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Drug Courts: The Good, the Bad, and the Misunderstood

• First Online: 05 December 2021

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• Douglas B. Marlowe 2  

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Drug courts provide judicially supervised substance use treatment and other indicated services in lieu of criminal prosecution or incarceration. The Good News: Drug courts significantly reduce criminal recidivism and illicit substance use, improve the psychosocial functioning of persons involved in the justice system, and produce positive cost benefits for taxpayers. Evidence has identified the optimal target population for drug courts and a range of best practices associated with better outcomes. The Bad News: Some drug courts violate core tenets of the model by targeting the wrong participants, barring use of medication-assisted treatment, paying insufficient attention to racial and ethnic disparities, and overusing jail sanctions. Misunderstood Lessons: Current policy proposals for justice reform ignore the lessons of 30 years of research on drug courts and are unlikely to achieve their intended aims of enhancing public health and safety.

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Marlowe, D.B. (2022). Drug Courts: The Good, the Bad, and the Misunderstood. In: Jeglic, E., Calkins, C. (eds) Handbook of Issues in Criminal Justice Reform in the United States. Springer, Cham. https://doi.org/10.1007/978-3-030-77565-0_32

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Drug court as a potential intervention point to impact the well-being of children and families of substance-using parents

Kate guastaferro.

a Methodology Center, Penn State University, University Park, USA

Wendy P. Guastaferro

b School of Criminology and Criminal Justice, Florida Atlantic University, Boca Raton, USA

Jessica Rogers Brown

c Mark Chaffin Center for Healthy Development, Georgia State University, Atlanta, USA

David Holleran

d Department of Criminology, The College of New Jersey, Ewing, USA

Daniel J. Whitaker

A high proportion of justice-involved individuals have a substance use disorder and many of those individuals serve in a caregiving role to a child under 18. Given the negative impact of substance use and justice-involvement on the wellbeing of children, the criminal justice system may offer a unique intervention point with high public health impact. This study describes characteristics of adult drug court participants (DCP) that affect the wellbeing of their children and families and compares the DCP parenting and mental health characteristics to their child’s other caregiver in order to understand how parenting differs within drug court families.

Data were collected from a sample of 100 DCP; 58 had a matched other caregiver. Drug court data regarding substance use and criminogenic risk/need were collected. Analyses differentiated the parenting behaviors and mental health needs of DCP from other caregivers.

The DCP were at moderate to high risk for recidivism and presented with multiple and significant criminogenic and psychosocial functioning needs. Risk for potential maltreatment and poor parenting behaviors were elevated, and significantly higher compared to other caregivers. DCP demonstrated clinically elevated mental health needs, and were significantly different across all indicators of mental health compared to other caregivers.

Conclusions

Adult drug courts address the occurrence of substance use disorders but there are additional needs to be intervened upon. Adult drug courts may be a viable intervention point to address issues of parenting and mental health to improve the wellbeing of criminal justice-involved individuals, their children, and families.

Parents who misuse substances come into contact with the criminal justice system at significant rates. As an alternative to imprisonment, evidence-based treatment and service interventions present the most effective approach to disrupt the well-documented relationship between substance misuse and criminal behaviour ( Andrews & Bonta, 2010b ; Friedmann, Taxman, & Henderson, 2007 ; Marlowe, 2003 ; McCarty & Chandler, 2009 ). It is estimated that over 60% of people involved with the criminal justice system (CJS) have a substance use disorder (SUD; National Research Council, 2014 ). Adult drug courts are community-based interventions for individuals with SUD facing criminal charges. Adult drug courts include court-mandated and monitored substance use treatment involving regular court hearings, intensive judicial monitoring, drug screenings, and sanctions and rewards depending on program compliance ( Guastaferro, Lutgen, & Guastaferro, 2016 ). In a meta-analysis of 92 adult drug court evaluations, Mitchell and colleagues (2012) documented a drop in recidivism ranging from 38 to 50% with effects lasting approximately 3 years post-completion compared to non-participants of drug court programs. Other meta-analyses have shown as much as a 20% reduction in recidivism ( Shaffer, 2011 ; Wilson, Mitchell, & MacKenzie, 2006 ). Drug courts’ demonstrated effectiveness contributed to their rapid deployment: there are more than 3,400 drug courts across the United States that provide services to approximately 150,000 people annually ( National Association of Drug Court Professionals, 2018a ; National Drug Court Resource Center, 2018 ).

Individuals considered for and enrolled in drug courts often present with myriad needs that extend beyond substance misuse and criminal behavior. While drug courts must attend to these primary objectives, programs must also consider treatments and services for needs that could interfere with successfully engaging in, and completing, treatment and supervision requirements. Drug court participants (DCP) often have needs around their mental health, employment, education, problem-solving skills, anti-social cognitions, family conflict, parenting, and medical care and some drug courts have added these services either in-house or through community referrals ( Green & Rempel, 2012 ; National Research Council, 2014 ; Underhill, Dumont, & Operario, 2014 ; Wenzel, Longshore, Turner, & Ridgely, 2001 ). Importantly, best practices and empirical evidence caution that programs should provide services to participants in need and not require unnecessary services as these may negatively affect participant success and are not an efficient use of scarce resources. Offering complementary treatment and services to those in need is a best practice standard identified by the National Association of Drug Court Professionals (2018b , 2018c ). Further, this more comprehensive approach to DCP needs is in line with an integrated health model and the practice of treating the whole person, a best practice for substance abuse treatment ( National Institute on Drug Abuse, 2018 ).

Drug Court Participants as Parents

Among the adult drug court population, a high proportion are parents. A multi-site drug court evaluation found that about half of adult DCP have children under 18-years old and 20% are primary caregivers ( Rossman et al., 2011 ). Parental arrest and incarceration have negative effects on children; having a criminal justice-involved parent is stressful and disruptive to child wellbeing and family functioning ( Arditti, 2015 ; National Research Council, 2014 ; Turanovic, Rodriguez, & Pratt, 2012 ; Uggen & McElrath, 2014 ). For example, parental incarceration increases children’s risk for depression, hyperactivity, withdrawal, and eating problems ( Murray, 2005 ; Murray & Farrington, 2008 ). A parent’s CJS involvement creates the potential for harmful trauma for children related to parental absence, caregiver instability, and stigma ( Turney, 2014 ). Additionally, parental substance use has the potential to negatively impact the home environment (e.g., inconsistent supervision, available resources), parent-child relationships (e.g., lack of consistent responses to promote social emotional development), and child problem behaviors (e.g., delinquency, performance in school; ( Barnard & McKeganey, 2004 ). As a result, children of substance using adults are at increased risk for child maltreatment ( Choi, Huang, & Ryan, 2012 ; Dube et al., 2001 ).

Our understanding of how psychosocial needs, including interpersonal relationships with children and families, impact DCP outcomes is not well understood ( Christian, 2009 ). Drug courts generally gather little information about the individuals’ parenting behaviors. Despite a documented link between substance use and family dysfunction, few evaluations of adult drug courts have studied how drug courts positively impact families and in turn how families impact an individual’s treatment success in a drug court ( Green & Rempel, 2012 ). Family drug treatment courts have demonstrated a positive impact in child well-being outcomes ( Gifford, Eldred, Sloan, & Evans, 2016 ; Gifford, Eldred, Vernerey, & Sloan, 2014 ), this it is plausible that the incorporation of interventions that target adult DCP who are parents, their child(ren), and family could have important public health and criminal justice implications. The drug court setting presents a potential opportunity to effectively and efficiently intervene, thus informing a public health strategy.

We know that justice-involved parents typically do not parent their minor children alone. Other caregivers are likely to become involved at the point of arrest, if not before ( Guastaferro, Guastaferro, & Stuart, 2015 ; National Research Council, 2014 ). However, little is known about the family environment surrounding the DCP, their child, and other caregivers of that child. The DCP’s relationships with other caregivers, as well as the other caregivers’ behaviors, are not well understood thereby limiting the knowledge of the DCP’s children’s health and wellbeing. Other caregivers may be similar or different from DCP with respect to drug use, criminal justice involvement, mental health, and parenting practices. Other caregivers may also encompass a variety of relationships with the DCP including but not limited to spouses or ex-spouses, boy/girlfriends, parents, or siblings. Understanding the family environment risk and protective factors is an important aspect of designing a potential intervention strategy.

Poor parenting behaviors, such as a lack of supervision or inconsistent discipline, common among parents with SUD, have been associated with adverse outcomes for children ( Calhoun, Conner, Miller, & Messina, 2015 ; Fals-Stewart, Kelley, Fincham, Golden, & Logsdon, 2004 ). However, we do not know specifically how characteristics of the DCP substance use, addiction severity, and criminogenic risk impact parenting behaviors. There is evidence that certain substances (heroin, cocaine, crack cocaine, methamphetamine) have a robust, direct relationship with criminal behavior ( Bennett, Holloway, & Farrington, 2008 ), which has implications for treatment and supervision practices ( Taxman, Caudy, & Pattavina, 2013 ; Taxman, Pattavina, Caudy, Byrne, & Durso, 2013 ). Explanations for the increased likelihood of engagement in criminal behavior among users of crack cocaine, cocaine, methamphetamine, and heroin (i.e., criminogenic drugs) include pharmacological factors related to addiction and withdrawal issues, types of crime committed by these individuals, and individual-level/demographic factors, such as race and gender ( Bennett et al., 2008 ). The relationship between criminogenic drug use, addiction severity, and parenting behaviors among DCP may be important in intervention design. Primary criminogenic needs include the constellation of antisocial attitudes and behaviors, antisocial peers, and substance misuse and have a clear link to criminal behavior. Psychosocial functioning needs can support or distract from treatment engagement and recovery. These needs include mental health, education/employment, family and intimate relationships, housing, and financial. Treatment and supervision in the adult drug court setting commonly target these areas because of their relationship with criminal behavior and because they are amenable to change. However, we do not know if there is an association between criminogenic needs and parenting behaviors.

Parental mental health is also associated with child wellbeing ( Chaffin, Kelleher, & Hollenberg, 1996 ; Stith et al., 2009 ). Among those under correctional supervision, including drug courts, it is estimated that half to nearly three-quarters of individuals have a serious mental illness and a co-occurring SUD ( Osher, D’Amora, Plotkin, Jarrett, & Eggleston, 2012 ). Not only do we not know how DCP and other caregivers differ with regard to mental health, but also how a DCP’s mental health is associated with substance use characteristics, addiction severity, or criminogenic needs.

These gaps in knowledge exist because addressing the needs of children and the family unit more broadly is generally outside the purview of CJS goals. It may be advantageous to leverage involvement with the CJS as a result of SUD to prevent adverse outcomes for the children of justice-involved parents, such as preventing child maltreatment and improving mental health outcomes, but a description of need is necessary to design an effective and efficient intervention strategy. Thus, the objectives of the present paper are twofold: (1) to examine the characteristics of DCP that affect their children and families including parenting and mental health and (2) to compare these characteristics to the other caregiver. This description of need, as it relates to child and family wellbeing, may inform public health intervention strategies that leverage involvement in the CJS to address other public health priorities.

Participants

Participants were recruited from two Metro-Atlanta felony-level adult drug courts. Data were collected from family units consisting of up to three participants: a DCP who was a caregiver to at least one child under 18; a child under 18; and a co-parent or another adult caregiver of that child (other caregiver). Data collected from the child are not presented as it is outside the scope of the current paper. To be eligible, the DCP had to be enrolled in one of two adult drug court programs and function as a caregiver for at least one child under 18 years old. Between the two courts, there were 529 drug court clients; 164 met eligibility criteria. A total of 100 DCP enrolled in the study and 64 declined to participate, a participation rate of 61%. Complete sociodemographic characteristics are presented in Table 1 . DCP were primarily male (60%), Black (53%), and unmarried (55%). The mean age of DCP was 34.8 years ( SD = 8.52). Most DCP worked ≥30 hours per week (59%) and had at least some college education (51%).

