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Massachusetts Law Review

Book Review: Reinventing Justice: The American Drug Court Movement

Reinventing Justice: The American Drug Court Movement, by James L. Nolan, Jr. (Princeton University Press, 2003), 254 pages. The concept of rehabilitation for lawbreakers became a discredited notion in the 1980s. It was viewed as an ineffective soft-on-crime coddling of criminals.

Flying in the face of the times, in 1989, Judge Herbert Klein of Florida's Eleventh Circuit was commissioned to study and seek an alternative approach to combating the increasing number of felony drug crimes in Dade County with traditional criminal prosecution. His proposal eventually led to America's first drug court - combining a rigorous treatment program with intensive judicial supervision. The goal was a pragmatic one. It was to reduce the recidivism rate, relieve overcrowded jails of nonviolent offenders, reduce the heavy caseloads of criminal court dockets and lower the expense of incarcerating offenders with the dramatically cheaper cost of treatment. It was believed that, since most lawbreakers have a drug or alcohol problem, if energies could be directed toward actually reducing substance abuse rather than just warehousing offenders in prison, the crime rate could be dramatically lowered.1

Since that time, as of May 2003, more than 1,000 drug courts have sprung up and another 426 are being planned across the country in all 50 states.2 The expansion has been so rapid it has been referred to as a "revolution" or a "movement."3

Drug court systems vary greatly from state to state since, according to Tim Murray, former director of the federal Drug Courts Program Office, "It is probably the only movement in the judicial system that has bubbled up from the grassroots to the federal government."4 The concept was adopted to meet the needs of each local community.

A typical drug court might have a group of drug offenders meet regularly in the courtroom with a particular judge who monitors their treatment progress and gives each offender either words of praise or admonition. A participant may be congratulated in front of everyone for completing his or her G.E.D., another who admits to having smoked marijuana may be questioned why that happened or, if not really engaging with the program, might be given a weekend in jail only to rejoin the group afterward. Behind the scenes, participants meet regularly with drug court caseworkers to determine what their needs are, whether it's drug treatment, job training or childrearing classes. Then, their days are filled with an onerous combination of community service, groups, drug testing, programs and courses. The drug court is usually an alternative to incarceration with the goal to prevent the participant from re-offending.

One has to have either no prior record or just a minor criminal record to be eligible for some drug courts. Other drug courts ban gang members. Still others will include only non-violent offenders. Yet some make a distinction admitting someone having been involved in just one minor violent incident, such as a shoving match or a youthful fistfight, as opposed to someone with a long history of violence and rage. Some are only used pretrial while others admit offenders post plea, even allowing the plea to be stricken after successful completion of the program.

Yet, in Reinventing Justice: The American Drug Court Movement,5 James L. Nolan, Jr. purports to have written a book neither advocating nor debunking the movement. He did not even attempt to find out whether drug courts actually work. His goal was to write an objective book placing the phenomenon in a broader socio-historical context seeking to understand the movement against the backdrop of the history of the social control of drugs in the United States. Further, he sought to understand the consequences of this judicial innovation on the processes of criminal adjudication and on social and legal understandings of justice.

Nolan's theory is that cultural factors influence government and the law. For example, even though structural factors such as overcrowded courts and jails and high recidivism rates may seem to be the catalysts pushing for a need for alternatives to incarceration, these innovations would never happen unless the popular sentiment of the citizenry of that era is prepared for it. As Nolan puts it, "Éthe moral codes and symbols pervading a particular culture at a particular time greatly influence which behaviors will be regarded as deviant and what types of punishments will be used to sanction them."6

Accordingly, it is not as if laws are passed and people blindly follow them. Legislators generally pass laws that the people are ready for and can tolerate. For example, lawmakers today know that they can't create punishments for crimes that include corporal punishment or the severing of limbs, as did other cultures in other periods of time, because the majority of people in 21st century American culture would not tolerate it.

