Drug courts under attack

A middle-aged man with fading red hair and a confident, casual air walked up to me last year at the 10th Anniversary Drug Court Conference in Miami Beach. He smiled and asked if I remembered him. I couldn't place him.

Then he told me his name: Tom Gorham. I knew him all too well. When I was a municipal court judge in Oakland, Calif., Mr. Gorham had appeared before me numerous times over the years as a drunk and a drug abuser, a vagrant and a mental incompetent. Many a time, at my wit's end, I had referred him to the county mental- health department for a recommendation, only to be sent the same dual diagnosis of drug dependency and mental incompetence (and the recommendation to release him back into the community).

Now here he was, healthy, smiling, and articulate. He told me he would be dead if not for the intervention of a drug court in Berkeley, Calif.

Today, he is a certified drug-abuse counselor, one of thousands of examples of people pulled back from the brink by their participation in drug court.

But at the very time that drug courts have evolved into the most important criminal-justice reform movement of this generation, proponents of drug legalization are challenging their very existence.

David Borden of the Drug Reform Coordination Network argues that drug courts don't work - primarily because they are coercive.

Indeed, he says they're at odds with "medical ideals" because they "demand immediate, total, and permanent abstinence from all the drugs under their jurisdiction. Screw up, go to jail. Screw up again, go to jail for longer. Nothing could be more at odds with the medical reality of addiction, in which relapse is understood to be undesirable but normal."

My argument is that drug courts are designed specifically to deal with what Mr. Borden calls "the medical reality of addiction." If an offender does relapse, the judge works with a treatment team to determine the best therapeutic response. That may include a limited term of incarceration, or it may not.

As a result, research done around the country has repeatedly shown drug courts to be more effective in helping people stay clean and sober than traditional treatment programs.

Indeed, I would argue that the legalization forces are working to discredit drug courts precisely because they've proved to be so successful. Drug courts offer the public an alternative to legalization; they represent a successful middle way. Their very success undercuts the argument that legalization is the inevitable solution to the nation's drug-abuse problem.

Drug courts first emerged in the late 1980s, as we learned that we couldn't incarcerate our way out of the drug problem. (Imprisonment of drug users increased nearly 700 percent between 1984 and 1994.) There are now about 1,000 drug courts in the US.

Drug courts rely on a therapeutic team made up of the judge, treatment provider, probation officer, and legal counsel, who work with each other to hold the participant accountable and help him or her become drug-free.

Typically, the drug user enters the drug-court program immediately after arrest, with the judge seeing the offender every other week, and treatment counselors working with the participant several times a week. Both defense and prosecuting attorneys put aside their traditional adversarial roles. The judge communicates directly with the participant - encouraging, exhorting, chastising, and commending the participant for his or her progress or lack of it.

Sanctions are not used to punish, but as a tool to motivate the participant to stay in treatment, and generally (when applied at all) amount to between a day and a week in custody. The scientific research tells us that this drug-court approach keeps participants in treatment at least four times longer than a voluntary approach.

In August 2000, the Conferences of Chief Justices and State Court Administrators (all 50 chief justices and all 50 state court administrators) unanimously passed a resolution endorsing problem-solving courts, based on the drug-court model and urging their integration into the judicial mainstream nationwide.

In the final analysis, drug-court programs are probably the only criminal-justice innovation embraced by most liberals and conservatives, defense attorneys and prosecutors, law enforcement and treatment communities.

Nonetheless, drug-legalization initiatives and legislation, such as California's Proposition 36, are being pushed hard by their proponents, because they would remove the judge and, by implication, the court system, from holding drug abusers accountable for their actions. The court would no longer be able to use its power to guide the participant toward sobriety with creditable sanctions, as well as incentives.

For all intents and purposes, the judge would no longer be in the loop, either as a leader of the therapeutic team, in the drug-court setting, or as the final arbiter in the traditional probation process.

The stage would then be set for the next step in the legalization movement's agenda, the de facto legalization of dangerous drugs. And people like Tom Gorham? They would be left alone with their addictions, waiting for a savior who never appears, fending for themselves on the mean streets.

Jeffrey Tauber is executive director of the Center for Problem-Solving Courts, founding president of the National Association of Drug Court Professionals, and a pioneer in the development of drug courts.