Problem-Solving Justice: How Well is it Working?

Drug courts and similar alternatives to traditional courtrooms are  skyrocketing around the US.  But some argue they are “wrong-headed” policy.

One Friday in 2002, I spent several days in a drug court in San Jose, California. It was not a typical drug court. All 50 defendants had been diagnosed as mentally ill and seriously addicted. The grinding poverty and degradation of their lives was on searing display that day: etched in crumbled, pain-filled, black faces; in the slumped shoulders of battered, middle-aged Mexican-American men with blank eyes who knew they were already dead; and in the rotting teeth and thigh-wide arms of pasty, bloated white women woefully old before their time.

But sprinkled among them were others who had completed court-mandated rehab programs and had come to their graduation ceremony to receive an official hug from the judge and freedom from his judicial oversight, instead of being sent off to yet another stint in prison.

The experience was a revelation. I was completing a book about California’s three- strikes law, and was reeling under the weight of writing about people receiving 25-years-to-life sentences for possessing amounts of cocaine measured in milligrams, or  three dollars’ worth of a controlled substance while in jail. And here was a court whose operating philosophy was that drug addicts were not criminals to be punished, but people with a disease that needed treatment; and that it was the job of a judge—working with a team of criminal justice and drug treatment professionals—to fully engage in helping desperate people kick their habits and reclaim their lives.

Given the mandatory-minimum drug sentences then in vogue, the drug court seemed a remarkably innovative and humane step forward, and one I never questioned until I attended a panel discussion entitled “Re-Thinking Courts: Problem-Solving Justice” at the 5th annual Harry Frank Guggenheim Symposium on Crime in America at John Jay College this month.

While the panel didn’t shake my faith in the great work done in drug and other problem-solving courts, the discussion nevertheless raised some critical questions about the stunning growth and sweeping nature of drug courts and similar alternative forms of jurisprudence in America today.

Treatment or Jail: A Fair Choice?

They were raised by panelist Rick Jones, director of the Neighborhood Defender Service of Harlem (NY). He called the courts “exercises in wrong-headed policy” and questioned whether drug treatment should even “be housed in the criminal justice system.”   He also asked whether people should “be forced to go into treatment or face jail or prison.”

These were provocative questions. After all, according to a 2004-2007 longitudinal study conducted by the National Drug Court Institute, an advocacy and research group which provides technical support to drug and other problem-solving courts, “drug courts significantly improve substance abuse treatment outcomes, substantially reduce crime, and produce greater cost benefits than any other justice strategy.”

Another panelist, Valerie Raine, underscored that study’s conclusions. A former public defender and now the Director of Drug Court Programs at the Center for Court Innovation in New York, Raine said that while voluntary “treatment retention rates are 10-30 percent, comparable [mandated] drug court rates are 60 percent nationally.”

“Drug courts also reduce recidivism rates of all drug court participants – success and failures –by between 10 to 13 percent nationally,” she continued, adding that for “graduates of adult drug courts, the number shoots up to 66 percent.”

Since the inception of drug courts in Miami-Dade County, Florida in 1989, drug courts have grown exponentially. In 1995 there were just 75 in the U.S. By the beginning of 2008, according to the Office of National Drug Control Policy, the number had skyrocketed to 2,140, with an additional 280 in the pipeline.

There are also Community Justice Courts, such as the one run in Red Hook, Brooklyn, by another panelist, Judge Alex Calabrese. They try to solve community problems by providing treatment, job training and a wide range of social services in lieu of incarceration. When combined with drug and other “problem-solving courts” such as DWI, family treatment, juvenile treatment, domestic violence, mental health and reentry courts, there are now well over 3,200 such courts in the U.S.

Another of the panelists, Chandlee Johnson-Kuhn, Chief Judge of Delaware Family Court, is even pioneering a gun court that she says will allow her “to keep more kids in juvenile court” if the shooting did not result in an injury—thus insuring that the juvenile won’t have to simply sit in jail for six months awaiting trial, but instead, can immediately access a wide range of rehabilitative services.

But the arguments on the other side of the drug court debate make compelling reading.

NACDL Study

Jones’ critique was based on a groundbreaking study on drug courts, mental health courts and other forms of problem-solving courts, which scholars group under the category of “therapeutic jurisprudence,” commissioned by the National Association of Criminal Defense Lawyers (NACDL).  As co-chair of the study, he spent nearly a year holding hearings in seven major cities and taking testimony from over 130 witness. The report, America’s Problem Solving Courts: The Criminal Cost of Treatment and the Case for Reform,” was published in August 2009. “As much as I respect Valerie Raine,” said Jones, “I hope she’s wrong when she says that the ‘verdict is in,’ and that the discussion is closed on whether or not drug courts work. [Because] drug courts are wrong-headed social policy for the country. Addiction is an illness [that shouldn’t] be dropped at the door of the criminal justice system.”

Instead, argued Jones, people should be receiving non-mandated, readily-available treatment in widespread community-based treatment centers.

Jones used the example of a fourth member of the panel, Tina M. Dixons, to illustrate his point. An ex-offender and recovering drug addict, Dixons, now the Regional Coordinator of Dental Services for Phoenix House of New York and Long Island, led a harrowing life of addiction, homelessness, prostitution and multiple arrests beginning at age 13, before finally turning around her life in Judge Calabrese’s court at age 33.

“The moral of Ms. Dixons’ story,” said Jones, “is that I’m glad she’s now [recovered], but that she lost 20 years of treatment opportunities she could have gotten if meaningful community treatment had been available when she was 13. We might have nipped her addiction in the bud, and she won’t have had [to endure] over 20 arrests and become a high-risk addict.”

Then he leveled another criticism: “Often, only first-time offenders or those with no history of violence are admitted into the courts.” Such barriers exist, Jones contended, so that prosecutors and judges can boast of success rates as high as 80 or 90 percent. However, “the vast majority of people who are first time offenders and are caught with small amounts of a controlled substance are never going to become addicts,” said Jones. “We are diverting people [into drug courts and drug treatment] who don’t need diversion, and who wouldn’t otherwise be in the criminal justice system.”

Judge Calabrese responded: “I think a lot of your criticisms are accurate, but the problems are real and they are dropped at the backdoor. [In my court] we’re looking at people who have been addicted for 10 or 20 years to heroin, and we’re demanding that they stop. Well I’ve tried different diets for 10 or 15 years, and I’m only trying to stay away from cheese burgers – not heroin. Sometimes the only way you’re going to [stop people with serve addictions from using drugs] is if the alternative is a jail sentence.  I’m a big believer in mandated treatment.” (Which, as Dixons pointed out during her panel presentation, is exactly the threat that Calabrese used to keep her on the road to eventual recovery.)

The discussion concluded with Jones agreeing with Calabrese (sort of).  “If a drug court has a 90 percent success rate,” said Jones, “then that court is skimming, and taking only the easy cases. Otherwise their success rates should only be about 30 percent, tops. We need to focus our drug courts on only high-risk people who need the thread of incarceration. That will give us the most bang for our buck.”

Joe Domanick is Associate Director of the Center for Media, Crime and Justice, and West Coast Bureau Chief of The Crime Report

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