In other words, Nolan's study of drug courts is merely a lens to capture a snapshot in time of where the sensibility of the American civilization resides at this moment in its history. He believes the kind of jurisprudence represented in the drug court is distinct enough to represent something altogether new - "a peculiarly late twentieth-century phenomenon, though clearly one that has its antecedents in the penal practices of the rehabilitative era."7

According to Nolan, the law's involvement with drug use is relatively recent, beginning in the early part of the 20th century. Prior to the Civil War, many physicians prescribed a number of opiates, not at all cognizant of their addictive and debilitating effects. In fact, during the Civil War itself, morphine was administered to the wounded so prevalently by doctors that the massive number of subsequent addictions became known as the "army disease."8

With literally hundreds of thousands of people addicted to opiates, society initially did not pass laws against it, but rather viewed it as a physical disease as if it were "typhoid fever or pneumonia."9 After a number of decades, though, the medical community became frustrated with having found no magic bullet cure to what they viewed as a medical problem. So, beginning in the early part of the 20th century, there was a shift from physiological to psychological explanations for the disease as addicts were sent for the "talking cure."

However, at about the same time that it became viewed as a problem of the mind, many viewed drug problems as a moral failure. A number of countries had an international conference in Shanghai spurred on by such things as American frustration with opium use during its acquisition of the Philippines in 1898 and by China still smarting from its earlier Opium Wars with Great Britain. Following the conference, many countries vowed to "reexamine" their laws.10

Until that same time, opium use was restricted primarily to the "respectable" middle and upper class strata of American society.11 At that point, the Protestant establishment realized that immigrants, laborers and other non-"WASP" classes were becoming addicted to these drugs now in use across all class lines. That gave the upper classes "status anxiety" and made them fearful of the teeming hordes beneath them.12

In legislative hearings, phrases like "dope fiends," "secret and vile habit" and "nefarious and soul-destroying" began to be bandied about.13 Although earlier attempts to outlaw narcotics failed, the United States Congress eventually passed the Harrison Act in 1914.14 It was, as Nolan argues, a direct response to the culture's evolving feelings about the moral failure represented by drugs. He bases this on many speeches at that time playing on fears by claiming that drug use was largely confined to the criminal classes and the lower orders of society, but it was beginning to seep "into the higher circles of society."15 Speakers blamed the marginalized classes such as "Chinamen," and claimed "[c]olored people seem to have a weakness for it" and "a great many of the Southern rape cases have been traced to cocaine."16 Concern was expressed that its very use was encouraging such things as "white slave traffic to corrupt young girls"17 as it threatened to spoil the values of the more mainstream white establishment.

This, along with the failure of early clinics to effectively cure addicts of their addictions, led to a period of decades where the therapeutic approach to narcotics was abandoned for the moralistic law enforcement view. Nolan traces the evolution of drug laws getting tougher and more punitive year by year, as the public became more disgusted with narcotics. He writes that by the 1950s, bills had passed Congress for mandatory minimum sentences for some drug offenses and the death penalty for others. Harry J. Anslinger, the U.S. Commissioner of Narcotics from 1930 to 1962, summed up this attitude best when he equated drug addiction with "hoodlumism" and said, "In a sense it may be true that every hoodlum is a psychiatric problem, but in a practical sense one must treat the bank robber, the gambler and thief as criminals."18

In the early and mid 1960s, the pendulum finally swung the other way as the Unites States Supreme Court19 and the United States Congress20 both began to look at drug addiction as a sickness. Courts were given statutory authority to involuntarily commit drug offenders to residential and outpatient treatment as an alternative to incarceration. In 1972, under the Nixon administration, a forerunner of the drug court system, Treatment Alternative to Street Crime (TASC) married the justice system to the medical community. Offenders were sent to outside treatment first prior to going back to the judicial system where a more lenient disposition was often meted out.21

Although some such rehabilitation programs continued to exist, many were abandoned during the 1980s when heavier sentences to incarceration were handed out due to the increased popularity of mandatory minimum sentences for drugs. In spite of this, by the end of the 1980s, drug courts came into being and their use was quickly adopted across the country. But, as stated previously, their popularity did not spring into existence out of nowhere. According to Nolan, there were obvious structural and cultural causes for their creation.

