Specialty courts: A disappointing form of diversion

Over the past 35 years, specialty courts — also called diversion courts, treatment courts, or problem-solving courts — have exploded in popularity.¹ The first specialty courts, drug treatment courts, came about when judges began facing overwhelming drug caseloads from the “war on drugs.” The idea behind them was that people with substance use disorders facing criminal charges could obtain treatment and avoid rapidly overcrowding jails and prisons, so long as they complied with all conditions ordered by a judge. This subtle shift away from punishment and toward so-called “therapeutic” measures took the criminal legal system by storm, becoming a model for other courts. Today, there are over 4,200 specialty courts in operation, with one in nearly every state.²

Proponents claim that specialty courts are tackling social issues, reducing crime, and saving taxpayer money through fewer days (or years) of costly incarceration.³ Evaluations suggest that some people have turned their lives around by completing specialty court programs, and public opinion toward them is generally very positive, recognizing their rehabilitative potential. The model sounds ideal, and appears to move away from harsh carceral responses to social issues while connecting people with treatment and support.

Figure 1. See our diversion report for more information.

But specialty courts may be receiving more attention and investment than their lukewarm success actually calls for. In reality, attaching treatment opportunities to a traditional court system and the threat of jail time actually expands the punishment system while undermining other community-based public safety solutions. Below, we offer a brief overview of specialty courts and outline six ways that they miss the mark on effectively diverting people from incarceration and providing pathways to long-term health and stability.

1. Specialty courts have had mixed success in improving public safety or public health
2. Overly narrow criteria place specialty court programs out of reach for many
3. Outdated public health principles persist in specialty courts
4. Specialty courts don’t shrink the footprint of mass incarceration — and may in fact enlarge it
5. Judges lean too heavily on jail as a response to noncompliance, negating treatment progress
6. The team-oriented approach reveals personal and clinical information to judges, leading to undue scrutiny and punishment

The national landscape of specialty courts

Adult drug courts were the first type of specialty court, and have long been the most common, currently making up about 44% of all specialty courts.⁴ Other major categories are aimed at mental health, veterans, family treatment (for parents of minor children who have both substance use issues and active child welfare cases), and domestic violence.⁵ Given that specialty courts try to address underlying factors, most center or deal with substance use in some way; some of these courts are specifically aimed at youth, people who have opioid use disorders or co-occurring disorders, who are part of tribal populations,⁶ or who face charges for driving while impaired (DWI).

Well over 100,000 people go through specialty courts each year,⁷ although not all participants “graduate.”⁸ In their most recent (2022) census of specialty courts, the National Treatment Court Resource Center published national participation data for each major type of court:

How many people go through specialty courts each year?

As the table suggests, all 50 states had an adult drug court in 2022; Connecticut has since shuttered its last few drug courts. It’s unclear why the state did away with them, and state specialty court coordinators could not be reached to provide more information. In the future, Connecticut may serve as a case study on what a state criminal legal system looks like without specialty courts.

Six problems with specialty courts

1. Specialty courts have had mixed success in improving public safety or public health

More research has been published about specialty courts (specifically, drug courts) than virtually all other criminal legal system programs, combined. This fact might suggest that specialty courts come with robust evidence of their success, but outcomes — such as changes in incarceration, crime, or drug use — vary widely by court. A closer look at individual program evaluations, as well as larger meta-analyses, reveals that specialty courts do just “okay” at achieving their purported outcomes. And while some courts show short-term improvements in public safety or public health measures, longer-term outcomes (after about three years) appear to be no different for specialty court participants than for people in the traditional court system.

The evidence, some of which we’ve collected below, should be a warning to lawmakers that the deep investments in specialty courts are not yielding the results that proponents claim or hope to achieve:⁹

