Treatment with Teeth

In the movie Traffic, the recently appointed federal drug czar, played by Michael Douglas, is returning with his advisers on an airplane after viewing an interdiction site on the Mexican border. He asks them to "think outside the box" for a moment. Everyone is silent. He then asks, "What does treatment think?" Again, silence. Douglas then says, "There isn't anybody from treatment on this plane, is there?"

The criminal-justice system has been an airplane traveling without anyone from treatment onboard. Treatment has been flying without the courts. Research shows that both need to travel together: Court-enforced treatment is far more effective than both incarceration and voluntary treatment if the goal is to keep addicts from relapsing into drug habits and crime. In my experience as a judge in Massachusetts, I've found that drug courts offer an effective alternative to both the war on drugs and the opposition movement for decriminalization. The former, with its harsh sentences and lack of treatment, has been costly and ineffective in reducing addiction- and drug-induced crime. The latter, which offers treatment with little possibility of punishment, diverts scarce resources from those who can most benefit: addicted offenders. Drug courts deal with the shortcomings of both approaches, favoring treatment over jail but constructing a system that allows treatment to stick.

The first drug court began in 1989 in Miami, the result of a cooperative effort between the judiciary and then-Dade County prosecutor Janet Reno. There are now more than 1,000 nationwide, either in operation or the planning stages. Support spans the political spectrum. In 2000, every chief justice and court administrator from the 50 states signed a resolution in support of drug courts. The daughter of Gov. Jeb Bush (R-Fla.) is a drug-court client. In my county in Massachusetts, all three leading candidates in the 2002 race for district attorney advocated expansion of drug courts. The state's criminal-defense organization for the indigent has added its endorsement, too.

The typical drug court combines substance-abuse treatment in the community, strict case management with direct judicial involvement, regular drug testing, and graduated incentives and sanctions based on performance in treatment. The ultimate reward is avoidance of a jail sentence or the expunging of criminal charges. The ultimate sanction is imprisonment.

I preside over two drug courts, in the Brighton and Roxbury neighborhoods in Boston. My drug courts concentrate on high-risk offenders, those with long records and substantial histories of drug use, the very people who will break into businesses, cars and homes to steal. (Offenders with a history of serious violence, sexual offenses or arson are generally not eligible.) The Brighton and Roxbury drug courts admit offenders based on a guilty plea or on the adjudication of a probation violation. I do not accept pretrial diversion cases, because I believe that a serious drug abuser will not succeed without a sentence hanging over his or her head; the punishment for violating a diversion program is only to go back on the trial list. Those I do accept are placed into supervised treatment for at least one year.

Judges and probation officers refer offenders who fit these criteria. The drug-court probation officers examine the offender's criminal record, substance-abuse history, current usage, symptoms, level of functioning, mental-health history, social and family relationships, employment status and drug-treatment history. They make a recommendation as to suitability for a drug court and a treatment plan, and then I determine whether to admit the offender.

The key elements of the Brighton and Roxbury courts are:

Community treatment. The probation staff places those accepted into appropriate treatment, such as a therapeutic community, a residential one, day treatment or outpatient counseling. For people with a co-existing mental illnesses, special efforts are made to place them in "dual diagnosis" treatment. We attempt to place those whose primary language is not English in treatment administered in their language. Treatment that takes account of a history of abuse and trauma is appropriate for many, especially women. Some participants respond to a more traditional medical setting, others to a faith-based program. Any program utilized by the drug courts must be willing to provide detailed progress reports on at least a weekly basis. The probation staff may need to change the treatment placement over time, depending on the participants' forward progress or relapse. Intensive case management is performed by probation staff. Probation officers monitor participation, receive progress reports from treatment providers, and make home and treatment-site visits. If a probationer relapses but the drug court still wants to work with him or her, a stepped-up treatment plan or new placement can be made. As Dr. Lonny Shavelson writes in Hooked, his recent book about San Francisco's treatment-on-demand program, "Drug Courts not only coerced treatment but coordinated treatment, bringing the myriad aspects of rehab together under the watchful eyes of a single agency. ... Guiding, coordinating, and organizing our programs is as crucial as coercing or motivating the addicts to stay clean."

Testing. Abstinence from narcotic drugs (including prescription narcotics) and alcohol is required. Probationers are tested frequently on a random basis.

Judicial oversight. Here is where drug courts are very different from the traditional criminal-justice system. The judge is directly and personally involved. My drug courts meet weekly. Prior to each session, I hold a meeting attended by probation staff, treatment providers, the defense counsel, and the prosecution to get an initial report on all the participants and applicants for admission to the drug court. Then court begins. The participants appear before me regularly, initially on a weekly basis. They stay for the entire session rather than leaving after their cases are concluded. The probation office informs me of each probationer's criminal activity (if any), test results, and compliance with treatment and other conditions of probation.

