Drug Courts

In Theory and in Practice

Jr. Nolan

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351521611
• Edition: 1
• Topic: Law
• Subtopic: Courts
• Index: Law

Drug courts offer offenders an intensive court-based treatment program as an alternative to the normal adjudication process. Begun in 1989, they have since spread dramatically throughout the United States. In this interdisciplinary examination of the expanding movement, a distinguished panel of legal practitioners and academics offers theoretical assessments and on-site empirical analyses of the workings of various courts in the United States, along with detailed comparisons and contrasts with related developments in Britain. Practitioners, politicians, and academics alike acknowledge the profound impact drug courts have had on the American criminal justice system. From a range of disciplinary perspectives, contributors to this volume seek to make sense of this important judicial innovation. While addressing a range of questions, Drug Courts also aims to achieve a careful balance between focused empirical studies and broader theoretical analyses of the same phenomenon. The volume maintains an analytical concentration on drug courts and on the important practical, philosophical, and jurisprudential consequences of this unique form of therapeutic jurisprudence.

Drug courts depart from the practices and procedures of typical criminal courts. Prosecutors and defense counsel play much-reduced roles. Often lawyers are not even present during regular drug court sessions. Instead, the main courtroom drama is between the judge and client, both of whom speak openly and freely in the drug court setting. Often accompanying the client is a treatment provider who advises the judge and reviews the client's progress in treatment. Court sessions are characterized by expressive and sometimes tearful testimonies about the recovery process, and are often punctuated with applause from those in attendance. Taken together, the chapters provide a variety of perspectives on drug courts, and extend our knowledge of the birth and evolution of a new movement. Drug Courts

I

Empirical Explorations

1

Theory and Practice in the Baltimore City Drug Treatment Court

William D. McColl

We punish, but this is a way of saying that we wish to obtain a cure.

—Michel Foucault, Discipline and Punish—The Birth of the Prison

After more than ten years of continual growth, it is now possible to say that drug courts have become institutionalized in the United States. These courts are interesting, not only as a dramatic departure from the United State’s common law tradition of adversarial justice, but also as a community response through the criminal justice system to the overwhelming problems of addiction. In 1994, Baltimore City, Maryland, faced with a fraying and broken-down justice system, adopted this new justice approach with enthusiasm. Its relatively well-documented history offers lessons in both how and why the drug court came into being. Consequently, it is a good case study in which to explore some of the philosophical issues raised by the creation of a drug court.

In particular it is worth examining whether drug courts fit into the tradition of the “rehabilitative ideal” (Allen 1981:1-2). Critiqued heavily on both the right and left, the ideology of rehabilitation has been in decline for more than twenty years. This chapter argues that the history of the formation of the Baltimore court shows that drug courts do not fit neatly within the constraints of the rehabilitative movement in American jurisprudence. In fact, the widespread acceptance of these courts by both the right and left is based less on appeals to rehabilitation than on the gains achieved by drug court through cost savings, program efficiency, and community safety. Advocates only make occasional nods to the rehabilitative benefits of drug courts. Because of the drug court’s emphasis on community safety, screening out violent offenders, and properly controlling the drug court population, the critics on the right have largely been mollified. Though the powerful “liberal” critique of the rehabilitative ideal is also applicable to drug courts, this criticism has been blunted by the popularity of the community-centered nature of these courts.

Despite this popular appeal it is worth exploring the inherent tensions between the nonadversarial orientation of the courts and defining democratic principles. To do so, this chapter looks at the formation, history, and current operations of the Baltimore City Drug Treatment Court. The chapter then discusses the nature of drug courts, noting that the court fits closely with the idea of “social defense,” a blend of rehabilitation and incapacitation theory, rather than the more mainstream evocations of the “rehabilitative ideal.” Initially developed in the 1960s, social defense theory emphasizes the need to protect society over the needs of rehabilitation, but it also medicalizes criminal behavior, emphasizing the treatment and eventual return of offenders to society upon their cure (Wootton 1963:168-69). Drug treatment courts may be the fullest realization of social defense ideas to date. Finally the chapter explores the inherent tension created for defense lawyers in the nonadversarial role they play in the drug treatment court.