Demographic and Family Structure Characteristics of Drug Court Participants (DCP) and Other Caregivers

The other caregiver was identified by the DCP at study enrollment and was eligible to participate if they served in a caregiving role for a child under 18-years old. To our knowledge, none of the other caregivers were currently enrolled in a drug court program. Not all DCP were able to identify another caregiver, and not all other caregivers consented to participate. The total number of other caregivers enrolled was 59. Relationships of the other caregivers to the DCP included friend, sibling, parent, romantic partner, or spouse. As described in Table 1 , the other caregivers were primarily female (76%) and married (59%). The mean age of other caregivers was 34.9 ( SD = 12.16). There was more variability in race among other caregivers: 51% White, 41% Black, and 8% other. Forty-six percent of other caregivers had at least some college education and 44% worked ≥30 hours per week. There were 58 matched DCP and other caregiver dyads (one other caregiver participated without a DCP). Matched pairs answered survey questions referencing the same child.

Presented here are cross-sectional, baseline data collected from a larger, longitudinal project, funded by the Administration for Children and Families, designed to implement family focused interventions in the adult drug court setting. All participants completed an audio computer-assisted self-interview overseen by a research assistant at a location of the participant’s preference, which included their home, at the drug court or treatment facility, or at a community location (e.g., library or coffee shop). Participants were able to skip questions, resulting in varying sample sizes for different questions, including demographics. All participants were provided headphones to hear the questions read aloud as an accommodation for varying reading levels and to maximize privacy. Research assistants were present during survey administration for technical assistance. The DCP and other caregiver often participated at the same time but not always. Each participant who completed the survey received a $75 gift card as compensation for their time. Participation in the research was voluntary and had no bearing on the DCPs drug court status. The university Institutional Review Board approved all research procedures.

Family environment

Family characteristics including the number of children, family structure, and custody status were collected for the DCP and other caregiver in the computer-assisted interview. The other caregiver was asked about their substance use using the Alcohol, Smoking, and Substance Involvement Screening Test ( WHO ASSIST Working Group, 2002 ) which was designed to detect and manage substance use and related problems in primary and general medical care settings. To provide context of the environment, in the present analysis tobacco, alcohol, and illicit drug use frequencies were dichotomized to indicate any substance use in the past year.

Substance use and addiction severity

DCP addiction severity was assessed at intake into the drug court and is used by treatment staff to determine appropriate treatment services. These analyses used self-reported substance use information including IV drug use, polydrug use, viewed drug problems as serious, the perceived importance of treatment, and history of prior treatment, each measured as dichotomous variables. These variables were extracted from validated screeners used by the drug court program at intake to assess drug use severity. The DCP-specified drug of choice identified at intake was used in the present analysis as a dichotomous variable to represent whether a criminogenic drug (e.g., crack, cocaine, heroin, methamphetamine, amphetamine) was indicated as the most problematic drug.

Criminogenic risk and needs

The DCP’s risk for recidivism was evaluated prior to drug court enrollment using the Level of Service Inventory- Revised (LSI-R), a broad risk/needs assessment of criminogenic needs designed for use as an indicator for recidivism and to guide treatment strategies (Andrews & Bonta, 2010, 2003 ; Guastaferro, 2012 ; Kelly & Welsh, 2008 ). The 54-items are scored in a “yes-no” format or on a “0–3” scale indicating satisfaction with a given situation; the higher the total score, the higher the level of risk for rearrest and criminogenic need ( Andrews & Bonta, 2003 ). Static and dynamic risk factors are operationalized by 10 domains: criminal history, employment/education, financial needs, family/marital relationships, accommodations, leisure/recreation, companions, alcohol/drug problems, emotional/personal, and attitudes/orientation. For the present analysis, the number of criminogenic and psychosocial functioning needs were calculated and the LSI-R total risk score (α= .83) was categorized into three levels of risk aligned with guidelines for community-based supervision and services: low (score 1–18), moderate (score 19–23), and high (score 24–54). LSI-R total scores were also dichotomized to low vs. moderate or high for statistical models.

We examined the potential for maltreatment, parenting behaviors, and parent-child communication. Though these characteristics are related, they measure different aspects of parenting. The Brief Child Abuse Potential Inventory ( Ondersma, Chaffin, Mullins, & LeBreton, 2005 ) examined the potential for maltreatment. The 34-item actuarial scale is comprised of 7 content-specific subscales (e.g., lack of happiness, feelings of persecution, loneliness, family conflict, rigidity, distress, and poverty) as well as lie and random response scales to indicate a potentially invalid response. Respondents endorsed whether they agreed or disagreed with a given statement and earned one point for each positive endorsement. A total score ≥9 indicated at-risk levels for child maltreatment and a score ≥12 indicated high-risk. Descriptive statistics are presented for the total score of the seven content-specific subscales (α = .80).

The Alabama Parenting Questionnaire was used to examine self-reported parenting practices related to children’s externalizing problem behaviors. Across 35-items the instrument assesses parental involvement (10 items; α = .83), positive parenting (6 items; α = .77), poor monitoring or supervision (9 items; α = .72), inconsistent discipline practices ( 6 items; α = .75), and corporal punishment (3 items; α = .43; Shelton, Frick, & Wootton, 1996 ). Seven other discipline practices (e.g., yelling, timeout) were summarized to provide greater detail about the parent-child relationship and to reduce implicit negative bias toward corporal punishment items ( Frick, Christian, & Wootton, 1999 ). All 42 items are rated on a 5-point frequency scale (1= never to 5=always) with higher scores indicating a higher frequency of the behavior.

The Parent Child Communication scale ( Conduct Problems Prevention Research Group, 1992 , 2002 ) was used to assess respondents’ perceptions of their communication skills with their child (e.g., “Does your child let you know what is bothering him/her?”). The PCC includes 20 items, which are answered on a 5-point scale (1 = “Almost Never” to 5 = “Almost Always”). We did not replicate the original factor structure of the scale; instead, principal components analyses showed that one factor solution that included 14 of the 20 items accounted for 26.4% of the variance. Those 14 items were summed to produce a single communication score (α = .85).

Adult mental health

The Brief Symptom Inventory assesses mental health status across domains of psychoticism (5 items; α = .67), somatization (7 items; α = .77), depression (6 items; α = .87), hostility (5 items; α = .77), phobic anxiety (5 items; α = .73), obsessive-compulsive (6 items; α = .85), anxiety (6 items; α = .76), paranoid ideation (5 items; α = .72), and interpersonal sensitivity (4 items; α = .81) ( Derogatis & Melisaratos, 1983 ). Raw scores were normed with a non-patient sample provided by the developer ( Derogatis, 1993 ). Three global indices are reported in addition to the subscales: General Severity Index (the overall severity based on the combination of symptoms and disruption of activities of daily life), Positive Symptom Total (the number of items endorsed with a positive response) and Positive Symptom Distress Index (divides the sum of item values by the positive symptom total). Adult trauma symptoms were assessed with the Posttraumatic Diagnostic Scale ( Foa, Cashman, Jaycox, & Perry, 1997 ), which provides diagnostic criteria for posttraumatic stress disorder (PTSD) and severity of PTSD symptoms in clinical and research settings. The total number of symptoms reported by adults was averaged and used to calculate symptom severity (mild, moderate, severe, or none) as outlined by the developers.

Child mental health

The Behavior Assessment System for Children measures parent perception of adaptive and problem behaviors in children over two-years old ( Reynolds & Kamphaus, 2004 ; Sandoval & Echandia, 1994 ). Participants answered these questions on only one child under 18 regardless of the number of children in their family. Delivery of the assessment has age specific versions of the measure for ages 2 to 5 (α = .85), 6 to 11 (α = .85), or 12+ (α = .79). T scores for each participant using age- and sex-specific norms were computed from raw scores using the developer-provided manual. Results of composite scales (externalizing problems, internalizing problems, behavioral symptoms index, and adaptive skills) are presented.

Analytic Plan

The first objective was to describe the characteristics of DCP that may affect the wellbeing of their child(ren) and family including the family environment, substance use and addiction severity, criminogenic risk and needs, parenting, adult mental health and child mental health. The second objective was to compare characteristics of DCP to other caregivers as it pertained to parenting behaviors, reported adult mental health, and perceived child mental health. Differences between matched DCP and other caregiver dyads ( n =58) were examined using Wilcoxon matched-pairs signed rank test for continuous variables and McNemer’s test for categorical variables.

Family Structure

The majority of DCP (59%) and other caregivers (79%) reported living in a home with at least one other adult ( Table 1 ). The 100 DCP reported being a caregiver to a total of 179 children under 18 (45% of whom live with the DCP), and the 59 other caregivers reported being a caregiver to 109 children under 18 (77% of whom live with the other caregiver). The majority of all children reported by the DCP and other caregiver respondents in this study were older than 6 years old (75% and 74%, respectively). DCP reported having full or shared/partial custody of 56% of the 179 reported children and the majority of children are seen by the DCP on a daily basis. The mean number of days from enrollment in drug court to the baseline assessment for DCP was approximately 374 days ( SD =232).

Most of the other caregivers ( N = 59) reported not using any substances (83%). Ten other caregivers reported using any illicit drug at least once in the past 12 months (17%). The most common reported drug used was cannabis, reported by all 10 other caregivers. The following substances were used once or twice in the past year: cocaine (2 people), amphetamines (2 people), sedatives/sleeping pills (3 people), hallucinogens (2 people), heroin (2 people), methamphetamines (2 people), and inhalants (1 person). Two other caregivers reported weekly use of sleeping pills. One person reported monthly use and two people reported daily or almost daily use of other opioids. More than half of the other caregivers reported tobacco use (53%), 24 of whom reported smoking every day. Nearly half ( n = 30) of the other caregivers reported using alcohol at least once in the prior 12-months; 13 indicating use 1–2 times, 9 indicating use once per month, 5 indicating use once per week, and 3 indicating daily or almost daily use.

Substance Use and Addiction Severity

The majority of DCP (76%) indicated their primary drug of choice as a criminogenic drug: cocaine or crack cocaine ( n =41), heroin ( n =13), or methamphetamines and other amphetamines ( n =23). It was common (87%) for DCP to report poly drug use ( Table 2 ). Four in ten (41%) reported prior substance use treatment. The majority of DCP believed their drug problems were serious (84%) and that receiving treatment was important (85%).

Risk-Needs and Substance Use Characteristics of Drug Court Participants (N=100)

Note: LSI-R = Level of Service Inventory- Revised

Criminogenic Risk and Needs

Eight in 10 DCP are at moderate or high risk for recidivism as indicated by the LSI-R at drug court program intake: the mean total risk-needs score was 25.07 ( SD =7.14). The percentage of DCP who scored moderate or high on the LSI-R subscales are displayed in Table 2 ; six participants were missing item-level data and are not included in the subscale findings. Eighty-five percent (85%) of DCP had moderate or high needs in multiple criminogenic areas (e.g., companions, attitudes, leisure time, alcohol or drug problems). The majority (68%) had moderate or high needs in multiple psychosocial functioning areas (e.g., education/employment, financial, accommodations, emotional/personal, family/marital). Nearly all respondents (93%) indicated prior convictions with 71% reporting three or more adult convictions. The majority of DCP (61%) were incarcerated upon conviction at least once and 28% were arrested under the age of 16. More than half (61%) were unemployed at the time of enrollment in the drug court program; 71% had been fired at least once. Over half (57%) of the DCP reported a family member or spouse who was involved in criminal behavior. Nearly two-thirds (63%) reported being satisfied with their marital (or equivalent) situation. Over one third (35%) of the DCP indicated receiving mental health treatment in the past and a psychiatric assessment was indicated for 39% of DCP, however only 11% were receiving treatment at program enrollment. Alcohol or drug use was causing family or marital problems and problems with work or school for nearly all DCP (97% and 90%, respectively); 19% reported medical problems as a result of their alcohol or drug use.

