The drug court response: issues and implications for justice change.

• Author: Goldkamp, John S.

Whenever any new type of cause 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)

1. 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 justice 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 justice 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 justice 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.(15) The drug court approach strikes these critics as familiar, misdirected do-gooderism dressed up in the new clothes of restorative, social justice, and rehabilitative (a.k.a. "treatment") values.(16) Critics believe that these hopeful advocates forget or purposefully overlook the disappointing lessons, abuses, and poor track record of rehabilitation that preceded the shift toward the more punitive justice aims in recent decades in the United States.(17)

   Based upon the sheer numbers of drug courts around the country (and increasingly abroad), questions about the appropriateness of drug courts are now heard less frequently--or have become increasingly academic. A decade ago some judicial leaders argued that courts should resist being forced into serving the role of "social service institutions of last resort," because of the failure of other government and community mechanisms. At a 1989 meeting of the "Big Nine" court systems, high-ranking court officials in the nine most populous jurisdictions spoke about court strategies that would process drug cases more quickly and coolly ignored suggestions to develop court-based treatment approaches. Alone at that Philadelphia meeting, Judge (Herbert) Klein from Miami argued that the answer was not to be found in making the machinery of justice spin faster, but rather in developing an effective strategy of court-supervised drug treatment in a way that had never before been attempted in the criminal courts.(18)

   The reaction to Judge Klein's drug court proposition emphasizing the concepts of "treatment" and "rehabilitation" was what can best be described as embarrassed silence and out-of-hand dismissal of ideas that were viewed as behind the times. The other judicial leaders seemed to believe that Judge Klein was an impractical idealist and that his approach could contribute little to practical solution of the drug-involved caseload problems the conference was convened to discuss.(19) That "hands-off' critique saw intervention into the problems of the individuals involved in criminal cases as inappropriate and compromising to the "neutral" judicial adjudication function. Although the growth and acceptance of drug courts has not quieted all concerns about the implications of a "hands-on" judicial approach, many judicial leaders have accepted the inevitability, if not the desirability of this "social service" role of the courts.(20)

   Perhaps following Pound's admonition, critics worry that the disproportionate emphasis placed on the particular in the criminal caseload by drug and other specialized courts risks distracting from the general mission of the courts to delver justice.(21) More simply, they may fear that, passing judicial fad or not, drug courts (and others of theft "problem-solving" orientation) will be the "tail that wags the dog"--the minor emphasis that disturbs the overall function of the courts, disrupts the allocation of already scarce resources across judicial workload areas, and ensures that more fundamental justice issues will not be addressed.(22) Some judicial leaders and others (including representatives of prosecution and defense) may be especially concerned that, symbolically and practically, the drug court methodology may compromise the neutrality of courts by permitting judges to participate as decision-makers in a form of advocacy in social causes (e.g., reducing substance abuse, domestic violence, or restoring mental health) and to adopt social work-like or activist roles, rather than the detached, objective judicial approach necessary for fair adjudication of cases.(23) In other words, critics may ask how a judge can "wear two hats": one as a neutral trier of fact, the other as the engaged, "hands-on" agent of therapeutic change.(24)

   The status of the debate concerning the desirability and appropriateness of drug courts has shifted dramatically, from even a decade ago, when only a small handful of drug courts were operating in the United States(25) The rapidly growing volume of drug courts, and other "problem-solving" courts, suggests that the drug court experiment struck a fundamental chord of dissatisfaction with the traditional justice system whose only object seemed to be to punish and process.(26) The rapid diffusion of this innovation suggests that the time is past when drug courts can be dismissed as an odd collection of special projects led by dedicated judges in a few isolated jurisdictions. As a result, the critical question about the appropriateness and desirability of drug courts may have shifted from whether to establish drug courts, to how best to implement and operate them within the overall framework and larger aims of the court system.

   A number of states (California, New York, Louisiana, Ohio, Oregon, Florida), large counties (Los Angeles County, Clark County, Nevada), and large urban centers (Miami, Brooklyn, Buffalo, Portland, Seattle) have incorporated drug courts into their administrative and budgetary planning processes because growing case numbers raise questions about priorities, resources, effective management, and performance standards.(27) This Article considers the nature of the drug court innovation and discusses some of its implications for change in the American way of "doing" justice.(28)

2. THE ELEMENTS OF THE DRUG COURT STRATEGY

   Although there are common elements shared by most drug courts,(29) proliferation of the drug court model is not explained by the wholesale adoption of a fixed, "cookie-cutter" approach in the many jurisdictions across the nation.(30) Predictably, the original Miami model evolved in its successive adaptations in other settings, and in substance and procedure, was itself transformed as the basic model spread across the United States and abroad. The drug court methodology has been adapted to grapple with other problems associated with court populations, including community issues, domestic violence, and mental health, and has directly and indirectly spawned a...