Can Drug Courts Help Ease the Prison Crunch?

Eric L. Sevigny

Harold A. Pollack

Peter Reuter

Eric L. Sevigny is an Assistant Professor in the Department of Criminology and Criminal Justice at the University of South Carolina.His research focuses on drug policy, particularly around issues of sentencing and incarceration;the measurement of drug use consequences; and the collateral consequences of mass incarceration. His research has appeared in journals such as Criminology and Public Policy, Contemporary Drug Problems, Journal of Quantitative Criminology, and Federal Sentencing Reporter.

Harold A. Pollack is the Helen Ross Professor at the School of Social Service Administration, and faculty chair of the Center for Health Administration Studiesat the University of Chicago. He is also Co-Director of The University of Chicago Crime Lab. He has published widely at the interface between poverty policy and public health. His recent research concerns HIV and hepatitis prevention efforts for injection drug users, drug abuse and dependence among welfare recipients and pregnant women, infant mortality prevention, and child health. His research appears in journals such as Addiction, Journal of the American Medical Association, American Journal of Public Health, Health Services Research, Pediatrics, and Social Service Review.

Peter Reuter is Professor in the School of Public Policy and in the Department of Criminology at the University of Maryland and also Senior Economist at RAND. His research focuses primarily on drug policy, both domestic and international; money laundering controls and illegal markets generally. Recent books include Cannabis Policy: Moving Beyond Stalemate (2010) (with R. Room, B. Fischer, W. Hall, and S. Lenton) and The World Heroin Market: Can Supply be Cut? (2009) (with L. Paoli and V. Greenfield), both with Oxford University Press. Recent articles have appeared in Addiction,Crime and Justice: An Annual Review of Research,Review of Law and Economics, and the American Journal of Public Health.

ABSTRACT

Research Summary

Using data from the Survey of Inmates in State Correctional Facilities and the Survey of Inmates in Local Jails, we findthat drug courts, as currently structured, have limited ability to reduceincarceration rates. We estimate that just 1% of newly incarcerated inmates in 2002/4 were plainly eligible fordrug courts because of restrictive eligibility requirements.This reflects, in large part, the aging of the population of criminally active drug users, many of whom have accumulated long criminal careers that make them unattractive clients for drug court programming.

Policy Implications

The findings suggest that expanding access to drug courts for the currently ineligible pool of criminal offenderscould help to reduce U.S. incarcerated populations. Taking drug courts to scale, however, would require a massive expansion in drug court capacity. One potentially viable approach to increasing such capacity is to merge drug courts with other more scalable or less costly alternative-to-incarceration programs.

The connection between drugs and crime has been a particularly salient driver of American criminal justice policy over the past four decades. The association of drug epidemics with increasingrates of crime and disorder helped shape a punitive response toward drug-involved offendersthat remains entrenched today. Indeed, a major component of the steadygrowth in the U.S. incarcerated population has been the influx of people imprisoned for drug offenses(Blumstein and Beck, 1999). Moreover, a large number of those incarcerated for both drug and nondrug offenses have identifiable drug use disorders(Mumola and Karberg, 2006), and there is reasonable evidence that drug use plays a causal role in their criminality(Bennett, Holloway, and Farrington, 2008).

Substance abuse treatment provides an effective, albeit highly imperfect, response to these problems. During any given treatment episode, the typical offender is likely to continue some level of substance use. Relapse is the norm rather than the exception. Even so, at the individual level, there is compelling evidence that treatment markedly reduces both drug use and related criminal offending(Chandler, Fletcher, and Volkow, 2009; Holloway, Bennett, and Farrington, 2006; Lipsey and Cullen, 2007), and that such interventions are more cost-effective than incarceration (Caulkins et al., 1997; Lipsey and Cullen, 2007). In the face of such evidence, policymakers, researchers, and other stakeholders have long argued that broader provision of substance abuse treatment could reduce the number of Americans behind bars.

The drug court movement may be the most pioneering and widespread criminal justice strategy to institutionalize this body of evidence. From the launch of the very first program in Miami, Florida in 1989, drug courts were viewed as a particularly promisingapproachforbreaking the drug-crime cycle of nonviolent offenders flooding the criminal justice system(Goldkamp, 1994). Backed by the coercive power of the legal system, the standard drug court model involves substance-abusing offenders agreeing to a period of court-supervised treatment and regular drug testing in lieu of prosecution (for diversionary programs) or incarceration (for postadjudicatory programs) (General Accounting Office, 1997).

Manystudies and meta-analyses have found that drug courtsreduce offender drug use and criminal behavior both during and after program participation (Government Accountability Office, 2005; Lowenkamp, Holsinger, and Latessa, 2005; Wilson, Mitchell, and MacKenzie, 2006). Spurred by such evidence, the drug court movement has taken off to the point where more than two thousanddrug courts now operate in every state and nearly half of all U.S. counties (BJA Drug Court Clearinghouse Project, 2011; Franco, 2010).

