The Future of Drug Courts

Articles

The Future of Drug Courts

Based on the demonstrated success of drug courts—and the enthusiastic public attention these courts have generated—a number of states have begun to take the next step, seeking not just to replicate pilot drug courts, but rather to test system-wide the viability of new approaches to the problem of addiction.

Perhaps no criminal justice innovation has spread as rapidly in recent years as drug courts, which offer judicially monitored treatment as an alternative to incarceration for non-violent addicts. The first drug court was launched in Dade County, Florida, in 1989. Today, there are more than 1,200 drug courts either in operation or in planning across the country. More than 226,000 defendants have participated in these programs.

Drug courts are the most prominent example of a wave of “problem-solving” innovation that has sought to change the way courts operate in this country. Alongside drug courts, domestic violence courts, community courts, family treatment courts, mental health courts, and other specialized courts are using the authority of the judicial branch in new ways—in an effort to improve outcomes for victims, communities, and defendants. These problem-solving courts employ new tools and new methods—such as requiring defendants to appear regularly before judges to report on their compliance with court orders, or adding social scientists, drug treatment counselors, and other service providers to the courtroom team.

The first generation of problem-solving courts has achieved some provocative results—none more so than drug courts. Independent research credits drug courts with reducing rates of drug use and rearrest among participants. Also, treatment retention rates—a key indicator of long-term sobriety—are twice as high for participants in drug courts as opposed to individuals who seek out treatment voluntarily.

To date, the drug court movement has largely been a grassroots phenomenon, driven by a highly motivated cadre of judges, prosecutors, and court leaders. Based on the demonstrated success of drug courts—and the enthusiastic public attention these courts have generated—a number of states have begun to take the next step, seeking not just to replicate pilot drug courts, but rather to test system-wide the viability of new approaches to the problem of addiction. Their focus is on building systems at a state level, either through special judicial branch-led efforts (as in New York), legislation (Indiana), or collaborative efforts that bring together the heads of statewide agencies like corrections, courts, and social services (Utah).

Clearly, drug courts are at the brink of moving into a new stage of development. Acknowledging this reality, in March 2002 the United States Department of Justice, working with the Center for Court Innovation, brought together a select group of judges, practitioners, and thinkers from around the country to discuss the future of drug courts. The goal of the roundtable was two-fold: first, to unearth some of the strategic, conceptual, and practical challenges that practitioners face in attempting to bring drug courts into the mainstream of court operations, and second, to provide a road map to drug court advocates in addressing those challenges.

Perhaps not surprisingly, the topic proved to be a complicated one. During a day-long conversation, court administrators, judges, legal scholars, and experts in other fields of social policy innovation grappled with a series of difficult questions. How do you “go to scale” with an idea like drug courts? Is the goal to promote continued replication of the drug court model? Or is the goal to advance drug court principles and strategies, making sure they take root in every courtroom? Most important, how do you institutionalize innovation? Will the drug court approach lose its effectiveness if it becomes business as usual?

Several key themes emerged from the discussion. Many, though not all, participants agreed that going to scale meant more than “hanging more signs on the door” (a phrase coined by University of Wisconsin law professor Michael Smith) or merely increasing the number of drug courts in existence. Instead, participants seemed eager to distill the “active ingredients” or “essence” of the drug court model—and to encourage the spread of drug court principles as opposed to expanding the number of drug courts. Adele Harrell, a researcher at the Urban Institute who has written extensively about drug courts, put it best when she suggested that success for advocates might lie in drug courts fading “out of existence as their tenets become embedded in practice.”

The desire to spread elements of the drug court approach—and not replicate drug courts per se—has some important implications. First and foremost, it means that advocates must identify which elements of the model that they wish to see incorporated into the broader court system. This is a more difficult task than it might at first appear. Participants at the roundtable articulated a number of core drug court elements. For Utah state court administrator Gary Becker, the essence of drug courts is the creation of new partnerships between courts and state treatment agencies. For law professor Smith, it is “the idea that sentencing is a responsibility of the court over a long term.” San Diego Judge James Milliken and Indianapolis prosecutor Scott Newman cited concrete goals: providing judges with more comprehensive assessments and more sophisticated management information tools to guide sentencing decisions and help track offender compliance with court orders. And for New York Deputy Chief Adminstrative Judge Joseph Traficanti, who’s leading an ambitious statewide effort to create drug courts in each of New York’s 62 counties, the goal is to make it possible “for any defendant, in any jurisdiction, to go into treatment.” The fact that participants in the roundtable (most of them drug court proponents) were unable to reach consensus on the core elements of the drug court approach suggests that more work has to be done before advocates attempt to mainstream them.

In addition to tackling conceptual problems, participants also addressed strategy questions. Participants returned again and again to the challenge of institutionalizing the drug court model without dampening the spirit of innovation that led to their creation in the first place. “[P]eople don’t respond well to being told, ‘You have to do this,’” said Lisbeth Schorr, an expert on social policy innovation based at Harvard University. She added: “You can’t mandate belief in a program.” Indianapolis prosecutor Scott Newman agreed, arguing that key leaders must have “[t]ransformative personal experiences” if they are to buy into the drug court idea.

Roundtable participants repeatedly articulated the tension between the need to ensure quality control as an idea goes to scale and the imperative to preserve local flexibility. One way this was expressed was the effort to distinguish “institutionalization” from “bureaucratization.”
“Bureaucracy creates a coercive style of leadership that forces other people to act in a certain way,” Scott Newman said, while “institutionalization is a motivational style of leadership which gets people inspired.” Many participants argued that the best way to promote institutionalization without bureaucratization was to create an intermediary entity that would provide the technical assistance and support necessary to ensure the quality of implementation at individual sites.
This would help drug courts “move from a system based on charisma to one based on standards and principles,” without sacrificing local control, according to Columbia University law professor Michael Dorf.

Participants also highlighted the need for drug courts to create new partnerships or strengthen existing ones as they mature. One example cited was the need to work with state drug and alcohol agencies, which not only manage large sums of money (from federal health and human service grants) but also have responsibility for guaranteeing the quality of treatment services. Going to scale will be “next to impossible” without involving the commissioners of state alcohol and drug agencies, said Valerie Raine of the Center for Court Innovation.

A second area for potential collaboration are state legislatures, which in many places are eager to create a statutory framework (and provide funding) for drug courts. Partnerships with state legislatures can either help or hinder drug courts, as the examples of Utah and Indiana suggest. While Utah provided a statutory framework that allowed federal treatment resources to be redirected to drug courts—clearly a positive development —in Indiana, pending legislation seeks to codify how drug courts are defined, a development that many feared would severely limit local flexibility. This suggests that drug court advocates will have to proceed cautiously in working with legislatures.

In addition to airing out conceptual and strategic challenges, participants shared their reservations about institutionalization—and in particular its potential unintended consequences. “Today’s innovation is tomorrow’s conventional wisdom,” warned Michael Smith. “I think we need to find a way to go to scale that’s open to constant change, revision and discovery. Otherwise, you just make it more difficult for the next innovator.” In that vein, Adele Harrell cautioned against “overselling the promise” of drug courts, a shortcoming of past criminal justice innovations that have come and gone.

Despite these reservations, participants were cautiously optimistic about the prospects for institutionalization, pointing out that drug courts have already made significant strides forward. Perhaps the most heartening news of the day came from Lisbeth Schorr. Schorr, who has spent the greater part of her professional life thinking about government innovation, remarked that in discussing drug court institutionalization, participants had already reached an unusual level of sophistication. “[T]his is a far better, more rigorous discussion than I am used to hearing,” she said.

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