Drug courts were founded on the premise that drug offenders are better served with treatment than imprisonment.
But a recent report on these courts says they are excluding the type of offenders that need treatment the most.
Drug courts in states like Wisconsin and Michigan allow nonviolent drug offenders, usually people charged with possession, to stay out of prison and, perhaps more importantly, get court-supervised treatment for substance and alcohol abuse.
The problem, says a National Association of Criminal Defense Lawyers (NACDL) report, is that some courts only select the candidates who are most likely to succeed in the program, a practice known as “skimming.”
Margaret S. Raben of Detroit-based Gurewitz & Raben, PLC described skimming as “selecting people for the program [who] are not likely to fail so that, at the end of the year, you can show people how successful you’ve been.”
“Are we only supposed to wash the floor that’s already clean?” asked Raben, who is president of the Criminal Defense Attorneys of Michigan. “Or are we really supposed to identify people with significant drug use problems who are committing crimes and try working with them?”
But judges argue that drug courts don’t enroll offenders based on the likelihood that they will complete the program.
Circuit Court Judge Barbara H. Key defended the drug court in Winnebago County as taking “tough cookies.”
“Our program is heavily [invested] in taking candidates who would not necessarily be considered likely to succeed,” she said.
Since the Winnebago drug court launched in 2006, 16 non-violent offenders have completed the program and three more are scheduled to “graduate” on October 30.
But of the more than 60 participants as of last year, approximately one third had been terminated from the program for noncompliance with drug court rules.
“People can come in kicking and screaming, but at some point there has to be a change in attitude or they face the reality of going to jail,” Key said.
No ‘low hanging fruit’
Milwaukee County launched its drug court in January. Of the 30 offenders enrolled, only two are currently on pace to graduate from the four-step program, according to presiding Judge M. Joseph Donald.
Donald is well aware of the criticism that drug treatment courts supposedly “cherry-pick” offenders, but said the numbers in Milwaukee don’t support that notion.
“We’re focusing on very hard-core offenders,” Donald said. “We’re not looking for the low-hanging fruit.”
According to the Wisconsin Courts Web site, there are 18 different counties with drug courts in the state.
The Michigan State Court Administrative Office reports that the state has 84 drug courts. The average statewide graduation rate for adults is 47 percent, which is near the median of the nationwide graduation rate of 27 percent to 66 percent.
If a person successfully completes the program, the charges against him or her are dismissed.
Regardless of the numbers, Kirsch & Satawa PC attorney Mark A. Satawa said the premise is “win-win.”
“You get straight; you get sober; you kick a habit that’s causing you to commit crimes,” he said. “And in exchange, if you do everything you’re supposed to do, you don’t have a record.”
The NACDL report recommends opening up drug courts to a broader range of offenders.
Both Raben and Satawa agree that the drug programs need to be less selective and allow more kinds of offenders to be eligible, even if it means including those who are charged with or have a history of violent offenses that are based upon their drug use.
“It excludes a lot of people whose problem is primarily drug use, not violence,” Raben said.
Key said there hasn’t been a groundswell of opposition to expanding drug courts, but it’s a matter of resources.
Since most long-term programs survive on county funds, she said courts have to target offenders who offer the “most bang for the buck.”
Donald said that on a few occasions drug offenders with a link to violent crime have been referred to his court.
“We’ve not admitted anyone yet, but I believe in the future, more offenses may be incorporated into programs,” he said.