Redefining criminal courts: Problem-solving and the meaning of justice

American Criminal Law Review

Volumn 40, Issue 4, 2003, Pages 1541-1565

  Nolan Jr , James L ^a  

^a WILLIAMS COLLEGE   (United States)

Author keywords

[No Author keywords available]

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EID: 2442462407     PISSN: 01640364     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (142)

1. See generally MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY (1994); Susan Daicoff, The Role of Therapeutic Jurisprudence within the Comprehensive Law Movement, in PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS HELPING PROFESSION 465 (Dennis P. Stolle, et al. eds., 2000); Arie Freiberg, Problem Solving Courts: Innovative Solutions to Intractable Problems?, 11 J. JUDICIAL ADMINISTRATION 8 (2001).
2. See generally MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY (1994); Susan Daicoff, The Role of Therapeutic Jurisprudence within the Comprehensive Law Movement, in PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS HELPING PROFESSION 465 (Dennis P. Stolle, et al. eds., 2000); Arie Freiberg, Problem Solving Courts: Innovative Solutions to Intractable Problems?, 11 J. JUDICIAL ADMINISTRATION 8 (2001).
3. See generally MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY (1994); Susan Daicoff, The Role of Therapeutic Jurisprudence within the Comprehensive Law Movement, in PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS HELPING PROFESSION 465 (Dennis P. Stolle, et al. eds., 2000); Arie Freiberg, Problem Solving Courts: Innovative Solutions to Intractable Problems?, 11 J. JUDICIAL ADMINISTRATION 8 (2001).
4. Parts of this article are derived from revised versions of material in, James L. Nolan, Jr., Preface to DRUG COURTS: IN THEORY AND IN PRACTICE, at vii-xiv (James L. Nolan, Jr. ed., 2002); JAMES L. NOLAN, JR., REINVENTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT 185-208 (2001). Unless indicated otherwise, all quotes from judges and other drug court practitioners are from the author's ethnographic research conducted between 1994 and 1998. See id. at 11-13 for a full description of research methods.
5. Parts of this article are derived from revised versions of material in, James L. Nolan, Jr., Preface to DRUG COURTS: IN THEORY AND IN PRACTICE, at vii-xiv (James L. Nolan, Jr. ed., 2002); JAMES L. NOLAN, JR., REINVENTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT 185-208 (2001). Unless indicated otherwise, all quotes from judges and other drug court practitioners are from the author's ethnographic research conducted between 1994 and 1998. See id. at 11-13 for a full description of research methods.
6. Daicoff, supra note 1, at 466 & note 8; see also Freiberg, supra note 1, at 9 (arguing that the need for new legal approaches has resulted, in part, from "a breakdown in traditional social and community institutions which have supported individuals in the past").
7. David Rottman & Pamela Casey, Therapeutic Jurisprudence and the Emergence of Problem-Solving Courts, NAT'L INST. JUST. J. 13, 13 (1999) (tracing the development of the new problem-solving model).
8. Id.; see also Greg Berman, What is a Traditional Judge Anyway? Problem Solving in the State Courts, 84 JUDICATURE 78, 80 (2000) (comments of Judge Judith S. Kaye) (offering the perspective of a judge on "the breakdown of the family and of other traditional safety nets").
9. See Jeffrey A. Butts, Introduction: Problem-Solving Courts, 23 L. & POL'Y 121, 121 (2001) ("Drug courts are the most visible type of problem-solving court.").
10. Greg Berman & John Feinblatt, Problem-Solving Courts: A Brief Primer, 23 L. & POLICY 125, 126 (2001). Freiberg similarly notes, "The genesis of modern problem-solving courts can be found in the first drug court experiment in Dade County Florida in 1989." Freiberg, supra note 1, at 12.
11. Arthur Santana, Behavioral Advice From the Bench: D. C. Court Swaps Jail Time for Life Changes in Misdemeanors, WASH. POST, Dec. 2, 2002, at A10.
12. BUREAU OF JUSTICE ASSISTANCE, COMMUNITY COURTS: AN EVOLVING MODEL 9 (2000).
13. Berman & Feinblatt, supra note 7, at 127.
14. Arie Freiberg, Specialised Courts and Sentencing 5 (2002) (unpublished manuscript, presented at Probation and Community Corrections: Making the Community Safer Conference, convened by the Australian Inst. of Criminology, and the Probation and Cmty. Corr. Officers' Ass'n. Inc.), available at http: //www.aic.gov.au/conferences/probation (last visited Nov. 20, 2003).
