How Drug Courts Fall Short: A New Report Investigates this Policy Model’s Performance in the Americas

In the last few decades, drug courts have become an increasingly popular public policy model across the Americas. Proponents assert that drug courts are cost-effective, reduce recidivism and time spent in detention (prison or jail), and offer drug treatment as an alternative to incarceration for people whose drug use underlies their criminal activity. Since 2016, the SSRC’s Drugs, Security and Democracy (DSD) program1The Drugs, Security and Democracy (DSD) program supports research on drugs in Latin America and the Caribbean across a variety of disciplines with a goal of producing evidence-based knowledge to inform drug policy in the region and beyond. The program seeks to foster a global interdisciplinary network of researchers engaged with drug policy, committed to policy-relevant outcomes, and who can communicate their findings to relevant audiences. has worked to expand understanding of this policy, culminating in Drug Courts in the Americas, a comprehensive scholarly examination of the effectiveness and impact of drug courts in the United States, Latin America, and the Caribbean. The report reviewed key findings from the United States’ experience and found that drug courts, as implemented in the United States, are a costly, cumbersome intervention that has limited, if any, impact on reducing incarceration. This essay presents an overview of the report’s findings, including its recommendations to address the shortcomings of these courts.

The rise of drug courts

Although drug courts are not a new concept in the United States (they were first established in Miami in 1989, having since spread to all states and territories), their dissemination to other countries in the Americas is more recent. Although we have seen this policy model replicated in Latin America and the Caribbean since the early 2000s, there has been a rapid expansion in implementation of drug courts starting in 2012. The DSD program wanted to further explore this trend, particularly considering these courts’ increasing popularity in countries in the region despite the vast institutional, legal, and cultural differences between the United States, Latin America, and the Caribbean.

It is no secret that incarceration for drug-related offenses and the significant increase in prison populations in the United States over the past decades are connected. For those working in the drug research/policy field, this has been evident for many years. Nonetheless, looking into actual numbers offers a much needed reminder of the scale. For example, according to the Federal Bureau of Prison’s statistics, of the 168,687 people incarcerated in US federal prisons in October 2018, 77,649 were imprisoned for drug offenses.2Statistics based on prior month’s data. “BOP Statistics: Inmate Offenses,” US Federal Bureau of Prisons, last modified November 24, 2018, accessed February 11, 2019, https://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp. This number, of course, does not include those incarcerated in state prisons, local jails, juvenile correction facilities, and the like.

Unfortunately, this is not a problem unique to the US criminal justice system, but rather something that can be clearly observed in many countries, particularly in Latin America and the Caribbean. A 2017 report from the Research Consortium on Drugs and the Law (Colectivo de Estudios Drogas y Derecho, CEDD) stated that “[t]he Americas is not only the region with the highest rates of incarceration, but it is also where the prison population has grown the fastest in the twenty-first century. While the general population grew 17 percent in the Americas during this period, its prison population grew 41 percent, which is to say, 2.4 times faster. Excluding the United States, the prison population in the Americas has grown 108 percent, or 6.3 times faster than the general population. Although the United States has the highest incarceration rate, it has stabilized since 2008 and even declined slightly.”3Numbers based on data available through June 2016. Sergio Chaparro, Catalina Pérez Correa, and Coletta Youngers, Irrational Punishment: Drug Laws and Incarceration in Latin America (Mexico: Research Consortium on Drugs and the Law, 2017), 11.

In light of these incarceration trends, consensus has been growing across the Americas on the need for drug law reform and alternatives to criminal sanctions for certain categories of drug offenses. These alternatives include measures that enable people to stay out of the criminal justice system in the first place, such as decriminalization of drug use and possession, and the diversion of law enforcement resources toward services outside the criminal justice system. It is within this context that drug courts have been promoted as an effective alternative to incarceration.

