Rethinking drug courts: restorative justice as a response to racial injustice.

• Author: O'Hear, Michael M.
• Position: Symposium: Drug Laws: Policy and Reform

Since their first appearance in Miami in 1989, specialized drug treatment courts have grown phenomenally popular, with nearly 2,000 now in existence. Although their effectiveness is a matter of debate among academics, (2) their political appeal remains strong. This popularity stems in large part from the unpopularity of what is generally seen as the principal policy alternative, that is, a continued reliance on the traditional criminal justice responses to drug offenses--or, more colloquially, on the "war on drugs." Public support for the war flagged as it became clear that many drug offenders were unresponsive to threats of harsh sentences, (3) prison populations (and hence prison budgets) were escalating wildly, (4) and many poor minority communities were being devastated by the collateral damage. (5) Against this backdrop, it is easy to understand the appeal of a reform that promises to divert drug offenders from prison warehousing into court-supervised treatment: it would seem that drug courts could hardly help but be an improvement on a dismal status quo. (6)

Recent events in Milwaukee, Wisconsin, nicely illustrate the political dynamic propelling the growth of drug courts, and, in particular, a curious link between drug courts and racial justice concerns. Pressure has been growing in recent years for Wisconsin to address glaring racial disparities in its prison system, which is ranked as sixth-worst in the nation. (7) The Governor appointed a blue-ribbon Commission on Reducing Racial Disparities to study the problem in 2007, and the Commission, in turn, recommended greater use of community-based sentencing alternatives, including drug treatment courts. (8) Released in February 2008, the Commission's report gained even greater salience following the May publication of two studies by national organizations that highlighted the racial disparities in Wisconsin and Milwaukee. In one report, Human Rights Watch determined that blacks in Wisconsin are forty-two times more likely than whites to receive a prison term for a drug conviction--the highest such disparity in the nation. (9) In the second report, The Sentencing Project determined that blacks in Milwaukee are seven times more likely than whites to be arrested for a drug offense--the second-highest such disparity among the forty-three major American cities analyzed. (10)

The May reports received considerable coverage in the local press (11) and prompted a swift response by politicians. Milwaukee County Common Council President Willie Hines, decrying unequal treatment in the criminal justice system, discussed the creation of a drug treatment court in Milwaukee as a possible solution. (12) Shortly thereafter, at a joint press conference responding to the May reports, Governor Jim Doyle and Milwaukee County District Attorney John Chisholm endorsed this solution, with Chisholm vowing that Milwaukee would definitely get a drug treatment court within six months. (13)

The sequence demonstrates how drug treatment courts have become the generic policy response of choice to dissatisfaction with the war on drugs. (14) However, as other commentators have argued, the turn to drug courts carries with it sufficient risks and costs that their superiority over traditional law enforcement approaches should not be taken for granted. (15) The general critique of drug treatment courts has been made well elsewhere and need not be repeated here. Rather, my purpose, and original contribution, in this Article is twofold. First, I will focus on one particular area in which drug treatment courts are likely to disappoint expectations, the area (it so happens) that has provided much of the impetus for the implementation of such a court in Milwaukee--that is, the area of racial disparities in the criminal justice system. In purely quantitative terms, drug courts are unlikely to reduce these disparities--indeed, if anything, there is reason to believe that drug courts may exacerbate them. In more qualitative terms, drug courts offer no real response to the group stigmatization that is associated with racial disparities, or to the related problems in minority communities of diminished trust in the law and capacity to engage in collective problem-solving. Second, I will propose an alternative model for specialized drug courts, one that is built around principles of restorative justice (R J). An R J-based model will likely do no worse--and may do better--than the prevailing treatment-based model in reducing quantitative disparities, and seems much better suited to address concerns about stigma, trust, and collective problem-solving. Although RJ has been used principally to address juvenile offenses and low-level property crimes, it can also be adapted for use in drug cases. Indeed--ironically enough--a pioneer in this regard has been Milwaukee's own Community Conferencing Program. Advocates for racial justice in Milwaukee would do better to expand the CCP than to develop a new drug treatment court. And advocates for racial justice in other cities would do well to consider the Milwaukee program as a model.

