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Drug Court Mythology

After the recently concluded Summit of the Americas in which President Obama admitted that the topic of drug legalization was a legitimate one, only then to dismiss the proposition out of hand, Pulitzer Prize winning Miami Herald columnist Leonard Pitts, Jr. appropriately asked, if not legalization then what? Mr. Pitts correctly argues that the drug war is a failure, and lays out his frustration with U.S. drug policy, focusing on the enforcement costs of prohibition, the massive increase in arrests and prison populations, the damage done to Mexico and other Latin American countries as a result of the drug war, and the racial discrimination inherent in enforcing the War on Drugs.

In response, the Herald ran a letter from Calvina Fay, executive director of the pro-prohibition group Drug Free America Foundation, claiming that the War on Drugs is not a failure, drugs are bad and evil, drugs destroy communities and families, and drug laws protect those who do not use drugs; however, she failed to respond to Mr. Pitts’ concerns over the way blacks are disproportionately arrested and sent to prison as a result of the drug war.

While Mr. Pitts’ solution to the problem seems to be legalization or decriminalization, Ms. Fay’s solution is drug courts; a policy she claims is a viable alternative to incarceration. Ms. Fay is typical of prohibitionists supporting these compulsory treatment courts as the “smart approach” to our massive drug incarceration problem. But do drug courts actually accomplish this stated goal, and what affect do they have on the disproportionate rate at which blacks continue to bear the brunt of the drug war?

As Marquette University Law School Professor Michael M. O’Hear explains, despite the arguments advanced in favor of drug courts, they likely lead to increased imprisonment for drug offenders. Drug courts actually work in concert with law enforcement, leading to what criminologists call net-widening effects.

Net-widening effects are, “an expansion in the number of offenders arrested and charged…because well-meaning police and prosecutors now believe there to be something worthwhile that can happen to offenders once they are in the system (i.e., treatment instead of prison).” Police are encouraged by drug courts to arrest offenders they normally wouldn’t, “because of a perception that the drug court is an additional resource for adjudicating claims, as opposed to a diversion meant only for those who would have been arrested anyway.” For instance, the implementation of a drug court in Denver was followed by massive increases in drug arrests. In the year prior to the drug court’s arrival, drug cases represented 28.6% of all criminal filings. However, the first year after creating the court, drug filings skyrocketed, almost doubling to 51.5% and remaining static at that high level.

Once brought into the criminal justice system, the newly arrested are far more likely to face incarceration rather than treatment. Drug courts have capacity constraints and entrance requirements that keep out many of those arrested in response to the creation of a drug court. While the requirements for participation in drug courts differ from state to state, they generally only allow non-violent offenders and exclude people with criminal backgrounds and those charged with distribution.

The high failure rate of drug courts may also lead to increased prison populations, and “failure may result in greater incarceration than nonparticipation” in the treatment program. Research on New York City drug courts found failing participants received sentences anywhere from “two-to-five times longer than the sentences for conventionally adjudicated defendants.” And since only 30 to 70 percent of participants complete the drug court’s mandatory treatment program, an ample amount of those who fail to complete the program may find themselves subject to lengthier prison terms than if they would have foregone the drug court altogether in favor of traditional prosecution.

While it turns out drug courts aren’t quite the alternative to incarceration they’re made out to be – their effects on black Americans are nothing if not counter productive. As shown by professor O’Hear, evidence indicates that drug courts offer perverse incentives that exacerbate and perpetuate the racial disparities felt by blacks in sentence lengths, as well as arrest and prison rates for drug offenses. This is because drug courts have “no direct effect on the police practices that result in the disproportionate numbers of blacks entering the criminal justice system.” Since drug courts lead to increases in arrests, this will “result in more incarceration for some classes of black offenders,” and if “blacks continue to be dramatically overrepresented at the frontend of the system, it is unlikely that they will be anything but dramatically overrepresented at the back-end, in prison.” Moreover, drug court entrance requirements such as lack of criminal history will tend to disqualify blacks more so than others, since blacks are more likely to have prior criminal records.

Nor are Drug courts likely to counter the prevailing distrust and cynical attitudes many in black communities have towards the criminal justice system. The antipathy some blacks feel may even “be exacerbated by a drug court culture that relies heavily on public shaming rituals.” Research shows that drugs courts can be stigmatizing, as the enmity of some drug court judges can focus on the defendants themselves rather than their actions. As professor O’Hear points out, “if we can imagine this picture of public degradation as one that features a white person on the bench and a largely black population as the recipients of his scorn, it is not hard to imagine an unfortunate reinforcement of negative racial stereotypes.”

This is not to say that drug courts have no utility at all, as surely some offenders are able to overcome their addiction and reform their criminal behavior. But benevolent intentions behind drug courts and compulsory criminal justice treatment aside, significant unintended consequences remain. What benefits may exist for some are far outweighed by the increases in arrests that accompany drug courts, harsher punishments given to those failing to complete mandated treatment, and entrance requirements that preclude the participation of blacks and many drug offenders who may actually benefit from treatment. Drug courts further fail in reducing, and likely exacerbate, both the disparities in which blacks are arrested and imprisoned for drug offenses and the hostility many black communities hold for their disparate treatment by the criminal justice system.

Until the advocates of drug courts grapple with the unintended consequences that result, their proposed smart approach is just a continuation of the horrific drug war. No matter how well intended these compulsory judicial treatment programs may be – they still operate under the purview of the criminal justice system, a system that is designed to punish and sanction.

Cross-posted at

Image via Gainesville Times

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