Addicted To Drug Court
The weekend of May 11 was warm and mild, making the following Monday more hectic than usual in Judge William Howard's courtroom. As the afternoon session opens, the judge has nearly four dozen cases to dispose of, and theoretically just three hours in which to do it.
A bailiff opens the glassed-in booth where people brought up from the jail wait and lets out an Ethiopian man who, it quickly becomes apparent, only speaks Oromo. There's no translator in the building, so the guy's brother, who came to get him, is pressed into service. "You are charged with possession of khat," the judge says, slowly. "The police searched your house and they found it. This is the beginning of the process to find out whether you have violated the law. The police say you have." Howard asks the man's brother to tell him that he may be sent to a class where he will learn that "khat is not okay for the United States," and gives him a date to come back. Six friends trail him out of the courtroom.
The next man out of the holding area is charged with possessing .8 grams of coke. He's dressed in a filthy T-shirt and rotting sweat pants, but has the whitest tennis shoes imaginable. He's sent upstairs to undergo a chemical dependency assessment administered by county public-health workers.
Then there's a man arrested for possessing 1.4 grams of coke. He has another unresolved drug case, and therefore an attorney, but no one can figure out when his lawyer will be here. The defense attorneys keep a group calendar on their table, but someone spilled coffee on it. Howard orders bail, which the defendant can't pay. He storms back into the holding area and starts shouting and smashing things. After unloading their guns, three bailiffs follow him.
A man shoots out of the in-custody booth and walks past the crowd and toward the double doors at the front of the courtroom like some kind of quick-stepping zombie. A bailiff tries to direct him back toward the podium, but he turns instead toward the jury room on the other side of the court. His hair is fashioned into four rows of little spikes, which gives all of his bobbing and weaving a comical air and people are cracking up. At the podium he can't get his hand to connect with the mic.
Eventually the sight of Howard brings him back to Earth. "How you doin'?" he asks the judge.
The probation officer holding the man's file notes that his mother has called and won't let him come home; his parents called the police because he was threatening his father with a stun gun. When the officers found him he was carrying 3.2 grams of crack. Howard asks for evaluations of his mental health and medication regime--"I think we just witnessed some behavior"--and sets bail at $3,000.
Welcome to the vanguard of Minnesota jurisprudence, Hennepin County District Court's much-touted drug court: two courtrooms, three judges, and a small roster of lawyers and probation officers who do nothing but deal with drug offenders. They handle more than a fourth of all felonies filed in Hennepin County. To their proponents, the harried people who work in this room are on the cutting edge of something called therapeutic jurisprudence. To detractors, they are helping increase the number of people caught up in an ill-conceived war on drugs.
Drug court judges are supposed to rule their courtrooms with iron fists in velvet gloves. Offenders check in often and undergo frequent urinalysis. Missteps bring swift consequences, including lectures, "flash" incarceration, and longer and longer jail stays. "Graduates" get a round of applause.
Drug court's chief judge, Howard bears a striking resemblance to the late Dave Thomas. He rockets from empathy to irritation. One or the other of his arms is usually flung over a shoulder or his head, and the momentum from their swinging seems to propel him around his raised seating area. Sometimes he's flung back in his chair, sometimes he looms far over the bench, as if looking for something he dropped on the floor.
Probably half the people appearing before him this afternoon were arrested on bench warrants, meaning they missed a court appearance or otherwise failed to comply with their sentences. An impressive number swear they missed because of a funeral. A cousin in Indiana, a brother here in town, a roommate, a mother-in-law: At one point, Howard quips to one of the public defenders that she must be putting hexes on her clients.
One woman didn't show because she was in a battered women's program and was scared that her boyfriend would pop up at her court appearance. After Howard grants her bail, she makes a beeline for a guy in the audience. They leave holding hands.
As the afternoon goes on, the pace becomes frenetic. Howard quickly hears two more cases involving repeat offenders, and then that of a crack dealer arrested on a bench warrant after skipping out of treatment. He's been to treatment 28 times in the last 14 years, probation reports; their latest recommendation is that he find a self-help group instead. The man's lawyer protests that the treatment program the man just walked away from is willing to take him back.
Howard seems angry now. He can't believe the program's administrators knew the county wouldn't pay when they said they'd take the man back. The judge stands up. "I need a minute," he mutters, disappearing into the hall.
