Research suggests that drug courts are effective at reducing crime and incarceration. So why aren’t they universally embraced by the criminal justice reform movement?
Traditional criminal courts purport to arrive at justice — but they rarely address the underlying problems that may have led to a crime having been committed in the first place. Working within an adversarial system, a prosecutor’s main goal is to efficiently obtain a criminal conviction and a punitive sentence, while the defense attorney seeks to obtain the most lenient outcome for their client. Individual defendant characteristics — their life circumstances, personal strengths or drug and mental health problems are rarely the court’s concern.
This blind spot is especially problematic when it comes to drugs and alcohol: Despite extremely high rates of substance use disorders among people under criminal justice system supervision, treatment is largely an afterthought in adjudication or sentencing decisions. Indeed, through labeling and stigmatization, building of a criminal conviction record and “assembly line” justice that focuses on case resolution, conventional case processing may in fact increase the likelihood of recidivism and recurrence of drug use. Incarceration and other entanglement with the criminal justice system can isolate an individual from their family and other social bonds, including community partners and sober peers who could encourage recovery and employment.
Drug courts have shown that it doesn’t have to be this way. But flaws in how they operate limits their scope and effectiveness. It’s time for them to evolve so they can help far more people.
The first drug court, implemented in 1989 in Miami-Dade County, Florida at the height of the crack epidemic, emerged out of frustration with the ineffectiveness of the war on drugs, which focused on arresting and prosecuting large numbers of drug users. Such policies did little to reduce the harms caused by drug use and drug-related crime while disproportionately impacting people of color.
Within a few years, a small number of other drug courts opened around the country. adopting the Miami-Dade model. The passage of the 1994 Violent Crime Control and Law Enforcement Act (with funding for drug courts), creation of a Drug Courts Program Office within the U.S. Department of Justice, and the establishment of a national practitioner and advocacy organization to promote the drug court model (the National Association of Drug Court Professionals, now known as All Rise) jump-started the movement. Drug courts have spread rapidly since the mid-1990s, with close to 2,000 adult drug courts operating in the U.S. as of 2024. Drug courts have earned praise from across the political spectrum as a common-sense response to drug-related crime, and the model has thrived under multiple presidential administrations, dating back to the Clinton administration. Thanks to the leadership of former Chief Judge Judith S. Kaye, New York was an early pioneer in the drug court movement. Following the opening of the Brooklyn Treatment Court in 1996, New York City currently has drug courts operating in each borough.
Drug courts are a major shift in how drug-involved offenders are processed, guided in part by a “therapeutic jurisprudence” model of justice that seeks to use the criminal court to rehabilitate rather than punish people. Drug courts integrate substance use treatment, supervised by judges and staff who are committed to helping participants recover from their substance use problems. And they recognize that addiction is a chronic, multidimensional disorder and so allow for relapse without being dismissed from the program, in stark contrast to the zero tolerance policies of many criminal courts.
Drug courts stress collaboration among criminal justice officials, judicial supervision of participants, mandatory drug treatment in community-based settings for 12-18 months and provision of other social and health services. The core components of the drug court also include intensive case management, team decision making and the use of sanctions and incentives to enforce program requirements. At regular status hearings, recognition and celebration by peers and staff of positive progress in the drug court helps participants develop social capital as well as individual motivation to change. Most programs target nonviolent offenders whose involvement in the criminal justice system is due primarily to their substance abuse. All Rise has recently developed and promoted a set of best practices standards to encourage drug courts to target people at high risk for recidivism with a high need for substance use treatment (including use of medications for opioid use disorders).
A substantial amount of research over the past 30 years demonstrated that adult drug courts reduce criminal behavior both during and after program participation. Studies of multiple programs have also found that, although drug courts can be relatively expensive to operate, they produce net economic benefits due largely to reductions in recidivism and incarceration.
Despite these positive findings, there remain meaningful gaps in our knowledge about how these courts are working. Research has inadequately probed how treatment is delivered to drug court clients, whether treatment programs use evidence-based treatment practices and more. The quality of treatment remains a “black box” in the drug court world.
A substantial amount of research over the past 30 years demonstrated that adult drug courts reduce criminal behavior both during and after program participation.
In the early years, drug courts felt the need to guard against complaints from conservatives that they were “soft on crime.” Subsequent critics of drug courts such as Professor James Nolan, Judge Morris Hoffman and Ethan Nadelmann of the Drug Policy Alliance depicted drug courts as a radical deviation from traditional criminal court jurisprudence that gave too much power to the judge, undermined due process and coerced people into treatment that they might not want or need. These are legitimate concerns in jurisdictions where the treatment system is inadequate to meet participants’ needs. Some of these criticisms, such as by Dr. Nadelmann, may reflect their push for drug legalization, and antipathy toward any effort to provide treatment through the criminal justice system. More recently, the Social Science Research Council expressed similar concerns. These early critics also questioned the efficacy of the drug court model, a legitimate concern given that the evidence for positive drug court impacts was not nearly as broad as it is today.