• Fewer participants in a Baltimore, Md. drug court were re-arrested than non-participants for two years, but this positive outcome became insignificant after three years. Furthermore, during the three-year follow up period, participants spent approximately the same amount of time incarcerated as did people in the control group as a result of the initial arrest.¹⁰
• In Maricopa County, Ariz., drug court participants showed no reduction in recidivism or drug use after 12 months; a 36-month follow-up study went on to show no difference in the average number of arrests between participants and a control group.
• A review of three mental health courts with similar characteristics found no change in arrests or jail time for court participants compared to a control group.
• A 2022 review of Maryland’s “adult treatment courts” found no changes in arrest rates among participants: Two years after program entry, 46% of participants had been rearrested compared to 45% of the control group. The review’s author argues that participants are being rearrested fewer times than non-participants, but the difference (1.3 versus 1.5 average rearrests over two years) is negligible and not statistically significant.
• Participants in an “opioid intervention court” were less likely to die in the 12 months following their jail booking, but researchers noted that anyone receiving mediation-assisted treatment within 14 days of their booking was less likely to die, regardless of court participation. Emergency department visits and overdose-related deaths fell in the region surrounding the opioid court after its implementation, but it’s unclear how or whether this change can be attributed to the court. Meanwhile, arrests of court participants were much higher than they were for “business as usual” defendants.¹¹

These underwhelming findings persist even though specialty court participants are sometimes “cherry-picked” for their likelihood to do well. And presumably, those who complete specialty courts will indeed be less likely to be rearrested or use substances for which they were treated than those who don’t finish, but graduation rates around 50% are not uncommon.

2. Overly narrow criteria place specialty court programs out of reach for many

Like many other criminal legal system reforms, specialty courts are often designed in a way that includes certain people or criminal charges, and excludes others — a reality known as carveouts. Studies and experts suggest that specialty courts work best when serving high-risk or high-need individuals, even though many courts still exclude people with violent or serious charges, those with a criminal history,¹² or those with greater health needs. For example, a 2013 meta-analysis found that 88% of U.S. drug courts excluded anyone with a prior violent conviction and 63% excluded those with a current violent charge. Some specialty courts are even more specific, excluding people facing firearm or drug trafficking charges.¹³

Ultimately, even when someone meets all eligibility criteria, they may still be excluded from specialty courts because a prosecutor or judge must choose to offer the option.¹⁴ This discretion can work to include some people and to exclude others: Many advocates and skeptics argue that participants are “cherry-picked” or low-risk cases are “skimmed” in order to ensure success. One study, though limited in scope, found that one-third of a cohort of drug court participants did not actually have a clinically significant substance use disorder, suggesting that program spots are not appropriately prioritized.

Furthermore, discretion can lead to racial disparities in specialty court enrollment; research has shown that Black and Latinx people are offered diversion less often than white people, even after controlling for legal circumstances. Charge-based carveouts can just as easily lead to these disparities, given the overwhelming evidence that Black defendants face more — and more severe — charges for the same crimes. It’s difficult to pin down which is the most insidious factor in excluding racial and ethnic minorities, but specialty courts will inevitably fail to make an impact under such exclusionary rules.

3. Outdated public health principles persist in specialty courts

Many specialty courts adhere to woefully outdated ideologies about treatment and accountability instead of using evidence-based public health practices. Specifically, rigid attitudes toward drug use have kept these courts from embracing “what works” for long-term recovery:

Abstinence. The abstinence model of addiction treatment, in which people are punished for failing to completely stop their drug use, runs counter to the reality of substance use disorders as experienced by many specialty court participants. Abstinence also may not align with drug users’ objectives, which may look more like reduced drug use or improved quality of life in other areas. So-called “best practices” for adult drug courts require abstinence in order to advance through their program and graduate. Abstinence may work for some people, but it’s highly controversial (compared to non-abstinence or harm reduction techniques) because of its oversimplified and often unrealistic approach to substance use.¹⁵

Stigma against medication-assisted treatment. Similarly, medication-assisted treatment (MAT) — which should be widely available in all community-based and carceral treatment settings — is not available in all specialty courts. A 2012 survey of drug courts found that most participants were opioid-addicted, but only half were actually offered agonist medication (such as methadone or buprenorphine); additionally, half of programs had blanket prohibitions on some of these medications. And because MAT requires, as the name suggests, the use of medications that have been shown to effectively treat substance use disorders, abstinence-based specialty courts may prohibit MAT altogether. Some judges presiding over specialty courts, showing a personal preference for abstinence, do not look favorably on MAT, and court personnel may have mixed (though misguided) attitudes toward some MAT medications.