When he gets back, he finds himself facing a tiny woman with a hard face. She was picked up over the weekend on prostitution charges, she has seven kids, and she wants to go home. Right away she begins pleading in a little-girl voice. The probation officer opens her file: Since her drug court case started in 2001, she's picked up 10 misdemeanors, ranging from trespassing to prostitution. A local motel keeps complaining about her to the Hennepin County Attorney's Office. None of which suggests that she's straightening out, Howard says.
She starts to cry, but he doesn't budge. He wants her in jail during the few days it'll take probation to come up with a new plan. She stalks out, snarling.
Hundreds of drug courts have sprung up around the country in the last 10 years, a byproduct of the nation's war on drugs. The idea is to stop users from cycling repeatedly through the system by reaching them in the hours after their arrest--a so-called teachable moment when people are thought to be especially open to chemical-dependency treatment. The hoped-for result: unclogged dockets and fewer tax dollars spent on prisons.
In the seven years since its inception, Hennepin County's drug court has indeed increased the pace at which narcotics cases are processed. Whereas drug cases used to drag on for months, most are now resolved within a few weeks.
But instead of making less work for the courts, the increased efficiency has made it possible for prosecutors to charge 50 percent more people, most of them minorities from a handful of Minneapolis neighborhoods caught with small amounts of a variety of drugs. And while most of the defendants who pass through this court are offered treatment and other help to get clean, the reality is that many will go back to using drugs. And when they do, that's hundreds more people who have criminal records in an era when being convicted of a drug felony carries sanctions not even attached to murder.
Between 1980 and 2000 there was a 1,000 percent increase in the number of drug offenders in state prisons, from 19,000 to 220,000. In 1980, some 52,000 people, or just 8 percent of the nation's inmates, were incarcerated for drug law violations. Today, one-fourth of the more than 2 million people behind bars are there for drug offenses.
Mandatory sentencing laws passed in the late '80s and early '90s have meant drastically longer prison terms for even casual users. The average drug offender released from a federal prison in 1992 was there for 33 months; the average offender convicted that year could expect to spend 70 months incarcerated. In 1995, it cost taxpayers some $9 billion to keep all of these people locked up.
Contrary to its liberal reputation, Minnesota has not been an exception. From 1986 to 1996, the year before drug court began, the number of state prison inmates with a drug offense as their highest charge went from 2 percent, or 34, to 10 percent, or 505. From 1993 to 1996, about 1,200 felony drug cases were filed in Hennepin County each year. The numbers threatened to bring the criminal justice system to a halt and drain public coffers.
In an attempt to resolve the impasse between politicians' tough-on-crime stances and the realities of trying to deal with the resulting flood of convicts, other cities had started drug courts. Hennepin County was already trying to divert some drug offenders into treatment when Chief Judge Kevin Burke crusaded to start a drug court here. The purpose, he told the Minneapolis City Council, was to make the system "work radically faster," the Star Tribune reported.
At the time, the first drug court had been in operation in Miami for five years and dozens more had sprung up in other states. Burke and the task force that helped set up the local drug court were aware of their shortcomings, and aimed high. As Hennepin County prepared to process its first defendants, doubts were waved aside. We were going to have "one of the good ones," organizers promised.
Whereas most drug courts won't take cases involving dealers, weapons, or in some cases even repeat offenders, Hennepin County decided to take every narcotics case except those in which the defendant was charged with a violent act. Further, recognizing that drug abuse doesn't crop up in a vacuum, the court arranged for an array of services for participants. In addition to treatment, defendants get help with mental health issues, housing, education, and parenting skills.
Possibly the most important distinction between Hennepin County's court and the others is transparent to most non-lawyers, however. To participate in most drug courts, defendants must agree to plead guilty and to surrender many, or in some cases all, of their rights. Not so here: Defendants can undergo screening and begin treatment, if it's appropriate, while retaining their right to challenge their police stop or even to go to trial. (Rights notwithstanding, less than half a percent of drug court clients end up at trial. More than 95 percent end up pleading guilty; the rest have their cases dismissed.)
