Book Review: Nolan, Drug Courts

James L. Nolan, Jr. ed.
Drug Courts in Theory and Practice.
Aldine de Gruyter, 2002, 264 pp.
$US 25.95 paper (0-202-30713-1), $US 51.95 cloth (0-202-30712-3)

This edited collection provides a good overview of issues related to the use of drug courts in the U.S. and to a lesser extent Great Britain. First introduced in Florida in 1989, drug courts have become a major criminal justice phenomenon and have spread internationally. As expanding numbers of drug offenders placed increasing stress on criminal justice systems, the goal of treating drug addiction gained prominence. Promising gains in cost efficiency and community safety, judicially monitored court-based treatment programs took hold as a politically palatable innovation. Directed at nonviolent drug addicted offenders, the goal of drug courts is to avoid blame or pure punitiveness and instead attack the source of the problem—the offender’s addiction. The treatment and cure in drug courts is to be accomplished by a blend of therapy and coercion.

The book offers a critical assessment of the courts and the implications of their operation for defendants, the legal system and democratic society at large. A key element of this book is an examination of the tensions, even contradictions, between the ideological goals that spawn drug courts and the exigencies of their practical operation. As a result, this collection also takes on a larger subject: the mores and norms of practice that ultimately regulate the finer details of individual rights versus legal institutions. Drug courts pose issues of the expanding therapeutic culture and its inroads into policies, programs, politics, law and other major societal institutions.

The book is organized in two parts and includes arguments of proponents and critics from a diversity of disciplinary perspectives. In Part I the emphasis is on empirical investigations while Part II is more concerned with theoretical assessment, although many authors tend to combine theory and empiricism in their essays.

In Part I the reader is acquainted with the goals and practice of drug courts as well as conflicts and problems that emerge. The drug court movement rose quickly in the United States during the 1990s as a nationally supported local effort and it is still growing. Chapters by McColl, Wolf, Steen, and Hoffman examine drug courts in given locales, emphasizing different themes. For example, Hoffman—a district judge who was actively involved in the establishment of the Denver drug court—provides a well supported, hard hitting analysis of how the program ultimately went “terribly wrong.” On the other hand, Steen promotes the claim of ultimate client moral involvement in the program, although her primary evidentiary focus is the testimony of judicial treatment team members and the expressed goals of programs.

A major key to the operation of the drug court is the replacement of the traditional adversarial orientation, at least nominally, by a nonadversarial charter. The judge is no longer an impartial adjudicator, but the treatment team leader, interacting directly with the defendant and coordinating his or her care in an individualized manner. The defense attorney (public defender) is no longer the defendant’s advocate but a member of the treatment team, along with the prosecutor and health care personnel. Proponents argue that this nonadversary approach is beneficial to achieving the therapeutic outcome desired for the good of the defendant, the community, and the efficient administration of criminal justice. Critics argue that this presuming away of interest conflict enlarges the vulnerability of “clients” who still remain at risk to coercion in “treatment.”

A defendant’s choice to participate, if eligible, is coupled with the requirement to enter a guilty plea and is often based on limited awareness of alternatives, the potential outcomes of such options, and the rights he or she is waiving. A common incentive to becoming a drug court “client” or “participant” is the elimination of one’s conviction record for the offense, in addition to one’s addiction, if successful completion of the treatment program is accomplished. Looming in the background, but no longer subject to dispute is a personalized, graduated administration of punitive sanctions by the drug court judge, triggered by relapse and rule breaking. The paradox is that whatever the original offense, what becomes criminalized is relapse, as it is subject to court punishment. (And, if treatment fails, defendants are further subject to punishment for their original offenses.)

Abandoning the adversarial system, which throws procedural rules and rights of due process by the wayside, is believed to facilitate the blending of therapy and punishment in aid of treatment. Compromised rights might be overlooked if drug courts worked, but the majority of evidence presented does not support such claims. Instead of decreasing the number of people processed, drug courts have a net-widening effect. Although the ideal is the use of positive reinforcement to secure compliance in ridding of addiction—with a fallback of punishment imagined as somehow part of an encouraging context—the reality appears to be that minor offenders who would have otherwise been set free with minimal penalty are embroiled in the system for a much longer period. Those who opt for such programs are more likely to receive multiple punishments and serve longer prison terms than those who seek traditional justice, and the evidence indicates that there is no great decrease in recidivism for program participants (see chapters by Hoffman, McColl, Chriss, and Bean). Thus, while the intent may be to “do good,” in many locales it appears that more drug offenders are ultimately being processed and punished with fewer safeguards. Additionally, without the rule of law, checks on the potential abuse of power and authority in the administration of social control are lost. The system becomes far too dependent upon the good will of the actors involved.

While such concerns are addressed throughout the book, Part II places greater emphasis on the theoretical assessment of drug courts and the larger philosophical issues of punishment goals and justice. In assessing the impact of the loss of the adversary orientation and the erosion of rights to due process, Boldt concentrates on the conflicts and contradictions attorneys face. Bean looks at the power and unique role of the judge and, like Boldt, compares drug courts to past, soundly criticized rehabilitative practices and rationales. Chriss examines the implicit assumptions that underlie the movement, critically assessing the rhetoric of drug courts versus their practice and who benefits from them.

