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Drug Policy Alliance Drug Courts Are Not the Answer 2011

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Drug Courts
Are Not the
Answer:
Toward a
Health-Centered
Approach
to Drug Use

We are the Drug Policy Alliance
and we envision new drug policies
grounded in science, compassion,
health and human rights.
Please join us.

Copyright © March 2011
Drug Policy Alliance
All rights reserved
Printed in the
United States of America

This report is also
available in PDF format
on the Drug Policy
Alliance website:
www.drugpolicy.org/
drugcourts

No dedicated funds were
or will be received from any
individual, foundation or
corporation in the writing of
this report.

Table of Contents
2

Executive Summary

3

Introduction

5
7
8

Drug Courts and the Drug War
Stopgap Approaches to Systemic Problems
Sidebar: Disparate Impacts on People of Color

9
9
10
11
12
13
14
14
15

Understanding Drug Courts: What the Research Shows
Finding: Drug Court Research Is Often Unreliable
Finding: Drug Court Outcomes Are Not Markedly Better Than Probation
Finding: Incarceration Sanctions Do Not Improve Outcomes
Finding: Drug Courts Limit Access to Proven Treatments
Finding: Drug Courts May Not Improve Public Safety
Finding: Drug Courts May Not Reduce Incarceration
Sidebar: Drug Courts As Adjunct – Not Alternative – to Incarceration
Finding: Drug Courts May Not Cut Costs

16
16
16
17

Mixing Treatment and Punishment: A Faulty Approach
Fundamental Paradox of Drug Courts
Abstinence-Only and the Predominance of Punishment Over Treatment
Sidebar: Proposition 36: Better But Not Health-Centered

18
18

Toward a Health-Centered Approach to Drug Use
Recommendation: Reserve Drug Courts for Serious Offenses and
Improve Practices
Recommendation: Work Toward Removing Criminal Penalties
for Drug Use
Sidebar: Portugal’s Post-Criminalization Policy Success
Recommendation: Invest in Public Health, Including Harm
Reduction and Treatment

19
21
22

24

Conclusion

25

Works Cited

Executive Summary
This report seeks to address the lack of critical analysis that
stymies the policy discussion on drug courts, to foster a
more informed public debate on the 20-year-old criminal
justice phenomenon, and to encourage policymakers to
promote drug policies based not on popularity but on
science, compassion, health and human rights.
This report attempts to answer two questions: 1) What
impact have drug courts had on the problem they were created to address: the deluge of petty drug arrests that began
to overwhelm courts and fill jails and prisons in the 1980s?;
and 2) How do drug courts compare with other policy
approaches to drug use in terms of reducing drug arrests,
incarceration and costs as well as problematic drug use?
To answer these questions, the Drug Policy Alliance
analyzed the research on drug courts, other criminal justice
programs and non-criminal justice responses to drug use.
We also received input from academics and experts across
the U.S. and abroad. This comprehensive review of the
evidence reveals the following:
•	 Drug courts have not demonstrated cost savings,
reduced incarceration, or improved public safety.
Oft-repeated claims to the contrary are revealed to be anecdotal or otherwise unreliable. Evaluations are commonly
conducted by the creators of the programs being evaluated, and the result is research that is unscientific, poorly
designed, and cannot be accurately described as evidence.
Drug courts often “cherry pick” people expected to do well.
Many people end up in a drug court because of a petty drug
law violation, including marijuana. As a result, drug courts
do not typically divert people from lengthy prison terms.
The widespread use of incarceration – for failing a drug test,
missing an appointment, or being a “knucklehead” – means
that some drug court participants end up incarcerated for
more time than if they had been conventionally sentenced
in the first place. And, given that many drug courts focus
on low-level offenses, even positive results for individual
participants translate into little public safety benefit to the
community. Treatment in the community, whether voluntary or probation-supervised, often produces better results.
•	 Drug courts leave many people worse off for trying.
Drug court success stories are real and deserve to be
celebrated. However, drug courts also leave many people
worse off than if they had received drug treatment outside

2

the criminal justice system, had been left alone, or even been
conventionally sentenced. The successes represent only
some of those who pass through drug courts and only a tiny
fraction of people arrested.
Not only will some drug court participants spend more days
in jail while in drug court than if they had been conventionally
sentenced, but participants deemed “failures” may actually face
longer sentences than those who did not enter drug court in the
first place (often because they lost the opportunity to plead to
a lesser charge). With drug courts reporting completion rates
ranging from 30 to 70 percent, the number of participants
affected is significant. Even those not in drug court may be
negatively affected by them, since drug courts have been associated with increased arrests and incarceration in some cases.
•	 Drug courts have made the criminal justice system more
punitive toward addiction – not less. Drug courts have
adopted the disease model of addiction but continue to penalize relapse with incarceration and ultimately to eject from the
program those who are not able to abstain from drug use for a
period of time deemed sufficient by the judge. Unlike healthcentered programs, drug courts treat as secondary all other
measures of improved health and stability, including reduced
drug use and maintenance of relationships and employment.
Some people with serious drug problems respond to treatment
in the drug court context; not the majority. The participants
who stand the best chance of succeeding in drug courts are
those without a drug problem, while those struggling with
compulsive drug use are more likely to end up incarcerated.
Participants with drug problems are also disadvantaged by
inadequate treatment options. Drug courts typically allow
insufficiently trained program staff to make treatment
decisions and offer limited availability to quality and culturally
appropriate treatment.
Based on these findings, the Drug Policy Alliance recommends
better aligning drug policies with evidence and with public
health principles by:
•	 Reserving drug courts for cases involving offenses against
person or property that are linked to a drug use disorder, while
improving drug court practices and providing other options for
people convicted of drug law violations;
•	 Working toward removing criminal penalties for drug use to
address the problem of mass drug arrests and incarceration; and
•	 Bolstering public health systems, including harm
reduction and treatment programs, to more effectively and
cost-effectively address problematic drug use.

Drug Courts Are Not the Answer:
Toward a Health-Centered Approach to Drug Use

Introduction
Most drug courts have
done a poor job of
addressing participants’
health needs according
to health principles, and
have not significantly
reduced participants’
chances of incarceration.
They have also absorbed
scarce resources that
could have been better
spent to treat and supervise those with more
serious offenses or to
bolster demonstrated
health approaches, such
as community-based
treatment.

Forty years after the United States embarked on a war on
drugs, national surveys reveal that a large majority of
Americans now believe that drug use is a health issue.1
This social development has manifested in significant policy
change. Several states have passed legislation requiring public
and private health insurers to cover drug and mental health
treatment on par with treatment for other chronic health
conditions. On the federal level, the Paul Wellstone and
Pete Domenici Mental Health Parity and Addiction Equity
Act of 2008 and the even more expansive Affordable Care
Act of 2010 promise to make drug treatment much more
accessible within the mainstream health care system.
Nevertheless, U.S. policy remains dominated by a punitive
approach to drug use. This legacy of punishment – and its
inherent conflict with a health-centered approach – has
persisted throughout the 20-year-old drug court experiment.
There is no doubt that drug courts – programs that seek
to reduce drug use through mandated treatment and close
judicial oversight – were created and continue to be run
with unflagging dedication and concern for the health and
wellbeing of individuals and communities. Nor is there any
doubt that drug court judges and their staffs have helped
change, even save, many lives. Most drug court judges have
felt deep satisfaction in being able to help participants overcome chaos, illness and despair. There is, indeed, no shortage
of success stories. Many participants have had dramatic,
life-altering experiences in drug courts. Criminal justice
sanctions do indeed deter some people from using drugs,
and some people will stop their drug use when faced with
the threat of such sanctions. These observations, however,
do not end the discussion.
Most interventions help at least some people, and drug
courts are no exception. But it is important to consider the
full range of drug court impacts, both positive and negative,
on all participants as well as on the criminal justice and other
systems. It is also important to consider drug court outcomes
within the larger context of potential policy options and
practices to reduce drug arrests, incarceration and problematic drug use. In this light, the benefits of drug courts pale
considerably.
The issue is not whether drug courts do some good – they
undoubtedly do – but whether the proliferation of drug
courts is good social policy as compared with other available
approaches to addressing drug use. This report finds that,
based on the evidence, drug courts as presently constituted

www.drugpolicy.org

3

Introduction
continued

provide few, if any, benefits over the incarceration model on
which they seek to improve. Alternatives to incarceration for
drug possession remain essential, but better alternatives must
be adopted and incarceration for drug law violations should
be reduced through sentencing reform.
Sitting squarely within a framework of drug prohibition,2
most drug courts have done a poor job of addressing
participants’ health needs according to health principles,
and have not significantly reduced participants’ chances of
incarceration. They have also absorbed scarce resources that
could have been better spent to treat and supervise those
with more serious offenses or to bolster demonstrated health
approaches, such as community-based treatment.
Most drug courts have limited their own potential to improve
public safety by focusing largely on people who use drugs
but have little, if any, history of more serious offenses. Many
people end up in drug court because of a drug law violation –
many appear to be for marijuana.3 (The National Drug Court
Institute found marijuana to be the most prevalent drug of
choice among participants in at least 25 percent of drug courts
surveyed nationwide in 2007.4) In fact, a 2008 survey of drug
courts found that roughly 88 percent exclude people with
any history of violent offending, and half exclude those on
probation or parole or with another open criminal case.5
Moreover, about one-third of drug court participants do not
have a clinically significant substance use disorder.6 The same
survey found that 49 percent of drug courts actually exclude
people with prior treatment history and almost 69 percent
exclude those with both a drug and a mental health condition.
This report examines drug courts in light of the criminal
justice and health issues they were designed to address. It takes
as a premise that punishing people who have neither done
harm to others, nor posed significant risk of doing harm
(such as by driving under the influence), is inappropriate,
ineffective and harmful to individuals, families and communities. The report also recognizes that, whether the chronic
health issue in question is hypertension, diabetes or drug use,
punishing people for straying from their treatment plans,
falling short of treatment goals, or relapsing, is contrary to
core health principles.
The central thesis of this report is that there is an urgent need
for a non-criminal, health-centered approach to drug use.
This approach must be founded on the understanding – as
evidence consistently demonstrates – that the benefits of
punishment-oriented treatment programs for most people

4

whose illegal activity is limited to petty drug possession are
outweighed by the negative consequences. These negative
consequences include the lost opportunities of failing to dedicate criminal justice resources to more significant public safety
matters and of failing to pursue effective, health-oriented
policy interventions in response to drug use.
A health-centered approach would ensure that drug use or
the perceived need for treatment should never be the reason
that people enter the criminal justice system, and that the
criminal justice system should never be the primary path for
people to receive such help. Individuals’ drug problems can be
addressed, families and communities preserved, public health
and safety improved, and money saved by providing assistance
to people not only after but before drug use becomes problematic, before families fall apart, before disease spreads, before
crimes are committed and before drug use becomes fatal.
While there is no basis in principle or evidence-based policy
for bringing people into the criminal justice system (whether
to jail or drug courts) solely for a drug possession offense,
drug courts may be appropriate for people who have committed other offenses that require accountability, restitution and
possibly incarceration. With this in mind, this report includes
several relevant findings and recommendations.
The Drug Courts and the Drug War section of this report
describes the evolution of drug courts and puts them in the
context of current drug arrest practices and sentencing policies.
The next section, Understanding Drug Courts: What the
Research Shows, provides a careful review of drug court
research. It finds that claims about drug court efficacy are
methodologically suspect, that the impact on incarceration
is often negligible, and that costs are underestimated.
Mixing Treatment and Punishment: A Faulty Approach explores
how combining principles of treatment and punishment
distorts the delivery of effective legal and health services; how
this distortion further enmeshes people in the criminal justice
system for their drug use; and how punishment will always
dominate in this arrangement.
The Toward a Health-Centered Approach to Drug Use section
presents a framework for reducing the role of the criminal
justice system in what is fundamentally a health issue and for
expanding effective approaches that minimize the harms of
drug use. It also includes recommendations for improving
drug court practices by, among other things, focusing them
away from people facing petty drug charges.

Drug Courts Are Not the Answer:
Toward a Health-Centered Approach to Drug Use

Drug Courts and
the Drug War
Drug courts emerged as a direct response to the rapid
escalation of the war on drugs in the 1980s and 1990s.
The era saw bipartisan support for stepped-up enforcement
of low-level drug laws and enhanced criminal penalties for
the possession and sale of small amounts of illicit substances.7
In turn, millions of petty cases flooded the court system and
people charged with minor drug law violations received harsh
sentences that drastically increased the number of people in
jails and prisons.
Judges in courtrooms across the country became frustrated
as the same individuals repeatedly appeared in court on petty
drug charges or faced lengthy prison sentences for minor
drug violations. Out of this frustration grew multiple efforts
to turn the criminal courtroom into a site for therapeutic
intervention, where judges aimed to reduce drug use through
court-based interventions and court-supervised treatment.8
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

Because drug courts are developed locally, they tend to vary
significantly in their rules and structure. (Indeed, drug courts
are better understood as a category of approaches rather than
a single type.) Typically, however, drug court eligibility is
limited to people arrested on a petty drug law violation or
property offense.12 As noted previously, many of these appear
to be marijuana violations. The prosecutor exercises wide discretion in determining who is actually referred to drug court.
(Even where eligibility is met, about half of drug courts report
rejecting eligible individuals because of capacity reasons.13)
In most cases, participants must plead guilty as a prerequisite to entrance. Upon pleading guilty, they are mandated
to treatment or other social service programs. Abstinence is
monitored through frequent drug testing. Positive drug tests
and other program violations are punished with sanctions,
including incarceration and removal from the program.
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

Primary Drug of Choice Among Drug Court Participants
Percentage of Surveyed Drug Courts that Ranked Each Drug as the Leading Drug of Choice Among Participants
Urban

Suburban

9%

19%

20%

Rural

2%

23%

26%
38%

40%

25%

4%
4%

15%
30%
12%

7%

Alcohol

Heroin

Methamphetamine

Cocaine/Crack

Marijuana

Prescription Drugs

www.drugpolicy.org

26%

Source: Huddleston, West, Doug Marlowe and
Rachel Casebolt. Painting the Current Picture:
A National Report Card on Drug Courts and Other
Problem-Solving Court Programs in the United
States. National Drug Court Institute 2(1) 2008.