From the start, the court got great press. A Star Tribune story written during its first few days of operation profiled a man who had gone to great pains to get himself arrested so that he could avail himself of the court's referral to county-financed treatment. Not counting the expense of treatment (which is paid for out of an already existing federal fund), the court's budget was $1 million, more than half of it from county coffers. Costs, supporters promised, would go down as fewer drug users re-offended.
Even as the court was being celebrated, though, the number of drug-related felonies filed in Hennepin County was skyrocketing. In 1996, about 1,200 such cases were filed. In 1997, the number shot up 50 percent to 1,788; it's hovered between 1,600 and 1,850 ever since then. About 75 percent of defendants are African American; most are arrested in Minneapolis's poorer neighborhoods.
An increase in zero-tolerance policing strategies such as Minneapolis's CODEFOR is partially responsible for the increase in prosecutions. But at least as big a factor, critics say, is drug court's efficiency. Under the old system, narcotics cases weren't a priority. It used to take six to nine months to resolve a drug case. But the advent of drug court has created teams of attorneys, police, and other court workers who are better at making narcotics cases stick, according to the people who work there. As a result, today, four weeks is typical of the length of time it takes to resolve a case.
"Prosecutors and police have had a learning curve," explains Judge Howard. "The prosecutors tell police, 'Okay, you have to do this next time if you want me to charge your cases.' It isn't that there are so many more cases. It's that they've learned how to do them better." Defense attorneys agree, noting that they're seeing fewer bad police stops.
While the increase in numbers of arrests hasn't been as dramatic as the increase in prosecutions, police are arresting more users. State and federal records show that the arrest rates in Minneapolis and Hennepin County went up 17 and 10 percent, respectively, in 1997.
But according to drug court statistics, those arrests aren't scooping up dealers, either. Some 60 percent of drug court cases are fifth-degree felonies--the kind of low-level possession cases that police and prosecutors used to be quicker to let go of.
"In 1996, if you got stopped and patted down and had a rock, my guess is the police officer might arrest you and charge you with fifth-degree possession," says Leonardo Castro, chief public defender for Hennepin County. "Or because they know you're an addict, know this is your problem, do they take your rock away? Stomp it on the ground? Or does the county attorney decide not to charge you? In 1997, did we have more people on the streets? My guess is not.
"Part of the idea is, now we can get people treatment, so we're charging more people because we think we can help," he continues. "But if the numbers are staying constant, then something's not working."
From where Castro sits, the biggest problem comes when someone "flunks" drug court. "What about the guy who comes in, goes through treatment, then three months later tests positive? He gets another chance, flunks, repeats, and then finally the judge says, 'Sorry, I'm going to have to send you to prison.' So now he has a felony record."
And once someone has a drug felony on his record, rehabilitation becomes a nightmare. Aside from the usual barriers encountered by convicts--trouble getting jobs and apartments, for instance--drug offenders face a special set of ongoing sanctions. They cannot live in or visit someone in public housing. They are not eligible for federal educational aid, for food stamps, or any of the last vestiges of welfare.
"Employers don't distinguish between people who went to prison and people who have an addiction," notes Howard. "Rapists getting out of Stillwater can get a Pell Grant, while a kid on diversion can't get any education money unless it's from the school itself. That's where the system really needs to look."
And these days, it doesn't take a very large stash of drugs to end up charged with a felony: 42.5 grams of marijuana is a fifth-degree felony in Minnesota, as is possession of any amount of cocaine or crack, or of other illicit narcotics. In 1991, 500 fifth-degree cases were filed in Hennepin County; today there are almost twice as many.
"The level of criminalization is a decision made by the state Legislature and Congress. Why felonize those cases?" asks Howard. "Those are essentially political questions about things that I cannot change. All I can do is try to ameliorate what's in front of me. The reality is that although we have a bottleneck, we are going to be far worse off if we don't deal with them."
Even so, he says, he still finds drug court "the most hopeful place in the building." "Treatment does work. Does it work all the time? No, but that's the way society is," says Howard. "We can't afford to put as many people in prison and on the ash heap as we are."
Juvenile court Judge Tanja Manrique is filling in for Howard, who is at a conference. Drug Court II, as it's known informally, is a much smaller courtroom, and it's library-quiet. All eyes are on Manrique, who is conducting "review"--talking with participants who are under court order to check in on a regular basis. It helps that she's a stone fox with a soft, feminine voice. When she speaks, everyone strains to hear.