Two sets of means for the parenting outcomes are presented in Table 3 for the DCP: the full sample (n = 100) and the sample of DCP that had a matched other caregiver ( n = 58). Over one quarter (26%) of all DCP scored above the at-risk cutoff (≥9) for child maltreatment potential, as measured by the Brief Child Abuse Potential inventory. In contrast less than 14% (n=8) of all other caregivers were identified as at-risk. Among matched dyads, DCP were overall at a higher risk for child maltreatment compared to other caregivers ( d=. 39, p = .03). Statistically, there was no difference in meeting the high-risk (≥12) criterion between DCP and other caregivers; though, the percent of DCP exceeding the high-risk criterion was nominally higher than that of other caregivers.

Drug Court Participants (DCP) and Other Caregiver Characteristics on Parenting, Adult Mental Health, and Child Mental Health Domains

Note: BCAP = Brief Child Abuse Potential Inventory; APQ = Alabama Parenting Questionnaire; PCC = Parent-Child Communication; BSI = Brief Symptom Inventory; PST = Positive Symptom Total; PDS = Posttraumatic Stress Disorder Scale; BASC = Behavior Assessment System for Children

DCP mean ratings for the parental involvement subscale on the Alabama Parenting Questionnaire was 37.5 on a 10 to 50 scale (the equivalent of a 3.7 on the 5-point scale). Matched dyads (DCP and other caregivers) significantly differed in reports of parental involvement, with other caregivers reporting higher levels of involvement ( d = .54, p = <.01). DCP and other caregivers did not differ in mean ratings for positive parenting, monitoring, and corporal punishment subscales. DCP reported being more inconsistent in their discipline than did other caregivers ( d= .38, p = .02) and were more likely to report using non-corporal punishment or other discipline strategies (e.g., yelling, privilege restriction, time out; d= .42, p = <.01). There were no differences in self-ratings of parent-child communication between DCP and other caregivers.

We examined whether any of the parenting variables differed by LSI score and whether the client reported a criminogenic drug as their drug of choice. No differences were found for any of the parenting variables for either LSI level or criminogenic drug as drug of choice.

Adult Mental Health

DCP reported significantly higher rates of mental health distress when compared to other caregivers on the Brief Symptom Inventory ( Table 3 ). DCP reported significantly more symptoms of mental health distress ( d = .99, p = <.01) and more severe symptoms as indexed by the global severity index score ( d = 1.07, p < .001) when compared to the other caregiver. DCP scores across all subscales (>50) indicated elevated risk though not necessarily to the level of clinical significance. There were statistically significant differences between matched dyads. The DCP had significantly higher scores ( p < .05) compared to their matched other caregiver on all of the nine subscales. Related specifically to PTSD, DCP reported exposure to more traumatic events on the ( d =.58, p = <.001), and more severe trauma symptoms ( d =.61, p = .001). Tests of significance were conducted to examine the differences on adult mental health outcomes between levels of risk on the LSI-R and use of criminogenic drug criminogenic drug as drug of choice. The only significant difference found was between LSI level of risk and the somatization subscale of the BSI ( p =.03).

Child Mental Health

Overall, DCP reported greater externalizing behaviors ( d= .21, p = <.01) and more behavioral symptoms ( d = .30, p = .02) for their children than the other caregiver (note: these two metrics are related and include some of the same subscales). No differences between the DCP and other caregiver were found for internalizing behaviors and adaptive behaviors ( Table 3 ). It is worth noting that DCP and caregiver ratings of mental health symptoms were within or close to the normal range, with T score means around 50. Similar to other outcomes, there were no significant differences on any of the child mental health variables by LSI group or criminogenic drug use group (all p > .05).

This study explored the family environment of DCP related to parenting children under the age of 18. At program enrollment the majority of DCP were at high risk for rearrest and presented with multiple psychosocial functioning needs. Determining one’s risk and need is essential to the provision of effective programming and is a best practice in interventions for individuals involved in the criminal justice system (see Andrews & Bonta, 2010). Justice-related intervention and evaluation research focuses a great deal on how risk and to a lesser extent how need vary in their impact on outcomes such as recidivism and program completion ( Taxman & Pattavina, 2013 ). Researchers have called for a closer examination of individual needs to determine their role in well-being and reduced criminal behaviour and to pursue a more sophisticated approach to intervention development ( Hannah-Moffat, 2016 ; Long, Sullivan, Wolldredge, Pompoco, & Lugo, 2019 ; Polaschek, 2011 ). While the assessment instrument used by the drug courts is not designed to assess specific family-related strengths and needs, it provides important client information. Two-thirds of the DCP reported being satisfied with their marital (or equivalent) situation and nearly all (97%) reported their substance use caused problems in their familial relationships. These findings speak to areas of focus for treatment.

The risk-need-responsivity model posits that individuals who are at differential risk for recidivism are distinct from one another and thus need different levels of supervision and types of services in order to optimize outcomes. Here we sought to measure various facets of parenting in a drug court population and explored differences by risk. We found no significant differences by DCP risk/need level in parental monitoring (e.g. knowing where your child is), positive parenting (e.g. giving rewards or compliments), parent-child communication (e.g. discuss child-related problems with child), parental involvement (e.g. play games together, child involved in planning family activities), or parent-reported child mental health. These similarities could be because this group of DCP have developed their insight and problem-solving skills given their on-going treatment exposure at the time of interview. Another obvious possibility is that individual differences in justice-related measures of risk/need are not as meaningful or applicable to family-related matters. Finding significant differences in parenting behaviours would have implications for the type and intensity of family intervention needed at the individual level. Similarities in parenting behaviours do not, however, translate to lack of need: 15% of DCP reported poor monitoring practices, and 13% reported using inconsistent discipline practices. Our findings speak to several other areas relevant to parenting in drug court families.

First, the majority of DCP fell below the high-risk criteria for potential child maltreatment and had low frequency of corporal punishment. These findings differ from previous research that indicated substance-using parents reported harsher discipline practices than non-substance using parents placing the child at greater risk for maltreatment ( Kelley, Lawrence, Milletich, Hollis, & Henson, 2015 ; Kepple, 2018 ). One-quarter of DCP, however, scored above the at-risk cut-off for child maltreatment potential thus indicating need for improving communication, problem-solving skills, and nurturing capacity. While strong substance abuse treatment curricula address these issues in part they are not designed to address effective parenting. Second, a unique aspect of this research is the inclusion of the other caregiver in these families. Our data include the DCP as parent and their parenting counterpart, each reporting on their own parenting behaviors and their perceptions of their child’s mental well-being. Collectively these DCP report less parental involvement, more inconsistent discipline practices, and were more likely to report using non-corporal punishment or other discipline strategies (such as time out, privilege restriction, and extra chores) compared to the other (matched) caregivers. Next we examined the parenting and mental health characteristics of DCP and then compared these characteristics to those of the child’s other caregiver. Both caregivers also reported their perceptions of their child’s adaptive and problem behaviors. To our knowledge this is the first examination of how parenting differs within adult drug court families.

Parenting and adult mental health status outcomes among DCP largely did not differ between different levels of risk for recidivism (LSI-R) or between type of drug used (e.g., criminogenic drug or not). There was one notable area of difference by risk among DCP: those at higher risk for recidivism reported greater distress arising from perceptions of bodily dysfunction (somatization). This is in keeping with a long line of research documenting the disparities in health and mental health in justice-involved populations ( National Research Council, 2014 ). An estimated 75% of individuals under correctional supervision have a co-occurring mental illness and SUD ( Osher et al., 2012 ). Here, DCP reported more and more severe symptoms related to mental health distress. The DCP were at elevated risk across all subscales of the BSI. Example feelings and thoughts measured in the BSI include lack of motivation, nervousness and tension, thoughts and impulses that are persistent and irresistible, isolation, and feelings of personal inadequacy. There is a clear need for the availability of adult mental health services for DCP with 57% reporting symptoms at a clinical risk threshold level when compared to non-patient norms. The DCP were at significantly greater risk than the other caregivers on the global severity index (measure of symptom severity) and each of the BSI subscales. Here the comparison between parents has implications for child well-being and family dynamics that in turn could impact the DCP’s recovery. Further, these comparisons demonstrate the other caregivers’ need for support as it relates to co-parenting with the DCP. Implementation of family-focused mental health interventions and the involvement of family members improves child outcomes and family functioning and could provide important lessons for drug court programming ( Foster et al., 2016 ; Reupert & Mayberry, 2016 ).

When DCP who are parents are engaged in their children’s lives, there are important implications for prevention and intervention around adult and child health and wellbeing. This research indicates that DCP play an active role in their children’s lives, but they also rely heavily on other caregivers. Six in 10 DCP live with at least one other adult in the home and 58 DCP had a matched other caregiver in our sample. More than half of the DCP’s minor children did not live with the DCP. This is not surprising given the stressful and disruptive nature of CJS involvement and parental substance use on child and family functioning ( Arditti, 2015 ; Turanovic et al., 2012 ; Uggen & McElrath, 2014 ). Thus, interventions introduced in a drug court setting targeting the children of DCP must consider the importance of including or involving other caregivers of these children. This also suggests that the relationship between parents may need to be addressed as a function of the toll their addiction has had on relationships. This research identifies some of the ways family-centered work in adult drug courts, or other justice settings, face unique challenges.

The 100 DCP in this sample were caregivers to 179 children under the age of 18 and 74% saw their children on a daily or weekly basis. Some adult drug courts address parenting ( Carey, Finigan, Crumpton, & Waller, 2006 ; Cissner et al., 2013 ) though such services are not universal and the national landscape of this is unknown. Given the well-established negative relationship between parental substance use and criminal justice involvement on child outcomes ( Kopak & Smith-Ruiz, 2016 ; Murray, Loeber, & Pardini, 2012 ; Phillips, Erkanli, Costellow, & Angold, 2006 ), drug courts have an opportunity to impact family and child well-being in positive and proactive ways.

There are several limitations worth noting before universally implementing public health interventions in the CJS setting. The sample size limits the precision and generalizability of the findings. Though a strength of this study is the information about family structure, maltreatment, and parental mental health, the sample only included 58 matched pairs, which precludes the ability to design a universal intervention strategy that would benefit all drug court parents, their children, and families. The outcome measures have not been validated in the adult drug court population, which limits the ability to generalize these findings to other populations or to other drug court participant parents. Further, conclusions rely on retrospective self-report for many outcomes of interest. Integration of administrative data or health records might offer a way to validate self-reports. As these data are from a larger ongoing trial, no tests of significance were done between DCP with and without a matched other caregiver as this study focused solely on the risk parental substance use and criminal justice involvement has on child wellbeing. While we included the highly co-morbid risk factor of parental mental health, this is likely not sufficient in characterizing the potential risk on child wellbeing. For example, intimate partner violence is also highly correlated with both substance use and maltreatment ( Barth, 2009 ; Kohl, Edleson, English, & Barth, 2005 ). Another limitation of the findings presented here is the reliance on parent report of child behavior and symptoms related to child mental health outcomes. Future research should include child self-report when possible and age appropriate, as neither parent can know everything that the child feels or experiences. It remains an empirical question as to how the introduction of these services might impact children’s mental and behavioral health, and how these services might impact the success of DCP in drug court. Future research should examine the effect of interventions related to mental health and parenting in a drug court setting not only in regard to child and family outcomes but also in relation to recidivism or lapses in sobriety.

