Drugs, Courts, and the New Penology

45 Pages Posted: 31 Aug 2009 Last revised: 22 Nov 2010

Date Written: August 30, 2009


The drug court innovation has had a major impact upon low-level judicial attitudes to drug crime. The drug court’s success is primarily achieved through suppressing the larger political debates surrounding drug policy through the therapeutic emphasis on a politics of personal responsibility. Bipartisan agreement has, however, come at the cost of precluding a discussion of the relation of drug crime to race and class in the urban setting, and ignoring the manner in which the state has exacerbated the problems of drug addiction for those caught in the criminal justice system. Perhaps courts are the wrong place for such policy discussions. Nonetheless, they remain essential to addressing the social causes of drug use in the inner cities. As an alternative, I have suggested reformulating the grand jury to take over some of the duties of the drug court judge. My goal is to generate empowered deliberative democracy at the local level, and mitigate some of the effects of the drug court’s therapeutic use of discipline, while including more partners in the discussion of urban drug policy. Few people have recognized that the drug court’s therapeutic methodology is not a repudiation of politics but one that takes sides by embracing a coercive vision of justice based on a version of positive liberty. In particular, the court’s rejection of due process in favor of treatment expresses the now-classic opposition between positive and negative liberty; that is, the freedom to be left alone and the freedom to “determine someone to be...this rather than that.” Most critics who oppose the drug court’s methodology simply call for a return to a courtroom practice centered around due process protections as a form of negative liberty to protect vulnerable defendants against intrusive state power. I suggest a third concept of freedom, one that emphasizes a mutual respect for members of the community as peers sharing diverse values. That form of freedom can only emerge through non-coercive interaction in the public sphere through low-level political organizations. Accordingly, as an alternative to the current structure of drug courts, I propose both a more radical and a more natural structure for court-based drug rehabilitation: a grand jury model rather than a judicial one. Adopting the grand jury structure replaces the hierarchical relation between judge, on the one hand, and community and offender, on the other, with a horizontal relationship between community, offender, and law enforcement. The grand jury model envisages a reciprocal relationship between the community, addicts, and service providers, in which those serving on these drug-dedicated grand juries would be educated about the range of problems faced by and resources available to the drug-addicted and would, in turn, educate service providers and law enforcement officials about community needs. Properly constituted, the grand jury may both supervise addicts within a rehabilitation program and redirect others out of the system or onto a more traditional form of court disposition.

Keywords: drug court, drugs, drug policy, positive liberty, negative liberty, Habermas, Arendt, Jonathan Simon, David Garland, criminal law, criminal justice, race, poverty, courts, grand jury, treatment, punish, punishment, public health, discourse, communicative action

Suggested Citation

Miller, Eric J., Drugs, Courts, and the New Penology (August 30, 2009). Stanford Law & Policy Review, Vol. 20, No. 2, 2009, Available at SSRN: https://ssrn.com/abstract=1464353

Eric J. Miller (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-1175 (Phone)

HOME PAGE: http://www.lls.edu/aboutus/facultyadministration/faculty/facultylistl-r/millereric/

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