Last week, I had the pleasure of participating in a conversation, a “SWAP,” at the Appalachian Center at the University of Kentucky. The center, directed by anthropologist Ann Kingsolver, works to facilitate stronger connections between the UK faculty and students who are working with a focus on Appalachia. The center also works to strengthen relationships between those of us doing work in the Appalachian region and UK.
Along with co-facilitator, Dr. Judah Schept of Eastern Kentucky University, we engaged in a lively discussion around the topic of cultural values and legal institutions in Appalachia. We discussed ADR (alternative dispute resolution), problems posed by the increase in incarceration and resulting prison construction in the late 20th and early 21st century and restorative justice.
A particularly insightful discussion developed regarding “Drug Courts” and the effects of these programs in Appalachia. Drug treatment courts have become an accepted response to our failing “war on drugs.” Some of the attendees appeared surprised when several of us voiced strong concerns about the typical model adopted by “Drug Courts.” While these treatment courts may start out with the best intentions, they may often do more harm than good.
The structure for Drug Courts or Drug Treatment Courts vary throughout the United States, but they tend to share some qualities. Typically, they restrict eligibility to criminal defendants charged with certain drug offenses who do not have prior convictions for violent felonies. After arrest, these qualified defendants may choose to participate in a drug court program rather than a conventional criminal court proceeding.
Most programs require that the defendants plead guilty and report to a participating program, in return for a deferred judgment or probation. Judges are often very active in drug treatment courts, holding frequent hearings to assess progress. When a defendant fails to progress satisfactorily, the deferred judgment or probation is revoked and a sentence, often including incarceration is implemented. If the defendant is successful, the charges are usually dismissed. The first drug court developed in 1989 in Miami and has now spread to over 1,500 courts. (O'Hear.) West Virginia has also implemented drug courts in many counties.
While we need to be looking for options to our current system that results in high rates of incarceration and recidivism for criminal offenses, , being built on the same foundation as our current failing system, may not consistently provide a good structure for resolving drug problems within the criminal judicial system. While Here’s why:
- Drug courts are not consistently successful in providing treatment for offenders. Some drug courts have a high rate of failure. While there are 70,000 drug court participants at any given time, the annual “graduation” rate is only 6000. (Ehlers).
- The consequences for failure are severe. Once the failure occurs, the consequences for the participant are severe. One study found that “sentences for failing participants in New York City’s drug courts were typically two-to-five times longer than sentences for conventionally adjudicated defendants.” (Bowers)
- Drug courts may create larger arrest numbers. One judge said, ‘It is clear that the very presence of drug courts is causing police to make arrests in, and prosecutors to file, the kinds of ten-and twenty-dollar hand-to-hand dug cases that the system would not have bothered with before.” (Hoffman).
- Drug courts may cause the net to widen. Many drug court programs involve defendants or potential defendants who are not yet charged or would not otherwise be arrested or prosecuted without the potential for drug courts. (Hoffman) The judicial system becomes more expansive in selecting who the system will serve. When the defendant is not successful, the system may increase the number of persons who may be potentially incarcerated by including more people within the system.
- Drug courts may exacerbate racial disparities and may not be likely to reduce the incarceration rates of African-Americans. (O’Hear). The structural issues such as eligibility requirements and issues related to failure to complete the program can cause this exacerbation.
During our SWAP it became clear that we did not have a consensus that Drug Court was beneficial for all or even some criminal defendants. However, during the same discussion, we started to examine the potential of restorative justice in the same context. Is it possible that restorative justice allows for the creation of an environment that could produce some of the benefits that Drug Courts fail to consistently deliver? Why? In my next post, I’ll address how the objectives for “Drug Court” could be met through restorative justice principles and practices, including victim offender conferencing, circle sentencing and family group conferencing.