Drug courts and the de facto legalization of drug use for participants in residential treatment facilities.

• Author: Armstrong, Andrew

The recreational possession and use of some drugs is regarded as a criminal offense in every state in the nation. (1) What this means for an offender is that the state views discrete incidents of detected possession not as manifestations of an over-arching addiction, but as isolated crimes deserving punishment. This approach comports with a traditional perception of drug addiction as being explicable as an offender's repeated and willful refusal to abstain from using drugs. (2) If repeated drug use is interpreted as a result of willful choices, then there is no theoretical difficulty in punishing isolated uses as separate crimes. (3)

However, in every state, there is a class of drug users for whom discrete incidents of use are treated, de facto, not as isolated crimes, but as part of a treatment process. Some offenders who are charged with a drug-related crime may be allowed to accept a transfer from criminal trial court to a drug court, (4) some of which are now operational in every state. (5) A drug court is "a court that closely monitors treatment for drug-addicted defendants brought before it." (6) While under supervision of the drug court, the offender is placed into a drug treatment program, with the assurance that charges will be dropped upon successful completion of the program. (7) If a drug court participant tests positive for drug use while in treatment, the judicial response is muted. Because relapse to drug use is recognized as an "expected and accepted" part of the treatment process, the typical drug court response is not immediate removal to criminal trial court, but a "smart punishment," which has been described as "not really punishment at all, but a therapeutic response to the realistic behavior of drug offenders in the grip of addiction." (8) Sanctions may include more frequent contact with the drug court, increased urine testing, or short periods of incarceration. (9)

The rationale underlying the imposition of these relatively moderate sanctions is an understanding of drug addiction, not as a sequence of willful acts, but as a treatable "chronic relapsing condition" which cannot be managed successfully without missteps along the way. (10) Drug use is not viewed as "the failure of treatment, but as an inevitable stumbling block on the road to abstinence." (11)

In its application, the drug court model of addiction as disease works to create a de facto immunity against further drug-offense prosecution for drug court participants undergoing residential treatment. Because treatment facilities do not report on-site drug offenses to the police, but to drug courts, (12) and because prosecutors will generally not bring new criminal charges against a drug court participant when treatment facility personnel report her relapse to the drug court, (13) drug court participants undergoing residential treatment enjoy a practical immunity from prosecution. The result of this scheme is that some drug offenders enjoy the benefits of having their drug use viewed as a treatable disorder, (14) and may emerge from a relapse-plagued treatment with a clean record, while other offenders may be prosecuted for every discrete drug offense under the rationale that drug use is a willful act that should be curbed through deterrence and punishment. (15)

The immunity of drug court participants undergoing residential treatment from criminal prosecution for drug use is only de facto, not de jure. Drug court statutes typically provide that a drug court judge will monitor a participant's progression through treatment, returning recalcitrant offenders to criminal court if necessary. (16) They do not, however, explicitly provide that participants who relapse during treatment will be immune from prosecution for these new offenses. (17) Indeed, drug court patients undergoing outpatient treatment are prosecuted for relapse-related drug possession. (18) Instead, participants in residential treatment have three shields from prosecution. The first two, already mentioned, are prosecutorial discretion and treatment facility policy. (19) The third shield, and the only one that lies in statutory law, is arguably a federal confidentiality statute, 42 U.S.C. [section] 290dd-2, which provides that employees of drug treatment facilities may disclose records concerning treatment participants only in very limited circumstances. (20)

The legal status of relapsing drug court participants undergoing residential treatment is an under-examined facet of drug court jurisprudence. Since the establishment of the first drug court in Miami, Florida, in 1989, jurisdictions throughout the nation have enthusiastically embraced the concept. (21) The rapid expansion of a concept that "in many ways represent[s] a qualitatively new phenomenon in the area of criminal justice" (22) has evoked disparate reactions among commentators, ranging from gushing praise (23) to unqualified contempt. (24) But the empirical fact remains that drug courts have evolved from a single experimental program into what might be reasonably termed a "movement" (25) in the matter of a little more than a decade. Because the impetus for this rapid expansion appears to be more of a response to the structural pressures on local judicial systems from burgeoning drug-related caseloads (26) and to the strong political support for the concept (27) than a programmatic implementation of settled principles, (28) drug courts have achieved the status of a judicial institution without a thorough examination of their underlying jurisprudence. If drug courts are to continue to hold a dominant position in American drug policy, the potential they offer for treating similarly situated drug-using offenders differently should be examined.