The structural reason was the increasing burden on the court system caused by the heavier penalties of the new drug laws and the increased use of cocaine, particularly crack cocaine, in the 1980s. This, along with the sky-high recidivism rates of drug offenders after their eventual release from prison, made it apparent to some we could not jail our way out of the problem. 22

Drug Court Judge William Schma of Kalamazoo, Mich., observed that "even dead-rock conservatives" recognize that, "you can't keep jailing everybody, that it doesn't do a damn bit of good for an addict, and that addicts need treatment."23 It is neither a liberal nor conservative program.

"The traditional adversarial system of justice, designed to resolve legal disputes, is ineffective at addressing alcohol and other drug abuse," according to the Justice Department.24 The pressure was on to come up with alternative solutions.

At the same time, Nolan continues with his theory that drug policy has always followed rather than shaped public attitudes. He states that in the late 1980s there was an emerging dominance of a therapeutic culture in American society. Drug courts represent a unique intermingling of therapy with the justice system. They essentially alter the typical adjudication process. Routinely, social movements usually spring up from outside the system and their goal is to move the establishment to change. Drug courts are fairly unique in that they originated from within the system.

They differ from the earlier TASC programs that sent offenders off to therapy outside the justice system and then returned the offenders to court afterward for sentencing. Drug courts are essentially therapeutic courts run by therapeutic judges. The judge is thrown into a nontraditional position where, no longer the passive neutral fact finder, he enters into a more activist role. Nolan retells a story he heard about Boston's own drug court program, where Judge Robert Ziemian had been exhorting a particular drug court participant to secure employment. When that offender finally landed a job, Judge Ziemian was so pleased he personally showed up at the job site to offer his congratulations and the offender never forgot it.25

Some judges raise funds for their program, others lobby for government funds and others proactively seek out programs in the community to engage with the drug court such as G.E.D. schooling, job training and placement offices and medical services.

The book emphasizes that being therapeutic does not equate to being soft on crime. "Punishment and therapy can be collaborative rather than contradictory goals."26

Drug courts seem to defy the typical political labels being neither liberal nor conservative. Conservatives like the rigorous, demanding intrusive nature of the drug court while liberals like its rehabilitative qualities. Both like the idea that it may lower the re-arrest rate.

Judge Diane Strickland, who presides over the drug court in Roanoke, Va., states that it is tougher than mere incarceration:

The demands that are placed on these individuals are far more extensive than anything they would do whether they were incarcerated or put on probation. Incarcerated they basically have no demands put on them except to modify their behavior to suit the terms of their confinement, but other than that they are not asked to do anything. They can do nothing with themselves all day long whereas in the treatment court model they are required to either be in counseling, in educational courses, on the job or a variety of other classes all the time and there is a very demanding schedule set for them. They also are required to stay clean in an environment that is very challenging to them. So I see the drug court as a much more demanding program for them than if they went to jail. . . . Every time they make a misstep they are facing the possibility of some time in jail and I have people in my program who have already spent more time in jail than they would have spent had they just pled straight, served their time and gone about their business; because we keep working with them and when they are not succeeding we incarcerate them for a certain period of time and then put them back in the program.27

Not only do drug court judges perform a unique much more activist, less impartial function, but defense counsel also abandons the traditional role. Defense counsel must adjust from being the zealous advocate or adversary to the reduced role of stepping back and allowing the therapeutic process to flourish. This is a problematic issue since it goes against the very grain of what counsel see as their ethical duty.