The Article proceeds as follows. Part I discusses racial disparities in the war on drugs in more detail, attempting to move beyond the bare numbers and identify both what really drives the disparities and why they are appropriately regarded as an important policy problem. Part II describes the drug treatment court model and explains why it is ill-suited to address the disparity problems identified in Part I. Part III describes basic principles of RJ; considers how they might be deployed in a specialized drug court setting, using the groundbreaking Milwaukee program as a model; and makes the case for an RJ-based approach over a treatment-based approach.

1. RACIAL DISPARITIES IN THE WAR ON DRUGS: MAGNITUDE AND NATURE OF THE PROBLEM

   In this Part, I first consider, and ultimately reject, the possibility that the racial disparities associated with the war on drugs are justified. I attempt then to identify with some specificity the nature of the harms caused by racial disparities.

   1. Disparities: Warranted or Unwarranted?

      American prison populations have grown explosively over the past four decades, (16) with particularly dramatic consequences for the incarceration rates of black males. (17) By year-end 2005, nearly forty percent of all state and federal prison inmates were black, (18) although blacks constitute only about twelve percent of the United States population. (19) The war on drugs plays a crucial role in fueling the overall incarceration disparity, as the number of blacks imprisoned for drug offenses is more than twice the number of whites. (20) By contrast, the number of whites imprisoned for property and public-order offenses actually exceeds the number of blacks. (21) Simply put, drug enforcement stands out as the major driver of racial disparity in the American criminal justice system. (22)

      To be sure, disparity in itself may or may not be a bad thing: the question must always be whether the disparity is warranted. Racial disparities in punishment for drug crimes may be warranted to the extent that blacks (1) commit a disproportionate share of drug crimes, (2) tend to commit more serious drug crimes, or (3) otherwise present aggravating circumstances that merit harsher treatment. Let's consider each possibility in turn.

      The first hypothesis is easily rejected: there is no reason to believe that blacks commit a disproportionate share of drug crimes. Indeed, the available data indicate that the black share of drug crimes is almost exactly equal to the black share of the population at large. (23)

      The second hypothesis, that blacks tend to commit more serious drug crimes than whites, requires more discussion. As a matter of criminal code definition, drug offense severity is largely a function of three variables: whether the offender was responsible for distribution (as opposed to simple possession), the seriousness of the drug involved in the offense, and the quantity of the drug. (24) It does seem to be the case that blacks are arrested at disproportionate rates for more serious offenses, (25) but that does not necessarily reflect higher rates of commission of such offenses. The higher arrest rates may be due instead to such factors as racial profiling or the greater law enforcement presence typically found in urban neighborhoods. (26)

      A recent, innovative study in Seattle does indeed suggest that the arrest data for blacks may greatly overstate their involvement in the most serious types of drug offenses. (27) Based on surveys of participants in a needle exchange program and ethnographic observation of two outdoor drug markets, (28) the researchers found that blacks were disproportionately responsible for delivery of two types of serious drugs (crack and powder cocaine), but were actually underrepresented in the distribution of three other serious drugs (meth, heroin, and ecstasy). (29) Overall, researchers found that whites were responsible for a majority of the drug distribution studied (even though blacks constituted a majority of those who were arrested). (30) Indeed, interviews with Seattle police officers revealed an apparent obliviousness to illegal, open-air dealing of heroin and prescription drugs (which is conducted largely by whites), in contrast to a marked law enforcement emphasis on crack distribution (which is conducted largely by blacks). (31)

      Sentencing data from other jurisdictions are consistent with the finding that differences in offense severity do not fully explain the racial disparities associated with drug enforcement. (32) For instance, in Wisconsin, data collected by the state Sentencing Commission indicate that, for any given level of offense severity, a black defendant is much more likely to be incarcerated than a white defendant convicted of the same type of offense. (33) Thus, blacks convicted of Class G drug felonies (the most common...