In addition to their potential for reducing the drug use and recidivism of individual offenders, drug courts were viewed from the beginning as a valuable alternative-to-incarceration strategy that promised systemwide dividends for overburdened court systems and crowded correctional facilities (Fluellen and Trone, 2000). Under the drug court model, cases would be resolved more speedily,thus reducing pretrial detention, and otherwise jail- and prison-bound offenders would be diverted from incarceration.

Despite this promise,there has been no decline in the incarceration of drug offenders or other drug-involved criminals. Indeed, the number of incarcerated drug offendershas increased every year during the build-up (Caulkins and Chandler, 2006), and the number of state prisoners with a serious drug problemalso climbedsubstantially (Belenko and Peugh, 2005; Mumola, 1999; Mumola and Karberg, 2006). Both of these findings are surprising, since the number of individuals with expensive illegal drug habits who are not incarcerated was estimated to have declined in the period 1988-2000(Office of National Drug Control Policy, 2001)—a trendthat we show has continued into the 2000s.

This paradox invites the question of why drug-related prison expansion has continued despitethe widespread adoption and success of drug courts in the United States. Why have the many hundreds of successful drug courts now in operation failed at the population level to keep drug-involved offenders out of prison and jail?Put slightly differently, why is it so difficult to replicate in the aggregate the reductions in drug use and criminal offending that drug courts appear capable of achieving for individual offenders?The proximate cause of the failure is that drug courts, though many in number, are very small on average and account for only a small share of the proceedings against criminal defendants. This in itself reflects more fundamental factors.

We hypothesize two main reasons for the failure of drug courts to halt the flow of drug-involved offenders into the correctional system.First, the changing demography of drug abusehas led to a systematic mismatch between sentencing practices and the actual criminal careers of drug-involved offenders. As criminally-active drug users get older, the system treats them increasingly harshly for each successive offense. They have longer criminal histories, longer records of unsuccessful treatment, and worse employment histories. Thus, not only are they less eligible for drug courtsand other diversionaryprograms, these offenders also receive longer sentences, thereby increasing the share of the incarcerated population with drug problems.

The second, related reason for the inability of drug court interventions to impact aggregate incarceration rates is that drug court eligibility criteria are highly restrictive (Fluellen and Trone, 2000; Franco, 2010). Although drug courts are effective, and even cost-effective, in serving individual clients, they contribute little to reducing incarceration at the population level. The diverted offenders are generally at low risk of going to prison or even jail in the absence of the drug court intervention. Thus, given the restrictive eligibility requirements and relatively low-risk populations actually served, the currently deployed model of drug courts is unlikely to notably reduce prison populations.

The empirical contribution of this paper primarily concerns the latter conjecture. In particular, we examine the number and characteristics ofrecently incarcerated inmates who are likely to have been excluded from drug courts because ofoverly strict entry criteria. To test this hypothesis, we make use of the Survey of Inmates in State Correctional Facilities (SISCF) and the Survey of Inmates in Local Jails (SILJ), two Bureau of Justice Statistics (BJS) occasional surveys that provide nationally representative self-reportdata on an array ofrelevant crime and drug measures.

This paper extends, updates, and refines our previous work (Pollack, Reuter, and Sevigny, 2011). First, we reviewthe changing patterns of drug abuse in the U.S. over the last forty years to provide insightinto the specific challenges now facing the criminal justice system. We follow with a review of drug court eligibility criteria, including both legal and clinical restrictions. Next, we present our empirical analysis of the inmate survey data, which reveals the limited ability of drug courts to affect incarceration levels under current eligibility rules. We end by discussing the policy implications of these findings.

The Changing Demography of Drug Abuse

The dynamics of drug-related incarceration in the United Statescan be examined in light of broader trends in drug use and dependence over the last forty years. The characteristics of the drug-using population, particularly those dependent on expensive drugs, havechanged in ways that complicate the task of keeping criminally active drug users out of prison.The nation has experienced four major drug epidemics in this period: heroin (ca. 1968-73), powder cocaine (ca. 1975-1985), crack cocaine (ca. 1982-1988), and methamphetamine (ca. 1990-2000). In an epidemic process, rates of initiation rise sharply as new and socially contagious users of a drug initiate friends and peers, a model first articulated by Hunt and Chambers (1976).

In the case of heroin, there is much evidence of a sudden elevation of initiation rates during the late 1960s and early 1970s, followed by a rapid incidence decline over the 1970s and 1980s(Kozel and Adams, 1986; Rocheleau and Boyum, 1994). For powder cocaine the rise was similarly rapid, but the decline was not so pronounced as with heroin(Everingham and Rydell, 1994). For crack cocaine the epidemic was still later, starting between about 1982 and 1986 (Cork, 1999; Golub and Johnson, 1996).Most recently, methamphetamine use spread throughout the 1990s, characterized by substantial regional variation(Hunt, Kuck, and Truitt, 2005).