Similarly, prosecutors also face a variety of ethical dilemmas giving up their traditional less conciliatory authority as the ardent promoters of public safety, answering to victims and law enforcement officers. Prosecutors in many states, at least initially, resisted the implementation of drug courts because they have to yield and turn over a great deal of their authority and discretion to drug treatment providers and judges making some prosecutors feel like a "potted plant."28 Also, their initial hesitation is that drug courts might be lenient places where defendants can avoid serious consequences for their offense.

In fact, everyone must adjust from customary established roles. Probation officers often are reluctant to turn over some authority to treatment providers. Most importantly, defendants, who are generally silent and let their lawyers do the talking, are constantly called upon to speak at length with the judge and staff and talk about the most intimate details of their lives. This shift in roles makes many defense attorneys nervous in waiving their duty to always protect every one of the defendant's due process rights in a highly adversarial procedure. This non-adversarial team approach of a drug court in favor of the different priority of merely helping someone with a drug problem runs counter to the perceived duty of defense counsel to fiercely advocate in favor of their client against the particular legal charge.

The author is more focused on these issues than in actually taking an advocacy role in promoting drug courts. Although the conventional wisdom has long been that drug courts dramatically lower the recidivism rate, Nolan decided not to come to a conclusion either way about their effectiveness. He cites a number of studies, some showing extraordinarily lower recidivism rates, some showing no change and most that he considers to have flawed methodology, leaving him apparently skeptical and uncertain.29

However, there is still a sense among those Nolan interviewed that the use of drug courts could be expanded to include other kinds of offenders. For example, a defendant might not be charged with a drug crime, yet the theft he is charged with was a theft to raise money to buy drugs. Another example, given by Cathy Delaney, the former director of treatment at the Boston drug court, concerns those charged with domestic abuse. She says, "89 percent of the batterers are under the influence of something when they batter." If you deal with the drug issue, "a percentage of them will never ever hit another human being in a battering situation again. I think the model can work."30

Essentially, Nolan views drug courts as part of a new paradigm called therapeutic jurisprudence. It differs from the old rehabilitative model that merely tries to bring the offender back in line to conform to society's values. In other words, rehabilitative justice was dedicated to the achievement of social purpose so that the defendant's behavior and attitudes become in harmony with society. It follows a therapy of adaptation. He views therapeutic justice as a more internal process, not just adapting to society's expectations, but in identifying and openly expressing one's own emotions. The ultimate priority is to allow oneself to change for the better from within rather than just try to conform to the rules of others.31 The difference between the old rehabilitative justice and the new therapeutic justice is a subtle distinction, to be sure. But it is Nolan's belief that it is an important one.

It is a new, quite revolutionary, notion of justice he speaks of - that justice should have more to do with "just treatment" rather than "just desserts." Nolan purports that traditional goals of justice such as punishment should not be abandoned, but that it's worth studying whether they should possibly take a back seat to the more significant goal of turning an offender's life around for the better. He suggests that therapeutic justice, exemplified by drug courts, might make society safer than the classical definitions of justice that have been followed until now.

Peter T. Elikann

End Notes

1. Peggy Fulton Hora, William G. Schma, and John T.A. Rosenthal, 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 (1999).[back]

2. In the material sent to the author from the Drug Court Clearinghouse and Technical Assistance Project, Office of Justice Programs, Department of Justice, it was reported that as of July 31, 2000, 263 drug courts had been operational for at least two years, 262 had been recently implemented and 295 were in the planning stages, for a total of 820 drug courts. Three years later, the number of implemented or planned drug courts has increased to almost 1,500. Drug Court Clearinghouse and Technical Assistance Project, Office of Justice Programs, Department of Justice, Summary of Drug Court Activity by State and County (Sept. 15, 2003).[back]

