- Email: [email protected]
Drug courts and drug treatment
Journal of Clinical Forensic" Medicine (1998)5, 172-175
© APS/HarcourtBrace& Co. Ltd.1998
CURRENT PRA CTICE
Drug courts and drug treatment R Bean Midlands Centre for Criminology and Criminal Justice, Department of Social Sciences, Loughborough, UK SUMMARY. This paper examines the way in which American Drug Courts operate, and the changes required were they to be introduced into the UK. Journal of Clinical Forensic Medicine (1998) 5, 172 175
INTRODUCTION
presence of substance abuse and mental disorder - it is difficult to find more than a dozen papers in Britain. Or one can consider the criminal justice system: it took a long while for drug use in prisons to be recognized let alone dealt with. Finally, there is the use of treatment services by the courts, as available under the 1991 Criminal Justice Act, where treatment is provided under a condition of probation; this is rarely used. The development of drug courts is interesting; they are an American innovation and are now creating interest in Britain and elsewhere? The term 'Drug Court' is now widely used, but as applied here it specifically refers to the type of programme developed in Miami which began operating in 1989. 4 The essential feature is that drug courts provide a slow track treatment service where the court retains control and employs the treatment services. That is to say, the court does not hand the offender over to an agency, such as the probation service, but retains its own direct personal involvement. The treatment services are contracted to, and are required to provide a programme approved by, the court. That programme will be supported by urinalysis, frequent visits to the court by the offender, and immediate sanctions if the offender fails to respond - including periods in c u s t o d y . 4
It is sometimes difficult to believe that only in the last 40 years or so has Britain had a recognizable drug problem. The first hint came in 1957 when cannabis was found in one or two clubs in the West End of London, and later in 1959 when there was an increase in heroin use from 290 reported addicts in 1953 to 454 in 1959. Prior to that Britain reported regularly to the United Nations that it did not have a drug problem? By the 1960s heroin use was thought to be widespread, although main usage was confined to certain areas of London and one or two cities such as Cambridge and Edinburgh? By the 1970s interest in drugs and drug abuse fell away only to remerge in the 1980s with the increasing use of crack/cocaine and ecstasy. By the mid-1990s' drug use had become sufficiently common for it to be referred to as an epidemic and its users as 'normal' and this situation remains 3. Future historians will doubtless be interested in the way our contemporary society deals with a problem recently defined by some senior politicians as the 'scourge of our age'. At one level there is dismay and concern, but at another little seems to change; some of the major institutions of our society that bear the brunt of the problem have not always acted decisively, or been willing to make the necessary changes to deal with an influx of new drug users. Consider the problem is that created for the treatment agencies by the increase in the number of drug users with mental disorders. Although, there are about 800 or 900 research papers in American journals on dual diagnosis the
T R E A T M E N T SERVICES AND T H E COURTS IN T H E USA There are many obstacles to introducing drug courts in Britain. Only those concerned with treatment will be examined here, but others concern structure, the changes required to the legal system, and the changes required by the legal profession in the way our adversarial system of justice operates. In cataloguing various treatment services as examples, it is not suggested
Professor Philip Bean BSc (Soc), M S c (Econ), PhD, Midlands Centre for Criminology and Criminal Justice, Department of Social Sciences, Loughborough University, Loughborough, Leicestershire LE11 3TU, U K . 172
