Dealing with substance abusing offenders: a criminal justice system response

Introduction

The criminal justice revolution in the United States that is the subject of this article began with some overworked professionals in Dade County, Florida. These professionals came together from legal, criminal justice, and substance abuse treatment backgrounds to address the difficult issue of repeat offenders with substance abuse problems clogging the criminal justice system. The group determined that a possible solution to these problems would be a complex model linking the authority of the court and the supervision and drug testing services provided by probation with substance abuse treatment. While all the courts and service agencies had worked together in the past, this new model called for a higher and more formalized level of cooperation. The model worked and has continued to work. And as programs have emerged in over 2,400 courts across the United States and globally, the core of the model has changed very little. This model, now known as the Drug Court Model, has revolutionized the system of justice for many substance abusing and addicted offenders.

The intuitive appeal of the drug court model is obvious. It makes sense that the authority of the court should be brought to bear on the daily activities of substance abusing and addicted offenders. Substance abuse treatment in the United States has, historically, maintained rather low levels of retention. The extent to which probation services and incarceration are ineffective at changing substance abusing offender behaviors is well documented. The United States has been on a prison building binge that has one in every 134 residents of the United States incarcerated at midyear 2009 (West, 2009), despite reduced levels of criminality in nearly every category of crime. The United States incarcerates a higher percentage of its citizens than any other country in the world (International Centre for Prison Studies, 2011). Over half of these prisoners report substance abuse or dependence at the time of incarceration (Mumola and Karberg, 2006). The drug court model was designed with the goals of maintaining offenders in community-based treatment and reducing the need for incarceration.

After twenty plus years of operation the empirical evidence supporting the drug court model goes well beyond the initial intuitive appeal. There is a strong body of scientific research that supports the use of drug courts with substance abusing offenders (c.f. Huddleston, Marlowe, and Casebolt, 2008). In 1996 the National Association of Drug Court Professionals (NADCP) with fiscal and oversight support from the Office of Justice Programs (OJP) undertook to codify the drug court model. This codification became known as The 10 Key Components of Drug Courts (NADCP, 1997) and while these components have been revised slightly over time for particular circumstances, they still reflect the core elements of drug courts. These components are as follows:

1.     Drug courts integrate alcohol and other drug treatment services with justice system case processing.

2.     Using a non-adversarial approach, prosecution and defense counsel promote public safety while protecting participants’ due process rights.

3.     Eligible participants are identified early and promptly placed in the drug court program.

4.     Drug courts provide a continuum of alcohol, drug, and other related treatment and rehabilitation services.

5.     Abstinence is monitored by frequent alcohol and other drug testing.

6.     A coordinated strategy governs drug court responses to participants’ compliance.

7.     Ongoing judicial interaction with each drug court participant is essential.

8.     Monitoring and evaluation measure the achievement of program goals and gauge effectiveness.

9.     Continuing interdisciplinary education promotes effective drug court planning, implementation, and operations.

10. Forging partnerships among drug courts, public agencies, and community-based organizations generates local support and enhances drug court program effectiveness.

These principles have been time-tested and replicated in all types of environments. They remain an excellent resource for individuals seeking to plan and implement a drug treatment court. Overall, research findings concerning drug courts suggest that programs with solid intensive treatment components (Taxman & Bouffard, 2002) and well-rounded ancillary service provision (i.e. educational, mental health, and employment) are the most effective in producing long-term effects (Listwan et al. 2002, and Fluellen & Trone, 2000). It is also well documented that the impact of the judge on the program should not be underestimated (Marlowe, 2002, and Marlowe, Festinger, & Lee, 2004). And, while the research is still limited as to the reasons that the drug court model works (see Goldkamp, White & Robinson, 2001) there is significant literature that does support the effectiveness of the complete model in dealing with non-violent offenders.

This article is focused on the planning, implementation and evaluation of drug treatment courts. Suggestions will be made regarding important considerations and steps needed to ensure that a new drug court program be ready to answer the questions related to efficiency and effectiveness that are likely to be raised. Some of the mistakes made in the past will be discussed and current research related to best practices will be discussed. Further, this article will focus on bringing the growing body of drug court research to practice.