THE BALTIMORE CITY DRUG TREATMENT COURT

On March 23, 1995, after a little more than a year of operation, the Baltimore City Drug Treatment Court celebrated the graduation of the first seven defendants to complete treatment through the program. Now, after six years of operation in the Baltimore City District (misdemeanor) Court, the style, form, and procedures of drug court are familiar and routine to its lawyers, judges, court personnel, and even defendants. Buoyed by the success of the District Court, a drug treatment court for Baltimore City’s Circuit (felony) Court system began in October, 1994, and became fully operational on March 6,1995.¹

The thirty-fifth such court in the nation, the Baltimore City Drug Treatment Court was part of the second wave of drug courts established in the United States. Thus, the Baltimore court had the advantage of designing a program with the lessons of the first wave of courts in mind. The result was an ambitious undertaking, dealing not only with practical issues of funding and securing treatment facilities for offenders, but with the philosophical changes necessary to create a new nonadversarial court.

The public success of drug treatment courts in Miami, Oakland, and elsewhere, along with increased federal appropriations for the creation of drug treatment courts, precipitated the formation of the Baltimore City Drug Treatment Court. However, the true genesis of the drug treatment court in Baltimore is a wide ranging report, The Drug Crisis and Under-funding of the Justice System in Baltimore City, prepared in December, 1990, by a Special Committee of the Bar Association of Baltimore City chaired by former judge George L. Russell, Jr. (Russell et al. 1990:29-30). The report of the Russell Committee provided a compelling description of a legal system under siege by growing numbers of drug-related cases. That Baltimore was able to take advantage of increased federal funding, as well as lobby for increased state funding, was largely a result of the alarm created among decision-makers by this report.²

The Russell Committee was charged with addressing “the problem of increasing drug litigation and the chronically underfunded justice system in Baltimore City” (ibid.:5). The committee’s description of the increase in drug prosecutions was stunning. For example, 50 percent of felony prosecutions in Baltimore City were direct drug offenses, while 85-95 percent of all felony prosecutions were drug-driven offenses. Fully 55 percent of murders were drug related (ibid.:3). Even the casual observer could not fail to recognize that the system was becoming less and less capable of meeting its burden.

The committee’s more compelling conclusions, at least in terms of the formation of the Baltimore City Drug Treatment Court, were based on other equally alarming facts: 80 percent of Maryland’s prison population had a history of substance abuse; 71 percent of the population at the City Jail had been there before; 40 percent of Baltimore City probationers violated their probations within a year, primarily due to drug-related offenses; 80 percent of Juvenile Court cases were drug related (ibid.). The conclusion was inescapable:

The appalling fact is that because the system fails through lack of resources or resolve to effectively treat the problem of drug abuse when the offender first encounters the system, the same individuals return over and over again. To simply house these offenders at great expense, is a short sighted and ultimately a prohibitively expensive and self-defeating approach to the problem. To perpetuate an underfunded, ineffective, hurried and, on occasion, unfair criminal justice system for which those subject to the system have no respect, is little better than having no system at all. (ibid.:6, emphasis added)

Thus against a backdrop of funding cuts and failure, the committee made numerous recommendations. The fifth general recommendation is particularly noteworthy: “Whether one employs a cost benefit analysis or just good sense, effective drug abuse treatment is the only answer to reducing drug related criminal cases” (ibid.:46, emphasis added). The committee specifically recommended the study and establishment of “special drug treatment courts,” which would divert first-time offenders into treatment (ibid.:47).

