Drug Courts: Enter At Your Own Risk

12/15/2011 06:41 pm ET Updated Feb 14, 2012

The drug war is forty years old this year. It's time to step back and ask ourselves what's the best way to solve the problem we're trying to solve -- how to reduce drug abuse and addiction -- and use the best available evidence to guide us.

That's why we can't ignore a recent Government Accountability Office (GAO) report, which finds that only 18 of 32 drug courts -- or just over 50% -- showed statistically significant reductions in recidivism among participants. That is, almost half of drug courts do not reduce re-arrest rates of their participants below the rates of people who went through the normal criminal justice process.

The message here is: enter a drug court at your own risk. The chance that you'll enter a drug court that might help you avoid getting arrested again is about 50-50, the equivalent of a coin toss.

These findings may seem unexpected, given the generally positive reputation of drug courts, but to those following the research this doesn't come as a surprise. The popularity that drug courts enjoy is not supported by the evidence.

The GAO's findings echo those of the five-year Multi-Site Adult Drug Court Evaluation (MADCE), the longest and largest ever study of drug courts. Funded by the National Institute of Justice, MADCE recently reported a re-arrest rate for drug court participants that was 10 percentage points below that of the comparison group, but that the difference was not statistically significant. This means that the study effectively found no difference in re-arrest rates between the groups, as the decrease may be the result of chance.

This is significant because drug courts -- criminal justice programs that seek to reduce drug use through mandated treatment and close judicial oversight -- are supposed to help people address their drug problems and successfully exit the criminal justice system. But research shows that drug courts aren't reliably doing this.

Drug courts not only fail the recidivism test, but others as well. In March this year, the Drug Policy Alliance released Drug Courts are Not the Answer: Toward a Health-Centered Approach to Drug Use, which found that drug courts have not demonstrated cost savings, reduced incarceration, or improved public safety.

The real problem with drug courts, however, is that they attempt to address drug use within a drug war framework. That is, drug courts attempt to treat drug use as a health issue, but they cannot because they are required to enforce laws criminalizing drug use -- and therefore punishment trumps treatment every time. As a result, drug courts have actually made the criminal justice system more punitive toward addiction -- not less.

For example, people who struggle the most with a drug problem are more likely than those without a drug problem to be kicked out of a drug court and incarcerated. (And, yes, plenty of people who don't have a drug problem do end up in a drug court - many of them for a marijuana possession offense.) Although relapse is a common and predictable occurrence during treatment, drug courts often punish people who suffer a relapse by pulling them out of treatment and putting them in jail for several days or weeks. By contrast, in a medical setting, relapse calls for intensified treatment.

Anyone who has struggled, or seen a loved one struggle, with alcohol addiction knows that drug abuse is a difficult, personal, and complicated issue, not one that's going to be solved with a bumper sticker or simplistic solutions -- or with jail.

Millions of Americans are addicted to prescription drugs like pain killers, but no one thinks the solution is to lock them up. The solution should be the same for people addicted to similar drugs that just aren't made by a pharmaceutical company: treat the addiction.

To do this, drug policies need to be better aligned with evidence and with public health principles. We should reserve drug courts for cases involving offenses against person or property that are linked to a drug use disorder, while improving drug court practices and providing other options for people convicted of drug law violations. We should work toward removing criminal penalties for drug use to address the problem of mass drug arrests and incarceration. And we should bolster public health systems, including harm reduction and treatment programs, to more effectively and cost-effectively address problematic drug use.

Margaret Dooley-Sammuli is deputy state director in Southern California with the Drug Policy Alliance, the nation's leading organization working to end the war on drugs, and was a contributor to DPA's Drug Courts are Not the Answer: Toward a Health-Centered Approach to Drug Use.