Drugs, courts, and the new penology.

AuthorMiller, Eric J.
PositionSymposium: Drug Laws: Policy and Reform
  1. INTRODUCTION

    Perhaps the most important judicial response to the War on Drugs (1) has been the creation of specialty "drug courts" designed to ameliorate the impact of drug sentencing policy on individual drug users. (2) The drug court's central goal is to provide a safety valve for the cycle of incarceration-release-recidivism that filled prisons with low-level drug users rather than the dealers and distributors that primarily facilitated drug use in America. Their central methodology is to replace the parole officer with the judge as primary supervisor of each defendant's treatment program, (3) so that the court takes responsibility for the "supervised referral of identified defendants into treatment." (4) Drug courts work at the input-end of the incarceration cycle: they intervene to divert offenders to treatment before imprisonment. The goals and methodology are shared at the output-end of the cycle by reentry courts that operate to supervise prisoners on parole or supervised release upon their return to the community. (5)

    The result is the rise of the "problem-solving court" (6) as the hub through which the criminal justice system organizes drug rehabilitation. Thanks to the success of the drug court model, judicial influence has massively expanded in the control of drug policy and social regulation. This judicial power has exploded at a low level: the level of state trial courts engaged with local communities, often located in struggling urban districts around the courthouse. (7) These courts aim to restructure the lives of individual addicts in the context of their wider community, and so often seek to include in the rehabilitation process not merely the addict, but also his or her family, friends, and "significant others." (8)

    Drug courts present tremendous opportunities for drug policy, and, in particular, for shaping the social norms that affect community responses to issues of addiction and incarceration. But drug courts also rest upon a series of controversial methodological assumptions underlying the selection of the court as the locus of treatment provision and management. The court's methodology implicates political issues of coercion and freedom in ways that derive from and respond to some of the central policy problems underlying the interaction of race, poverty, and drugs in urban environments.

    Few people have recognized that the drug court's therapeutic methodology is not a repudiation of politics but one that takes sides by embracing a coercive version of justice based on a version of positive liberty. (9) In particular, the court's rejection of due process in favor of treatment expresses the now-classic opposition between positive and negative liberty; that is, the freedom to be left alone and the freedom to "determine someone to be ... this rather than that." (10)

    Most critics who oppose the drug court's methodology simply call for a return to a courtroom practice centered around due process protections as a form of negative liberty to protect vulnerable defendants against intrusive state power. (11) My goal is to suggest a third concept of freedom, one that emphasizes a mutual respect for members of the community as peers sharing diverse values. (12) That form of freedom can only emerge through non-coercive interaction in the public sphere through low-level political organizations. (13) This concept of liberty has its roots in the founding fathers' political debates in town halls, (14) a form of political structure that became concretized and constitutionalized in the institution of the grand jury. Accordingly, as an alternative to the current structure of drug courts, I propose both a more radical and a more natural structure for court-based drug rehabilitation: a grand jury model rather than a judicial one.

    Adopting the grand jury structure replaces the hierarchical relation between judge, on the one hand, and community and offender, on the other, with a horizontal relationship between community, offender, and law enforcement. The grand jury model envisages a reciprocal relationship between the community, addicts, and service providers, in which those serving on these drug-dedicated grand juries would be educated about the range of problems faced by and resources available to the drug-addicted and would, in turn, educate service providers and law enforcement officials about community needs. Properly constituted, the grand jury may both supervise addicts within a rehabilitation program and redirect others out of the system or onto a more traditional form of court disposition.

    In Part II, I provide a brief overview of the genesis of both drug and reentry courts to suggest that each arises from a concern that traditional courts were failing to address successfully the problem of drug use in predominantly poor, minority urban areas. In Part III, I argue that drug courts have turned to the race-neutral justification of therapeutic jurisprudence as a means of building bipartisan agreement through downplaying the racial impact of American drug policy over the past thirty years. The therapeutic methodology adopted by drug and reentry courts, however, cannot address one of the central aspects of urban drug use: those social features of urban drug use that have an economic and racial impact.