As children and families are not often the focus of CJS interventions, this paper described DCP as parents and compared their parenting characteristics with other caregivers to identify related needs and potentially inform public health intervention strategies leveraging involvement in the CJS to address other public health priorities. The promise of integrating the CJS and public health approach is supported by the successful integration of psychosocial, behavioral, and medical interventions to address ancillary DCP needs ( Binswanger, Redmond, Steiner, & Hicks, 2012 ) and is supported by improved child outcomes, such as reunification, resulting from parental involvement in family treatment courts ( Bruns, Pullmann, Weathers, Wirschem, & Murphy, 2012 ; Gifford et al., 2014 ; B. L. Green, Furrer, Worcel, Burrus, & Finigan, 2007 ; Worcel, Furrer, Green, Burrus, & Finigan, 2008 ). Though, it is important to note that referral to a family treatment court is through the child welfare system as compared to the CJS for an adult drug court. Therefore, these two court programs serve distinct populations and there is limited redundancy in developing intervention approaches in either setting.

Inquiry into the families and children of DCP necessitates the collaboration between criminal justice and public health systems ( Guastaferro et al., 2016 ). In this particular case, the CJS provides access to an underserved, hard-to-reach parenting population ( DiPietro & Klingenmaier, 2013 ; Hammett, Gaiter, & Crawford, 1998 ) with regard to the primary and secondary prevention of public health priorities affecting adult drug court parents, their child(ren), and other caregivers of their child(ren). It is likely the collective action of both systems will be more effective than independent efforts.

Acknowledgments

The authors would like to thank Dr. Katherine Masyn, Dr. Laura Lutgen, Katie Franchot, and Carolyn Malone for their assistance in preparation of the manuscript.

Funding : This work was supported by the Administration for Children and Families (Grant No. 90CU0062); the National Institute on Drug Abuse under award numbers P50 DA039838 and T32DA017629 and the Eunice Kennedy Shriver National Institute on Child Health and Human Development under award P50HD089922. The content is solely the responsibility of the authors and does not necessarily represent the official views of the National Institutes of Health.

The authors report no conflicts of interest.

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• Policy & Research
• Outreach/Media

Drug Courts

A Smart Approach to Criminal Justice

Drug courts, which combine treatment with incentives and sanctions, mandatory and random drug testing, and aftercare, are a proven tool for improving public health and public safety. They provide an innovative mechanism for promoting collaboration among the judiciary, prosecutors, community corrections agencies, drug treatment providers, and other community support groups. These special courts have been operating in the United States for more than 20 years, and their effectiveness is well documented. In times of serious budget cuts, the drug court model offers State and local governments a cost‐effective way to increase the percentage of addicted offenders who achieve sustained recovery, thereby improving public safety and reducing costs associated with re‐arrest and additional incarceration. Every $1 spent on drug courts yields more than $2 in savings in the criminal justice system alone.

President Obama’s FY 2012 Budget request includes approximately $101 million for drug, mental health, and other problem‐solving courts, including Veterans Treatment, Tribal Healing to Wellness, and Family Dependency Treatment Courts. This demonstrates the Administration’s support for increasing and enhancing access to substance use disorder treatment. With more than 2,500 drug courts in operation today, approximately 120,000 Americans annually receive the help they need to break the cycle of addiction and recidivism.

• Drug courts operate on the local level to divert non‐violent offenders with substance use problems from incarceration into supervised programs with treatment and rigorous standards of accountability.
• The courts connect the judicial, law enforcement, and treatment communities with other systems and provider organizations through comprehensive case management to address participants’ other needs, such as education, housing, job training, and mental health referrals.
• Drug courts help participants recover from addiction and prevent future criminal activity while also reducing the burden and costs of repeatedly processing low‐level, non‐violent offenders through the Nation’s courts, jails, and prisons.

Drug court programs have a tangible effect on criminal recidivism. A study funded by the Department of Justice examined re‐arrest rates for drug court graduates and found that nationally, 84 percent of drug court graduates have not been re‐arrested and charged with a serious crime in the first year after graduation, and 72.5 percent have no arrests at the two‐year mark.

Additionally, an analysis of drug court cost‐effectiveness conducted by The Urban Institute found that drug courts provided $2.21 in benefits to the criminal justice system for every $1 invested.2 When expanding the program to all at‐risk arrestees, the average return on investment increased even more, resulting in a benefit of $3.36 for every $1 spent.

By the Numbers

• The drug court movement continues to grow. Since 1989, drug courts have been established or are being planned in all 50 States, the District of Columbia, the Northern Mariana Islands, Puerto Rico, Guam, and in nearly 90 Tribal locations (see map.)
• There are more than 2,500 drug court programs throughout the United States.
• Approximately 47 percent of counties in the United States are served by drug courts (see map).
• A review of five independent meta‐analyses concluded that drug courts significantly reduce crime by an average of 8 to 26 percentage points; well‐administered drug courts were found to reduce crime rates by as much as 35 percent, compared to traditional case dispositions.
• The success of drug courts has led to development of Tribal Wellness, Veterans Treatment, Mentally Ill Offender, Community, and Family Treatment courts.

The Drug Court Model: Best Practices

Drug court participants are provided intensive treatment and other services for a minimum of one year. There are frequent court appearances and random drug testing, with sanctions and incentives to encourage compliance and completion. Successful completion of the treatment program results in dismissal of the charges, reduced or set‐aside sentences, lesser penalties, or a combination of these. Most important, graduating participants gain the necessary tools to rebuild their lives.

Because the problem of drugs and crime is much too broad for any single agency to tackle alone, drug courts rely upon the daily communication and cooperation of judges, court personnel, probation, treatment providers, and providers of other social services.

Drug courts vary somewhat in terms of their structure, scope, and target populations, but they all share three primary goals:

• Reduced Recidivism Rates
• Reduced Substance Use Among Participants
• Rehabilitation of Participants

Achieving these goals requires adherence to the core organizational structure and attributes of the drug court model. This model, which has successfully been replicated in thousands of courtrooms nationwide, includes the following key components:

• Integration of alcohol and other drug treatment services within justice system case processing;
• A non‐adversarial approach, through which prosecution and defense counsel promote public safety while protecting participants’ due process rights;
• Early identification of eligible participants and prompt placement in the drug court;
• Access to a continuum of alcohol, drug and other treatment, and rehabilitation services;
• Frequent alcohol and other drug testing to monitor abstinence;
• A coordinated strategy governing drug court responses to participants’ compliance or noncompliance;
• Ongoing judicial interaction with each participant;
• Monitoring and evaluation to measure achievement of program goals and gauge effectiveness;
• Continuing interdisciplinary education to promote effective drug court planning, implementation and operations; and
• Forging of partnerships among drug courts, public agencies, and community‐based organizations to generate local support and enhance drug court program effectiveness.

Drug courts following these tenets reduce recidivism and promote other positive outcomes. The magnitude of a court's impact may depend upon how well the practitioners address and balance these core components and adapt to the needs of their clients and court staff.

Connecting Drug Courts to Law Enforcement

A strong partnership with local law enforcement is a critical component of a successful drug court. Street‐level enforcement officers provide a unique perspective and benefit to drug court teams. Law enforcement can improve referrals to the court and extend the connection of the drug court team into the community for further information gathering and monitoring of participants. Law enforcement personnel play important roles not only in the day‐to‐day operations of the drug court, but also in showing other government and community leaders the public safety efficacy of these courts.

A comprehensive study of the key attributes of successful drug courts reinforces the importance of this relationship. In the 18 adult drug courts studied, researchers found that:

• Having a member from law enforcement on the team was associated with higher graduation rates, compared to teams without a law enforcement member (57 percent versus 46 percent).
• Drug court teams that included law enforcement personnel reduced costs an additional 36 percent over the reductions achieved by traditional drug courts.

In recognition of the importance of law enforcement participation in the drug court process, the National Association of Drug Court Professionals’ (NADCP) National Drug Court Institute (NDCI) has created a National Law Enforcement Task Force. This Task Force is designed to increase the involvement of law enforcement personnel in the drug court process and gather critical input from key law enforcement leaders across the country. The Task Force has representatives from a number of law enforcement organizations, including: 

• International Association of Chiefs of Police (IACP)
• National Sheriffs Association (NSA)
• National Organization of Black Law Enforcement Executives (NOBLE)
• Hispanic American Police Command Officers Association (HAPCOA)
• National Native American Law Enforcement Association (NNALEA)
• National Organization of Women Law Enforcement Executives (NAWLEE)
• American Probation and Parole Association (APPA)

To further educate and expand law enforcement involvement in drug courts, NDCI is developing a curriculum for law enforcement personnel. This curriculum will include information on the medical aspects of addiction, treatment, and recovery, and how to engage substance abuse service providers. ONDCP is providing the funding for this training course, which will qualify for Police Officer Standards and Training (POST) for the enrolled law enforcement officers.

Training & Technical Assistance Resources

With the expansion of drug courts throughout the country, it is critical to ensure standards for drug court implementation and operations are effectively disseminated to the field. It is also critical for the more than 2,500 courts currently in operation, along with those in the planning and implementation phases, to be fully trained and operating in accordance with the long‐standing, strict standards designed for drug courts to achieve optimal outcomes.

In an effort to maintain efficacy and improve the operations of drug courts, NDCI provides critical education, training, and technical assistance to longstanding as well as newly formed drug courts. NDCI is supported by several Federal agencies, including:

• U.S. Department of Justice, Office of Justice Programs (Bureau of Justice Assistance, Office of Juvenile Justice & Delinquency Prevention, and the National Institute of Justice)
• U.S. Department of Health & Human Services, Substance Abuse & Mental Health Services Administration (Center for Substance Abuse Treatment)

A full list of trainings and technical assistance provided by NDCI and funded through these partners is available on the NDCI Web site, at www.ndci.org .

Drug Court Funding Opportunities

NDCI maintains an updated list of Federal funding opportunities available for drug courts. The list is available on the NDCI Web site, at www.ndci.org .

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Drug Courts as an Alternative to Incarceration

An estimated  50% of the 7 million individuals under criminal justice supervision meet the criteria for diagnosis of drug abuse or dependence.  But punishment alone is a futile and ineffective response to drug abuse, failing as a public safety intervention for offenders whose criminal behavior is directly related to drug use.  

• In many jurisdictions, some individuals with drug problems (typically non-violent) are sentenced to a specialized drug court as an alternative to incarceration. FL established the first drug court 1989; today more than 2600 drug courts operate in all 50 states.
• Drug courts typically mandate addiction treatment, often offer other human services, and typically require regular drug tests and judicial meetings to assess progress.
• Drug court judges have the power to provide rewards and penalties to offenders, potentially including expunging a conviction if the individual makes sufficient progress.  

Conclusion: Drug courts reduce drug use and re-arrest for non-violent, drug-involved offenders.  Because they are resource-intensive, they may better be reserved for more complex cases in which the individual has not responded to less resource-intensive supervision (e.g.,  24/7 Sobriety ).  

Key Policy Evidence:

• Individuals who participated in prison-based treatment followed by a community-based program post-incarceration were 7 times more likely to be drug free and 3 times less likely to be arrested for criminal behavior than those not receiving treatment.
• Offenders randomly assigned to drug court were over 4 times  more likely to receive addiction treatment and were two-thirds less likely to be re-arrested compared with individuals under typical supervision in one  rigorous study .
• A comprehensive drug court system typically costs between $2,500-$4,000 annually for each offender, compared to $20,000-$50,000 per person per year to incarcerate a drug-using offender.
• One dollar spent on drug courts is estimated to save approximately $4 in avoided costs of incarceration and health care, and prison-based treatment saves between $2 to $6.
• Replacing incarceration for drug-related offenses with treatment referrals is not effective if it is not accompanied by drug court monitoring.  Fewer than 25%  of offenders so referred under California’s Proposition 36 showed up at treatment and completed it.
• Recidivism drops, on average, by 38%-50% among adult drug court participants, according to a  review of 154 evaluations . 
• Drug court effectiveness varies significantly.  Research suggests that results are best when the court uses a transparent, consistent approach to applying sanctions, has significant  leverage over the offender , and employs a uniform model (i.e., all  offenders are either pre-plea or post-plea ).