15. Freiberg, supra note 1, at 16.
16. Wendy N. Davis, Special Problems for Specialty Courts, 89 A.B.A. J. 32, 37 (2003).
17. I b i d.
18. Freiberg, Specialised Courts and Sentencing, supra note 11, at 4.
19. Freiberg, supra note 1, at 18.
20. Carrie J. Petrucci, Respect as a Component in the Judge-Defendant Interaction in a Specialized Domestic Violence Court that Utilizes Therapeutic Jurisprudence, 38 CRIM. L. BULL. 268 (2002).
21. Center for Court Innovation, Problem-Solving Courts: Chronology, at http://www.problem-solvingcourts. org (last visited Nov. 20, 2003).
22. Petrucci, supra note 17, at 288.
23. Berman, supra note 5, at 78.
24. Id. at 85 (comments of John Goldkamp).
25. As Arie Freiberg notes, "the overlay of a philosophical basis on the problem-oriented court model came with the development of the concept of 'therapeutic jurisprudence.'" Freiberg, supra note 1, at 11. Rottman and Casey likewise observe: Various approaches are being tested across the country following a variety of principles, including those of therapeutic jurisprudence, which explore the role of the law in fostering therapeutic or antitherapeutic outcomes....Restorative justice and community justice are related approaches to problem solving that offer the field of therapeutic jurisprudence potential strategies for achieving therapeutic outcomes. Rottman & Casey, supra note 4, at 13. See also John Feinblatt, et al., Judicial Innovation at the Crossroads: The Future of Problem-Solving Courts, 15 CT. MANAGER 28, 30 (2000). Feinblatt et al. note, "Some observers have looked at these kinds of reforms and applied labels like 'therapeutic jurisprudence' and 'restorative justice' to problem-solving courts. And, in fact, problem-solving courts do draw upon some elements of these philosophies." Id.
26. As Arie Freiberg notes, "the overlay of a philosophical basis on the problem-oriented court model came with the development of the concept of 'therapeutic jurisprudence.'" Freiberg, supra note 1, at 11. Rottman and Casey likewise observe: Various approaches are being tested across the country following a variety of principles, including those of therapeutic jurisprudence, which explore the role of the law in fostering therapeutic or antitherapeutic outcomes....Restorative justice and community justice are related approaches to problem solving that offer the field of therapeutic jurisprudence potential strategies for achieving therapeutic outcomes. Rottman & Casey, supra note 4, at 13. See also John Feinblatt, et al., Judicial Innovation at the Crossroads: The Future of Problem-Solving Courts, 15 CT. MANAGER 28, 30 (2000). Feinblatt et al. note, "Some observers have looked at these kinds of reforms and applied labels like 'therapeutic jurisprudence' and 'restorative justice' to problem-solving courts. And, in fact, problem-solving courts do draw upon some elements of these philosophies." Id.
27. As Arie Freiberg notes, "the overlay of a philosophical basis on the problem-oriented court model came with the development of the concept of 'therapeutic jurisprudence.'" Freiberg, supra note 1, at 11. Rottman and Casey likewise observe: Various approaches are being tested across the country following a variety of principles, including those of therapeutic jurisprudence, which explore the role of the law in fostering therapeutic or antitherapeutic outcomes....Restorative justice and community justice are related approaches to problem solving that offer the field of therapeutic jurisprudence potential strategies for achieving therapeutic outcomes. Rottman & Casey, supra note 4, at 13. See also John Feinblatt, et al., Judicial Innovation at the Crossroads: The Future of Problem-Solving Courts, 15 CT. MANAGER 28, 30 (2000). Feinblatt et al. note, "Some observers have looked at these kinds of reforms and applied labels like 'therapeutic jurisprudence' and 'restorative justice' to problem-solving courts. And, in fact, problem-solving courts do draw upon some elements of these philosophies." Id.