Right now, she's talking to a man whose last scheduled urinalysis turned up diluted. She sends him upstairs for an "instant." Then she turns her attention to a heroin addict who is supposed to report to the workhouse for a 60-day stay. He's had a tough couple of weeks and relapsed. He doesn't want to go back in the workhouse on methadone, so he's asking the judge to send him to detox for a few days first.
Halfway through trying to explain all of this, the man's shoulders crumple. He looks up at Manrique and says simply, "I need help." Court workers pick up his story where he stumbled, filling in the details.
People on methadone pose an enormous challenge to drug court. Theoretically, they can leave the workhouse daily to get their dose from one of several Twin Cities methadone clinics, but in practice this doesn't work so well. Inmates can't leave the workhouse on weekends, and if the slightest thing goes wrong--if they're late getting out or if a guard who's never heard of drug court decides their paperwork has an undotted i--they can lose their slot at the methadone clinic, sometimes permanently. The judge has to anticipate every potential catch-22.
It's a minor hassle, five minutes of Manrique's day. But it's an instructive look at a moment in what's been dubbed "therapeutic jurisprudence," where a judge gets personally involved with a defendant's rehabilitation. "Participants in the drug court movement believe that success is due in large part to direct judicial involvement with offenders, provided on a regular basis," writes Richard Gebelein, the judge who founded Delaware's drug court, in a policy paper published by the National Institute of Justice. "It is likely that judges who have been successful with the approach will want to apply it to other areas."
Judges wield a lot of power, but typically do so in narrowly defined ways. They set the parameters for the arguments advanced during trials. They listen to the interpretations of the law advanced by attorneys and decide who's right. They sentence the guilty. But they can only judge the cases prosecutors present them, and more and more, recently, they can only apply punishments established by politicians.
"Some of us, in our hearts, like to do social work, too," admits Howard, a fervent believer in treatment's possibilities. "Most of these folks are retrievable."
In most drug courts, judges and attorneys are supposed to work as members of a team. This presents ethical dilemmas for most participants. Judges are expected to balance their personal involvement with defendants with impartiality. Prosecutors are supposed to safeguard public safety, not seek to give offenders every chance at rehabilitation.
Defense attorneys arguably face the most serious ethical quandaries, however. In many courts they are expected to convince their clients to waive their rights and plead guilty in exchange for a chance at treatment. Hennepin County doesn't do this, which makes local defenders more comfortable. But the collaborative approach is still often dicey, in the opinion of chief Public Defender Castro. "We advocate for people, and sometimes what they want is not in their best interests," he explains. "We're not set up to be problem-solvers, we're set up to be advocates fighting within rules."
Moreover, the further the U.S. justice system moves from the goal of rehabilitation, the more dangerous the collaborative approach becomes, he argues. The judges who've presided over the local drug court so far have done so with dignity and, for the most part, respect for all participants. But what happens when there's no Judge Howard, with his secret yen to do social work? "You've got a problem," Castro says, "every time a court is personality-based."
As an example, Castro recalls the situation a couple of years ago in Drug Court II. When Castro took over as public defender in 2001, offenders would appear in review court alone, without an attorney. That might be all right if they were simply reporting that treatment was proceeding apace, he says, but what about people who were flunking? Who were being sent to jail, or having their sentences changed?
Castro was appalled. But with offenders sometimes making weekly appearances, his office doesn't have the resources to make sure attorneys are by their sides. Eventually, he assigned several dispositional advisers--the public defender's answer to a social worker or probation officer--to take turns sitting in the court to advocate when something went wrong or to run next door to Drug Court I to alert a public defender.
The rights of the accused aren't a popular topic these days, though, and concerns such as Castro's haven't gotten nearly as much press as drug court's efficiency in clearing clogged dockets. As a result, in the 12 years since the first drug court opened, government agencies throughout the country have experimented with applying the "problem-solving court" model to other social issues.
Each of the courts has a slightly different purpose: Domestic violence courts are supposed to give victims a greater role; mental health calendars are supposed to steer people with mental illnesses toward the services they need to avoid repeatedly running afoul of the system; community courts are supposed to make neighborhoods aware that law enforcement and prosecutors are dealing with livability crimes. The U.S. Department of Justice has even proposed the creation of re-entry courts, where parolees would receive more intensive supervision.