5

Drug Courts and the Drug War
continued

Today, nearly 6 in
10 people in a state
prison for drug law
violations have
no history of
violence or high-level
drug sales.

The U.S. locks up hundreds of thousands of people annually
for drug law violations that would not warrant imprisonment
in many European and Latin American countries, where
incarceration for drug possession alone is comparatively rare.23
Even for drug law violations that warrant imprisonment in
Europe, sentences are generally longer in the U.S.24 For example, a large-scale trafficking offense in Sweden (considered
to be one of the strictest European countries with respect to
drugs) merits a maximum prison sentence of 10 years.25
In the U.S., by comparison, for over two decades until 2010,
distribution of just 50 grams of crack cocaine (the weight of
one candy bar) triggered a federal mandatory minimum prison
sentence of 10 years.26 Even after the 2010 federal crack sentencing reform, distribution of just 28 grams of crack cocaine
triggers a mandatory minimum sentence of 5 years.27

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

In the U.S., the consequences of a criminal conviction,
particularly for a drug law violation, are severe and life-long.
People convicted of a felony, whether or not they are ever
incarcerated, face significantly diminished employment
opportunities and much lower lifetime earnings. They may
be prevented from voting and/or prohibited from accessing
student loans, food stamps or other public assistance.

The expansion of drug courts and other criminal justice programs that mandate treatment in the community (as opposed
to behind bars) over the last twenty years reflects a growing
sentiment that incarceration is not an appropriate, effective
or cost-effective response to drug use. At first glance, their
expansion might suggest that U.S. policies toward drug use
have become more compassionate and health-oriented; yet
the dominant policy response to drug use in the U.S. remains
one of criminalization and punishment.17
From both an international and an historical perspective,
current U.S. drug laws are abnormally severe. Following
President Reagan’s call for a major escalation of the war on
drugs in 1982, annual drug arrests tripled to more than 1.8
million in 200718 (before declining to 1.6 million in 200919).
This increase primarily involved not serious drug trafficking
or sales, but possession; 79 percent of the growth in drug
arrests during the 1990s was for marijuana possession alone.20
The number of people incarcerated for drug law violations
has increased 1,100 percent since 1980.21 Today, nearly
6 in 10 people in a state prison for drug law violations have
no history of violence or high-level drug sales.22

6

Criminal justice policies have not only limited the freedoms
and opportunities of people convicted of low-level drug
violations, but have also determined who gains access to limited
publicly funded treatment resources.
The country’s treatment system has not expanded
proportionately to meet the growth in criminal justice
referrals to treatment, which accounted for about 38 percent
of participants in publicly funded treatment programs by
2007 – including 162,000 people ordered to treatment for
marijuana that year.28 As a result, treatment access for people
seeking treatment voluntarily outside of the criminal justice
system has diminished.29 The proportion of treatment capacity
available to the hundreds of thousands of people who seek
treatment voluntarily each year (on their own volition or on
the recommendation of a loved one, health provider, employer
or other non-criminal justice source) fell from 65.1 percent
in 1997 to 62.5 percent in 2007.30
According to a 2007 Substance Abuse and Mental Health
Services Administration (SAMHSA) study, treatment spending fell from 2.1 percent to 1.3 percent of all health spending
between 1987 and 2003. During that time, private insurance
payments for treatment declined by 24 percent, while public

Drug Courts Are Not the Answer:
Toward a Health-Centered Approach to Drug Use

spending on treatment increased 7.5 percent annually (more
slowly than other health spending), likely to pay for treatment
mandated by the criminal justice system.31

For people with few resources, the criminal justice system
has become a primary avenue to treatment programs.
Nonetheless, many who enter the criminal justice system do
not actually receive such services. People who are in prison
and have a history of regular drug use are today less than half
as likely to receive treatment while incarcerated as in 1991.36
The criminal justice system may ultimately provide the least
help to the people with the greatest need.

In addition to capacity limitations that lead to lengthy
waiting lists, many people seeking treatment voluntarily
(i.e., without a criminal justice mandate) face significant barriers. Federal government data find that 37 percent of people
who want but do not receive treatment simply cannot afford
it, while another 15 percent don’t know how to access it.32
This suggests that people with more resources are better able
to get treatment when they want it, while those with fewer
resources have fewer treatment opportunities outside of the
criminal justice system.

The country’s more than 2,100 drug courts were estimated
to have roughly 55,000 participants in 2008,37 representing
a tiny fraction of the more than 1.6 million people arrested
on drug charges every year.38 That is, there is one drug court
for every 26 drug court participants – and, for every one drug
court participant, there are 29 other people arrested for a
drug law violation who are not in a drug court.

Stopgap Approaches to Systemic Problems

Drug courts have flourished at the expense of support
services that are more accessible and that are more effective
at improving health and reducing crime.33 The focus on drug
courts has distracted attention from the real, systemic issues
that drive the scale and cost of incarceration for drug law
violations34 – primarily aggressive policing strategies and
draconian sentencing laws.35

Although drug courts tend to describe their participants as
“drug-involved,” this tends to obscure the reality that an overwhelming number of drug court participants wind up there
for a drug law violation – often petty possession. Most drug
courts continue to exclude even the lowest-level sellers and
the vast majority of courts exclude people with any prior
conviction or current charge for a violent offense (due partly
to an ill-advised federal funding requirement).39

Even if drug courts
were dramatically
expanded to scale to
cover all people arrested
for drug possession,
between 500,000 and
1 million people would
still be ejected from
a drug court and
sentenced conventionally
every year.

With drug court completion rates ranging widely from
30 percent to 70 percent,40 it is probably optimistic to assume
that even 25,000 people will complete a drug court program
each year.* The rest are deemed to have “failed.” Even if drug
courts were dramatically expanded to scale to cover all people
arrested for drug possession, between 500,000 and 1 million
people would still be ejected from a drug court and sentenced
conventionally every year.41 As this report discusses, however,
drug courts should not focus their resources on those arrested
for simple drug possession.

www.drugpolicy.org

Absent policies to stem the flow of people into (and retention
within) the criminal justice system for petty drug law violations, drug courts and other criminal justice-based treatment
programs will not meaningfully reduce the imprisonment of
people who use drugs.42

*

According to the Government Accountability Office (GAO), drug court completion
rates are not directly comparable because “drug court programs have different program
completion requirements, the rates were measured over varying time periods, and
study designs can affect the completion measures.” There is thus no single average rate
of completion.

7

Disparate Impacts on
People of Color
Drug law enforcement practices and sentencing
policies have had profound, disparate impacts on
people and communities of color. By 2003, African
Americans were arrested for drug law violations at
a rate 238 percent higher than whites43 and African
Americans and Latinos comprised two-thirds of
people incarcerated for drug law violations44 – even
though they use and sell drugs at rates comparable
to whites.45
Mass arrests and incarceration of people of color –
largely due to drug law violations46 – have hobbled
families and communities by stigmatizing and
removing substantial numbers of men and women.
In the late 1990s, nearly one in three African-American
men aged 20-29 were under criminal justice supervision,47 while more than two out of five had been
incarcerated – substantially more than had been
incarcerated a decade earlier and orders of magnitudes higher than that for the general population.48
Today, 1 in 15 African-American children and 1 in
42 Latino children have a parent in prison, compared
to 1 in 111 white children.49 In some areas, a large
majority of African-American men – 55 percent in
Chicago, for example50 – are labeled felons for life,
and, as a result, may be prevented from voting and
accessing public housing, student loans and other
public assistance.
Unfortunately, drug courts may actually exacerbate
existing racial disparities in the criminal justice
system. First, drug courts may increase the number
of people of color brought into the criminal justice
system. An increase in drug arrests (an effect called
net-widening) has been documented following the

establishment of drug courts.51 Second, the number
of people of color incarcerated may increase;
net-widening brings in many people who do not meet
narrow drug court eligibility criteria.52 Third, African
Americans have been at least 30 percent more likely
than whites to be expelled from drug court53 due
in part to a lack of culturally appropriate treatment
programs,54 few counselors of color in some programs55 and socioeconomic disadvantages.56 Finally,
people who do not complete drug court are often
given a sentence that is significantly longer – in one
drug court, even two to five times longer – than if
they were conventionally sentenced in the first place
(often, because they have forfeited the opportunity
to plead to a lesser charge).57

Understanding Drug Courts:
What the Research Shows
Drug courts are some of the most-studied criminal justice
programs in recent years. Unfortunately, most of the existing research suffers major methodological shortcomings that
render oft-cited drug court data unreliable and misleading.
Attempts to generalize the findings of numerous drug court
evaluations – in studies called meta-analyses – have been
hamstrung by the lack of credible data in the original research.
Moreover, drug court evaluations, which are often conducted
by program developers (rather than independent researchers), largely focus on identifying best practices and improving
outcomes rather than fundamental policy questions, such as
whether a particular drug court reduces crime, incarceration
and costs and, if so, whether the drug court does so better
than other policy options.
As one researcher testified at congressional hearing in 2010,
“Over half of the criminal justice programs designated as
‘evidence-based’ programs in the National Registry of
Evidence Based Programs include the program developer as
evaluator. The consequence is that we continue to spend large
sums of money on ineffective programs (programs that do
no good, and in certain circumstances actually do harm). It
also means that many jurisdictions become complacent about
searching for alternative programs that really do work.”58
This appears to be true of drug courts. A close analysis of the
most reliable research studies finds that on the whole drug
courts, as currently devised, may provide little or no benefit
over the wholly punitive system they intend to improve upon.
Although many individuals will benefit from drug courts each
year, many others will ultimately be worse off than if they had
received health services outside the criminal justice system,
had been left alone, or even been conventionally sentenced.
Finding:
Drug Court Research Is Often Unreliable

Despite the large number of studies on drug courts, the poor
quality of that research has led many to conclude that there
is insufficient evidence to demonstrate that drug courts
reduce crime and drug use. As John Roman, senior researcher
at the Urban Institute, put it: “The central criticism is that
they employ convenience samples or compare drug court
participants with drug court failures, in effect stacking the
deck to ensure that the study finds a positive effect of drug
court.”59 Meta-analyses (i.e., studies that aggregate and analyze
data from multiple drug court evaluations) have been conducted in an attempt to provide more generalized and reliable
data; however, meta-analyses’ output is ultimately limited by
the quality of the data that went in.

www.drugpolicy.org

A 2006 meta-analysis report oft-cited by drug court supporters as conclusive evidence that drug courts reduce recidivism,
for example, warns that “The overall findings tentatively
suggest that drug offenders participating in a drug court are
less likely to reoffend than similar offenders sentenced to
traditional correctional options. The equivocation of this conclusion stems from the generally weak methodological nature
[of ] the research in this area.”60 Of the 38 studies included
in the meta-analysis, only four used “random assignment to
conditions” in order to protect against bias. A separate 2006
meta-analysis also frequently relied upon by drug court proponents as proof of drug courts’ efficacy found that the studies
it depended on for its analysis had measured recidivism rates
only for drug court participants who successfully completed
the program – a group that accounted, on average, for only
50 percent of those who originally enrolled.61
The poor quality of the research has led federal Government
Accountability Office (GAO) analysts and other researchers
to conclude that the drug court research lacks critical insight
into what happens to participants once they are expelled or
graduate, and provides limited evidence as to whether drug
courts change behavior and lessen recidivism and re-arrest.62
In an attempt to produce more reliable findings on drug court
outcomes, the National Institute of Justice funded a five-year,
national drug court study – the Multi-Site Adult Drug Court
Evaluation (MADCE) – that aims to address many of the
shortcomings of existing drug court research. Preliminary
results of MADCE, which appears to be better designed than
previous studies, were released in 2009 and 2010, and are
considered in this report.

Although many individuals
will benefit from drug courts
each year, many others
will ultimately be worse off
than if they had received
health services outside the
criminal justice system, had
been left alone, or even been
conventionally sentenced.
9

Understanding Drug Courts:
What the Research Shows
continued

Finding:
Drug Court Outcomes Are Not
Markedly Better Than Probation

Unsound drug court studies have repeatedly claimed that drug
courts reduce drug use and criminal behavior, but significant
methodological shortcomings call their positive findings into
question. Indeed, preliminary results of the lengthiest and
largest study so far, the MADCE, find that drug court participation did not lead to a statistically significant reduction
in re-arrests.63
Drug court evaluations that have reached more positive
conclusions than the MADCE study have, in most cases,
failed to account for the practice of “cherry-picking,” tend
to use improper comparison groups, and frequently fail to
include follow-up data. Ultimately, most drug court studies
are so poorly designed that they reveal only the obvious:
that the successes succeed and the failures fail.64
Cherry-picking is the selection of people deemed more
likely to succeed. Many drug courts cherry-pick participants
for at least two reasons. First, prosecutors and judges may
cherry-pick defendants because of the limited capacity of
the drug court combined with the political importance of
achieving high success rates. Second, some drug courts may
opt to knowingly enroll persons who do not need treatment,
but for whom drug court participation is seen as the only
way to avoid a criminal record for a petty drug law violation.
This may not be an insignificant occurrence. As mentioned
previously, about one-third of drug court participants do not
have a clinically significant substance use disorder.65
As a result of cherry-picking, people who suffer from more
serious drug problems are often denied access to drug court.66
This, in turn, gives rise to misleading data because it yields
drug court participants who are, on the whole, more likely to
succeed than a comparison group of conventionally sentenced
people who meet drug court eligibility criteria but who are
not accepted into the drug court.

ineligible for drug court, that was eligible but opted for
conventional sentencing, or that was expelled from or dropped
out of drug court.67 Although these biases can be mitigated
to some extent by statistically accounting for people’s
background and risk factors, including motivation and drug
use severity, most drug court evaluations do not account for
these biases.68
A 2005 Government Accountability Office (GAO) analysis
of drug court research attempted to extract conclusions based
on studies that met very basic reliability standards. The GAO’s
review found some positive drug court impacts on recidivism
while participants remained in the program (in comparison
with conventional sentencing), limited evidence that reductions in recidivism endure after program participation, and
no evidence that specific drug court components (including
incarceration sanctions) affect recidivism or program completion. The GAO concluded that drug courts’ impacts on drug
use are mixed.69
Three U.S. drug court program evaluations have used more
reliable, controlled designs: Maryland’s Baltimore Drug
Court, Arizona’s Maricopa County Drug Court and New
Mexico’s Las Cruces DWI Court. These three programs
randomly assigned people either to drug court or conventional
probation. The studies of these three programs are the most
rigorous drug court evaluations available. Importantly, even
these studies fall far short of establishing the efficacy of drug
courts under controlled conditions. Nor do they come close to
illustrating that drug courts are typically effective in practice.
For example, Baltimore’s drug court participants were less
likely to be re-arrested than the control group of probationers
during the first two years after the initial arrest.70 After three
years, however, this difference became statistically insignificant, with a stunning 78 percent of drug court participants
being re-arrested.71 Overall, drug court participants averaged
2.3 re-arrests, compared with 3.4 for the control group72 – a
difference that is statistically significant but which may not
warrant the substantial resources invested.