• From Our Programs

How Drug Courts Fall Short: A New Report Investigates this Policy Model’s Performance in the Americas

The SSRC’s Drugs, Security and Democracy program has recently released a report titled Drug Courts in the Americas . Here, program manager Cleia Noia provides an overview of the report’s findings and recommendations. In discussing how drug courts became the preferred alternative to incarceration not just in the United States but Latin America and the Caribbean, she highlights their limitations—especially their continued connection to the criminal justice system.

In the last few decades, drug courts have become an increasingly popular public policy model across the Americas. Proponents assert that drug courts are cost-effective, reduce recidivism and time spent in detention (prison or jail), and offer drug treatment as an alternative to incarceration for people whose drug use underlies their criminal activity. Since 2016, the SSRC’s Drugs, Security and Democracy (DSD) program 1 The Drugs, Security and Democracy (DSD) program supports research on drugs in Latin America and the Caribbean across a variety of disciplines with a goal of producing evidence-based knowledge to inform drug policy in the region and beyond. The program seeks to foster a global interdisciplinary network of researchers engaged with drug policy, committed to policy-relevant outcomes, and who can communicate their findings to relevant audiences. has worked to expand understanding of this policy, culminating in Drug Courts in the Americas , a comprehensive scholarly examination of the effectiveness and impact of drug courts in the United States, Latin America, and the Caribbean. The report reviewed key findings from the United States’ experience and found that drug courts, as implemented in the United States, are a costly, cumbersome intervention that has limited, if any, impact on reducing incarceration. This essay presents an overview of the report’s findings, including its recommendations to address the shortcomings of these courts.

The rise of drug courts

Although drug courts are not a new concept in the United States (they were first established in Miami in 1989, having since spread to all states and territories), their dissemination to other countries in the Americas is more recent. Although we have seen this policy model replicated in Latin America and the Caribbean since the early 2000s, there has been a rapid expansion in implementation of drug courts starting in 2012. The DSD program wanted to further explore this trend, particularly considering these courts’ increasing popularity in countries in the region despite the vast institutional, legal, and cultural differences between the United States, Latin America, and the Caribbean.

It is no secret that incarceration for drug-related offenses and the significant increase in prison populations in the United States over the past decades are connected. For those working in the drug research/policy field, this has been evident for many years. Nonetheless, looking into actual numbers offers a much needed reminder of the scale. For example, according to the Federal Bureau of Prison’s statistics, of the 168,687 people incarcerated in US federal prisons in October 2018, 77,649 were imprisoned for drug offenses. 2 Statistics based on prior month’s data. “BOP Statistics: Inmate Offenses,” US Federal Bureau of Prisons, last modified November 24, 2018, accessed February 11, 2019, https://www.bop.gov/about/statistics/statistics_inmate_offenses.jsp . This number, of course, does not include those incarcerated in state prisons, local jails, juvenile correction facilities, and the like.

In light of these incarceration trends, consensus has been growing across the Americas on the need for drug law reform and alternatives to criminal sanctions for certain categories of drug offenses. These alternatives include measures that enable people to stay out of the criminal justice system in the first place, such as decriminalization of drug use and possession, and the diversion of law enforcement resources toward services outside the criminal justice system. It is within this context that drug courts have been promoted as an effective alternative to incarceration.

Exporting a flawed model

In practice, however, drug courts have become another arm of the criminal justice system, administering medical treatment and counseling via judges rather than experts. The evidence from the United States shows that drug courts can increase the supervision of individuals and expose them to more severe penalties than they would otherwise have received, thus sometimes becoming an adjunct rather than an alternative to incarceration. One of the main stated objectives of drug courts is to ensure access to comprehensive substance abuse treatment for those who need it. However, a review of the available evidence shows that, in practice, many participants in drug courts do not need treatment while, at the same time, the treatment may not be available or may be inappropriate for those who really need it. Among other limitations with this policy model, we found that the financial and human costs to drug court participants are also steep and disproportionately burdensome for the poor and racial minorities.

Further complicating this scenario is the concerted effort to export drug courts as a model that should be adopted by other countries. Despite the evidence from the United States experience cited above, the considerable influence of the United States in the region’s drug control policies and the support for the model from the Organization of American States’ Inter-American Drug Abuse Control Commission have certainly encouraged countries in Latin America and the Caribbean to embrace drug courts as a promising solution to the over-incarceration problem that plagues the region. This development is problematic not only because governments in the region apparently are not doing a proper review of the available evidence before adopting drug courts as a public policy model, but also because the very specific social, economic, and political context of Latin American and Caribbean countries immediately complicates the adoption of public policies designed by other, more developed countries with different legal systems. Furthermore, many drug courts in the region still focus on simple drug possession as a crime, contributing to the criminalization and stigmatization of people who use drugs.

Moving forward

Drug Courts in the Americas presents a series of recommendations that should be seriously considered by countries concerned with mass incarceration and that intend to move away from overreliance on criminal justice responses to drug use. We developed the recommendations with two groups in mind: countries that have not established drug courts or in which they are in early stages, and countries with established drug courts that have overwhelming support, thus making it difficult (but not impossible) to address the issues raised there.

For those in the first group, the recommendations include several of the following concrete steps:

• distinguishing between drug use and drug dependence and recognizing that not all drug use is problematic or requires treatment to address it, and
• providing financial and technical resources to expand and improve comprehensive harm-reduction services in communities, including evidence-based drug treatment programs that are not linked to the criminal justice system.
• taking the necessary legislative and other measures to ensure people who commit minor or nonviolent drug offenses and are in need of treatment are directed, prior to arrest or the opening of a criminal proceeding, to community-based services tailored to their specific needs.

For the countries in the second group, despite the report’s main conclusion that drug courts are not an appropriate solution for the issues they were ostensibly designed to address, we also present a series of measures that could be put in place to minimize the negative impacts of their implementation, including, but not limited to:

• Drug courts should target people who have been charged with serious offenses, including violent crimes, that otherwise would result in incarceration and who would benefit from drug dependence treatment.
• The existence of a criminal record and the nature of the offense should not render a potential participant ineligible, as is often the case.
• Returning to drug use is a normal part of the recovery process and should not be the basis for dismissal from a program or the imposition of sanctions, such as detention or more frequent court appearances or drug testing.
• Participation in drug courts should not be dependent on paying fines, fees, or any other costs, nor should failure to do so be criminally sanctioned.

Undoubtedly, countries should focus on moving away from an excessive reliance on incarceration as a panacea. Nonetheless, a close examination of the United States as a case study does not support the drug court model as the most appropriate solution for governments genuinely focused on addressing this issue, since in some respects it continues to criminalize drug consumption and prioritize a criminal approach to drug dependence over a health approach.

On a final note, it is important to bear in mind that this is not simply an issue of comparing drug courts and incarceration, but whether or not drug courts truly represent a public policy focused on the health of people with substance abuse problems. The countries that consider this model must take this into account and answer the following question: Is it really necessary to mediate treatment through the criminal justice system?

To read the full report (available in English, Spanish, and Portuguese), please visit: https://www.ssrc.org/publications/view/drug-courts-in-the-americas/ .

The DSD Program would like to thank the authors of the report—Rebecca Schleifer, Tania Ramirez, Elizabeth Ward, and Carol Watson Williams—as well as Coletta Youngers (project advisor) and all the specialists who reviewed early versions of the report and offered invaluable comments.

References:

Cleia Noia is the program manager of the Drugs, Security and Democracy Program. She received her law degree from Universidade Presbiteriana Mackenzie in Brazil and her master's degree in law and diplomacy, with a focus on international development and human security, from the Fletcher School at Tufts University. Prior to joining the Council in February 2014, Cleia worked as a corporate lawyer in Brazil and consulted on Brazil's drug policy for the Open Society Foundations.

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Treatment Courts

What is a treatment court.

Treatment court programs  are specialized court docket programs that allow individuals to enter long-term drug treatment and agree to court supervision rather than receive a jail sentence.

Treatment court participants who complete the program can have their underlying criminal offenses dismissed or expunged. However, if a participant fails to complete the program, their case is processed through the traditional justice system.

Types of Treatment Courts

The first treatment court opened in 1989 in Miami, Florida, to address how often individuals would cycle in and out of prison due to drug addiction.

Today, there are more than 4,000 drug treatment courts nationwide, according to the National Treatment Court Resource Center (NTCRC) . Adult treatment courts are the most prevalent treatment court, making up about half of all treatment courts in the United States.

Since 1989, treatment court programs have expanded from serving only adults to include the following:

• Juvenile drug treatment courts
• DUI/DWI courts
• Family treatment courts
• Mental health courts
• Veterans treatment courts
• Tribal healing to wellness courts

In 1995 , the first juvenile drug treatment court opened in Visalia, California.

Juvenile drug treatment courts are designed for youth with substance use disorders who come into contact with the juvenile justice system. About 9 percent of all U.S. treatment courts are specifically designed to support youth.

Although they vary in target populations and resources, a multidisciplinary team usually manages treatment court programs. This team may include judges, prosecutors, defense attorneys, community corrections officers, social workers, and treatment service professionals.

Benefits of Treatment Courts

The primary goal of treatment courts is not punishment. Instead, treatment courts recognize addiction as a disease and aim to treat the chronic disease affecting behavior and impulse control.

Research from the National Institute of Justice (NIJ) found that treatment courts reduce participant recidivism and drug use. According to  NIJ's Multisite Adult Drug Court Evaluation , treatment court participants were less likely than a comparison group (40 percent vs. 53 percent) to report committing crimes in the year before being interviewed for the study.

Treatment court participants were also significantly less likely than the comparison group (56 percent vs. 76 percent) to report using any drugs in the prior year.

How OJP Supports Treatment Courts

Supported by the Bureau of Justice Assistance (BJA), the NDCRC provides a variety of resources to support treatment court professionals who design and implement programs that align with best practice standards. The NDCRC features original publications, interactive maps, a calendar of training opportunities, and more.

Through the  Adult Treatment Court Program , BJA provides financial and technical assistance to implement or enhance the operations of treatment courts. Additionally, BJA's  Veterans Treatment Court Program  provides veterans' treatment courts and criminal justice professionals with the resources necessary to reduce recidivism and increase veterans' access to critical treatment and recovery support services.

The Juvenile Drug Treatment Court Guidelines from the Office of Juvenile Justice and Delinquency Prevention provide juvenile courts with key objectives to emphasize family engagement and address the substance use and mental health disorders experienced by youth.

Funding for Treatment Court Programs

Treatment courts rely on local, state, and federal funding to operate their programs.

Since fiscal year (FY) 2016, BJA funding to support treatment court programs has more than doubled.

In FY 2021, BJA awarded $61.6 million to support treatment court programs across the United States.

Between FY 2016 and FY 2021, BJA awarded over $254 million across 507 grant awards to implement new treatment court programs, expand or enhance existing programs, and support statewide efforts to expand treatment court services.

Current funding opportunities from the Office of Justice Programs that support treatment courts can be found on the OJP Current Funding Opportunities page .

More on Treatment Courts from OJP

Visit the following pages for additional information and resources produced or sponsored by the Office of Justice Programs and other federal agencies:

Drug Treatment Courts/Other Problem-Solving Courts

What are drug treatment courts.