    In Part IV, I suggest that a central feature of the therapeutic methodology is the drug and reentry courts' characterization of the offender as an individual in need of discipline, rather than medical help. Accordingly, the court embraces the central expertise of the judicial office in the context of sentencing: dispensing punishment. We should thus understand the judicial rhetoric of "tough love" (15) literally, rather than metaphorically: the point of drug courts is discipline-as-treatment. When the court says treatment, it means discipline of individual offenders, rather than management of medical opportunities. Finally, in Part V, as a means of promoting the sort of community-centered treatment drug and reentry courts claim as their goal, I suggest that a proceeding used to determine how to treat individuals in the community should embrace the community's existing method of representation in the criminal justice system, the grand jury, and replace the positive liberty aspect of therapeutic jurisprudence with a conception of political action based on participative democracy. (16)

  2. GENESIS OF DRUG AND REENTRY COURTS

    The first drug court was founded in Dade County, Miami, in 1989; (17) soon after, another appeared in Oakland, California. (18) That each was established in an urban and predominantly minority jurisdiction is not accident. (19) By the end of the 1980s, the "War on Drugs" had become the primary cause of the increased rates of arrest, conviction, and incarceration of Americans generally, (20) and of racial minorities in urban environments in particular. (21) The initial drug courts were conceived as a means of ameliorating the impact upon vulnerable communities suffering from closing factories, spiraling unemployment, increasing residential segregation, (22) underpohcing, (23) and drug addiction.

    Drug prosecutions after the 1980s "utterly transformed law enforcement in [America]," (24) producing a "severity revolution" in penal policy (25) that targeted first drug dealing and then drug users. Most notorious among the provisions was the incredibly harsh punishment for possession of crack cocaine. (26) "Between 1986 and 1991, the number of white drug offenders in state prisons increased by 110 percent, but the number of Black drug offenders rose by 465 percent." (27) By 1994, less than a decade after Congress enacted the Anti-Drug Abuse Act of 1986, (28) Michael Tonry was able to report that "[d]rug offense sentences are the single most important cause of the trebling of the national prison population since 1980." (29)

    The drug court was explicitly envisaged as a response to the proliferation of court caseloads and prison overcrowding resulting from the War on Drugs. (30) Drug court judges and practitioners regularly refer to the rates of drug crimes, arrests, and incarcerations as the primary justification for initiating drug court programs. (31) Two lines of argument predominate: that the failure to treat offenders properly does nothing to ameliorate the rate of drug abuse; and that the arrest and conviction rates for drug crime pose a range of managerial problems for an overloaded criminal justice system. (32) The drug court is a direct response to this failure. "The drug court strategy was conceived as an attempt to do something about the 'root cause' of involvement in crime ... and as an alternative to processing cases faster with poor results." (33) In response, a growing cadre of judges has recognized that an alternative to traditional case processing methods was required to cope with drug cases. (34)

    Drug courts are low-level and localized judicial responses to the incarcerative consequences of national drug policies. (35) The drug court transforms court practice to divert offenders from prison into treatment. (36) It rejects the traditional or adversarial model of courtroom practice that forces the judge into a passive role. (37) Rather, the judge's primary role shifts from the determination of guilt to the provision of therapeutic aid. The judge's dominant concern is to ensure the treatment and rehabilitation of the offender. (38) The court's procedure emphasizes self-knowledge and responsibility on the part of the offender and participation in various drug treatment programs, along with regular drug monitoring.

    The drug court judge negotiates the drug treatment plan directly with the offender, (39) and no longer relies upon treatment proposals developed by a probation officer, subject to the prosecutor and defense counsel's arguments over their propriety for the particular defendant. (40) Instead, the drug court incorporates the rehabilitative model within the court...

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