The use of non-equivalent treatment and comparison groups
may be the most prevalent and serious flaw in drug court
research. For example, many studies use a treatment group
comprised either of graduates only or of graduates and those
still in drug court, electing not to count the many who have
dropped out or been ejected from the program. That treatment group is then compared with either a group that was

Maricopa County’s drug court did not reduce recidivism or
drug use after 12 months.73 A 36-month follow up study
(which unfortunately excluded nearly 20 percent of original
study participants) found that, although Maricopa County
drug court participants were less likely to be re-arrested than
the control group, there was no difference in the average
number of re-arrests between the groups – probably because a
portion of drug court participants had a higher number
of re-arrests.74

10

Drug Courts Are Not the Answer:
Toward a Health-Centered Approach to Drug Use

Finding:
Incarceration Sanctions Do Not
Improve Outcomes

To manage drug court participant compliance, the National
Association of Drug Court Professionals (NADCP) encourages the use of rewards and sanctions, including incarceration
and program expulsion.78 Rewards might include praise from
the bench, reduced frequency of drug testing, reduced fees
or gift certificates. Sanctions, which grow more severe
(or “graduated”) with subsequent transgressions – including
continued drug use or drug relapse – might include warnings
from the bench, increased frequency of drug testing, increased
fees and incarceration in jail for days or weeks.

Las Cruces’ DWI court found no difference in traffic offense
reconviction rates, although DWI court participants’ reconviction rates for alcohol-related or serious offenses (including
simple and aggravated DWI) were slightly lower than for
probationers.75 Researchers cautioned that their sample sizes
were small, and that enhanced DWI sanctions implemented
in the state prior to the study may have “yielded the same or
very similar results as a very expensive individual and group
treatment program.”76

Research on the impact of “graduated sanctions” on
compliance suffers from many of the same problems as drug
court studies in general: a lack of data, site-specific findings
that cannot be generalized to other courts, and selection
bias, where drug court participants may be more likely to
comply with court directives than those not accepted into the
drug court.79 Moreover, research has failed to tackle critical
questions about sanctioning practices, including whether
incarceration sanctions in particular (i.e., jail time) add value
over a graduated sanctions framework that does not include
incarceration. (The multi-year, multi-site MADCE study
also does not address incarceration sanctions separately from
other sanctions.)

Because virtually no drug court collects or maintains good
data, it is unknown whether the Baltimore, Maricopa County
and Las Cruces findings are representative. But what is certain
is that any reliable data for one court cannot be assumed to
apply to another (even if they admit similar types of people)
because drug courts differ widely with respect to a host of
relevant factors – including their use of drug testing, sanctions, incentives, hearings, treatment and social services, and
judicial demeanor and experience.77

As the California Society of Addiction Medicine has noted,
not a single study has shown that incarceration sanctions
improve substance use treatment outcomes.80 Research also
suggests no benefit in reduced re-arrests. According to one
major study from the Washington State Institute for
Public Policy, for example, adult drug courts reported a
reduction in recidivism of 8.7 percent – significantly less
than reductions recorded in probation-supervised treatment
programs (18 percent) and on par with the reduction
recorded by programs offering community-based drug
treatment (8.3 percent), neither of which use incarceration
as a sanction.81

Ultimately, the most sound studies, including preliminary
findings from MADCE, suggest that despite a cosmetically
more health-centered approach most drug courts produce
remarkably similar outcomes to the conventional, wholly
punitive approach that such courts seek to improve upon.

California’s experience, too, calls these sanctions into question.
Since 2001, that state’s landmark probation-supervised treatment program, which does not allow incarceration sanctions,
has produced completion rates similar to those of drug courts
(See Sidebar: Proposition 36, page 17).

www.drugpolicy.org

11

Understanding Drug Courts:
What the Research Shows
continued

Despite this lack of evidence, the power of drug court judges
to order the incarceration of people who do not abstain from
drug use or who commit minor program violations (including missing a meeting or being obstinate) is thought by many
drug court proponents to be a critical component of drug
court success. Incarceration sanctions are standard in drug
courts and are even recommended by the NADCP.82 In at
least some jurisdictions, incarceration is the single most widely
utilized sanction despite the range of sanctions available to
judges.83 Each court determines its own policies for who is
incarcerated, for what reason, and for how long. For drug
court participants, this sanction can be severe.
Incarceration sanctions have been associated with a higher
likelihood of re-arrest and a lower probability of program
completion.84 A person’s sense of autonomy and motivation –
integral to progress in treatment – can be undermined if they
feel they are sanctioned unfairly.85 Moreover, for days or weeks
at a time, an incarceration sanction places a person who may
be struggling with drugs into a stressful, violent and humiliating environment, where drugs are often available (and clean
syringes almost never), where sexual violence is common
(and condoms rare), where HIV, hepatitis C, tuberculosis
and other communicable diseases are prevalent, where medical
care is often substandard, and where drug treatment is
largely nonexistent.
In drug court, incarceration for a drug relapse or a positive
drug test often interrupts the treatment process, disrupts a
person’s attempts to maintain employment and stable social
bonds, and reinforces the notion that the person is deviant.
The pain, deprivation and atypical, dehumanizing routines
that people experience while incarcerated can create long-term
negative consequences.86
As noted by the National Association of Counties, people
with mental illness – at least one in six of the prison population87 – are severely traumatized by incarceration.88 Although
only 30 percent of drug courts knowingly accept people with
co-occurring mental health and substance use disorders,89
the imposition of incarceration sanctions on these – and on
undiagnosed – individuals is counterproductive and creates
lasting harm.

12

Incarceration, when used to punish continued drug use or
relapse, is fundamentally at odds with a health approach to
drug use. In a treatment setting, relapse is met with more
intensive services. In drug court, relapse is often met with
temporary or permanent removal of treatment services.
Finding:
Drug Courts Limit Access to
Proven Treatments

Drug courts agree to provide participants with the services
they need to address their drug issues in exchange for compliance with the court’s conditions.90 However, drug courts
often fail to live up to their end of the bargain.
Drug courts often inadequately assess people’s needs and, as
a result, place them in inappropriate treatment. Overcrowded
court dockets leave judges unable to effectively manage
participant cases.91 Insufficiently trained court staff often
send participants to services irrespective of their specific
needs.92 Some courts use a “shotgun” approach in which they
subject participants to several programs with incompatible
philosophies.93 In many cases, referrals to treatment are made
not because the program is appropriate for the participant
but because a drug court-approved treatment provider has
an opening.94
Moreover, abstinence-only ideology continues to obstruct
appropriate treatment placement, particularly with respect
to opioid addiction. According to the National Academy
of Sciences’ Institute of Medicine, “methadone maintenance
has been the most rigorously studied [treatment] modality
and has yielded the most incontrovertibly positive results.”95
Methadone and other opioid-maintenance treatments effectively prevent withdrawal symptoms, decrease cravings
and overdose, and allow patients to maintain employment.96
Maintenance treatments are well-documented to reduce crime
and disease97 while saving between $498 and $3799 per dollar
invested.
Despite endorsements by Centers for Disease Control and
Prevention, the Institute of Medicine, SAMHSA, the National
Institute on Alcohol Abuse and Alcoholism, the National
Institute on Drug Abuse, the World Health Organization, and
even the National Association of Drug Court Professionals,

Drug Courts Are Not the Answer:
Toward a Health-Centered Approach to Drug Use

In a treatment setting,
relapse is met with
more intensive services.
In drug court, relapse is
often met with temporary
or permanent removal
of treatment services.
many, and perhaps most, drug courts continue to prohibit
methadone treatment or other maintenance therapies because
of an ideological preference for abstinence.100 This denial of
a highly successful treatment for opioid dependence nearly
guarantees that most opioid-dependent individuals will fail
in drug court.
To be sure, some treatment quality issues are not unique
to drug courts but are endemic to the larger publicly funded
treatment system.101 The lack of diverse, high-quality treatment options is particularly detrimental for people of color,
women and young people. Programs are predominantly
staffed by counselors who lack the training, skills and
experience to treat the diverse populations they encounter.102
African-American men and women with heroin or cocaine
problems, for example, are asked to succeed in programs
that were originally designed for white men struggling with
alcohol problems.103
As a National Institute of Justice report concludes, some
drug court treatment session attendance problems may not be
caused by intractable participants, but rather by the placement
of participants in inappropriate or low-quality programs.104
People who are harmed more than helped by a treatment
program – or treated in a manner insensitive to their race, socioeconomic status, gender, sexuality or, ironically, the severity
of their drug problem – are left without recourse
and ultimately punished by a system that short-changes
them. In the end, struggling drug court participants are often
blamed for the inadequacies of the treatment system.

www.drugpolicy.org

Finding:
Drug Courts May Not Improve Public Safety

The claim that drug courts intend to reduce crime among
“drug-involved offenders” is misleading. As previously
mentioned, many drug court participants are not guilty of
a crime against person or property but of a petty drug law
violation – many of them apparently involving marijuana.
Few drug court participants have long or varied histories of
offending. Moreover, as previously noted, roughly one-third
of drug court participants do not have clinically significant
substance use disorders.105 That is, the “criminal conduct” that
drug courts are currently positioned to address is drug use, a
behavior that for many participants is not compulsive.
Even when it comes to drug law violations, the majority of
drug courts exclude all but those convicted of low-level drug
possession. Even addicted persons who are caught selling petty
amounts of drugs simply to support their own addictions are
typically barred from drug court. As a result, most drug courts
cater to those who are least likely to be jailed or imprisoned
and who generally pose little threat to the safety of person or
property. Only a handful of drug courts nationwide admit
individuals with any previous serious or violent conviction,
no matter how long ago the conviction occurred.106
Moreover, when drug court participants are arrested, it is
typically for a drug law violation, not for a crime against
person or property. Early findings of the Multi-Site Adult
Drug Court Evaluation (MADCE), for example, show that
arrests for “violent, weapons-related or public order offenses”
were “rare” for both the drug court participants and those in
the comparison group.107
As long as drug courts focus on people who use drugs
(rather than on people who commit serious or violent crime),
the programs are unlikely to provide worthwhile benefit
over other policy approaches to drug use. Indeed, research
consistently supports changing the population of drug court
participants, because “drug courts work better for those who
are at an inherently higher risk for future criminal behavior.”108 Given who they accept, it is no surprise that drug
courts on the whole have not produced significant reductions
in serious or violent crime.

13

Understanding Drug Courts:
What the Research Shows
continued

Finding:
Drug Courts May Not Reduce Incarceration

While drug courts do often reduce pre-trial detention, the extent to which they reduce incarceration overall is questionable.
This conclusion is supported by the preliminary results of the
five-year Multi-Site Adult Drug Court Evaluation (MADCE),
which found no statistically significant reduction in incarceration for drug court participants over the comparison group after
18 months.109 Several factors contribute to these apparently
counter-intuitive findings.
First, drug courts may actually increase the number of people
incarcerated for drug law violations due to net-widening, a
process by which the introduction or expansion of a drug court
(or other diversion program) is followed by an increase in drug
arrests.110 Many of these newly arrested people will face incarceration rather than drug court because of drug court capacity
constraints and strict eligibility criteria.
This phenomenon has been dramatic in Denver, where the
number of people imprisoned for drug law violations doubled
soon after the city established drug courts.111 Net-widening may
happen because law enforcement and other criminal justice
practitioners believe people will finally “get help” within the
system. Unfortunately, as in the Denver example, the number
of people arrested for eligible offenses prior to the establishment
of the drug courts had already far exceeded what the drug court
could absorb.112
Second, people who do not complete drug court may
actually face longer sentences – up to two to five times longer,
according to one study – than if they had been conventionally
sentenced in the first place.113 Since somewhere between
30 and 70 percent of all drug court participants will complete the program,114 the number of people ejected and facing
potentially longer jail or prison sentences as a result of having
participated in a drug court (partly for having forfeited their
opportunity to plead to a lesser charge) is substantial.

Drug Courts As
Adjunct – Not Alternative –
to Incarceration
Three years into a study of Baltimore’s drug court,
31 percent of participants had graduated after
spending an average of nearly 22 months in the
program. Another 11 percent were still participating, while 45 percent had been terminated after
an average of almost 17 months in the program.118
In other words, nearly half of participants were
deemed “failures” even though they had attempted
to adhere to rigorous drug court requirements
for nearly a year and a half – a period longer than
what their conventional sentences may have been.
In a community-based program, improvements
made during those 17 months could very well
have been indicators of success, meriting further
supports to maintain participants’ progress. In
the drug court, however, 17 months of attempted
adherence was eventually deemed insufficient, at
which point the participants were removed from
the program to begin serving day one of their
original sentence.
Additionally, Baltimore’s misdemeanor drug
court participants spent more than twice as many
days incarcerated as their misdemeanor control
counterparts and almost as many days as felony
drug court participants.119 The drug court thus
punished participants with misdemeanor charges
as if they had been convicted of a felony.

