WOLA: Advocacy for Human Rights in the Americas


10 Dec 2018 | Commentary

Groundbreaking Report Highlights Dangers of Exporting Drug Courts to Latin America and the Caribbean

Prison populations are growing at alarming rates in Latin America and the Caribbean, driven by harsh and disproportionate drug laws. In fact, the incarceration rate for drug-related offenses in the Americas is higher than in any other continent.

Nearly thirty years ago, the United States launched drug treatment courts as an intended alternative to incarceration for people arrested for low-level drug offenses. In theory, these courts are meant to provide treatment to those who may need it, reduce prison overcrowding, and limit the human and financial costs associated with incarceration. In practice, drug courts are a costly and cumbersome intervention that has had a limited impact on reducing incarceration and may even be detrimental to alleged beneficiaries. Indeed, the OAS’s Inter-American Commission on Human Rights (IACHR) has raised concerns about the application of this model, as it applies a criminal justice rather than public health approach, and about human rights violations in some treatment centers.

To evaluate the impact and challenges of the use of drug courts, the Drugs, Security and Democracy Program of the Social Science Research Council (SSRC) recently released a groundbreaking report, Drug Courts in the Americas, documenting key findings from the United States’ experience and reviewing implementation in Latin America and the Caribbean. WOLA Senior Fellow Coletta A. Youngers was an advisor to the investigation.

Although the term “drug courts” seems to refer to a homogenous entity, it includes a variety of specialized courts that divert people charged with drug offenses—presumably associated with drug use—from incarceration to court-supervised drug treatment. The U.S. government has promoted the drug courts model abroad, particularly in Latin America and the Caribbean, where a growing number of countries are implementing them. In addition, the U.S. has partnered with the OAS’s Inter-American Drug Abuse Control Commission (CICAD) and its Drug Treatment Courts in the Americas Program, which includes training judges and prosecutors and advising countries on how to establish the courts. Currently, drug courts have been adopted in Chile, Mexico, and Costa Rica, while Argentina, Panama, the Dominican Republic, and Colombia are in a pilot phase. In the Caribbean, the model is more advanced in Bermuda, Jamaica, and the Cayman Islands while Trinidad and Tobago, Barbados, and Belize are in an initial phase.

However, evaluations of drug treatment courts have raised several concerns regarding their consequences and effectiveness in reducing incarceration, recidivism, and costs. The SSRC report presents a research review of U.S. drug courts, concluding that they have limited impact on reducing incarceration. To the contrary, “for many participants, they may have the opposite effect by increasing criminal justice supervision and subjecting those who fail to graduate to harsher penalties than they might otherwise have received, becoming an adjunct rather than an alternative to incarceration.”

In addition, the evidence does not support drug courts as an appropriate public health intervention, since judges are empowered to make treatment decisions that should be determined by health care professionals. Finally, the financial and human costs for drug court participants are steep and disproportionately burdensome for those who are most vulnerable, including poor people and racial minorities. At the same time, these courts perpetuate racial bias in the criminal justice system, ignoring that bias in the policing and prosecution of drug offenses.

The SSRC report underscores the lack of data and consistent monitoring and evaluation mechanisms to assess drug courts in most of the Latin America and Caribbean countries studied. The available data, moreover, shows that in comparison to the U.S. experience, Latin American and the Caribbean drug treatment courts graduate few participants, raising serious cost-benefit questions.

Of particular concern, the exportation of the drug courts model fails to take into account the lack of scientifically and medically appropriate treatment options in Latin America and the Caribbean. Government health care systems are often woefully inadequate in providing health and social services to the people who need them. As a result, the courts tend to rely on private providers, which have little, if any, regulation or oversight. As the IACHR has emphasized, human rights violations in some treatment centers in the region include the use of techniques that cause severe physical and mental harms, the use of isolation for long periods, abusive treatment, and forced labor without economic remuneration.

Another concern raised about drug courts across the Americas is the lack of a gender focus. In addition to the SSRC report, Equis Justicia para las Mujeres has published a report “Cortes de Drogas en México: Una crítica a partir de las experiencias de las mujeres,” (in Spanish only) which evaluates the implementation of drug courts in Mexico based on women’s experiences.

As SSRC’s Drug Courts in the Americas highlights, rather than channel drug users into the criminal justice system, governments should decriminalize drug use and possession for personal use. This will reduce incarceration levels and facilitate access to voluntary treatment by removing the fear of arrest. In addition, governments should take measures to ensure that drug dependence is treated as a public health rather than a criminal justice issue. Scarce state resources are better spent ensuring that accessible, evidence-based treatment programs are available for those who need and want access to such programs.

Read the full SSRC report HERE.

Teresa García Castro is a Program Associate at WOLA.