The politics of problem-solving: An overview of the origins and development of therapeutic courts

American Criminal Law Review

Volumn 40, Issue 4, 2003, Pages 1513-1534

  McCoy, Candace ^a,b,c  

^a RUTGERS UNIVERSITY   (United States)

^b UNIVERSITY OF CINCINNATI   (United States)

^c UNIVERSITY OF CALIFORNIA   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 2442608808     PISSN: 01640364     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (81)

1. MARVIN E. FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER (1973).
2. Robert Martinson, What Works? Questions and Answers about Prison Reform, 35 THE PUB. INTEREST 22 (1974).
3. Id. at 25 (reporting that rehabilitative efforts have had no appreciable effect on recidivism). In later years, Martinson repeatedly denied taking the position that nothing works; instead, he argued that "some things work under certain conditions," a conclusion confirmed by meta-analyses from other researchers in subsequent decades.
4. CHANGING ATTITUDES TO PUNISHMENT: PUBLIC OPINION, CRIME & JUSTICE (Julian V. Roberts & Mike Hough eds., 2002).
5. See generally CANDACE MCCOY, POLITICS & PLEA BARGAINING: VICTIMS' RIGHTS IN CALIFORNIA (1993); STUART A. SCHEINGOLD, THE POLITICS OF STREET CRIME: CRIMINAL PROCESS AND CULTURAL OBSESSION (1991).
6. See generally CANDACE MCCOY, POLITICS & PLEA BARGAINING: VICTIMS' RIGHTS IN CALIFORNIA (1993); STUART A. SCHEINGOLD, THE POLITICS OF STREET CRIME: CRIMINAL PROCESS AND CULTURAL OBSESSION (1991).
7. California's 1977 Determinate Sentencing Act was the prime example, with New Jersey close behind in 1978.
8. See The Uniform Determinate Sentencing Act, Cal. Penal Code §1170 (West 2002). These were the earliest, pre-guidelines determinate sentencing models, some of which retained parole release and some of which did not.
9. The trend culminated in implementation of the federal sentencing guidelines in 1989, and subsequent state laws, which copied the federal statute (such as Virginia's, passed in 1991).
10. THOMAS G. BLOMBERG & KAROL LUCKEN, AMERICAN PENOLOGY: A HISTORY OF CONTROL 85 (2000).
11. Id. at 85.
12. In this essay, the term "therapeutic courts" is used as a generic term to signify a court that handles cases which traditionally would have been adjudicated in criminal court, but in which "helping" rather than punitive outcomes are contemplated. The term "therapeutic" has a medical tone to it, and for the most part the rhetoric of recovery is applicable to these court operations, particularly with drug courts and mental health courts. Insofar as social welfare and "helping" approaches are therapeutic, the term could also apply to juvenile courts and domestic violence courts, and perhaps teen courts that operate in the schools. "Community courts," by contrast, are designed to exert social control on some target population in order to gain benefits for the neighborhood in general - therapeutic primarily for the community, and secondarily for the offender. Some problem-solving courts, such as "gun courts" that prosecute gun-related crimes exclusively, are not therapeutic at all, but rather are dedicated court parts that address a particular problem with special attention and resources. Finally, some court operations such as "probation court" or "re-entry court" are arguably not innovative court units, but are improvements in operation and resources of existing court parts such as probation revocation hearings or parole supervision apparatus. A major argument of this article is that most therapeutic courts can be implemented under that latter model - an existing court finally operating as it was intended to operate, or alternatively empowering social service agencies to operate better.
13. At the outset, be careful not to equate drug court models to other "problem-solving" models, since the problems to be solved may be different and the methods chosen to solve them may not be the same. Each problem-solving court needs to be analyzed on its own terms.
14. E.g., STEVEN BELENKO, NAT'L CTR. ADDICTION AND SUBSTANCE ABUSE, RESEARCH ON DRUG COURTS: A CRITICAL REVIEW 2001 UPDATE 22 (2001).
15. Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103-322, §50001, 108 Stat. 1796 (providing funding for state courts to institute drug courts).
16. John Theodore Krimmel, An Analysis of New Jersey's Drug Court Project: A Time Series Quasi-Experiment (1993) (unpublished Ph.D. dissertation, City University of New York), microformed on Sev. No. AAT 9315481 (Univ. Microforms, Int'l).
