Do Drug Courts Discriminate Against Blacks?

Even before Dane County Circuit Judge Sarah O’Brien crunched the numbers, she knew something was amiss. Her strongest evidence: “The courtroom didn’t look right when I walked in.”

O’Brien, who retired in 2012, was referring to the stark racial disparities in Dane County’s drug court. The people in front of her — the ones who had gotten the chance to reduce or avoid criminal convictions in exchange for completing treatment and other programming — were overwhelmingly white.

In 2012, about one-third of those arrested for drug crimes in Dane County were black, according to the state Office of Justice Assistance. But African-Americans made up just 10 percent of those participating in the county’s drug court that year, according to Journey Mental Health, a Madison nonprofit that provides treatment and case management for the program.

As recently as May, despite a concerted effort to increase minority participation, 84 percent of defendants in Dane County drug court were white and 14 percent were black.

Drug courts such as this one in Madison are an effective way, research has shown, to cut prison costs and to reduce recidivism by treating addictions that fuel criminal behavior.

But it is an opportunity many people, particularly minorities, are missing out on in Wisconsin. In Racine County in 2012, for example, 11 percent of drug-court participants were black, although about one-third of all drug defendants arrested that year were African-American. Disparities also can be found in Rock and Milwaukee counties, the Wisconsin Center for Investigative Journalism found.

Experts disagree as to why these disparities exist. Some, including some drug court judges, believe the problem lies in drug use trends.

Studies show African-Americans are more likely to abuse cocaine. Whites are more likely to abuse heroin. Heroin abuse has been described as an “epidemic” and has drawn political attention in part because of the alarming rise in fatal and near-fatal overdoses among its users, who are mostly white.

Other experts say disparities occur not just because of drug choice, but because of a variety of factors outside of drug courts’ control.

One theory is that after years of poor treatment in the criminal-justice system, minorities are less likely to trust any new criminal-justice program. Another is that minorities are more likely to have more extensive criminal histories, which may disqualify them from participation.

Pamela Oliver, an expert on racial disparities in the criminal-justice system, said the reason for disparities in drug courts is a combination of both theories.

“The judicial system treats you worse if you have a previous criminal record, and they don’t apologize for it,” said Oliver, a sociology professor at the University of Wisconsin-Madison.

Dr. Randall Brown, associate professor at the UW-Madison Department of Family Medicine and director of the Center for Addictive Disorders, agreed.

Brown added that some minority defendants with prior criminal histories might consider a few months in jail less onerous than nine months in drug court, a theory also endorsed by Oliver. The cost of drug court is probably not a barrier; in Dane County, offenders have about six to eight months to pay the one-time $50 fee.

Dane County recently underwent a reorganization aimed at making defendants with more serious criminal histories eligible for drug court. A Legislative Council committee also is studying ways to make all of the state’s alternative treatment programs more efficient and cost-effective.

Drug courts gain in popularity

It is a typical day at the Dane County drug court, where Judge Juan Colas meets with defendants who have chosen to try treatment over jail.

One participant, a 27-year-old white Madison woman who asked to not be identified, has two children and an extensive, but nonviolent, criminal history, including driving while intoxicated, forgery, burglary, theft and disorderly conduct — at least some fueled by her addiction to heroin.

Colas asked her how she was doing. The woman responded, “pretty good,” and ticked off her recent accomplishments: looking for a new apartment, working and staying sober for two weeks. “I feel great,” she said.

“It sounds like things are headed in the right direction for you, and you’re doing what you need to be doing,” the judge responded. “So we’ll see you next week.”

Drug courts were first established in the late 1980s as a way to reduce prison crowding and high recidivism.

In Wisconsin, the interest was fueled by a 2009 report from the state Department of Corrections showing that drug offenders accounted for more than 20 percent of the explosive prison population growth from 1996 to 2006.

There are currently 29 drug courts in Wisconsin, up from five a decade ago.

Michelle Cern, the Wisconsin statewide problem-solving court coordinator, said in the past 10 years, the number of alternative treatment programs of all kinds has doubled.

“Substance abuse touches everyone in some way, shape or form,” Cern said. “Because of the research out there talking about the effectiveness of problem-solving courts, I think there is a greater understanding that the substance abuse issue is not solved solely by incarceration.”

A defendant’s time in drug court usually takes about nine months and is marked with a series of rewards and sanctions depending on a participant’s actions during the program. Those who complete the program are rewarded with either lessened or dismissed criminal charges.

Research shows drug courts work

According to a 2011 study by the UW-Madison’s Brown, offenders who participated in drug treatment courts were 50 percent less likely to commit new crimes; and if they did commit a crime, it was for a lesser offense with an average of 82 fewer days spent in jail.

And a study by the UW Population Health Institute found that in seven alternative treatment programs funded by the state, 2,061 offenders over four years avoided more than 135,000 days of incarceration. These programs were not limited to just drug courts, but included other alternative programs, including one for drunken drivers.

The study also found that offenders who completed one of the treatment alternative programs were nine times less likely to be admitted to a state prison in the future compared to those who did not.

Sanctions and rewards help, but judges said there are other intangible benefits to drug court.

“One of the primary things you need to beat an addiction is hope,” said Milwaukee County drug court Judge Ellen Brostrom. “They (offenders) are not just sober. They’re transformed.”

Colas agreed. “You’re helping people to change by finding out what’s within them motivating them to change.”