Caulkins and collaborators recently developed a class of epidemiologic models to document the long trajectory of drug epidemics(Caulkins, 2007; Caulkins et al., 2004). After the peak, the initiation rate does not return to its initial level but falls to a rate well below the peak. Under reasonable assumptions, the result is a flow of new users who do not fully replace those lost through desistance, death, or incarceration. Thus, the number of active users declines gradually over time. Moreover, as the drug-using population ages, there are corresponding changes in the health, employment, and crime consequences of substance use.

Some evidence for this accountcan be seen in the changing characteristics of individualsseeking substance abuse treatment. Using detailed demographic tables fromthe Treatment Episode Data Set (TEDS), which includes data on admissions totreatment programs that receive public funds, we compared the age structure of theadult admission cohorts for 1992 and 2008—the earliest and latest years for which such data are published(Substance Abuse and Mental Health Services Adminstration, 2011).

As shown in Figure 1, the changing age distribution oftreatment admissions for smoked (mainly crack) cocaine exemplifies the dynamic nature ofdrug epidemics. First, reflecting post-peak initiation rates, the number of admissions dropped by more than 10% from 1992 to 2008. Second, whereas the modal age group was 26-30 in 1992, it was 41-45 in 2008. This was not the consequence of anew epidemic of crack cocaine use among older individuals; rather it represented the aging of those who were caught in the earlier epidemic.

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We observesimilar thoughless stark patterns for nonsmoked cocaine and methamphetamine.[1]Although the share of treatment admissions by people 36 and older increased from 23% to 46% for nonsmoked cocaine and from 19% to 38% formethamphetamine between 1992 and 2008, the modal age group remained 26-30 for both drugs across both years. A key difference between these two substances was the change in the absolute numbers of treatment admissions, which, due to the different timeframes of the epidemics, decreased 22% for nonsmoked cocaine and increased 526% for methamphetamine. Figure 2 reveals a more complex pattern for heroin. Proportionately greater numbers of heroin admissions are seen at older ages (45+) in the later cohort, and there is also a relatively largershare of younger admitted heroin users (18-25) in 2008 versus 1992.

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Such dynamics also matter for the criminal justice system.Forthe criminally active population, the Arrestee Drug Abuse Monitoring (ADAM) program (and its predecessor, the Drug Use Forecasting [DUF] program) provides additional insights into the changing age structure of problematic drug users. The ADAM/DUF program hascollected crime and drug use data from samples of arrestees in various U.S. jurisdictionssince 1987 (with a break in data collection from 2003-2006). Wewere thus able to compare changes in the age distributions of male arrestees testing positive for illegal drugs based onavailable annual reports for 1994 and 2009(National Institute of Justice, 1995; Office of National Drug Control Policy, 2010). The ADAM/DUF age-by-drug distributions we present are the median estimates for a seven-city panel consistently reported across these two years.[2]

The changing drug use patterns of arrestees mirror the patterns found with treatment admissions. Specifically, Figure 3 shows that the percentage of arrestees testing positive for cocaine (including both crack and powder) in the 36+ age group more than doubled from 1994 to 2009. Conversely, for all younger age groups, relatively fewer arrestees tested positive for cocaine in 2009 than did fifteen years earlier.

Figure 4 presents data for heroin/opiates, which is consistent with TEDS in showing a relative bulge in use among the youngest and oldest arrestees in 2009 versus 1994. The greater proportion of older heroin/opiate-using arrestees in 2009 is consistent with the dynamic nature of drug epidemics; the recent high heroin/opiate use rates among 15-20 year-olds possibly signals an emerging epidemic of opioid abuse among teenagers (Sung et al., 2005).

[INSERT FIGURES 3 & 4 ABOUT HERE]

These datahighlight a demography of drug abuse that has changed substantially over the past two-plus decades. The currentutilization of drug treatment and criminal justice resources appears toreflect long-term reverberations of specific drug epidemics.Aspopulations of criminally active drug users age, they become less eligible for drug courts and other diversionary programs while also becoming increasingly subject to harsher treatment by the courts due to their longer criminal histories and past treatment failures. One consequence of this demography is a growingrealization that, on the whole, drug court eligibility criteria might be too restrictive to substantiallyand materially reduce the flow of drug-involved offenders into U.S. prisons and jails—an issue to which turn next.

Drug Courts and Program Eligibility

The drug court movement is now more than two decades old. By one recent accounting, there were 2,193 active drug courts operating in all 50 states (including 46% of U.S. counties) plus the District of Columbia, several U.S. territories, and numerous tribal lands at the beginning of 2011 (BJA Drug Court Clearinghouse Project, 2011). Despite the rapid expansion of drug courts, however, the number of defendants who pass through such programs represents a tiny fraction of criminal offenders with identified substance use problems. In 1996, fewer than 27,000 defendants were enrolled in drug courts (General Accounting Office, 1997). More recentestimatesput the number between 55,000 and 70,000 annual participants(Bhati, Roman, and Chalfin, 2008; Huddleston et al., 2005), which is less than 5%of the estimated 1.5 million drug-involved defendants who enter the criminal justice system each year(Bhati, Roman, and Chalfin, 2008).