Drug courts and drug treatment they are the only obstacles to change nor that they are the most severe, rather that drug courts would, if implemented, have an impact on the way the current criminal justice system operates generally. Some of the obstacles within the treatment services are considerable, others less so. None should be underestimated, but none are insurmountable. It all depends on how much we, in Britain, want to change our way of working and embrace new ideas. Lip-service is often paid to the desire for change, but, in practice, resistance is evident, and drug courts require changes, some of a fundamental nature. A description of how the system works shows the difference between the approach adopted by drug courts in the USA and the way services are organized in Britain. Invariably, in the USA the impetus is provided by the local judge who may initially telephone the local treatment agencies to secure a meeting. The judge may also contact other key agencies including the public prosecutor, the public defender, the chief of police, the local mayor etc. to form an action committee, the major aim of which is to secure their agreement for a drug court. Initially the local media is also likely to be included. Funding is then sought at Federal and State level and, if successful, tenders can be invited and submitted from the local treatment providers. In the USA there is a Federal Start Up programme. If, according to the funding available, a number of contracts can be offered and a range of services provided - anything from inpatient detoxification to outpatient contacts, group therapy and acupuncture - the Drug Court can then begin. 5 There is always a shortage of funds; to offset deficits and help the programme many judges run local raffles and seek funding from the local community, justified on the basis that, as the community will benefit so should the community be expected to help pay. The offender may also be expected to pay - sometimes as much as US$50.00 per week, but often about US$20.00-US$30.00 per week to remain on the programme. Again the justification is that offenders receive expensive treatments and it is appropriate to expect them to pay. Failure to pay can lead to a period in custody. The drug-court judge and other team members work closely with the treatment provider. Periodic meetings foster close cooperation, but for a drug court to work effectively the treatment team must be accountable and responsive to the judge. For this reason some drug courts will, as part of the selection and assessments of the treatment providers, require treatment providers to demonstrate an understanding of what it means to work in a drug court. They will be requested to recognize that they are employed by the court and must be willing to allow the judge and the
173
programme to receive the attention and recognition. As an example, one drug court makes it clear that, 'There is no room for ego or grandstanding from treatment providers', they must, 'Accept all members of the court team, (lawyers, police etc.) as part of the treatment programme', and above all, 'Must not be so locked into their ideas and methodologies that they are unwilling to adjust to meet the specific needs of the court and the drug court participants'. They must also, 'Demonstrate a knowledge of the problem and the target population along with clinical solutions to dealing with both', the latter point not so obvious as it seems: many service providers in Britain have little experience or interest in offender populations where persistent offenders are likely to be in the majority. 6 Supporting all treatment services are urine-testing facilities. Each offender would expect, on average, to have three urine tests per week. In a drug court with over 300 offenders, which is the average size, this means over 1000 tests per week. The results will be provided within 10 min, but sometimes taking as long as 1 h; the latest equipment produces instantaneous results for the judge who will have a print-out of the offender's drug taking as required. In Britain, when results take anything up to 10 days, this would be regarded as quite unsatisfactory; many drug-court judges would say that informed decisions cannot be made on that basis, being both unfair to the offender and to the court. The essential feature of the drug court is that treatment is supported by close supervision which is controlled by and run by the court itself in effect, the judge. The burnout rate for such judicial posts is high: drug-court judges rarely stay in a drug court for more than 2 years.
