The Emergence of Drug Courts in Response to the War on Drugs

Article Overview:

The National Association of Drug Court Professionals explains that drug courts are specialized court systems that tie together a number of institutions – judiciary, prosecution, defense, probation, police, mental health, social services, and treatment – to rehabilitate nonviolent drug offenders with the aim of keeping such people out of prison (or reducing their sentences) and preparing them to re-enter society.

In 1971, President Richard Nixon declared a War on Drugs against what he called the number one public health crisis in America. For the next two decades, the presidential administrations of Ronald Reagan and Bill Clinton championed a “tough on crime” stance that was sure to crack the flow and spread of illegal drugs, once and for all. But with contraband still flooding American cities, and prisons bursting at the seams, something had gone wrong.

The relatively recent emergence of drug courts in response to the War on Drugs shows that even as the decades-old approach to throwing money at the problem and people in jail has collapsed, a new way of thinking may finally turn the tide. 

Texas’s Turnover

Alot has changed since 1994, when California’s legislature passed the biggest “Three Strikes”-type law in America, which imposed a minimum sentence of 25 years to life on people who broke the law for the third time. In 2014, the Pew Research Project pointed out that violent crime has fallen, the attitude toward drugs has become more culturally liberal, and the effects of the Great Recession have made voters (and, therefore, politicians) more conscious of cutting costs wherever possible.1

Texas spent $2.3 billion on 108,000 prison beds between 1983 and 1997

The expense of housing a massive prison population has been one of the key drivers in individual states looking to move away from the era of zero tolerance and merciless mandatory prison sentences for even the most minute of infractions. For example, Texas spent $2.3 billion on 108,000 prison beds between 1983 and 1997. Between 1985 and 2005, Texas added 114,000 inmates to its prison population, giving it the second-highest incarceration rate in the country. Prisoners were forced to sleep on the floor; state officials had to shuffle inmates from one facility to another, and even released some convicts early, serving drastically reduced sentences because they had to make way for an influx of new inmates.2

In 2014, Perry was presented with the National Award for Criminal Justice Reform for his work in opening 136 drug courts

By 2007, the Lone Star State had run out of space to house prisoners, prompting the Texas Department of Criminal Justice to request $900 million to build more prisons and cover costs of existing facilities.

Today, however, Texas is credited with leading the charge on drug sentencing and prison reform. That is largely due to the efforts of former-Governor Rick Perry. The Globe News Wire writes that when Perry was elected in 2000, Texas had only seven drug courts. In 2014, Perry was presented with the National Award for Criminal Justice Reform by the National Association of Drug Court Professionals for his work in opening 136 drug courts, and 15 more courts that offered specialized services for US Army veterans (whose combination of combat-related stress disorders and substance abuse had led them to break the law).3,4

The effects, say the Daily Beast, are that Texas has saved “billions of dollars” and “dramatically” reduced crime rates in one of the biggest states in the country.

Arkansas’s Alternative

Arkansas experienced a similar boom in its prison population. Between 1990 and 2010, costs related to incarceration rose by almost 80 percent, prompting the state to come up with better drug laws. The results were the reduction in sentences for drug users and implementing an incentive system for them into probation and alternatives to prison.

In 31 states, says the Pew Research Center, policy changes like the ones enacted in Arkansas and Texas have not only led to lower imprisonment rates, but also to lower crime rates. From 2007 to 2012, the overall rate of state imprisonment dropped from 447 sentenced prisoners per 100,000 population to 413 per 100,000 population.

And to Pew’s point about how states are doing a better job countering the traditional approach to the War on Drugs, the federal imprisonment rate increased between 2007 and 2012, going from 59 sentenced prisoners per 100,000 to 62 per 100,000.

Drug Courts

The National Association of Drug Court Professionals explains that drug courts are specialized court systems that tie together a number of institutions – judiciary, prosecution, defense, probation, police, mental health, social services, and treatment – to rehabilitate nonviolent drug offenders with the aim of keeping such people out of prison (or reducing their sentences) and preparing them to re-enter society. In return, the offender will participate in a program approved by the court, which will account for a certain portion of the sentence.5

An offender is not required to participate in drug courts, but the option of submitting to the court’s plan, and getting a DUI or possession charge expunged, is preferable to getting a prison sentence and criminal record. Once an offender commits to a program, the treatment sentence lasts an average of 15 months. This entails attending therapy sessions and group meetings, abstaining from drugs or alcohol, and consenting to random (and possibly frequent) testing to ensure sobriety. The person will have to make frequent court appearances to update the presiding judge on the progress of the program and to inform the court of any significant and relevant life developments. There is typically a community service component as well.

