The prototype for Drug Courts was developed in Dade County, Florida, in 1989. The Drug Court is a unique combination of elements in an aggressive and unified effort to use the occasion of arrest as an intervention opportunity for drug offenders. In spite of historical problems in criminal justice diversion and referral programs, the Dade County success rates have shown that these problems can be overcome through unique collaborative relationships, innovative treatment design, and the elimination of conventional gaps in the referral/treatment/monitoring continuum.
The Violent Crime Control and Law Enforcement Act of 1994 provided a potential one billion dollars over the subsequent five years for the establishment of Drug Courts. As jurisdictions move forward in the planning of Drug Courts, it is worthwhile considering the conceptual and clinical elements that have made Drug Courts successful in drug rehabilitation and crime prevention.
The first "drug court" began in Dade County, Florida, in 1989, and has become a prototype for Drug Court design (National Institute of Justice, 1993). The three-phase Miami program for first and second cocaine offenders is on a continuum that begins with arrest and overnight incarceration in the Dade County Stockade, and appearance the following morning before the Drug Court judge. The program was developed under the direction of Dade County Superior Court Judge Herbert Klein, with the assistance of Michael Smith, MD, Director of Substance Abuse at Lincoln Hospital in New York. U.S. Attorney General Janet Reno, then Dade County State’s Attorney, was also involved in the design.
Historically, elements of the "Drug Court" concept have existed in various forms and in many jurisdictions through diversion and/or referral from court, probation, and parole services (Gostin, 1991), but the Miami Drug Court combined a unique combination of elements in an aggressive and unified effort to use the occasion of arrest as an intervention opportunity for drug offenders. From a clinical perspective, for many individual addicts and alcoholics, the criminal justice system provides not just the best but sometimes the only opportunity for intervention.
However, there is a great deal of skepticism about drug and alcohol treatment in general in the law and justice community. In spite of the Federal slogan that "drug treatment works," many judges and probation and parole officers have come to view conventional treatment simply as another "revolving door" with very low success rates for those they have referred. Most treatment providers naturally prefer self-referred to "resistant" mandated clients, and many clinicians indeed hold the view that successful treatment requires that clients be "self-motivated."
Many of the historical problems with criminal justice mandated treatment derive from the fact that law enforcement and the medical and treatment community have traditionally labored under conflicting definitions of alcoholism and drug addiction. The medical community has long accepted the disease of addiction as a chronic relapsing disorder in which recovery is typically achieved only through a process of "slips and starts." Clinical experience is clear that rare is the addict or alcoholic who negotiates the transition from use to non-use in a single initial treatment event. While individual judges, probation, or parole officers may be personally aware of this relapsing nature of typical early recovery, the criminal justice system itself has not been able to tolerate relapse because its charge is not to bring about recovery per se, but to prevent the resumption of the criminal behavior that relapse precipitates. This "hard line" either/or definition of recovery as requiring total and continuing abstinence has been justified, for in traditional drug and alcohol treatment, relapse is generally catastrophic, resulting in treatment drop-out. The equating of relapse with treatment drop-out applies, of course, to intensive residential treatment, which is often the "treatment of choice" for the most chronic addicts and alcoholics, since maintaining a "clean and sober" living environment is tantamount to the program’s success. But it also applies to outpatient treatment modalities because of the special difficulties of the chemical dependency counselor in dealing with the problems of relapse (Brumbaugh, 1993 - [click on - Acupuncture: New Perspectives in Chemical Dependency Treatment]).
A further problem in mandated treatment is the "good cop/bad cop" syndrome. A classic behavior of drug addicts and alcoholics is "scapegoating," projecting the blame for their circumstance on real or perceived outside forces or entities. In the mandated treatment arena, this scapegoat generally takes the form of the referring agency. Hence, the treatment counselor or program ("good cop") is pitted against the probation officer or court ("bad cop"), precluding the therapeutic necessity of the client to take personal ownership of the choice to be in treatment and attempt recovery. This divisive backdrop is reinforced by the use of random and irregular urine testing by the referring agency, which also contributes to the status of relapse as a catastrophic event.