CHANGES REQUIRED TO RUN DRUG COURTS IN BRITAIN
This brief description of the operation of American drug courts highlights some of the structural and ideological changes required. First, the structural: in Britain there are clear problems regarding which Government department should fund a drug court. The Home Office, Department of Health, the Lord Chancellor's Department are all possible contenders. There are also clear problems with having the treatment services employed by the court, less so perhaps for those in the voluntary sector who may be willing to tender for contracts, but more so for those within the NHS. There are also difficulties with the role of the judge: in Britain the nearest equivalent would be a stipendiary magistrate, lay magistrates sit less fre, quently and rarely provide the necessary continuity nor could they provide the necessary leadership. A
174 Journal of Clinical Forensic Medicine stipendiary sitting every day would operate in a similar way to the American judges, but does not have the standing in the local community, nor the extent of community involvement as they do in the USA. Nor are stipendiary magistrates appointed outside the large cities, and with the exception of Inner London are relatively uncommon. The ideological changes required are no less complex. There is a general view, especially amongst American judges, that the British legal system is run by deeply conservative lawyers and judges who resent suggestion of change. Whether this is so or not, these parties are not the only ones who are unwilling to change. To operate a drug court programme the treatment services would have to forgo considerable independence, they would be employed by the court and would have to give up some cherished positions and ideologies. One such ideology is the assumption that successful treatment of drug users is dependent on the motivations for entering treatment, i.e. drug users who do not have the desire to change are not likely to be successful in treatment. Accordingly, those treatment services are often reluctant to consider treatment under coercive conditions and would be less so if it involved the so-called heavy hand of the court. That there is little or no evidence to support the non-coercive approach seems to be unaccepted. In fact all the evidence suggests the contrary; that is, treatment outcomes are not dependent on the motives for entering treatment, but the length of time spent in it. The longer time spent in the treatment programme the greater the s u c c e s s . 7 Drug courts accept a coercive approach and, in fact, use it to their advantage. Relapse is to be expected and regarded as normal; most drug courts have a wide range of sanctions to impose on offenders who relapse. It is this mixture of coercion and treatment which sets drug courts apart from other treatment services, but it would be the introduction of coercion that many treatment services would find difficult to accept.
THE DRUG COURT REGIME
The drug courts' mission is to stop the abuse of drugs and related criminal activity. The method is straightforward, and the court environment clear and certain. Rewards are offered to the successful offender, sanctions are imposed on the unsuccessful, and the emphasis is placed on the personal choice of the offender. For example, the offender either appears at court or does not, attends treatment sessions or does not, is tested for drugs which reveal he has taken them or has not. The offenders performance is immediately and directly communicated to the judge who
acts accordingly; the unsuccessful offender is likely to spend time in custody until ready and willing to accept the programme, the successful is rewarded and applauded. Drug courts rarely give up on an offender, patience and perseverance are said to be the key. Drug courts will put up with numerous relapses, believing that the habits of a lifetime cannot be changed in a matter of days. Drug courts claim they establish an environment that the offender can understand, offering a system with clear choices where individuals are encouraged to take control of their own recovery. Incentives are as much part of the drug court as are sanctions. To the outsider, drug courts appear different, as indeed they are. Some drug courts provide certificates, medals, ribbons, or T-shirts for reaching milestones, such as being drug free for a specified period or progressing to a new phase of treatment. Others might get a reduction in the number of times required to attend court, decreasing supervision or requiring fewer urine testing, they may modify treatment requirements, or conduct ceremonies and make other public acknowledgements. Treatment fees are rarely, if ever, reduced! The reason given being, 'These costs are a consequence of negative behaviour and are therapeutic to the offender'. In a drug court the judge is the leader, linking treatments to the aims of the criminal justice system. As the leader, the judge promotes, 'An active supervisory relationship', which increases the likelihood that an offender will remain in treatment, thereby increasing the chances of success. It is also frequently suggested, and many offenders agree, that ongoing judicial supervision conveys that someone in authority cares about them and closely watches what they do. For the judge this means a move outside the traditional roles which have required him to be an independent objective arbiter. In drug-courts judges must develop new expertise, which means actively communicating with the offenders, discouraging and penalizing behaviour which is inappropriate, whilst encouraging and rewarding that which is. The judge must also be knowledgeable about treatments, knowing their strengths and limitations. All drug courts are evaluated by independent researchers? Without exception, the evaluations show drug courts are successful; they reduce drug consumption and reduce criminality. They are also cheaper than comparable penal sanctions, hence, their support at the highest political level. Drug courts also foster the view that the current system is unsatisfactory in almost every way, and that future historians will look back at the current ways of dealing with drug users and wonder how such a system, which sends offenders on a continuous circular tour from prison to
Drug courts and drug treatment community and back to court and prison could have been supported at enormous financial and social cost. Supporters of the drug courts claim they ultimately break the circle, and, of course, in many cases they do.
