By Taylor Chase
Wisconsin Center for Investigative Journalism
Even before Dane County Circuit Judge Sarah O’Brien crunched the numbers, she knew something was amiss. Her strongest evidence: “The courtroom didn’t look right when I walked in.”
O’Brien, who retired in 2012, was referring to the stark racial disparities in Dane County’s drug court. The people in front of her — the ones who had gotten the chance to reduce or avoid criminal convictions in exchange for completing treatment and other programming — were overwhelmingly white.
In 2012, about one-third of those arrested for drug crimes in Dane County were black, according to the state Office of Justice Assistance. But African-Americans made up just 10 percent of those participating in the county’s drug court that year, according to Journey Mental Health, a Madison nonprofit that provides treatment and case management for the program.
As recently as May, despite a concerted effort to increase minority participation, 84 percent of defendants in Dane County drug court were white and 14 percent were black.
Drug courts such as this one in Madison are an effective way, research has shown, to cut prison costs and to reduce recidivism by treating addictions that fuel criminal behavior.
But it is an opportunity many people, particularly minorities, are missing out on in Wisconsin. In Racine County in 2012, for example, 11 percent of drug-court participants were black, although about one-third of all drug defendants arrested that year were African-American. Disparities also can be found in Rock and Milwaukee counties, the Wisconsin Center for Investigative Journalism found.
Experts disagree as to why these disparities exist. Some drug court judges believe the problem lies in drug use trends in which white offenders, whose drug of choice is heroin, are more likely to qualify than blacks, who are much more likely to abuse cocaine.
In 2002, 27 people died of heroin overdoses in Wisconsin. A decade later, the toll skyrocketed to 187 deaths.
Heroin has quickly become the most visible drug on the radar for those who work with addicts and in the state’s criminal-justice system. Experts say it is the emergence of this drug that partially accounts for the racial disparities in Wisconsin’s drug courts.
“When I look at the racial numbers from 2009 to today, the proportion of African-Americans has gone down as the proportion of heroin addicts has gone up,” said Milwaukee County Circuit Judge Ellen Brostrom, who runs that county’s drug court.
According to a recent study by Washington University in St. Louis, 90 percent of heroin users are white, and most are young and live in the suburbs. By contrast, hospital studies show that African-Americans are much more likely than whites to abuse cocaine. And one University of Wisconsin-Madison expert said heroin addicts tend to commit less violent crimes than those on cocaine; many drug courts exclude violent offenders from participating.
The result: Some drug courts, such as the one in Dane County, are now full of white heroin users.
Journey Mental Health, a Madison-based nonprofit that provides treatment for Dane County’s drug court, reports that in 2008, 20 participants abused cocaine and 37 abused heroin. But by 2013, those numbers changed dramatically: four cocaine users and 92 heroin users.
The Washington University study found the path to heroin addiction usually starts with prescription painkillers. Once people are hooked, they sometimes turn to heroin for a similar high at a fraction of the cost, the study’s author, Dr. Theodore Cicero, has said. His study found that the demographics have shifted “from an inner-city minority-centered problem to one… involving primarily white men and women in their late 20s living outside of large urban areas.”
Dr. Randall Brown, an associate professor at UW-Madison and director of the Center for Addictive Disorders, said how the two drugs work on the brain could help explain the disparities because they correlate with the types of crime a user is likely to commit. Cocaine causes changes in the brain that regulate impulses, leading to violent and aggressive behaviors — just the type of crime that can disqualify someone from drug court.
Heroin usually results in more “inquisitive” crime, said Brown, such as robbing a bank or selling drugs, crimes that do not disqualify a person from receiving treatment.
The Dane County drug court recently underwent a reorganization to focus on more high-risk offenders, which could lead to increased participation by African-Americans and other minorities. But Dane County Circuit Judge Juan Colas, who now runs the drug court, said those efforts might be eclipsed by the wave of heroin addicts now flooding the criminal justice system.
“The proportion between cocaine and heroin has flipped … so now we’ve made these changes in drug courts, and at the same time drug profiles of addicts have changed,” Colas said. “It could be these things have cancelled each other out.”
— Taylor Chase, Wisconsin Center for Investigative Journalism
Other experts say disparities occur not just because of drug choice, but also factors outside of drug courts’ control, including mistrust of the criminal justice system.
