Drug Courts and the Criminal Justice System 9781626377332

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Drug Courts and the Criminal Justice System

Drug Courts and the

Criminal Justice System edited by

Deborah Koetzle Shelley Johnson Listwan

b o u l d e r l o n d o n

Published in the United States of America in 2018 by Lynne Rienner Publishers, Inc. 1800 30th Street, Boulder, Colorado 80301 www.rienner.com

and in the United Kingdom by Lynne Rienner Publishers, Inc. Gray’s Inn House, 127 Clerkenwell Road, London EC1 5DB © 2018 by Lynne Rienner Publishers, Inc. All rights reserved Library of Congress Cataloging-in-Publication Data Names: Koetzle, Deborah, 1970–, editor. | Listwan, Shelley Johnson. Title: Drug courts and the criminal justice system / Deborah Koetzle & Shelley Johnson Listwan, Editors. Description: Boulder, Colorado : Lynne Rienner Publishers, Inc., 2018. | Includes bibliographical references and index. Identifiers: LCCN 2017061560 | ISBN 9781626376977 (hardcover : alk. paper) Subjects: LCSH: Drug courts—United States. | Criminal justice, Administration of—United States. | Drug courts. | Criminal justice, Administration of. Classification: LCC KF3890 .D7757 2018 | DDC 345.73/02770269—dc23 LC record available at https://lccn.loc.gov/2017061560 British Cataloguing in Publication Data A Cataloguing in Publication record for this book is available from the British Library.

Printed and bound in the United States of America

The paper used in this publication meets the requirements of the American National Standard for Permanence of Paper for Printed Library Materials Z39.48-1992.

5  4  3  2  1

Contents

List of Tables and Figures Acknowledgments 1 2 3 4 5

6 7 8 9

The Drug Court Movement Deborah Koetzle and Shelley Johnson Listwan

The Development and Evolution of Drug Courts Brian Lovins and Edward J. Latessa

vii ix 1

7

The Theoretical Foundations of Drug Courts Scott Senjo

21

Juvenile Drug Courts Christopher Sullivan, Lesli Blair, Jennifer Lux, and Carrie Coen Sullivan

63

Ethical and Legal Considerations Steven Leben, David Rottman, and Pamela Casey

41

The Impact of the Judge Douglas Marlowe

85

The Drug Court Team Jacqueline G. van Wormer and Faith E. Lutze

The Importance of Evidence-Based Treatment Shelley J. Listwan, Ashleigh LaCourse, and Norma Jaeger Implementation and Evaluation Challenges Wendy P. Guastaferro and Laura Lutgen

v

99 119 133

vi 10 11

Contents

The Effectiveness of the Drug Court Model Erin Harbinson and Deborah Koetzle

Where Do We Go from Here? Faye S. Taxman, Danielle S. Rudes, Steven Belenko, Matthew Hiller, Douglas Young, and Matthew Perdoni

References The Contributors Index About the Book

147 165

187 215 217 227

Tables and Figures

Tables 5.1

11.1 11.2 11.3 11.4 11.5 11.6

Variation of CPC-DC Scores for Participating Drug Courts and Referral Agencies Court Characteristics Phases Structure and Availability of Clinical Services Implementation of the Ten Key Components of Drug Courts Use of Evidence-Based Practices Service Delivery in Outside Treatment Agencies Drug Court Team Involvement in Common Treatment-Related Activities

78 172 173 174 176 178

179

Figures 3.1 5.1 6.1 7.1 9.1

The Drug Court Collaborative Process Average CPC-DC Scores for Participating Drug Courts and Referral Agencies Study Design Team Member Responsibilities Areas of Inquiry for Assessing Capacity and Readiness of Treatment Providers

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25

77 88 103 139

Acknowledgments

This book is the culmination of effort by many talented individuals. The editors would like to express profound gratitude to our distinguished contributors for their insightful chapters, written in a way that makes this book useful for both practitioners and academics. We would like to extend sincere appreciation to Alex Holzman at Lynne Rienner Publishers for his enthusiasm and commitment to seeing the book through to final publication. We would also like to thank Nicole Moore, Shena Redmond, and the entire editorial staff at LRP for their expertise and attention to detail. Finally, the authors acknowledge the support provided by the Office for the Advancement of Research at John Jay College and the Department of Criminal Justice and Criminology at the University of North Carolina at Charlotte. —Deborah Koetzle Shelley Johnson Listwan

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1 The Drug Court Movement Deborah Koetzle and Shelley Johnson Listwan

