Blog Post

Legal Experts Urge UN to Reject Drug Courts

Daniel Abrahamson

The U.S.-led war on drugs and U.S.-shaped international drug policies are being scrutinized and debated this month by governments from around the globe as the world’s countries prepare to gather in mid-April for the United Nations General Assembly Special Session, or UNGASS, to review the world’s drug control regime. It is the first such meeting in 18 years.

The good news is that there are signs that American leaders are beginning to question the wisdom of a four decade-old war on drugs that has caused more harm than good. Increasingly, elected officials and the public are condemning laws that marginalize, criminalize and incarcerate millions of U.S. citizens for using drugs – laws that have helped make the U.S. the world’s leading jailer and have caused particular harm to persons and communities of color.

The bad news is that the U.S. continues to prioritize the use of police, prosecutors and judges to deal with persons who possess and use illicit drugs. Nowhere is this more evident than the persistent push by local and national politicians to implement or expand so-called drug courts, and their encouragement of other countries to do the same. Today, roughly 3,000 such courts operate around the country.

So it was noteworthy when leading researchers and legal experts from the U.S. and elsewhere traveled to U.N. headquarters in Vienna, Austria, in March to urge the international community to reject drug courts.  The basic point that these experts was that drug courts are a continuation of, not a meaningful alternative to failed drug war policies.

As the experts noted, drug courts are heavy on punishment, light on appropriate treatment and rarely serve those most in need. Many U.S. drug courts “cherry pick” participants most likely to succeed, focusing on low-level drug users who either don’t need treatment at all or who would do as well or better in treatment provided more cheaply independent of the court system. Some drug courts, particularly in the American South, sweep up mainly cannabis users.

Particularly shameful is that the vast majority of drug courts fail to follow the “best practices” urged  by drug court backers. In fact, most drug courts deny participants access to the only types of medications that have been proven effective in addressing opioid dependence, including methadone and buprenorphine. Virtually all drug courts jail participants who suffer drug relapse and have the audacity to call such punishment “treatment,” though jails offer no drug treatment and often substandard medical care. And drug courts almost uniformly fixate on the results of drug tests to determine whether a participant is “successful” in the program, meaning a person can kick their methamphetamine habit and have a job, but if they test positive for marijuana they will fail drug court, be handed a criminal conviction and perhaps even be imprisoned.

Because of these and other drug court shortcomings, many drug law offenders would be better off not participating in these programs. As a result, drug courts are more expensive but no more effective than evidence-based treatment provided in the community independent of the legal system. As Denise Tomasini, a former government evaluator of  treatment courts, observes,  drug courts “take health decisions out of the hands of treatment professionals and give those decisions  to judges and prosecutors who routinely reject basic clinical standards and violate medical ethics.”

The Hon. Morris B. Hoffman, a Denver-based judge who has closely tracked drug courts, notes that they have led to increased, not decreased drug arrests. In what he terms their “net-widening” effects, communities with these courts often end up arresting and convicting more persons on low-level drug charges than before such courts were created.

Though drug courts may be well-intentioned, thirty years of U.S. experience makes clear that drug courts are not a true alternative to incarceration. As presently constituted, drug courts are no more effective but considerably more costly than voluntary treatment and, in many instances, they leave their participants worse off for trying.

Daniel Abrahamson is the Senior Legal Advisor for the Drug Policy Alliance.

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