17. SPECIAL DRUG COURTS: BJA PROGRAM BRIEF, U.S. DEPT. OF JUST. (1993).
18. See generally JOHN S. GOLDKAMP & DORIS WEILAND, CRIME & JUST. RES. INST., ASSESSING THE IMPACT OF DADE COUNTY'S FELONY DRUG COURT: FINAL REPORT (1993); Jeffrey Tauber, Treating Drug-Using Offenders Through Sanctions, Incentives, 56 CORRECTIONS TODAY 28 (1994); Jeffrey S. Tauber, The Importance of Intensive Intervention in a Court-Ordered Drug Rehabilitation Program (1993) (Evaluation presented to the President's Comm'n on Model State Drug Laws) (available in the Rutgers University Library); Jeffrey S. Tauber, A Judicial Primer on Drug Courts and Court-Ordered Drug Rehabilitation Programs (1993) (Paper presented at the California Continuing Judicial Studies Program) (available in the Rutgers University Library).
19. See generally JOHN S. GOLDKAMP & DORIS WEILAND, CRIME & JUST. RES. INST., ASSESSING THE IMPACT OF DADE COUNTY'S FELONY DRUG COURT: FINAL REPORT (1993); Jeffrey Tauber, Treating Drug-Using Offenders Through Sanctions, Incentives, 56 CORRECTIONS TODAY 28 (1994); Jeffrey S. Tauber, The Importance of Intensive Intervention in a Court-Ordered Drug Rehabilitation Program (1993) (Evaluation presented to the President's Comm'n on Model State Drug Laws) (available in the Rutgers University Library); Jeffrey S. Tauber, A Judicial Primer on Drug Courts and Court-Ordered Drug Rehabilitation Programs (1993) (Paper presented at the California Continuing Judicial Studies Program) (available in the Rutgers University Library).
20. See generally JOHN S. GOLDKAMP & DORIS WEILAND, CRIME & JUST. RES. INST., ASSESSING THE IMPACT OF DADE COUNTY'S FELONY DRUG COURT: FINAL REPORT (1993); Jeffrey Tauber, Treating Drug-Using Offenders Through Sanctions, Incentives, 56 CORRECTIONS TODAY 28 (1994); Jeffrey S. Tauber, The Importance of Intensive Intervention in a Court-Ordered Drug Rehabilitation Program (1993) (Evaluation presented to the President's Comm'n on Model State Drug Laws) (available in the Rutgers University Library); Jeffrey S. Tauber, A Judicial Primer on Drug Courts and Court-Ordered Drug Rehabilitation Programs (1993) (Paper presented at the California Continuing Judicial Studies Program) (available in the Rutgers University Library).
21. See generally JOHN S. GOLDKAMP & DORIS WEILAND, CRIME & JUST. RES. INST., ASSESSING THE IMPACT OF DADE COUNTY'S FELONY DRUG COURT: FINAL REPORT (1993); Jeffrey Tauber, Treating Drug-Using Offenders Through Sanctions, Incentives, 56 CORRECTIONS TODAY 28 (1994); Jeffrey S. Tauber, The Importance of Intensive Intervention in a Court-Ordered Drug Rehabilitation Program (1993) (Evaluation presented to the President's Comm'n on Model State Drug Laws) (available in the Rutgers University Library); Jeffrey S. Tauber, A Judicial Primer on Drug Courts and Court-Ordered Drug Rehabilitation Programs (1993) (Paper presented at the California Continuing Judicial Studies Program) (available in the Rutgers University Library).
22. STEVEN BELENKO ET AL., NEW YORK CITY CRIM. J. AGENCY, NEW YORK CITY'S SPECIAL DRUG COURTS: RECIDIVISM PATTERNS AND PROCESSING COSTS (1993); ROBERT C. DAVIS, NEW YORK CITY CRIM. J. AGENCY THE QUEENS COUNTY (NY) NARCOTICS COURTROOM: A CASE STUDY (1993).
23. STEVEN BELENKO ET AL., NEW YORK CITY CRIM. J. AGENCY, NEW YORK CITY'S SPECIAL DRUG COURTS: RECIDIVISM PATTERNS AND PROCESSING COSTS (1993); ROBERT C. DAVIS, NEW YORK CITY CRIM. J. AGENCY THE QUEENS COUNTY (NY) NARCOTICS COURTROOM: A CASE STUDY (1993).
24. JOHN V. BAIAMONTE, JR., JEFFERSON PARISH CRIM. JUST. COORDINATING COUNCIL, AN EVALUATION OF DIVISION "S" (DRUG COURT) OF THE TWENTY FOURTH JUDICIAL DISTRICT COURT, JEFFERSON PARISH, LOUISIANA (1993) (available in the Rutgers University Library).
25. RAYMOND H. MILKMAN ET AL., THE LAZAR INST., DRUG OFFENDERS AND THE COURTS: RESULTS OF A NATIONAL ASSESSMENT (1993) (available in the Rutgers University Library).
