August 04, 2018

State, federal drug courts recommend best practices to improve outcomes in criminal justice system

As drug courts continue to grow in popularity in the United States with more than 3,100, so do the challenges facing these problem-solving courts in the state and federal criminal justice system. Legal experts from across the country addressed some of the challenges and talked about solutions during a panel discussion, “The Future of Problem-Solving Courts: Where Do We Go From Here,” on Aug. 3 at the ABA Annual Meeting in Chicago.

Among the challenges, according to the National Association of Drug Court Professionals (NADCP), are the need for rehabilitation and deterrence with multidisciplinary programs focusing on probation, intervention, treatment, drug testing, prosecution and defense counsel promoting public safety while protecting participants’ due process rights, sanctions for poor performance and having sentences reduced or expunged for employment purposes.

Other program challenges included early identification and prompt entry into drug court, capacity for participation, the difference between clinical needs and court requirements, alternative incentives, and training and team roles. In addition, drug courts require additional funding to support these initiatives.

As the criminal justice system continues to move towards addressing more high-risk/high needs of participants, many of the traditional incentives for participation in drug courts become more difficult to maintain. Subsequently, team members should continue educating themselves and gaining up-to-date knowledge about best practices on topics including substance abuse and mental health treatment, complementary treatment and social services, behavior modification, community supervision, drug and alcohol testing, team decision making, and constitutional and legal issues in drug courts.

Panelist Douglas B. Marlowe of the NADCP, who says the average reincarceration rate in the U.S. is 50 percent, said drug courts should be an option for first offenders with no criminal history because these participants meet a reduction in recidivism and managing them in the criminal justice system is cost effective. Also, he said judicial supervision is critical to reduce recidivism and to increase rehabilitation.

“Individual counseling and therapy is needed instead of group interactions especially for high-risk candidates,” Marlowe said. He noted that the better managed drug courts don’t give too much jail time, because it increases recidivism. Three to six days in jail usually yields the best benefits.

Marlowe said a more recent challenge in balancing between treatment and criminal punishment is the opioid epidemic and the resistance to medical-based treatment. “Another challenge includes the de-institutionalization of the criminal justice system through race, ethnicity and gender disparities.”

These disparities are evident in the state of Florida. “Most of the inmates (at the Miami-Dade County jail) are incarcerated due to mental health and substance abuse, said panelist Steven Leifman, a county judge in Florida’s 11th Judicial Circuit. “People with mental illness are 18 times more likely to end up incarcerated instead of in a mental institution. “Unfortunately, we punish mentally ill people when they don’t behave the way we want instead of getting them the services and resources they need and deserve.”

Perhaps because of that resistance, state courts, unlike the federal programs, are lacking in funding, according to panelist Brooke Hyman, former assistant public defender in Shelby County, Tenn., and a member of the ABA Criminal Justice Section. “Although there has been funding made available for mental health in the courts on the federal level, the state level needs much more funding, a better model of service delivery and solid partnerships.”

According to panelist. John Gleeson, former U.S. District Judge of the Eastern District of New York and a partner with Debevoise & Plimpton, LLP in New York, over incarceration produced an explosion of the prison population in the federal system. “There are people being sentenced to federal prison every day in this country who should not be there,” he said.

He noted he success of federal re-entry courts of the Eastern District of New York, which offers a drug court, Pre-trial Opportunity Program and a Youthful Offender Special Options Services Program.

Each program provides guidelines for offenders to meet to avoid prison or to receive reduced sentences or expungement of their record.

“What makes these programs work is that each participant in the program supports each other and the programs offer an opportunity to avoid the prison structure,” Gleeson said.

There are at least 25 federal drug courts around the country. Although the federal program is smaller than those offered at the state level, Gleeson said it is just as effective. “The federal drug courts are transformative for the judges and the participants,”

Raúl Ayala, deputy federal public defender in Los Angeles served as the moderator for the program at the ABA Annual Meeting in Chicago. It was sponsored by ABA Criminal Justice Section.