Drug courts first emerged in 1989, largely in response to the growing number of drug offenders cycling through the criminal justice system. What started as an ad hoc model for providing community-based treatment and supervision has evolved into a well-respected sentencing alternative for drug offenders. The success of the drug court model has spawned a plethora of problem-solving courts, including specialized drug courts (e.g., juvenile, veterans, mental health), reentry courts, prostitution courts, and truancy courts. According to the National Drug Court Resource Center, there are over 3,000 drug courts (NDCRC, 2015) and nearly 1,300 specialty courts in existence in the United States and its territories (NDCRC, 2014). Drug courts have extended beyond the United States to countries including Australia, Bermuda, Brazil, Ireland, the United Kingdom, and Norway. The widespread replication of the drug court model can be attributed to both political and empirical support. Within five years of their development, the federal government committed funding to the drug court model via the 1994 Crime Act. Today, the government provides support to the National Association of Drug Court Professionals (NADCP) and the National Drug Court Institute (NDCI) and continues to fund the expansion of the model through implementation and enhancement grants. Critical to drug court success has been the government’s mandate for evaluation. In addition to providing funding, the federal government required evaluation as a component of any grant activities and often included researchers as part of the drug court team. This requirement provided important feedback not only to individual drug courts but also to the broader community of drug court practitioners and scholars. 1

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Despite their success, drug courts have not been immune from criticism. Legal scholars have raised questions about the legal and ethical implications of mandatory treatment and Fourth Amendment waivers, whereas others have aimed criticism at drug court practice. The lack of a clear theoretical model has led to a wide range in drug court practice. The NADCP has attempted to address this by identifying the core components and key standards of a drug court; however, variation in practice still exists, and by extension, it is likely there is variation in quality of service. Finally, although drug courts were designed to divert offenders from prison, many target lower-risk offenders, which may have the unintended consequences of net-widening and trapping people deeper within the criminal justice system. In spite of these criticisms, it seems likely that drug courts will continue to serve drug offenders for the foreseeable future. The NADCP recently developed Adult Drug Court Best Practices (NADCP, 2013, 2015) to provide guidance to both existing and newly developed drug courts in terms of policy and practice. By drawing on the empirical research both on drug courts themselves and on the broader literature on addictions, behavioral health, and pharmacology, the standards provide a road map for jurisdictions that wish to reduce substance use and recidivism in a fair and just manner. As drug courts near their thirtieth-year anniversary, it seems a logical juncture to examine the policies, implementation, and effectiveness of the model in an effort to provide further direction to the continued development and evaluation of other specialty courts. This book is designed to provide a framework for a review of the model and the issues surrounding it. The text consists of original work by leading researchers and scholars in the field, and each chapter is designed to stand alone for those wishing to focus on a specific aspect of the drug court model. At the same time, the text can serve as a complete reader for those wishing to gain an in-depth understanding of the drug court model, as each chapter references the core components and highlights best practices through different lenses. This book is designed to provide readers with a comprehensive understanding of key issues surrounding the drug court model, but it is unique in that it presents these issues within the broader context of best practices in corrections. Within this framework, Chapters 2–5 highlight the development of the drug court movement and provide a summary of important legal and theoretical issues; Chapters 6–8 review the key features of the drug court model and highlight why each is an important component necessary for effectiveness. Finally, Chapters 9–10 look at the current state of knowledge regarding implementation and direction for the future. Each chapter is described in detail below.

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Understanding the Drug Court Movement Chapter 2 provides a framework for the chapters that follow by reviewing the historical context surrounding the development of the drug court model. It provides an understanding of how social and political factors associated with the war on drugs led to a significant prison-crowding crisis. This crisis, combined with empirical support for community-based drug treatment, led to a number of alternatives to incarceration. With financial support from the federal government, drug courts surged ahead of many other alternatives and now symbolize what has become a system-wide interest in rehabilitation for drug offenders. Building upon the therapeutic foundation of the model, Chapter 3 provides a consideration of the theoretical basis for drug court success. Although scholars initially designed an atheoretical drug court model, they have sought to apply a theoretical underpinning to the model. A review of these perspectives, with a particular emphasis on therapeutic jurisprudence, offers the reader a better context for understanding the therapeutically driven drug court model. The therapeutic-jurisprudence model provides a richer understanding of how the courtroom within the drug court model becomes a collaborative rather than an adversarial environment. In this environment, relapse can be considered a normal part of the recovery process instead of simply a violation of probation. The collaborative approach toward relapse and drug use in general is relevant to political discussions today as the nation struggles with opioid abuse. The discussion of therapeutic jurisprudence provides a context for understanding the model and the drug court team, followed by Chapter 4, which reminds the reader of the ethical and legal considerations facing the drug court model. In particular, there are concerns that the collaborative model could undercut defendants’ due process rights. The authors note that other writings often compare the drug court model with a pure version of the adversarial process in which each case is vigorously contested. This chapter takes a different approach. It compares the ethical dilemmas posed by what takes place in a drug court with the dilemmas resulting from plea bargaining, the method of resolution for the overwhelming proportion of cases in U.S. criminal courts. This comparison represents a closer approximation of what occurs in a collaborative courtroom built upon the foundation of therapeutic jurisprudence. The authors review the ethical and legal issues that are inherent in the roles of the judge, prosecutor, and defense attorneys. Recognizing these challenges is important for fully comprehending the constraints within which drug courts operate. Finally, though the focus of the book is on adult drug courts, Chapter 5 reviews the emergence and operations of other specialty courts, with a particular emphasis on the juvenile drug court (JDC). Despite the mixed

