The Drug Czar’s blog trumpets the effectiveness of Drug Court programs for felony level controlled substance defendants:
Treatment instead of Jail: How Drug Courts Save Lives: Drug courts save lives. They rescue non-violent drug offenders from incarceration and a cycle of crime by providing them with court-supervised drug treatment.
So, I assume they’ll be jumping on the decriminalization bandwagon anytime now…
Following up on my last post regarding Steven Erickson’s critique of Drug Courts, let’s look at another part of his paper “The Drug Court Fraud” and his objections:
By their very design, drug courts diminish the zealous advocacy role of defense counsel by encouraging a “treatment team” approach to drug offenders. Thus, rather than defending clients, defense attorneys are supposed to assist the court into coercing defendants into participation and reporting to the “team” whether the client has made progress on their sobriety. Besides the obvious dismissal of the attorney-client privilege, such approaches effectively eliminate the role of defense counsel as traditionally understood for centuries in American jurisprudence.
Wow. I know this is harsh, but I’ve rarely seen such hogwash from a self proclaimed expert.
First, participation in Drug Courts is 100% voluntary. Folks arrested for controlled substance violations are always free to defend themselves in criminal court. That the government threatens addicts with incarceration if they don’t enter treatment might properly be labeled coercive, but then again, that comes from the prosecutor not the defense lawyer.
Second, there is no abrogation of the attorney client privilege that I have ever seen involved in Drug Court programs. My experience is limited to the Travis County SHORT program, but I’d like to know exactly what Erickson thinks he is talking about here.
While there’s no Doctor-Patient privilege in criminal cases in Texas, the rule reads (in part):
RULE 509. PHYSICIAN-PATIENT PRIVILEGE
(b) Limited Privilege in Criminal Proceedings. There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.
Anything my client says in Drug Court regarding prior drug use is specifically made inadmissible by statute under Texas law, and I’d bet there is a similar rule in most other states. Public policy demands that users be allowed to seek treatment, without worrying that what they say will be used against them. Perhaps Erickson is unaware of this rule, despite the J.D. after his name.
Finally, yes, my role as counselor-at-law sometimes becomes just counselor when I am helping those accused of possessing various illegal substances. But I can assure you, almost all of my Austin clients are thrilled to know that there is at least the potential there to keep them out of felony court all together. After all, we can always do it the old fashioned way: go fight the case in district court.
(Also read Kim Hunt's post at Corrections Sentencing for more analysis of Erickson's paper.)
Crime and Consequences has a guest post written by Steven K. Erickson entitled “The Drug Court Fraud”. Erickson correctly criticizes the methodology used to boost statistics about the efficacy of drug courts. Some of the valid points he makes in his paper are that studies often leave out the initial drop out rate when publishing success statistics, that entry into drug courts is non-random, and that short follow up periods leave us without vitally important long term efficacy rates for these programs.
As I said, these are all valid points, when we are talking about whether or not there is a scientifically proven cause and effect between drug courts and long term sobriety. But Erickson continues:
Completion rates for many drug court studies range form 25 to 66 percent. Thus, up to 2/3 of the initial participants do not complete treatment. If this is success, I’d hate to see what failure is.
We already know what failure is, Dr. Erickson. It’s currently our only alternative to drug courts in most places: long term expensive incarceration of addicts.
So while you make admittedly valid criticisms of methodology, don’t forget that most of modern medicine is based on epidemiological studies, which as a whole suffer from many of the same flaws. Epidemiology never proves causation. And yet, in some cases it is the only available method of study.
And even if drug courts only keep 10% of controlled substance offenders out of our prison system, they are a massive success. At 33% we ought to be dancing in the streets. You don’t have to read too many stories about Drug Court successes to know they are well worth it.
For those charged in Austin with a Felony level offense possession of a controlled substance, there is often the opportunity to stay out of district court, and to have the case dismissed, if you qualify for and complete the Travis County Drug Diversion / S.H.O.R.T. program. (S.H.O.R.T. stands for System of Healthy Options for Release and Transition.)
For those seeking to learn about this program, let me tell you this: the SHORT program is no cakewalk. I often tell prospective clients that the one year they will spend completing the SHORT program is much tougher than one year of felony probation. Of course, the catch is this:
(1) you don’t get just one year of probation for a felony offense in Texas, because the minimum is two years, and many folks get somewhere between five and ten years of probation for felony drug offenses. And…
(2) probation stays on your record. If it’s deferred probation, you may be eligible for a motion for non-disclosure, but never an expunction. If you successfully complete SHORT, you can apply for an expunction, which completely wipes the arrest off of your record.
So while it may be true that SHORT is more difficult to complete than even a probation; but it’s still well worth it. When I hear clients tell me that some lawyer told them not to bother with the program, I always think that lawyer is trying to get himself a client, rather than help the person the best way they know how.
The Admission criteria for SHORT are listed here.
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