Rosenthal and Shell focus on drug courts as the application of therapeutic jurisprudence. Therapeutic jurisprudence refers to the use of social science tools to theorize, or even demonstrate, how law promotes the psychological or physical well-being of the people it affects. Rosenthal’s strong support of the use and expansion of drug courts based on therapeutic jurisprudence is met with critique by Shell who takes a more traditional philosophical approach. Examining the larger cultural context of drug courts, Nolan introduces comparison with the U.K., providing insights into why drug courts take on different characters when adopted in varied locations. Furedi emphasizes the spread of a therapeutic ethos that underlies the adoption of drug courts in Britain and illuminates potential deleterious consequences of this cultural development.

The critique of the encroachment of therapeutic presumptions was eye opening, at least for this reader. It is all too tempting to reformulate transactions between individuals and control agencies in therapeutic language—with its built-in presumptions of promise, progress, and possibility—but this often obscures whether such ideal outcomes can be made at all likely in practice. As a case in point, drug courts illustrate how such promise-laden program definitions can legitimate expanded control yet fail to deliver the promised benefits for supposed beneficiaries.

The book is well worth reading. It covers a wide range of issues that would be useful to practitioners, policymakers, and academics interested in practical, theoretical and philosophical concerns pertaining to drug courts, emphasizing larger values of justice and democracy that are worthy of attention and debate. Suggestions for adjustments and alterations to drug courts as currently conceived and implemented are also made. The book is well organized and accessible. While there is some redundancy, that is to be expected in an edited collection. It is suitable for use in a variety of courses at both the undergraduate and graduate levels and likely to inspire lively and thoughtful debate.

Lucia Benaquisto
Department of Sociology
McGill University
lucia.benaquisto@mcgill.ca

Lucia Benaquisto’s research areas concern both historical and contemporary issues of state repression, punishment, and social control. She has carried out research on the comparative and historical use of legal repression by Western European states and on the relation of political crises to outbursts of repression. She conducted a study of prison inmates in Canada to investigate issues of criminal motivation and inmates’ perceptions of punishment, sentence severity, and deterrence. Her current research continues her historical examination of the French criminal justice system. She is also researching issues related to children of offenders.



