground for bridging the current state interest in the enforcement of drug laws with the current and potential future leniency with which the American public might wish to treat drug offenses: it acts as a rehabilitative measure which diverts drug-addicted individuals from prisons while at the same time upholding state and local-mandated eligibility requirements, preferring non-violent offenders, and holding participants accountable for their obligations under the program.  Going further, drug courts have been proven to work.

According to the National Association of Drug Court Professionals (NADCP), drug courts work, and are the most effective justice-based drug-addiction intervention methods.  A NADCP fact sheet states that drug courts not only reduce crime, but also save money, ensure compliance, combat addiction (particularly meth), and restore families.

Some relevant facts include that 75% of drug court graduates are arrest-free for at least two years after leaving the program, and long-term outcomes of drug courts involve “reductions in crime last at least 3 years and can endure for over 14 years.”  Drug courts save between $3,000 and $13,000 per participant, and every $1.00 invested in drug courts save taxpayers $3.36 in criminal justice costs (including other offsets from reduced victimization and healthcare, that number increased as high as $27).  Participants in drug court programs are six times more likely to stay in treatment long enough for it to be effective.  The programs reduce methamphetamine use by more than 50% compared to outpatient treatment, with the length of participant’s sobriety quadrupling compared to eight other programs.  Finally, family re-unification is 50% higher for Family Drug Court participants, with the children of such participants “spend[ing] significantly less time in out-of-home placements such as foster care.”

In 2005, there were drug courts in every state, including 1,481 operating Adult Drug Courts, 388 Juvenile Drug Courts, and 154 Family Drug Courts, with another 453, 127, and 91 planned for each respective model.[3]  As of June 30, 2013, there were 2,734 drug courts operating in every state and territory, a sharp increase from just eight years prior.  However, the NADCP says that these courts serve only a fraction of the approximate 1.2 million drug-addicted individuals caught up in the justice system.  This may be the result of some common misconceptions regarding drug courts, including that they have not lessened increases in drug abuse or lowered prison costs, that they only focus on first-time or nonviolent offenders, or that they are simply ineffective.  The NADCP has responded by asserting that its data shows that drug courts are “the most successful justice intervention for substance abusing offenders.”  In fact, the NADCP frequently publicly responds to criticisms of the system which may hamper its utilization, as shown by its “Setting the Record Straight - Criticisms Answered” page.

This is where practitioners can come in: by learning the roles they would play in the system and advocating for its use.  Every state, the District of Columbia, the Virgin Islands, and Puerto Rico have a drug court coordinator listed on NADCP’s website.  These individuals handle multiple aspects of the drug court system, including creating drug courts, providing educational resources, and working with state legislatures to ensure appropriate funding.  Additionally, the National Drug Court Institute (NADCI) has a full website dedicated to training and research, with information tailored to the many components of the criminal justice system.  The National Center for DWI Courts has a similar website set up as well.  By utilizing these resources, practitioners from every aspect of the criminal justice system can work together to create and run effective drug court systems.

If changes in marijuana policy are indicative of the American public’s changing policy on drug usage, then now is the time to start advocating for the expansion of drug courts.  These programs provide alternative sentencing for drug-addicted offenders, have a positive effect on the system, and may help to decrease the high numbers of inmates currently incarcerated for drug-related offenses.  It would be a disservice not to consider such programs as a viable option for handling drug offenses.

Trevor Addie

Junior Staffer, Criminal Law Practitioner 

Image by U.S. DOJ via Wikimedia Commons. 

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[1] Eric L. Jensen and Clayton Mosher, Adult Drug Courts; Emergence, Growth, Outcome Evaluations, and the Need for a Continuum of Care, 42 Idaho L. Rev. 443, 443-444 (2006).

[2] Id.

[3] Id.