Third, drug courts’ use of incarceration sanctions results in a
significant total number of days spent behind bars.115 Indeed,
data from a Baltimore drug court suggested that participants
were incarcerated more often and for the same amount of total
days as a control group of probationers, generally for program
violations, not even including the incarceration later experienced by the 45 percent of people expelled from the program.116
Drug courts, as currently constituted, may ultimately serve not
as an alternative but as an adjunct to incarceration.117

14

Drug Courts Are Not the Answer:
Toward a Health-Centered Approach to Drug Use

Finding:
Drug Courts May Not Cut Costs

Claims that drug courts save many thousands of dollars per
participant, or millions of dollars annually per drug court, are
misleading. Not a single cost analysis has looked at the full
range of costs of a U.S. drug court. Moreover, preliminary
results from MADCE show that the average net cost benefit
to society is not statistically significant.120
Most studies calculate drug court savings based on assumed
reductions in pre-trial detention and recidivism.121 However,
as illustrated above, it is unclear to what extent, if at all, drug
courts actually reduce incarceration.122 Even if drug courts
do create some savings in pre-trial detention and recidivism,
those savings are likely to disappear when program costs are
accounted for – costs that are almost always overlooked.
Such costs include drug tests, the not uncommon use of
incarceration for detoxification,123 net-widening,124 incarceration sanctions,125 and the cost of harsher sentences on expelled
drug court participants.126
Additionally, drug court cost-savings assertions are often
inflated by inaccurately assuming that all drug court participants are bound for jail or prison. Because most drug courts
exclude people with more serious offenses or histories,127 it is
inappropriate to compare the cost of a one-to-three year drug

www.drugpolicy.org

court program against the cost of a one-to-three year period
of incarceration. Given who is actually in most drug courts,
the cost of drug court is more accurately compared with a jail
term of a few weeks or months followed by one-to-three years
of probation – an issue overlooked in nearly every drug court
cost analysis.128
Finally, it must also be asked whether drug courts save money
not only in comparison with conventional sentencing of those
who possess small amounts of drugs, but also in comparison
with a non-criminal justice approach. Such a comparison
would uncover significantly different outcomes, costs and savings for an entirely different set of investments. For example,
drug treatment has consistently been associated with net
benefits and savings, ranging from $1.33 to $23.33 saved per
dollar invested.129
Although some may suggest that drug courts reduce “society
costs” by reducing criminal behavior, this – even if true – is
hardly unique to drug courts. Drug treatment itself is associated with significant reductions in illegal activity, particularly
reduced drug use and reduced drug sales, as well as minor
property offenses associated with drug-procurement behavior.130 According to one recent analysis by the Washington
State Institute for Public Policy, drug courts produced $2 in
benefits for every dollar spent. By contrast, drug treatment
in the community produced $21 in benefits to victims and
taxpayers in terms of reduced crime for every dollar spent – or
ten times the benefit produced by drug courts.131

15

Mixing Treatment and
Punishment: A Faulty Approach
The fundamental tension that exists between the goals of
treatment and punishment – and the predominance of
punishment over treatment in any criminal justice-based
program – means that drug courts cannot hope to substantially reduce the number of people incarcerated for drug use
as long as drug use is criminalized. Indeed, it means that drug
courts are apt to incarcerate those who could most benefit
from treatment.
Fundamental Paradox of Drug Courts

Drug courts are grounded in two contradictory models.
The disease model assumes that people with an addiction
disorder use drugs compulsively – that is, despite negative
consequences.132 The rational actor model, which underlies
principles of punishment, assumes that people weigh the
benefits of their actions against the potential consequences
of those actions.133
These dueling models result in people being “treated” through
a medical lens while the symptoms of their condition –
chiefly, the inability to maintain abstinence – are addressed
through a penal one. The person admitted into drug court is
regarded as not fully rational and only partially responsible for
their drug use; yet the same person is considered sufficiently
rational and responsible to respond to the “carrots and sticks”
(i.e., rewards and sanctions) of drug court.134
Under this approach, those suffering more serious drug problems are most likely to “fail” drug court and be punished.135
In the end, the person who has the greatest ability to control
his or her own drug use will be much more likely to complete
treatment and be deemed a “success.”
In blending two incompatible philosophies,136 a drug court
(or any other criminal justice-based program) cannot adhere
to both approaches and faithfully embody either one. This
incongruity results in thousands of drug court participants
being punished or dropped from programs each year for
failing to overcome addictions in a setting not conducive to
their success.

16

Abstinence-Only and the Predominance of
Punishment Over Treatment

A health-centered response to drug use assesses improvement
by many measures – not simply by people’s drug use levels,
but also by their personal health, employment status, social
relationships and general wellbeing. “Success” in the criminal
justice context, by contrast, boils down to the single measure
of abstinence – because any drug use is deemed illegal behavior.
Both approaches already exist in the U.S. today; the wealthy
often benefit from one, while people of less means are by and
large subject to the other.
Rehabilitative regimes that rely on criminal justice coercion
have historically devolved into increasingly punitive systems.137
Drug courts’ attempts to meld treatment and punishment
ultimately succumb to the dominance of punishment over
therapeutic principles. Though a judge may provide leniency
to those who make important strides, drug court participants
will eventually be labeled “failures” and sanctioned unless they
achieve and maintain abstinence for a period of time that
the judge deems reasonable. Duty-bound to penal codes that
criminalize drug use, drug courts’ ultimate demand is complete
abstinence from drugs. Meanwhile, the many other medical
and social indicators of wellbeing become secondary or tertiary.
No form of treatment – court-mandated or otherwise – can
guarantee long-term abstinence from drug use. Moreover,
lapses in treatment compliance are a predictable feature of
substance use disorders, just as they are with other chronic
conditions, including diabetes and hypertension. But drug
courts make it difficult for people whose only “crime” is their
drug use to extricate themselves from the criminal justice
system. The court, bound to the benchmark of abstinence,
and rooted in principles of deterrence, retribution and incapacitation, 138 equates drug relapse with criminal recidivism
and punishes it as such.
Drug court adaptations in Canada, Australia and the
United Kingdom have expanded measures of success to
include decreased drug use and crime, while broadly allowing
opioid-maintenance therapy (such as methadone) and, in
some circumstances, tolerating cannabis use.139 In the U.S.,
too, a handful of drug courts have adopted similar harm
reduction measures, suggesting that some pragmatic reforms
are feasible even absent a major shift in domestic drug policies.

Drug Courts Are Not the Answer:
Toward a Health-Centered Approach to Drug Use

Proposition 36:
Better But Not Health-Centered
California provides an important case study in how
treatment within the criminal justice system will
always come second to that system’s primary missions of deterrence, retribution and incapacitation.
Passed by 61 percent of voters in 2000,
Proposition 36 permanently changed the state’s
sentencing law to require probation and treatment
rather than incarceration for a first and second lowlevel drug law violation. The Drug Policy Alliance,
with support from many others, designed Prop. 36
and spearheaded the campaign to pass the law. Its
intent is to provide universal access to treatment for
eligible candidates while prohibiting their incarceration (including incarceration sanctions), to prevent
cherry-picking of participants, to allow drug testing
for treatment (but not punitive) purposes, and to
empower health providers – not judges – to make
treatment decisions.140

Prop. 36 represents a positive modification of drug
courts, taken to scale. From 2001-2006, when Prop. 36
was funded at $120 million a year, 36,000 people were
enrolled annually141 (nearly ten times the number of
people enrolled in all of California’s drug courts and
nearly two-thirds the number of people participating
in all drug courts nationwide),142 completion rates
were comparable to those of other criminal justice
programs,143 and the number of people in California
prisons for drug possession dropped by more than
27 percent.144 An estimated $2,861 was saved per
participant, or $2.50 for every dollar invested,145 and
there were no adverse effects on crime trends.146
Prop. 36 is instructive in that its participants’
completion rates are comparable to drug courts’, but
Prop. 36 participants were not cherry-picked and
were not subject to incarceration sanctions.147
Nevertheless, Prop. 36 remains – like drug courts –
squarely within the criminal justice system.
Admission to the program follows conviction (similar
to most drug courts), participants appear to have
displaced voluntary clients in cash-strapped publicly
funded programs (even though Prop. 36 funding
helped establish nearly 700 new program sites),148
and failure to maintain abstinence ultimately results
in expulsion from the program and imposition of
conventional sentencing.149
Despite Prop. 36’s demonstrated cost savings and
public safety record, funding decisions ten years
later confirm that treatment in California remains
secondary to punishment. Over a four-year period,
California entirely eliminated treatment funding for
Prop. 36 – from a high of $145 million in 2007-08 to
nothing in 2010-11.

Toward a Health-Centered
Approach to Drug Use
Moving from the criminal paradigm to this new health
paradigm entails improving and standardizing drug
court practices, working toward the removal of criminal
penalties for drug use, and shifting investments into public
health programs that include harm reduction and other
interventions and treatments.

Twenty years of evidence clearly demonstrates that drug
courts cannot effectively reduce the burden on the criminal
justice system created by 1.6 million annual drug arrests
and that they cannot provide health-oriented treatment
within a punitive structure. Indeed, it appears that, on a
policy level, they may be making matters worse by absorbing resources and momentum that could be focused on
developing non-criminal justice responses to drug use and
by preserving criminal justice resources for addressing
crimes against people and property.

Recommendation:
Reserve Drug Courts for Serious Offenses
and Improve Practices

Stopgap measures to address the drug arrest epidemic
within the criminal justice system have failed. It is time
for a new approach to drug use – one focused on health.
A health paradigm recognizes that the criminalization of
drug use does more harm than good; that prevention,
treatment and other social supports are often more appropriate and cost-effective than criminal justice involvement;
and that, similar to alcohol consumption, drug use does
not always impede a person’s functioning or ability to be
successful, and therefore not everyone who uses a drug
needs treatment.

As this report emphasizes, drug courts are bound by the
rules of the criminal justice system in which they exist.
As policy makers and advocates work to improve that
larger system, however, there are things that drug courts
themselves – and those who dispense drug court funding –
can do immediately to improve and standardize practices
to more effectively and cost-effectively apply their
limited resources.

Kilograms of Cocaine Consumption Prevented per Million 1992 Dollars Spent
120

Treatment
100

Conventional Enforcement
80

Longer Sentences
60
Source: Caulkins, Jonathan P., et al.,
Mandatory Minimum Drug Sentences:
Throwing Away the Key or the Taxpayers’
Money. RAND Corporation. 1997.

40

20

0

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

Evaluation Horizon (Years)

18

Drug Courts Are Not the Answer:
Toward a Health-Centered Approach to Drug Use

Numerous scholars and researchers who have looked closely
at drug courts have proposed a series of reforms and best
practices to improve drug courts, including:
•	 Focus drug court resources on people facing lengthy prison
terms to ensure that drug court is actually a diversion from
incarceration and not more restrictive than the conventional
sentence;150
•	 Adopt objective admission criteria and reduce the prosecutor’s
role as gate-keeper;151
•	 Use a pre-plea rather than a post-plea model;152
•	 Ensure due process protections and enhance the role of
defense counsel;153 and
•	 Improve data collection, research rigor, and implementation
of demonstrated best practices.154
To this list, the Drug Policy Alliance recommends adding
the following:
•	 Prohibit the use of incarceration sanctions for drug law
violations and provide a treatment response instead;
•	 Incorporate health measures – not simply abstinence – into
program goals;
•	 Improve overall treatment quality and employ opioid
maintenance treatments and other evidence-based therapies;
•	 Work to ensure that drug courts are more health-oriented
than punitive;
•	 Use drug tests as a treatment tool, not as punishment;
• 	Empower treatment professionals in decision-making;
• 	Reduce turnover of trained and experienced court,
probation and treatment staff to improve program continuity
and consistency;
• 	Ensure that punishment for “failing” the program is not worse
than the original penalty for the offense; and
• 	Work to establish other local alternatives outside the drug
court for those who want and need access to treatment but
do not warrant intensive court resources (e.g., probationsupervised treatment).
While these short-term fixes would help improve the
functioning, transparency and accountability of drug courts,
policymakers must also ask what other interventions might
be equally or more successful with different populations.
After all, there will not be one policy solution to the issues of
drug use or public safety. Rather, U.S. drug policy will benefit
when a range of options is available and when robust research
drives policy decisions.

www.drugpolicy.org

Recommendation:
Work Toward Removing Criminal Penalties
for Drug Use

Even as drug courts continue to proliferate, the federal
government and some states are seeking out more systemic
changes to address the dual burdens of mass drug arrests and
incarceration. Many of these measures aim to reduce the
number of people going to prison for a petty drug offense,
shorten the length of time served for drug law violations, or
reduce probation and parole revocations for drug use.155
To limit the number of people going to prison for a
petty drug law violation, several states have implemented
alternative-to-incarceration programs and others are moving
in that direction. Several years ago, for example, Texas
successfully opted for alternatives to incarceration rather than
build a new prison.156 New York adopted major reforms of
its 36-year-old Rockefeller Drug Laws in 2009, including
alternatives to incarceration for petty drug possession and
sales offenses.157 As this report was published, California was
considering ending prison sentences for most petty drug
offenses. South Carolina was aiming to reduce its prison
population by handling more low-level drug and other offenses outside of prison walls.158 And an Oklahoma legislator
had promised to introduce his own plan to divert thousands
of people convicted of petty offenses from prison.159
Programs that provide alternatives to incarceration for a
substantial portion of people convicted of a petty drug law
violation improve the utilization of limited resources and allow the criminal justice system to focus on matters of greater
public safety. As some states are already learning, reducing
penalties is an even more effective way to reduce costs while
preserving public safety. In 2010, Colorado reduced penalties
for some low-level possession offenses and New Jersey restored
judges’ discretion to waive mandatory minimum sentences
for certain low-level drug law violations that take place in
“drug-free zones.” In late 2010, Indiana’s Criminal Code
Evaluation Commission advised the state to shorten sentences
for drug possession and some low-level sales offenses.160 And
at the federal level, landmark legislation in 2010 dramatically
reduced disproportionate sentencing for crack cocaine, and
repealed a mandatory minimum drug sentence for the first
time since the 1970s (what had been a five-year sentence for
possession of five grams of crack cocaine – the weight of two
sugar packets).161

19

Toward a Health-Centered
Approach to Drug Use
continued

As some states are
already learning,
reducing penalties is an
even more effective way
to reduce costs while
preserving public safety.