Planning Drug Courts

Planning a drug court is a strategic process that requires several steps. These steps include identifying the scope of the problem, building a collaborative approach among key stakeholders, developing community support, and identifying funding sources. Each of these steps is critical to the development of a healthy drug court program. In many cases, drug courts have been established based upon the drive and desire of one particular person in a community, such as the judge. And while this drive is important, careful planning and consensus building are equally important as the program transforms from an idea to reality.

Analyzing the Drug and Alcohol Problems in a Community

Frequently, the scope of the substance abuse and crime problem in a community is assumed. Leaders in communities are often well aware of the issues related to drug and alcohol abuse in their communities. It is, however, important that these intuitive beliefs be converted into data when planning a drug court. And, while the question of actual substance abuse and related criminality are important, it may be the case that the question of gaining appropriate leverage over potential participants is more important. For example, recently the members of a treatment court team in a somewhat rural jurisdiction were concerned about the low number of referrals that they were receiving. This court was a municipal court that accepted both drug offenders as well as DUI offenders. They considered the high number of DUI cases in the community as part of their analysis and relied heavily on this number for planning the court program. However, they failed to consider the fact that most first time DUI cases in this jurisdiction received diversion as a sentence and third time DUI offenders were processed in District Court as felonies. Only those offenders who had been arrested for their third DUI had enough jail time associated with the charge to warrant participating in an 18-month treatment court program. Thus, the overall number of DUI arrests was not a very accurate predictor of those who might want to participate in the program.

When identifying a “target population” it is important to consider more that the number of arrests. There are several questions that need to be answered. First, how many people from the community are involved in drug and/or alcohol related criminality as measured by the numbers of arrests? Secondly, how does the prosecutor’s office generally deal with these offenders? Are they diverted, processed through plea agreements, or run through court? And which court in the community or district generally has jurisdiction? Finally, what sentences do they receive for their criminality? This last question is important in terms of the leverage that drug courts will have to enroll participants and to hold them accountable when they do enter the program.

The Collaborative Approach

The core of the drug court model is collaboration. This collaboration is most visible in the drug court team meetings and in court. Drug court teams generally consist of members or representatives of the prosecuting attorney’s office, the public defender’s office, law enforcement, probation, treatment, as well as the judge. Frequently, well-functioning drug court teams include an evaluator. The team is central to decision-making related to the responses of the court to the behaviors of the participants.

In 2008, NPC Research of Portland, Oregon, undertook a project designed to identify best practices for treatment courts. Since that time, over 100 courts have been considered using cost and recidivism rates as measures of program performance. After the data was collected on program performance surveys were conducted with program staff. These surveys focused on elements related to the Ten Key Components (NADCP, 1997) as well as other issues related to program function. From this data, 28 key drug court practices were identified as being the most correlated with program performance (e.g. reduced recidivism). These practices have been labeled as the Best Practices for drug court programs.

It is important to note that these practices have not been identified as causing the improved outcomes. They are more a list of practices engaged in by the “good” programs from around the country. Many of these practices are linked to programs with longer histories and as such it may be the case that some of the older programs have been able to adapt to variables such as target population and available resources to create an effective system. These practices have been ordered based upon the order of the Ten Key Components (NADCP, 1997). They are not ranked in any way.

Table 1. Practices Related to Positive Outcomes

(Carey, Finigan and Pukstas, 2008)

It is clear from this list of best practices that team membership requires actual participation. While the role of the judge in the process is well documented in the literature (Marlowe, Festinger, & Lee, 2004), it is becoming increasingly apparent that the entire team has significant effect on the outcomes. Research is clear that the regularized interaction between a judge and the drug court client is vital to program success particularly for “high risk” offenders. High risk in this case is defined as those clients with previous failures in drug abuse treatment with antisocial personality disorders (Marlowe, Festinger, & Lee, 2004). Drug court judges volunteer several hours a week to review the status of clients and hold drug court sessions. For many treatment court clients, the communication with the judge in these hearings is the first and only time in which a legal professional shows an interest in their progress and this serves as a powerful motivator. While the judge generally manages status hearings, the entire team is given the opportunity to have input into the decisions made about clients. After these decisions are made the judge holds a hearing to meet with clients and order that the clients follow the group decisions.

