Mimesis Law
23 November 2020

Drug Courts Are Not A Criminal Addict’s Panacea

December 12, 2016 (Fault Lines) — In theory, drug courts provide a great alternative for defendants when compared to being in criminal court. But despite the best intentions of those running the program, drug court comes with unintended consequences for its participants that are much more complicated when viewed up close.

The typical drug court case involves a person who was caught and charged with possession of a small amount of narcotics (a term that comes from the Greek word for “stupor”). Instead of facing the government’s wrath in criminal court, he is referred to a drug tribunal, which in practice is a bizarre version of criminal court: generally speaking, the state and the defense are on the same team with a common goal of helping the defendant overcome his addition(s).

Drug courts are not meant for drug peddlers, despite the cynical best efforts by a few crafty criminal defense lawyers to send their dealer clients to drug court with the purpose of getting their cases eventually dismissed. This post is not about those rascals and their clients.

Usually, there is a mandatory minimum of time during which the defendant will remain in drug court, no matter how quickly or miraculous his recovery. His name will remain on the court’s docket while he undergoes an evaluation and treatment (for addiction, mental illness, or both), with incentives and deterrents that will hopefully pave the way to his recovery and most importantly with a nice side effect of dismissal of the charges.

The deterrents include non-sentences for failing a drug test, and the length of the punishment varies. They are not sentences because this occurs while the case is still pending.  The judge may give the proverbial slap on the wrist and send him to the can for a weekend, but repeat “offenders” go to county jail for longer periods, where they may be beaten, placed in solitary or even die.

It doesn’t sit well when an addict is punished by the state for engaging in the behavior that is not necessarily nefarious (e.g., drinking booze) but cannot help himself from engaging in it, as per . . . the drug court people themselves! This is cruel, wasteful, and depressingly ironic. Yes, he may have time to reflect on his evil Cheech and Chong ways, and he may not have access to the demon weed while on the inside, but anything can happen while someone is behind the local bars. De facto mental health hospitals Correctional facilities are not equipped to deal with addicts or the mentally ill, some of whom are “frequent flyers” when it comes to doing short time.

And about those dealers being snuck into drug court: talk about easy access to a new crop of clientele. Similar to how federal inmates who’ve participated in the BOP* Residential Drug Abuse Program, or RDAP, have told me that they’ve never had such easy access to dope on the inside, drug court defendants are similarly tempted by their fellow participants.

There is also the flagrant constitutional violation of compulsory participation in a program that requires surrendering one’s critical faculties the acceptance — and perhaps embrace? — of a “higher power.” This affront to the Establishment Clause of the U.S. Constitution and Jefferson’s big, beautiful wall of separation of church and state also occurs when people are required to attend AA meetings as part of their sentence, when it is crystal clear that the AA program has a religious component to it. There’s a reason why some people have called AA “a religious cult masquerading as a self-help group.”

Narcotics Anonymous also has a “higher power” element to it. So, should a drug court judge order (drug court or not, the law is still a bludgeon) a defendant to attend NA meetings, where he will have to accept the existence of a higher power, the defendant has to attend on pain of jail time. If these scenarios appear to be obvious constitutional violations, it’s because they are. Yet, they happen every day in (drug) courts across the country.

Can it get any worse? Well, yes, by all means. Those transitioning from prison to life through parole may be facing jail time if they refuse to participate in treatment facilities that promote religion. Often times, state-imposed parole programs contract exclusively with treatment facilities offering solely religious based programs or services, leaving non-believers in the unenviable position of doing more time should they choose to stand up for their non-beliefs.

And what if it involves an addict who has been the subject of an unconstitutional search and seizure? They don’t do suppression or civil forfeiture hearings in drug court, so the only option left to those who want to cry foul and right a government wrong is to head to regular criminal or civil court, even if they also happen to be addicts and in need of help. Addict or not, criminal courts are the proper forums for victims of law enforcement’s overreach. But then, you lose the benefits of drug court if you are the victim of unconstitutional conduct and chose to challenge it.

So yes, there are people that really need some assistance when it comes to their “addictions” and the criminal consequences that result from their behavior. And yes, there are many “success stories” that come out of drug courts. But it still does not negate or correct the constitutional violations or the incarceratory punishments endured by those who’ve acted like the addicts the drug court told them they were. Think you’ve got the answer, the solution to dealing with non-violent drug users caught up in the criminal justice system? The floor is yours, and let it fly in the comments section like Mussolini from the balcony.

But before I leave you, here’s my four cents. Want hope and change when it comes to helping out addicts who don’t belong in the system? Two words: prosecutorial discretion. If the state does not bring charges against those caught with a small amount of dope, these “addicts” won’t see the inside of a courtroom, drug court or otherwise. You’ve got to start somewhere.

*U.S. Bureau of Prisons.

6 Comments on this post.

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  • SPM
    12 December 2016 at 11:57 am - Reply

    The key word in the first sentence of the article is “alternative.” To the best of my knowledge, there is never a requirement to participate in “drug court.” An individual always has the option to take a case to trial, and/or plead guilty with or without a plea agreement and take the sentence provided for by statute. As an act of grace provided by the state, there is no right to “drug court the way you want it” and there is in the same way no requirement to participate. It is the same thing with “half-way houses” and parole. I know of some inmates who prefer to finish out their sentences in prison rather than accept the conditions those entail. It is their right. Therefore, if a defendant does not like the terms, they can simply proceed with their case “as normal” and be no worse off.

    • Furslid
      12 December 2016 at 3:18 pm - Reply

      The normal criminal justice system doesn’t work. So we set up drug court. Then drug court doesn’t work for someone. But that’s OK because they have the normal criminal justice system.

    • Mario Machado
      13 December 2016 at 12:26 pm - Reply

      I never said or implied that there is a “right to drug court the way you want it,” so in that regard you are pushing against an open door.

      As for the state’s “act of grace” (funny choice of words, if only accidentally) whether it’s drug court, parole or halfway houses, whenever these programs include a religious component, it’s a violation of the Establishment Clause. And this “wall of separation” shields both sides: religion is protected from being corrupted by the government, while the public square remains free from religious encroachment.

      • Furslid
        13 December 2016 at 3:08 pm - Reply

        Sorry about that.

        • Mario Machado
          13 December 2016 at 3:32 pm - Reply

          No need for contrition. My reply was meant for the first anonymous comment. I thought that was self-evident.

  • Dwight Mann f/k/a “dm”
    13 December 2016 at 11:36 am - Reply

    Your use of quotes around the word “addict” in the last sentence is interesting and appropriate. I’ve always found it amusing that many drug courts are forced to throw a sop to the drug warriors (LEO and civilian) by conflating drug users with drug addicts. Just as there are lots of people who enjoy getting inebriated from time to time who are not alcoholics, likewise for drug users versus genuine addicts. I cannot help but believe that many of these defendants end up with less respect for the “justice” system after having been forced to pretend to be addicts in need of treatment in order to avoid a possession conviction.