Drug Courts: You’d Think They Would Work

A new Scottish study found something surprising. Scotland has recently adopted American-style drug courts, where the court works with drug offenders to arrange for treatment in place of incarceration.

The expectation was for effective sentences of drug treatment and testing orders, which are widely used in the United States. To be placed on such an order, offenders must plead guilty and agree to accept treatment and drug testing, where a failure to comply (testing positive) means fulfilling the original sentence (imprisonment).

As a part of the process, extra treatment resources and intensified and specialist judicial supervision are provided. Supervision and treatment teams comprising social workers and drug treatment staff assess offenders, test their urine for drugs, supervise and treat or arrange for treatment, and report back to the courts. Court time is used to review progress for sentenced offenders. The spirit is one of collaborative dialogue and therapy rather than adversarial confrontation and punishment.

The whole thing sounds ideal — and, indeed, in Scotland and the U.S., everyone likes drug courts. As intended, problem-solving dialogue between courts and offenders replaced the normal adversarial atmosphere in Scotland, and both sides felt this led to better decision making. Agendas were set at pre-court meetings between the judge and the multidisciplinary team working with the offender. Court monitors learned to accentuate positives, accept that progress might be incremental and bumpy, and set achievable goals. Offenders felt like they were listened to and treated like human beings and seemed motivated to do well.

Damn, too bad it didn’t work! While appreciated by offenders and staff, no crime-reduction benefits were found compared with regular adjudication, and per-capita costs were much higher for this failure. Within a year 50 percent of drug court offenders had been re-convicted and within two years 71 percent, at an average cost of nearly 18,500 pounds per order ($27,500).

Struck by the failure, the Scottish court system extended the trial. But future results will be no better (as they are really no better in the U.S.). Indeed, drug courts are ideal testing grounds — since they are intended as supportive and apply much more TLC than courts ordinarily do — for our ideas about treatment. And these fail decisively for the following reasons:

Treatment in this context means addressing drug abuse and addiction motives, rather than allowing people to develop skills and assisting them with real-world coping resources. Instead of learning how to deal better with their lives, drug users learn fictive explanations for their behavior and destructive theories of substance abuse and addiction. In the United States, especially, these explanations focus on drug abuse as a disease users supposedly have.

The one complaint among Scottish offenders was about the treatment services; they often found the treatment wasn’t applicable to their individual cases, wasn’t flexible enough, and didn’t address broader needs they had. In short, treatment was designed for a putative disease, rather than helping them to lead more productive lives.

Finally, offenders are not allowed to improve their lives gradually. The disease model (which has strongly moralistic elements) views any use as a disqualifying failure, since abstinence is the be-all goal, and users are quickly violated. In real life, total abstinence is rarely achieved — even when defendants make real progress, using less, and using what they take less dangerously. But drug courts cannot deal with this reality, which is described by the concept of harm reduction.

By following the medical model of addiction, which is American to its core, drug courts actually produce worse results than allowing courts to follow their usual insensitive and rough brands of justice.