When New York state’s Chief Judge Judith Kaye announced last summer that she planned to make drug treatment a sentencing option for all state courts–not just special drug courts–it sounded like the ideal “third way” drug policy. For liberals skittish of legalization, coerced treatment replaces the punishment of prison with the compassion of care; for conservatives, it gets addicts off the street more cheaply, but they still face the hammer of incarceration if they fail.

Under Kaye’s plan, slated to be phased in gradually, starting upstate, recurrent misdemeanor drug offenders could be sentenced to coerced drug treatment instead of a jail term.

Diverting nonviolent offenders to treatment sounds great in principle, which is why it’s part of many drug reform efforts. As a safety valve for a justice system decimated by the Rockefeller Drug Laws, mandatory treatment is tempting–compared to regular criminal courts, drug courts work. But while its proponents can point to its success at unclogging courts and prisons, coerced treatment isn’t just a legal fix; it’s also a clinical enterprise. Both literature and experience show that as a solution to addiction, coerced treatment has some serious problems.

Treatment providers have long claimed that forcing people into treatment gives them a better chance of recovery. Some even say their programs can’t work without it. Addicts mandated into treatment are forced to stick around for the length of the program, and study after study has shown that people who stay in treatment longer do better.

But while coerced addicts’ length of stay may be greater, their success rate is not, making it less effective–and more costly–thank voluntary treatment. When the National Institute on Drug Abuse reviewed the body of “outcome studies” comparing court-mandated to voluntary patients, they found no measurable statistical difference in success rates, even though coerced patients stayed in treatment longer.

There’s a reason the extra time doesn’t help. Length of stay is really a measure of motivation: The most motivated patients tend to stay longest, and do best afterwards. But forced treatment is a far cry from motivation. In fact, a large body of research from general psychology suggests that coercion actually reduces peoples’ desire to change because it makes them feel controlled.

Current clinical research on substance abuse treatment confirms this. In studies conducted on drug and alcohol treatment, both William Miller of the University of New Mexico and Alan Marlatt of the University of Washington-Seattle found that the more personal investment an addict has in their recovery, the greater their commitment to it, and the better their chances of success. Studies also show that a coercive and confrontational attitude from providers actually increases relapse rates. In short, empathy, support and empowerment produce much better results, but these traits are hardly likely to be found among counselors dealing with a room full of people who don’t want to be there.

That same room is also less likely to be therapeutic for voluntary patients. Coerced addicts can be inspired by voluntary addicts, says Howard Josepher, executive director of ARRIVE, a program that trains current and former drug users to do AIDS prevention outreach, but the reverse is less likely. People committed to recovery are inhibited if others are just biding their time or even making fun of those who are sincere; members of 12-step programs say meetings dominated by court-mandated attendees are less helpful. If all or most of the patients are coerced, “a treatment center is unbalanced,” says Josepher, who was sentenced to treatment himself 30 years ago. “It could dampen the spirit.”

But Kaye’s plan threatens to make coercion the norm, diverting the flood of convictions from the overloaded court system and into treatment centers, loading them with coerced patients.

Worse yet, increasing the numbers of coerced patients in treatment could lengthen waiting lists for voluntary patients. With New York’s limited number of treatment programs–none come close to providing enough appropriate slots for all who want them–Kaye’s plan gives priority to those who don’t want help, while those who seek it can’t get it. Coerced treatment assumes that everyone caught possessing drugs is addicted–an assumption that is clearly not true for marijuana and may not even be the case for hard drugs. Making it easier to get care for addictions by committing a crime than by simply entering treatment would be yet another bitter drug war irony.

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So what can policy-makers do realistically? There are some common-sense solutions out there. One of them, pioneered by UCLA professor Mark Kleiman and applied to 7,000 parolees and probationers in Maryland, is to coerce abstinence, not treatment.

People busted for drug possession or for drug-related petty crime are sentenced to intensive probation, primarily frequent drug-testing. With each positive test, they face swift, sure consequences–rapidly increasing sanctions, up to a day or two in jail. Behavioral research shows that immediate penalties are far more likely to change behavior than the far-off possibility of a long, harsh sentence.

The program, called Breaking the Cycle, is designed to test for addiction. After a few rounds of sanctions, people who thought they could handle their addictions realize that they can’t–and are more likely to seek help. Treatment is made easily accessible at the first sign of interest.

Thanks to bureacratic bungling and lack of adequate funding, the program only sanctioned 20 percent of those who tested positive in the program’s early phases. But even a one-in-five chance of sanctions had an effect: After taking 16 drug tests, the number of subjects testing positive was cut in half, and participants were 23 percent less likely than ordinary probationers or parolees to be re-arrested for new crimes.

Kleiman’s system avoids putting people who don’t need or want treatment into care, cuts treatment costs by keeping out those who can control themselves, and cuts incarceration costs by not locking up those who stop using on their own. It also increases motivation for treatment–and avoids filling centers with patients who don’t want help.

Addicts, like everyone else, respond best to being treated with compassion and dignity. Instead of turning treatment into punishment, effective solutions inspire–and reward–the genuine desire to quit.

And it can work. “If you get the right balance, you can ignite those coerced clients, you can motivate them–if they become part of a community that does want to change,” says Josepher. “Seeing other people’s desire to get better was something that captured my imagination and made me want to be a part of it.” •

Maia Szalavitz is a co-author of Recovery Options: The Complete Guide: How You and Your Loved Ones Can Understand and Treat Alcohol and Other Drug Problems (Wiley 2000).