Missouri Lawyers Weekly
April, 2010

Drug Courts Save Lives and Money: So Why the Criticisms?

by Dr. Douglas Marlowe, Chief of Science, Law and Policy, NADCP

More research has been published on the effects of Drug Courts than on virtually all other criminal justice programs combined.  By 2006, the scientific community had concluded beyond a reasonable doubt from what are called meta-analyses (highly advanced statistical procedures) that Drug Courts reduce crime and return financial benefits to society which are several times the initial investments.  A large-scale study funded by the National Institute of Justice and recently completed in 2009—called the Multi-Site Adult Drug Court Evaluation, or MADCE— has confirmed, once again, that Drug Courts reduce crime, reduce substance abuse, improve family relationships, and increase employment and school enrollment.

Yet, just as the scientific evidence is coming in decidedly in favor of Drug Courts, criticisms of Drug Courts appear to be reaching a surprising crescendo in opinion editorials and non-scientific law journals.  How can we explain this seeming paradox?  If the criminal justice system endorses evidence-based practices, why should negative sentiments be rising alongside favorable research findings?

The answer is at least two-fold.  One group of critics appears to be turning an intentionally blind eye to the research evidence to serve a drug-decriminalization policy agenda.  Although they may use scientific language to defend their objections, no amount of data could ever dissuade them from their position.  A second group of critics, however, recognizes the proven efficacy of Drug Courts, but worries that some Drug Courts might produce other negative side-effects which should also be taken into account, such as impeding zealous representation by defense counsel.  Because these latter critics are swayed by data, their concerns are capable of being empirically tested; and if confirmed, can point the way toward corrective measures that will advance the field rather than move it further and further behind.

One would be hard-pressed to point to a negative commentary on Drug Courts that does not, within the same pages, endorse a drug-decriminalization or legalization agenda.  For decades, drug legalizers could take steady aim at the so-called “War on Drugs” with its undue emphasis on mandatory sentencing and incarceration.  Such criticisms were easy to level, because the War on Drugs has been both prohibitively costly and largely ineffective at reducing drug abuse or crime. 

But Drug Courts throw a potential curve ball to these arguments.  Drug Courts prove that drug abuse can remain illicit without necessitating a costly and draconian punitive response.  We can hold people accountable for their dangerous behavior, while at the same time supervising them in the community and providing them with needed treatment and other services.  This finding could be seen by some as sweeping the legs out from under the strongest rationale for drug decriminalization.  And for this reason, it has elicited a steady stream of vehement antagonism framed in the guise of an objective scientific analysis.
Other critics, however, recognize that even beneficial treatments have the potential to cause unwanted side-effects.  For example, aspirin is proven to reduce pain but in some cases can cause unintended ulcers or blood thinning.  This has required the medical field to take remedial measures to reduce the likelihood that such side-effects will occur and to treat any negative symptoms that do emerge.  By analogy, there is always the possibility that some Drug Courts might misapply their authority or mishandle their operations to the detriment of their participants.  Moreover, there is the possibility that some types of addicted offenders might not respond well to the Drug Court model and should be treated in other ways. 

There are two problems, however, with how these arguments have typically been framed by critics of Drug Courts.  First, they assume facts not in evidence, and second, they often seek the wrong remedy.  A review of the research literature through February of 2010 failed to uncover a single empirical study confirming any of the untoward effects that have been attributed by critics to Drug Courts.  For example there is no reliable evidence (apart from some critics’ personal anecdotes) that Drug Courts impede adequate evidentiary discovery by defense counsel or sentence terminated defendants more harshly than if they had never entered the Drug Court.

It would not be a difficult matter, however, to study these questions in a scientifically defensible manner.  If such negative effects do exist, then corrective measures can be developed and tested to address them.  And finally, practice guidelines can be developed to ensure that all Drug Courts adhere to best practices and take reasonable efforts to avoid foreseeable injuries.  There is no need to “throw out the baby with the bath water.”  The indicated remedy is not to abandon the most successful program we have in the criminal justice system.  The appropriate course of action is to conduct more sophisticated research to improve the intervention and to develop standards to guide the actions of Drug Court professionals.

Drug Courts are here to stay not because they are politically palatable, but because they have withstood, time and again, rigorous empirical scrutiny.  They work where few other programs have.  The time has come for the Drug Court field to reach full maturity.  And like other mature disciplines, such as medicine or psychology, this means developing guidelines for effective and ethical practices.
The time has come for serious-minded constituencies to cease taking blind swipes at Drug Courts and vying for attention and limited resources.  We need to come together to determine who should be treated in Drug Courts, how to optimize Drug Court operations, and how to avoid or redress any potential harms.  This is what is meant by rational drug policy.