Criminal Justice , Judicial Reform
Ryan Haynie | February 17, 2021
Four ways to improve drug courts in Oklahoma
Many Oklahoma prosecutors say they lack the tools to get people the help they need. They claim that when voters passed State Question 780, making simple drug possession a misdemeanor crime (rather than a felony crime), they interfered with prosecutors’ power to get people into drug court. The theory goes that individuals are unwilling to plead into an intensive drug court program which could take years to complete if the alternative is less than a year in jail.
Some legislators are convinced the drug court situation is so bad that they are authoring bills to roll back parts of voter-approved SQ 780. In fact, SQ 780 did not kill drug courts. But if they are being hurt, it’s because of the problematic way Oklahoma operates its drug courts. Below are four proposals to strengthen drug courts, reduce crime, send fewer people to prison, and strengthen Oklahoma’s economy.
Remove the gatekeeping function from prosecutors
Prosecutors effectively hold the keys to drug courts. Oklahoma law allows the District Attorney to object to the consideration of an offender for drug court. And if they do, “the court shall deny consideration of the offender's request for participation in the drug court program.” Why is that a problem? For too long, many prosecutors have limited entrance to drug court to those with drug offenses—but this is a mistake.
Drug courts offer intensive treatment for those who are “high risk” (frequent offenders) and “high need” (drug addicts rather than other drug users). If a drug court relies on simple possession cases for its candidates, it will probably draw a mix of high-need and low-need individuals, even though it is not designed to help the latter group. A low-need individual will actually get too much treatment in a drug court program. Think of a casual user of drugs/alcohol who gets in trouble for possession or a DUI: that person does not need the level of treatment drug courts provide.
Conversely, an offender who is charged with larceny, possession of a stolen vehicle, or domestic violence may be a great candidate for drug court. If the cause of their antisocial behavior is addiction/alcoholism, the intensive treatment offered in drug court is exactly what they need. So why are so many people talking about SQ 780 as the death knell of drug courts? Because many with simple possession charges do great in drug court and look like resounding successes. The fact they’re getting more treatment than they need and leading to inefficiencies is never discussed. Many of those people could be more efficiently treated in a diversion court program that requires less treatment. Conversely, many more serious offenders could be helped by drug court but are never given the chance.
Remove barriers to entry
Currently, Oklahoma law bars entry to drug courts if the accused is charged with a crime of violence against a person or if they have a prior violent offense within the last 10 years. At this point, it’s important to note that not all violent crimes are created equal. There’s good reason not to admit someone accused of murder into drug court—even if addiction played a role in the offense. But not every violent offense should preclude someone from access to drug court.
A former assistant district attorney told me about a case years ago in which a woman was charged with a violent felony for throwing an ashtray at her husband during a drunken dispute. The woman had two prior arrests for DUI. Because the charge was for a violent offense, she would be ineligible for drug court, but it’s pretty obvious that alcoholism is the root cause of her criminal behavior. Allowing drug court for addicts even if they have been charged with violent offenses would expand the usefulness of this successful program. Drug courts would have greater impact by treating not just those who use/abuse various substances, but also those who are prone to more violent or antisocial behavior.
Stop enhancing penalties for drug court admission
In an effort to motivate those in drug court to take the program seriously, prosecutors will often dangle a more severe punishment for failing drug court than the offender would receive for the underlying offense. For instance, an offender may be looking at a three-year sentence, but if she fails drug court could face five years in prison.
The problem with this is twofold. For starters, those who struggle with addiction don’t do well with cost-benefit analysis. The part of the brain that analyzes costs and rewards is being wrecked by drugs in the addict’s brain. In fact, that’s one reason drug court is so effective for addicts—it develops the brain’s ability to make these connections through reliable rewards and sanctions.
The second issue is some judges are prone to fail participants and send them to prison far too early in the program or for behavior that is better addressed through more moderate sanctions. This ties in to my next point.
Follow best practices from the National Association of Drug Court Professionals
This proposal is last on the list, but probably the most important. If best practices aren’t skillfully implemented by drug courts in a consistent way in every county, drug courts will not be as effective as they can—and should—be. The reason is that, contrary to what sounds logical, poor treatment is worse than no treatment at all. This is because poor treatment can lead someone to believe that treatment just doesn’t work for them. This results in the individual giving up on treatment as an option. When rewards and sanctions are out of whack, it can lead to discouragement, feeling that the system is rigged against you, and ultimately failing the program.
Ensuring best practices are skillfully implemented will require a thorough, “under-the-hood” assessment by the agency administering diversion courts—currently the Department of Mental Health and Substance Abuse Services. More oversight will be necessary, and courts—particularly those in rural counties—need to be more open to oversight and advice. Training for judges and district attorneys needs to be more frequent and better-attended. If a thorough review of a drug court doesn’t show adherence to best practices, there should be consequences for those involved (e.g., reduced funding).
Drug courts are one of the best tools in our state’s fight to become a Top 10 state. But they have to be run skillfully using best practices. And they can have an even greater impact if opened up to more people. Failure of drug court alone should never result in a greater penalty than the offender would have received had they declined to participate in drug court. As an organization that prioritizes individual initiative and personal responsibility, it is OCPA’s hope that Oklahoma will incentivize people to give treatment a chance. If done well, we all benefit.
Criminal Justice Reform Fellow
Ryan Haynie serves as the Criminal Justice Reform Fellow for the Oklahoma Council of Public Affairs. Prior to joining OCPA, he practiced law in Oklahoma City. His work included representing the criminally accused in state and federal courts. Ryan is active in the Federalist Society, serving as the Programming Director for the Oklahoma City Lawyer’s Chapter. He holds a B.B.A. from the University of Oklahoma and a J.D. from the University of Oklahoma College of Law. He and his wife, Jaclyn, live in Oklahoma City with their three children.