98 Pages Posted: 14 Apr 2005 Last revised: 16 Sep 2008
This article analyzes two of the central claims made on behalf of drug courts: that they divert offenders from incapacitatory prison regimes and that they treat drug addicts. Taken together, these claims form the central justification of the drug court's existence and the basis of the court's unusual style of procedure. The court often resembles something between a revivalist meeting and an Alcoholics Anonymous session. The judge has tremendous discretion over the manner in which rewards and sanctions are meted out. Sanctions can involve repeating parts of the program, referral to a variety of progressively more residential treatment programs, or short terms of imprisonment. Liberal critics tolerate these sanctions and the courtroom theater more generally as part of their rejection of imprisonment as a solution to the severity revolution in penal policy. Yet the effect of formalizing the diversion process has led, not to increasing the numbers of drug addicts escaping the reach of the criminal justice system, but rather in bringing more low-level offenders into the system. Thanks to a policing based on risk management, law enforcement agents are pressured to divert offenders up into the system, rather than out of the system. This net widening effect resulting in increased numbers of offenders in drug court, many of whom have no criminal record and no record of addiction. Despite the increased numbers of citizens caught under the drug court net, liberal critics embrace the drug court's practice of invasive behavior modification as a therapeutic alternative to incarceration. The drug court, however, often functions more as a form of coercive drug monitoring than a drug treatment regime. These courts' express goal may be understood as an attempt to change the addicts social norms by isolating the offender from malign social influences and substitute the judge as the sole authoritative arbiter of appropriate behavior. Yet many of these clients may not be addicted to drugs, and so any treatment is better understood as a form of incapacitation in which the length of the treatment is often much longer than the alternative prison sentence. I suggest that the emphasis on therapy is blinding liberal critics to the highly incapacitative effects of the drug court. If they are to embrace the drug court, legal liberals need to reformulate a theory of punishment that is able to endorse the prison as an alternative to drug court. Of the available theories, some form of retributivism would appear to provide the most likely candidate. Such a theory would permit us to balance, on a court-by-court basis, the social harm of drug crime, the punishment imposed by a particular jurisdiction for such crime, and the alternative drug court sanction, so as to endorse or reject the drug court in terms of its treatment program and incapacitatory effect.
Keywords: Drug Court, Criminal Law
Suggested Citation: Suggested Citation
Miller, Eric J., Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionism. Ohio State Law Journal, Vol. 65, p. 1479, 2004. Available at SSRN: https://ssrn.com/abstract=691621