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NACDL Releases Report on U.S. Drug and Mental Health Courts

by Matt Clarke

In September 2009, the National Association of Criminal Defense Lawyers (NACDL) released a 74-page report on the state of America’s drug and mental health courts, reflecting the knowledge gleaned from over 130 expert witnesses who testified at hearings held in seven different states and questionnaires completed by 348 attorneys practicing in 40 states. The report heavily criticized drug courts in the U.S., but generally praised mental health courts.

Drug courts suffer from a lack of uniformity. The laws authorizing drug courts vary from state-to-state, county-to-county and even court-to-court within the same jurisdiction. Many drug courts reflect the personalities of the judges run-ning them, which results in a hodgepodge of procedures being used in such programs.

Drug courts generally offer to divert from prison defendants who successfully complete court-supervised drug treatment. How this is accomplished varies greatly. In some jurisdictions, the defendant may be required to plead guilty to be admitted into a drug court and may retain a criminal record even after successfully completing treatment. Other jurisdictions permit entry into the drug court before entering a plea, with the prosecution being dropped if treatment is successful.

Drug courts may also compromise the role of the defense attorney. Most drug courts have been set up without input from defense counsel, and their procedures reflect that deficiency. A defendant may be required to forego discovery or filing any other type of pre-trial motion to qualify for the drug court program. This prevents defense counsel from ascertain-ing whether the state even has a triable case before the guilty plea is entered.

Further, drug courts often exclude defense counsel from staff meetings that could result in the defendant being incar-cerated. Even if their presence is allowed, defense attorneys often do not show up for the frequent and time-consuming meetings. A defense attorney who is present at a meeting or hearing is expected to act as a member of the treatment team, a role which may compromise counsel’s duty to advance the client’s interests while preserving confidentiality.

The admission criteria for drug courts also may be biased. Many attorneys reported seeing few or no minority defen-dants in drug courts. Furthermore, many drug courts allow only the defendants most likely to succeed into the program. Indeed, the very existence of drug courts leads to police and prosecutors pursuing charges against defendants who oth-erwise might not be prosecuted due to the minor nature of their offenses. Drug courts are generally closed to repeat and serious offenders, who are most in need of the drug court’s services.

In contrast to the poor grades given to drug courts, the NACDL report was quite favorable toward the more than 150 mental health courts in the U.S. Although plagued with some of the procedural and ethical problems of the drug courts, the report noted that mental health courts often diverted defendants out of the criminal justice system and helped them receive both treatment and aftercare, reducing the recidivism rate of mental health court participants.

Both drug and mental health courts deal with an intersection of criminal law and medical treatment. Perhaps the rea-son for the greater success of mental health courts is a greater willingness to view mental health as mainly a medical is-sue while drug addiction is perceived as willful criminal behavior. If this is the case, then there is a great deal of merit in NACDL’s primary recommendation that recreational drug use be decriminalized and drug dependency be treated as a public health issue outside the criminal justice context.

Source: “America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform,” available at

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