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A Day at the Drug Court

Treatment-based drug courts are more widespread than ever; advocates say they humanely cut crime and save cash. So why are they controversial? The Fix sits in on some hearings.

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A mural by participants at the computer learning center of the
Brooklyn Drug Treatment Court Sarah Beller

By Sarah Beller

03/05/13

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Derrick, a thin black man in his 20s, stands handcuffed under the fluorescent lights of the Brooklyn Drug Treatment Court. A few people occupy pew-style benches in the back, awaiting their turn in the spotlight; a girl cuddles with her nervous-looking boyfriend, who is absentmindedly playing with his braids. A policeman chews gum. Derrick has been arrested on a felony charge of heroin possession; the prosecutor has agreed to offer treatment as an option, instead of prison.

Judge Jo Ann Ferdinand tells Derrick’s lawyer, a public defender, “If he’s interested in treatment, he needs to plead guilty to a class A possession of controlled substance in the seventh degree [a misdemeanor].”

Derrick nods and is sworn in.

“So Mr.S---, you were in possession of drugs?” she asks, almost conversationally.

“Yes.”

“What was it?”

“Heroin.”

“You could be sentenced to a year, but we will delay so you can enter a methadone-to-abstinence program. If you successfully complete this plan, the plea will be vacated and dismissed. Otherwise, one year in jail. Are you ready to be drug-free and law abiding?”

This year, 2,734 drug courts will serve about 120,000 clients in all 50 states, thanks to a "historical 250% increase in federal funding."

He blows into his hands as if he’s cold. “Yes.”

Bottles of Purell line Judge Ferdinand's desk. “There’s no reason you can’t be successful. All your criminal history is connected to drug use. Let’s make your future different than your past.”

For two decades, scenes like this have been playing out nationwide in more and more drug courts—state-level programs that offer treatment instead of prison to some defendants arrested on drug or drug-related felonies. (The first known drug treatment court in the US was established in Miami in 1989, in response to the crack epidemic.) Developed locally, their operations vary significantly. Defendants are diverted to drug court programs at various stages in the judicial process. And while many people arrested for non-violent offenses are eligible, prosecutors ultimately determine who gets offered the option of treatment. Participants must usually plead guilty as a prerequisite, and they’re drug tested throughout treatment. Judges can reward or punish their behaviour: Incentives include certificates, cards and applause from the courtroom. Sanctions include admonishments, assigned essays, increased drug testing and court appearances, and, sometimes, a few days or weeks in jail.

This model is now fast spreading on the federal stage, where judges increasingly reject restrictions on their sentencing discretion. This year, according to the National Association of Drug Court Professionals (NADCP), 2,734 drug courts will serve about 120,000 clients in all 50 states, thanks to a "historical 250% increase in federal funding for Drug Courts this year." New York, for example, has invested heavily in this format—which is heartily backed by the Obama administration.

“Drug courts are one of the most important pieces of evidenced-based drug policy reform we have seen in generations,” US drug czar Gil Kerlikowske says in an email to The Fix. “By providing non-violent drug offenders with a chance to reclaim their lives through treatment rather than wasting away in prison, we save lives, save taxpayer dollars, reunite families, and reduce rates of incarceration. Decades of research and experience reveal that addiction—the underlying cause of too much crime in our communities—is a disease that can be successfully treated. Drug courts are what today’s discussion about drug policy should be about.”

This sounds great. But do the numbers back his claims?

Yes, says the NADCP's director of communications, Chris Deutsch, whose nonprofit organization trains drug treatment court staff and advocates for drug court funding. According to the NADCP, some 75% of drug court graduates remain arrest-free for at least two years. And for every dollar invested in drug courts, taxpayers can save as much as $3.36 in avoided criminal justice costs. So what’s not to like?

Plenty, argues the Drug Policy Alliance (DPA), the major advocacy group promoting progressive alternatives to the war on drugs—and its position on drug courts is broadly shared by groups such as the Justice Policy Institute and The Sentencing Project. In 2011, the DPA issued a report entitled "Drug Courts Are Not the Answer,” claiming, "Drug courts have not demonstrated cost savings, reduced incarceration or improved public safety." The report attacks some of the methodology of the research cited by the NADCP, and also challenges the basic premise behind drug courts: "Combining principles of treatment and punishment distorts the delivery of effective legal and health services. Punishment will always dominate in this arrangement."

How does the NADCP aim to balance public health and criminal justice concerns? "More and more, there is widespread acceptance that addiction is a public health concern and should be treated as such,” Chris Deutsch tells me. “We're moving away from trying to deal with addiction strictly through criminal justice. But there are still instances where the two intersect—and that’s where drug courts exist. Addicts who are committing crimes, breaking and entering to feed an addiction, or drunk driving—how can you both have a criminal justice response and treat the addiction in the community?”

But what about people like Derrick, who enter drug court on charges of possession, not DUI? "As long as drugs are illegal, drug courts will be there for serious addicts who get arrested for crimes like possession," Deutsch says. The advantage of drug courts, compared to voluntary treatment, Deutsch continues, is that "you can keep people out of jail, but you can also use the leverage of the court to keep them in treatment long enough to be successful. People spend a year minimum—not 30 or 60 days.”