These problems and obstacles in the mandated treatment arena can be summarized as follows:
1. Low client retention and high client drop-out rates.
2. Treatment provider bias that clients need to be "self-motivated."
3. Criminal justice provider’s intolerance of relapse.
4. The "good cop/bad cop" syndrome
The early outcome statistics in the Miami Drug Court program seemingly overwhelmed these obstacles. After two years of the Drug Court’s operation, 4,296 felony drug possession arrestees had been diverted to the program. Of the 4,296:
Additionally:
These outcomes reflect a degree of success so atypical in drug treatment programs, even with highly motivated self-referred clients, that they naturally raise suspicion about the methodology of developing the data. The following qualifying comments may be made:
Based upon the successful Miami experience, and upon analysis of the traditional clinical problems in the mandated treatment arena, the following six distinct but related elements can be considered essential in effective Drug Court design.
1. Collaboration:
Beyond the general value of collaboration in any community response to substance abuse, there is a particularly significant collaboration that needs to be developed in the successful Drug Court program. This collaboration is among the Drug Court Judge, the probation department, the district attorney, the public defender, and the treatment provider. Properly implemented and administered, this collaborative piece will result in a treatment team with a uniform and consistent focus, and with the common goal of the client’s recovery. The conventional adversarial relationships between criminal justice and treatment, between case worker and probation officer, and between public defender and prosecutor, need to be set aside, dispelling the "good cop/bad cop" syndrome. In this scheme, the client has chosen between a conventional criminal justice process and the Drug Court treatment option. The technical and significant fact in the successful Drug Court program is that the client was not in fact "mandated," but has chosen to attempt recovery at some early point in the process. In the successful Drug Court operation, a concerted effort will be made at every juncture on the referral/treatment/monitoring continuum to establish as a primary treatment goal that the client acquiesce to and own the choice that was made. Acceptance on the client’s part of the decision to attempt treatment is the linchpin of success in substance abuse recovery. In a sense, the client will have become "trapped" among an entourage of caring adults: the Judge, the Prosecutor, the Defense Attorney, the Probation Officer, and the treatment program Counselor or Case Manager. He or she will have nowhere to turn for a scapegoat, for excuses, or to pit or manipulate one party against the other. The "system" forms a seamless whole, advocating singularly for client recovery.
2. Daily Urine Testing:
The first phase of the program involves daily urine testing at the treatment site. Defendants return to court frequently during this phase, and the Judge reviews their urinalysis records. His response to intermittent positive tests is not punitive; rather, he encourages defendants in their struggle and commends them for the "clean" days they have achieved. This unusual posture of relapse tolerance is well justified given the Miami statistics cited above.
The concept of daily urine testing as it is used in Miami was originally a development of Dr. Michael Smith’s Lincoln Hospital program in New York. The notion of urine testing in a therapeutic setting may seem at first an anathema from a clinical point of view, since urine testing is traditionally punitive, a clear manifestation of judgmentalism, giving the treatment program the role of critic rather than supporter of the client’s recovery process. In practice, however, quite the opposite turns out to be the case. The goal is not punitive disclosure but education and therapeutic feedback. Unlike urine testing in a law enforcement setting, clients assume much of the responsibility for self-monitoring the urinalysis process. Fear that clients will provide fraudulent test results under these conditions have not been justified. As Michael Smith has said, "drug addicts lie, but they don’t lie every day." Once the daily treatment rhythm has been established, and once the client has learned that a positive urine test will not result in program expulsion, attempts to deliver "false negatives" are uncommon.
To fully understand the utility of such testing, a brief examination of the dynamics of relapse may be helpful. In the traditional relationship between a chemical dependency counselor and client, there is an implicit trap surrounding the issue of relapse. In most generally accepted models of chemical dependency counseling, the appropriate posture of the counselor is one of non-judgmental acceptance. The overt agenda is to validate the experience and feelings of the client. Trust is, of course, a necessary prerequisite for this stance. Honesty, particularly self-honesty, is the hallmark of recovery. The counselor wants the client to be honest about his or her feelings and behavior.
And, if the counselor is skilled, the trust and honesty will come early in the relationship, because the client desires it as well. It will become part of what is called in recovery the "honeymoon" period - generally the first 30 days.