The purpose of drug treatment courts is to guide offenders identified as drug-addicted away from jail and into treatment that will reduce drug dependence and improve the quality of life for them and their families. In the typical drug court program, participants are closely supervised by a judge who is supported by a team of agency representatives that operate outside of their traditional adversarial roles including addiction treatment providers, district attorneys, public defenders, law enforcement officers and parole and probation officers who work together to provide needed services to drug court participants. The first adult drug court was implemented in Florida in1989. There are now well over 1,200 adult drug courts operating in all 50 states, the District of Columbia, Puerto Rico and Guam.

There are many different types of courts that operate using a similar, problem solving model, including juvenile drug courts, mental health courts, domestic violence courts, and family treatment drug courts.

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Treatment Courts

Welcome to idaho's treatment courts.

Treatment Courts divert justice involved individuals, with substance abuse issues, from prison and jail into treatment. Matching supervision and behavioral health treatment to the needs of those participating in these treatment courts, can help break the cycle of criminal behavior, alcohol and drug use, and incarceration.

A decade of research indicates Treatment Courts reduce crime by lowering re-arrest and conviction rates, improve substance abuse treatment outcomes, reunite families, and produce measurable cost benefits.

Here you will find information about the Drug, DUI, Mental Health, and Veteran’s Treatment Courts of Idaho’s seven Judicial Districts, resources to assist those who lead, manage, and staff treatment courts in Idaho, and links to a wealth of additional web-based information. Treatment Courts in Idaho operate under the statutory authority of the Idaho Drug Court Act , passed in 2001 by the Idaho Legislature, as part of a coordinated criminal justice strategy to address the drug – crime connection. Also see the Idaho Rules for Treatment Courts (IRTC) .

In 2005, Mental Health Courts were authorized under amendments to the Drug Court Act.

> Idaho Treatment Court Standards Volume 1     Approved January 23, 2020

> Idaho Treatment Court Standards Volume 2     Approved January 23, 2020

> Idaho Supreme Court Treatment Court Quality Assurance Plan     Approved March 6, 2020

> Idaho Juvenile Treatment Court - Best Practices Guidelines     Adopted July 2, 2020

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Bench Cards may be found under Resources and Media here .

The goals of Treatment Courts are to reduce the overcrowding of jails and prisons, to reduce alcohol and drug abuse and dependency among criminal and juvenile offenders, to hold offenders accountable, to reduce recidivism, and to promote effective interaction and use of resources among the courts, justice system personnel and community agencies.

To find out more: Justice Services Division

Email: [email protected]

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WARF v. Apple Reaffirms Kessler Doctrine: Protecting Products from Duplicative Patent Litigation

. . . Indeed, the doctrine was established to fulfill a purpose related to, but distinct from, claim preclusion . . . .

Introduction

In Wisconsin Alumni Research Foundation v. Apple Inc. , Nos. 2022-1884, 2022-1886 (Fed. Cir. Aug. 28, 2024) (“ Decision ”), the United States Court of Appeals for the Federal Circuit considered the preclusive effect of its prior ruling in an appeal of the first of two patent infringement lawsuits brought by WARF against Apple. In that first case, WARF I , a jury found that Apple’s A7 and A8 processors used in Apple’s iPhone and iPad products literally infringed WARF’s U.S. Patent No. 5,781,752 (“the ’752 patent”). However, on appeal, the Federal Circuit reversed the jury’s verdict of literal infringement. See Wis. Alumni Rsch. Found. v. Apple Inc. , 905 F.3d 1341 (Fed. Cir. 2018). The Federal Circuit’s reversal of the jury’s verdict led to a prolonged legal battle in the district court over whether WARF could further pursue its infringement claims under the doctrine of equivalents against the same A7 and A8 processors in a new trial in WARF I , and against Apple’s next-generation A9 and A10 processors in the second lawsuit, WARF II .

The district court ultimately ruled that WARF had waived its doctrine of equivalents theory of infringement in WARF I against Apple’s A7 and A8 processors and that the Federal Circuit’s reversal of the jury’s verdict in WARF I precluded WARF’s claims against Apple’s A9 and A10 processors in WARF II . The district court therefore entered judgment in favor of Apple in both cases. In this second appeal, the Federal Circuit addressed three key issues in affirming the district court’s rulings: WARF’s waiver of the doctrine of equivalents, application of issue preclusion, and, notably, application of the so-called “ Kessler doctrine.” Originating in an early U.S. Supreme Court decision, Kessler v. Eldred , 206 U.S. 285 (1907), the Kessler doctrine is a rarely invoked rule that prevents repeated litigation against the same product following a judgment of non-infringement, even when later litigation is brought against a different accused infringer, for example, a manufacturer’s customer.

The Parties & the Patent

WARF manages the intellectual property arising from research conducted at the University of Wisconsin-Madison. For decades, WARF has played a significant role in both securing patents on behalf of the university and enforcing those patents against entities that allegedly use the claimed technologies without authorization. Apple is a well-known manufacturer of computer and smartphone products.

The ’752 patent, titled Table-Based Data Speculation Circuit for Parallel Processing Computers , was filed in December 1996 and issued in July 1998. The patent claims a method that improves the speed of computer processors by enabling the execution of software instructions using a “predictor circuit.” This predictor circuit identifies certain dependencies among instructions in the software program and predicts whether a given instruction can be executed out of sequence without causing errors—effectively making educated guesses about whether the instruction depends on data from earlier rather than later instructions. By accurately predicting which instructions can be executed in parallel, the predictor circuit increases processing efficiency and reduces delays. WARF alleged that the functions performed by the “Load-Store Dependency (LSD) Predictors” in Apple’s processors infringed the ’752 patent’s claims.

Procedural Background: A Decade of Litigation

WARF filed its first suit against Apple in January 2014, accusing Apple’s A7 and A8 processors of infringing the ’752 patent. In September 2015, the district court conducted a jury trial to resolve the parties' dispute about literal infringement and the disputed claim term, “particular,” appearing in the ’752 patent’s claims. WARF’s case hinged on that claim term because all asserted patent claims required the predictor circuit to generate a prediction associated with a “particular” load instruction. Neither party had asked the court to interpret the meaning of “particular” as used in the claims, leaving its interpretation for the parties to dispute at trial. Decision at 7.

During trial, Apple contended that “particular” referred to a single instruction, not a group of instructions, and therefore argued that because its processors referenced groups of instructions in parallel, they could not literally infringe the patent’s claims. Ultimately, the jury rejected Apple's argument and found that Apple’s A7 and A8 processors literally infringed the patent, and the district court denied Apple’s post-trial motions to set aside the jury’s verdict. Apple appealed, and in 2018, the Federal Circuit reversed the jury’s verdict, ruling that the plain meaning of “particular,” required the prediction to be associated with only one instruction, not a group of instructions. Decision at 4-7.

Shortly before trial commenced in WARF I , WARF filed a second lawsuit against Apple in 2015, referred to in the Decision as WARF II , accusing Apple’s A9 and A10 processors of infringing the same patent claims. The district court stayed this second case during the appeal of WARF I , recognizing that the outcome of the first case would likely impact the second case. After the Federal Circuit’s reversal in WARF I , WARF abandoned its theory of literal infringement against the A9 and A10 processors. Instead, WARF sought to assert its patent claims under the doctrine of equivalents in WARF II against the A9 and A10 processors and likewise sought to reassert its claims under the doctrine of equivalents against the A7 and A8 processors in a new trial in WARF I . Decision at 8-11.

The district court rejected WARF’s attempt to revive its claims, finding that WARF waived its right to assert the doctrine of equivalents against the A7 and A8 processors in WARF I . The district court further held that WARF’s claims against the A9 and A10 processors in WARF II were barred by issue preclusion and the Kessler doctrine based on the outcome of WARF I . The district court entered final judgment in both WARF I and WARF II in favor of Apple. Decision at 11. WARF appealed both judgments to the Federal Circuit.

The Federal Circuit’s Analysis

Issue 1: Waiver of the Doctrine of Equivalents

The doctrine of equivalents allows a patent holder to prove infringement even when the accused product does not literally meet the precise wording of a patent claim, as long as the product performs substantially the same function in substantially the same way to achieve the same result. See generally, Graver Tank & Mfg. Co. v. Linde Air Prods. Co ., 339 U.S. 605 (1950). Initially, WARF sought to rely on both literal infringement and the doctrine of equivalents in WARF I to prove that Apple’s A7 and A8 processors infringed the ’752 patent. However, shortly before trial, WARF made a strategic decision to drop its doctrine of equivalents theory of infringement in exchange for Apple’s agreement to withhold certain evidence related to its own patents. As a result, WARF proceeded to trial solely on a theory of literal infringement. Decision at 6.

Before reaching the issue of waiver, the Federal Circuit addressed WARF’s argument that the court’s 2018 appellate decision materially altered the construction of the term “particular” in a such way that excused WARF’s decision to drop the doctrine of equivalents. WARF essentially argued that had it known the court’s ultimate construction of “particular,” it would not have agreed to abandon its theory of infringement under the doctrine of equivalents. The Federal Circuit rejected that argument, noting that its construction of “particular” was not materially different from the construction urged by Apple when WARF agreed to forego the doctrine of equivalents before trial. Decision at 14.

Undaunted, WARF argued that its situation was nevertheless analogous to that of the patentee in Exxon Chemical Patents, Inc. v. Lubrizol Corp. , 137 F.3d 1475 (Fed. Cir. 1998). There, the patentee, Exxon, asserted both literal infringement and infringement under the doctrine of equivalents during its presentation of evidence at trial. However, the doctrine of equivalents became moot after the close of evidence when the district court narrowly construed the patent claims and instructed the jury on literal infringement only. Despite the jury's ultimate verdict of literal infringement in favor of Exxon, the Federal Circuit overturned the verdict on appeal by construing the claims in a manner that ruled out literal infringement. In a subsequent appeal, Exxon , 137 F.3d at 1457, the Federal Circuit ruled that its mandate in the first appeal incorporating the new claim construction did not preclude a new trial on the doctrine of equivalents because the district court’s claim construction ruling during trial prevented Exxon from presenting that theory to the jury.

WARF thus argued that, like Exxon, it should be entitled to a new trial in WARF I on the doctrine of equivalents due to the Federal Circuit’s reversal of the jury’s verdict of literal infringement. The Federal Circuit, however, distinguished Exxon on several grounds. Unlike Exxon , where the doctrine of equivalents was ultimately mooted during trial after the district court’s claim construction ruling, WARF voluntarily abandoned the doctrine of equivalents before trial had even begun. The district court in WARF I therefore did not preclude WARF from presenting its doctrine of equivalents case to the jury—it was WARF’s own strategic choice. Thus, when the Federal Circuit reversed the literal infringement ruling in WARF I , its mandate pertained solely to the literal infringement issue presented during the trial. The mandate therefore did not authorize the district court to conduct a second trial on the doctrine of equivalents, which WARF had not pursued during trial. Decision at 11-13.

Finally, the Federal Circuit affirmed the district court’s ruling that WARF waived its right to assert the doctrine of equivalents. The court was satisfied that WARF’s decision to forego the doctrine of equivalents before trial, in exchange for Apple’s agreement to forego its presentation of certain evidence, was a deliberate strategic choice that amounted to a waiver. Decision at 12-15 (citing United States v. Hible , 700 F.3d 958, 961 (7th Cir. 2012) (waiver arises when a party “for strategic reasons elects to pursue one argument while foregoing another”); Boss Control, Inc. v. Bombardier Inc. , 410 F.3d 1372, 1380 (Fed. Cir. 2005) (“[F]ail[ing] to present substantive arguments to the district court concerning infringement under the doctrine of equivalents” constitutes a waiver of the issue)). The court thus emphasized that WARF's choice to abandon the doctrine of equivalents before trial could not later be undone when the case did not proceed in its favor. Decision at 16-17. The Federal Circuit, therefore, concluded that the district court properly denied WARF’s motion for a new trial against Apple’s A7 and A8 processors under the doctrine of equivalents. Id . at 20.