STRENGTHS AND WEAKNESSES Drug courts are not without their critics, whether in American legal circles or elsewhere. Most centre around the role of the judge, who in a drug court becomes a partisan figure promoting a point of view a judicial social worker as it were. Being involved in ceremonies where the judge issues T-shirts and where the whole court applauds a successful offender further changes the judge's role. It also makes the more traditional lawyer nervous about the direction drug courts are taking and their corresponding loss of dignity. Problem-solving justice, the slogan of the drug-court movement, does not sit easily with those who want the judge to remain aloof from the rough and tumble of ordinary social life. A frequent criticism is that drug courts are not a court - they may be something - a therapeutic control system perhaps - but they are not a court. Such criticisms are dismissed by the drugcourt movement on the grounds that judges have always been partisans, not of course at the trial stage, but certainly at the sentencing stage. They have always been involved in problem-solving justice when they pass sentence. Moreover, there is no hard and fast definition of a court, that is to say, there is no template from which all courts should be measured. Nor is there a definition of what constitutes a court; existing definitions are not fixed and immutable. Courts, like all institutions in our society, change and must be open to change. The drug problem has forced that change upon us, say the drug court supporters, and those remaining aloof can only do so by appearing not to notice that the existing system does not work. And as supporters of the drug courts never cease to point out, in contrast to all other systems in criminal justice, drug courts work; they are very successful? Other criticisms are directed at the reduction in the civil rights of the offenders, and these also need to be considered. Criticisms of the powers of treatment specialists working in the criminal justice systems have always been on the grounds that they exercise arbitrary power directed less at what the offenders has done and more at what he/she is; so too with the drug
175
courts. 9 Offenders can be remanded in custody for testing positive for drugs (i.e. not based on evidence of possession, as is normally required for a successful prosecution), for failing to respond to treatment, for taking alcohol, or for behaving in ways suggesting they are not taking the programme seriously. The judge in a drug court becomes a powerful figure, more so than under the more traditional system, and the interactions with the offender provide further evidence of that power. It is not, therefore, as some critics would have, that drug courts are soft on drug offenders, i.e. giving them treatment rather than sending them to prison, but that drug courts, like all forms of rehabilitation within the criminal justice system, undermine the offenders civil rights. N o r will it do, say those critics, to argue that drug courts work. That is not an appropriate response to a moral objection and is unacceptable for that reason. Whatever the objections, the drug-court movement, for that is now what it is, seems to have taken off and is here to stay. The USA had about 25 drug courts 4 years ago now (1998) there are over 400, with a further 150 in the planning stage. Many thousands of offenders are now subject to drug-court controls. 4 The model has been used to develop juvenile courts, courts for domestic-violence offenders, for drunken drivers, and for so-called 'dead-beat dads'. Drug courts claim to have changed the shape and contours of modern criminal justice so much so that things will never be the same again. Criminal justice systems seem able to produce only one or two good ideas per decade, this one is for two decades, and perhaps beyond. REFERENCES 1. 2. 3. 4. 5. 6. 7.
8. 9.