Mandatory treatment. Because specialty courts operate as an alternative to incarceration, participants are required to complete a treatment regimen or risk sanctions ranging from light warnings to jail time. But forced drug treatment is widely understood to be harmful, unethical, and ineffective. Instead, drug treatment should always be available to participants on a voluntary basis, and specialty courts can center other efforts, like securing housing or other medical care, as part of a broader harm reduction strategy to support those who continue using drugs.

4. Specialty courts don’t shrink the footprint of mass incarceration — and may in fact enlarge it

There are two major ways that specialty courts do not hold up their end of the bargain as true diversion programs: They do not prevent incarceration to the extent that they claim, and they can actually expand the number of people within the criminal legal system — a phenomenon known as “net-widening.”

Specialty courts have been so appealing to criminal legal system actors that they have been used as a justification for arresting greater numbers of people.¹⁶ Data from Denver, Colo., for instance, shows an unmistakable rise in drug cases after a drug court was established there in 1994. In the words of a former drug court judge, “the very presence” of this court led to an influx of cases that law enforcement and judicial systems otherwise “would not have bothered with before.” And given the typically low graduation rates from specialty courts, this growth in cases means more people are being convicted and sentenced to prison or jail, which is antithetical to the intention behind them — and is hardly saving taxpayer money.

As for those who are selected for specialty court programs, jail incarceration and long wait times are often disappointingly essential to the enrollment process. This length of time can vary widely and is seldom tracked, but some resources suggest a maximum time of 50 days from arrest to program entry (let alone referral to entry). In Maine’s specialty courts, wait times since have long exceeded the 50-day suggestion; we also found arrest-to-referral or referral-to-entry times ranging from a vague “51 or more days” in a Missouri county drug court to an appalling 116 days in Michigan’s drug courts. Meanwhile, participant interviewees in Cook County, Ill. specialty courts talked about being “often incarcerated” during screening processes, with court official interviewees affirming that jail time in this context might last from three to four months.

Figure 2. In some cases, people wait behind bars for a spot to open up.

Finally, most specialty courts — about two-thirds, according to a 2012 census — require participants to plead guilty before enrolling, saddling them with a criminal record just to access treatment. This post-plea model can make participants ineligible for similar opportunities in the future. Graduates of specialty courts may be able to have their criminal conviction vacated or their record expunged, but again, dismal graduation rates and barriers to record clearing mean that many thousands of people have only been punished by this purported “alternative” to punishment.

5. Judges lean too heavily on jail as a response to noncompliance, negating treatment progress

Although specialty court proponents espouse the benefits of team-oriented, less-formal approaches that encourage “graduated” sanctions beginning at light verbal warnings, people who are simply not able to meet program requirements will likely be brought to jail eventually. Jail is not a helpful place for people who are struggling with the very problems that specialty courts claim to address: Isolated and violent environments can cause lasting damage to mental health, and mental health and drug treatment are limited if they exist at all. Meanwhile, though corrections officials are reluctant to admit it, drugs are prevalent behind bars, creating the ultimate foil for anyone seeking help curbing drug use.

Still, judges have the ability to send participants to jail if they find that program requirements aren’t being met — and they often do. Even when jail time is a short-term, last-resort sanction, a recent survey of over 400 courts found that most (72%) use jail sanctions “at least some of the time” for positive drug tests.¹⁷ Jail sanctions from a specialty court can range from a few days to a couple of weeks; one study of Michigan’s drug courts found that the average jail sanction was 15 days. And as we’ve explained before, even short jail stays are harmful, disruptive to treatment and overall stability, and can even be deadly. Unsurprisingly, there is no evidence that jail incarceration actually “works” as part of a sanction system to encourage compliance with specialty courts.¹⁸

6. The team-oriented approach reveals personal and clinical information to judges, leading to undue scrutiny and punishment

Specialty courts typically have a presiding judge working alongside people such as social workers, prosecution and defense attorneys, court personnel, and probation officers to manage each participant’s case. Like other courts, specialty court judges have the final word, but they often consult with their teams and spend more time interacting directly with participants compared to traditional criminal courts. Proponents see this “holistic” approach to treatment and rehabilitation as supportive and humanizing for participants, but this process can also blur professional boundaries because it leads to closer scrutiny of individuals’ behavior compared to a traditional court. When judges have more access to participant’s lives and sensitive clinical information, they have more power to take action on that information.

