• Lewis Waring

Skepticism of Drug Treatment Courts - Brayden Gray

Drug Treatment Courts (“DTC”) are alternative courts for those who are charged with certain offences related to drugs. Admittance requirements to a DTC changes depending on the area, with the Regina DTC requiring that offences must be deemed to be caused by an addiction to drugs. There are often restrictions to eligibility as well, such as not failing a DTC within the last year or committing more serious offences such as “serious violence, sexual assaults, family violence . . . and profit-motivated commercial drug trafficking”. Typically, defence and Crown lawyers nominate a drug-addicted accused for treatment, which can often last a year or more.


Upon nomination, the accused must plead guilty to their charge and then adhere to a host of conditions, which can include but are not limited to:

  • attending counselling;

  • regular urinalysis;

  • total abstinence from drugs and alcohol;

  • curfews;

  • limitations on where they can go and who they can interact with;

  • having stable housing; or

  • having a job or being enrolled in school.

For those who adhere to their conditions for the allotted amount of time, graduation from the DTC follows, which is rewarded with a number of options sometimes including having charges withdrawn. For the majority of cases, however, these conditions are breached and the participants fail. For these participants, the punishment can involve serious consequences such as further criminal charges and incarceration for a term that is often longer than it would originally have been without DTC involvement. Some DTCs take a less restrictive approach and do not sanction for drug use, although it will delay graduation.


Broad DTC Support


DTCs have received large support from both sides of the political aisle. For many categorized as the liberal left, it has an immediate humanitarian appeal with a move in the right direction towards restorative justice. For many categorized as the conservative right, the drug courts have efficacy; lower costs and lower recidivism rates than incarceration. Kerwin Kaye in his 2019 book details this support: “James Nolan’s 2001 contention that ‘the model has received almost uniformly positive media coverage and overwhelming public support’ remains largely true today”, further stating that “Newsweek thus referred to drug courts as ‘that vanishingly rare thing in Washington: an issue with near consensus’.


Given the rancor of the current political movement, drug courts offer a remarkable example of ongoing bipartisan agreement”. This collective support is problematic, however, as there are plenty of issues regarding drug courts that emerge when viewed critically. Such strong support may help fund a system that ultimately may not be worth funding. These criticisms need to be available to the public, which may not support many aspects of the DTCs if made aware.


Methodological Issues & Skeptical Efficacy


One critique of DTCs is that their praise by others is often based on their effectiveness. However, the methodology of the studies that deem DTCs effective is often flawed. One report in 2009 for Public Safety Canada found that “ the drug treatment court literature is littered with methodological problems, study quality greatly influences study outcomes, and attention must be paid to the direction of bias contained within a study . . . [c]urrently, it is difficult to draw conclusions from the few acceptable studies.” That is not to say that all DTC studies or evaluations are methodologically flawed, but amalgamating data to come to a truthful conclusion is not yet possible with the current issues surrounding data collection and analysis. This issue has been somewhat addressed in more recent years in which studies have attempted to alleviate the methodological concerns the Public Safety Canada study reported. These newer studies have effectively found reduced recidivism of graduates. Despite this, it appears that studies have yet to meet a consensus on the effectiveness of DTCs.


The efficacy of DTCs, a reason that the conservative right supports DTCs (as noted earlier), has achieved even less academic consensus. Although it may logically follow that if there is reduced recidivism and less incarceration then less money is spent, this logic is missing vital context. It has been found that DTC participants only have lower overall prison time for their first referral offence, “if custody for new crimes is combined with referral offence penalties, then total days in custody showed little or no difference in overall time spent in custody by DTC cases . . . punitive sentencing ultimately reduces the likelihood that DTCs will result in less incarceration and more cost-effective operation”. Once those who fail and are further punished are factored in, there is little to no difference in the cost-effectiveness of DTCs compared with traditional incarceration.


Those who support DTCs for their effectiveness and cost-effectiveness have reason to be skeptical of DTCs until they are further researched and modified according to that research, especially given that “many drug courts focus on low-level offences”, for which “ even positive results for individual participants translate into little public safety benefit to the community”. As of now, “[e]vidence does not show that putting people in drug treatment courts or mandating them into treatment works”, and “it is impossible to conclude at this stage that DTCs result in decreases in drug use and/or recidivism”.


The Contradiction of the DTC


There are more fundamental issues with DTCs than the uncertainty of their efficacy. Many (but not all) facets of DTCs appear to misunderstand the nature of addiction by adhering to a zero-tolerance abstinence policy. This punitive policy is fundamentally contradictory to the “disease model of addiction” that DTCs have adopted. The disease model assumes users use drugs despite negative consequences, which is contrasted with the rational actor model (which underlies principles of punishment) that assumes people weigh the benefits and consequences of actions. The accused then is seen as “both a rational actor and a diseased person at the same time.” The Drug Policy Alliance succinctly identifies the issue with this contradiction: “[t]he person admitted into drug court is regarded as not fully rational and only partially responsible for their drug use; yet the same person is considered sufficiently rational and responsible to respond to the “carrots and sticks” (i.e., rewards and sanctions) of drug court.” This contradiction sets participants up for failure and misunderstands addiction at a fundamental level.


This reasoning is what produces requirements such as absolute abstinence, which is demonstrably ineffective in treating addiction. Punishment and addition are incompatible in this context, and “[t]his incongruity results in thousands of drug court participants being punished or dropped from programs each year for failing to overcome addictions in a setting not conducive to their success.” DTCs under their current construction are inadequate to deal with addictions; it is merely a “system whereby criminalization is the route to treatment and housing resources, which effectively widens the net of criminalization and decreases access to voluntary treatment programs”. Given that it becomes illegal to suffer from a medical condition (addiction), the criminal justice system is able to reach further, characterizing DTCs as a mechanism for recovery and rehabilitation when in actuality it is expanding criminalization as it takes away from more effective voluntary treatment and forces addicted users into the criminal system. Ultimately, DTCs “exist within a criminal justice system that demands punishment of individuals for a health issue”.


Conclusion


It is clear that (1) the efficacy of drug courts is in question, and (2) the foundational principles underlying DTCs are contradictory, creating an approach to addiction and crime that is unacceptable as neither principle can be established in a necessary manner to be effective. Although only certain criticisms of DTCs were selected for this format, this piece is hardly comprehensive. Some of these criticisms include but are not limited to:

  • DTCs not reaching their target population of Indigenous peoples, women, and youth;

  • having to plead guilty before being accepted into DTCs, thereby subverting the right to a fair trial; low graduation rates;

  • being part of a coercive regime;

  • reallocation of resources to the criminal justice system and away from addiction services;

  • universalizing offenders as addicted subjects, thereby removing crucial distinguishing characteristics; and

  • mostly older white men benefitting from the system.

It is indisputable that DTCs have many philosophical, foundational, and procedural issues guiding their operations—successful or not, this system has so many legitimate and well-argued criticisms that the fact it receives large bipartisan support is puzzling. DTCs are worth being wary about given their serious flaws, which have been established here. Funding the expansion of the criminal justice system should be done hesitantly, especially when it is the funding of a system surrounded by inconclusive research.


Given the recent legalization of marijuana and more mainstream discussion surrounding the decriminalization or legalization of more drugs, the understanding of addictions appears to be shifting away from a criminal justice paradigm to a medical paradigm; if this trend continues, DTCs could become obsolete in their short existence. Perhaps that is necessary anyways in order to further the discourse of addictions to a more suitable frame of thought.


Check out the Robson Crim MLJ
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