Bean PT. The social control of drugs. Martin Robertson, 1974 HMSO. Interdepartmental Committee on Drug Addiction 2nd Brain Report. London, HMSO, 1961 Bean PT. Doing things on the cheap in Britain: the case of drug courts. Justice of the Peace 1997; 161(8): 180 US Dept of Justice. Defining drug courts: the key components, 1997 State of Oklahoma. Oklahoma drug court: a guide for planning and implementation, 1998 Las Vegas Drug Court. Assessing and selecting treatment providers. Mimeo, 1998 Anglin MD. The efficacy of civil commitment in testing narcotics addiction, In: Leukefeld CG, Tiros FH (eds.) Compulsory treatment of drug abuse: research and clinical practices. NIDA Research Monograph, 1994, 8-35 Cooper CS. Drug court survey report: executive summary. US Dept. of Justice. Bean PT. America's drug courts: a new development in Criminal Justice. Criminal Law Review 1996; 718-721
© APS/HarcourtBrace& Co. Ltd.1998
CURRENT PRA CTICE
Drug courts and drug treatment R Bean Midlands Centre for Criminology and Criminal Justice, Department of Social Sciences, Loughborough, UK SUMMARY. This paper examines the way in which American Drug Courts operate, and the changes required were they to be introduced into the UK. Journal of Clinical Forensic Medicine (1998) 5, 172 175
INTRODUCTION
presence of substance abuse and mental disorder - it is difficult to find more than a dozen papers in Britain. Or one can consider the criminal justice system: it took a long while for drug use in prisons to be recognized let alone dealt with. Finally, there is the use of treatment services by the courts, as available under the 1991 Criminal Justice Act, where treatment is provided under a condition of probation; this is rarely used. The development of drug courts is interesting; they are an American innovation and are now creating interest in Britain and elsewhere? The term 'Drug Court' is now widely used, but as applied here it specifically refers to the type of programme developed in Miami which began operating in 1989. 4 The essential feature is that drug courts provide a slow track treatment service where the court retains control and employs the treatment services. That is to say, the court does not hand the offender over to an agency, such as the probation service, but retains its own direct personal involvement. The treatment services are contracted to, and are required to provide a programme approved by, the court. That programme will be supported by urinalysis, frequent visits to the court by the offender, and immediate sanctions if the offender fails to respond - including periods in c u s t o d y . 4
It is sometimes difficult to believe that only in the last 40 years or so has Britain had a recognizable drug problem. The first hint came in 1957 when cannabis was found in one or two clubs in the West End of London, and later in 1959 when there was an increase in heroin use from 290 reported addicts in 1953 to 454 in 1959. Prior to that Britain reported regularly to the United Nations that it did not have a drug problem? By the 1960s heroin use was thought to be widespread, although main usage was confined to certain areas of London and one or two cities such as Cambridge and Edinburgh? By the 1970s interest in drugs and drug abuse fell away only to remerge in the 1980s with the increasing use of crack/cocaine and ecstasy. By the mid-1990s' drug use had become sufficiently common for it to be referred to as an epidemic and its users as 'normal' and this situation remains 3. Future historians will doubtless be interested in the way our contemporary society deals with a problem recently defined by some senior politicians as the 'scourge of our age'. At one level there is dismay and concern, but at another little seems to change; some of the major institutions of our society that bear the brunt of the problem have not always acted decisively, or been willing to make the necessary changes to deal with an influx of new drug users. Consider the problem is that created for the treatment agencies by the increase in the number of drug users with mental disorders. Although, there are about 800 or 900 research papers in American journals on dual diagnosis the
T R E A T M E N T SERVICES AND T H E COURTS IN T H E USA There are many obstacles to introducing drug courts in Britain. Only those concerned with treatment will be examined here, but others concern structure, the changes required to the legal system, and the changes required by the legal profession in the way our adversarial system of justice operates. In cataloguing various treatment services as examples, it is not suggested
Professor Philip Bean BSc (Soc), M S c (Econ), PhD, Midlands Centre for Criminology and Criminal Justice, Department of Social Sciences, Loughborough University, Loughborough, Leicestershire LE11 3TU, U K . 172
Drug courts and drug treatment they are the only obstacles to change nor that they are the most severe, rather that drug courts would, if implemented, have an impact on the way the current criminal justice system operates generally. Some of the obstacles within the treatment services are considerable, others less so. None should be underestimated, but none are insurmountable. It all depends on how much we, in Britain, want to change our way of working and embrace new ideas. Lip-service is often paid to the desire for change, but, in practice, resistance is evident, and drug courts require changes, some of a fundamental nature. A description of how the system works shows the difference between the approach adopted by drug courts in the USA and the way services are organized in Britain. Invariably, in the USA the impetus is provided by the local judge who may initially telephone the local treatment agencies to secure a meeting. The judge may also contact other key agencies including the public prosecutor, the public defender, the chief of police, the local mayor etc. to form an action committee, the major aim of which is to secure their agreement for a drug court. Initially the local media is also likely to be included. Funding is then sought at Federal and State level and, if successful, tenders can be invited and submitted from the local treatment providers. In the USA there is a Federal Start Up programme. If, according to the funding available, a number of contracts can be offered and a range of services provided - anything from inpatient detoxification to outpatient contacts, group therapy and acupuncture - the Drug Court can then begin. 