Procedural Due Process, Drug Courts, and Loss of Liberty Sanctions

14 New York University Journal of Law & Liberty ____ (2021 Forthcoming)

U Denver Legal Studies Research Paper No. 21-03

48 Pages Posted: 26 Feb 2021

See all articles by Michael D. Sousa

Michael D. Sousa

University of Denver Sturm College of Law

Date Written: February 25, 2021

Abstract

The exponential growth of problem-solving courts across the United States in the past several decades represents a paradigm shift in the American criminal justice system. These specialized courts depart from the traditional adversarial model commonly found in the judicial system towards a collaborative model of justice that endeavors to treat and rehabilitate offenders with underlying conditions as an alternative to incarceration. Drug treatment courts focus on providing drug addiction treatment services to offenders suffering from severe use disorders. As a condition of participating in drug court, offenders agree to be bound by a system of sanctions imposed by the court in response to certain proscribed behaviors.

One concern with the quotidian operations of drug treatment courts is whether, and to what degree, procedural due process applies in situations where a participant receives a sanction amounting to a loss of liberty, either a short-term jail stay or an order to attend a residential treatment facility for a designated period of time. Despite their thirty-year existence, these issues remain unresolved. This Article highlights the current state of the law regarding procedural due process and liberty sanctions in drug treatment courts and then offers qualitative empirical data regarding how these knotty issues play out in action in the context of one adult drug treatment court located in a Western state. Ultimately, I assert that based upon the very special context in which these problem-solving courts operate, judicial precedent requires only minimal due process protections prior to the imposition of loss of liberty sanctions, and such protections can be satisfied by having drug court clients sign a knowing waiver of these rights prior to the imposition of such sanctions – a practice not presently done in large measure in drug treatment courts nationwide.

Suggested Citation

Sousa, Michael D., Procedural Due Process, Drug Courts, and Loss of Liberty Sanctions (February 25, 2021). 14 New York University Journal of Law & Liberty ____ (2021 Forthcoming), U Denver Legal Studies Research Paper No. 21-03, Available at SSRN: https://ssrn.com/abstract=3793238 or http://dx.doi.org/10.2139/ssrn.3793238

Michael D. Sousa (Contact Author)

University of Denver Sturm College of Law ( email )

2255 E. Evans Avenue
Denver, CO 80208
United States

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