Courting Drug-Policy Reform

Before January, Judge Wendell P. Gardner Jr. had never been hugged by a defendant. But he had to get into a different mindset when he took over as the District of Columbia's adult-drug-court judge at the beginning of the year. Now, each month when nonviolent drug offenders "graduate" from the five to 18 months of judge-supervised treatment, he steps off the bench and interacts with the users he helps keep out of jail. For the George H.W. Bush appointee, drug courts are not about politics, they are about treatment and results. "You get a sense you're really helping someone," he says.

But the approximately 2,100 U.S. courtrooms like his that divert nonviolent drug offenders from prison and into treatment aren't warm and fuzzy. Gardner himself has been known to administer stern lectures from the bench. Still, it's not uncommon for drug-court graduates—who are avoiding jail with completion of the program—to get a little choked up. Drug courts, which were first tried 20 years ago in Florida to address the high rate of recidivism among felony drug offenders, have slowly gained public acceptance, and lately, public recognition. President Obama's drug czar, Gil Kerlikowske, sees them as one of the crucial ways to "break the cycle of addiction and crime." Obama has sought to double the funding for these courts in 2010.

Although Democrats seem unable to agree with each other on much these days, from health care to climate change—and they do not agree with Republicans on much of anything—drug courts seem to be that vanishingly rare thing in Washington: an issue with near consensus.

Though the specifics of the drug courts differ at the local level (and are typically organized by those who run their day-to-day affairs: the judge, probation officers, prosecutors, lawyers, and treatment facility), they are all founded on the same premise: incarcerating nonviolent drug offenders doesn't make for good crime reduction or fiscal policy. When nonviolent drug offenders opt into these programs, they are signing up for multiple drug tests per week, treatment-counseling requirements, and weekly appearances in front of the drug-court judge.

For drug offenders, there are two ways in. In most cases, someone arrested for drug possession or a nonviolent drug-motivated crime (say, stealing car parts to be able to afford drugs) must plead "guilty" for the crime, and then they can be routed to drug court—typically as a requirement for probation. In some communities someone could be sent to drug court without having to enter a plea at all. In those cases completion of drug court means they do not have a conviction and they will not need to check off "yes" under conviction questions on an employment application. No matter how you get in, a slip-up or missed court dates means the judge will mete out escalated sanctions ranging from washing police cars to going to jail for a few days, and the incentive to graduate is clear: failure to stay clean means you go to prison. There are also often more immediate carrots for good behavior, such as bus tokens and fewer court dates.

As a whole, the drug courts work. Meta-studies by the Government Accountability Office and the National Drug Court Institute show that when addicts stick to the judge-supervised drug-treatment program, it lowers prison costs and overcrowding, helps get addicts clean, and makes a dent in the revolving door of recidivism. The Urban Institute estimates that when the U.S. spent about half a billion dollars on supervision and treatment for the approximately 55,000 adult nonviolent drug offenders that went through the drug courts in 2005, the courts saved more than $1 billion in reduced prison and law-enforcement costs. West Huddleston, CEO of the National Association of Drug Court Professionals (NADCP), notes that there are more participants in drug courts today than when the study was done and adds that the savings are even greater when avoided emergency-room care and improved workplace productivity are included.

The common critiques? There are not enough of the courts and they should be open to more drug offenders. The National Association of Criminal Defense Lawyers also recently issued a report calling for more standardization of drug-court practices and arguing that drug offenders should be able to access treatment and rehabilitation services in all drug courts without having to plead guilty. "We are very much in favor of drug courts, but we're not sure that a criminal conviction should be part of it. Addiction is a public health problem," says Cynthia Hujar Orr, president of the NACDL. "This administration's Department of Justice is very interested in getting [drug courts] right. The question that remains is, Do they see this as a public-health problem like we do?"