26. Nolan makes the case that another important cause was a cultural turn in American life, towards self-help and therapeutic approaches to social problems. See JAMES L. NOLAN, JR., REINVENTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT 47 (2001).
27. JOHN S. GOLDKAMP, CRIME & JUST. RES. INST., JUSTICE AND TREATMENT INNOVATION: THE DRUG COURT MOVEMENT (1994).
28. The Miami drug court is widely regarded as the first successful drug court in the U.S. See GOLDKAMP & WEILAND, supra note 16. The national conference was timed to coincide with release of the evaluation of that program.
29. Special Issue, Swift and Effective Justice: New Approaches to Drug Cases in the States, 17 JUST. SYS. J. (1993).
30. See J. Kelley Arnold et al., Differentiated Case Management: What Is It? How Effective Has It Been? 33 JUDGES' J. 2 (1994); Paul Wice, Making a Difference in the War on Drugs: A Case Study of Judicial Reform and Leadership, 30 CRIM. L. BULL. 30 (1994).
31. See J. Kelley Arnold et al., Differentiated Case Management: What Is It? How Effective Has It Been? 33 JUDGES' J. 2 (1994); Paul Wice, Making a Difference in the War on Drugs: A Case Study of Judicial Reform and Leadership, 30 CRIM. L. BULL. 30 (1994).
32. See generally LOYOLA U. DEPT. CRIM. JUST., DRUGS AND COMMUNITY CORRECTIONS (Arthur J. Lurigio & Gad J. Bensinger eds., 1994); VA. ST. CRIME COMM'N., S. DOC. NO. 52, THE FEASIBILITY OF A DRUG COURT PILOT PROJECT IN VIRGINIA (1994) (recommending establishing a Miami-style treatment court in Virginia); John Goldkamp, Miami's Treatment Drug Court for Felony Defendants: Some Implications of the Assessment Findings, 73 PRISON J. 110 (1994); Jeffrey S. Tauber, Drug Courts: A Judicial Manual, CAL. JUDICIAL ED. & RES. J. (1994), (recounting the Oakland experience and providing a list of drug courts nationwide and possible funding sources).
33. See generally LOYOLA U. DEPT. CRIM. JUST., DRUGS AND COMMUNITY CORRECTIONS (Arthur J. Lurigio & Gad J. Bensinger eds., 1994); VA. ST. CRIME COMM'N., S. DOC. NO. 52, THE FEASIBILITY OF A DRUG COURT PILOT PROJECT IN VIRGINIA (1994) (recommending establishing a Miami-style treatment court in Virginia); John Goldkamp, Miami's Treatment Drug Court for Felony Defendants: Some Implications of the Assessment Findings, 73 PRISON J. 110 (1994); Jeffrey S. Tauber, Drug Courts: A Judicial Manual, CAL. JUDICIAL ED. & RES. J. (1994), (recounting the Oakland experience and providing a list of drug courts nationwide and possible funding sources).
34. See generally LOYOLA U. DEPT. CRIM. JUST., DRUGS AND COMMUNITY CORRECTIONS (Arthur J. Lurigio & Gad J. Bensinger eds., 1994); VA. ST. CRIME COMM'N., S. DOC. NO. 52, THE FEASIBILITY OF A DRUG COURT PILOT PROJECT IN VIRGINIA (1994) (recommending establishing a Miami-style treatment court in Virginia); John Goldkamp, Miami's Treatment Drug Court for Felony Defendants: Some Implications of the Assessment Findings, 73 PRISON J. 110 (1994); Jeffrey S. Tauber, Drug Courts: A Judicial Manual, CAL. JUDICIAL ED. & RES. J. (1994), (recounting the Oakland experience and providing a list of drug courts nationwide and possible funding sources).
35. See generally LOYOLA U. DEPT. CRIM. JUST., DRUGS AND COMMUNITY CORRECTIONS (Arthur J. Lurigio & Gad J. Bensinger eds., 1994); VA. ST. CRIME COMM'N., S. DOC. NO. 52, THE FEASIBILITY OF A DRUG COURT PILOT PROJECT IN VIRGINIA (1994) (recommending establishing a Miami-style treatment court in Virginia); John Goldkamp, Miami's Treatment Drug Court for Felony Defendants: Some Implications of the Assessment Findings, 73 PRISON J. 110 (1994); Jeffrey S. Tauber, Drug Courts: A Judicial Manual, CAL. JUDICIAL ED. & RES. J. (1994), (recounting the Oakland experience and providing a list of drug courts nationwide and possible funding sources).