5 There is always a shortage of funds; to offset deficits and help the programme many judges run local raffles and seek funding from the local community, justified on the basis that, as the community will benefit so should the community be expected to help pay. The offender may also be expected to pay - sometimes as much as US$50.00 per week, but often about US$20.00-US$30.00 per week to remain on the programme. Again the justification is that offenders receive expensive treatments and it is appropriate to expect them to pay. Failure to pay can lead to a period in custody. The drug-court judge and other team members work closely with the treatment provider. Periodic meetings foster close cooperation, but for a drug court to work effectively the treatment team must be accountable and responsive to the judge. For this reason some drug courts will, as part of the selection and assessments of the treatment providers, require treatment providers to demonstrate an understanding of what it means to work in a drug court. They will be requested to recognize that they are employed by the court and must be willing to allow the judge and the
173
programme to receive the attention and recognition. As an example, one drug court makes it clear that, 'There is no room for ego or grandstanding from treatment providers', they must, 'Accept all members of the court team, (lawyers, police etc.) as part of the treatment programme', and above all, 'Must not be so locked into their ideas and methodologies that they are unwilling to adjust to meet the specific needs of the court and the drug court participants'. They must also, 'Demonstrate a knowledge of the problem and the target population along with clinical solutions to dealing with both', the latter point not so obvious as it seems: many service providers in Britain have little experience or interest in offender populations where persistent offenders are likely to be in the majority. 6 Supporting all treatment services are urine-testing facilities. Each offender would expect, on average, to have three urine tests per week. In a drug court with over 300 offenders, which is the average size, this means over 1000 tests per week. The results will be provided within 10 min, but sometimes taking as long as 1 h; the latest equipment produces instantaneous results for the judge who will have a print-out of the offender's drug taking as required. In Britain, when results take anything up to 10 days, this would be regarded as quite unsatisfactory; many drug-court judges would say that informed decisions cannot be made on that basis, being both unfair to the offender and to the court. The essential feature of the drug court is that treatment is supported by close supervision which is controlled by and run by the court itself in effect, the judge. The burnout rate for such judicial posts is high: drug-court judges rarely stay in a drug court for more than 2 years.
CHANGES REQUIRED TO RUN DRUG COURTS IN BRITAIN
This brief description of the operation of American drug courts highlights some of the structural and ideological changes required. First, the structural: in Britain there are clear problems regarding which Government department should fund a drug court. The Home Office, Department of Health, the Lord Chancellor's Department are all possible contenders. There are also clear problems with having the treatment services employed by the court, less so perhaps for those in the voluntary sector who may be willing to tender for contracts, but more so for those within the NHS. There are also difficulties with the role of the judge: in Britain the nearest equivalent would be a stipendiary magistrate, lay magistrates sit less fre, quently and rarely provide the necessary continuity nor could they provide the necessary leadership. A
174 Journal of Clinical Forensic Medicine stipendiary sitting every day would operate in a similar way to the American judges, but does not have the standing in the local community, nor the extent of community involvement as they do in the USA. Nor are stipendiary magistrates appointed outside the large cities, and with the exception of Inner London are relatively uncommon. The ideological changes required are no less complex. There is a general view, especially amongst American judges, that the British legal system is run by deeply conservative lawyers and judges who resent suggestion of change. Whether this is so or not, these parties are not the only ones who are unwilling to change. To operate a drug court programme the treatment services would have to forgo considerable independence, they would be employed by the court and would have to give up some cherished positions and ideologies. One such ideology is the assumption that successful treatment of drug users is dependent on the motivations for entering treatment, i.e. drug users who do not have the desire to change are not likely to be successful in treatment. Accordingly, those treatment services are often reluctant to consider treatment under coercive conditions and would be less so if it involved the so-called heavy hand of the court. That there is little or no evidence to support the non-coercive approach seems to be unaccepted. In fact all the evidence suggests the contrary; that is, treatment outcomes are not dependent on the motives for entering treatment, but the length of time spent in it. The longer time spent in the treatment programme the greater the s u c c e s s . 7 Drug courts accept a coercive approach and, in fact, use it to their advantage. Relapse is to be expected and regarded as normal; most drug courts have a wide range of sanctions to impose on offenders who relapse. It is this mixture of coercion and treatment which sets drug courts apart from other treatment services, but it would be the introduction of coercion that many treatment services would find difficult to accept.