Dr. Randall Brown, associate professor at the University of Wisconsin-Madison Department of Family Medicine and director of the Center for Addictive Disorders, said some minority defendants with prior criminal histories also might consider a few months in jail less onerous than nine months in drug court.
The cost to participate is probably not a barrier; in Dane County, offenders have about six to eight months to pay the one-time $50 fee.
Drug courts gain in popularity
It is a typical day at the Dane County drug court, where Judge Juan Colas meets with defendants who have chosen to try treatment over jail.
One participant, a 27-year-old white Madison woman, who asked to not be identified, has two children and an extensive, but nonviolent, criminal history, including driving while intoxicated, forgery, burglary, theft and disorderly conduct — at least some fueled by her addiction to heroin.
The woman told Colas she was working and had been sober for two weeks.
“It sounds like things are headed in the right direction for you, and you’re doing what you need to be doing,” the judge responded. “So we’ll see you next week.”
Drug courts were first established in the late 1980s as a way to reduce prison crowding and high recidivism. There are currently 29 drug courts in Wisconsin, up from five a decade ago.
“Because of the research out there talking about the effectiveness of problem-solving courts, I think there is a greater understanding that the substance abuse issue is not solved solely by incarceration,” said Michelle Cern, Wisconsin’s statewide problem-solving court coordinator.
Research shows drug courts work
According to a 2011 study by the UW-Madison’s Brown, offenders who participated in drug treatment courts were 50 percent less likely to commit new crimes; and if they did commit a crime, it was for a lesser offense with an average of 82 fewer days spent in jail.
And a study by the UW Population Health Institute found that in seven alternative treatment programs funded by the state, 2,061 offenders over four years avoided more than 135,000 days of incarceration. These programs were not limited to just drug courts, but included other alternative programs, including one for drunken drivers.
Sanctions and rewards help, but judges said there are other intangible benefits to drug court.
“One of the primary things you need to beat an addiction is hope,” said Milwaukee County drug court Judge Ellen Brostrom. “They (offenders) are not just sober. They’re transformed.”
Colas said running Dane County’s drug court is one of the most rewarding things he has done.
“It’s exciting when they graduate because you’ve been with them with their arrests and sanctions and problems with parents and boyfriends and pregnancies,” Colas said.
But not many minority offenders get to experience that success. Professionals within and outside of the courts say they are not sure why.
That minorities, particularly African-Americans, are disproportionately incarcerated for drug-related crimes in Dane County is not news. A Justice Policy Institute study found in 2007 that a black resident of Dane County was 97 times more likely to go to jail for a drug crime than a white resident.
Brown said tracing the causes is complicated “and anyone who says they know what the exact problem is crazy.”
Wisconsin’s disparities are not unique, said Douglas Marlowe, chief of science, policy and law at the National Association of Drug Court Treatment Professionals. “The entire criminal justice system in every state, county and the federal system has some evidence of disparities, from arrest rates through prisoner reentry,” he said.
Despite money boost, resources still scarce
Wisconsin began supporting drug courts in 2005 through a program called Treatment Alternatives and Diversion, also known as TAD. Since then, so-called problem-solving courts in 37 counties have received about $4 million from the state.
A recent UW-Madison study found that for every $1 the state spends on TAD programs, there is a net benefit of $1.96.
Some judges, including those in Dane County, have taken steps to get more high-risk offenders into drug court. The theory is that more African-Americans, who are more likely to be high-risk offenders, will gain access to the program, Colas said.
The Dane County reorganization, which began in 2013 and was fully implemented in January of this year, now separates the drug court program into three risk levels based on a series of assessments. Studies, including one by Marlowe, suggest that including the most hard-core offenders, and tailoring the program to their needs, has the biggest payoff.
“I am a huge advocate of developing separate tracks based on risk and need,” Marlowe said. “If participants receive services appropriately matched to their needs, this is very likely to reduce disproportionate impacts on minorities resulting from a one-size-fits-all approach.”
Policymakers also are contemplating changes. A legislative committee is studying Wisconsin’s problem-solving court system and considering recommendations for improvement.
Colas said many offenders can turn their lives around with the help of drug court.
“They are real human beings with real challenges and real potential,” Colas said. “And we always have to keep that in mind, I think.”