3. Drug Courts: A Revolution in Criminal Justice, Drug Strategies (1999).[back]

4. Cutting Crime: Drug Courts in Action, Drug Strategies, at 21 (1997); see also, Drug Courts: A Revolution in Criminal Justice, Drug Strategies, at 11, which calls drug courts "a truly grassroots phenomenon."[back]

5. James L. Nolan, Jr., Reinventing Justice: The American Drug Court Movement (2003) [hereinafter Nolan].[back]

6. Id. at 4.[back]

7. Id. at 169.[back]

8. William Butler Eldridge, Narcotics and the Law; A Critique of the American Experiment in Narcotic Drug Control 44 (1967).[back]

9. Charles Terry & Mildred Pellens, The Opium Problem, N.Y.: The Committee on Drug Addiction in Collaboration with The Committee on Social Hygiene, at 141 (1948).[back]

10. Nolan, supra note 5, at 20-21.[back]

11. Troy Duster, The Legislation of Morality: Law, Drugs, and Moral Judgment 9 (1970).[back]

12. Wayne H. Morgan, Drugs in America: A Social History, 1800-1980 47 (1981); John C. Burnham, Bad Habits: Drinking, Smoking, Taking Drugs, Gambling, Sexual Misbehavior and Swearing in American History 115 (1993).[back]

13. Nolan, supra note 5, at 23-24.[back]

14. Harrison Act, ch. 1, 38 Stat. 785 (1914).[back]

15. Importation and Use of Opium: Hearings before the Committee on Ways and Means of the House of Representatives, 61st Cong., 3rd sess., (Dec. 1910, Jan. 1911).[back]

16. Id. at 72.[back]

17. Opium Problem, Sen. Doc.377, at 49 (Feb. 1910).[back]

18. Edwin Schur, Narcotic Addiction in Britain and America: The Impact of Public Policy 192 (1962).[back]

19. Robinson v. California, 370 U.S. 660 (1962). [back]

20. Narcotic Addict Rehabilitation Act (1966).[back]

21. Nolan, supra note 5, at 36.[back]

22. Id. at 44.[back]

23. Id. at 54.[back]

24. Defining Drug Courts: The Key Components, Drug Court Program Office, Office of Justice Programs, U.S. Department of Justice, at 6 (Jan. 1997).[back]

25. Nolan, supra note 5, at 94-95.[back]

26. Id. at 51-52.[back]

27. Id. at 55-56.[back]

28. Id. at 82.[back]

29. Id. at 127-132; see also John Goldkamp & Doris Weiland, Assessing the Impact of Dade County's Felony Drug Court - Final Report, National Institute of Justice Research Report (Aug. 1993); Adele Harrell & Barbara Smith, Evaluation of the District of Columbia Superior Court Drug Intervention Program Focus Group Interviews, National Institute of Justice (Jan. 1996); W. Clinton Terry, Broward County Drug Court: A Preliminary Report, (1993); Michael Higgins, Drug War on the Cheap: Studies Tout Savings, Other Benefits of Treatment for Addicts, A.B.A. J. 83, Aug. 1997, at 24; Mark Curriden, Drug Courts Gain Popularity: Studies Show Rearrests Lower for Defendants Treated for Addiction, A.B.A. J. 80, May 1994, at 16; Christopher Johns, This Is Your Court on Drugs - And It Works, The Arizona Republic, Feb. 19, 1995, at C3; Steven Belenko, Research on Drug Courts, A Critical Review, Nat'l Drug Court Inst. Rev. 1 (Summer 1998).[back]

30. Nolan, supra note 5, at 147. (Many who work with domestic violence offenders dispute Delaney's opinion. The prevailing view is that substance abuse does not cause partner abuse and recovery from addiction does not "cure" partner abuse); see also Lundy Bancroft, Why Does He Do That? Inside the Minds of Angry and Controlling Men (2002) at 191; Donald Dutton, The Batterer, A Psychological Profile, (1995) at 53-54.[back]

31. Nolan, supra note 5, at 178-184.[back]

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