Very Tough Love

Regular and demonstrable compliance with the court’s plan might result in rewards and a reduced sentence. However, infractions will be met with loss of privileges and more punitive measures, ranging from weekend jail time (spending alternate weekends, or even every weekend, in jail), to losing the protection of the drug court and being transferred to a criminal jurisdiction, at the judge’s discretion. Calling it “very tough love,” This American Life profiles a person who was sentenced to 10 years in prison after she did not comply with her drug court’s standards.6

For many people, their introduction into a system that helps them deal with their substance abuse problem is usually through a court-ordered treatment program, says the National Institute on Alcohol Abuse and Alcoholism. An alcoholic or drug user might resist entreaties by their friends and family to seek rehabilitation, but the threat of legal consequences can be what it takes to get them through the door.7

Drug courts have found support from the National Institute on Drug Abuse, which writes that the threat of legal consequences is a motivator for people to see the treatment program through to its conclusion. Offenders who enter treatment programs as the result of a court mandate have outcomes that are comparable to people who enter treatment of their own volition. In some cases, the outcomes are even better.8

To that point, the National Association of Drug Court Professionals says that when it comes to people who broke the law as a result of their drug or alcohol problem, programs that are mandated by a court have the greatest effect in treating those offenders.9 The association writes that drug courts reduce the rate of substance abuse and crime, and save lives and money.

A study by the White House’s Office of National Drug Control Policy found that 84 percent of people who “graduate” from drug court went one full year before being arrested for a serious crime, and 72.5 percent of graduates had no arrest within two years of completing their treatment.10

Drug courts are 60 percent more likely to keep nonviolent, low-level offenders in treatment long enough for them to reap the benefits of therapy and rehabilitation. On the other hand, 70 percent of offenders who do not have the supervision of a judge, and who are not held accountable to a program, leave treatment before its conclusion.

84 percent of people who “graduate” from drug court went one full year before being arrested for a serious crime

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The Marijuana Momentum

The successful implementation of the drug court philosophy is very suggestive that the War on Drugs, as it has been fought since it was declared, has been lost. A national survey conducted by the Pew Research Center found that 67 percent of Americans wanted the government to focus more on providing treatment for illegal drug users than on prosecuting them. Only 26 percent believed that prosecution was the way to go.11

Developing societal attitudes toward marijuana may be a driver behind the numbers. “By wide margins,” writes Pew, marijuana is considered to be less harmful than alcohol, in terms of both individual health and public safety.

Across partisan lines – Republicans by 69 percent, Democrats by 79 percent – survey respondents felt that people who are convicted of “possessing small amounts of marijuana” should not be sentenced to any jail time.

Public discontent about the War on Drugs has been growing for some time. When Gallup asked the public if they favored the legalization of marijuana in 1969, two years before Richard Nixon’s declaration, just 12 percent of respondents answered in the affirmative. When the question was asked again in 2013, 58 percent of Americans believed that recreational marijuana use should be legalized.12 The issue is such that in March 2015, Newsweek magazine wrote that the following year’s US presidential elections would be defined (and possibly even decided) by how the nominees respond to questions on the regulation of marijuana and what that means for how the government responds to drug problems.13

Political Support

To that point, the candidates for elections made drug and sentencing reforms one of their talking points on the campaign trail. While firmly opposing any measure of decriminalizing cannabis, Chris Christie of New Jersey said that the War on Drugs had been an “abject failure.”14 After bringing up the topic in her 2008 bid for the Democratic nomination (in the form of focusing less on prosecution and punishment, and more toward drug courts for nonviolent offenders), Hillary Clinton established mental health and drug treatment policies as significant factors in her vision for a 2016 presidential run.15,16

Rick Santorum of Pennsylvania suspended his presidential campaign in February 2016, but the hardline Republican senator also said his previous support of the zero-tolerance policies of the War on Drugs had given way to preferring to reform the criminal justice system and not adding to the already high rates of incarceration among drug offenders.17

Rand Paul, another former 2016 presidential candidate, pointed at the mandatory minimum sentencing effects of the War on Drugs as the reason why millions of families across the United States were broken up. Paul sponsored RESET, the Reclassification to Ensure Smarter and Equal Treatment bill, which reclassifies minor drug offenses to a misdemeanor down from a felony, and coauthored the Justice Safety Valve Act, which gives judges increased discretion in deciding whether the mandatory minimum sentence might or might not be an appropriate decision.18

It’s not just presidential candidates who have thrown their support behind reforming the criminal justice system on the topic of drug abuse. US News & World Report writes that the Obama administration has “wholeheartedly embraced” the drug court system, sending Gil Kerlikowske, the former director of the Office of National Drug Control Policy to a conference hosted by the National Association of Drug Court Professionals. Kerlikowske spoke highly of the drug court system, saying that “more and more people are realizing that they can turn their lives around” – something that could never be said of the zero-tolerance policies of the War on Drugs.19