36. AARON C. MCNEECE & JOSEPH B. BYERS, FLA. DEP'T. CMTY. AFF., HILLSBOROUGH COUNTY DRUG COURT TWO-YEAR FOLLOW-UP STUDY (1995); Elizabeth Piper Deschenes, et al., Drug Court or Probation? An Experimental Evaluation of Maricopa County's Drug Court, 18 JUS. SYS. J. 55 (1995).
37. AARON C. MCNEECE & JOSEPH B. BYERS, FLA. DEP'T. CMTY. AFF., HILLSBOROUGH COUNTY DRUG COURT TWO-YEAR FOLLOW-UP STUDY (1995); Elizabeth Piper Deschenes, et al., Drug Court or Probation? An Experimental Evaluation of Maricopa County's Drug Court, 18 JUS. SYS. J. 55 (1995).
38. AM. PROSECUTORS RES. INST., DIVERSION TO TREATMENT: A GUIDE FOR PROSECUTORS (1995); FLA. TASK FORCE FOR THE REV. OF THE CRIM. JUST. & CORR. SYS., FINAL REP. (1995); Thomas P. Schneider & Robert C. Davis, Speedy Trial Homicide Courts, 9 CRIM. JUS. 24, 26-27 (1994) (describing how court reformers in Milwaukee applied the methodology of drug courts to create a new "speedy homicide" court).
39. AM. PROSECUTORS RES. INST., DIVERSION TO TREATMENT: A GUIDE FOR PROSECUTORS (1995); FLA. TASK FORCE FOR THE REV. OF THE CRIM. JUST. & CORR. SYS., FINAL REP. (1995); Thomas P. Schneider & Robert C. Davis, Speedy Trial Homicide Courts, 9 CRIM. JUS. 24, 26-27 (1994) (describing how court reformers in Milwaukee applied the methodology of drug courts to create a new "speedy homicide" court).
40. AM. PROSECUTORS RES. INST., DIVERSION TO TREATMENT: A GUIDE FOR PROSECUTORS (1995); FLA. TASK FORCE FOR THE REV. OF THE CRIM. JUST. & CORR. SYS., FINAL REP. (1995); Thomas P. Schneider & Robert C. Davis, Speedy Trial Homicide Courts, 9 CRIM. JUS. 24, 26-27 (1994) (describing how court reformers in Milwaukee applied the methodology of drug courts to create a new "speedy homicide" court).
41. U.S. GENERAL ACCOUNTING OFFICE, GAO/GGD-95-159BR, DRUG COURTS: INFORMATION ON A NEW APPROACH TO ADDRESS DRUG-RELATED CRIME (1995).
42. See generally ELIZABETH PIPER DESCHENES & SAM TORRES, CAL. ST. U. LONG BEACH, A PROCESS EVALUATION OF LOS ANGELES COUNTY DRUG COURT (1996); DENISE C. GOTTFREDSON ET AL., U. MD., A SHORT-TERM OUTCOME EVALUATION OF THE BALTIMORE CITY DRUG TREATMENT COURT PROGRAM (1996); INST. FOR SOC. RESEARCH, U. OF N. M., WORKING PAPER NO. 11: PRE-INCARCERATION TREATMENT OPTIONS FOR SUBSTANCE ABUSERS, NATIONWIDE AND IN NEW MEXICO (1996); Elizabeth Piper Deschenes, et al., Drug Court or Probation? An Experimental Evaluation of Maricopa County's Drug Court, 18 JUS. SYS. J. 55 (1995); Mara Schiff & Clinton W. Terry III, Predicting Graduation from Broward County's Dedicated Drug Treatment Court, 19 JUS. SYS. J. 291 (1997).
43. See generally ELIZABETH PIPER DESCHENES & SAM TORRES, CAL. ST. U. LONG BEACH, A PROCESS EVALUATION OF LOS ANGELES COUNTY DRUG COURT (1996); DENISE C. GOTTFREDSON ET AL., U. MD., A SHORT-TERM OUTCOME EVALUATION OF THE BALTIMORE CITY DRUG TREATMENT COURT PROGRAM (1996); INST. FOR SOC. RESEARCH, U. OF N. M., WORKING PAPER NO. 11: PRE-INCARCERATION TREATMENT OPTIONS FOR SUBSTANCE ABUSERS, NATIONWIDE AND IN NEW MEXICO (1996); Elizabeth Piper Deschenes, et al., Drug Court or Probation? An Experimental Evaluation of Maricopa County's Drug Court, 18 JUS. SYS. J. 55 (1995); Mara Schiff & Clinton W. Terry III, Predicting Graduation from Broward County's Dedicated Drug Treatment Court, 19 JUS. SYS. J. 291 (1997).