THE DRUG COURT REGIME
The drug courts' mission is to stop the abuse of drugs and related criminal activity. The method is straightforward, and the court environment clear and certain. Rewards are offered to the successful offender, sanctions are imposed on the unsuccessful, and the emphasis is placed on the personal choice of the offender. For example, the offender either appears at court or does not, attends treatment sessions or does not, is tested for drugs which reveal he has taken them or has not. The offenders performance is immediately and directly communicated to the judge who
acts accordingly; the unsuccessful offender is likely to spend time in custody until ready and willing to accept the programme, the successful is rewarded and applauded. Drug courts rarely give up on an offender, patience and perseverance are said to be the key. Drug courts will put up with numerous relapses, believing that the habits of a lifetime cannot be changed in a matter of days. Drug courts claim they establish an environment that the offender can understand, offering a system with clear choices where individuals are encouraged to take control of their own recovery. Incentives are as much part of the drug court as are sanctions. To the outsider, drug courts appear different, as indeed they are. Some drug courts provide certificates, medals, ribbons, or T-shirts for reaching milestones, such as being drug free for a specified period or progressing to a new phase of treatment. Others might get a reduction in the number of times required to attend court, decreasing supervision or requiring fewer urine testing, they may modify treatment requirements, or conduct ceremonies and make other public acknowledgements. Treatment fees are rarely, if ever, reduced! The reason given being, 'These costs are a consequence of negative behaviour and are therapeutic to the offender'. In a drug court the judge is the leader, linking treatments to the aims of the criminal justice system. As the leader, the judge promotes, 'An active supervisory relationship', which increases the likelihood that an offender will remain in treatment, thereby increasing the chances of success. It is also frequently suggested, and many offenders agree, that ongoing judicial supervision conveys that someone in authority cares about them and closely watches what they do. For the judge this means a move outside the traditional roles which have required him to be an independent objective arbiter. In drug-courts judges must develop new expertise, which means actively communicating with the offenders, discouraging and penalizing behaviour which is inappropriate, whilst encouraging and rewarding that which is. The judge must also be knowledgeable about treatments, knowing their strengths and limitations. All drug courts are evaluated by independent researchers? Without exception, the evaluations show drug courts are successful; they reduce drug consumption and reduce criminality. They are also cheaper than comparable penal sanctions, hence, their support at the highest political level. Drug courts also foster the view that the current system is unsatisfactory in almost every way, and that future historians will look back at the current ways of dealing with drug users and wonder how such a system, which sends offenders on a continuous circular tour from prison to
Drug courts and drug treatment community and back to court and prison could have been supported at enormous financial and social cost. Supporters of the drug courts claim they ultimately break the circle, and, of course, in many cases they do.