Drug Courts vs. the War on Drugs

The change of attitude was hailed by Minnesota Public Radio in April 2016 as a sign that “the War on Drugs hasn’t worked.” Quoting a New York Times editorial on how zero-tolerance policies inordinately targeted low-income individuals and people of color, MPR praised the drug court system in Ohio, for encouraging users to seek treatment and rehabilitation instead of prison (and a “life-ruining felony” record). MPR also mentions that Minnesota itself has used drug courts for a number of years, with success.20

But if drug courts have been used successfully, then the opposite side of the coin is the failure of the War on Drugs that has led to drug courts responding in the way they have. When Richard Nixon identified narcotics as the number one public health crisis in America, it set the stage for a complex framework of prohibiting drugs, offering military aid to countries that were fighting smuggling rings, intervening militaristically where necessary, and devoting federal resources to the prevention of new addicts and treatment of people with addiction problems.21

A Tremendous Failure in Every Way Possible

The goals were lofty, but the results of the past 30 years led the Huffington Post (and dozens of other outlets) to write that “the War on Drugs has failed in every way possible.” The fight has cost the United States $1 trillion in total and $51 billion every year.22 Empowering law enforcement to fight one of the fronts of the war has led to the United States imprisoning more people than any other country in the world (even with crime rates falling).23 The American Psychological Association writes that this has made America the “incarceration nation” of world, being home to 5 percent of the planet’s population and 25 percent of the planet’s prisoners, primarily as a result of attempts to make a dent in the drug trade – a dent that the APA says is questionable at best, and, at worst, nonexistent.24

Nonetheless, says the Post, addiction rates have not been affected, overdose rates have never been higher, and drugs are even more affordable than they were.25

The US. is home to 5 percent of the planet’s population and 25 percent of the planet’s prisoners

Disproportionate Targeting

And it’s not just the media. In October 2015, the police chiefs of Los Angeles, Houston, and Chicago (and with support from the absent chief of police of New York City) called the War on Drugs a “tremendous failure” before they met with Barack Obama to talk about new initiatives to reduce crime and incarceration. Vice magazine writes that the sentiment is officially shared by 125 other prosecutors, sheriffs, attorneys general, and other law enforcement figures across the United States.26

Specifically, the chiefs spoke of how the War on Drugs has made American cities less safe by targeting those with low income levels, the uneducated, people with no job skills or prospects, and ethnic groups.

It’s not the first time that the War on Drugs campaign’s disproportionate targeting of minority groups has been noted, and there is a good reason for that. In 1994 (and reported on in March 2016), the former domestic policy chief of the Nixon administration admitted that Nixon’s ulterior goal with the War on Drugs declaration was to undermine his political enemies – specifically, black people and opponents of the Vietnam War.27

Specifically, the chiefs spoke of how the War on Drugs has made American cities less safe by targeting those with low income levels, the uneducated, people with no job skills or prospects, and ethnic groups.

Systemic Failure

But while Nixon had one eye on suppressing domestic rivals, the effects of the War on Drugs have been felt across the world. In 2013, the British Journal of Medicine published the results of a study that found that since 1990, prices of drugs have fallen, but their chemical purity has increased – despite literally tens of billions of dollars being spent every year to stop the industry. The authors of the study concluded their report by saying that “expanding efforts at controlling the global illegal drug market through law enforcement are failing.”28

Writing about the “systematic failure of policy” of the War on Drugs, The Guardian notes that since obtaining exact figures as to the nature of such industries is impossible, the actual figures are likely much higher than what Global Financial Integrity calculated.30

Similarly, Global Financial Integrity reported in 2011 that the drug trade makes up a lion’s share of the global market for illegal activities. Of that $650 billion pot:

  • Drugs accounted for $320 billion
  • Counterfeiting accounted for $250 billion
  • Human trafficking accounted for $31.6 billion29

Arresting America

In 2008, the Brookings Institution looked at the different approaches in the global fight against drugs. The United States uses the “punishment model,” which views that incarceration is the best way to deter drug use; Italy and Spain favor the “depenalization model,” where narcotics are made illegal, but personal use within established amounts of possession is not prosecuted; and the “decriminalization model” of the Netherlands, where cannabis is legally sold for personal use.

Of the three models, Brookings was most critical of the United States’ model, pointing out how the rate of incarceration has “exploded” – from under 50,000 people in 1980 to 210,000 in 2015, but only a few of those prisoners have any access to drug treatment.31

In April 2016, the Portland Press Herald wrote in an op-ed that police “can’t arrest Maine out of [the] drug problem.” While referring to the opiate epidemic reaching the suburbs of Maine, the headline could easily refer to what drugs courts can do that traditional methods of hitting the drug problem cannot. As a response to what CNN called the “trillion dollar failure” of the War on Drugs, drug courts offer people a way out of the spiral that introduced them to the illegal substance market.[32] The War on Drugs, by contrast, simply locked them in a cell and threw away the key.