44. See generally ELIZABETH PIPER DESCHENES & SAM TORRES, CAL. ST. U. LONG BEACH, A PROCESS EVALUATION OF LOS ANGELES COUNTY DRUG COURT (1996); DENISE C. GOTTFREDSON ET AL., U. MD., A SHORT-TERM OUTCOME EVALUATION OF THE BALTIMORE CITY DRUG TREATMENT COURT PROGRAM (1996); INST. FOR SOC. RESEARCH, U. OF N. M., WORKING PAPER NO. 11: PRE-INCARCERATION TREATMENT OPTIONS FOR SUBSTANCE ABUSERS, NATIONWIDE AND IN NEW MEXICO (1996); Elizabeth Piper Deschenes, et al., Drug Court or Probation? An Experimental Evaluation of Maricopa County's Drug Court, 18 JUS. SYS. J. 55 (1995); Mara Schiff & Clinton W. Terry III, Predicting Graduation from Broward County's Dedicated Drug Treatment Court, 19 JUS. SYS. J. 291 (1997).
45. See generally ELIZABETH PIPER DESCHENES & SAM TORRES, CAL. ST. U. LONG BEACH, A PROCESS EVALUATION OF LOS ANGELES COUNTY DRUG COURT (1996); DENISE C. GOTTFREDSON ET AL., U. MD., A SHORT-TERM OUTCOME EVALUATION OF THE BALTIMORE CITY DRUG TREATMENT COURT PROGRAM (1996); INST. FOR SOC. RESEARCH, U. OF N. M., WORKING PAPER NO. 11: PRE-INCARCERATION TREATMENT OPTIONS FOR SUBSTANCE ABUSERS, NATIONWIDE AND IN NEW MEXICO (1996); Elizabeth Piper Deschenes, et al., Drug Court or Probation? An Experimental Evaluation of Maricopa County's Drug Court, 18 JUS. SYS. J. 55 (1995); Mara Schiff & Clinton W. Terry III, Predicting Graduation from Broward County's Dedicated Drug Treatment Court, 19 JUS. SYS. J. 291 (1997).
46. See generally ELIZABETH PIPER DESCHENES & SAM TORRES, CAL. ST. U. LONG BEACH, A PROCESS EVALUATION OF LOS ANGELES COUNTY DRUG COURT (1996); DENISE C. GOTTFREDSON ET AL., U. MD., A SHORT-TERM OUTCOME EVALUATION OF THE BALTIMORE CITY DRUG TREATMENT COURT PROGRAM (1996); INST. FOR SOC. RESEARCH, U. OF N. M., WORKING PAPER NO. 11: PRE-INCARCERATION TREATMENT OPTIONS FOR SUBSTANCE ABUSERS, NATIONWIDE AND IN NEW MEXICO (1996); Elizabeth Piper Deschenes, et al., Drug Court or Probation? An Experimental Evaluation of Maricopa County's Drug Court, 18 JUS. SYS. J. 55 (1995); Mara Schiff & Clinton W. Terry III, Predicting Graduation from Broward County's Dedicated Drug Treatment Court, 19 JUS. SYS. J. 291 (1997).
47. See CAROLINE S. COOPER ET AL., U.S. DEP'T OF JUSTICE, 2000 DRUG COURT SURVEY REPORT: PROGRAM OPERATIONS, SERVICES AND PARTICIPANT PERSPECTIVES (1996) ; CAROLINE S. COOPER & SHANIE R. BARTLETT, U.S. DEP'T OF JUSTICE, JUVENILE DRUG COURTS: OPERATIONAL CHARACTERISTICS AND IMPLEMENTATION ISSUES (1996); CAROLINE S. COOPER & SHANIE R. BARTLETT, U.S. DEP'T OF JUSTICE, DRUG COURTS: A PROFILE OF OPERATIONAL PROGRAMS (1996) (describing characteristics of 46 drug court programs operating in 26 states through 1996).
48. See CAROLINE S. COOPER ET AL., U.S. DEP'T OF JUSTICE, 2000 DRUG COURT SURVEY REPORT: PROGRAM OPERATIONS, SERVICES AND PARTICIPANT PERSPECTIVES (1996) ; CAROLINE S. COOPER & SHANIE R. BARTLETT, U.S. DEP'T OF JUSTICE, JUVENILE DRUG COURTS: OPERATIONAL CHARACTERISTICS AND IMPLEMENTATION ISSUES (1996); CAROLINE S. COOPER & SHANIE R. BARTLETT, U.S. DEP'T OF JUSTICE, DRUG COURTS: A PROFILE OF OPERATIONAL PROGRAMS (1996) (describing characteristics of 46 drug court programs operating in 26 states through 1996).