The Russell Committee spawned unprecedented change in the Baltimore criminal justice system. The committee remained in session for an additional two years, writing a supplemental report in 1992, mostly focused on the juvenile system. In its third year, the committee began to concentrate on a treatment-based drug court:

We just called a meeting and invited people to come talk about [forming a drug treatment court]. George Russell presided over a symposium in November, 1992, along with numerous judges and corrections officials. After that, we just kept calling meetings. It took about a year, until Sep. of ’93, for the money pieces to be put in place at the state level.³

The recognition that every facet of the system was being affected by drug cases led to numerous changes, including the formation of three courts to expedite drug offenses (but not to divert individuals into treatment), approval by the legislature for a new central booking facility, as well as a state takeover of the city jail. At the same time, the Bar Association of Baltimore City helped to create a Drug Treatment Court Working Committee led by judges, state’s attorneys, and public defenders, working closely with health and corrections personnel. “In this jurisdiction they didn’t need any persuading that punishment was not going to solve the problem.”⁴

INITIAL AND CONTINUING OPERATION

Phase 1 of the Baltimore City Drug Treatment Court began operations in the District Court on March 2,1994 (Tauber 1994). This program is called STEP, an acronym for Substance Abuse Treatment and Education Program (Williams 1994). On October 19,1995, Phase II operation of the drug treatment court began at the Circuit Court level. Phase III, a special program for probation violators, began on March 6,1996, in the Circuit Court drug treatment court.⁵ All three phases are designed to reach essentially the same population, nonviolent addicts involved in criminal activity. Defendants from each phase share the same treatment and supervision facilities (ibid.:8).

Upon entry into the criminal justice system, defendants who are in jail or who are being supervised by pretrial services are “screened” for eligibility for the program from a criminal justice standpoint (ibid.). Defen-dants’ current cases, convictions, and past records are examined and potential participants are excluded if there are signs of violence (ibid.:Appendix C).⁶ Additionally, defendants are screened for security (likelihood of fleeing jurisdiction) and willingness to participate. If the defendant is still eligible at this point, the public defender (P.D.) is notified and if the defendant is in jail will attempt to visit the defendant to explain the program. In actual practice, the P.D. may not be able to reach the defendant prior to trial for a variety of reasons, usually having to do with scheduling. However, the P.D. is the defendant’s spokesperson vis-à-vis the criminal justice system, and is responsible for providing the defendant with his or her various options (ibid.:9).

The defendant is then “assessed” to determine medical eligibility for alcoholism and drug addiction treatment. The assessment for substance abuse is made using the Addiction Severity Index (ASI), which identifies severity of needs on a 0-9 scale. The ASI measures the following needs: medical, employment/support, drug, alcohol, legal, family/social, and psychiatric (ibid.:Appendix E). Additionally the defendant is assessed for amenability to treatment on the Psychopathy Checklist Revised (PCLR) (ibid.).⁷ Following assessment, the assessor sends paperwork for eligible defendants to the public defender and the state’s attorney’s offices. They review the packages and agree to terms for the participation of the defendant. The public defender then must interview the defendant, explain the terms and conditions, and ensure that the defendant agrees to the procedure (ibid.:9).

The Baltimore City Drug Treatment Court originally planned to have two tracks for entry into the system, a “diversion” track and a “probation” track. In practice the diversion track was abandoned soon after the drug court opened. This initial diversion plan would have allowed defendants who had relatively clean records and who completed treatment through the program to be granted a “Stet” by the prosecutor. By placing a case on the Stet docket, the state declines to prosecute a case but retains the right to reopen the case for any reason for one year. The case may be opened between one and three years upon a showing of good cause. To be eligible for a Stet, the defendant must waive his or her right to a speedy trial (Maryland Annotated Code 1995:Rule 4-248). By using a Stet, the drug court ensured that defendants would not receive a conviction on their records. This practice was abandoned soon after the drug court opened because when defendants flunked out, witnesses and others were unavailable to return for a trial, forcing the state to abandon cases.⁸

Thus the second track, probation, is the only track that is currently in operation. Defendants must now stipulate to the facts of the case (that is, they must legally agree to the state’s version of the case) and are generally offered a Probation Before Judgment (PBJ). A PBJ allows defendants to plead guilty, after which the court defers further proceedings, including sentencing. The court then places the individual on probation subject to the terms of the plea (in this case, completion of treatment to the satisfaction of the drug court). Upon satisfactory completion of probation the court will discharge the defendant from probation and dismiss the case without a finding of guilt (Maryland Annotated Code 1995:Article 41 Section 641). This system is advantageous to defendants because, assuming successful completion, their records will not reflect a conviction. Defendants are supervised by the Baltimore City Parole and Probation Unit (Williams 1994:18).

