In 2017, the Bronx suffered the highest rate and number of deaths from drug overdoses of all the New York City boroughs. Last year, the city opened drug courts in the Bronx in an attempt to combat the opioid crisis. While it is true that drug courts represent a different approach than the traditional model, many of the most harmful trademarks of how our justice system treats drug users are preserved. Let’s take a look into what drug courts are, how they work, and why they will not help.
Once someone has been arrested for a drug charge, they are presented with a choice: they can either serve out a prison sentence and have a criminal conviction on their record, or they can attend drug court. In the drug court model, you are entered into a treatment program assigned by the judge who monitors your progress along with a team that includes your defense attorney, prosecutor, social workers, and members of law enforcement, among others. The participant is subject to regular drug tests and their progress in treatment is reported to the court. In the Bronx, the new drug courts are called The Overdose Avoidance and Recovery Program (OAR). If you complete the program, your conviction will be expunged from your criminal record and you will not serve jail time. While this may sound like a more compassionate and promising initiative, the reality is quite different.
Problem 1: The judge is the arbiter of their treatment and progress
Judges are members of our criminal justice system, and while they may excel at understanding the law and processing criminals – they are in no way qualified to supervise or assess drug treatment. Drug use is a public health matter, and it makes little sense that a person struggling with addiction should be supervised by someone with no medical, psychological, or addiction training. Furthermore, the participant may not be addicted at all – but may simply use drugs recreationally. In such cases, forced addiction treatment is useless, expensive, and unpleasant.
Predictably, judges overseeing drug courts rely on punishment and force to impose their treatment goals. If the user relapses, they are sanctioned. Paradoxically, the sanction typically involves the participant being removed from treatment and sent back to jail, despite the fact that even the government’s own National Institute of Drug Abuse admits that relapse is a common part of the recovery process. In other words, they are removed from treatment at the time they likely need it the most!
During her TEDx talk, New Hampshire Chief Justice Tina Nadeau defends drug courts, and while explaining the process – expresses her surprise at “how difficult it is for offenders to be honest.” She goes on to explain how sanctions for breaking the rules in drug court can include “writing an essay about honesty, completing community service, or showing up and spending the day in court, or spending several days in jail.” Writing an essay about honesty would be better suited for a disobedient 5th grader than for someone battling an opioid addiction. Given this approach, it is no surprise that the system encourages dishonesty on the part of the participant and dehumanizes them by removing their agency and showing little or no compassion for their situation. This system creates a relationship based on fear between the participant and the treatment system, rather than one based on compassion.
Problem #2: Forced treatment may not suit the participant
In a statement about the new drug courts opening in the Bronx, Criminal Court Judge Linda Poust – Lopez said, “It’s completely voluntary so people are not mandated to treatment at all.” What she doesn’t mention is that the alternative is going to jail and being handed a criminal record, so describing the drug court option as “voluntary” is a bit of a stretch. Not only that, but once put into a drug court – the judge may assign the participant to a treatment program that has little connection to the participant’s particular problem. They may even be assigned to multiple treatment programs with differing demands and methodologies. A detailed report by the Drug Policy Alliance found that:
“Overcrowded court dockets leave judges unable to effectively manage participant cases. Insufficiently trained court staff often send participants to services irrespective of their specific needs. Some courts use a “shotgun” approach in which they subject participants to several programs with incompatible philosophies. In many cases, referrals to treatment are made not because the program is appropriate for the participant but because a drug court-approved treatment provider has an opening.”
This DPA report went on to find that the treatment programs selected by drug courts are almost always abstinence based, and that even methadone based treatment and other maintenance programs are rarely included among the treatment options. Abstinence programs bring an added danger because of the participant’s reduced tolerance after being discharged. Harm reduction centers are also excluded from the possible treatment options, despite the fact that they are uniquely equipped to serve and provide resources for injecting drug users.
The harm reduction model differs strongly from the abstinence model because it acknowledges that many people will continue to use drugs despite the potential dangers. By recognizing this, they work to lessen the risks that can accompany drug use by providing sterile syringes, fentanyl test strips, Narcan kits, and general education that can greatly lower a drug user’s risk for overdosing or contracting HIV, among other dangers. By showing compassion and understanding, they help reduce the burden of stigma carried by people who use drugs, and remain ready to help break the addiction when the person is prepared to do so. Coercion is not part of the process. This philosophy is at odds with the abstinence only approach, and consequently remains excluded from the drug courts’ list of approved treatment options.
Problem #3: The numbers do not support the efficacy of drug courts
Much of the data surrounding drug courts can be misleading. The National Criminal Justice Reference Service, a government entity, reports that participants are less likely to be arrested or use drugs both during and after being in the program. Though they acknowledge that drug courts are more expensive and use greater resources, the claim is that there is longer-term saving due to the lower recidivism rates.
There are several important issues with how drug court statistics are reported. First of all, many states only report the data for those participants who successfully complete the program. Those who are removed from the program or drop out are not included in the data set, which clearly skews the results toward a more positive picture. It has also been found that, “About one-third of drug court participants do not have a clinically significant substance use disorder. As a result of cherry-picking, people who suffer from more serious drug problems are often denied access to drug court.” (DPA Report, p. 10) In other words, those who are most at-risk for relapsing into drug use or going on to commit other crimes are not offered the chance to enter drug court in the first place, again helping boost the statistical “success rate” of the program.
Perhaps the most telling measure of whether or not the drug court model is an effective drug control strategy is contained in the overdose statistics. The first drug court opened in Florida in 1989. From 1995 to 2000, the federal Drug Court Grant Program funded the opening of 275 drug courts across the nation. Today, there are more than 3,100 drug courts across the U.S. However, the number of drug overdose deaths has steadily and dramatically risen during that time. The increase in popularity of drug courts has coincided almost perfectly with the birth of the opioid epidemic. It would be misleading to suggest that drug courts are responsible, but it does not seem likely that they are helping, either. With this in mind, it is hard to understand the logic of bringing drug courts to the Bronx as a means of solving the overdose problem.
Though drug courts do represent something of a divergence from the traditional processing of drug users through our justice system, they still maintain many of its most destructive characteristics: stigmatizing the user, using court ordered punishment as a treatment strategy, and wasting countless public resources on a system that has done little to solve the problems it was created to face. When will our elected officials embrace a model built on a foundation of harm reduction and compassion rather than punishment and shame? The clock is ticking.