STRENGTHS AND WEAKNESSES Drug courts are not without their critics, whether in American legal circles or elsewhere. Most centre around the role of the judge, who in a drug court becomes a partisan figure promoting a point of view a judicial social worker as it were. Being involved in ceremonies where the judge issues T-shirts and where the whole court applauds a successful offender further changes the judge's role. It also makes the more traditional lawyer nervous about the direction drug courts are taking and their corresponding loss of dignity. Problem-solving justice, the slogan of the drug-court movement, does not sit easily with those who want the judge to remain aloof from the rough and tumble of ordinary social life. A frequent criticism is that drug courts are not a court - they may be something - a therapeutic control system perhaps - but they are not a court. Such criticisms are dismissed by the drugcourt movement on the grounds that judges have always been partisans, not of course at the trial stage, but certainly at the sentencing stage. They have always been involved in problem-solving justice when they pass sentence. Moreover, there is no hard and fast definition of a court, that is to say, there is no template from which all courts should be measured. Nor is there a definition of what constitutes a court; existing definitions are not fixed and immutable. Courts, like all institutions in our society, change and must be open to change. The drug problem has forced that change upon us, say the drug court supporters, and those remaining aloof can only do so by appearing not to notice that the existing system does not work. And as supporters of the drug courts never cease to point out, in contrast to all other systems in criminal justice, drug courts work; they are very successful? Other criticisms are directed at the reduction in the civil rights of the offenders, and these also need to be considered. Criticisms of the powers of treatment specialists working in the criminal justice systems have always been on the grounds that they exercise arbitrary power directed less at what the offenders has done and more at what he/she is; so too with the drug
175
courts. 9 Offenders can be remanded in custody for testing positive for drugs (i.e. not based on evidence of possession, as is normally required for a successful prosecution), for failing to respond to treatment, for taking alcohol, or for behaving in ways suggesting they are not taking the programme seriously. The judge in a drug court becomes a powerful figure, more so than under the more traditional system, and the interactions with the offender provide further evidence of that power. It is not, therefore, as some critics would have, that drug courts are soft on drug offenders, i.e. giving them treatment rather than sending them to prison, but that drug courts, like all forms of rehabilitation within the criminal justice system, undermine the offenders civil rights. N o r will it do, say those critics, to argue that drug courts work. That is not an appropriate response to a moral objection and is unacceptable for that reason. Whatever the objections, the drug-court movement, for that is now what it is, seems to have taken off and is here to stay. The USA had about 25 drug courts 4 years ago now (1998) there are over 400, with a further 150 in the planning stage. Many thousands of offenders are now subject to drug-court controls. 4 The model has been used to develop juvenile courts, courts for domestic-violence offenders, for drunken drivers, and for so-called 'dead-beat dads'. Drug courts claim to have changed the shape and contours of modern criminal justice so much so that things will never be the same again. Criminal justice systems seem able to produce only one or two good ideas per decade, this one is for two decades, and perhaps beyond. REFERENCES 1. 2. 3. 4. 5. 6. 7.
8. 9.
Bean PT. The social control of drugs. Martin Robertson, 1974 HMSO. Interdepartmental Committee on Drug Addiction 2nd Brain Report. London, HMSO, 1961 Bean PT. Doing things on the cheap in Britain: the case of drug courts. Justice of the Peace 1997; 161(8): 180 US Dept of Justice. Defining drug courts: the key components, 1997 State of Oklahoma. Oklahoma drug court: a guide for planning and implementation, 1998 Las Vegas Drug Court. Assessing and selecting treatment providers. Mimeo, 1998 Anglin MD. The efficacy of civil commitment in testing narcotics addiction, In: Leukefeld CG, Tiros FH (eds.) Compulsory treatment of drug abuse: research and clinical practices. NIDA Research Monograph, 1994, 8-35 Cooper CS. Drug court survey report: executive summary. US Dept. of Justice. Bean PT. America's drug courts: a new development in Criminal Justice. Criminal Law Review 1996; 718-721