Some Categories of Substance Abusing Offenders May Do Poorly in Diversion Programs That Downplay the Role of Judges
July 2004
Some categories of substance abusing offenders are likely to perform poorly in Proposition 36-like treatment programs that downplay the role of judges, according to studies conducted by researchers at the Philadelphia-based Treatment Research Institute.
The studies were the first scientifically rigorous evaluation of the impact of judges in drug court programs and were led by Douglas Marlowe, J.D., Ph.D., Director of TRI's Section on Law and Ethics. Marlowe and his colleagues found that “high risk” clients performed substantially better when they were required to attend frequent status hearings before a judge. “High risk” offenders were those who had antisocial personality disorders or previously failed in drug abuse treatment. “Low risk” offenders performed equivalently when they were monitored by clinical case managers and not required to attend routine court hearings, according to the study.
In one of the most dramatic findings, 80% of offenders in one high risk group successfully graduated from their drug court program when frequent meetings with the judge were required compared to a 20% graduation rate when clients saw judges only when treatment counselors requested it.
In the past decade drug courts have been widely embraced by state and local governments to address the increasing numbers of offenders incarcerated for drug related offenses or subsequently found to have drug related problems. Drug courts allow eligible offenders to avoid jail sentences so long as they enroll in and complete substance abuse treatment programs. Under the traditional drug court model, offenders frequently and routinely meet with judges to discuss their progress in treatment and often receive sanctions or rewards based on their compliance with prescribed treatment programs.
Although the overall worth of drug courts has been evaluated with potentially promising results, there have been disagreements among experts, commentators and treatment advocates as to whether the expensive and time consuming involvement of court personnel is either necessary or useful to the successful treatment of substance abusing offenders. Several states have abandoned the more expensive drug court model in favor of “diversion” programs that minimize the role of judges in favor of treatment counselors or probation officers. Propositions 200 in Arizona and 36 in California, for example, require diversion of nonviolent drug-possession offenders to probation and community-based treatment with no specific provision for judicial status hearings and limited opportunities to revoke probation upon the first or even second failure to comply with treatment protocols.
Dr. Marlowe’s studies, reviewed in a 2004 issue of the Drug Court Review, were funded by the National Institute on Drug Abuse and the Center for Substance Abuse Treatment. All were conducted at drug court sites in Delaware and tracked the progress of offenders who were randomly assigned to one of two conditions: 1) biweekly attendance at judicial status hearings regardless of treatment progress; or 2) attendance on an as-needed basis, i.e., when requested by treatment counselors in response to serious or repeated infractions.
The first study, conducted in an urban drug court in Wilmington, tracked approximately 200 clients and found that high risk offenders achieved more drug abstinence and/or were more likely to graduate successfully when they were assigned to bi-weekly hearings. Low risk offenders were more likely to perform favorably when they were assigned to the as-needed hearings.
The second series of replication studies were conducted at four different drug courts in Delaware, urban and rural serving both felony and misdemeanor clients. Statistically significant differences were again detected between the high- and low-risk groups. The studies were halted prematurely when final results from just 12 subjects revealed strikingly different graduation rates and urine drug screen results among offenders with prior, unsuccessful experiences with substance abuse treatment. The discovery led the researchers and state officials to conclude that it was no longer practical or ethical to continue assigning certain offenders to programs with such potentially low chances for success.
“Obviously, the low number of clients in the replication studies demands that more research be conducted in different locations and with different clients,” Marlowe said. “Nevertheless, we now have compelling evidence that for a subset of offenders the judge is a key component of drug court. For low-risk clients, the data suggest it may be appropriate and cost effective to maintain relatively non-porous boundaries between treatment providers and criminal justice personnel. But the findings raise questions about whether high-risk offenders could reasonably be expected to succeed in the type of low-intensity diversionary interventions exemplified in Propositions 36 or 200. At the very least, it would appear that some mechanism should be in place in these statutes to permit poorly responding clients to be transferred into a more judicially managed program.”
As a follow-up to this program of research, TRI is now prospectively matching misdemeanor drug court clients to the optimal schedule of status hearings depending on their risk status, and comparing outcomes to treatment as usual.