Might restorative justice principles improve drug courts?

I'm a supporter of drug court programs, but I also believe they shouldn't be immune from criticism and all such diversion programs should be constantly, rigorously tested for effectiveness. So I was interested to see a couple of recent items on the topic that collectively describe the pros and cons of this increasingly popular (even faddish) approach to adjudicating drug cases.

The Houston Chronicle last week ran a feature ("Drug courts turn addicts around," March 17) on Harris County's drug court program claiming higher success rates than the national average:

[Program director Mary] Covington said national data show that 43.5 percent of drug offenders are re-arrested a year after release.

Nationally, Covington said, 16.4 percent of drug court graduates have been convicted of new felony offenses within a year, compared to 6 percent of Harris County’s drug court graduates.

The article is well worth a read for an update and background on the 5-year old Harris County program.

An alternative perspective on drug courts was recently offered in a law review paper by Michael O'Hear, referenced over the weekend at Sentencing Law & Policy. O'Hear (I think rightly) believes that drug courts':

popularity stems in large part from the unpopularity of what is generally seen as the principal policy alternative, that is, a continued reliance on the traditional criminal justice responses to drug offenses— or, more colloquially, on the “war on drugs.” Public support for the war flagged as it became clear that many drug offenders were unresponsive to threats of harsh sentences, prison populations (and hence prison budgets) were escalating wildly, and many poor minority communities were being devastated by the collateral damage.

There are now more than 2,000 drug courts operating in all 50 states. Drug courts, he says, have become "the generic policy response of choice to dissatisfaction with the war on drugs," but points to one particular area where they do not, according to his research, improve over the traditional court system: "In purely quantitative terms, drug courts are unlikely to reduce [racial] disparities" ... in drug sentencing and "may exacerbate them."

The paper first establishes why, from a statistical perspective, racial disparities in drug arrests and sentencing are not justified by claims that black folks commit drug offenses more frequently. However, he says, "much evidence now suggests that white drug offenders are more likely to benefit" from the "rigorous, prescribed course of therapy" provided by drug courts than blacks.

Not only do the screening processes on the front end prevent many black people from participating, there is also a high failure rate: "although there are about 70,000 [drug court] participants at any given time, the annual graduation rate is only about 16,000," and "failure rates are higher for blacks than whites, by thirty or more percentage points" in some programs. Failure, he notes, "may result in greater incarceration than non-participation."

O'Hear considers such racial disparities a compelling critique of drug courts as they currently exist and says a "better answer" would be "re-imagining drug courts in restorative justice (RJ) terms," noting that "An abundant body of research indicates that RJ processes tend to produce higher levels of satisfaction than traditional criminal processes among both victims and offenders."

He cites a program created by the Milwaukee District Attorney - the Milwaukee Community Conferencing Program - as an example of how restorative justice programs could be crafted as an appendage to the existing justice system. At these RJ conferences,

CCP participants discuss the offense and its impact on the victim and the community more generally. They next try to reach an agreement as to what the offender will do to repair the harm. Agreements are embodied in writing, and include specific conditions for the offender that must be satisfied by a particular date. “Conditions often include some form of reflection (an essay, painting, or poem), letters of apology to the victim, specific community service, restitution in specific increments, tasks related to job/school, sharing experiences with youth, or [drug or alcohol] counseling/treatment.” Successful compliance with the conditions will result in some benefit from the prosecutor: charge dismissal, charge reduction, or recommendation to the judge for a reduced sentence.

Lately, Milwaukee has begun including drug cases in these CCP conferences, and the "basic processes for drug cases are the same as for other cases in the CCP, although there is no distinct 'victim' at the conference." For a variety of reasons, O'Hear thinks a restorative justice approach may be more "capable [than drug courts] of addressing some of the social capital deficits that plague inner-city minority communities with high crime and incarceration rates."

I'm giving the paper short shrift, but judges, attorneys, and others involved with drug court programs ought to give it a thorough read.