Drugs and the Criminal Justice System

IX. Drugs and Courts

While each year, the FBI assembles data about the work of police agencies across the country, there are no comparable annual reports on the kinds and numbers of cases handled by state and federal courts. However, given the volume of drug arrests, it is safe to say that drug cases make a substantial contribution to the workload of courts. The handling of drug cases has led to two major developments affecting the courts, one from outside the court system (mandatory minimums) and the other from within (drug courts).

A. Mandatory Minimums

Mandatory minimum sentences are not new, as they go back to the biblical notion of an eye for an eye. Regarding drugs, the first U.S. mandatory minimums at the federal level were enacted in 1956 and continued until 1970, at which time they were overturned because they were seen as ineffective and unjust. At the state level, mandatory minimums were begun in New York and were specifically aimed at adult, street-level drug dealers. Within a decade, a majority of states had followed suit. In the flurry of legislation passed by Congress in 1986, a new round of mandatory minimums was enacted out of concern that different judges were handing down very different sentences for similar offenses, with a particular concern about some judges being too soft on drug offenders. The idea was to take discretion out of the hands of judges so as to produce more uniform sentencing. The reality was a deeply flawed system that could be criticized on a number of levels, only a few of which will be discussed here.

First, mandatory minimums took discretion from the hands of judges, who are supposed to be neutral, but left discretion in the hands of prosecutors, who are not expected to be neutral. Sentences for similar drug offenses continued to vary widely, but this time they varied across prosecutors, who had the power to decide which specific charges were to be brought and consequently which sentences would apply.

A second criticism is that mandatory minimums are racist. This judgment is based on the federal system by which those arrested on crack cocaine charges face substantially harsher sentences than those arrested on powdered cocaine charges. The majority of crack cocaine arrestees are minority, while the majority of powdered cocaine arrestees are white. While racism did not appear to play a role in the initial decision to make a 100:1 distinction between crack and powdered cocaine, the result was clearly one of racial bias.

A third criticism of the system is perhaps the most serious. At the federal level, sentence severity is determined entirely by the weight of the drug, not by the actor’s role in the drug organization. Consequently, the “drug kingpin” and the lowly gopher who sweeps the floor of the drug house are to receive the same sentence, with an important exception: The only way to have one’s sentence reduced is to provide “substantial assistance” to the prosecutor—that is, provide names and information that will enable the government to prosecute others. Of course, the drug kingpin has considerably more information to provide the authorities. As a result, the kingpin is positioned to have his or her sentence substantially reduced, while the gopher who sweeps the floor is likely to receive the maximum sentence. By anyone’s calculus, this is an unjust arrangement.

As a change imposed from outside the judicial system and one that severely limits the power of judges to make decisions, it should not be surprising that judges have expressed strong objections to mandatory minimums. Mandatory minimums have had a substantial impact on the prison system by not only increasing the number of offenders sent to prison but also by keeping them there longer, contributing to an imprisonment rate in the United States that is the highest in the world.

B. Drug Courts

Drug courts represent a change in the role of judges and courts that grew from within the judicial system. There are two types of drug court—case flow courts and drug treatment courts. Case flow courts began in the 1970s in New York City and have since arisen throughout the country. Case flow courts handle only drug cases, and in exchange for a quick guilty plea, the accused is offered a much reduced sentence. The objective is to move cases through quickly, and in this case, flow courts appear to succeed. More recent is the rise of drug treatment courts, which began in Miami, Florida, in 1989, when a local judge grew tired of seeing the same drug offenders appear in court repeatedly. His model has since been copied across the country so that today, there are more than 1,200 drug courts operating in the United States. While there are many variations, the basic model has several key features: (a) There are frequent random drug tests, and successful completion of the process requires the offender remain drug free; (b) a judge is specifically assigned to the drug court as are drug court staff, including probation, the public defender, the prosecutor, and treatment staff; (c) all members of the drug court staff receive extensive training in the nature of addiction and the requirements of successful drug treatment; (d) treatment occurs in phases, beginning with detoxification, followed by intensive group counseling, and then by continued drug counseling with the addition of such issues as anger management, job-seeking skills, and parenting; (e) although completion of the program can occur in as few as 12 months, 18 to 24 months is more common because it is understood that relapse will be part of the recovery process for many offenders. Offenders who relapse are identified through frequent drug screens, and the court will quickly respond with immediate and escalating penalties for those who test positive for drug use; and (f) upon completion of the program, there is a graduation ceremony and the offender’s record is sealed.

There is some debate about the effectiveness of court-based treatment. It appears that drug courts show some success, but it is likely due to frequent monitoring with immediate sanctions rather than to the particular treatment approach utilized. Success is also enhanced because the most serious offenders—those with a history of violence, drug dealing, or several prior imprisonments—are often not eligible for drug court.

The long-term nature and impact of drug courts remain to be seen. The criminal justice system is, at its heart, a system designed to punish offenders. Past programs (such as probation) that initially emphasized treatment and helping services for offenders have, over time, morphed into systems whose primary function is monitoring and punishing. Only time will tell if a similar transformation occurs with drug courts.

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