DRUG COURTS: THE CRIMINAL JUSTICE SYSTEM ROLLS THE ROCK.

• Author: Haley, Michael J.

TABLE OF CONTENTS ABSTRACT I. Introduction to Drug Courts II. The "Revolving Door" of the Criminal Justice System III. The Theoretical and Practical Foundation for Drug Courts A. Therapeutic Jurisprudence (Using Social Science and the Law to Change Behavior) B. The 10 Key Components of Drug Courts. IV. The Michigan Experience CONCLUSION INTRODUCTION TO DRUG COURTS

Cannery Row in Monterey in California is a poem, a stink, a grating noise, a quality of light, a tone, a habit, a nostalgia, a dream. (6) Welcome to drug court. (7) Like Cannery Row, there is a quality of light within the otherwise dark halls of the criminal justice system. The drug court model is a paradigm shift, a radical new way of dealing with an old problem, a humane and proven method for reaching the addicted offenders who have placed themselves on the margins of society and whose addictions drive them back into the criminal justice system compulsively and repeatedly.

These are the people drug courts strive to reach and to change: the "hard-core" substance-abusing, chronic, seemingly treatment-resistant offenders caught up in the "revolving door" of the criminal justice system.

For over 15 years, I worked almost exclusively with this type of offender in a specialized drug court program ("sobriety court") dealing with repeat-offense drunk drivers in the state of Michigan. This type of specialized court is better known throughout the country as DWI court. I launched this program in 2001 and saw over 1000 addicts. However, these individuals had more "baggage" than just an addiction to alcohol. Many were cross-addicted, and most had co-occurring mental illnesses like depression, bipolar disorder, and post-traumatic stress disorder (e.g., returning combat veterans and victims of sexual abuse). Yet, they all had one thing in common--they wanted to change their lives, but they could not manage it on their own.

When I started this journey in 2001, I knew little about addiction and how difficult it is for addicts to change. But I knew one thing for certain: the sentencing practices we employed in our court for the thirty years or so of its existence were not changing the individual offender's behavior and failed to deter others from going down similar paths.

The purpose of this article is to (1) review the environment that spawned the drug court movement; (2) provide a thorough understanding of how and why drug courts work, using the "Ten Key Components of Drug Treatment Courts" as a framework for discussion; (8) and (3) discuss my own experience in developing and presiding over sobriety court, which reduced the DWI recidivism rate from 50% to 18%. (9)

THE REVOLVING DOOR OPENS DRUG COURTS

In the early 1970's, the so-called "war on drugs" brought on a surge of legislation imposing dramatically harsher penalties for drug convictions at both federal and state levels. (10) Arrests for drug-related crimes skyrocketed from 322,000 in 1970 to more than 1.3 million in 1998. (11) Meanwhile, adult prison incarceration rates more than tripled during the same time period. (12) The criminal justice system's response to drug-related offenses was simply to "arrest, adjudicate, and incarcerate drug abusers without regard to the incredibly high rates of recidivism in this population." (13)

Our country's jail and prison facilities were being filled with addicts who, without treatment, would likely reoffend upon their release. Two-thirds of those incarcerated would meet the medical criteria for substance abuse disorder (14) and would re-offend within three years of their release from prison. (15) Nearly every single one of them (95%) would return to substance abuse after their release. (16)

The National Highway Transportation Safety Administration (NHTSA) reports that over one-third of DWI arrests involve a repeat offender, and repeat offenders are 4.1 times more likely to be involved in a fatal crash than intoxicated drivers without a previous history of DWI. (17) "In 2013, 10,076 people were killed in alcohol-impaired-driving crashes, an average of one alcohol-impaired-driving fatality occurred every 52 minutes." (18)

Even to the casual observer, it is apparent that we cannot incarcerate our way out of the "drug problem"--not that we haven't tried. In fact, the United States leads the entire world in incarceration, locking up its citizens at a rate of 716 per 100,000. (19) We have 1.5 million people behind bars right now, most of whom will eventually return to substance abuse and crime after their release. (20)

This disturbing data suggests a systemic burden on the criminal justice system, but the justice system has been slow to change:

Despite the high prevalence of substance use disorders among offenders, persistent views within the criminal justice system limit the effectiveness of substance abusers' treatment in the correctional system. Specifically, the criminal justice system has typically regarded public safety (incarceration) and public health (treatment) as competing and incompatible goals when dealing with offenders with substance abuse disorders. These views have been challenged over the past 20 years in light of the almost ubiquitous nature of substance abuse and criminal justice interaction, the cyclical "revolving door" phenomenon (i.e., repeated criminal recidivism among offenders with substance use disorders) and the need for effective and efficient solutions. (21) Those of us who have spent much of our adult lives working within the criminal justice system know that, despite tough-on-crime campaign promises, incarceration does little to interfere with substance abuse patterns. "Perversely, lengthy incarceration is not only the most expensive response to drug crimes but also the option most likely to result in recidivism."' (22)

THE THEORETICAL AND PRACTICAL FOUNDATION FOR DRUG COURTS

The drug court movement, then, had its genesis in the burgeoning prison population of those incarcerated for drug-related crimes (23) and the realization that traditional law enforcement mechanisms were expensive, scarce, and counterproductive. (24) By establishing the nation's first drug court in 1989, Florida's Eleventh Judicial Circuit in Dade County took a visionary step in creating a system that's built healthier communities, cut spending, and changed how courts approach sentencing. (25) This was a collaborative effort where a judge, prosecutor and defense attorney, working together, created a special docket within the existing court system that was designed to emphasize drug treatment, rather than incarceration, as part of every sentencing. (26)

The early successes of Dade County spread rapidly throughout the country's criminal justice system--a system where innovation, in the rare instance it occurs, comes at a glacial pace. By 2010 there were 1,600 drug courts operating in 50 states; (27) and by 2014 that number had already grown to 2,968. (28) Drug courts were popping up like mushrooms in the springtime even without data that they would reduce crime and empty out the prisons. (29) My opinion is that judges and others working within the justice system could see instinctively that the drug court model was a more sensible and humane approach to sentencing the substance-abusing offender than using traditional probation.

1. Therapeutic Jurisprudence

   Drug courts are based upon a model of behavioral modification rather than incarceration and punishment. (30) Addiction is now recognized, quite rightly, as a disease, and when a disease drives criminal behavior, it should be treated rather than punished. (31) With treatment, we can realistically expect change. With incarceration, we can only expect higher rates of recidivism.

   The theoretical foundation for drug treatment courts is therapeutic jurisprudence, which is "the use of social science to study the extent to which a legal rule or practice promotes the psychological and physical well-being of the people it affects." (32) Therapeutic jurisprudence recognizes that the law and the criminal justice system can produce behaviors and consequences in ways that are either therapeutic or not. (33) It is concerned with the human, emotional and psychological side of the law.

   Drug courts are the practical application of therapeutic jurisprudence. We use evidence-based practices, sanctions, and incentives to help motivate change within each client by dealing with the entire person--his employment status, his living conditions, his physical and mental health, and access to educational opportunities.

   If therapeutic jurisprudence is the theoretical basis for drug courts, the Ten Key Components comprise the technical and practical framework for drug courts.

2. The Ten Key Components

   Written by a diverse group of drug court practitioners--prosecutors, defense attorneys, court administrators, treatment providers and academic experts--the Ten Key Components were originally intended as a framework to guide the implementation of new drug courts. (34) They have since been used as a reference tool for practitioners, researchers, and policy makers to determine whether a drug court is, in fact, a drug court (35) and codified in statutes which require strict adherence. (36)

   Each of the key components have been studied by researchers and evaluators to determine whether each is, in fact, necessary for effective results. All of the research confirms that fidelity to the full drug court model is necessary for optimum outcomes, "assuming that the programs are treating their correct target population of high-risk, addicted drug offenders." (37)

   Key Component #1: Integrating Treatment with the Justice System

   There is nothing new about advocating for treatment in lieu of incarceration at sentencing. Defense attorneys have been doing this since long before the war on drugs was declared. What is new is that coerced treatment is now the rule rather than the exception. Drug court judges mandate treatment at sentencing knowing that their...