How Drug Courts Work: Balancing Punishment and Treatment

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A drug court moves a criminal case onto a treatment track. A judge works with a team of lawyers and treatment professionals to supervise the participant’s recovery, and successful completion may bring dismissed or reduced charges.

The treatment comes with penalties, and the terms differ from court to court. San Francisco’s drug court can use jail time as a sanction for breaking program rules, even as it offers counseling and other treatment services. Anyone offered a place, or helping a relative decide, needs to know what the court requires at entry, what a setback can cost and what graduation does to the criminal case.

Treatment becomes part of the criminal case

A drug court team can include a judge, prosecutor, defense attorney, community supervision officers, social workers and treatment professionals. The federal Bureau of Justice Assistance supports state, local and tribal treatment courts. Programs vary in whom they serve, how they are designed and the resources available for treatment. A court’s written agreement and any participant handbook describe the actual obligations.

Adult drug courts deal with people charged with or convicted of crimes; juvenile programs serve youths in juvenile justice, and family programs address parents with pending child-welfare cases involving substance dependency. This article covers the bargain in adult criminal courts; a family case is a different legal proceeding with different consequences.

Getting in means understanding the legal bargain

All Rise, the group also known as the National Association of Drug Court Professionals, publishes best practice standards for treatment courts. It recommends that the courts serve high-risk and high-need people: those at significant risk of committing a new crime or of failing a less intensive option like probation, who also have substantial treatment needs. Its standards describe those needs as a moderate to severe substance use disorder with features such as persistent cravings, withdrawal or difficulty controlling use. This is a recommendation for designing programs; a diagnosis alone does not entitle anyone to admission.

New Jersey calls its drug court program Recovery Court. Its brochure describes both a legal review and a clinical assessment, excludes people with prior convictions or pending charges for violent offenses, and notes that other exclusions also apply. Adult drug courts funded by Justice Department grants cannot use those grant funds to include people with prior or current violent offenses. A funding restriction and a local admission rule are different things.

Defense attorneys, judges, prosecutors, probation officers or others may refer someone to drug court, according to the Government Accountability Office (GAO). New Jersey publishes a Recovery Court application that includes signatures for the applicant and defense attorney. Ask the defense attorney which rules govern the particular court, how referral and screening work, and whether the case has a deadline.

Adult drug courts admit people at different points in a criminal case, and GAO describes two models, which some courts blend. In the deferred-prosecution model, a defendant enters treatment without first entering a plea, and the judge puts prosecution on hold. Participants waive trial rights, and unsuccessful completion returns their charges to the ordinary adjudication process, where the criminal case is decided. Successful completion may bring dismissal, reduced charges or an end to prosecution.

In the post-adjudication model, a defendant pleads guilty or has already been convicted before entering drug court, and sentencing is deferred during participation. Treatment progress then factors into the sentencing decision. The model a court uses determines whether a guilty plea or conviction comes before treatment.

Whether participation is voluntary depends on the court. San Francisco’s participant handbook calls its program voluntary and says a person may leave and return to criminal court. New Jersey’s brochure says eligible defendants can be required to enter Recovery Court even without a voluntary application. Do not assume every treatment court asks for the same things: get separate answers on whether participation is voluntary, whether a guilty plea is required and which trial rights are waived.

The court supervises a treatment plan

New Jersey requires treatment sessions, random substance-use tests, regular meetings with probation officers and frequent appearances before the Recovery Court judge. Its brochure says clinical treatment generally lasts one to two years. That figure covers treatment; it is not a promise that every legal obligation ends when treatment does.

San Francisco combines judicial status hearings with case management, testing and counseling, and can provide mental-health treatment, education or vocational services and supportive housing. San Francisco’s program page describes successful completion as generally taking 10 to 24 months.

San Francisco’s handbook says participants must make restitution payments to compensate victims, or pay fines and fees, if required. One handbook is not a national price list, so ask the local program for an itemized account of court costs, treatment charges and financial conditions. All Rise recommends setting financial conditions according to ability to pay and revisiting them when circumstances change. It also says inability to pay fees, restitution or other costs should not by itself prevent program completion.

GAO’s 2023 report identifies housing and transportation as barriers to participation, alongside criminal-record restrictions and mental-health needs. Ask how the program handles transportation, work conflicts and access to the services in the treatment plan before agreeing to its schedule.

Medication decisions have medical and legal safeguards

Justice Department guidance says the Americans with Disabilities Act, or ADA, protects people whose opioid use disorder is a disability if they are in a supervised treatment program and are not currently using drugs illegally. Under that guidance, taking medication under the supervision of a licensed health care professional is not illegal drug use. On January 31, 2024, Pennsylvania’s Unified Judicial System settled a Justice Department lawsuit alleging that its courts violated the ADA by limiting or prohibiting lawfully prescribed medication for opioid use disorder among people under court supervision. The Pennsylvania court system agreed to pay $100,000 and encourage its component courts to adopt policies allowing that prescribed medication. A settlement is an agreement, not a court finding that the policies broke the law.