49. See CAROLINE S. COOPER ET AL., U.S. DEP'T OF JUSTICE, 2000 DRUG COURT SURVEY REPORT: PROGRAM OPERATIONS, SERVICES AND PARTICIPANT PERSPECTIVES (1996) ; CAROLINE S. COOPER & SHANIE R. BARTLETT, U.S. DEP'T OF JUSTICE, JUVENILE DRUG COURTS: OPERATIONAL CHARACTERISTICS AND IMPLEMENTATION ISSUES (1996); CAROLINE S. COOPER & SHANIE R. BARTLETT, U.S. DEP'T OF JUSTICE, DRUG COURTS: A PROFILE OF OPERATIONAL PROGRAMS (1996) (describing characteristics of 46 drug court programs operating in 26 states through 1996).
50. See generally STEPHEN BELENKO, THE SENTENCING PROJECT, COMPARATIVE MODELS OF TREATMENT DELIVERY IN DRUG COURTS (1996); CHRIS ESKRIDGE, CRIMINAL JUSTICE: CONCEPTS & ISSUES, AN ANTHOLOGY (Claude Teweles ed., 3rd ed. 1999) ; KEVIN M. SHERIN & BARRY MAHONEY, U.S. DEP'T. HEALTH & HUMAN SERV., TREATMENT DRUG COURTS: INTEGRATING SUBSTANCE ABUSE TREATMENT WITH LEGAL CASE PROCESSING (1996).
51. See generally STEPHEN BELENKO, THE SENTENCING PROJECT, COMPARATIVE MODELS OF TREATMENT DELIVERY IN DRUG COURTS (1996); CHRIS ESKRIDGE, CRIMINAL JUSTICE: CONCEPTS & ISSUES, AN ANTHOLOGY (Claude Teweles ed., 3rd ed. 1999) ; KEVIN M. SHERIN & BARRY MAHONEY, U.S. DEP'T. HEALTH & HUMAN SERV., TREATMENT DRUG COURTS: INTEGRATING SUBSTANCE ABUSE TREATMENT WITH LEGAL CASE PROCESSING (1996).
52. See generally STEPHEN BELENKO, THE SENTENCING PROJECT, COMPARATIVE MODELS OF TREATMENT DELIVERY IN DRUG COURTS (1996); CHRIS ESKRIDGE, CRIMINAL JUSTICE: CONCEPTS & ISSUES, AN ANTHOLOGY (Claude Teweles ed., 3rd ed. 1999) ; KEVIN M. SHERIN & BARRY MAHONEY, U.S. DEP'T. HEALTH & HUMAN SERV., TREATMENT DRUG COURTS: INTEGRATING SUBSTANCE ABUSE TREATMENT WITH LEGAL CASE PROCESSING (1996).
53. See JAMES A. INCIARDI, ET AL., DRUG CONTROL & THE COURTS 35 (1996) (discussing the TASC program, which initiated a novel partnership between the criminal justice system and the drug treatment community).
54. A Review of the National Drug Control Strategy: Hearing Before the Comm. on the Judiciary, 104th Cong. 49-51 (1995).
55. NOLAN, supra note 20, at 39.
56. U.S. GENERAL ACCOUNTING OFFICE, GAO/GGD-97-106, DRUG COURTS: OVERVIEW OF GROWTH, CHARACTERISTICS, AND RESULTS 40 (1997).
57. Robert C. Davis, et al., A.B.A., Specialized Courtrooms: Does Speeding Up the Process Jeopardize the Quality of Justice? (1996) (Paper prepared for the U.S. Nat'l Inst. of Just.) (available at Rutgers University Library).
58. Most evaluations were not published, but they were all filed with the Drug Courts Program Office, subsequently merged into the Bureau of Justice Assistance, and were used for reviews of program effectiveness by such agencies as the General Accounting Office. These evaluations constitute a nationwide databank of observations about drug courts as they grew, and some enterprising graduate student ought to use them for dissertation data.
59. At this point it would be both redundant and superfluous to cite all these sources. They may be obtained from the Criminal Justice Abstracts, which in turn may be obtained at any university criminal justice library else on CD-Rom from Sage Publications, OVID Technologies. The count of reported articles performed for this study ended with 2002 because the Criminal Justice Abstracts had not yet received all the articles and reports that were disseminated in its list of publications in 2002.
60. At this point it would be both redundant and superfluous to cite all these sources. They may be obtained from the Criminal Justice Abstracts, which in turn may be obtained at any university criminal justice library else on CD-Rom from Sage Publications, OVID Technologies. The count of reported articles performed for this study ended with 2002 because the Criminal Justice Abstracts had not yet received all the articles and reports that were disseminated in its list of publications in 2002.
