14 Fed. Sent'g Rep. 172 (2001-2002)
The Rehabilitative Ideal and the Drug Court Reality

handle is hein.journals/fedsen14 and id is 174 raw text is: The Rehabilitative Ideal and the Drug Court Reality

District Judge,
Presiding Judge
(Criminal Divisions),
Second Judicial
District (Denver), State
of Colorado.

I. Introduction
Drug courts don't work, and never have. They don't
reduce recidivism or relapse. Instead, they trigger such
massive net widening that they end up sending many
more drug defendants to prison than traditional
criminal courts ever did. Their failures have resulted in
a quiet refocusing, from pre-adjudicative treatment to
post-adjudicative treatment. That is, they have become
officially what they have always been unofficially: a form
of glorified, and terribly expensive, probation. Their
continued popularity is a testament not to their
effectiveness but rather to their political appeal, and to
the irrational commitment of a handful of true believers.
Federal courts should continue to resist them.
What is most disturbing about the drug court
movement is that we have been down this rehabilitative
road before, and have apparently not learned anything
from the spectacular failures of the rehabilitative model.
It not only didn't work, it invested the judicial branch
with dangerous powers we eventually decided were not
acceptable in a democratic society. Now it's d6j  vu all
over again. Drug courts don't work, and they have
created a dangerous psycho-judicial branch populated
by judges who think they are doctors, who think drug
addiction is a treatable disease, and who send their
patients to prison when they fail to respond to treat-
II. Drug Courts Don't Work
The first therapeutic drug court was the one started in
Dade County (Miami) Florida in June 1989. The first
significant independent study of drug court effective-
ness was likewise done on the Dade County drug court,
in i991. In that study, sponsored by the American Bar
Association, investigators found that, although Dade
County's drug court reduced case processing time, it
had no impact on recidivism.'
In 1994, investigators did a similar analysis of the
Maricopa County (Phoenix) Arizona drug court, using a
longer 36-month follow-up period. The results were a
little more encouraging than the i99i Dade County
study,' but the small reduction in recidivism was still
characterized by researchers as non-significant.


In 1994 investigators decided to go back to Dade
County to do another, slightly longer, study. Using an
i8-month follow-up period, they found a statistically
significant but still relatively small reduction in
recidivism.4 But this study was infected with all kinds of
methodological failures, including the researchers'
failure to select the target group of drug court defen-
dants randomly
Frustrated at the paucity and spotty results of these
effectiveness studies, in 1994 Congress directed the
Attorney General to undertake a series of comprehen-
sive evaluations of drug courts.6 Despite this directive,
over the next three years only a single additional drug
court study was completed - of the drug courts in
Baltimore, Maryland. Investigators studied both the
county drug court and the district drug court in
Baltimore, using six-month follow-up periods, and at
neither level did they detect reductions in recidivism
above the study's margins of error.7
Congress appointed Lawrence W. Sherman of the
University of Maryland to report on the overall effective-
ness of federal drug policy, and in particular on the
efficacy of drug courts and on the results of the Attorney
General's drug court studies. He issued his report in
1997, and was highly critical not only of the lack of
additional studies, but also of the methodologies used in
the four existing studies. He concluded the drug court
portion of his report by noting that although existing
data appeared hopefu, the bottom line was that
[t]here is yet little research to examine how effective
[drug courts] are in reducing crime.9
Since the date of the Sherman Report, there have
been many more drug court impact studies, with wildly
mixed results. Many of these studies suffer from a fatal
methodological defect - they target drug court graduates
instead of all drug court defendants. Respected evalua-
tors agree that this kind of comparison is not appropri-
ate, because drug court graduates can be expected, by
definition, to do significantly better than their tradi-
tional court cohorts.' This approach is analogous to
measuring the effectiveness of two high schools by
looking at how many students went on to college, but
comparing all students in one school with graduates in
the other.

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