Drug courts also serve as a conduit between substance abuse treatment and the criminal justice system. Historically in the United States, treatment has been considered a completely separate enterprise and at times the treatment process is at odds with the criminal justice paradigm. Drug courts promote a working relationship between treatment, the judiciary, and law enforcement. This relationship promotes continuity of care and helps to retain clients in treatment. National drug court retention rates seem to hover around 70% while 80 to 90% of those simply ordered into treatment drop out before completing 12 months (Marlowe, DeMatteo & Festinger, 2003). A wide body of research supports the idea that “the length of time a patient spent in treatment was a reliable predictor of his or her post-treatment performance” (Huddleston et al, 2005).

However, collaboration for a healthy drug court goes well beyond the actual team. Prior to implementing a treatment court it is important to build relationships with all of the stakeholders in the community. These individuals or entities are crucial to successful program implementation. City and or/county government officials are important as these groups may provide resources. These resources go beyond financial commitments and include space for meetings, court resources, and support. Local businesses are valuable resources for providing incentives and assisting with job placement for participants. Finally, local social service resources such as shelters, mental health facilities, housing services, employment services, medical providers and dental providers can prove invaluable for drug courts seeking to improve the quality of life for participants.

Developing Community Support

Community support is critical to program success. This support can be garnered by opening the doors of the proposed program to interested parties and the media during the development phase. The benefits of having community support are often unexpected and somewhat difficult to quantify. A recent example of this surprise support came to light in a community with a newly established DUI court program. The program coordinator made a practice of trying to find one social group or agency for a presentation each month. During one of these presentations an elderly gentleman who asked if donations could be made to the program approached him. He went on to say that he was an alcoholic and had struggled with the disease for close to 50 years. The program coordinator suggested that he could donate to the program via the non-profit agency established to help manage funds for the program. About six months later an attorney notified the program manager that the gentleman had passed away and left a substantial sum to the program. After going through the probate process the program received close to $200,000 with no strings attached.

Funding Sources

In the United States there are four basic means by which drug courts are funded. The first of these is through federal grants. These grants may be obtained through the Bureau of Justice Assistance (BJA), the Office of Juvenile Justice and Delinquency Prevention (OJJDP), and from the Substance Abuse and Mental Health Authority (SAMHSA). And, while the federal dollars have fluctuated a bit over the years, there has been a strong commitment from the government to help establish these programs. It should be mentioned that federal funds are largely reserved for new or expanding programs and not designed, generally, to support the sustainability of such organizations.

Nearly all of the states have establishing revenue streams for drug courts. In fact, as of April, 2007, forty states had codified funding for treatment court programs (Huddleston, Marlowe, and Casebolt, 2008). Funding from these appropriations generally requires an application to the state agency responsible for the funding. These agencies can be from the judicial or executive branches of government and often have extensive and useful program requirements. Many of these states also require programs to gain local funding matches for all or some of the distribution.

Local funding generally comes in two kinds. In many cases local governments, such as cities or municipalities, will provide resources that can be considered “in-kind” donations to the programs. The donations can be in the form of meeting space, court services, and employee time. And, in many cases, county commissioners and city councils may have some discretionary funds that they can allocate to such programs. A second type of funding is donations from local social and civic organizations. These funds can be used to defray costs or purchase incentives for participants.

Implementation

After the strategic planning has been completed and the team has been assembled it is important to formalize the relationships with the various entities involved. Commonly new drug court programs develop contracts with treatment providers but it is also important to memorialize the expectations of the other member organizations. Memoranda of understanding (MOU) are a good way to accomplish this. These memoranda should be established with all of the agencies represented in the treatment court team as well as those that are providing resources (e.g. local mental health providers). These agreements frequently help to prevent misunderstandings and memorialize expectations on both sides.

The push to establish treatment courts in a community can be from both internal and external sources. Recently, a court in a relatively prosperous tourist destination was pressured by the State Department of Transportation to implement a treatment court program. The community had an extremely high rate of drunken driving cases and the State Department of transportation had available funds for the program. After some cajoling, the judge agreed to accept the funds and attended training. After listening to the speakers at the training, the judge was further convinced of both the need in her community as well as her ability to manage a treatment court program. Upon returning to her community she worked diligently to identify a treatment provider for the new program and held a meeting with the public defender and prosecutor. The County Prosecutor, however, was not sold on the program and maintained that the only appropriate participants for a treatment court program are low-risk offenders. This lack of agreement led to a court that was hampered by the lack of appropriate participation.