Graduated rewards and sanctions. The judge rewards those doing well with praise in the presence of other participants. I give those who have done something special -- received a glowing report from treatment, given help to another addict, abstained when a loved one dies -- a tiny star like the one a teacher may have put on your paper in school. You may be thinking, as I did when a colleague of mine told me about this reward, this is too hokey! It is not. I have seen men who have done state prison time and women who have been selling their bodies for years glow in response to positive recognition before their peers. After a period of solid performance, a participant may be allowed to attend court less frequently. Sanctions can involve a reprimand, a more intensive treatment program or a short period of incarceration. The ultimate sanction is removal from the drug court, which means incarceration.

Relapse prevention. All participants must complete a course to help them recognize and manage relapse warning signs.

Graduation. Those who complete a minimum of one year in my drug courts and are in full compliance, including at least 90 days of continuous sobriety, will be considered for graduation. The drug court holds a formal ceremony at which each graduate is honored for his or her progress in recovery and law-abiding behavior. Each graduate is invited to speak, thereby validating what has been accomplished and inspiring the remaining drug-court participants.

The bottom line is that all this works. National statistics tell us that drug-court graduates enjoy longer periods of sobriety and commit fewer criminal activities than similar offenders who do not have the benefit of drug court. In my drug courts, which have been running since May 1999 (Roxbury) and June 2000 (Brighton), the recidivism rate as of the latest statistics is 30 percent, compared with a usual rate of new criminal activity among drug offenders of 50 percent to 70 percent. By giving addicts a sustained period of sobriety and the tools to help maintain that sobriety, drug courts also save money that would otherwise be spent on health care, prisons and law enforcement. For example, one study concluded that Oregon's Multnomah County drug court produced more than $2 million in cost savings. Every dollar spent on that drug court was estimated to produce $2.50 in savings to taxpayers and $10.00 in savings when broader societal costs were considered. For all these very measurable results, conservatives and liberals alike who know about drug courts have lined up in support.

Unfortunately, the national debate over drug policy has largely overlooked the drug-court movement. The two competing forces -- the war on drugs and the decriminalization movement -- have been content to keep treatment and the courts on separate airplanes. The premise of the war on drugs is that aggressive action abroad and at home to reduce the supply of drugs will dramatically affect the incidence of drug abuse in America. This approach regards the court system as the means to adjudicate and sentence, with rehabilitation through treatment a secondary goal at best. Although a great deal of the three-fold growth in the American prison population since the early 1980s is attributable to convictions for violating drug laws, research has shown virtually no impact on drug use and very little effect on drug-induced crime.

The competing approach, which has shown political strength in several states, is the decriminalization movement. Proposition 36 in California and Proposition 200 in Arizona are examples of this approach. Proposition 36 mandates treatment as an alternative to incarceration for all first- and second-time nonviolent drug-possession offenders, except for those involved in the production, distribution or sale of drugs. But this law attempts to build a wall between treatment and the court system (although drug courts in California and Arizona have had some success in finding ways around the barriers). Drug-test results may not be reported to the criminal-justice system without the participants' consent, and treatment programs may not view arrest and conviction information without permission. Consent cannot be required as part of a plea bargain. Offenders diverted under Proposition 36 are permitted three drug-related violations of probation without any criminal-justice consequences unless there is a danger to the safety of others.

As a judge, my role is not to advocate for or against either policy, but I can tell you what I have learned during my 13 years on the front line about what works. My experience and study have taught me the following:

• Substance abuse is a significant factor in the majority of criminal cases that enter the judicial system each year. The literature suggests the percentage to be between 67 percent and 80 percent. Approximately 60 percent of adults who are arrested are intoxicated at the time of booking. In my own experience, abuse of drugs or alcohol is often directly part of the charged crime, or lies just beneath the surface; it is only a question of how deep one digs. For example, when I examine the criminal record of a man before me who's been charged with shoplifting and I see five prior shoplifting convictions, there is a high likelihood of substance abuse even if there are no drug charges on his record.

• Almost all substance abusers and addicts need treatment to become clean and sober. The vast majority of them will not do it on their own.

• The longer someone remains in treatment, the more successful he or she generally is in maintaining sobriety and law-abiding behavior. Most studies have found that one year is the minimum effective duration.

• Coerced treatment works. Most addicts and substance abusers will not enter treatment or stay very long if treatment is voluntary. Forty per- cent to 80 percent will drop out in the first three months, and 80 percent to 90 percent will leave before the end of a year. On the other hand, most coerced patients stay in treatment longer.

• Treatment that is not only coerced but coordinated has an even higher success rate. Almost all addicts and alcoholics in the initial stages of recovery relapse are or were expelled from a treatment program. More and more substance abusers and addicts also suffer from mental illness. Without a coordinating agency, the initial relapse or the lack of dual-diagnosis treatment will put the addicted person back on the street, where he or she may well resume heavy use and criminal behavior.