He said running Dane County’s drug court is one of the most rewarding things he has done.

“It’s exciting when they graduate because you’ve been with them with their arrests and sanctions and problems with parents and boyfriends and pregnancies,” Colas said.

During a recent court session, Colas was protective of the participants, asking that photos not be taken of them to avoid the possibility of derailing their progress.

“You are dealing so intimately with people week after week,” Colas said. “After a long period of months you develop an emotional connection with them that is different.”

But not many minority offenders get to experience that success. Professionals within and outside of the courts say they are not sure why.

Source of disparity unclear

That minorities, particularly African-Americans, are disproportionately incarcerated for drug-related crimes in Dane County is not news. A Justice Policy Institute study found in 2007 that a black resident of Dane County was 97 times more likely to go to jail for a drug crime than a white resident.

“I’m certain there are more white people in the (drug) courts,” Colas said. “It’s hard to say exactly why.”

Brown said tracing the causes is complicated because there are so many places in the system and society in which disparities can occur. When it comes to why whites participate in drug court more often than blacks, he said he has not “fully wrapped my head around the issue.”

“And anyone who says they know what the exact problem is,” Brown said, “is crazy.”

Wisconsin’s disparities are not unique, said Douglas Marlowe, chief of science, policy and law at the National Association of Drug Court Treatment Professionals.

“The entire criminal justice system in every state, county and the federal system has some evidence of disparities, from arrest rates through prisoner reentry,” Marlowe said.

Regardless of when and why disparities occur, Brown said, researchers and policymakers must look “upstream” to address the problem, which stems from unemployment, poverty, lack of education and other factors.

“It’s unfortunate we are relying on the criminal justice system to solve this problem, because it runs so much deeper than that,” he said.

Despite funding boost, resources still scarce

Wisconsin began supporting drug courts in 2005 through a program called Treatment Alternatives and Diversion, also known as TAD. Since then, so-called problem-solving courts in 37 counties have received about $4 million from the state.

Cern said although TAD funding has increased fourfold in the last two years, there is still not enough money to meet the demand. That leaves counties to pick up the increased costs, either through taxpayer funds or federal grants, she said.

A recent study showed the best way to reduce the cost of the criminal justice system is to invest more in TAD programs. The UW-Madison study found that for every $1 the state spends on TAD programs, there is a net benefit of $1.96.

Two drug court judges, Colas and Brostrom, also said county district attorneys’ offices are underfunded and may not be able to meet the demand of working with treatment courts.

“We set up this specialty court, and we’re asking the DA to provide an assistant DA to commit and review reports and preparation. It’s a significant commitment of time,” Colas said. “…the state simply has not provided the funding it should.”

Judges see the problem, react

Some judges, including those in Dane County, have taken steps to get more high-risk offenders into drug court. The theory is that more African-Americans, who are more likely to be high-risk offenders, will gain access to the program.

The Madison-based court previously relied on the district attorney’s office to decide who should be admitted to drug court. As a result, individuals at lower risk to commit new crimes were the ones gaining admission into drug court.

The Dane County reorganization, which began in 2013 and was fully implemented in January of this year, now separates the drug court program into three risk levels based on a series of assessments and does not always require a recommendation from the district attorney.

“The purpose was to broaden access and give the most effective intervention” depending on the individual, Colas said.

Although it is too early to know if the reorganization is working, studies suggest it should.

Research by Marlowe of the National Association of Drug Court Professionals shows that “drug courts can potentially double their effectiveness and cost-effectiveness by focusing their efforts on this high-risk, high-need target population.”

Marlowe said he endorses Dane County’s efforts.

“I am a huge advocate of developing separate tracks based on risk and need,” Marlowe said. “If participants receive services appropriately matched to their needs, this is very likely to reduce disproportionate impacts on minorities resulting from a one-size-fits-all approach.”

Wanted: More research

Despite the successes, just 66 percent of drug court participants graduated between 1996 and 2011 in Dane County, Colas said. Milwaukee County’s Brostrom said the problem is lack of funding to evaluate and offer the most effective programming.

“Our graduation rate would be better if we had better access to high quality, curriculum-based, evidence-based treatment in the community,” Brostrom said. “The need far surpasses the resources.”

O’Brien said the desire for more evidence-based practice is spreading throughout the judicial system.

“We don’t do what our grandfathers did as a judge, we look at the evidence to see what works,” she said. “I don’t think you can replace judges with computers, but judges are learning they need to pay attention to these principles supported by science.”

Policymakers have heard the judges’ calls for better practices. Some answers could come later this year after the legislative committee makes its recommendations on improving problem-solving courts.

The bipartisan committee is led by chairman Rep. Garey Bies, R-Sister Bay, and vice chairman Rep. Evan Goyke, D-Milwaukee. The other 14 members include politicians, judges and treatment experts. The strong bipartisan support for alternatives to incarceration signals a shift from tough-on-crime policies that prompted an explosion in Wisconsin’s prison population.

Among the many suggestions is altering some requirements of TAD grants. Currently courts receiving state TAD money cannot accept people with violent criminal histories. That language has prevented many defendants, particularly minorities, from participating in the treatment courts, Colas said.

The judge added that many offenders can turn their lives around with the help of drug court.

“They are real human beings with real challenges and real potential,” Colas said. “And we always have to keep that in mind, I think.”

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