Establishing the Behavioral Model

One of the central elements of the drug court is the management of participant behavior through a strategic system of sanctions and incentives designed to encourage pro-social activities. These sanctions and incentives are focused on both distal and proximal goals and may be formal (e.g. a gift certificate) or informal (e.g. a positive comment from the judge). It is critically important that the program establish a behavioral model that is at once firm yet fair. As the primary figure of authority within the treatment court program, the judge most frequently is the one delivering the sanctions and incentives during the court sessions. There is a strong body of literature available that prescribes the appropriate approach for the behavioral model (c.f. Arabia, et al., 2008). It is important to define the proximal and distal goals that participant have during the program. For example, an addict with a long history of substance abuse is likely to relapse during the early phases of the program. For these individuals treatment attendance is the most critical proximal goal while complete sobriety may be a more distal goal. As such, attendance should be treated as the most important behavior during the early phases of the program and sanctions or rewards should be used accordingly.

The behavioral model employed in drug courts requires a high level of community-based supervision and frequent randomized drug and alcohol testing. These two components are central to the planning of a new program. Most often, local probation resources work well for the community supervision aspect of the program.

Evaluation

One of the most important and profitable tools for ensuring program success is the use of scientifically driven process and outcome evaluation. Process evaluations should be considered tools for the management of a productive program. They provide a point-in-time assessment of program performance and a comparison to the known best practices of treatment courts. Process evaluations allow program managers to seek the answers to important questions they have related to the functioning of their programs. As such, there are two important elements that bear mentioning in relation to these evaluations. First, the evaluations should be driven by the management teams’ needs. While there are standards by which programs should be measured including best practices and the Ten Key Components (both mentioned in detail above), the real crux of the evaluation should be centered on the issues being faced by the program in question.

One of the common issues that arise in treatment court evaluations is the question of how best to use the limited resources available to treatment court teams. As programs grow the time requirements alone can become quite daunting. Many programs struggle with how to provide the “right” services for their population. A recent program evaluation identified just this problem. The program was brimming with participants and turning away appropriate candidates due to lack of space. The evaluator was familiar with recent research regarding the use of risk/needs assessment to determine the appropriate level of care for program participants. It was determined through careful analysis of the program population and the potential participants on a waiting list that many actually would be better suited for a program with less intensive supervision but similar treatment levels. These individuals were deemed low risk/high need and were frequently members of the community who were in relatively good standing (i.e. holding a job and supporting a family). The team decided to open a “Track Two” program that had as its major elements intensive treatment but less constant oversight. The early returns on this program have been promising and the team is delighted to be able to serve a needy population without further stretching the already thin resources of the program.

Performance Measures

In the spring of 2006 the National Drug Court Institute published performance measures for drug courts that were based upon a growing body of research in the fields of substance abuse and drug courts (Heck, 2006). The drug court logic model suggests that short-term or proximal program goals such as sobriety and reduced recidivism, lead to long-term, or distal, outcomes. Based upon research related to substance abusing offenders in the criminal justice system the goals of program retention, participant sobriety, and reduced recidivism provide a strong basis for expectation of improved long-term outcomes for program participants (Taxman, 1998). Additionally, it is important to discuss the amount of services provided to participant while they are in the program. This is more a measure of program functionality than expected outcomes.

Retention

Retention is calculated as a ration of those who complete a program over all of those who enter the program given a limited time frame. Nationally, adult drug courts report a retention rate of approximately 67 to 71% (Huddleston et al, 2004). However, this rate varies widely from location to location. Factors that influence retention include the amount of leverage that the court has over participants as well as the severity and type of criminal and substance abuse history of the participants. Interestingly, while drug courts have frequently been accused of selecting clients that are likely to succeed even without intervention, the data suggest that those with longer criminal histories and more severe alcohol of drug issues tend to do better in drug courts when compared with those with limited criminal and substance abuse exposure. It is unambiguous in the literature that length of stay in treatment beyond a minimum threshold (generally 90 days) improves outcomes for clients.

Sobriety

Sobriety is an important goal for any treatment court program. Sobriety is most reliably measured using drug and alcohol screens. Self-reported data in this area is not considered reliable although many supplemental programs such as Alcoholics Anonymous allow substance abusers and addicts to define their own sobriety dates. All drug screens should be documented. One of the common mistakes made by programs is that they retain information only on dirty drug or alcohol tests. This method ignores some of the most valuable data related to programmatic outcomes. Further, the literature is unambiguous about the positive pro-social effects of clean time for addicted offenders (Satel, 1999).