Issue 2: Issue Preclusion

The Federal Circuit also affirmed the district court’s application of “issue preclusion” that barred WARF from pursuing infringement claims under the doctrine of equivalents against Apple’s later-developed A9 and A10 processors in WARF II . In doing so, the Federal Circuit explained how its prior ruling in WARF I that the A7 and A8 processors did not literally infringe the ’752 patent precluded WARF’s claims in WARF II , even though the subsequent litigation involved different products and a different theory of infringement.

Issue preclusion, also known as collateral estoppel, prevents a party from relitigating an issue that was already decided in a prior case. For issue preclusion to apply, four elements must be met: (1) the issue must be identical to one involved in a prior action; (2) the issue must have been actually litigated; (3) the issue’s determination must have been essential to the final judgment; and (4) the party against whom estoppel is invoked must have been represented in the prior action. See Adair v. Sherman , 230 F.3d 890, 893 (7th Cir. 2000); Soverain Software LLC v. Victoria’s Secret Direct Brand Mgmt., LLC , 778 F.3d 1311, 1315 (Fed. Cir. 2015).

Here, the dispute centered on the first two elements—whether the patent infringement issues in WARF I and WARF II are identical. According to WARF, the literal infringement issue litigated in WARF I is materially different from the doctrine of equivalents issue to be litigated in WARF II . Decision at 21-22. In support, WARF relied on a single quotation from the Supreme Court’s decision in B&B Hardware, Inc. v. Hargis Indus., Inc. , 575 U.S. 138, 154 (2015) for the notion that “[i]ssues are not identical if the second action involves application of a different legal standard, even though the factual setting of both suits may be the same.” Id . at 154. Despite the apparent relevance of that quoted language to WARF’s argument, the Federal Circuit found that the facts of B&B Hardware favored Apple.

In B&B Hardware , the Supreme Court considered whether a ruling by the Trademark Trial and Appeal Board (TTAB) could preclude relitigation of the same issue in a federal district court. Although the TTAB and district court proceedings arose from separate statutory frameworks with different objectives in mind—15 U.S.C. § 1052 (trademark registration) and 15 U.S.C. § 1114 (trademark infringement)—both statutes require application of the same likelihood-of-confusion test to the trademark at issue. At the TTAB, B&B opposed Hargis’s attempt to register a trademark, arguing that it was confusingly similar to B&B’s existing trademark. The TTAB ruled in favor of B&B, finding a likelihood of confusion. The Supreme Court held that the TTAB’s decision thereafter precluded Hargis from contesting likelihood of confusion as a defense in the parallel trademark infringement lawsuit initiated by B&B against Hargis in the district court. The Supreme Court explained that minor differences in how the same legal standard was applied did not prevent the preclusion of Hargis’s later trademark infringement defense by collateral estoppel. Specifically, the Supreme Court held that “minor variations in the application of what is in essence the same legal standard do not defeat preclusion.” Id.

Applying this reasoning, the Federal Circuit noted that both literal infringement and the doctrine of equivalents arise from the same statutory provision—35 U.S.C. § 271(a), which defines direct infringement. The court reasoned, therefore, that while literal infringement and the doctrine of equivalents involve different tests, they are both grounded in the same statute and ultimately address the same issue —whether the accused product directly infringes the patent. The Federal Circuit thus expressly articulated for the first time that literal infringement and the doctrine of equivalents are not separate issues for preclusion purposes—both address the same issue of direct infringement under § 271(a). Decision at 30-31 (citing Nystrom v. Trex Co. , 580 F.3d 1281, 1286 (Fed. Cir. 2009) (second suit under doctrine of equivalents not permitted); Aspex Eyewear, Inc. v. Marchon Eyewear, Inc. , 672 F.3d 1335, 1343 (Fed. Cir. 2012) (clarifying that Nystrom applied doctrine of issue preclusion)). The Federal Circuit reasoned that to hold otherwise would allow patent holders to litigate the same § 271(a) direct infringement claim twice, shifting from one theory to the other in the event of an unfavorable outcome. Decision at 31-32 (citing Galderma Labs., L.P. v. Amneal Pharms., LLC , 337 F. Supp. 3d. 371, 411 (D. Del. 2018) (not treating literal and doctrine-of-equivalents infringement as a single issue would result in “a decidedly wasteful use of judicial resources”)) .

Finally, WARF argued that issue preclusion should not apply because the A9 and A10 processors are not the same products, i.e. , not the A7 and A8 processors that were litigated in WARF I . The Federal Circuit rejected this argument, citing ArcelorMittal Atlantique et Lorraine v. AK Steel Corp. , 908 F.3d 1267, 1274 (Fed. Cir. 2018), which held that issue preclusion can apply to different products if they are “essentially the same.” Ultimately, the court found no clear error in the district court’s determination that the LSD Predictors in the A7/A8 and A9/A10 processors are “essentially the same” for purposes of the asserted patent claims. Thus, the Federal Circuit’s prior judgment of no literal infringement in WARF I concerning the A7 and A8 processors applied with equal force to the A9 and A10 processors in WARF II . Decision at 26. This factual finding was echoed in the Federal Circuit’s application of the Kessler doctrine.

Issue 3: Application of the Kessler Doctrine

The Federal Circuit similarly determined that WARF’s infringement claims against the A9 and A10 processors in WARF II were barred by the Kessler doctrine, an often-overlooked legal principle established by the U.S. Supreme Court in Kessler , 206 U.S. at 285. Like issue preclusion, but for different reasons, this doctrine also prevents a patent holder from repeatedly asserting the same patent infringement claims against the same accused infringer once a court has ruled that the accused product does not infringe. Indeed, the doctrine was established to fulfill a purpose related to, but distinct from, claim preclusion. The Kessler doctrine is aimed, not at protecting the same accused infringer, but instead at protecting the same product from later infringement claims even if the patent owner accuses a different, unrelated party of infringement. The doctrine thus immunizes the product from subsequent infringement claims, regardless of who makes, uses, or sells it.

In this case, Apple invoked the Kessler doctrine to argue that the Federal Circuit’s ruling of non-infringement in WARF I immunized not only its A7 and A8 processors but also the A9 and A10 processors at issue in WARF II . As with issue preclusion, Apple maintained that the A9 and A10 processors were merely updated versions of the A7 and A8 processors and, therefore, should receive the same protection under the Kessler doctrine. WARF, however, countered that the Kessler doctrine does not apply because the A9 and A10 processors were not actually litigated in WARF I . And because the A9 and A10 processors are not the “same products” as the earlier adjudicated processors, they cannot benefit from the earlier non-infringement ruling. Decision at 35-36.

The Federal Circuit agreed with Apple and affirmed the district court’s conclusion that the Kessler doctrine barred WARF’s claims against the A9 and A10 processors. Noting that it had “applied the Kessler doctrine in limited circumstances,” the Federal Circuit nevertheless found that its precedent determined the outcome in this case. Decision at 33. For example, in Brain Life v. Elekta Inc. , 746 F.3d 1045, 1056 (Fed. Cir. 2014), the court applied the Kessler doctrine to bar a second lawsuit asserting the patent’s method claims after the patent holder had unsuccessfully asserted the patent’s apparatus claims in an earlier lawsuit. The court explained that once the accused products were adjudged to be non-infringing with respect to the asserted apparatus claims, the defendant was “free to continue engaging in the accused commercial activity as a non-infringer.” Id . at 1058. This applied even though the second lawsuit involved allegations concerning later versions of the previously adjudicated products. The court concluded that because there were “no material differences” between the products in the two suits, the Kessler doctrine barred the second lawsuit. Id .

In SpeedTrack v. Office Depot, Inc., 791 F.3d 1317, 1329 (Fed. Cir. 2015), the plaintiff, SpeedTrack, moved to amend its infringement contentions to include the doctrine of equivalents shortly after Office Depot moved for summary judgment of no literal infringement. The district court denied SpeedTrack’s motion to amend and entered summary judgment of non-infringement in favor of Office Depot. In response, SpeedTrack filed a second lawsuit, this time asserting infringement under the doctrine of equivalents. The Federal Circuit affirmed the dismissal of the second suit under the Kessler doctrine. In doing so, the court explained that the Kessler doctrine plays a necessary gap-filling role, extending the protections afforded by claim and issue preclusion to avoid “the type of harassment the Supreme Court sought to prevent in Kessler .” Id . (quoting SpeedTrack , 791 F.3d at 1328).

Applying this precedent, the Federal Circuit found that WARF’s later-attempt to litigate the A9 and A10 processors under the doctrine of equivalents was barred by the Kessler doctrine for the reasons stated in Brain Life and SpeedTrack . The court emphasized that there was little difference between the facts in SpeedTrack and WARF , except that SpeedTrack involved the same product across both suits, whereas WARF accused subsequent versions of the previously adjudicated processors. However, as the court found in Brain Life , the non-infringing status of a product applies to subsequent versions of the product as long as there are “no material differences” between the products in each suit. Decision at 35. Because the court found the A9 and A10 processors to be essentially the same as the non-infringing A7 and A8 processors, the Kessler doctrine barred WARF’s second lawsuit. Id .

Finally, the Federal Circuit also rejected WARF’s argument that the Kessler doctrine did not apply because many of the A9 and A10 processors were sold before the final judgment of non-infringement in WARF I . The Federal Circuit clarified that the Kessler doctrine bars claims against products sold both before and after a final judgment of non-infringement, as suggested by the court’s holding in SpeedTrack . See SpeedTrack , 791 F.3d at 1318 (“the Kessler doctrine precludes SpeedTrack’s claims in full ”). The court, therefore, concluded that WARF’s claims against Apple’s A9 and A10 processors were properly and completely barred under the Kessler doctrine. Decision at 36.

The Federal Circuit’s decision in WARF v. Apple not only clarified the principles of waiver and issue preclusion but also revitalized the often-overlooked Kessler doctrine as a potent tool ensuring finality in patent litigation. By confirming that literal infringement and the doctrine of equivalents are treated as the same issue for preclusion purposes, and by applying the Kessler doctrine to later generations of Apple’s processors, the court effectively ended WARF’s decade-long pursuit of enforcing the ’752 patent against Apple. For patent practitioners, these rulings underscore the need for patent holders to carefully consider the full scope and implications of their infringement theories, as procedural choices and strategic decisions made early in a case may limit future opportunities to relitigate similar claims.

As a pathfinder in global disputes resolution, YMF Law Tokyo leverages three decades of experience in complex cross-border litigation in representing Japanese clients before U.S. courts and assisting U.S., European, and other clients located outside of Japan in coordinating local investigations and disputes in Japan with their Japanese counsel. If we can be of assistance, please visit https://www.ymf-law.com or email to [email protected] .

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Moscow court sentences U.S. citizen Robert Woodland to 12.5 years in prison for drug trafficking

MOSCOW (AP) — Robert Woodland, a Russia-born U.S. citizen, was convicted of drug-related charges by a Moscow court and sentenced to 12 1/2 years in prison on Thursday, court officials and his lawyers said.

He was found guilty of attempted trafficking of large amounts of illegal drugs as part of an organized group, according to an online statement released by court officials, and sentenced to 12 1/2 years in a maxim security penal colony. His lawyers told reporters after the verdict was delivered Thursday that they will appeal the ruling because Woodland’s guilt hasn’t been proven.

READ MORE: Detention of Russian-American journalist has been extended in Russia

Lawyer Stanislav Kshevitsky also said that Woodland has been suffering from unspecified mental health issues. He didn’t provide any details, but said that the court didn’t take those issues into account.

Russian media reported that his name matches a U.S. citizen interviewed in 2020 who said he was born in the Perm region in 1991 and adopted by an American couple at age 2.