These changes are steps in the right direction. However,
they fall short of what is ultimately necessary to reduce the
role of the criminal justice system in this health issue: a
removal of criminal penalties for drug use absent harm – or
substantial risk of harm, such as driving under the influence
– to others. As long as more than 1.6 million people are
arrested every year for drug law violations and hundreds of
thousands more are sanctioned for drug-related violations
of parole or probation,166 drug cases will continue to swamp
the criminal justice system and have a negative impact on
individuals and communities.

These are all important steps toward reducing the incarceration of people for drug use. But they do not reduce (and
may run the risk of increasing through net-widening) the
number of drug arrests that absorb huge amounts of law
enforcement and court personnel time and overwhelm
alternative-to-incarceration programs. As a result, some
states and local authorities are pursuing programs aimed
at reducing drug arrests.

Nationally, 46 percent of all drug arrests are for marijuana
possession.167 Ending criminal penalties for marijuana
use would represent a significant advancement toward a
health approach. Lawmakers and voters in numerous states
considered bills and ballot measures to eliminate or reduce
penalties for marijuana possession in 2010 and many are
expected to do so again in 2012. With recent polls showing nearly half the country in favor of taxing and regulating
marijuana, there is currently unprecedented momentum for
major policy reforms.

At the state level, spending can be reprioritized in order
to focus resources on preventing people from entering the
criminal justice system – and hastening their exit from it.
In 2009, for example, California spent $90 million in
federal Byrne Justice Assistance Grants on drug treatment
and intensive probation supervision instead of on the state’s
“buy-bust” programs that result in thousands of low-level
drug arrests annually.162 In so doing, the state generated
about $200 million in cost savings rather than the additional costs (of as much as $900 million) that would have been
associated with new court cases and incarceration.163
At the local level, too, resource allocation is being rethought
and some jurisdictions are working to implement changes
in arrest practices. For example, a collaborative effort in
Seattle, which includes law enforcement, defense attorneys
and social services among others, expects to roll out in 2011
a pre-booking diversion program called Law Enforcement
Assisted Diversion (LEAD) that aims to reduce the number
of people entering the criminal justice system for a low-level
drug law violation by providing linkages to communitybased treatment and support services.164 In San Diego, the
police department has calculated significant cost savings
to the local government through its Serial Inebriate Program (SIP), which provides treatment and housing to the
city’s most costly individuals suffering from alcoholism and
chronic homelessness.165

20

In recent years, other countries have taken even broader
steps toward ending the criminalization of drug use.
In 2008, a Brazilian appeals court ruled that based on the
constitutional principles of harm, privacy and equality,
the law criminalizing drug possession for personal use is
unconstitutional. In 2009, Mexico, Argentina and the
Czech Republic all made possession of small quantities of
drugs non-criminal offenses. Though these reforms were
made absent a larger health-centered agenda, they reflect
an increasing awareness that prohibitionist policies are
counterproductive – at least with respect to drug possession.
Portugal presents the most significant and successful example of a post-criminalization, health-centered drug policy.
In 2001, Portuguese legislators decriminalized low-level
drug possession and reclassified it as an administrative violation. At the heart of this policy change was the recognition
that the criminalization of drug use was not justifiable and
that it was actually a barrier to more effective responses to
drug use.168

Drug Courts Are Not the Answer:
Toward a Health-Centered Approach to Drug Use

Portugal’s Post-Criminalization
Policy Success
Portugal’s move to decriminalize all low-level
drug possession in 2001 was not simply a legal
change but a comprehensive paradigm shift toward
expanded access to prevention, treatment, harm
reduction and social reintegration services.169
The explicit aim of the policy shift was to adopt an
approach to drugs based not on dogmatic moralism
and prejudice but on science and evidence. The
criminalization of drug use was deemed a barrier
to more effective, health-centered responses and at
odds with the principle that people who use drugs
deserve to be treated with dignity and respect.170
Portugal’s legal and policy changes altered the role
of police officers, who now issue citations – but do
not arrest – people found in possession of small
amounts of illicit substances. Cited persons are
ordered to appear at a “dissuasion commission,”
an administrative panel that operates outside of the

December 27, 2010
Portugal’s drug policy pays off;
US eyes lessons

criminal justice system. The panel, with two health
practitioners and one legal practitioner, examines
the individual’s needs and circumstances, and
determines whether to make referrals to treatment
or other services, and/or to impose fines or other
non-criminal penalties.
By decreasing the stigma around drug use,
decriminalization allowed for the discussion of
previously taboo issues and optimum policy responses, including whether to create supervised
injection facilities and to introduce sterile syringe
exchange programs in prisons.171 Further, the
administrative, community-based “dissuasion
commissions” have provided earlier intervention
for drug users, a broader range of responses, an
increased emphasis on prevention for occasional
users, and increased provision of treatment and
harm reduction services.172

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www.drugpolicy.org

21

Toward a Health-Centered
Approach to Drug Use
continued

A decade later, Portugal’s paradigm change from a punitive
approach to a health-centered one has proved enormously
popular. It has not created a haven for “drug tourists” nor has
it led to increased drug use rates, which continue to be among
the lowest in the European Union.173 Rather, fatal overdose
from opiates has been cut nearly in half,174 new HIV/AIDS
infections in people who inject drugs fell by two-thirds,175
the number of people in treatment increased176 and the
number of people on opioid maintenance treatments more
than doubled.177 Portugal’s paradigm shift has facilitated
better uptake of prevention, treatment, harm reduction and
social reintegration services and, ultimately, a more realistic
approach to drug use driven by experience and evidence.178
The failure of U.S. stopgap measures and the success of the
Portuguese model challenge advocates and policymakers in
the U.S. to focus on building the political will to work toward
removing criminal penalties for drug use and implement instead a comprehensive and effective health-centered approach.
Recommendation:
Invest in Public Health, Including
Harm Reduction and Treatment

Public health interventions are wise, necessary long-term
investments. They reduce the harms associated with drug
use, prevent crimes against people and property, and cut
associated costs. These approaches must not begin and end
with abstinence-only programs. While treatments aimed at
supporting people who desire to cease drug use must be made
much more widely available, strategies to prevent overdose
deaths and reduce the spread of communicable disease are
also critical and must be expanded.
A 2006 analysis found that every dollar invested in drug
treatment saves $7 due to increased employment earnings and
reduced medical care, mental health services, social service
supports, and crime.179 A 1994 RAND study commissioned
by the U.S. Army and the White House Office of National
Drug Control Policy found treatment to be seven times more
effective at reducing cocaine consumption than domestic law
enforcement, ten times more effective than drug interdiction,
and 23 times more effective than trying to eradicate drugs at
their source.180 A 1997 SAMHSA study found that treatment
reduces drug selling by 78 percent, shoplifting by almost
82 percent, and assaults by 78 percent.181

22

Despite the health and fiscal benefits of drug treatment,
too many people lack access to it. Federal health care
legislation, signed by President Obama in 2010, takes a
promising step forward by expanding eligibility for private
and public insurance and by requiring all insurers to provide
coverage for substance use and mental health service benefits
on par with coverage for other chronic conditions. This parity
requirement will help to reduce two significant barriers to
treatment – cost and stigma – by promising to make treatment accessible through public and private health insurance
and through more doctors’ offices.
Significantly, under the new health care legislation, all
nonelderly adults with income up to 133 percent of the federal poverty level will become eligible for Medicaid in 2014.182
This will capture many currently uninsured people, including
many in the criminal justice system. Medicaid eligibility will
not translate into real access to treatment, however, unless
states work to preserve, and then expand, their addiction
treatment systems. As adults become able to access drug treatment through Medicaid, it will make even less sense to invest
in resource-intensive drug courts that focus on people whose
illegal activity is largely limited to drug use. These new dollars,
too, must not be devoted solely to abstinence-only approaches, such as those mandated by drug courts, but to a wide range
of services that focus on improving people’s health.
Bringing drug treatment into the primary care setting is
essential, but it is not enough. Programs designed for people
who do not routinely access the mainstream health care system are also needed. For example, syringe exchange programs
and safe injection facilities – which focus on empowering
individuals to make healthier choices – have proven to be safe,
effective opportunities for more marginalized people to engage
help and services.183
Just as public health principles support the use of condoms,
contraceptives, cigarette filters and seat belts to reduce health
risks, drug policies must seek to reduce the harms and risks
associated with drug use. As Portuguese policymakers learned,
an overemphasis on abstinence can obstruct efforts to

Drug Courts Are Not the Answer:
Toward a Health-Centered Approach to Drug Use

Public health interventions
are wise, necessary
long-term investments.
They reduce the harms
associated with drug use,
prevent crimes against
people and property, and
cut associated costs.
successfully mitigate drug-related harms.184 Programs that
focus on reducing drug-related harms and risks result in better
individual and public health than criminal justice interventions – including drug courts – and, by any measure, deliver
more bang for the buck. Failing to invest in such programs
is expensive in terms of both lives and dollars.
Drug overdose is now the second leading cause of accidental
death, trailing only motor vehicle fatalities.185 According to
the National Institute on Drug Abuse, injection drug use is
responsible for one-third of adult and adolescent HIV/AIDS
cases, while more than one-half of HIV/AIDS cases at birth
are the result of a parent contracting HIV through injection
drug use. Hepatitis B and C are prevalent in 65 percent and
75 percent, respectively, of people who have injected drugs for
six years or less. People who use drugs, either intravenously
or otherwise, are two to six times more likely than others to
contract tuberculosis. The geographic distribution of syphilis
and gonorrhea infections reflects the distribution of crack
cocaine use.186

syringe exchange programs, have consistently been shown
to substantially reduce the rate of HIV/AIDS transmission
among people who inject drugs without increasing injection
drug use.187 Facilities that allow supervised, on-site injection
of drugs reduce vein damage, disease transmission188 and
fatal overdose189 as well as public disorder, improper syringe
disposal and public drug use.190 Additionally, the provision of
naloxone (an FDA-approved overdose antidote) to people
who use opioids – either as prescription analgesics for pain
(such as phentanyl, oxycodone, hydromorphone and methadone) or as a result of opioid dependence – can greatly reduce
fatal overdose.191
Moreover, non-judgmental services such as syringe exchanges
reach people turned off by or excluded from abstinence-only
programs. In 2005, more than 85 percent of roughly
160 syringe exchange programs in the U.S. regularly made
treatment referrals.192 Many referrals were for people who
do not inject drugs, illustrating that such programs deliver
important health services for a larger community beyond their
primary syringe-exchanging clients.193 In 2009, the federal
government removed a significant hurdle when it ended the
ban on federal dollars going to life-saving syringe exchange
programs. Much more is needed in the way of direct investment – and these costs could easily be covered by reduced
investment in arrests and incarceration for drug law violations.
Similarly, many people struggling with drugs may benefit
from a variety of support services before – or in lieu of –
formal treatment services. It is well-documented that stable
social and financial circumstances help prevent relapse both
during and after treatment, regardless of whether a person is
mandated to treatment by the courts.194 Efforts to aid people
with drug problems might therefore involve addressing other
needs entirely, such as access to physical and mental health
services, housing, employment or education.

Overdose deaths and the spread of HIV/AIDS, hepatitis,
tuberculosis, syphilis and gonorrhea are largely preventable.
Good Samaritan policies, which encourage people to call for
help in the case of a suspected drug overdose, may help
reduce fatalities. Proven public health measures, such as

www.drugpolicy.org

23

Conclusion
There are several reasons why now is the time to rethink
our drug policies, including drug courts. The hysteria of the
1980s drug war is now a distant memory, and states and the
federal government are seeking cost-effective ways to achieve
better results. The Obama Administration’s commitment to
a greater public health approach than its predecessors has already resulted in significant policy reform, with the inclusion
of drug treatment in the 2010 health care laws. At the same
time, the federal crack cocaine sentencing reform of 2010
illustrates that bipartisan consensus is possible on drug policy.
Moreover, the evidence from abroad regarding the health and
fiscal benefits of harm reduction strategies and non-punitive
approaches has grown dramatically. And here at home, harm
reduction programs once regarded as inconceivable in some
parts of the U.S. are now standard. Finally, the criminalization-focused approach to drug policy, including drug courts,
continues to fail to demonstrate its efficacy or cost-efficacy.

~
••••••

Let’s be clear: drug court programs have saved lives.
People correctly perceive them as having benefits. Drug court
proponents deserve to take pride in their accomplishments.
However, we all, including drug court supporters, have an
obligation to step outside the drug court paradigm to consider
other approaches that might work better and whether the
particular modalities of the drug court are best directed at
people other than those whose only offense is drug use or
drug possession. This will not be easy. People have a vested
interest in defending and promoting that which they have
given so many years of their lives. Drug courts have developed
substantial political rapport, which risks providing them
immunity from honest, critical analyses.
Looking forward, however, we should strive toward a
world where drug courts focus primarily on more serious
offenses and where drug use absent harm to others is no
longer regarded as a criminal justice matter.