28. Daicoff, supra note 1, at 465.
29. John Braithwaite, Restorative Justice and Therapeutic Jurisprudence, 38 CRIM. L. BULL. 244 (2002).
30. Id. at 246.
31. Id. at 247; see also JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 12 (2002). Here Braithwaite asserts, "[I]t should be forbidden for a restorative justice process to impose a punishment beyond that which would be imposed by the courts for that kind of wrongdoing..... Restorative justice processes should be constrained by all the rights that are foundational to liberal legalism."
32. Id. at 247; see also JOHN BRAITHWAITE, RESTORATIVE JUSTICE AND RESPONSIVE REGULATION 12 (2002). Here Braithwaite asserts, "[I]t should be forbidden for a restorative justice process to impose a punishment beyond that which would be imposed by the courts for that kind of wrongdoing..... Restorative justice processes should be constrained by all the rights that are foundational to liberal legalism."
33. JOHN BRAITHWAITE & PHILIP PETTIT, NOT JUST DESERTS: A REPUBLICAN THEORY OF CRIMINAL JUSTICE 101-05 (1993).
34. Andrew Von Hirsch & Andrew Ashworth, Not not Just Deserts: A Response to Braithwaite and Pettit, 12 OXFORD J. LEGAL STUD. 83, 88 (1992).
35. Braithwaite, supra note 24, at 254.
36. Id. at 253.
37. Bruce Winick, The Jurisprudence of Therapeutic Jurisprudence, in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 665 (David B. Wexler & Bruce Winick eds., 1996).
38. According to Braithwaite, "reintegrative shaming communicates disapproval within a continuum of respect for the offender; the offender is treated as a good person who has done a bad deed." He distinguishes reintegrative shaming from stigmatization, and sees the former a clearly preferable. An "apology" from an offender to a victim, for example, "is a kind of shaming that is morally preferable to stigmatization." Braithwaite, supra note 24, at 257-8.
39. Bruce Winick, Remarks at the Western Michigan University Forum (April 13, 2000) (videotape on file with author).
40. I b i d.
41. Braithwaite, supra note 24, at 247.
42. Id. at 244.
43. The article's findings, therefore, are particularly relevant to drug courts, and are only applicable to the functions and consequences of other problem-solving courts (which can differ considerably from drug courts) in a more limited manner.
44. S. REP. No. 98-225, at 50 (1983), reprinted in 1983 U.S.C.C.A.N. 3250.
45. S. REP. No. 98-225, at 50 (1983), reprinted in 1983 U.S.C.C.A.N. 3250.
46. Keri A. Gould, Turning Rat and Doing Time for Uncharged, Dismissed or Acquitted Crimes, in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 189-90 (David B. Wexler & Bruce Winick eds., 1996).
47. Id. at 190.
48. Id. at 181.
49. Id. at 200.
50. Id. at 197.
51. Id. at 190.
52. Id. at 178.
53. See Judge Sheila M. Murphy, Therapeutic Jurisprudence: Its Time Has Come, TRIAL JUDGES NEWS, Winter 1997/1998, at 3.
54. Peggy Fulton Hora et al., Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System's Response to Drug Abuse and Crime in America, 74 NOTRE DAME L. REV. 439, 441 (1999). Elsewhere Hora and Schma write that after developing "simultaneously but independently," it was eventually discovered that "they were not only compatible but natural companions." Peggy Fulton Hora & William G. Schma, Therapeutic Jurisprudence, 82 JUDICATURE 8, 10 (1998).
55. Peggy Fulton Hora et al., Therapeutic Jurisprudence and the Drug Treatment Court Movement: Revolutionizing the Criminal Justice System's Response to Drug Abuse and Crime in America, 74 NOTRE DAME L. REV. 439, 441 (1999). Elsewhere Hora and Schma write that after developing "simultaneously but independently," it was eventually discovered that "they were not only compatible but natural companions." Peggy Fulton Hora & William G. Schma, Therapeutic Jurisprudence, 82 JUDICATURE 8, 10 (1998).
56. Hora et al., supra note 47, at 537.
57. It was, for example, purchased by the National Drug Court Institute and sent to all members of the NADCP. The cover letter for this mailing presented the article as a "seminal" work and "an important contribution to the developing drug court literature."
