Godwin has always wielded his sentencing discretion--jail time versus probation--with supreme authority.
For all his tough Texas talk, however, Godwin is going to have to change his ways. The Texas legislature has passed a new law that tells him--and other judges throughout the state--precisely what to do with drug defendants: Put them in rehab. The law requires all counties in the state to set up drug courts, a special judicial regime that has been spreading rapidly throughout the country for the past decade. Rather than sentence drug offenders to prison or probation, drug courts put users in treatment programs. If they can become drug free, their drug-use conviction is often cleared. If they can't, a judge can lock them up.
When you ask Judge Stephen Manley of the Superior Court of Santa Clara County, California, about the effectiveness of the system, his answer is unequivocal: "Drug courts work." For Manley, that means they keep offenders out of prison and from continuing to use drugs. California has been operating drug courts for more than a decade--the nation's second such court was established in Oakland in 1991.
But many judges--and Godwin is one of them--oppose the drug-court system. They view the policy behind such courts as wrongheaded and the effectiveness of the approach as unproven. Moreover, they see the system as being a huge unfunded and unaffordable mandate.
Nonetheless, when it comes to drug-abuse problems, drug courts are clearly a solution favored by state lawmakers. Just this year, 18 state legislatures debated bills to modify, augment or establish drug courts in local jurisdictions. The total number of states with some form of drug court or a plan to implement one now stands, with the recent addition of Texas, at 49. And as judges like Godwin and officials in court systems like Harris County are told to put the additional program in place, the whole issue of drug sentencing and the efficacy of drug treatment is being aired again, with the ways and costs of implementing drug courts a secondary but nonetheless hot- button issue.
Drug courts have been evolving over the past decade as state and local governments, in the wake of tightened drug laws passed during the 1970s and '80s, try to control the burgeoning number of drug cases and prisoners in their jurisdictions. By 1990, drug prosecutions accounted for one-third of all state felony prosecutions.
New York City was among the first places where drug cases were placed on separate dockets. With the strict Rockefeller Drug Laws of the early 1970s affecting caseloads, New York City created the Narcotics Courts to handle the increasing number of drug cases. The courts offered no treatment component and were established, says Denver District Court Judge Morris Hoffman, an historian of drug courts, as "case management devices."
The first drug court to offer treatment instead of imprisonment was set up in Florida in 1989. Dade County placed non-violent offenders in one-year diversion and rehabilitation programs. As other jurisdictions developed drug courts, they adapted approaches from both models so that today, most of the 450 to 500 drug courts operating in the U.S. are hybrids of the case management and treatment models.
Texas legislators are relative latecomers to drug-court mandates. But the new law, which will take effect September 1, is comprehensive: It requires every county in the state to start a drug court and meet minimum enrollment figures in treatment programs. Lawmakers were serious about the latter requirement: If counties don't meet the minimums, the state can take away millions of dollars that counties use to pay for criminal justice services.
Godwin says that, by and large, judges in his county were not asked for comment when legislators debated the drug court bill because their position on it was known to be lukewarm at best. But Godwin is hot- under-the-collar against them. And one major reason is that in his court--as in many others in his state--first-time drug offenders are generally put on probation, complete their sentences and are not seen again in the corrections system. "We're already doing what the drug courts do," he says.
Nor is he convinced that drug courts in other states have been more effective than his approach has been.
One problem in assessing success is that there does not seem to be any common definition of what success really is. One measure is whether or not defendants stop using drugs; another is the rate of recidivism. California's Manley, who also serves as the president of the California Association of Drug Court Professionals, points to reports from the state's Legislative Affairs Office and the U.S. General Accounting Office to back up his belief that drug courts not only cut down on recidivism but produce a whole host of other benefits for the corrections system as a whole--such as cutting down on the amount of time and space drug offenders take up in jails and prisons.
The LAO report, for instance, found that from January 2000 to March 2001, 1,489 people graduated from court-mandated treatment in the state. Keeping them out of incarceration saved 79,078 prison days and 199,552 jail days.
The GAO study, published in 1997, looked at the issue of recidivism rates among drug-court graduates and found that re-arrest rates in that population were low. However, the report was not all that positive in its affirmation of drug courts. GAO analysts reported that they "could not draw any firm conclusions on the overall impact of drug court programs." Complicating such a determination, the report said, was the fact that so many of the programs differed from one another in their scope, methods and objectives. For instance, more than half of the drug courts studied didn't track the status of program participants after they left treatment, and 70 percent made no comparison of arrest rates of participants to non-participants after the conclusion of the treatment program. If issues raised about the efficacy of drug court programs are to be addressed, "following up on participants and non-participants for some period after they leave the program to find out whether they committed new crimes or relapsed into drug use would be important," the report concluded.
