The Drug Court Response: Issues and Implications for Justice Change

Abstract

Whenever new type of arises, the primitive device is to set up a new court .... [I]n a time in which unification is sorely needed, the tendency to make new courts is still strong with us.(1) I. INTRODUCTION: THE EMERGENCE OF A JUDICIAL INNOVATION Judicial Fad or Catalyst for Fundamental Change in the Courts? By all measures, the growth of drug treatment courts in the United States has been extraordinary since the establishment of the first court in Dade County, Florida in 1989.(2) There are upwards of 425 courts reportedly now in operation and others in some stage of planning or preparation.(3) Dean Pound's comments from just after the turn of the last century offer a historical precedent for posing useful questions about the extent to which the drug court movement represents significant change in the way courts deliver and about why criminal courts are the preferred vehicle for accomplishing these aims.(4) Pound's explicit criticism that the establishment of the specialized courts of his time (e.g., juvenile court, family court, probate court) represented poorly thought-out, short-sighted responses to any new type of cause or problem-of-the-moment deserves serious consideration in assessing the real contributions of drug courts.(5) Were he alive today, he would most certainly be concerned about the sudden popularity of the practice (primitive device) of setting up new problem-solving(6) or problem-oriented(7) courts to address particular, extra-legal problems commonly associated with the citizens involved in the criminal caseload. His critical questioning would almost certainly extend to increasing adoption of community courts, domestic violence courts, mental health courts, gun courts, teen courts, re-entry courts and other courts around the nation specializing narrowly in certain categories of defendant and offender problems. Pound's concern was based on his belief that the criminal courts (really, the administration of in the modern city) should operate as an integrated, cohesive whole, flexible enough to resolve the wide variety of matters before them.(8) He argued that their mission was weakened by the fragmentation, dilution of resources, duplication of effort, and ineffectiveness that was likely to result when separate, competing, courts were narrowly dedicated to focus on very particularized problems.(9) Pound's critical perspective on the function of the criminal courts raises questions about the fairly striking adaptations of court procedure associated with treatment drug courts and their progeny. Taken at its most challenging, and as envisioned by its most ardent proponents, the drug court model potentially represents the first stages of a fundamental paradigm shift in away from a predominantly punitive orientation (a.k.a. justice as usual) toward an approach that seeks to confront and meliorate the problems associated with persons who appear in the criminal caseload,(10) The challenges implicit in this approach are fundamental and draw into the criminal court setting expertise from health and behavioral sciences as well as linkages with a variety of social services in relationships and configurations that produce a new mix of values, aspirations and methods to guide the judicial process.(11) To proponents, drug courts represent a major and promising departure from what had become an unrewarding routine of processing, punishing and re-punishing drug offenders to little avail.(12) Instead, the drug court model takes on root causes of crime more easily ignored or viewed as someone else's responsibility.(13) To these proponents, the drug court model signals an important shift in philosophy from punishment for drug-involved offenders to helping offenders involved with drugs.(14) To skeptics, and there still are some, the emergence of drug courts may be seen as a nostalgic yearning for the idealism of an earlier decade (perhaps the 1960s) that never really existed. …