Exporting a flawed model

In practice, however, drug courts have become another arm of the criminal justice system, administering medical treatment and counseling via judges rather than experts. The evidence from the United States shows that drug courts can increase the supervision of individuals and expose them to more severe penalties than they would otherwise have received, thus sometimes becoming an adjunct rather than an alternative to incarceration. One of the main stated objectives of drug courts is to ensure access to comprehensive substance abuse treatment for those who need it. However, a review of the available evidence shows that, in practice, many participants in drug courts do not need treatment while, at the same time, the treatment may not be available or may be inappropriate for those who really need it. Among other limitations with this policy model, we found that the financial and human costs to drug court participants are also steep and disproportionately burdensome for the poor and racial minorities.

Further complicating this scenario is the concerted effort to export drug courts as a model that should be adopted by other countries. Despite the evidence from the United States experience cited above, the considerable influence of the United States in the region’s drug control policies and the support for the model from the Organization of American States’ Inter-American Drug Abuse Control Commission have certainly encouraged countries in Latin America and the Caribbean to embrace drug courts as a promising solution to the over-incarceration problem that plagues the region. This development is problematic not only because governments in the region apparently are not doing a proper review of the available evidence before adopting drug courts as a public policy model, but also because the very specific social, economic, and political context of Latin American and Caribbean countries immediately complicates the adoption of public policies designed by other, more developed countries with different legal systems. Furthermore, many drug courts in the region still focus on simple drug possession as a crime, contributing to the criminalization and stigmatization of people who use drugs.

Moving forward

Drug Courts in the Americas presents a series of recommendations that should be seriously considered by countries concerned with mass incarceration and that intend to move away from overreliance on criminal justice responses to drug use. We developed the recommendations with two groups in mind: countries that have not established drug courts or in which they are in early stages, and countries with established drug courts that have overwhelming support, thus making it difficult (but not impossible) to address the issues raised there.

For those in the first group, the recommendations include several of the following concrete steps:

1. Health-oriented approaches to drug use and dependence, such as
   1. distinguishing between drug use and drug dependence and recognizing that not all drug use is problematic or requires treatment to address it, and
   2. providing financial and technical resources to expand and improve comprehensive harm-reduction services in communities, including evidence-based drug treatment programs that are not linked to the criminal justice system.
2. Alternative approaches to criminal justice involvement, including
   1. taking the necessary legislative and other measures to ensure people who commit minor or nonviolent drug offenses and are in need of treatment are directed, prior to arrest or the opening of a criminal proceeding, to community-based services tailored to their specific needs.

For the countries in the second group, despite the report’s main conclusion that drug courts are not an appropriate solution for the issues they were ostensibly designed to address, we also present a series of measures that could be put in place to minimize the negative impacts of their implementation, including, but not limited to:

1. Drug courts should target people who have been charged with serious offenses, including violent crimes, that otherwise would result in incarceration and who would benefit from drug dependence treatment.
2. The existence of a criminal record and the nature of the offense should not render a potential participant ineligible, as is often the case.
3. Returning to drug use is a normal part of the recovery process and should not be the basis for dismissal from a program or the imposition of sanctions, such as detention or more frequent court appearances or drug testing.
4. Participation in drug courts should not be dependent on paying fines, fees, or any other costs, nor should failure to do so be criminally sanctioned.

Undoubtedly, countries should focus on moving away from an excessive reliance on incarceration as a panacea. Nonetheless, a close examination of the United States as a case study does not support the drug court model as the most appropriate solution for governments genuinely focused on addressing this issue, since in some respects it continues to criminalize drug consumption and prioritize a criminal approach to drug dependence over a health approach.

On a final note, it is important to bear in mind that this is not simply an issue of comparing drug courts and incarceration, but whether or not drug courts truly represent a public policy focused on the health of people with substance abuse problems. The countries that consider this model must take this into account and answer the following question: Is it really necessary to mediate treatment through the criminal justice system?

To read the full report (available in English, Spanish, and Portuguese), please visit: https://www.ssrc.org/publications/view/drug-courts-in-the-americas/.

The DSD Program would like to thank the authors of the report—Rebecca Schleifer, Tania Ramirez, Elizabeth Ward, and Carol Watson Williams—as well as Coletta Youngers (project advisor) and all the specialists who reviewed early versions of the report and offered invaluable comments.