• Success in treatment should be rewarded. Treatment is hard work. Most addicts have zero self-esteem and no track record of accomplishment in life. Rewarding offenders is a strange concept to most judges and court officials, but it is essential in substance-abuse cases.

My experience has also taught me that there are myths about substance-abusing criminal offenders, some of which are relied upon by both supporters of the war on drugs and those who favor decriminalization. The first is that incarceration of addicted offenders is essential to reducing drug distribution and protecting public safety. That is certainly true while the addict is in prison. But if an addict is released without addressing his or her addiction, that offender will go right back to using and committing crimes to feed his or her habit. Research studies show that within one year, 85 percent relapse into drug use and 70 percent commit crimes. The only solution under this approach is to imprison all substance abusers and addicts for very long periods of time -- a policy that carries a high fiscal and moral price. Those who favor the incarceration approach may argue that long prison sentences for drug use will deter others, but there is no data whatsoever supporting this.

A second myth is that if society offers a drug-addicted offender treatment and that person uses again, the appropriate next step is jail. As probation officers will say, "Judge, this defendant is not probation material." This myth ignores the reality that few addicts or alcoholics get into recovery the first time and stay in recovery without ever relapsing. It flies in the face of all we have learned about the drastic changes in brain chemistry caused by addiction and the barriers those changes create to making alterations in behavior.

A third myth is that the drug world is divided into users and sellers. There are some abusers and addicts that never have sold and never will, just as there are drug dealers who abstain from their wares, but the overwhelming majority of addicted or abusing individuals will at some point sell in order to buy for themselves.

A fourth myth is the one of the nonviolent substance abuser, the person who only gets arrested for possession of narcotics he or she is intending to consume. This image is central to the decriminalization movement. (While there are indeed such people in the criminal-justice system, they are a small subset.) Research establishes a close correlation between drug use and all varieties of crimes. I have had many offenders who have come before me on their first charge of drug possession but have a huge record of petty larceny and burglary, or even sale of drugs. The public-policy choices would be a lot easier if drug abusers and addicts only possessed narcotics, but the reality is that many prey on individuals and businesses to support their habits, and that will not end if first- and second-offense possession cases are decriminalized and adherence to treatment is not enforced.

A fifth myth, based on the one of the nonviolent drug user, is that an addicted person will succeed in treatment only if it is his or her voluntary act. This belief ignores the reality that treatment is hard and addiction strong and insidious. Few enter treatment, and fewer stay, if there is not some serious consequence for leaving.

A sixth myth is that alcohol is not a drug. It is legal but it is a drug nevertheless. The evidence shows that it is involved in more criminal behavior and more social and economic problems than any other drug.

A seventh myth is that treatment resources are best spent on persons who have been arrested for the first or second time for a drug-related crime. The reality, supported now by a large amount of data, is that first and second offenders who have limited or no probation and treatment services do about as well as those given intensive services. For some, just the encounter with the criminal-justice system is enough to change behavior. On the other hand, research by professors Paul Gendreau of the University of New Brunswick and Douglas Marlowe of the University of Pennsylvania demonstrates that intensive, long-term treatment of high-risk offenders with a substantial record, with frequent judicial monitoring and coordination, can make a significant difference in future recidivism and drug use. Proposition 36-type approaches can divert limited resources from the high-risk population, for whom treatment can make a difference, to a low-risk population, where there is little evidence that treatment services are necessary.

Drug courts are premised on the realities of substance abuse and the criminal-justice system, not mythology. They offer a middle way between the war on drugs and the decriminalization movement. They protect public safety by providing strict, intense and coordinated supervision of participants while in drug court, and in turning out a high percentage of graduates who are able to maintain their sobriety and obey the law. This is why many prosecutors and conservatives support drug courts. At the same time, though, such courts accomplish the goal of the decriminalizers by allowing drug abusers access to rehabilitation and the opportunity to pursue recovery outside the jailhouse walls, which is why many defense attorneys and liberals also support them. And both liberals and conservatives appreciate the cost savings.

Drug courts also save lives. Indeed, the most frequent thing offenders say on graduation day is that they would be dead without their drug court. I think of Clinton B., who was a heroin addict for 40 years but has been clean and sober for three. He told me that each day in recovery is better than the day before. I think of Delinda C., who was reunited with her daughter in a sober housing development. She loved the fact that her child had such good role models in the other recovering parents. I think of Jack M., a young man who almost decided to do his time because his drug court was too hard but who is now on the staff of a treatment program, helping others into sobriety. These stories are happening in drug courts across America everyday. In the words of Gen. Barry McCaffrey, director of the Office of National Drug Control Policy during the Clinton administration, "The establishment of drug courts ... constitutes one of the most monumental changes in social justice in this country since World War II."

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