A recent qualitative study of specialty court judges in Virginia affirms these same concerns (though they are not framed as such in the study, which was published in a pro-specialty court journal). Judges reported asking participants more personal questions than they would in a normal docket in order to establish a positive rapport, calling their role of neutral arbiter into question.¹⁹ They also revealed that in lieu of formal training, many simply followed their predecessor’s protocols in the courtroom. Judges enjoy specialty court roles because they feel impactful and rewarding compared to a strictly-punitive criminal court docket; this strong sentiment may explain why these courts have persisted for so long, and why they remain largely unregulated spaces.²⁰

A multidisciplinary team of service providers and case managers is essential to addressing complex health needs, but including judges and law enforcement in the conversation will ultimately be counterproductive to those ends, and keep people cycling through jails.

Specialty courts should be a last-resort diversion opportunity for people facing criminal charges

On paper, specialty courts make sense as a policy tool with broad appeal, marrying treatment with traditional accountability and punishment. But in the rush to introduce treatment through courts in this way, communities haven’t often considered the question of whether the criminal legal system should be involved at all. Unfortunately, the underwhelming outcomes and systemic issues presented here have not yet been enough to shift the paradigm. One Massachusetts lawmaker who once championed the model recently explained how his attitude toward drug courts has changed (emphasis added):

After roughly 10 years of thinking about how courts could play a role in substance use recovery, I reached the conclusion that a partnership between the treatment system and the criminal justice system was a deeply problematic idea, as appealing as it seemed initially. I formed the view that, although there is a close relationship between addiction and crime, treatment of addictions should generally be a matter left to voluntary participation in the health care system.

While some lawmakers are waking up to the reality of specialty courts, for now this movement has broad bipartisan support and courts are still expanding in many states.²¹ Lawmakers should strongly consider implementing legislation that prioritizes “upstream” diversion opportunities and minimizes the drawbacks of specialty courts:

• Provide medication-assisted treatment (MAT) in any specialty court dealing with substance use disorder. Courts resist MAT due to misconceptions and stigma, but it is widely held as the gold standard treatment. Judges and court personnel should be thoroughly trained on how MAT works and why it’s effective.
• Get rid of charge-based or history-based exclusions. There is no evidence base for excluding certain people or charges from these programs, and carveouts are a moralizing choice that is actually counterproductive; research suggests that specialty courts are less effective for low-risk participants.
• Follow harm reduction principles. Harm reduction incorporates the most person-centered and health-centered practices while rejecting punitive measures. The Center for Court Innovation’s detailed guide on using a harm reduction lens is geared toward drug courts, but it can be used in any type of specialty court setting.
• Eliminate requirements that lead to a criminal record or jail time. People hoping or waiting to be referred to a specialty court should not have to plead guilty or languish behind bars for days or months. And jail should never be a punishment for relapse, as it disrupts treatment and leads to further instability.
• Center clinician roles and decisions, expand screenings for psychological disorders, and require thorough training for judges and court personnel. Judges go through little-to-no training before presiding over a specialty court, and go on to make decisions using participants’ sensitive health information. At the same time, screening protocols can be too brief to understand individual, complex health needs that may send someone down an inappropriate treatment path, setting them up for failure.
• Pass legislation that creates robust standards and oversight. Because of their rapid proliferation and popularity among judges, specialty courts are highly unregulated. Some states working on this include Wyoming and Illinois; in New York, the Treatment Court Expansion Act — supported by a large and diverse coalition of groups — would establish state-mandated, pre-plea mental health courts open to all functional impairments.

Ultimately, specialty courts should be a much smaller piece of the diversion landscape, and community-based interventions should be prioritized as the prevailing solutions to social and public health issues. As new courts are created, the process of referring people to them is increasingly normalized, even though the evidence strongly suggests that specialty courts simply do not improve public safety, public health, or quality of life. Participation tends to involve at least some jail time, and so many participants are unable to complete them that they only just barely qualify as a form of diversion. No matter what specialty courts are called, they are still courts, entrenched in the punitive criminal legal system and accompanied by the many harms of arrest, conviction, and incarceration.