58. See, e.g., Daicoff, supra note 1, at 467, 483; John Terrence A. Rosenthal, Therapeutic Jurisprudence and Drug Courts: Integrating Law and Science, in DRUG COURTS: IN THEORY AND IN PRACTICE 145, 71 (James L. Nolan, Jr. ed., 2002); David Wexler, Relapse Prevention Planning Principles for Criminal Law Practice, in PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS A HELPING PROFESSION 237, 237 (Dennis P. Stolle et al. eds., 2000); David Wexler, Therapeutic Jurisprudence and the Culture of Critique, in PRACTICING THERAPEUTIC JURISPRUDENCE 449, 462 (Dennis P. Stolle et al. eds., 2000).
59. Daicoff, supra note 1, at 467, 483; See, e.g., Daicoff, supra note 1, at 467, 483; John Terrence A. Rosenthal, Therapeutic Jurisprudence and Drug Courts: Integrating Law and Science, in DRUG COURTS: IN THEORY AND IN PRACTICE 145, 71 (James L. Nolan, Jr. ed., 2002); David Wexler, Relapse Prevention Planning Principles for Criminal Law Practice, in PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS A HELPING PROFESSION 237, 237 (Dennis P. Stolle et al. eds., 2000); David Wexler, Therapeutic Jurisprudence and the Culture of Critique, in PRACTICING THERAPEUTIC JURISPRUDENCE 449, 462 (Dennis P. Stolle et al. eds., 2000).
60. Daicoff, supra note 1, at 467, 483; See, e.g., Daicoff, supra note 1, at 467, 483; John Terrence A. Rosenthal, Therapeutic Jurisprudence and Drug Courts: Integrating Law and Science, in DRUG COURTS: IN THEORY AND IN PRACTICE 145, 71 (James L. Nolan, Jr. ed., 2002); David Wexler, Relapse Prevention Planning Principles for Criminal Law Practice, in PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS A HELPING PROFESSION 237, 237 (Dennis P. Stolle et al. eds., 2000); David Wexler, Therapeutic Jurisprudence and the Culture of Critique, in PRACTICING THERAPEUTIC JURISPRUDENCE 449, 462 (Dennis P. Stolle et al. eds., 2000).
61. Daicoff, supra note 1, at 467, 483; See, e.g., Daicoff, supra note 1, at 467, 483; John Terrence A. Rosenthal, Therapeutic Jurisprudence and Drug Courts: Integrating Law and Science, in DRUG COURTS: IN THEORY AND IN PRACTICE 145, 71 (James L. Nolan, Jr. ed., 2002); David Wexler, Relapse Prevention Planning Principles for Criminal Law Practice, in PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS A HELPING PROFESSION 237, 237 (Dennis P. Stolle et al. eds., 2000); David Wexler, Therapeutic Jurisprudence and the Culture of Critique, in PRACTICING THERAPEUTIC JURISPRUDENCE 449, 462 (Dennis P. Stolle et al. eds., 2000).
62. John Petrila, Paternalism and the Unrealized Promise of Essays in Therapeutic Jurisprudence, in LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE 686 (1996).
63. See NOLAN, REINVENTING JUSTICE, supra note 2; JAMES L. NOLAN, JR., THE THERAPEUTIC STATE: JUSTIFYING GOVERNMENT AT CENTURY'S END (1998).
64. See NOLAN, REINVENTING JUSTICE, supra note 2; JAMES L. NOLAN, JR., THE THERAPEUTIC STATE: JUSTIFYING GOVERNMENT AT CENTURY'S END (1998).
65. Berman, supra note 5, at 83 (comments of William Nelson).
66. See generally ROBERT N. BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985); CHRISTOPHER LASCH, THE CULTURE OF NARCISSISM: AMERICAN LIFE IN AN AGE OF DIMINISHING EXPECTATIONS (1979); ALASDAIR C. MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY (2d ed. 1984); JOHN STEADMAN RICE, A DISEASE OF ONE'S OWN: PSYCHOTHERAPY, ADDICTION, AND THE EMERGENCE OF CO-DEPENDENCY (1996); PHILIP RIEFF, THE TRIUMPH OF THE THERAPEUTIC: USES OF FAITH AFTER FREUD (1966); BERNIE ZILBERGELD, THE SHRINKING OF AMERICA: MYTHS OF PSYCHOLOGICAL CHANGE (1st ed. 1983). For a review of this literature see NOLAN, THE THERAPEUTIC STATE, supra note 52.