24

Drug Courts Are Not the Answer:
Toward a Health-Centered Approach to Drug Use

Endnotes
1

2

3

4

5
6

7

8

9

10

11

12

13
14
15
16

17

18

19

20

21
22

23

Lake Research Partners, “New Poll Shows Majority of Americans Support Efforts to
Make Alcohol and Drug Addiction Treatment More Accessible, Affordable,” June
2009 <www.facesandvoicesofrecovery.org/pdf/OSI_LakeResearch_2009.pdf>;
Substance Abuse and Mental Health Services Administration (SAMHSA), “New
National Poll Reveals Public Attitudes on Substance Abuse, Treatment and the
Prospects of Recovery,” September 2008 <www.guidetofeelingbetter.org/GuideToFeelingBetter/SAMHSA%20Attitude%20Surveys%20Results.pdf>; Rasinski KA, Gerstein
DR and Lee RD. “Public Support for Substance Abuse Treatment Coverage: Results
of a National Survey.” Unpublished, <http://www.rwjf.org/reports/grr/041644.
htm#FINDINGS>. See also: Faces and Voices of Recovery Resources <http://www.
facesandvoicesofrecovery.org/resources/other_research.php>.
Boldt, Richard, “A Circumspect Look at Problem-Solving Courts,” in Problem-Solving
Courts: Justice for the Twenty-First Century?, eds. Paul C. Higgens and Mitchell B.
MacKinem (Santa Barbara: ABC-CLIO, 2009).
Bhati, Avi, John Roman, and Aaron Chalfin, To Treat or Not to Treat: Evidence on
the Effects of Expanding Treatment to Drug-Involved Offenders, Washington D.C.:
The Urban Institute, 2008.
Huddleston, West, Doug Marlowe and Rachel Casebolt. Painting the Current Picture:
A National Report Card on Drug Courts and Other Problem-Solving Court Programs in
the United States. National Drug Court Institute 2(1) 2008.
Ibid.
DeMatteo, David S., Douglas, B. Marlowe, and David S. Festinger, “Secondary Prevention Services for Clients Who Are Low Risk in Drug Court: A Conceptual Model,”
Crime and Delinquency 52, no. 1 (2006): 114-134.
Boldt, Richard, “Rehabilitative Punishment and the Drug Treatment Court
Movement,” Washington University Law Quarterly 76 (1998): 1205-1306.
National Association of Criminal Defense Lawyers, America’s Problem-Solving
Courts: The Criminal Costs of Treatment and the Case for Reform, Washington D.C.:
NACDL, 2009.
Hoffman, Morris B., “Therapeutic Jurisprudence, Neo-Rehabilitationism, and Judicial
Collectivism: The Least Dangerous Branch Becomes the Most Dangerous,” Fordham
Urban Law Journal 29, no. 5 (2002): 2063-2098.
Ibid; Hoffman, Morris B., “The Drug Court Scandal,” North Carolina Law Review
78, no. 5 (2000): 1437-534; Miller, Eric J., “Embracing Addiction: Drug Courts and
the False Promise of Judicial Interventionism,” Ohio State Law Review 65 (2004):
1479-1576.
Miller, “Embracing Addiction: Drug Courts and the False Promise of Judicial
Interventionism.”
Bhati, Roman, and Chalfin, To Treat or Not to Treat: Evidence on the Effects of
Expanding Treatment to Drug-Involved Offenders.
Ibid.
Boldt, “A Circumspect Look at Problem-Solving Courts.”
Ibid.
National Association of Criminal Defense Lawyers, America’s Problem-Solving Courts:
The Criminal Costs of Treatment and the Case for Reform.
Stevens, Alex, “Alternatives to What? Drug Treatment Alternatives as a Response
to Prison Expansion and Overcrowding,” Paper presented at the Second Annual
Conference of the International Society for the Study of Drug Policy, Lisbon,
Portugal, April 3-4 2008 <http://issdp.org/lisbon2008_public/alternatives%20to%20
what_stevens.pdf>.
Mauer, Marc, and Ryan S. King, A 25-Year Quagmire: The War on Drugs and Its Impacts on American Society, Washington D.C.: The Sentencing Project, September 2007
<http://www.sentencingproject.org/doc/publications/dp_25yearquagmire.pdf>.
Federal Bureau of Investigation, “Crime in the United States 2009” <http://www2.fbi.
gov/ucr/cius2009/data/table_29.html>.
Mauer and King, A 25-Year Quagmire: The War on Drugs and Its Impacts on
American Society.
Ibid.
Ibid. See also Boynum D., and P. Reuter, An Analytic Assessment of US Drug Policy,
Washington D.C.: The AEI Press, 2005; Rossman et al., A Portrait of Adult Drug
Courts, Washington D.C.: The Urban Institute, 2008; and Pollack, Harold, Peter
Reuter and Eric Sevigny, “If Drug Treatment Works So Well, Why Are So Many Drug
Users in Prison?,” Paper presented at the National Bureau of Economic Research
Conference on Economical Crime Control, January 15-16, 2010.
Stevens, “Alternatives to What? Drug Treatment Alternatives as a Response to Prison
Expansion and Overcrowding.”

www.drugpolicy.org

24
25

26

27
28

29

30

31

32

33

34

35

36

37

38
39

40

41

42

43

Ibid.
European Legal Database on Drugs, “Illegal Possession of Drugs,” 2008 <http://eldd.
emcdda.europa.eu/html.cfm/index5749EN.html>.
United States Sentencing Commission, Federal Sentencing Guidelines Manual
(2010) §2D1.1
Ibid.
SAMHSA, Office of Applied Studies, Treatment Episode Data Set (TEDS). Highlights –
2007 National Admissions to Substance Abuse Treatment Services, DASIS Series:
S-45, DHHS Publication No. (SMA) 09-4360, Rockville, MD, 2009, Table A1
<http://wwwdasis.samhsa.gov/teds07/tedshigh2k7.pdf>; SAMHSA, Office of
Applied Studies, The TEDS Report: Substance Abuse Treatment Admissions Referred by
the Criminal Justice System, Rockville, MD, August 2009 http://www.oas.samhsa.
gov/2k9/211/211CJadmits2k9.pdf.
Hser, Yih-Ing, et al., “Impact of California’s Proposition 36 on the Drug Treatment
System: Treatment Capacity and Displacement,” American Journal of Public Health
97, no. 1 (2007): 104-109. This trend has also occurred in the U.K., Finch, Emily, et
al., “Sentenced to Treatment: Early Experience of Drug Treatment and Testing Orders
in England,” European Addiction Research 9, no. 3 (2003): 131-137; and in Canada,
Rush, Brian R., and Cameron, T. Wild, “Substance Abuse Treatment and Pressures
from the Criminal Justice System: Data From a Provincial Client Monitoring System,”
Addiction 98, no. 8 (2003): 1119-1128.
SAMHSA, Office of Applied Studies, Treatment Episode Data Set (TEDS). Highlights –
2007 National Admissions to Substance Abuse Treatment Services, DASIS Series:
S-45, DHHS Publication No. (SMA) 09-4360, Rockville, MD, 2009, Table 4
<http://oas.samhsa.gov/TEDS2k7highlights/TEDSHighl2k7Tbl4.htm>; 1997 data
from <http://wwwdasis.samhsa.gov/teds97/id77.htm>.
Mark, Tami L., et al., “Trends in Spending For Substance Abuse Treatment,
1986-2003,” Health Affairs 26, no. 4 (2007): 1118-1128.
SAMHSA, Office of Applied Studies, 2008 Survey on Drug Use & Health:
National Findings, NSDUH Series H-36, HHS Publication No. SMA 09-4434,
Rockville, MD, September 2009, Table 5.54B <http://www.oas.samhsa.gov/
nsduh/2k8nsduh/2k8Results.pdf>.
Stevens, “Alternatives to What? Drug Treatment Alternatives as a Response to Prison
Expansion and Overcrowding.”
Stevens, Alex, Tim McSweeney, Marianne van Ooyen and Ambros Uchtenhagen,
“On Coercion,” International Journal of Drug Policy 16 (2005): 207-209.
Levine, Harry G., and Deborah Peterson Small, Marijuana Arrest Crusade: Racial Bias
and Police Policy in New York City, 1997-2007, New York: New York Civil Liberties
Union, April 2008 <http://www.nyclu.org/files/MARIJUANA-ARREST-CRUSADE_
Final.pdf>; Bewley-Taylor, Dave, Chris Hallam, and Rob Allen, The Incarceration
of Drug Offenders: An Overview, London: The Beckley Foundation Drug Policy
Programme, March 2009 <http://www.idpc.net/php-bin/documents/Beckley_
Report_16_2_FINAL_EN.pdf>; Mauer, Marc, The Changing Racial Dynamics on the
War on Drugs, Washington D.C.: The Sentencing Project, September 2009
<http://www.sentencingproject.org/doc/dp_raceanddrugs.pdf>.
Mauer and King, A 25-Year Quagmire: The War on Drugs and Its Impacts on
American Society.
Bhati, Roman, and Chalfin, To Treat or Not to Treat: Evidence on the Effects of
Expanding Treatment to Drug-Involved Offenders.
Federal Bureau of Investigation, “Crime in the United States 2009.”
King, Ryan S. and Jill Pasquarella, Drug Courts: A Review of the Evidence,
Washington D.C.: The Sentencing Project, April 2009.
United States General Accounting Office, Adult Drug Courts: Evidence Indicates
Recidivism Reductions and Mixed Results from Other Outcomes, Washington D.C.:
GPO, February 2005.
These drug court failure estimates are based on 1.4 million people who were arrested
for drug possession in 2007. See U.S. Department of Justice, Estimated Arrests for
Drug Abuse Violations by Age Group, 1970-2007.
Bhati, Roman, and Chalfin, To Treat or Not to Treat: Evidence on the Effects of
Expanding Treatment to Drug-Involved Offenders; Stevens, “Alternatives to What? Drug
Treatment Alternatives as a Response to Prison Expansion and Overcrowding”; Pollack, Harold, Peter Reuter and Eric Sevigny, “If Drug Treatment Works So Well, Why
Are So Many Drug Users in Prison?” <http://www.nber.org/confer/2010/CRIs10/
Reuter.pdf>; See also Austin, James and Barry Krisberg, “The Unmet Promise of
Alternatives to Incarceration,” Crime and Delinquency 28, no. 3 (1982): 374-409.
King, Ryan S., Disparity by Geography: The War on Drugs in America’s Cities,
Washington D.C.: The Sentencing Project, May 2008 <http://www.sentencingproject.
org/doc/publications/dp_drugarrestreport.pdf>.

25

Endnotes
continued

44
45

46

47
48

49

50

51

52

53

54

55

56
57

58

59

60

61

62

63

64

Mauer, The Changing Racial Dynamics on the War on Drugs.
Mauer and King, A 25-Year Quagmire: The War on Drugs and Its Impacts on American
Society; Mauer, The Changing Racial Dynamics on the War on Drugs.
Mauer, Marc, and Tracy Huling, Young Black Americans and the Criminal Justice
System: Five Years Later, Washington D.C.: The Sentencing Project, October 1995
<http://www.sentencingproject.org/doc/publications/rd_youngblack_5yrslater.pdf>.
Ibid.
Uggen, Christopher, Sara Wakefield, and Bruce Western, “Work and Family
Perspectives on Reentry,” in Prisoner Reentry and Crime in America, eds. Jeremy Travis
and Christy Visher (Cambridge: Cambridge University Press, 2005).
Schirmer, Sarah, Ashley Nellis, and Marc Mauer, Incarcerated Parents and Their
Children, Washington D.C.: The Sentencing Project, February 2009 <http://www.
sentencingproject.org/doc/publications/publications/inc_incarceratedparents.pdf >.
Street, Paul, The Vicious Circle: Race, Prison, Jobs, and Community in Chicago, Illinois,
and the Nation: Chicago Urban League, 2002. <www.thechicagourbanleague.org/
723210130204959623/lib/723210130204959623/_Files/theviciouscircle.pdf>.
Hoffman, Morris B., “The Drug Court Scandal”; National Association of Criminal
Defense Lawyers, America’s Problem-Solving Courts: The Criminal Costs of Treatment
and the Case for Reform.
Ibid; O’Hear, Michael, “Rethinking Drug Courts: Restorative Justice as a Response to
Racial Injustice,” Stanford Law & Policy Review 20 (2009): 101-137.
Belenko, Steven R., Research on Drug Courts: A Critical Review (2001 Update),
New York: National Center on Addiction and Substance Abuse at Columbia
University, 2001. See also Bowers, Josh, “Contraindicated Drug Courts,” UCLA
Law Review 55 (2008).
Lutze, Faith E., and Jacqueline G. van Wormer, “The Nexus Between Drug and
Alcohol Treatment Program Integrity and Drug Court Effectiveness: Policy
Recommendations for Pursuing Success,” Criminal Justice Policy Review 18, no. 3
(2007): 226-245.
Anspach, Donald F. and Andrew S. Ferguson, Assessing the Efficacy of Treatment
Modalities in the Context of Adult Drug Courts: Final Report, Portland, ME: University
of Southern Maine, April 2003.
Bowers, “Contraindicated Drug Courts.”
Gottfredson, Denise C., and M. Lyn Exum, “The Baltimore City Drug Treatment
Courts: One-Year Results from a Randomized Study,” Journal of Research on Crime
and Delinquency 39 (2002): 337-356; Gottfredson, Denise C., et al., “Long-Term
Effects of Participation in the Baltimore City Drug Treatment Court: Results from
an Experimental Study,” Journal of Experimental Criminology 2, no. 1 (2006): 67-98;
Bowers, Josh, “Contraindicated Drug Courts”; O’Hear, Michael, “Rethinking Drug
Courts: Restorative Justice as a Response to Racial Injustice.”
Hawken, Angela, Testimony to U.S. House of Representatives Committee on
Oversight and Government Reform Subcommittee on Domestic Policy Hearing,
“Quitting Hard Habits: Efforts to Expand and Improve Alternatives to Incarceration
for Drug-Involved Offenders,” July 22, 2010.
Roman, John K., Testimony to U.S. House of Representatives Committee on
Oversight and Government Reform Subcommittee on Domestic Policy Hearing,
“Quitting Hard Habits: Efforts to Expand and Improve Alternatives to Incarceration
for Drug-Involved Offenders,” July 22, 2010.
Wilson, D. B., Mitchell, O., and MacKenzie, D. L. (2006), “A systematic review of
drug court effects on recidivism,” Journal of Experimental Criminology, 2, 459-487.
Latimer, J., Morton-Bourgon, K., & Chretien, J. (2006). A meta-analytic examination
of drug treatment courts: Do they reduce recidivism? Canada Dept. of Justice, Research &
Statistics Division.
Fischer, B., “Doing Good with a Vengeance: A Critical Assessment of the Practices,
Effects and Implications of Drug Treatment Courts in North America,” Criminal
Justice 3, no. 3 (2003): 227-248; United States General Accounting Office, Drug
Courts: Overview of Growth, Characteristics, and Results, Washington D.C.: GPO, July
1997; United States General Accounting Office, Adult Drug Courts: Evidence Indicates
Recidivism Reductions and Mixed Results from Other Outcomes.
Roman, John K., Testimony to U.S. House of Representatives Committee on
Oversight and Government Reform Subcommittee on Domestic Policy Hearing,
“Quitting Hard Habits: Efforts to Expand and Improve Alternatives to Incarceration
for Drug-Involved Offenders,” July 22, 2010.
Goldkamp, J.S., M.D. White, and J.B. Robinson, “Do Drug Courts Work? Getting
Inside the Drug Court Black Box,” Journal of Drug Issues 31, no. 1 (2001): 32.

