The Drug Court Fraud

Steven K. Erickson, J.D., LL.M., Ph.D.

MIRECC Fellow, Yale University

Drug courts are widely popular these days and have been heralded as a progressive
system for dealing with chronic behaviors that often involve “revolving-door” defendants
who cycle in and out of the criminal justice system. Indeed, state and federal
governments have largely bought into this model of handling highly recidivistic crimes.
In 2004, the GAO reported over 1,700 drug courts were in operation nationwide 1 and a
projected $69.86 million dollar budget for 2007. 2 But there are serious question about
drug courts, both in terms of effectiveness and policy.

Effectiveness

Numerous studies have praised drug courts for reducing participant recidivism and
instilling sobriety. Yet many of these studies are fatally flawed from a methodological
standpoint. These include: failure to use intent-to-treat analysis, inadequate or absent
comparison groups, short follow-up periods, and sweeping conclusions.

Intent-to-Treat Analysis

It is not unreasonable to assume that most people would think that in evaluating
whether drug courts work, evaluation studies would include those participants who drop-
out of the program before completion. Surely, it is not unfathomable to any attorney or
mental health professional that many people who enter into drug treatment (especially
unplanned, as is the case a drug arrest and subsequent diversion to drug court) will
become dissatisfied and quit. However, most studies that have examined the
“effectiveness” of drug courts have not included these participants. Only participants
who completed the entire program are included in any analyses. From a methodological
perspective, this is a fatal flaw. In statistics, we talk of “intent-to-treat analysis” which
means that all people who are intended to receive the treatment are included in the final
analysis – irrespective of whether they actually do. Virtually all medical and scientific
studies require intent-to-treat analysis to avoid inflated estimates of effectiveness. Many
of the drug court studies do not. Consequently, any claims made by these studies that
drug courts are “effective” are highly dubious.

Comparison Groups

Another fundamental property of any good research design examining an

intervention strategy is the use of a valid comparison group. That is, you need to

1
“Adult Drug Courts: Evidence Indicates Recidivism Reductions and Mixed results for Other Outcomes,”
GAO-05-219, February 2005, p.3
2
The National Association of Drug Court Professionals, “Administration Requests $69.86 Million for FY
’07!!!” NADCP News, Vol XIII, No. 1, Winter 2006.
compare your intervention to something else so that you can correctly conclude that your
intervention was likely associated with any observed events during the study (e,g.,
reduced arrests). Most drug court studies do not use comparison groups or use highly
questionable methods in establishing a comparison group. For a comparison group to be
valid, it must be random. That is, the chance of becoming a participant in drug court or
traditional criminal court must not be influenced by external factors such as choice. Yet,
many drug court studies allow only persons with “minor” criminal histories into drug
court while allowing anyone into the comparator group. Thus, the comparisons are
invalid since the groups are inherently unequal.

Short Follow-Up Periods

It is well known in the addictions research literature that sobriety for 6 months or
longer is necessary for long-term sobriety success. While there are several drug court
studies that have followed participants for 6 months (and even 1 year), these studies have
included the time when the participants are under the supervision of the court. Since the
court holds leverage over the participants during this time (the courts can impose
sanctions including jail time), any “success” during this period can theoretically be
attributed to the heavy hand of the court and not necessarily the intervention itself. Since
court supervision is not indefinite (nor should it be), the real question left unanswered is
whether sobriety continues beyond drug court supervision.

Sweeping Conclusions

Proponents of drug courts often claim that numerous studies have conclusively
demonstrated that drug courts work. Besides the numerous problems mentioned above,
their own data simply does not support these sweeping conclusions. Completion rates
for many drug court studies range from 25 to 66 percent. Thus, up to 2/3 of the initial
participants do not complete treatment. If this is success, I’d hate to see what failure is.
Moreover, success is often not well defined other than completion of the program. As
mentioned before, the real question is whether drug courts have sustained benefits both in
terms of drug usage and recidivism. This little evidence, if any, to believe that drug
courts have accomplished either.

Public Policy

In his well-written article in the North Carolina Law Review in 2000, 3 Judge
Morris Hoffman lays out several cogent arguments why drug courts are bad public
policy. Chief among these:

Diminution of Counsel Advocacy

By their very design, drug courts diminish the zealous advocacy role of defense
counsel by encouraging a “treatment team” approach to drug offenders. Thus, rather than
defending clients, defense attorneys are suppose to assist the court in coercing defendants
3
Morris B. Hoffman, The Drug Court Scandal, 78 N. Carolina Law R. 1477 (2000).
into participation and reporting to the “team” whether the client has made progress on
their sobriety. Besides the obvious dismissal of the attorney-client privilege, such
approaches effectively eliminate the role of defense counsel as traditionally understood
for centuries in American jurisprudence.

Judges as Treatment Leaders

Drug courts place judges at the forefront by having them actively engage in
monitoring the treatment progress of participants. Drug court judges routinely hold
meetings before scheduled appearances in which social workers, prosecutors, and defense
counsel discuss a defendant’s progress. Judges then make decisions as to how to “tweak”
the treatment (e.g., more weekly contact with mental health). Yet judges are not mental
health professionals; they are judges whose job is to oversee the proper administration of
justice. Drug courts dispose of this well-established role in favor of a “jack of all trades”
approach in which judges are transformed into quasi-mental health providers.

Conclusion

It is time for the proponents of drug courts to “come clean” with the numerous
problems that plague the drug court initiative. As Judge Hoffman eloquently put it:

We have succumbed to the lure of drug courts, to the lure of their federal
dollars, to the lure of their hope, and to the lure of their popularity. Drug
courts themselves have become a kind of institutional narcotic upon which
the entire criminal justice system is becoming increasingly dependent.

Indeed, drug courts are not just a popular model for handling drug offenders, the
principles of the drug court model have already been widely adapted in the emerging
mental health court model whereby mentally ill offenders are diverted into specialty
courts under the ruse of solving complex social problems through modified judicial
institutions. The transformation of criminal justice under such a faulty model should
trouble us all.