67. See generally ROBERT N. BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985); CHRISTOPHER LASCH, THE CULTURE OF NARCISSISM: AMERICAN LIFE IN AN AGE OF DIMINISHING EXPECTATIONS (1979); ALASDAIR C. MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY (2d ed. 1984); JOHN STEADMAN RICE, A DISEASE OF ONE'S OWN: PSYCHOTHERAPY, ADDICTION, AND THE EMERGENCE OF CO-DEPENDENCY (1996); PHILIP RIEFF, THE TRIUMPH OF THE THERAPEUTIC: USES OF FAITH AFTER FREUD (1966); BERNIE ZILBERGELD, THE SHRINKING OF AMERICA: MYTHS OF PSYCHOLOGICAL CHANGE (1st ed. 1983). For a review of this literature see NOLAN, THE THERAPEUTIC STATE, supra note 52.
68. See generally ROBERT N. BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985); CHRISTOPHER LASCH, THE CULTURE OF NARCISSISM: AMERICAN LIFE IN AN AGE OF DIMINISHING EXPECTATIONS (1979); ALASDAIR C. MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY (2d ed. 1984); JOHN STEADMAN RICE, A DISEASE OF ONE'S OWN: PSYCHOTHERAPY, ADDICTION, AND THE EMERGENCE OF CO-DEPENDENCY (1996); PHILIP RIEFF, THE TRIUMPH OF THE THERAPEUTIC: USES OF FAITH AFTER FREUD (1966); BERNIE ZILBERGELD, THE SHRINKING OF AMERICA: MYTHS OF PSYCHOLOGICAL CHANGE (1st ed. 1983). For a review of this literature see NOLAN, THE THERAPEUTIC STATE, supra note 52.
69. See generally ROBERT N. BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985); CHRISTOPHER LASCH, THE CULTURE OF NARCISSISM: AMERICAN LIFE IN AN AGE OF DIMINISHING EXPECTATIONS (1979); ALASDAIR C. MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY (2d ed. 1984); JOHN STEADMAN RICE, A DISEASE OF ONE'S OWN: PSYCHOTHERAPY, ADDICTION, AND THE EMERGENCE OF CO-DEPENDENCY (1996); PHILIP RIEFF, THE TRIUMPH OF THE THERAPEUTIC: USES OF FAITH AFTER FREUD (1966); BERNIE ZILBERGELD, THE SHRINKING OF AMERICA: MYTHS OF PSYCHOLOGICAL CHANGE (1st ed. 1983). For a review of this literature see NOLAN, THE THERAPEUTIC STATE, supra note 52.
70. See generally ROBERT N. BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985); CHRISTOPHER LASCH, THE CULTURE OF NARCISSISM: AMERICAN LIFE IN AN AGE OF DIMINISHING EXPECTATIONS (1979); ALASDAIR C. MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY (2d ed. 1984); JOHN STEADMAN RICE, A DISEASE OF ONE'S OWN: PSYCHOTHERAPY, ADDICTION, AND THE EMERGENCE OF CO-DEPENDENCY (1996); PHILIP RIEFF, THE TRIUMPH OF THE THERAPEUTIC: USES OF FAITH AFTER FREUD (1966); BERNIE ZILBERGELD, THE SHRINKING OF AMERICA: MYTHS OF PSYCHOLOGICAL CHANGE (1st ed. 1983). For a review of this literature see NOLAN, THE THERAPEUTIC STATE, supra note 52.
71. See generally ROBERT N. BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985); CHRISTOPHER LASCH, THE CULTURE OF NARCISSISM: AMERICAN LIFE IN AN AGE OF DIMINISHING EXPECTATIONS (1979); ALASDAIR C. MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY (2d ed. 1984); JOHN STEADMAN RICE, A DISEASE OF ONE'S OWN: PSYCHOTHERAPY, ADDICTION, AND THE EMERGENCE OF CO-DEPENDENCY (1996); PHILIP RIEFF, THE TRIUMPH OF THE THERAPEUTIC: USES OF FAITH AFTER FREUD (1966); BERNIE ZILBERGELD, THE SHRINKING OF AMERICA: MYTHS OF PSYCHOLOGICAL CHANGE (1st ed. 1983). For a review of this literature see NOLAN, THE THERAPEUTIC STATE, supra note 52.