The difficulty, of course, is that both counselor and client know that addiction is a disease characterized by relapse. The counselor cannot, in good conscience, validate relapse when it happens because the overriding covert agenda in the relationship is for the client to stop relapsing. This agenda implies, of course, judgment, which is contrary to the goal of therapy.
This is a bind, and one to which the client is not insensitive. If the counselor has done a particularly good job and has won the trust of the client, then, when the generally inevitable relapse occurs, the client’s usual move will be to drop out of treatment so as to protect the counselor from disappointment.
Daily urine testing in a therapeutic setting discharges this dilemma. At Lincoln, and in other similar programs, the computer software interfaces with an on-site urine testing machine. With substantial client numbers, the cost of urinalysis for the single drug for which the client has been referred to treatment can be reduced to as little as a dollar and a half per test. Multiple client urines are tested at once, and the data is downloaded to the client’s attendance file. A print-out of urine toxicity patterns over the period of the client’s treatment attendance can be generated while the client is having acupuncture. A subsequent counseling session that begins with the client having this print-out in hand can commence at an entirely different therapeutic level, free from the potentially codependent "how are you doing?", because "how the client is doing" is already objectively established. The content of the answer to the question, "how are you doing?" is not being elicited by the counselor. Nor does the answer depend upon the clients best recollection of when he or she last used, but rather has been provided by the client’s own body, so one important element of denial is also dispelled. Clinical experience shows that clients come to enjoy this daily feedback. It can perhaps be likened to a person who is trying to lose weight stepping on the scale each morning.
3. Daily Acupuncture:
The first phase of the program also involves daily acupuncture, utilizing the auricular protocol in a group setting developed at Lincoln Hospital and endorsed by the National Acupuncture Detoxification Association. Acupuncture has proven an effective adjunctive treatment for all major drugs of abuse (Ackerman, 1994). Acupuncture not only allows a helpful, cost-effective, safe, and drug-free treatment to be delivered to large numbers of people in a single group setting, but it also creates a daily treatment regimen parallel to the one-day-at-a-time rhythm of recovery. According to Paul S. Puccio (1991), Director of Policy, Planning, and Research for the New York State Division of Substance Abuse Services, the most essential efficacy of acupuncture is in its application to criminal justice populations. Puccio describes acupuncture as a "threshold technology," most effective in "assisting cocaine and/or alcohol addicted clients who resist initial treatment ... who may not be initially receptive to verbal, interpersonal intervention or counseling due to active drug use, the presence of withdrawal symptoms, or denial." Acupuncture, according to Puccio, "works in concert with traditional drug abuse treatment approaches (and) transcends the barriers to all treatment components."
The suggestion is that acupuncture, for reasons that are not well understood, seems to be more popular and effective among resistant or "mandated" clients. This has been borne out in the first phase of a National Institute of Drug Abuse three-phase research study focusing on injecting needle users in Miami. The results indicate that the experimental group receiving acupuncture demonstrated a faster rate of delivering clean urines than groups receiving counseling only. The most significant finding, however, is that, with acupuncture, court referred clients responded more favorably than self-referred clients compared with the controls (Grossman, 1992).
Acupuncture treatment is non-verbal, so no cognitive or behavioral expectations are placed upon the client in the precarious early phases of recovery. Since the acupuncture treatment protocol is generic, its success does not depend upon accurate verbal assessment of the client’s entire drug history. In this sense, the acupuncture program provides the same horizontal flexibility as the 12-Step program, where benefit does not derive from assessment (Brumbaugh, November/December, 1993). This allows for a more leisurely, thorough, and accurate assessment to be made through the duration of the early detoxing phase of treatment.
4. Expediency, and the Elimination of Gaps:
There are three traditional gaps in criminal justice-referred substance abuse treatment that will be addressed in the successful Drug Court design:
a) The gap between arrest and adjudication.
Successful program impact requires that the length of time between arrest and adjudication be as brief as possible. It is desirable that clients be transported directly from jail to the Drug Court. As mentioned above, the occasion of arrest as an intervention opportunity for drug offenders. The arrest represents a crisis which makes the offender amenable to intervention, and it is essential to capitalize on this crisis while at the same time protecting the offender’s legal rights. Negotiations will be required in each jurisdiction between the public defender and the district attorney to determine protocols that will satisfy both considerations.
b) The gap between adjudication and treatment.