The seemingly limitless expansion of the "problem-solving court," critics warn, will continue to "widen the net of social control." Their fears are based on the time-tested legal theory that new sanctions beget bigger systems, which in turn hand out even more sanctions. The classic example of this is juvenile court. A hundred years ago, truancy and other minor offenses committed by young people were usually worked out by parents, teachers, and, in the worst cases, the neighborhood beat cop. Then came juvenile courts, which were supposed to function as guidance agencies. Partly because the new courts were seen as benevolent, more and more kids have been funneled into them ever since.
Hennepin County Assistant Public Defender Dave Murrin was a member of the task force that created drug court. Even back then, he predicted that the court would create more and more drug cases. "My general feeling was that if you created a court, you're going to have more people using it," he recalls. "It generates its own business simply by being available."
It's not hard to drum up that business, either. When he was assigned to drug court, Howard spent an evening with police patrolling Minneapolis's "open-air drug markets." "We picked up three people at the exact same spot within 45 minutes," he recalls. "You have to understand how easy it is for police to bring these people in."
Which explains why too many poor minorities cycle through the court, he says. "The people who are the most blatant in their drug sales are the ones who go down first," explains Howard. "It's harder to infiltrate a bar in the suburbs than to go bust dealers on the corner, who you can see. Police work is sometimes based on opportunity."
From there, it's not much of a stretch to see the war on drugs as the ultimate exercise in net widening. "After all, imprisonment is a potent form of social control, one that, in this country, continues far beyond prison walls, or even the probation officer's building," writes civil liberties attorney Elaine Cassel. "Chances are you already--or soon will--know someone who cannot get a job, rent a house, drive a car, or vote because he or she had a criminal conviction once in their lifetime.
"In 2003, more than 615,000 prisoners will attempt to re-enter society, and some of the strongest obstacles to their doing so will have been erected by their own government," she notes in an essay for the CounterPunch newsletter. "Released inmates who want to make a life for themselves will be systematically denied the opportunity to do so. As a result, recidivism, which keeps the prison economy flourishing and exponentially adds to the numbers of underclass citizens, will be assured."
When drug court opened for business, one number dropped right away--the number of serious, first- and second-degree felonies filed in Hennepin County courts. Concerned that drug court would not deal harshly enough with large-scale dealers, then-County Attorney Mike Freeman began channeling the biggest cases to local federal courts.
"The fed system is a good route for the people whose motivation is greed," said Freeman, who diverted five or six cases a month. "We in the state have never figured out a treatment program for recovering drug entrepreneurs." The number of cases filed in U.S. District Court in Minnesota jumped accordingly.
Freeman's wasn't an isolated fear. During drug court's first two years, what little criticism there was focused on the perception that it was too soft on offenders. In response, Kevin Burke, then the court's lone judge, released statistics showing that he had sent more drug offenders to prison than traditional courts, and that more than half of participants completed treatment. Still, Burke faced criticism from prosecutors and from the county commissioners who had voted to fund the court for imposing prison sentences for less time than state guidelines called for.
Evaluating the court's success hasn't gotten any easier in the intervening years, not least because everyone seems to have a different definition of success. Gail Baez, the assistant county attorney in charge of drug court prosecutors, says too many community members still complain about the effects drug-related crimes have on their neighborhoods. Dennis Miller, the head probation officer, is pleased with even the small changes he sees in the lives of individual offenders.
And what about a former crack user who now only smokes marijuana, asks Todd Barnette, the attorney who heads the team of public defenders assigned to the court. Or someone who was clean for three years and then relapsed? Can we decree them successes?
And the courts' backers expect early enthusiasm to wane as the model is expanded. "As the results of more sophisticated evaluations become available, preliminary success rates will not be sustained," Richard Gebelein, the judge who founded Delaware's drug courts, wrote in a recent policy paper for the U.S. Department of Justice's National Institute of Justice. "As less tractable groups participate, rates of compliance and graduation will decline and recidivism will rise. Support may fade and success appears to diminish. The movement cannot afford to claim too much and so must define success realistically."