This Comment argues that, because there is currently no legal basis providing for the immunity of relapsing drug court participants in residential treatment facilities, states should amend their statutes enabling drug courts to reflect the practical reality that such participants are immune from prosecution for drug use during court-supervised treatment. Not only is immunity for relapse-related use important to the continued vitality and success of drug courts, but a political recognition that drug courts treat drug use very differently from the rest of the criminal justice system would prompt public debate on a policy that is currently being applied sub silentio.

Part I of the Comment examines the rapid, decentralized rise of drug courts and details their common features, including limited eligibility and removal of the participant from the criminal justice system. Part II examines the legal issues presented by the uncertain legal status of drug-using participants undergoing residential treatment through the lens of Noelle Bush's recently completed involvement with Florida's drug court system. (29) Part III considers the effect of 42 U.S.C. [section] 290dd-2 in assuring confidentiality for individuals undergoing drug treatment in residential facilities, and concludes that, because the statute cannot be reasonably interpreted to shield drug court participants from investigation of relapse-related drug offenses, the continued vitality of drug courts should rest on stronger, and more transparent, statutory grounds.

1. THE RISE OF DRUG COURTS

   Drug courts have spread across the United States through a decentralized, grassroots process, in which local judges and law enforcement officials have worked to implement this unique form of jurisprudence. (30) Each participating jurisdiction has modified, and experimented with, the drug court model to fit its own needs, yielding a multiplicity of variations on the basic model. (31) Nevertheless, drug courts in different jurisdictions share common features, including "relatively restrictive definition[s] of eligibility" (32) and a removal of qualifying participants from the criminal courts and placement into drug court-supervised treatment. (33) Taken together, these two features ensure that the limited number of drug offenders that qualify for drug courts can receive very different outcomes in their cases than similar non-qualifying offenders. (34) This part of the Comment traces the rise of drug courts and describes their common features in more detail.

   1. THE SPREAD OF THE DRUG COURT CONCEPT

      Drug courts first made their appearance in the late 1980s, against the backdrop of the "extreme pressures placed on both the judicial process and local correctional populations" by the increasingly punitive drug policies of the 1980s. (35) As has been often noted, the United States declared a "war on drugs" in the 1980s, driven at least in part by broad public fears of a perceived crack cocaine epidemic. (36) Throughout the decade, the federal government and many states "increased public spending on antidrug law enforcement and dramatically augmented criminal penalties for the sale and possession of illegal drugs," (37) with the federal government instituting mandatory minimum sentences for some drug crimes. (38) Between 1980 and 1993, American prison and jail populations tripled, much of the increase due to increased number of drug convictions and longer sentences for drug offenses. (39) By 1994, "drug traffickers (19%) and drug possessors (12.5%) together made up 31.4% of felons convicted in [s]tate courts," (40) and over half of all federal prisoners were drug offenders. (41) Even as law enforcement efforts intensified and sanctions for drug offenders were made more severe, publicly-funded treatment became a lower priority. (42)

      The "war on drugs" created special problems for courts. As drug indictments rose precipitously during the 1980s, responsibility for the cases fell upon courts "already overburdened by high case volumes." (43) Nationally, drug arrests increased 134% between 1980 and 1989, (44) prompting an "almost paralyzing influx of drug cases" that threatened to "[bring] the court system to its knees by the late 1980s."...