61. If indeed it is fair to call it a movement. See NOLAN, supra note 20, at 42 (distinguishing drug court development, which was sparked by highly professional activist judges and funded by the federal government, from a grassroots political movement that grows "from the ground up").
62. Although the webpage for the United States Department of Justice has changed drastically in the past few months, it is possible to find the reports on drug courts archived at Department of Justice http://www.ojp.doj.gov (last updated Nov. 24, 2003) and in the National Criminal Justice Reference Service, http://www.ncjrs.org.
63. Although the webpage for the United States Department of Justice has changed drastically in the past few months, it is possible to find the reports on drug courts archived at Department of Justice http://www.ojp.doj.gov (last updated Nov. 24, 2003) and in the National Criminal Justice Reference Service, http://www.ncjrs.org.
64. See generally HELGI GUNNLAUGSSON & JOHN F. GALLIHER, WAYWARD ICELANDERS: PUNISHMENT, BOUNDARY, MAINTENANCE, AND CREATION OF CRIME 92 (2000) (tracing the development of Icelandic drug courts and related legislation); Karen Freeman et al., New South Wales Drug Court Evaluation: Program and Participant Profiles 50 CRIME & JUST. BULL. 1 (2000) (evaluating the first drug court in New South Wales, instituted in 1999); Charlotte Walsh, The Trend toward Specialisation: West Yorkshire Innovations in Drugs and Domestic Violence Courts, 40 HOWARD J. 26 (2001) (discussing the trend towards specialization of magistrates courts, particularly drug courts, in Great Brittain).
65. See generally HELGI GUNNLAUGSSON & JOHN F. GALLIHER, WAYWARD ICELANDERS: PUNISHMENT, BOUNDARY, MAINTENANCE, AND CREATION OF CRIME 92 (2000) (tracing the development of Icelandic drug courts and related legislation); Karen Freeman et al., New South Wales Drug Court Evaluation: Program and Participant Profiles 50 CRIME & JUST. BULL. 1 (2000) (evaluating the first drug court in New South Wales, instituted in 1999); Charlotte Walsh, The Trend toward Specialisation: West Yorkshire Innovations in Drugs and Domestic Violence Courts, 40 HOWARD J. 26 (2001) (discussing the trend towards specialization of magistrates courts, particularly drug courts, in Great Brittain).
66. See generally HELGI GUNNLAUGSSON & JOHN F. GALLIHER, WAYWARD ICELANDERS: PUNISHMENT, BOUNDARY, MAINTENANCE, AND CREATION OF CRIME 92 (2000) (tracing the development of Icelandic drug courts and related legislation); Karen Freeman et al., New South Wales Drug Court Evaluation: Program and Participant Profiles 50 CRIME & JUST. BULL. 1 (2000) (evaluating the first drug court in New South Wales, instituted in 1999); Charlotte Walsh, The Trend toward Specialisation: West Yorkshire Innovations in Drugs and Domestic Violence Courts, 40 HOWARD J. 26 (2001) (discussing the trend towards specialization of magistrates courts, particularly drug courts, in Great Brittain).
67. See sources cited supra note 41 (listing articles from Australia and New Zealand). However, some interesting research found that the restorative justice model did not fit American drug courts very well, at least insofar as the shaming component of restorative justice served only to alienate American drug court clients, and recidivism rates from a "restorative" drug court were "significantly higher than for comparable offenders processed outside drug court." Terrence D. Miethe et al., Reintegrative Shaming and Recidivism Risks in Drug Court: Explanations for Some Unexpected Findings, 46 CRIME & DELINQ. 522, 522 (2000).
68. U.S. GENERAL ACCOUNTING OFFICE, DRUG COURTS OVERVIEW, supra note 35, at 37.
69. Id. at 38.
70. Drug Court Program Office, Program Announcements, at http://www.ojp.usdoj.gov/BJA/grant/DrugCourts/96DrugCourt.htm (last visited Nov. 20, 2003)
71. NOLAN, supra note 20, at 133 (quoting 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, 463-64 (1999)).
72. NOLAN, supra note 20, at 133 (quoting 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, 463-64 (1999)).
73. THOMAS S. KUHN, THE STRUCTURE OF SCIENTIFIC REVOLUTIONS 23 (2d ed. 1970).
74. The term "paradigm shift" is traceable to the work of Kuhn, in which he describes the epistemology of science. The scientist lives within her discipline and learns the assumptions and proven scientific foundations of past research. Her own work tests small parts of those assumptions so as to improve the model. But sometimes the tests disprove the model. If enough of these small tests add up over time to constitute a major challenge to the fundamental assumptions of the dominant paradigm, a new understanding - a new paradigm - develops. This new paradigm will differ from the old one in what it holds to be true and good. See id. at 42-44.