		Canadian Journal of Sociology Online March - April 2003 James L. Nolan, Jr. ed. Drug Courts in Theory and Practice. Aldine de Gruyter, 2002, 264 pp. $US 25.95 paper (0-202-30713-1), $US 51.95 cloth (0-202-30712-3) This edited collection provides a good overview of issues related to the use of drug courts in the U.S. and to a lesser extent Great Britain. First introduced in Florida in 1989, drug courts have become a major criminal justice phenomenon and have spread internationally. As expanding numbers of drug offenders placed increasing stress on criminal justice systems, the goal of treating drug addiction gained prominence. Promising gains in cost efficiency and community safety, judicially monitored court-based treatment programs took hold as a politically palatable innovation. Directed at nonviolent drug addicted offenders, the goal of drug courts is to avoid blame or pure punitiveness and instead attack the source of the problem—the offender’s addiction. The treatment and cure in drug courts is to be accomplished by a blend of therapy and coercion. The book offers a critical assessment of the courts and the implications of their operation for defendants, the legal system and democratic society at large. A key element of this book is an examination of the tensions, even contradictions, between the ideological goals that spawn drug courts and the exigencies of their practical operation. As a result, this collection also takes on a larger subject: the mores and norms of practice that ultimately regulate the finer details of individual rights versus legal institutions. Drug courts pose issues of the expanding therapeutic culture and its inroads into policies, programs, politics, law and other major societal institutions. The book is organized in two parts and includes arguments of proponents and critics from a diversity of disciplinary perspectives. In Part I the emphasis is on empirical investigations while Part II is more concerned with theoretical assessment, although many authors tend to combine theory and empiricism in their essays. In Part I the reader is acquainted with the goals and practice of drug courts as well as conflicts and problems that emerge. The drug court movement rose quickly in the United States during the 1990s as a nationally supported local effort and it is still growing. Chapters by McColl, Wolf, Steen, and Hoffman examine drug courts in given locales, emphasizing different themes. For example, Hoffman—a district judge who was actively involved in the establishment of the Denver drug court—provides a well supported, hard hitting analysis of how the program ultimately went “terribly wrong.” On the other hand, Steen promotes the claim of ultimate client moral involvement in the program, although her primary evidentiary focus is the testimony of judicial treatment team members and the expressed goals of programs. A major key to the operation of the drug court is the replacement of the traditional adversarial orientation, at least nominally, by a nonadversarial charter. The judge is no longer an impartial adjudicator, but the treatment team leader, interacting directly with the defendant and coordinating his or her care in an individualized manner. The defense attorney (public defender) is no longer the defendant’s advocate but a member of the treatment team, along with the prosecutor and health care personnel. Proponents argue that this nonadversary approach is beneficial to achieving the therapeutic outcome desired for the good of the defendant, the community, and the efficient administration of criminal justice. Critics argue that this presuming away of interest conflict enlarges the vulnerability of “clients” who still remain at risk to coercion in “treatment.” A defendant’s choice to participate, if eligible, is coupled with the requirement to enter a guilty plea and is often based on limited awareness of alternatives, the potential outcomes of such options, and the rights he or she is waiving. A common incentive to becoming a drug court “client” or “participant” is the elimination of one’s conviction record for the offense, in addition to one’s addiction, if successful completion of the treatment program is accomplished. Looming in the background, but no longer subject to dispute is a personalized, graduated administration of punitive sanctions by the drug court judge, triggered by relapse and rule breaking. The paradox is that whatever the original offense, what becomes criminalized is relapse, as it is subject to court punishment. (And, if treatment fails, defendants are further subject to punishment for their original offenses.) Abandoning the adversarial system, which throws procedural rules and rights of due process by the wayside, is believed to facilitate the blending of therapy and punishment in aid of treatment. Compromised rights might be overlooked if drug courts worked, but the majority of evidence presented does not support such claims. Instead of decreasing the number of people processed, drug courts have a net-widening effect. Although the ideal is the use of positive reinforcement to secure compliance in ridding of addiction—with a fallback of punishment imagined as somehow part of an encouraging context—the reality appears to be that minor offenders who would have otherwise been set free with minimal penalty are embroiled in the system for a much longer period. Those who opt for such programs are more likely to receive multiple punishments and serve longer prison terms than those who seek traditional justice, and the evidence indicates that there is no great decrease in recidivism for program participants (see chapters by Hoffman, McColl, Chriss, and Bean). Thus, while the intent may be to “do good,” in many locales it appears that more drug offenders are ultimately being processed and punished with fewer safeguards. Additionally, without the rule of law, checks on the potential abuse of power and authority in the administration of social control are lost. The system becomes far too dependent upon the good will of the actors involved. While such concerns are addressed throughout the book, Part II places greater emphasis on the theoretical assessment of drug courts and the larger philosophical issues of punishment goals and justice. In assessing the impact of the loss of the adversary orientation and the erosion of rights to due process, Boldt concentrates on the conflicts and contradictions attorneys face. Bean looks at the power and unique role of the judge and, like Boldt, compares drug courts to past, soundly criticized rehabilitative practices and rationales. Chriss examines the implicit assumptions that underlie the movement, critically assessing the rhetoric of drug courts versus their practice and who benefits from them. Rosenthal and Shell focus on drug courts as the application of therapeutic jurisprudence. Therapeutic jurisprudence refers to the use of social science tools to theorize, or even demonstrate, how law promotes the psychological or physical well-being of the people it affects. Rosenthal’s strong support of the use and expansion of drug courts based on therapeutic jurisprudence is met with critique by Shell who takes a more traditional philosophical approach. Examining the larger cultural context of drug courts, Nolan introduces comparison with the U.K., providing insights into why drug courts take on different characters when adopted in varied locations. Furedi emphasizes the spread of a therapeutic ethos that underlies the adoption of drug courts in Britain and illuminates potential deleterious consequences of this cultural development. The critique of the encroachment of therapeutic presumptions was eye opening, at least for this reader. It is all too tempting to reformulate transactions between individuals and control agencies in therapeutic language—with its built-in presumptions of promise, progress, and possibility—but this often obscures whether such ideal outcomes can be made at all likely in practice. As a case in point, drug courts illustrate how such promise-laden program definitions can legitimate expanded control yet fail to deliver the promised benefits for supposed beneficiaries. The book is well worth reading. It covers a wide range of issues that would be useful to practitioners, policymakers, and academics interested in practical, theoretical and philosophical concerns pertaining to drug courts, emphasizing larger values of justice and democracy that are worthy of attention and debate. Suggestions for adjustments and alterations to drug courts as currently conceived and implemented are also made. The book is well organized and accessible. While there is some redundancy, that is to be expected in an edited collection. It is suitable for use in a variety of courses at both the undergraduate and graduate levels and likely to inspire lively and thoughtful debate. Lucia Benaquisto Department of Sociology McGill University lucia.benaquisto@mcgill.ca Lucia Benaquisto’s research areas concern both historical and contemporary issues of state repression, punishment, and social control. She has carried out research on the comparative and historical use of legal repression by Western European states and on the relation of political crises to outbursts of repression. She conducted a study of prison inmates in Canada to investigate issues of criminal motivation and inmates’ perceptions of punishment, sentence severity, and deterrence. Her current research continues her historical examination of the French criminal justice system. She is also researching issues related to children of offenders. http://www.arts.ualberta.ca/cjscopy/reviews/drugcourts.html March 2003 © CJS Online Click here to download PDF file < Back to Current Table of Contents