Before going to court, the public defender and the state’s attorney agree on a plan for the defendant. They then agree on a contract to be presented to the defendant, which details the program, including possible sanctions for treatment failure. After signing the contract, the defendant is ready to go to court. In court, the judge again explains the program to the defendant and offers a final chance to back out. If the defendant accepts the program by signing the contract created by the state’s attorney and public defender, treatment begins the next day. Additionally, the defendant will report back to the judge every other week until a sufficiently good record permits an extension in the time between his or her courtroom visits (ibid.).

Violations of the provisions of the drug treatment court contract result in the imposition of a system of graduated sanctions, such as increased urinalysis testing, or even “shock incarceration,” which are written directly into the contract (ibid.:Appendix H). Shock incarceration is usually the last step in a series of graduated sanctions designed to force a defendant into compliance with the terms of his or her contract. Judge Jeffrey S. Tauber (1993) notes that shock incarceration is a brief period of incarceration designed to force a defendant to realize that his or her behavior is incompatible with treatment and moreover that failure in treatment could result in the imposition of a jail sentence. The incarceration thus “shocks” the defendant into compliance. In treatment terms, shock incarceration is intended to help a defendant overcome his or her “denial,” which is a symptom of the disease of alcoholism.

The sanctions are designed to create immediate consequences for the defendant, compelling a return to treatment. Under a medical model of substance abuse treatment, it is considered normal for substance abusers to relapse. Consequently, the sanctions are designed to show the defendant that relapse in the drug treatment court has immediate, sometimes severe consequences (ibid.:6). In contrast to typical probation, violation of the drug treatment court contract (for example missing a meeting with a supervisor) will not result in a charge of violation of probation.⁹

Treatment is currently provided to drug treatment court defendants by eight private treatment providers. The treatment providers include three intensive outpatient facilities, which provide one to three day sessions per week, at a minimum, for at least six months. These facilities provide NA and AA support groups, detoxification, acupuncture, GED training, and vocational training services. There is a residential facility option at each of the intensive outpatient providers (Gottfredson and Exum 2000:16).

Other treatment modalities include two methadone maintenance facilities, two inpatient facilities, and a transitional housing facility. Methadone maintenance facilities provide methadone treatment six to seven days per week and, additionally, detoxification and GED/vocational training services. The inpatient facilities provide treatment seven days per week for as long as six months, with a twenty-eight-day minimum. In addition they provide HIV education, social skills development, psychological evaluations, and referrals for psychological treatment. Finally, the transitional housing facility is available seven days per week for a minimum of six months and a maximum of one year. The inpatient facilities additionally provide basic vocational training and general education programs (ibid.).

Judge Jamey Weitzman, the long time administrative judge of the District Court, offers the following description of the drug court clientele:

Over the years we have targeted very intense, high-level, individuals in terms of criminal history and chronic addiction. I estimate the average person has 10-30 years addiction. Anecdotally they tell me that they spend between $50 and $200 (per week) on drugs and all of them have criminal histories. We try to take people who would be going to jail if not for the drug court.¹⁰

Gottfredson and Exum studied 235 arrestees who were randomly assigned to receive drug treatment court services or treatment as usual in the criminal justice system. The study particip...

Table of contents

• Cover Page
• Title Page
• Copyright
• Preface
• Contributors
• Part I: Empirical Explorations
• Part II: Theoretical Assessments
• Index