With no solid research on drug courts, supporters and critics continue to debate the merits and the legal prerogative to set up the courts. And that situation is exactly what makes Denver's Hoffman uneasy about the momentum behind the wholesale creation of the courts. "Perhaps the most startling thing about the drug court phenomenon," he says, "is that they have so quickly become fixtures of our jurisprudence in the absence of satisfying empirical evidence that they actually work."
Aside from whether drug courts work, there are questions about mandated treatment and who will pay for it, issues that are surfacing in both Texas, where drug courts are being set up, and California, where they have long been in existence.
In Texas, judges are under the gun to enroll offenders in treatment programs. And the state quota--Harris County has to place 200 participants in the program in the next few years--should be do-able. But Godwin doesn't want to move defendants into treatment just to make his drug-court statistics look impressive--when he can be just as successful using probation to keep recidivism down.
There's also a fundamental issue of legal authority involved in the Texas law. The bill delegates criminal court authority to a commissioners court, which is really not a court at all but an executive body that would be given the power to tell the counties to set up the courts. By law, the Harris County district attorney has the sole ability to charge and prosecute cases. Therefore the drug-court law, Godwin says, encroaches upon his legal purview as well as the judicial discretion of the courts as a whole.
But the same authority that the district attorney and judges have could allow for a back door escape from the law. Prosecutors, in theory, could refuse to bring any cases before the drug courts. A presiding judge could just sentence defendants to prison terms or probation programs, forgoing the treatment process altogether.
The ax over any judge's head, of course, is the cut-off of state funding. While Godwin doesn't see that happening, he's not pressing his luck, either. At the moment, he is "cobbling together" the personnel he'll need to run a drug court in Harris County. He's also trying to hash out what it will really cost. Proponents of the law have told him yearly costs will be in the range of $200,000 to $300,000. Ever the skeptic, Godwin says it should cost precisely what it takes to run any normal district court for the same time period: about $1 million. The lower figures, he says, are "incredibly underestimating" what it's going to take to make the system work.
In the meantime, anti-drug-court points are still being made by the likes of Chuck Rosenthal, the Harris County district attorney, who calls the drug courts an unfunded mandate. Rosenthal looked at other drug courts around the country and found no significant difference between their success rates and those of Harris County's probation program. "I'm not sure the drug courts are worth the expenditure," Rosenthal says.
The Texas legislature has suggested that the county seek federal grants to pay for the new courts. In 1994, Congress authorized the U.S. Attorney General to make grants and loans to state and local governments to set up drug courts, and then-Attorney General Janet Reno established the Drug Courts Program Office to dole out the money.
California's treatment debate has a different twist. Although 47 of the state's 58 counties already have drug courts, voters passed Proposition 36 last November, which calls for all first- and second- time non-violent drug defendants to be diverted into treatment programs. The county drug courts were serving a small portion of the substance-abusing population--only about 7 percent. Now, with the implementation of Proposition 36, the number of offenders going into treatment programs will certainly grow, and it's questionable whether the counties can provide service for those offenders, much less pay for it.
And just like Godwin in Texas, Manley in California worries that this additional step is not taking the courts and the drug-abuse problems in the right direction. As Godwin believes that his county's existing practices were doing the job, so too Manley says California judges already had a drug-court model that worked. They were free to use their discretion on cases in deciding whether an individual should be allowed to opt for treatment as opposed to prison. But with Proposition 36, that judicial review is taken away.
Opponents of Proposition 36 said its level of intervention would strip judges of their ability to compel drug users into a sober lifestyle by taking away the threat of hard time for those who don't comply with the treatment program.
Proponents of the initiative wanted to frame the conflict as treatment being better than incarceration, says Jean Munoz, the spokeswoman for Californians United Against Drug Abuse, which ran the anti-proposition campaign. But, she argues, they failed to ask the underlying question of how effective the treatment programs already in place actually were and to set aside funds to support drug testing in rehabilitation programs.
The accusations of Munoz and her group struck supporters of Proposition 36 as entirely unjust. "As a general matter, the drug courts were something that we admired but were entirely too small," says Dave Fratello, a co-author of Proposition 36. Fratello says the system was reliant on a few motivated judges willing to go after the special funding necessary to run the programs.
California has set aside $120 million a year to fund treatment programs and drug courts over the next five years. Few think that will be enough money.
During the debate over Proposition 36, many judges joined the fight against the initiative because they felt it would destroy the drug courts. Manley is quick to point out, money issues aside, that Proposition 36 should not harm drug courts. To the contrary, the drug- court model will be the cornerstone of implementing Proposition 36.
Whatever the differences of opinion, California voters and the Texas legislature have spoken clearly on the issue. In the end, that may go a long way toward easing the tensions over drug courts and mandated treatment.
