GSB Vol. 13, NO. 7, Pg. 14. Maintaining Judicial Independence in Drug Courts.

Author:Hon. Jeffrey S. Bagley

Georgia Bar Journal

Volume 13.

GSB Vol. 13, NO. 7, Pg. 14.

Maintaining Judicial Independence in Drug Courts

GSB JournalVol. 13, NO. 7June 2007Maintaining Judicial Independence in Drug CourtsHon. Jeffrey S. BagleyThe judicial system is notorious for its tendency to be highly resistant to change. The courts and attendant legal procedures have experienced little change over the last 200 years as compared to other professions such as the medical and engineering disciplines. The concept of a court with rehabilitation as its primary focus has existed for only approximately 18 years.(fn1) In 1989, the nation's first drug court program was established, which ushered in the drug court revolution.(fn2)

Drug court judges are forced to remove themselves from the "comfort zone" of traditional criminal procedure. Judges, who are accustomed to making decisions alone, become part of a collaborative decision-making team made up of the district attorney, defense counsel, coordinator, law enforcement, treatment providers, as well as many others.(fn3) This article is intended to focus on the drug court judge's challenge to maintain judicial independence while, at the same time, recognizing and participating in a coordinated team approach, which is vital to the drug court program's success.

Drug Courts: How Do They Work and Why Are They Necessary?

Any analysis of judicial independence in the context of a drug court setting requires a thorough review of how a drug court functions and why independence is necessary in courts processing felony drug cases. In such courts, the volume of drug cases processed may cause the judge to consider an alternative to traditional sentencing primarily due to the frustrations associated with the attempt to rehabilitate a drug addict.

Drug courts are unique in the criminal justice system. Before the advent of the drug court movement, a defendant's typical sentence in a simple possession case, emphasizing rehabilitation, included as its primary component a substance abuse evaluation with treatment and counseling. This approach rarely succeeded because most addicts managed to feign compliance, all the while fully intending to return to their old lifestyle once they became free of probation supervision. Because the court would never see a defendant again unless he were arrested for a probation violation, there was never any direct court supervision and certainly no encouragement from the court to a defendant to make profound changes in his life. If the defendant could pass enough drug screens through deception, including adulteration of screens, he would be free to continue his lifestyle almost as if he had never been arrested. It is, however, inevitable that a defendant who continues in the same lifestyle will continue to burden the criminal justice system as a recidivist.(fn4)

Because the traditional rehabilitative sentence of a drug addict rarely met with success, drug courts were therefore conceived to legitimize the rehabilitation function of the courts. The first drug court was conceived in Miami, Fla., where the courts were being overwhelmed with the cocaine trade and the prisons were not equipped to handle the rapidly-growing inmate population.(fn5) It was there that the model of drug courts was tried and tested in an attempt to halt the cycle of addiction due to the failure of traditional penal-related methods.(fn6) In the typical drug court model, treatment, which was always present, is combined with judicial accounta bility and is appropriately termed "coerced treatment."(fn7) One notable author describes how drug courts function as follows:

In the context of treatment, the term coercion-used more or less interchangeably with "compulsory treatment," "mandated treatment," "involuntary treatment," "legal pressure into treatment," and "criminal justice referral to treatment"-refers to an array of strategies that shape behavior by responding to specific actions with external pressure and predictable consequences. Coercive drug treatment strategies are already common. Both the criminal justice system and the workplace, for example, have proven to be excellent venues for identifying individuals with drug problems, then exerting external leverage, from risk of jail to threat of job loss, and providing powerful incentives for individuals to start and stay in treatment.(fn8)

That author specifically found that

addicts need not be internally motivated at the outset of treatment in order to benefit from it. Indeed, addicts who are legally pressured into treatment may outperform voluntary patients, because they are likely to stay in treatment longer and are more likely to graduate. Without formal coercive mechanisms, the treatment system would not attract many of the most dysfunctional addicts and surely would not retain them.(fn9)

As previously noted, drug courts have been proven to be effective in reducing recidivism.(fn10) As a result of this success, drug courts have been established on a national level and are continuing to increase in number.(fn11) The Georgia General Assembly has recognized the importance and effectiveness of drug courts through the enactment of an enabling statute, which formalizes the creation of a drug court division of the superior court at the discretion of each circuit.(fn12)

How Do Drug Courts Procedurally Differ From Traditional Criminal Justice System Courts?

In traditional criminal jurisprudence, the determination of guilt and imposition of sentence essentially mark the end of the criminal law process. In the drug court division, the determination of addiction and referral to drug court signals the beginning of the process. Drug court procedures, while bearing many similarities, differ from jurisdiction to jurisdiction.(fn13) Typically, drug courts are pre-adjudication courts where a defen-dant, charged with a felony drug possession offense, enters a plea of guilty with sentencing postponed. The goal is for the defendant to graduate from the program, usually in 18 to 24 months, resulting in a complete dismissal of the charges by the district attorney.(fn14)

The Drug Court Standards Committee of the U.S. Department of Justice's Office of Justice Programs established the Ten Key Components, which form the basic foundation of most legitimate drug courts.(fn15) The Ten Key Components were designed to serve as a benchmark of best practices to be employed within adult drug court programs.(fn16) Key Component six emphasizes a collaborative team effort and approach. The drug court judge cannot manage and operate a drug court alone or in a vacuum. Yet, it is the collaborative team approach to the decisions regarding responses to participants' compliance, as emphasized by Key Component six, which appears to create a significant conflict with the drug court judge's duty to maintain judicial independence.

First, judicial independence is in jeopardy of being...

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