In Brooklyn, the oversight of participants is intense. One man, who looks about 20, has come to court for drug testing at the state-of-the-art on-site urinalysis lab. After he tests positive for alcohol, he is sent to Judge Ferdinand for something between a reprimand and a speed-therapy session.

"What did you drink?" she asks bluntly.

"Hennessy," he says.

"You knew you had court today?"

He takes a breath: "To be honest, I need serious help. I don’t know what’s going on with me. I know it was stupid, but you know...”

"No," says Judge Ferdinand grimly. "I don’t know. I really don’t."

"I just need to be a stronger individual and get support, and use consequential thinking," he says, rocking gently from side to side.

"Why do you drink?" she asks.

"I don’t know. I be trying hard to change. I just want to go to school. I keep sabotaging myself."

The judge turns to the defense attorney: "OK, I want to see Mr. C--- here every Friday. The next positive test for alcohol I see, I want this case remanded. Good luck, Mr. C---."

"How do you justify imprisoning people for manifesting the symptoms of their disease?" asks the DPA's director, Ethan Nadelmann.

Mr. C--- picks up his book bag and ducks out through the back door, head down.

Judge Ferdinand later tells me that she and her colleagues are trained to understand the disease model of addiction. “We recognize that drugs take away the brain’s ability to hold you accountable,” she says. “Relapse is part of addiction, and we try to figure out what to do about it.” Courts like hers draw a distinction between relapse and noncompliance: “Relapsing but doing treatment is a treatment issue,” Deutsche says. “But If they're not complying with what the court is asking them to do, we have a waiting list of people trying to get in. We sometimes say, 'we’re gonna have to let you go,' though it’s not an easy decision."

The DPA’s director, Ethan Nadelmann, sees a "fundamental paradox" in a drug court based on the disease model. "How do you justify imprisoning people for manifesting the symptoms of their disease?" he asks me. The DPA also disputes drug courts’ overwhelming use of abstinence-only programs, rather than more harm reduction. ‘Whether [the disease] 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," says the DPA report. The participants with the best chance of compliance are those who do not actually have an addiction, the DPA notes, while those genuinely struggling with compulsive drug use are more likely to end up in prison.

The DPA doesn’t dismiss drug courts outright, but argues that they divert scarce funds from approaches that it considers more effective, like community-based treatment. This is especially important, says Nadelmann, when arrests and incarceration statistics reflect a profound race and class bias. In 2009, for example, the NYCLU reported that black people and Latinos comprise over 90% of those imprisoned in New York for drug offenses—although most users of illegal drugs were white. The figures at the Brooklyn Drug Treatment Court are similar, confirms Joseph Mandino, director of the Brooklyn Treatment Court Program: About 75-80% of their clients are black, about 15% Latino and about 10% white. "Wealthy people who struggle with addiction often can deal with it in a private setting. Poor people can often only access treatment through the criminal justice system,” Nadelmann says. Even within the drug court system, according to the DPA, the disparities are striking: Black participants are at least 30% more likely than whites to be expelled from drug court.

Changes the DPA would like to see in the drug court system include pre-plea rather than post-plea entry criteria, ensuring that people like Derrick don't have to plead guilty to certain crimes—thus waiving their right to a trial—to be accepted into treatment. There’s also "huge evidence" that harm reduction is effective for many people who fail at abstinence, says the DPA. The organization wants drug courts to adopt more objective admission criteria, too. But even if these adjustments were made, the DPA would ultimately prefer to see a US drug-law model more like the one in Portugal—where low-level possession of all drugs was decriminalized in 2001. "When you see Portugal succeeding," Nadelmann says, "it raises policy and moral issues about continuing to invest in a drug court approach, as opposed to the health system."

For now though, drug courts are a growing element of national drug policy. What they uniquely offer, Judge Ferdinand says, is a sanction-and-reward system and a set-up that allows clients waiting for their own session to get the message. "If the person is not complying," she says, "I immediately sanction them—they get a penalty. The other people see, ‘Here’s what’s gonna happen to you if you don’t comply.’ And they also see the success stories and think, ‘maybe I could do that.’ There’s no reason to want to stop [using] if you believe life will still be shitty after. These people need to believe that if they stop using, life will be better."

Near the end of the day, David, a young man, also black, with glasses and earrings, takes his place before the judge.

"Your attorney has told me you've had another excellent report,” Judge Ferdinand says. “You’ve participated, attendance is perfect, and you've continued to be clean and sober. I see you credit your family with motivating you?"

"Yup."

"What else do you think helped?"

In a monotone, David replies: "Staying sober and doing what I’m supposed to do."

Led by the judge, the courtroom breaks into a smattering of applause. There is no visible reaction on David’s face. The judge shakes his hand, and presents him with a gift "from all of us—the treatment team," as well as a certificate stating that he has passed on to the next level of his treatment.

As David walks out impassively, the young man with the braids, still in the pews awaiting his turn, nods at him. He looks hopeful.

Sarah Beller is a writer and social work intern who lives in Brooklyn. Her work has appeared in The Hairpin, xoJane, Lilith Magazine and Thought Catalog, and frequently in The Fix.

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