There is a need to take stock of the current role of drug courts and how the model might evolve and address these concerns. Given the extensive program requirements and the use of sanctions for noncompliance, critics have raised legitimate concerns that drug courts widen the net of social control in ways that can be burdensome and perhaps unnecessary. People arrested for drug crimes may be pressured into entering drug court when their interests might be better served by other, less punitive interventions, such as pretrial diversions that reduce the stigma and collateral consequences of having a criminal conviction. Other concerns relate to the potential overuse of sanctions, including jail time, while positive incentives are underutilized.
Although the original drug court model emphasized diversion from prosecution prior to conviction, most U.S. drug courts now use a post-plea or post-sentencing model whereby participants must plead guilty to the criminal charges as a condition of admission. This serves to raise the level of coercion — and the consequences of failure. Whether more accountability and legal coercion helps or hinders desistance and recovery is a question that merits further inquiry.
I agree with the concerns that some drug courts may have moved too far towards imposing rigorous program requirements and social control, overusing sanctions and other onerous policies such as curfews and fees, not reducing program length for lower-risk participants where appropriate, not using strength-based methods to promote program compliance and targeting participants who are not high-risk and high-need. All Rise has recognized these concerns in their best practices standards, but too many drug courts fall short of following these standards. I have particular concerns over the quality of treatment provided to drug court participants, and the interference in clinical decisions by judges and other drug court staff. In an ideal system, comprehensive, evidence-based assessment should drive decisions about the most appropriate treatment-focused intervention that meets both public health and public safety goals, rather than an assumption that drug courts are the preferred option.
In most U.S. drug courts, participants must plead guilty to criminal charges as a condition of admission. This serves to raise the level of coercion — and the consequences of failure.
The drug court model places substantial power and discretion in the hands of the presiding judge. This raises concerns about differential treatment. Although some drug court judges receive special training in addiction and treatment, many do not. Despite working within a therapeutic jurisprudence environment that is designed to promote treatment, drug court judges also sanction defendants and thus play a dual, and sometimes contradictory, role in the life of drug court participants.
One of the biggest challenges faced by drug courts is that they serve less than 10% of the population that could potentially benefit from the program. The overall impact of drug courts on public health and public safety will be limited unless they are able to serve a larger proportion of the target population. Many factors have limited the reach of American drug courts. Participants typically have to affirmatively “opt in” in order to participate. As many jurisdictions have sought to reduce the punishments for drug-related offenses in recent years, the incentives to participate in drug court have been drastically diminished. Many defendants (especially those not yet motivated to stop their drug use) may choose to go through regular court processes rather than submit to the rigors of long-term, judicially-monitored treatment, especially if the outcome in a traditional court is likely to be a short jail stay or probation sentence.
Substance use treatment is inadequately funded, limiting the number of participants who can be served. In addition, the admissions process into a drug court is complex, with many potential exit points. Prosecutors are usually the primary gatekeepers, and they often prefer targeting lower-risk individuals, rather than the high-risk, high-need population that is most appropriate for drug court. Drug courts must compete with other models for providing substance use treatment, many of which do not involve intensive, long-term program involvement. Police and prosecutorial diversion, for example, can provide treatment opportunities while avoiding intensive supervision.
How can drug courts begin to serve a larger population and fulfill their potential to improve public health and public safety? A good first step would be to implement procedural safeguards to protect drug court participants’ rights and ensure due process. The role of the judge is crucial. A good drug court judge can simultaneously ensure compliance with legal best practices and use his or her authority to support participants’ recovery, including interacting with them respectfully and supportively to help build their sense of self efficacy. Unfortunately, there is considerable inconsistency in how drug court judges actually perform their roles.
As we strive to improve drug courts, we must balance our critiques of the model with an understanding of the context out of which they emerged. The traditional model of adjudication of criminal cases is unlikely to support desistance from crime or recovery from substance use. Ideally, the criminal justice system would promote and encourage engagement in treatment and other services, help motivate offenders to reduce drug use and criminal behavior, and minimize use of incarceration. But that’s not the world we live in. Realistically, drug courts are one of the few extant criminal justice models in which staff actively support treatment and recovery without stigmatizing attitudes, and treat participants as individuals with the capacity to be successful. Drug courts are also consistent with the idea of reimagining the community corrections system as a service delivery system, as opposed to a system that emphasizes social control and punishment.
The road to sustained recovery and desistance from crime is a long and winding one for drug-involved individuals. Drug courts can both shorten and straighten out that road, in a cost-effective way, if they address the concerns noted above. Improving the drug court model by implementing best practices, continuing to conduct research on which components are most effective, assuring usage of high-quality and evidence-based treatment, and minimizing onerous program requirements and net-widening could provide substantial payoffs for society.