All Rise’s standards say medical practitioners should determine the need for addiction medication, its choice and dose, how long it continues, and whether it is reduced or stopped. Under the standards, participants sign a release that lets their prescriber tell the court team about their progress in treatment and response to the medication. If a court restricts a prescribed medication, raise it with defense counsel and the prescribing clinician, and ask for the court’s written policy and the medical basis for the decision.

A setback can bring help, sanctions or removal

San Francisco describes graduated sanctions that can include writing an essay, community service or jail time. A sanction is a penalty imposed by the court, which is different from a clinical adjustment to a person’s treatment.

All Rise says a recurrence of symptoms can make abstinence a longer-term goal again; in that circumstance, substance-use sanctions should be withheld and services adjusted to the person’s clinical stability. The recommendation asks the court to distinguish a treatment problem from an obligation the participant can meet but is not meeting. It does not establish that every local court responds to a positive test in that way.

All Rise recommends against jail sanctions for substance use before a participant is psychosocially stable and in early remission. Psychosocial stability includes stable housing and reliable transportation. The standards define early remission as at least 90 days without symptoms that interfere with attending sessions, benefiting from treatment and avoiding substance use.

The standards also recommend that any jail sanction last no more than three to six days. Before one is imposed, they call for notice of the grounds, help from defense counsel, a reasonable opportunity to present or challenge relevant information, and a clear explanation of the judge’s decision. These are professional recommendations; ask counsel how the court’s rules and applicable law protect a participant facing a sanction or removal.

San Francisco’s handbook also lists termination from drug court among possible sanctions. Leaving treatment court does not erase the criminal case. New Jersey places people in Recovery Court under its special probation statute. If a court revokes that probation, it weighs the sentencing factors again and imposes any sentence that could have been imposed, or was required, for the original offense. If that sentence includes incarceration, the defendant receives credit for custody and residential treatment time. Ask what conduct can lead to removal, whether a hearing is available, and what happens to the original charge, plea or sentence if the program ends unsuccessfully.

Graduation has a specific local legal result

San Francisco’s handbook requires participants to complete all four phases, follow treatment and testing requirements, remain arrest free, and stop using drugs and alcohol to graduate. The handbook also requires a petition for graduation at least four weeks before the requested date; a participant found eligible then attends an exit seminar with an aftercare plan and graduates. San Francisco’s program page says successful completion ends probation or results in dismissed charges.

New Jersey says eligible graduates can have their records expunged, but expressly warns that not every graduate is eligible and expungement is not guaranteed. Dismissal, a reduced sentence and a cleared record are not the same promise. Ask whether an additional filing is needed and which records or convictions the completion agreement actually addresses.

What the evidence and the critics say

The National Institute of Justice funded a multisite evaluation of adult drug courts that was carried out between 2005 and 2010 and published in November 2011. It compared 1,156 drug-court participants with 625 people outside drug court and found less reported drug use and crime, fewer positive tests and fewer rearrests among participants. The effects were larger among participants with more serious prior drug use and criminal histories.

That evaluation estimated an average net benefit of $5,680 to $6,208 per participant, a range that depends on what the researchers assumed about participants’ income. Those figures describe a dated study, not guaranteed savings for every court operating today.

In 2011, GAO reviewed the evidence on adult drug courts and found participation generally associated with lower repeat offending. In evaluations covering 32 programs, participants were generally less likely to be rearrested than comparison groups, and the difference was statistically significant for 18 of the programs; cost-benefit analyses showed mixed results.

All Rise argues that adult drug courts join public health and public safety by connecting people with individualized treatment and recovery support. It says the courts are most successful with high-risk, high-need people who are unlikely to stay in services voluntarily long enough to benefit.

Critics include the Drug Policy Alliance, whose March 21, 2011 report, “Drug Courts Are Not the Answer,” argued that drug courts may not reduce incarceration, improve public safety or save money compared with the purely punitive approach they replace. The report called for reducing the criminal justice system’s role in responding to drug use by expanding health approaches such as harm reduction and drug treatment and working toward removing criminal penalties for drug use. In its September 30, 2024 report, the alliance calls for investment in voluntary treatment, with services available when people are ready for them, without unaffordable costs or preconditions. The report warns that participants may serve more time behind bars than if they had accepted ordinary sentencing, because drug courts use incarceration for failing a drug test or missing an appointment.

San Francisco’s jail sanctions and New Jersey’s revocation rule show that a treatment court can still lead to incarceration. They do not show how often participants spend longer in custody than they otherwise would.

The dispute has two parts: whether drug courts improve outcomes compared with ordinary case processing, and whether criminal courts should be the gateway to treatment at all. Evaluations bear on the first; they cannot settle the second. For an individual defendant, the relevant comparison is the actual treatment-court agreement against the other legal options in that case.

Check the terms before making the decision

The National Institute of Justice points readers to the National Drug Court Resource Center’s database to find a court. Then get the local court’s participant handbook, written policies and proposed agreement, and go through them with defense counsel.