72. See generally ROBERT N. BELLAH ET AL., HABITS OF THE HEART: INDIVIDUALISM AND COMMITMENT IN AMERICAN LIFE (1985); CHRISTOPHER LASCH, THE CULTURE OF NARCISSISM: AMERICAN LIFE IN AN AGE OF DIMINISHING EXPECTATIONS (1979); ALASDAIR C. MACINTYRE, AFTER VIRTUE: A STUDY IN MORAL THEORY (2d ed. 1984); JOHN STEADMAN RICE, A DISEASE OF ONE'S OWN: PSYCHOTHERAPY, ADDICTION, AND THE EMERGENCE OF CO-DEPENDENCY (1996); PHILIP RIEFF, THE TRIUMPH OF THE THERAPEUTIC: USES OF FAITH AFTER FREUD (1966); BERNIE ZILBERGELD, THE SHRINKING OF AMERICA: MYTHS OF PSYCHOLOGICAL CHANGE (1st ed. 1983). For a review of this literature see NOLAN, THE THERAPEUTIC STATE, supra note 52.
73. Berman, supra note 5, at 83 (comments of William Nelson).
74. Hora et al., supra note 47, at 449. In his assessment of the Baltimore drug court, William McColl notes the same of drug court practitioners. According to McColl, drug court "reform efforts are not guided by theory." Rather, "[p]ractitioners in [drug courts] are guided by what they perceive to be working and they discard what does not work." William McColl, Comment, Baltimore City's Drug Treatment Court: Theory and Practice in an Emerging Field, 55 MD. L. REV. 467, 500 (1996).
75. Hora et al., supra note 47, at 449. In his assessment of the Baltimore drug court, William McColl notes the same of drug court practitioners. According to McColl, drug court "reform efforts are not guided by theory." Rather, "[p]ractitioners in [drug courts] are guided by what they perceive to be working and they discard what does not work." William McColl, Comment, Baltimore City's Drug Treatment Court: Theory and Practice in an Emerging Field, 55 MD. L. REV. 467, 500 (1996). In spite of the lack of guiding theory among drug court practitioners in the early years of the movement, McColl does note that there were "certain underlying beliefs" that informed the drug court movement. And these, according to McColl were primarily therapeutic or medical rather than legal in focus. Id. at 469, 500.
76. Hora et al., supra note 47, at 449. In his assessment of the Baltimore drug court, William McColl notes the same of drug court practitioners. According to McColl, drug court "reform efforts are not guided by theory." Rather, "[p]ractitioners in [drug courts] are guided by what they perceive to be working and they discard what does not work." William McColl, Comment, Baltimore City's Drug Treatment Court: Theory and Practice in an Emerging Field, 55 MD. L. REV. 467, 500 (1996). In spite of the lack of guiding theory among drug court practitioners in the early years of the movement, McColl does note that there were "certain underlying beliefs" that informed the drug court movement. And these, according to McColl were primarily therapeutic or medical rather than legal in focus. Id. at 469, 500.
77. Hora et al., supra note 47, at 448. Also, McColl, though apparently not aware of therapeutic jurisprudence theory, as such, essentially arrives at the same conclusion. He observes that, "more than any other court, [drug courts] are the epitome of a therapeutic or medical approach to crime." See McColl, supra note 56, at 501.
78. Hora et al., supra note 47, at 448. Also, McColl, though apparently not aware of therapeutic jurisprudence theory, as such, essentially arrives at the same conclusion. He observes that, "more than any other court, [drug courts] are the epitome of a therapeutic or medical approach to crime." See McColl, supra note 56, at 501.
79. C.S. Lewis, The Humanitarian Theory of Punishment, 6 RES JUDICATAE 224, 225 (1953).
80. David B. Wexler & Bruce Winick, LAW IN A THERAPEUTIC KEY: DEVELOPMENTS IN THERAPEUTIC JURISPRUDENCE xvii (David B. Wexler & Bruce Winick eds., 1996).