26

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66

67

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69

70

71

72
73

74

75

76
77
78

79

80

81

82

83

84
85

86

87

DeMatteo, David S., Douglas B. Marlowe, and David S. Festinger, “Secondary
Prevention Services for Clients Who Are Low Risk in Drug Court: A Conceptual
Model,” Crime and Delinquency 52, no. 1 (2006): 114-134.
Goldkamp, J., “The Drug Court Response: Issues and Implications for Justice
Change,” Albany Review 63 (2000): 923-961; Fischer, B., “Doing Good with a
Vengeance”; National Association of Criminal Defense Lawyers, America’s ProblemSolving Courts: The Criminal Costs of Treatment and the Case for Reform.
United States General Accounting Office, Drug Courts: Overview of Growth,
Characteristics, and Results; United States General Accounting Office, Adult Drug
Courts: Evidence Indicates Recidivism Reductions and Mixed Results from Other
Outcomes; Belenko, Stephen R., “Research on Drug Courts: A Critical Review,”
National Court Institute Review 1, no. 1 (1998): 1-42; Belenko, “Research on Drug
Courts: A Critical Review (1999 Update),” National Drug Court Institute Review 1, no.
2 (1999): 1-59; Belenko, Research on Drug Courts: A Critical Review (2001 Update);
Fischer, B., “Doing Good with a Vengeance.”
United States General Accounting Office, Drug Courts: Overview of Growth,
Characteristics, and Results”; United States General Accounting Office, Drug Courts:
Better DOJ Data Collections and Evaluation Efforts Needed to Measure Impact of
Drug Court Programs, Washington D.C.: GPO, April 2002; United States General
Accounting Office, Adult Drug Courts: Evidence Indicates Recidivism Reductions and
Mixed Results from Other Outcomes.
United States General Accounting Office, Adult Drug Courts: Evidence Indicates
Recidivism Reductions and Mixed Results from Other Outcomes.
Gottfredson et al., “The Baltimore City Drug Treatment Courts”; Gottfredson, Denise
C., Stacy S. Najaka, and Brook Kearley, “Effectiveness of Drug Treatment Courts:
Evidence from a Randomized Trial,” Criminology and Public Policy 2 (2003): 171-196.
Gottfredson et al., “Long-Term Effects of Participation in the Baltimore City Drug
Treatment Court.”
Ibid.
Deschenes, Elizabeth Piper et al., An Experimental Evaluation of Drug Testing and
Treatment Interventions for Probationers in Maricopa County, Arizona, Santa Monica,
CA: RAND, July 1996 <http://www.rand.org/pubs/drafts/2008/DRU1387.pdf>.
Turner, Susan et al., “Perceptions of Drug Court: How Offenders View Ease of
Program Completion, Strengths and Weaknesses, and the Impact on Their Lives,”
National Drug Court Institute Review 2 (1999): 61-85.
Breckenridge, J.F. et al., “Drunk Drivers, DWI ‘Drug Court’ Treatment, and
Recidivism: Who Fails?,” Justice Research and Policy 2, no. 1 (2000): 87-105.
Ibid., 103.
Goldkamp et al., “Do Drug Courts Work?”
The National Association of Drug Court Professionals, Defining Drug Courts:
The Key Components, January 1997.
King and Pasquarella, Drug Courts: A Review of the Evidence; Harrell, Adele and John
Roman, “Reducing Drug Use and Crime among Offenders: The Impact of Graduated
Sanctions,” Journal of Drug Issues 31(1), 207-232, 2001.
California Society of Addiction Medicine, “Proposition 36 Revisited” <http://www.
csam-asam.org/prop36article.vp.html>; See also Goldkamp et al., “Do Drug Courts
Work?”; Hepburn, John R., and Angela Harvey, “The Effect of the Threat of Legal
Sanction on Program Retention and Completion: Is That Why They Stay in Drug
Court?” Crime and Delinquency 53, no. 2 (2007): 255-280.
Drake, Elizabeth, Steve Aos, and Marna G. Miller, “Evidence-Based Public
Policy Options to Reduce Crime and Criminal Justice Costs: Implications in
Washington State,” Victims and Offenders, 4:170–196 <www.wsipp.wa.gov/rptfiles/09-00-1201.pdf>.
The National Association of Drug Court Professionals, Defining Drug Courts:
The Key Components, January 1997.
Rempel, Michael et al., The New York State Adult Drug Court Evaluation: Policies,
Participants, and Impacts, Center for Court Innovation, 2003(a), p. 68.
Goldkamp et al., “Do Drug Courts Work?”
Longshore, Douglas et al., Evaluation of the Substance Abuse and Crime Prevention Act:
Final Report, Los Angeles, CA: UCLA Substance Abuse Programs, 2007.
Haney, Craig, “The Psychological Impact of Incarceration: Implications for PostPrison Adjustment,” presented at “From Prison to Home: The Effect of Incarceration
and Reentry on Children, Families and Communities,” January 30-31, 2002
<http://aspe.hhs.gov/hsp/prison2home02/haney.pdf>.
Beck, Allen J., and Laura M. Maruschak, Mental Health Treatment in State Prisons,
2000, Special Report, NCJ 188215, Washington D.C.: Department of Justice, Bureau
of Justice Statistics, 2001: 1-8; Haney, “The Psychological Impact of Incarceration”
estimates that this figure may be more than 20 percent.

Drug Courts Are Not the Answer:
Toward a Health-Centered Approach to Drug Use

Rosado, Edwin, Diverting the Mentally Ill from Jail, National Association of Counties
Legislative Department, March 2002.
89 Bhati, Roman, and Chalfin, To Treat or Not to Treat: Evidence on the Effects of
Expanding Treatment to Drug-Involved Offenders.
90 Lutze and van Wormer, “The Nexus Between Drug and Alcohol Treatment Program
Integrity and Drug Court Effectiveness.”
91 Hoffman, “The Drug Court Scandal”; Lutze and van Wormer, “The Nexus Between
Drug and Alcohol Treatment Program Integrity and Drug Court Effectiveness.”
92 Anspach and Ferguson, Assessing the Efficacy of Treatment Modalities in the Context of
Adult Drug Courts: Final Report.
93 Ibid; Lutze and van Wormer, “The Nexus Between Drug and Alcohol Treatment
Program Integrity and Drug Court Effectiveness.”
94 Boldt, “Rehabilitative Punishment and the Drug Treatment Court Movement.”
95 Institute of Medicine, Treating Drug Problems, Volume 1: A Study of the Evolution,
Effectiveness, and Financing of Public and Private Drug Treatment Systems
(Washington D.C.: National Academy Press, 1990): 187.
96 Kleber, Herbert D., M.D., “Methadone Maintenance Four Decades Later: Thousands
of Lives Saved But Still Controversial,” Journal of the American Medical Association
300, no. 19 (2008): 2303-2305.
97 Amato, Laura et al., “An Overview of Systematic Reviews of the Effectiveness of
Opiate Maintenance Therapies: Available Evidence to Inform Clinical Practice and
Research,” Journal of Substance Abuse Treatment 28 (2005): 321-330; Kleber,
“Methadone Maintenance Four Decades Later.”
98 Gerstein, D.R. et al., Evaluating Recovery Services: The California Drug and Alcohol
Treatment Assessment (CALDATA) General Report, State of California Department of
Alcohol and Drug Problems, 1994: 61-90.
99 Zarkin, Gary A. et al., “Benefits and Costs of Methadone Treatment: Results from a
Lifetime Simulation Model,” Health Economics 14 (2005): 1133-1150.
100 O’Donnell, Colleen, and Marcia Trick, Methadone Maintenance Treatment and the
Criminal Justice System, Washington D.C.: National Association of State Alcohol and
Drug Abuse Directors, Inc., April 2006; California Society of Addiction Medicine,
“California Drug Courts Denying Methadone,” CSAM News 28, no. 1 (2002).
101 Anspach and Ferguson, Assessing the Efficacy of Treatment Modalities in the Context
of Adult Drug Courts.
102 Ibid.
103 Lutze and van Wormer, “The Nexus Between Drug and Alcohol Treatment Program
Integrity and Drug Court Effectiveness.”
104 Anspach and Ferguson, Assessing the Efficacy of Treatment Modalities in the Context of
Adult Drug Courts; King, Ryan S. and Jill Pasquarella, Drug Courts: A Review of the
Evidence, Washington D.C.: The Sentencing Project, April 2009.
105 DeMatteo et al., “Secondary Prevention Services for Clients Who Are Low Risk in
Drug Court.”
106 Bhati, Roman, and Chalfin, To Treat or Not to Treat: Evidence on the Effects of
Expanding Treatment to Drug-Involved Offenders.
107 Roman, Testimony to U.S. House of Representatives Committee on Oversight and
Government Reform Subcommittee on Domestic Policy Hearing.
108 Rempel, Michael et al., “The Impact on Criminal Behavior and Participant Attitudes:
Results from NIJ’s Multi-Site Adult Drug Court Evaluation, Part 2,” presented at
NADCP 16th Annual Training Conference, Boston, MA, June 4, 2010 <http://www.
urban.org/UploadedPDF/412141-the-impact-on-criminal.pdf>.
109 Rempel, Michael, and Mia Green, “Do Drug Courts Reduce Crime and Produce
Psychosocial Benefits? Methodology and Results from NIJ’s Multi-Site Adult Drug
Court Evaluation (MADCE),” presented at American Society of Criminology
Conference, Philadelphia, PA, November 5, 2009 <http://www.urban.org/UploadedPDF/412043_do_drug_courts.pdf>.
110 Hoffman, “The Drug Court Scandal”; See also King and Pasquarella, Drug Courts:
A Review of the Evidence; and NACDL, America’s Problem Solving Courts: The Criminal
Costs of Treatment and the Case for Reform.
111 Hoffman, “The Drug Court Scandal.”
112 Ibid.
113 O’Hear, “Rethinking Drug Courts”; see also Fluellen, Reginald, and Jennifer Trone,
Do Drug Courts Save Jail and Prison Beds?, New York: Vera Institute of Justice, 2000.
114 United States General Accounting Office, Adult Drug Courts: Evidence Indicates
Recidivism Reductions and Mixed Results from Other Outcomes.
88

www.drugpolicy.org

See Goldkamp, J., “The Drug Court Response: Issues and Implications for Justice
Change,” Albany Law Review 63 (2000): 923-961; Gottfredson et al., “The Effectiveness of Drug Treatment Courts,” Harrell, Adele, “Judging Drug Courts: Balancing the
Evidence,” Criminology and Public Policy 2, no. 2 (2003): 207-212; and Gottfredson et
al., “Long-Term Effects of Participation in the Baltimore City Drug Treatment Court.”
116 Gottfredson et al., “Long-Term Effects of Participation in the Baltimore City Drug
Treatment Court.”
117 Harrell, “Judging Drug Courts.”
118 Gottfredson et al., “Long-Term Effects of Participation in the Baltimore City Drug
Treatment Court.”
119 Ibid.
120 Roman, Testimony to U.S. House of Representatives Committee on Oversight and
Government Reform Subcommittee on Domestic Policy Hearing.
121 Belenko, “Research on Drug Courts: A Critical Review.”
122 Ibid.; United States General Accounting Office, Drug Courts: Overview of
Growth, Characteristics, and Results; United States General Accounting Office,
Adult Drug Courts: Evidence Indicates Recidivism Reductions and Mixed Results from
Other Outcomes.
123 United States General Accounting Office, Drug Courts: Overview of Growth,
Characteristics, and Results.
124 Hoffman, “The Drug Court Scandal”; King and Pasquarella, Drug Courts: A Review of
the Evidence; NACDL, America’s Problem Solving Courts.
125 Goldkamp, “The Drug Court Response”; Gottfredson et al., “Effectiveness of Drug
Treatment Courts.”
126 Fluellen and Trone, Do Drug Courts Save Jail and Prison Beds?; Gottfredson and Exum,
“The Baltimore City Drug Treatment Court”; O’Hear, “Rethinking Drug Courts.”
127 Miller, “Embracing Addiction”; Bhati et al., To Treat or Not to Treat: Evidence on the
Effects of Expanding Treatment to Drug-Involved Offenders; Rossman, Shelli Balter, J.
Zweig, and J. Roman, A Portrait of Adult Drug Courts, Washington D.C.: The Urban
Institute, 2008; Pollack et. al., “If Drug Treatment Works So Well, Why Are So Many
Drug Users in Prison?”
128 Fluellen and Trone, Do Drug Courts Save Jail and Prison Beds?
129 Ettner, Susan L. et al., “Benefit-Cost in the California Treatment Outcome Project:
Does Substance Abuse Treatment Pay for Itself?” Health Services Research 41, no. 1
(2006): 192-213.
130 SAMHSA, The National Treatment Improvement Evaluation Study (NTIES), Final
Report, 1997.
131 Drake, Elizabeth, Steve Aos and Marna Miller, “Evidence-Based Public Policy Options
to Reduce Crime and Criminal Justice Costs: Implications in Washington State.”
132 See generally Boldt, “Rehabilitative Punishment and the Drug Treatment Court
Movement”; Hoffman, “Therapeutic Jurisprudence, Neo-Rehabilitationism, and
Judicial Collectivism”; Miller, “Embracing Addiction.”
133 Ibid.
134 Bowers, “Contraindicated Drug Courts.” Ethnographic descriptions of how this
paradox manifests in practice are provided by study of a juvenile drug court in
Whiteacre, Kevin, “Strange Bedfellows: The Tension of Coerced Treatment,” Criminal
Justice Policy Review 18, no. 3 (2007): 260-273: “Staff members experienced personal
ambivalence over the efficacy of sanctions as a therapeutic tool, particularly when faced
with some juveniles’ continued noncompliance despite the sanctions. Staff neutralized this tension by attributing noncompliance to the juveniles’ lack of motivation,
concluding coerced treatment only works for those who are “ready” for treatment.
This would appear to pose a paradox for coerced treatment, which is meant to induce
compliance specifically among those who are not motivated.” See also Whiteacre,
“Drug Court Justice.”
135 Hoffman, “Therapeutic Jurisprudence, Neo-Rehabilitationism, and Judicial
Collectivism.”
136 Boldt, “Rehabilitative Punishment and the Drug Treatment Court Movement.”
137 Ibid.; Boldt, “A Circumspect Look at Problem-Solving Courts.”
138 Boldt, “A Circumspect Look at Problem-Solving Courts.”
139 Bakht, Natasha and Paul Bentley, Problem Solving Courts as Agents of Change, Ottawa:
National Judicial Institute, 2004; See also Nolan, James L. Jr., Legal Accents, Legal
Borrowing: The International Problem-Solving Court Movement. Princeton, NJ:
Princeton University Press, 2009.
140 California Department of Alcohol and Drug Programs, “Proposition 36 Ballot Initiative (2000 General Election)” <http://www.adp.state.ca.us/SACPA/
Proposition_36_text.shtml>.
115