Even as the number of participants grows, Gebelein adds, most local governments will expect drug courts to get by using the same resources: "The usual result is deterioration of treatment quality as programs are shortened and more people are crowded into each group. This can only decrease effectiveness."
Further, he notes, the health care system could chip away at the courts' success. "The premise of managed care, increasingly the norm, is that the least treatment required should be provided," he writes. "This is at odds with research on substance abuse treatment, which has shown that the longer a person remains in treatment, the more successful treatment will be. Furthermore, managed care assumes the patient will aggressively pursue the treatment he or she deems necessary. Because drug court clients initially prefer not to be treated, they are likely to welcome a ruling by the health care provider or the managed care insurer that treatment is needed."
(This raises an interesting aside: Very few Hennepin County drug court participants have health insurance--probably as a result of the differential policing that's responsible for the bulk of the narcotics caseload. Those who do have health care are sent to their insurance companies for chemical dependency assessments. If treatment is indicated, defendants must then hope their insurer agrees to pay for it.)
One person who's willing to declare the courts a categorical failure is Bill McColl, director of national affairs for the Drug Policy Alliance. "Drug courts have not slowed expansion into prisons," he asserts. "And as they have expanded, they have pulled in a large number of people who were not otherwise caught up in the criminal justice system."
McColl is not mollified that those additional felons have better access to treatment. "It's not just half a loaf, it's a loaf that's diverting attention and resources from community programs," he argues. "Yeah, it kinda works, sort of. But not as well as [other] options.
"Where we choose to pigeonhole this makes a difference," he says, opining that the public health system is the place where we should be dealing with addiction. "The criminal justice system had become a revolving door for many of these people. But with the drug courts we're building an ever more baroque system for dealing with these types of health problems."
In recent years, several Western European nations have decriminalized marijuana, and in coming weeks Britain will reduce penalties as well. Last month, Canada's ruling Liberal Party proposed decriminalizing the possession of up to 15 grams of marijuana. Suggesting that pot smoking is largely a public health issue, party officials suggested that possession of small amounts of marijuana should be punished with a ticket.
In response, however, Bush Administration anti-drug officials described Canada as "a dangerous staging area for some of the most dangerous marijuana," according to a New York Times article by Eric Schlosser, author of Reefer Madness: Sex, Drugs, and Cheap Labor in the American Black Market.
"Meanwhile, the United States has escalated its war on pot," Schlosser writes. "The number of marijuana arrests now approaches three-quarters of a million annually, largely for simple possession. More people are in prison for marijuana crimes today than ever before. Dozens, if not hundreds, are serving life sentences for nonviolent pot offenses. Attorney General John Ashcroft has called for full enforcement of the pot laws and spearheaded a crackdown on medicinal marijuana providers in California, though their efforts are legal under state law."
Judge John Sommerville's afternoon in drug court had been about as long as they get. He'd dealt with several dozen garden-variety appearances: new cases, people who skipped court dates and had to be rearrested, defendants who somehow hadn't managed the trip from the courthouse to their treatment provider.
He'd also seen another schizophrenic threatening his family, and tried to field questions about a defendant who didn't show because she was in the hospital following a jailhouse suicide attempt. Jail officials were said to be trying to figure out how to release her in absentia so that they wouldn't have to pay her medical bills. By 4:30 p.m. a scowl appeared permanently etched onto Sommerville's face.
His clerk surveyed the half-dozen people still seated in the audience. "Anybody else here who is waiting to be called?"
A chubby young black man stands. He's completed all but one of the terms of his sentence. If he's allowed to pay a small fine today, his case will go on administrative probation. That means that if he stays out of trouble for a couple of years he'll be free and can have his record wiped clean.
The judge briefly considers having the man come back in the morning, but changes his mind. This is, after all, the moment drug court is supposed to be all about. The clerks, attorneys, and probation officers sit silently while the man runs down the hall. He comes back about 10 minutes later, clutching a receipt.
Sommerville stands, and his robe slips off one shoulder, revealing a pink shirt. He applauds, and everyone else follows his lead. "You should be proud of yourself," he says to the young man before turning to climb down off the bench. The court reporter picks up her equipment and follows the bailiffs and attorneys back into the chambers.
Outside, the halls are deserted. The man looks around uncertainly, still clutching the receipt. After a couple of minutes, he shuffles off toward the elevator.
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