81. See generally FRANCIS ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL: PENAL POLICY AND SOCIAL PURPOSE (1981); AMERICAN FRIENDS SERVICE COMMITTEE, STRUGGLE FOR JUSTICE, A REPORT ON CRIME AND PUNISHMENT IN AMERICA (1971); NORVAL MORRIS & GORDON HAWKINS, LETTER TO THE PRESIDENT ON CRIME CONTROL (1977); ANTHONY M. PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY (2d ed. 1977).
82. See generally FRANCIS ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL: PENAL POLICY AND SOCIAL PURPOSE (1981); AMERICAN FRIENDS SERVICE COMMITTEE, STRUGGLE FOR JUSTICE, A REPORT ON CRIME AND PUNISHMENT IN AMERICA (1971); NORVAL MORRIS & GORDON HAWKINS, LETTER TO THE PRESIDENT ON CRIME CONTROL (1977); ANTHONY M. PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY (2d ed. 1977).
83. See generally FRANCIS ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL: PENAL POLICY AND SOCIAL PURPOSE (1981); AMERICAN FRIENDS SERVICE COMMITTEE, STRUGGLE FOR JUSTICE, A REPORT ON CRIME AND PUNISHMENT IN AMERICA (1971); NORVAL MORRIS & GORDON HAWKINS, LETTER TO THE PRESIDENT ON CRIME CONTROL (1977); ANTHONY M. PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY (2d ed. 1977).
84. See generally FRANCIS ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL: PENAL POLICY AND SOCIAL PURPOSE (1981); AMERICAN FRIENDS SERVICE COMMITTEE, STRUGGLE FOR JUSTICE, A REPORT ON CRIME AND PUNISHMENT IN AMERICA (1971); NORVAL MORRIS & GORDON HAWKINS, LETTER TO THE PRESIDENT ON CRIME CONTROL (1977); ANTHONY M. PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY (2d ed. 1977).
85. See NOLAN, REINVENTING JUSTICE, supra note 2, 155-84.
86. John Feinblatt & Derek Denckla, What Does It Mean To Be a Good Lawyer?: Prosecutors, Defenders, and Problem-Solving Courts, 84 JUDICATURE 206, 214 (2001) (comments of John Stuart).
87. Berman, supra note 65 at 85 (comments of Richard Cappalli).
88. Davis, supra note 13, at 37.
89. Richard Boldt, Rehabilitative Punishment and the Drug Treatment Court Movement, 76 WASH. U. L.Q. 1205, 1216 (1998).
90. McColl, supra note 56, at 503.
91. See Nolan, supra note 2, at 51-57.
92. Hora et al., supra note 47, at 522.
93. Id. at 523.
94. I b i d.
95. I b i d.
96. Sally Satel, Observational Study of Courtroom Dynamics in Selected Drug Courts, 1 NAT'L. DRUG COURT INST. REV. 43, 52 (1998).
97. Hora et al., supra note 47, at 523.
98. AMERICAN FRIENDS SERVICE COMMITTEE, supra note 60, at 147.
99. ALLEN, supra note 60, at 51.
100. Hora et al., supra note 47, at 470.
101. Id. at 523.
102. I b i d.
103. Hora and Schma also state, "The defense counsel should view the DTC process as the best method for 'ending the cycle of drugs and crime [which] is in the best interest[s] of the client.'" Hora & Schma, supra note 47, at 523.
104. Richard Boldt, for example, observes that "variation in outcomes is entirely consistent with the design of modern drug treatment courts, which tend to link decisions regarding the imposition of incarcerative sentences and length of supervision to the performance of offenders in treatment." Boldt, supra note 65, at 1232.
105. McColl, supra 56, at 497.
106. Hora et al., supra note 47, at 469.
107. Id. at 518.
108. "As in other indeterminate sentencing situations, it is a peculiar phenomenon that the time for treatment can be far longer than the jail sentence normally given." McColl, supra note 56, at 503.
109. I b i d.
110. DAVID ROTHMAN, CONSCIENCE AND CONVENIENCE: THE ASYLUM AND ITS ALTERNATIVES IN PROGRESSIVE AMERICA 232 (1980).
111. Boldt, supra note 65, at 1255.
112. See NOLAN, REINVENTING JUSTICE, supra note 2, at 199.
113. Hora et al., supra note 47, at 521.
114. Id. at 513.
115. NOLAN, REINVENTING JUSTICE, supra note 2, at 200.
116. I b i d.
117. Santana, supra note 8, at A10.
118. Id. (quoting Judge Noel).
119. For perhaps the most comprehensive discussion of the efficacy of coerced treatment, see SALLY SATEL, M.D., DRUG TREATMENT: THE CASE FOR COERCION (1999). For other discussions of the issue see Satel, supra note 72, at 53; McColl, supra note 56, at 476.