27

Endnotes
continued

Longshore, Douglas et al, Evaluation of the Substance Abuse and Crime Prevention Act:
2003 Report, Los Angeles, CA: UCLA Integrated Substance Abuse Programs, 2004.
142 California Department of Alcohol and Drug Programs and Judicial Council of
California, Administrative Office of the Courts, Drug Court Partnership Act of 1998,
Chapter 1007, Statutes 1998 – Technical Report, June 2002.
143 Longshore et al., Evaluation of the Substance Abuse and Crime Prevention Act:
Final Report.
144 Ehlers, Scott and Jason Ziedenberg, Proposition 36: Five Years Later, Washington D.C.:
Justice Policy Institute, April 2006.
145 Longshore et al., SACPA Cost-Analysis Report (First and Second Years), Los Angeles,
CA: UCLA Integrated Substance Abuse Programs, 2006.
146 Ehlers and Ziedenberg, Proposition 36: Five Years Later.
147 Longshore et al., Evaluation of the Substance Abuse and Crime Prevention Act:
2005 Report, Los Angeles, CA: UCLA Integrated Substance Abuse Programs.
148 Hser et al., “Impact of California’s Proposition 36 on the Drug Treatment System:
Treatment Capacity and Displacement,” American Journal of Public Health 97, no. 1
(2007): 104-109.
149 California Department of Alcohol and Drug Programs, Substance Abuse and Crime
Prevention Act of 2000 (SACPA – Proposition 36): Four Annual Report to the Legislature,
October 2005.
150 Stevens et al., “On Coercion”; National Association of Criminal Defense
Lawyers, America’s Problem-Solving Courts: The Criminal Costs of Treatment and the
Case for Reform.
151 National Association of Criminal Defense Lawyers, America’s Problem-Solving Courts:
The Criminal Costs of Treatment and the Case for Reform.
152 Ibid.
153 Boldt, “Rehabilitative Punishment and the Drug Treatment Court Movement”;
Miller, “Embracing Addiction”; National Association of Criminal Defense
Lawyers, America’s Problem-Solving Courts: The Criminal Costs of Treatment and the
Case for Reform.
154 Belenko, “Research on Drug Courts: A Critical Review”; Belenko, Research on
Drug Courts: A Critical Review (2001 Update); Fischer, B., “Doing Good with a
Vengeance”; United States General Accounting Office, Drug Courts: Overview of
Growth, Characteristics, and Results; United States General Accounting Office, Drug
Courts: Better DOJ Data Collections and Evaluation Efforts Needed to Measure Impact
of Drug Court Programs; King and Pasquarella, Drug Courts: A Review of the Evidence;
National Association of Criminal Defense Lawyers, America’s Problem-Solving Courts:
The Criminal Costs of Treatment and the Case for Reform.
155 For a summary of drug law and penalty changes in 2010, see Porter, Nicole D.,
The State of Sentencing 2010: Developments in Policy and Practice, Washington D.C.:
The Sentencing Project, 2011.
156 The Pew Center on the States. Prison Count 2010: State Population Declines for the
First Time in 38 Years, Washington D.C.: April 2010 <http://www.pewcenteronthestates.org/uploadedFiles/Prison_Count_2010.pdf?n=880>.
157 Drug Policy Alliance, New York’s Rockefeller Drug Laws: Explaining the Reforms of
2009, New York: August 2009 <http://www.drugpolicy.org/docUploads/Explaining_the_RDL_reforms_of_2009_FINAL.pdf>.
158 Murphy, Sean. “GOP lawmaykers paying price for tough-on-crime laws,” Associated
Press, January 31, 2011 <http://news.yahoo.com/s/ap/20110131/ap_on_re_us/
us_broken_budgets_prison_problems>.
159 Ibid.
160 Murphy, “GOP lawmaykers paying price for tough-on-crime laws.”
161 Baker, Peter. “Obama Signs Law Narrowing Cocaine Sentencing Disparities,” New
York Times. August 3, 2010 <http://thecaucus.blogs.nytimes.com/2010/08/03/obamasigns-law-narrowing-cocaine-sentencing-disparities/?nl=us&emc=politicsemailema3>.
162 California Emergency Management Agency. Joint Legislative Budget Committee Report,
Table B, January 2010. See also US Government Accountability Office, Department
of Justice Could Better Assess Justice Assistance Grant Program Impact. October 2010
<http://www.gao.gov/new.items/d1187.pdf>.
163 Drug Policy Alliance, “$90 Million in Federal Funds Going to California Counties
for Drug Treatment & Probation,” March 8, 2010 <http://www.drugpolicy.org/news/
pressroom/pressrelease/pr030810.cfm>.
164 The Defender Association-Racial Disparity Project. “Law Enforcement Assisted
Diversion (LEAD): A Pre-Booking Diversion Model for Low-Level Drug
Offenses.” Seattle, WA: 2010 <http://www.law.seattleu.edu/Documents/cle/archive/2010/032610%20Restorative%20Justice/215pm%20LEAD%20concept%20
paper.pdf>.
141

28

San Diego Police Department. “Serial Inebriate Program”
<http://www.sandiego.gov/sip/>.
166 Federal Bureau of Investigation, “Crime in the United States 2009.”
167 Ibid.
168 Hughes, Caitlin Elizabeth, and Alex Stevens, “What Can We Learn from the Portuguese
Decriminalization of Illicit Drugs?” British Journal of Criminology, 2010 50 (5).
169 Ibid.
170 Ibid.; Hughes, Caitlin Elizabeth, “Overcoming Obstacles to Reform?: Making and
Shaping Drug Policy in Contemporary Portugal and Australia (PhD thesis, The
University of Melbourne, 2006).
171 Hughes and Stevens, “What Can We Learn from the Portuguese Decriminalization
of Illicit Drugs?”
172 Ibid.
173 Greenwald, Glenn, Drug Decriminalization in Portugal: Lessons for Creating Fair and
Successful Drug Policies, Washington D.C.: Cato Institute, 2009; Hughes and Stevens,
“What Can We Learn from the Portuguese Decriminalization of Illicit Drugs?”
174 Hughes and Stevens, “What Can We Learn from the Portuguese Decriminalization
of Illicit Drugs?”
175 Instituto da Droga e da Toxicodependência, Relatório Anual 2008 - A Situação do País
em Matéria de Drogas e Toxicodependências, Portugal, 2009.
176 Hughes and Stevens, “What Can We Learn from the Portuguese Decriminalization of
Illicit Drugs?”
177 Instituto da Droga e da Toxicodependência, Relatório Anual 2008 - A Situação do País
em Matéria de Drogas e Toxicodependências.
178 Hughes and Stevens, “What Can We Learn from the Portuguese Decriminalization of
Illicit Drugs?”
179 Ettner et al., “Benefit-Cost in the California Treatment Outcome Project.”
180 Rydell, Peter C. and Susan S. Everingham, Controlling Cocaine: Supply Versus Demand
Programs, Santa Monica, CA: RAND, 1994.
181 SAMHSA, The National Treatment Improvement Evaluation Study (NTIES),
Final Report, 1997.
182 CNN, “Timeline: When health care reform will affect you,” March 26, 2010
<http://www.cnn.com/2010/POLITICS/03/23/health.care.timeline/index.html>.
183 Heimer, Robert, “Can Syringe Exchange Serve as a Conduit to Substance Abuse
Treatment?,” Journal of Substance Abuse Treatment, 15, no. 3 (1998): 183-191;
MacPherson, Donald, A Framework for Action: A Four-Pillar Approach to Drug Problems
in Vancouver, City of Vancouver, April 2001; Broadhead, Robert et al., “Safer Injection
Facilities in North America: Their Place in Public Policy and Health Initiatives,”
Journal of Drug Issues 32, no. 1 (2002): 329-356; Wood et al., “Attendance at Supervised
Injection Facilities and Use of Detoxification Services,” New England Journal of
Medicine, 354 (2006): 2512-2514.
184 Hughes and Stevens, “What Can We Learn from the Portuguese Decriminalization of
Illicit Drugs?”
185 Paulozzi, Leonard J., “Trends in Unintentional Drug Overdose Deaths,” statement
made before the Senate Judiciary Subcommittee on Crime and Drugs, March 12, 2008
<http://www.hhs.gov/asl/testify/2008/03/t20080312b.html>.
186 National Institute on Drug Abuse, “Infectious Diseases and Drug Abuse,” NIDA Notes
14, no. 2 (1999).
187 World Health Organization, Policy Brief: Provision of Sterile Injecting Equipment to
Reduce HIV Transmission, Geneva: WHO, 2004.
188 Gibson, David R., Neil M. Flynn, and Daniel Perales, “Effectiveness of Syringe
Exchange Programs in Reducing HIV Risk Behavior and HIV Seroconversion among
Injecting Drug Users,” AIDS 15 (2001): 1329-1341.
189 Kerr et al., “Drug-Related Overdoes Within a Medically Supervised Safer Injection
Facility,” International Journal of Drug Policy 17 (2006): 436-441.
190 Wood et al., “Changes in Public Order After the Opening of a Medically Supervised
Safer Injecting Facility for Illicit Injection Drug Users,” Canadian Medical Association
Journal 171, no. 7 (2004): 731-734.
191 Maxwell, S. Bigg, D. Stanczykiewicz, K. Carlberg-Racich, “Prescribing Naloxone to
Actively Injecting Heroin Users: A Program to Reduce Heroin Overdose Deaths,”
Journal of Addictive Diseases 25, no. 3 (2006): 89-96.
192 Centers for Disease Control and Prevention, “Syringe Exchange Programs: United
States, 2005,” Morbidity and Mortality Weekly Report 56, no. 44 (2007): 1164-1167.
193 Heimer, “Can Syringe Exchange Serve as a Conduit to Substance Abuse Treatment?”
194 Sung, Hung-en, and Steven Belenko, “Failure After Success: Correlates of Recidivism
Among Individuals Who Successfully Completed Coerced Drug Treatment,” Journal of
Offender Rehabilitation 42, no. 1 (2005): 75-97; SAMHSA, Office of Applied Studies,
Employment Status and Substance Abuse Treatment Admissions: 2006.
165

Drug Courts Are Not the Answer:
Toward a Health-Centered Approach to Drug Use

About the Drug Policy Alliance
The Drug Policy Alliance (DPA) is the nation’s leading
organization promoting alternatives to the drug war that are
grounded in science, compassion, health and human rights.
DPA serves as a national watchdog and global advocate for sane
and responsible drug policies. It is headquartered in New York
and has offices in California, Colorado, New Jersey, New Mexico
and Washington, D.C.
DPA has built broad coalitions to reduce the role of criminalization
in drug policy at the state and federal levels. DPA spearheaded
the passage and implementation of Proposition 36, California’s
landmark treatment-not-incarceration law, approved by 61 percent
of California voters in November 2000. Prop. 36 allows people
convicted of a first and second low-level drug law violation the
opportunity to receive drug treatment instead of incarceration.
Since the law’s passage, more than 300,000 people have been
diverted from conventional sentencing to drug treatment, saving taxpayers more than $2.5 billion. For all the reasons outlined
in this report, DPA remains committed not just to alternatives to
incarceration but to ultimately removing criminal penalties for
drug use absent harm to others and to expanding health-centered
approaches to drug use.

Acknowledgements
DPA would like to acknowledge Becky Lo Dolce for spearheading the research survey and analysis underlying this report. Many
thanks to Alex Stevens, Craig Reinarman, Bob Newman, Nastassia
Walsh, Marc Mauer, Harry Levine, Alex Kreit, Deborah Small, Richard Boldt and Philip Bean for providing thoughtful feedback that
helped us clarify the analysis. Special thanks to DPA’s Margaret
Dooley-Sammuli and Daniel Abrahamson, who moved this report
from vision to finished product, and Jag Davies, who provided
critical editing and support.

Media Contact
Tony Newman
Director, Media Relations
tnewman@drugpolicy.org
212.613.8026 voice
646.335.5384 cell

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legalaffairs@drugpolicy.org
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