It is further desirable that, wherever possible, clients be transported directly from the Drug Court to the treatment site for their intake and initial treatment session. This swift and direct movement from jail to court to treatment prevents the generally inevitable resumption of drug use that normally occurs in diversion or referral programs between those three elements of the continuum.
c) The gap between treatment and monitoring.
The treatment compliance monitoring function in conventional diversion or referral programs rests with probation or the court. Its relegation to the non-treatment arena represents the most destructive manifestation of the "good cop/bad cop" syndrome described above. In the successful Drug Court program, the artificial division between treatment and monitoring is functionally eliminated since all players are advocates for the client’s recovery. This does not mean that failure to comply with the treatment plan has no consequences; it means rather that the functions of treatment and monitoring are blended throughout the entire continuum. While the Court holds the ultimate responsibility for the administration of consequences of non-compliance, the Court’s opinion, and that of probation, is educated by daily treatment progress records. A designated court liaison, employed by the treatment program, may provide this role. The urine testing, typically undertaken away from the treatment site, is now at the treatment site, and has been integrated into the treatment program as described above. The assigned probation officer also may have a presence at the treatment site, and may be actively involved in assessment and treatment planning. Frequent reappearances before the Drug Court Judge, particularly in the early phases, and particularly when the Judge has assumed a role of advocate for the client’s progress and has become a participant in the clinical process, has a profound motivational impact upon clients who are accustomed to viewing the court as an adversary.
5. Incarceration Always an Option:
It is essential in successful Drug Court design that the Judge retain options for swift response to program non-compliance. Clients unable to achieve detoxification in an outpatient acupuncture-based setting may be incarcerated for a detoxification period of several days. In an optimum setting, drug-free treatment options such as acupuncture, 12-Step meetings, and group and individual counseling will be available in the jail setting to which the client is remanded, so that the treatment plan can continue through the incarceration.
6. Additional Community Collaboration:
Successful long-term drug treatment requires that the treatment provider have effective linkages in place with literacy programs, social services, mental health services, and adjunctive health care services, particularly relating to HIV/AIDS and TB testing and treatment. Vocational training or retraining and employment services are an integral part of the Miami program, even to the extent that treatment services are made available at the local community college.
Summary
The design, implementation, and administration of these unique elements will provide a creative challenge for all jurisdictions seeking to develop successful Drug Courts. New and unique services and collaborative arrangements will be discovered, and communities will be rewarded not only through savings to their criminal justice, public health, and social service delivery systems, but also in the knowledge that they have made positive steps toward providing the tools of recovery to those suffering from addiction so that they may re-enter the community as productive, self-supporting citizens.
References
Ackerman, Ruth (1994), "Auricular Acupuncture Treatment for Chemical Dependency: A Literature Review," in Alex Brumbaugh, Transformation and Recovery: A Guide for the Design and Development of Acupuncture-Based Chemical Dependency Treatment Programs, Santa Barbara: Stillpoint Press.
Brumbaugh, Alex (1993), "Acupuncture: New Perspectives in Chemical Dependency Treatment" (Journal of Substance Abuse Treatment, V10 No1, pp 35-43).
Brumbaugh, Alex (November/December, 1993), "Acupuncture as a Foundation for Treatment Services" (Addiction and Recovery, pp 26-28).
Gostin, Lawrence (1991), "Compulsory Treatment for Drug-Dependent Persons: Justification for a Public Health Approach to Drug Dependence" (Milbank Quarterly, v.69, n4, Winter, p. 561).
Grossman, Deborah (1992), National Institute of Drug Abuse, personal interview.
Konefal, Janet (1990), "Acupuncture Services Mid-Year Progress Report," (available from the University of Miami School of Medicine, Department of Psychiatry, P.O. Box 016069, Miami, FL 33101).
National Institute of Justice (June, 1993), "Miami’s Drug Court: A Different Approach," U.S. Department of Justice, Office of Justice Programs, NIJ: NCJ 142412.
Puccio, Paul S. (1991), "Acupuncture Detoxification and Relapse Service: A Concept Paper," New York State Division of Substance Abuse Services.
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