Rethinking Drug Courts: Restorative Justice as a Response to Racial Injustice

Since their first appearance in Miami in 1989, specialized drug treatment courts have grown phenomenally popular, with nearly 2,000 now in existence. Although their effectiveness is a matter of debate among academics, (2) their political appeal remains strong. This popularity stems in large part from the unpopularity of what is generally seen as the principal policy alternative, that is, a continued reliance on the traditional criminal justice responses to drug offenses--or, more colloquially, on the "war on drugs." Public support for the war flagged as it became clear that many drug offenders were unresponsive to threats of harsh sentences, (3) prison populations (and hence prison budgets) were escalating wildly, (4) and many poor minority communities were being devastated by the collateral damage. (5) Against this backdrop, it is easy to understand the appeal of a reform that promises to divert drug offenders from prison warehousing into court-supervised treatment: it would seem that drug courts could hardly help but be an improvement on a dismal status quo. (6) Recent events in Milwaukee, Wisconsin, nicely illustrate the political dynamic propelling the growth of drug courts, and, in particular, a curious link between drug courts and racial justice concerns. Pressure has been growing in recent years for Wisconsin to address glaring racial disparities in its prison system, which is ranked as sixth-worst in the nation. (7) The Governor appointed a blue-ribbon Commission on Reducing Racial Disparities to study the problem in 2007, and the Commission, in turn, recommended greater use of community-based sentencing alternatives, including drug treatment courts. (8) Released in February 2008, the Commission's report gained even greater salience following the May publication of two studies by national organizations that highlighted the racial disparities in Wisconsin and Milwaukee. In one report, Human Rights Watch determined that blacks in Wisconsin are forty-two times more likely than whites to receive a prison term for a drug conviction--the highest such disparity in the nation. (9) In the second report, The Sentencing Project determined that blacks in Milwaukee are seven times more likely than whites to be arrested for a drug offense--the second-highest such disparity among the forty-three major American cities analyzed. (10) The May reports received considerable coverage in the local press (11) and prompted a swift response by politicians. Milwaukee County Common Council President Willie Hines, decrying unequal treatment in the criminal justice system, discussed the creation of a drug treatment court in Milwaukee as a possible solution. (12) Shortly thereafter, at a joint press conference responding to the May reports, Governor Jim Doyle and Milwaukee County District Attorney John Chisholm endorsed this solution, with Chisholm vowing that Milwaukee would definitely get a drug treatment court within six months. (13) The sequence demonstrates how drug treatment courts have become the generic policy response of choice to dissatisfaction with the war on drugs. (14) However, as other commentators have argued, the turn to drug courts carries with it sufficient risks and costs that their superiority over traditional law enforcement approaches should not be taken for granted. (15) The general critique of drug treatment courts has been made well elsewhere and need not be repeated here. Rather, my purpose, and original contribution, in this Article is twofold. First, I will focus on one particular area in which drug treatment courts are likely to disappoint expectations, the area (it so happens) that has provided much of the impetus for the implementation of such a court in Milwaukee--that is, the area of racial disparities in the criminal justice system. In purely quantitative terms, drug courts are unlikely to reduce these disparities--indeed, if anything, there is reason to believe that drug courts may exacerbate them. …