75. Mandated process evaluations of drug court operations funded with federal grants continually refer to the relationships between defense counsel and prosecutors in moving the business of drug courts forward, and they describe adversarial relationships in much the same sense as plea bargaining is adversarial. That is, while each side works with other members of the courtroom workgroup to achieve an agreement acceptable to all, legal standards circumscribe how far the attorneys will go in ceding control over the defendant. Due process standards must still be upheld, as must prosecutorial expectations of adherence to sentencing law. Thus, at least in the drug courts I have evaluated, drug court team meetings about whether defendants should be admitted into the court differed little in substance from typical guilty plea discussions between prosecution and defense. (See a description of the defense role in William Simon's article in this volume.) Relations between defense and prosecution may not be overtly adversarial, but they aren't in normal plea bargaining, either. However, the role of the judge in drug court is different because the judge is deeply involved in the guilty plea discussions, as are probation workers. This is probably not enough, however, to demonstrate a wholesale "paradigm shift."
76. See generally FRANKLIN ZIMRING, ET AL., PUNISHMENT AND DEMOCRACY: THREE STRIKES AND YOU'RE OUT IN CALIFORNIA (2001).
77. The coercive aspects of this "opportunity" are well understood. The defendant must get clean or serve lengthy incarceration. "Participants enroll in drug court primarily to avoid adverse consequences of their criminal cases, not out of a sincere wish to engage in treatment and get off drugs," but eventually the therapeutic effects sink in. Bureau of Justice Assistance, An Honest Chance: Perspectives on Drug Courts, Executive Summary ¶ 18 (2002) at http://www.ncjrs.org/html/bja/honestchance/execsum.html (last visited Nov. 20, 2003). Insofar as the guilty plea in these cases is achieved primarily through the threat of harsher punishment should the defendant not plead guilty, it is not different from the incentive structure of plea bargaining as it is generally practiced in the United States today. Cf. Candace McCoy, Bargaining in the Shadow of the Hammer: The Trial Penalty in the USA, in THE JURY TRIAL IN CRIMINAL JUSTICE 23 (Douglas D. Koski ed., 2003) (explaining the coercive threat of post-conviction sentencing as an incentive to accept a plea bargain in criminal cases).
78. The coercive aspects of this "opportunity" are well understood. The defendant must get clean or serve lengthy incarceration. "Participants enroll in drug court primarily to avoid adverse consequences of their criminal cases, not out of a sincere wish to engage in treatment and get off drugs," but eventually the therapeutic effects sink in. Bureau of Justice Assistance, An Honest Chance: Perspectives on Drug Courts, Executive Summary ¶ 18 (2002) at http://www.ncjrs.org/html/bja/honestchance/execsum.html (last visited Nov. 20, 2003). Insofar as the guilty plea in these cases is achieved primarily through the threat of harsher punishment should the defendant not plead guilty, it is not different from the incentive structure of plea bargaining as it is generally practiced in the United States today. Cf. Candace McCoy, Bargaining in the Shadow of the Hammer: The Trial Penalty in the USA, in THE JURY TRIAL IN CRIMINAL JUSTICE 23 (Douglas D. Koski ed., 2003) (explaining the coercive threat of post-conviction sentencing as an incentive to accept a plea bargain in criminal cases).
79. James J. Hennessy, Drug Courts in Operation: Current Research, 33 J. OFFENDER REHAB. 1, 1 (2001) (providing a general introduction to the "war on drugs," particularly the vacillation between a rehabilitative and punitive focus).
80. One suggestion: change the federal forfeiture laws so that property seized by local police departments from arrests of suspected drug dealers is given not to those departments, but to drug courts. This would have the valuable effect of removing the incentive for police departments to inflate drug charges against property owners - a common criticism of the program - and instead apply the fruits of police searches to solving the drug problem, one addict at a time.
81. See Nancy Wolff, Courts as Therapeutic Agents: Thinking Past the Novelty of Mental Health Courts, 30 J. AM. ACAD. PSYCH. & L. 431 (2002), for an evaluation of the treatment provided by mental health courts. Wolff also notes that mental health courts tend to "skim" the clients with the best chance of responding to intervention, such as low-level panhandlers and loiterers with no history of violence, while persons with deeper mental problems remain untreated or imprisoned. Id. at 431. It would be disingenuous under such conditions to claim that mental health courts have made a big difference in helping mentally ill people generally.