Recidivism

Recidivism is simply defined as the rate at which drug court participants reoffend. This usually includes any types of new offenses with the exception of technical violations of probation and traffic or other infractions handled by a citation. And, while the concept is simple to define it is often very difficult to gain consensus on measurement. After much debate the National Research Advisory Committee determined that the best means for measuring recidivism in a local court program during the evaluation process is through the use of arrest statistics. This choice is based upon several factors. These factors include the relative ease of accessing these numbers as well as the need for treatment court teams to respond quickly to arrests of offenders in the programs.

Services

Another important measure of programmatic performance is the number and variety of services provided to treatment court participants. It is important to ensure that the myriad and varied needs of the program participants are considered and that these needs are met when feasible. One of the biggest lessons learned in the drug court movement was the high level of co-occurring disorders that were evidenced in the populations being served. It was wrongfully assumed by many program managers and judges that the primary and only major problem facing participants was related to substance abuse. As time passed it became increasingly clear that mental illness was a common companion of substance abuse and those programs that failed to consider and treat this problem were destined to suffer with relatively poor outcomes.

Process Evaluations

Normatively, an objective outsider should conduct the process evaluation with both experience conducting evaluations and knowledge of the field. Process evaluations are tools that should be used for program improvement. They should focus on elements of the program such as the extent to which the program is attaining its goals or the appropriateness of the treatment given the individual offender’s assessment. A good description of the important questions for process evaluations can be found in Local Drug Court Research: Navigating performance measures and process evaluations (Heck, 2006, available on-line at www.ndci.org). During the early years of the federal funding for drug courts there was a requirement that drug court grantees performed “evaluations” on their programs. However, few, if any, guidelines were given to programs establishing of what a process evaluation should consist. Evaluations were sent in from all over the country and when reviewed by knowledgeable researchers it was determined that the information gathered in these “evaluations” was so scattered and misguided as to be completely useless. In many cases the local program assigned a clerk or some other internal program staff to perform the evaluation.

Some Common Mistakes

There are several mistakes that are commonly made by drug court teams eager to begin work. The first of these is failing to adequately prepare for implementation. Many programs seem to rush forward without training and this can lead to mistakes and poor outcomes. For example, a program was recently established in a relatively urban jurisdiction. The prosecutor in this jurisdiction was only interested in working with the drug court if it was handled as a diversion program for low level and first time offenders. His reasoning was that he did not want to place his community at risk by keeping individuals with serious addiction problems in the community. As might be expected, the results were mixed. Many of the participants felt as if the intensity of the program was overkill and many who really needed the services of a drug court were excluded from consideration. After attending drug court training, the prosecutor was convinced that the program should be expanded to include those offenders with more serious substance abuse and criminal histories. Outcomes changed noticeably and the program started to flourish.

Failing to formalize relationships is another common mistake. In the rush to begin accepting clients that desperately need services, many programs rely on handshake agreements and informal relationships. One such program was recently confronted with the very real possibility of shutting their doors because of a failure to memorialize agreements. In this case it was an agreement with a local treatment provider. The program had been running smoothly until a dispute emerged between the treatment personnel and the judge about how best to manage a particular client. As the dispute escalated the treatment provider simply decided that he could no longer work with the drug court program and suddenly all of the program participants were without treatment services. Fortunately this situation resolved itself quickly but the effects of not having a contractual relationship were potentially devastating.

Another common mistake is that programs take data for granted. It is impossible to evaluate a program or measure the successes of a program without adequate data. For many years programs frequently kept paper files in filing cabinets as a means for tracking program activity. This makes evaluation and research extremely time consumptive and expensive. There are several “off the shelf” drug court electronic databases and few good reasons not to invest in such a tool.

Conclusion

During the past twenty years the drug court model has grown and prospered around the United States and abroad. The growth has been amazing given the difficulty of making changes in any criminal justice related enterprise. This growth, however, has not been without the pains that go along with such changes. As courts continue to mature it is likely that there will be more changes. However, treatment courts serve an area of incredible need. And, as such it is incumbent upon those of us who practice or research in the field to ensure that the best information is available and the best practices are followed. We have learned a great deal since the first drug court was established in 1989. However, we have much more to learn. Unfortunately, mistakes and oversights in drug courts are seen in the lives of the program participants and their families. And this is a cost that is simply too high to bear.

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