He said he traveled to Russia to find his mother and eventually met her on a TV show before deciding to move to Russia. Russian news agency Interfax has cited court officials as saying that Woodland also holds Russian citizenship.

Arrests of Americans in Russia have become increasingly common as  relations between Moscow and Washington  sink to Cold War lows. Washington accuses Moscow of targeting its citizens and using them as political bargaining chips, but Russian officials insist they all broke the law.

WATCH: As Gershkovich’s trial begins, a look at the chances of a U.S.-Russia prisoner swap

Some have been exchanged for Russians held in the U.S., while for others,  the prospects of being released  in a swap are less clear.

Woodland was arrested in January. At the time, the U.S. State Department said it was aware of reports of the recent detention of a U.S. citizen and noted that it “has no greater priority than the safety and security of U.S. citizens overseas,” but refrained from further comment, citing privacy considerations. The U.S. Embassy in Moscow issued a similar statement at the time.

There was no immediate comment from U.S. officials on the verdict.

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US citizen who was arrested in Moscow on drug charges appears in court

U.S. citizen Robert Woodland Romanov sits in a cage prior to a court session on drug-related charges in Moscow, Russia, Monday, April 15, 2024. A U.S. citizen arrested on drug charges in Moscow amid soaring Russia-U.S. tensions has appeared in court. Robert Woodland Romanov is facing charges of trafficking large amounts of illegal drugs as part of an organized group — a criminal offense punishable by up to 20 years in prison. (AP Photo/Alexander Zemlianichenko)

U.S. citizen Robert Woodland Romanov sits in a cage prior to a court session on drug-related charges in Moscow, Russia, Monday, April 15, 2024. Romanov is facing charges of trafficking large amounts of illegal drugs as part of an organized group — a criminal offense punishable by up to 20 years in prison. (AP Photo/Alexander Zemlianichenko)

U.S. citizen Robert Woodland Romanov sitss in a cage prior to a court session on drug-related charges in Moscow, Russia, Monday, April 15, 2024. Romanov is facing charges of trafficking large amounts of illegal drugs as part of an organized group — a criminal offense punishable by up to 20 years in prison. (AP Photo/Alexander Zemlianichenko)

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MOSCOW (AP) — A U.S. citizen arrested on drug charges in Moscow amid soaring Russia-U.S. tensions over Ukraine appeared in court on Monday.

Robert Woodland Romanov is facing charges of trafficking large amounts of illegal drugs as part of an organized group — a criminal offense punishable by up to 20 years in prison. He was remanded into custody in January, and the trial began in the Ostankino District Court in late March. A new court hearing is scheduled for next week.

In January, the U.S. State Department said it was aware of reports of the recent detention of a U.S. citizen and noted that it “has no greater priority than the safety and security of U.S. citizens overseas,” but refrained from further comment, citing privacy considerations. The U.S. Embassy in Moscow issued a similar statement at the time.

Russian media noted that the name of the accused matches that of a U.S. citizen interviewed by the popular daily Komsomolskaya Pravda in 2020.

In the interview, the man said that he was born in the Perm region in the Ural Mountains in 1991 and was adopted by an American couple when he was 2. He said that he traveled to Russia to find his Russian mother and eventually met her on a TV show in Moscow.

The man told Komsomolskaya Pravda that he liked living in Russia and decided to move there. The newspaper reported that he settled in the town of Dolgoprudny just outside Moscow and was working as an English teacher at a local school.

Arrests of Americans in Russia have become increasingly common as relations between Moscow and Washington sink to Cold War lows. Washington accuses Moscow of targeting its citizens and using them as political bargaining chips, but Russian officials insist they all broke the law.

Some have been exchanged for Russians held in the U.S., while for others, the prospects of being released in a swap are less clear .

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Supreme Court rejects bid to restrict access to abortion pill

In a blow for anti-abortion advocates, the  Supreme Court  on Thursday rejected a challenge to the abortion pill mifepristone , meaning the commonly used drug can remain widely available.

The court  found unanimously  that the group of anti-abortion doctors who questioned the Food and Drug Administration’s decisions making it easier to access the pill did not have legal standing to sue. 

President Joe Biden said in a statement that while the ruling means the pill can remain easily accessible, “the fight for reproductive freedom continues” in the aftermath of the Supreme Court’s ruling two years ago that overturned abortion rights landmark Roe v. Wade.

“It does not change the fact that the right for a woman to get the treatment she needs is imperiled if not impossible in many states,” he added.

Justice Brett Kavanaugh, writing for the court, wrote that while plaintiffs have “sincere legal, moral, ideological, and policy objections to elective abortion and to FDA’s relaxed regulation of mifepristone,” that does not mean they have a federal case.

The plaintiffs failed to show they had suffered any injury, meaning that “the federal courts are the wrong forum for addressing the plaintiffs’ concerns about FDA’s actions,” he added.

“The plaintiffs may present their concerns and objections to the president and FDA in the regulatory process or to Congress and the president in the legislative process,” Kavanaugh wrote. “And they may also express their views about abortion and mifepristone to fellow citizens, including in the political and electoral processes.”

The legal challenge was brought by doctors and other medical professionals represented by the conservative Christian legal group Alliance Defending Freedom.

“We are disappointed that the Supreme Court did not reach the merits of the FDA’s lawless removal of commonsense safety standards for abortion drugs,” said Erin Hawley, one of the group’s lawyers. She told reporters she is hopeful the underlying lawsuit can continue because three states — Idaho, Missouri and Kansas — have brought their own claims and have different arguments for standing.

By throwing out the case on such grounds, the court avoided reaching a decision on the legal merits of whether the FDA acted lawfully in lifting various restrictions, including one making the drug obtainable via mail, meaning the same issues could yet return to the court in another case.

Another regulatory decision left in place means women can still obtain the pill within 10 weeks of gestation instead of seven. 

Likewise a decision to allow health care providers other than physicians to dispense the pill will remain in effect.

The court’s decision to roll back abortion rights two years ago led to a wave of new abortion restrictions in conservative states.

Then, the court suggested it was removing itself from the political debate over abortion, but with litigation continuing to rage over abortion access, the justices are continuing to play a pivotal role. 

Abortion rights supporters welcomed the ruling, with Nancy Northup, president of the Center for Reproductive Rights, saying she was relieved at the outcome but angered about the case lingering in the court system so long.

“Thank goodness the Supreme Court rejected this unwarranted attempt to curtail access to medication abortion, but the fact remains that this meritless case should never have gotten this far,” she said in a statement.

Danco Laboratories, manufacturer of Mifeprex, the brand version of mifepristone, praised the ruling too, saying it was good for the drug approval process writ large.

In rejecting the challenge, the court “maintained the stability of the FDA drug approval process, which is based on the agency’s expertise and on which patients, health care providers and the U.S. pharmaceutical industry rely,” company spokeswoman Abigail Long said.

Anti-abortion groups expressed disappointment, saying that the ruling highlighted the importance of this year’s election in which Democrat Biden, who has pledged to defend abortion rights, faces off against Republican Donald Trump, who has the strong backing of conservatives who oppose abortion.

“Joe Biden and the Democrats are hell-bent on forcing abortion on demand any time for any reason, including DIY mail-order abortions, on every state in the country,” Marjorie Dannenfeiser, president of SBA Pro-Life America, said.

If Trump were to win the election, his appointees to the FDA would be a position to impose new restrictions on mifepristone. Biden’s campaign manager, Julie Chavez-Rodriguez, alluded to the possibility in a call with reporters after the ruling. Calling the case “one tactic in a broader, relentless strategy” by anti-abortion activists, Chavez-Rodriguez said if Trump is elected, his advisers and allies would try to ban abortion nationwide “without the help of Congress or the court,” and also restrict access to contraception — a threat, she said, to blue as well as red states.

The mifepristone dispute is not the only abortion case currently before the court. It is also due to decide whether  Idaho’s strict abortion ban  prevents doctors in emergency rooms from performing abortions when a pregnant woman is facing dangerous complications.

Mifepristone is used as part of a two-drug FDA-approved regimen that is now the most common form of abortion in the United States.

Abortion is effectively banned altogether in 14 states, according to the Guttmacher Institute, a research group that backs abortion rights.

The FDA had the backing of the pharmaceutical industry, which has warned that any second-guessing of the approval process by untrained federal judges could  cause chaos and deter innovation.

Last year, Texas-based U.S. District Judge Matthew Kacsmaryk issued a sweeping ruling that completely invalidated the FDA’s approval of the pill, leading to panic among abortion-rights activists that it would be banned nationwide.

The Supreme Court last April put that ruling on hold, meaning the pill remained widely available while litigation continued.

The New Orleans-based 5th U.S. Circuit Court of Appeals in August then narrowed Kacsmaryk’s decision but left in place his conclusion that the FDA’s move to lift restrictions starting in 2016 was unlawful.

Both sides appealed to the Supreme Court. The court in December took up the Biden administration’s appeal in defense of the later FDA decisions, but it opted against hearing the challenge to the original approval of mifepristone in 2000. 

The Supreme Court focused solely on the later FDA action, including the initial 2021 decision that made the drug available by mail, which was finalized last year.

This article first appeared on NBCNews.com .

Lawrence Hurley covers the Supreme Court for NBC News Digital.

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Lupin's Generic Kidney-Function-Decline Drug Launch 'At Risk', Says Citi; Maintains 'Sell'

Citi research maintained a 'sell' rating on lupin as besides the immediate issue with jynarque, the pharma company's broader pipeline raises concerns about long-term earnings sustainability..

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Lupin's decision to proceed with the launch of generic Jynarque tablets used to slow kidney function decline in adults has been classified as an "at risk" launch by Citi Research. This means Lupin might face lower market share and potential delays due to the injunction or restraining order by Otsuka Pharmaceutical against a district court ruling that previously favoured Lupin in the patent dispute over generic Jynarque.

Jynarque is used to slow the progression of kidney function decline in adults who are at high risk for rapidly advancing autosomal dominant polycystic kidney disease.

The appeal introduces potential complications for Lupin's planned launch of the generic version scheduled for April 2025, placing it in a precarious position.

On July 31, the district court's decision appeared to clear the path for Lupin, as it invalidated one of Otsuka’s patents and deemed another valid but not infringed by Lupin's proposed generic.

This ruling initially allowed Lupin to move forward with a 180-day exclusivity period for its generic Jynarque. However, Otsuka's new appeal introduces fresh uncertainty.

The patents involved are process patents, which are often less critical than compound patents and have already expired for other Tolvaptan brands. Despite this, past cases such as Copaxone and Suboxone demonstrate that innovators can sometimes delay generics through prolonged litigation.

Analysts at Citi Research maintain a 'sell' rating over the company as besides the immediate issue with Jynarque, Lupin's broader pipeline raises concerns about long-term earnings sustainability.

Lupin Launches Generic Cancer Treatment Drug In US Market

With Jynarque expected to contribute approximately 30% to the company's earnings per share for fiscal 2026, a successful appeal by Otsuka could significantly impact Lupin’s financial projections.

The company's pipeline lacks major products that could counterbalance a potential decline in Jynarque's contribution.

Shares of the company fell as much as 3.14% to Rs 2,186 apiece, the lowest level since Aug. 29, 2024. The stock pared losses to trade 1.4% lower at Rs 2,227.30 per share as of 12:11 pm. This compares to a 0.06% decline in the NSE Nifty 50 index.

The stock has risen 68.56% year-to-date. Total traded volume so far in the day stood at 0.38 times its 30-day average. The relative strength index was at 67.8.

Out of 35 analysts tracking the company, 16 maintain a 'buy' rating, 10 recommend a 'hold,' and nine suggest a 'sell,' according to Bloomberg data. The average 12-month consensus price target implies a downside of 10%.

Stock Market Today: Nifty Snaps Three-Day Decline As ICICI Bank, ITC Shares Lead

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