120. For perhaps the most comprehensive discussion of the efficacy of coerced treatment, see SALLY SATEL, M.D., DRUG TREATMENT: THE CASE FOR COERCION (1999). For other discussions of the issue see Satel, supra note 72, at 53; McColl, supra note 56, at 476.
121. For perhaps the most comprehensive discussion of the efficacy of coerced treatment, see SALLY SATEL, M.D., DRUG TREATMENT: THE CASE FOR COERCION (1999). For other discussions of the issue see Satel, supra note 72, at 53; McColl, supra note 56, at 476.
122. DRUG COURTS PROGRAM OFFICE, U.S. DEP'T. OF JUSTICE, DEFINING DRUG COURTS: THE KEY COMPONENTS 9 (1997) (citing R. HUBBARD ET AL., DRUG ABUSE TREATMENT: A NATIONAL STUDY OF EFFECTIVENESS (1989)).
123. DRUG COURTS PROGRAM OFFICE, U.S. DEP'T. OF JUSTICE, DEFINING DRUG COURTS: THE KEY COMPONENTS 9 (1997) (citing R. HUBBARD ET AL., DRUG ABUSE TREATMENT: A NATIONAL STUDY OF EFFECTIVENESS (1989)).
124. CAROLINE S. COOPER, U.S. DEP'T OF JUSTICE, 1997 DRUG COURT SURVEY REPORT: EXECUTIVE SUMMARY 17 (1997).
125. Hora et al., supra note 47, at 516.
126. Id. at 515.
127. Id. at 515-16.
128. Id. at 516.
129. Morris Hoffman, The Drug Court Scandal, 78 N.C. L. REV. 1437, 1502 (2000).
130. Id. at 1503.
131. Jeff Leen & Don Van Natta, Jr., Drug Court Favored by Felons, THE MIAMI HERALD, Aug. 29, 1994, at 1A, 6-7A. For a discussion of this report in relation to the net-widening effect, see also Hora et al., supra note 47, at 519-20.
132. Jeff Leen & Don Van Natta, Jr., Drug Court Favored by Felons, THE MIAMI HERALD, Aug. 29, 1994, at 1A, 6-7A. For a discussion of this report in relation to the net-widening effect, see also Hora et al., supra note 47, at 519-20.
133. This terminology cited in McColl, supra note 56, at 493 (citing BARBARA WOOTTON, CRIME, RESPONSIBILITY, AND PREVENTION 169 (1963)) ("Wootton thus recommended that the distinction between criminal justice and the medical system must 'wither away.'").
134. This terminology cited in McColl, supra note 56, at 493 (citing BARBARA WOOTTON, CRIME, RESPONSIBILITY, AND PREVENTION 169 (1963)) ("Wootton thus recommended that the distinction between criminal justice and the medical system must 'wither away.'").
135. Boldt, supra note 65, at 1241.
136. Lewis, supra note 58, at 226 (emphasis in original).
137. ALLEN, supra note 60, at 55.
138. NOLAN, THE THERAPEUTIC STATE, supra note 52, at 101-103. Richard Boldt likewise observes: "Indeed prominent in all of the public efforts to establish and fund [drug courts] has been the rhetoric of utility and savings promised by an approach designed to clear court dockets and relieve prison overcrowding." Boldt, supra note 65, at 1244.
139. NOLAN, THE THERAPEUTIC STATE, supra note 52, at 101-103. Richard Boldt likewise observes: "Indeed prominent in all of the public efforts to establish and fund [drug courts] has been the rhetoric of utility and savings promised by an approach designed to clear court dockets and relieve prison overcrowding." Boldt, supra note 65, at 1244.
140. See NOLAN, REINVENTING JUSTICE, supra note 2, at 127-32.
141. Lewis, supra note 58, at 229.
142. NOLAN, REINVENTING JUSTICE, supra note 2, at 206-7.