Research Articles


  1. Feds May Be Rethinking the Drug War, But States Have Been Leading the Way.” (April 2014). Pew Research Center. Accessed May 12, 2016.
  2. Prison Reform is Bigger in Texas.” (April 2014). The Daily Beast. Accessed May 12, 2016.
  3. Texas Governor Rick Perry Receives National Award for Criminal Justice Reform.” (April 2014). Globe News Wire. Accessed May 12, 2016.
  4. What is a Veterans Treatment Court?” (n.d). Justice for Vets. Accessed May 12, 2016.
  5. What Are Drug Courts?” (n.d) National Association of Drug Court Professionals. Accessed May 12, 2016.
  6. Very Tough Love.” (March 2015). This American Life. Accessed May 12, 2016.
  7. Court-Mandated Treatment for Convicted Drinking Drivers.” (n.d.) National Institute on Alcohol Abuse and Alcoholism. Accessed May 12, 2016.
  8. Is Legally Mandated Treatment Effective?” (April 2014). National Institute on Drug Abuse. Accessed May 12, 2016.
  9. The Verdict Is In.” (n.d.) National Association of Drug Court Professionals. Accessed May 12, 2016.
  10. “Drug Courts.” (May 2011). Office of National Drug Control Policy. Accessed May 12, 2016.
  11. America’s New Drug Policy Landscape.” (April 2014). Pew Research Center. Accessed May 12, 2016.
  12. Majority Continues to Support Pot Legalization in U.S.” (November 2014). Gallup. Accessed May 12, 2016.
  13. 2016 Will be the Marijuana Election.” (March 2015). Newsweek. Accessed May 12, 2016.
  14. “Christie, Inspired By Victims’ Parents And Bon Jovi, Signs ‘Good Samaritan’ Drug Overdose Bill.” (May 2013). Accessed May 12, 2016.
  15. Transcript of the Third Democratic Primary Presidential Debate.” (June 2007). The New York Times. Accessed May 12, 2016.
  16. Mental Health, Drug Treatment Will Be a ‘Big Part’ of Clinton’s Campaign.” (April 2015). Buzzfeed. Accessed May 12, 2016.
  17. Is Potential 2016 Candidate Rick Santorum on the Same Page as Hillary Clinton on Criminal Justice Reform?” (April 2015). Fox News Radio. Accessed May 12, 2016.
  18. Here’s Rand Paul’s Plan to Reform Drug Laws.” (July 2014). Business Insider. Accessed May 12, 2016.
  19. Obama Administration Pushes Drug Courts.” (July 2013). US News & World Report. Accessed May 12, 2016.
  20. The War on Drugs Hasn’t Worked. Time to Change Attitudes.” (April 2016). Minnesota Public Radio. Accessed May 12, 2016.
  21. The War on Drugs: How President Nixon Tied Addiction to Crime.” (March 2012). The Atlantic. Accessed May 13, 2016.
  22. Drug War Statistics.” (n.d.) Drug Policy Alliance. Accessed May 13, 2016.
  23. How Republicans Stopped Being “Tough on Crime.”” (October 2014). National Journal. Accessed May 13, 2016.
  24. Incarceration Nation.” (October 2014). American Psychological Association. Accessed May 13, 2016.
  25. The War on Drugs Has Failed, So Let’s Shut It Down.” (August 2014). The Huffington Post. Accessed May 13, 2016.
  26. America’s Top Cops Just Called the War on Drugs “A Tremendous Failure.”” (October 2015). Vice. Accessed May 13, 2016.’
  27. “Nixon Official: Real Reason For The Drug War Was To Criminalize Black People And Hippies.” (March 2016). Vox. Accessed May 13, 2016.
  28. “The Temporal Relationship Between Drug Supply Indicators: An Audit Of International Government Surveillance Systems.” (2013). British Journal of Medicine. Accessed May 13, 2016.
  29. Transnational Crime in the Developing World.” (February 2011). Global Financial Integrity. Accessed May 13, 2016.
  30. “The ‘War On Drugs’ In Numbers: A Systematic Failure Of Policy.” (April 2016). The Guardian. Accessed May 13, 2016.
  31. “Counternarcotics Policy Overview: Global Trends & Strategies.” (October 2008). Brookings Institution. Accessed May 13, 2016.
  32. War on Drugs a Trillion Dollar Failure.” (December 2012). CNN. Accessed May 13, 2016