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evidence surrounding JDCs, they continue to be supported in the field and there are continuing efforts to improve this specialized version of a drug court. Chapter 5 provides an overview of the emergence and operations of JDCs and, more important, critically considers their effectiveness. Reporting on results from a multisite study of JDCs, the authors offer recommendations for sustaining this model. Key Elements of the Drug Court Model Understanding the role of the judiciary, the collaboration between the various players in the courtroom, and the integration of treatment and supervision is critical for appreciating the unique nature of the drug court model and, by extension, other specialty courts. Chapters devoted to these aspects of the drug court model will provide readers with a solid understanding of the hallmarks of the model and how each component influences its effectiveness. The role of the judiciary is the subject of Chapter 6. The role of the judge within a drug court is unique, given the high level of involvement through the use of status-review hearings. The judge is seen as the team leader and is often tasked with representing the court’s interests among stakeholders. Chapter 6 provides an understanding of the role of the statusreview hearing in the context of the risk principle, which is an important issue facing corrections today. This chapter also outlines the features of judges that increase their effectiveness, including their training, experience, and use of a firm but fair manner when interacting with participants. Next, the drug court team takes center stage. Chapter 6 makes the case that the judge provides leadership for the team, followed by reminders in Chapter 7 that the remaining members are equally important. The authors argue that the drug court team is often taken for granted in the drug court model, yet its collaborative function is a key feature. As such, Chapter 7 provides a review of the team’s function and its cooperative nature, describing how the theory of collaboration is transferred into actual practice. The chapter ends with a discussion of why we must give strong consideration to team dynamics, decisionmaking, and collaboration if we are to fully understand the “why” behind drug court outcomes. Chapter 8 provides an overview of the risk, need, and responsivity framework, and the importance of that framework for drug treatment effectiveness. As noted in earlier chapters, the risk principle is a key consideration for drug courts, given that treatment and rehabilitation using the drug court model are both intense and long-lasting in duration. The chapter also points out that it is important to consider the criminogenic needs of the individual that coexist with drug abuse, namely, criminal attitudes, peers, lack of employment and education, and family issues, which must also be

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considered. Finally, the chapter provides a review of medicated-assisted treatment, which has received recent attention by the National Association of Drug Court Professionals that recently issued a set of standards for adult drug courts. Those standards encouraged drug courts nationwide to allow for the use of medicated-assisted treatment. Future Directions The final three chapters of the book provide the reader with an understanding of the challenges faced by practitioners and researchers when planning, implementing, and evaluating drug courts, along with the current state of knowledge on drug court effectiveness. Chapter 9 discusses the importance of attending to implementation. Implementation science is an issue that has gained popularity in recent years because of the strong correlation between implementation and effectiveness. The authors note that despite the Ten Key Components that were introduced early on in the drug court movement, the implementation of drug courts still varied across the country. This chapter more explicitly reviews the Adult Drug Court Best Practice Standards recently developed by the NADCP. These standards address target populations; meeting the needs of historically disadvantaged groups; the roles and responsibilities of the judge; incentives, sanctions, and therapeutic adjustments; substance abuse treatment; complementary treatment and social services; drug and alcohol testing; multidisciplinary team; census and caseloads; and monitoring and evaluation. The implementation of these best practices is key, and the authors argue that there are critical elements that remain underdeveloped, undocumented, and unmeasured. The chapter concludes with a discussion of core components of implementation, or implementation drivers, relevant to drug court programs and their effectiveness. Chapter 10 reviews the findings from key outcome evaluations, metaanalytic reviews, and more recent research examining the effectiveness of drug courts across different types of offenders. The review provides an accounting of earlier studies that relied on quasi-experimental designs and then examines random control trials and meta-analyses. The use of these better designs and techniques has allowed for a deeper understanding of the effectiveness of the drug court model and its impact on substance use and recidivism. Meta-analyses have also allowed researchers to better understand the role of program characteristics in the context of the model. The chapter summarizes the meta-analytic findings of the individual characteristics that can impact success (age, race, gender, drug of choice, risk level) and components of the court. Despite the mixed results of early outcome evaluations, the meta-analytic results make it clear that drug courts reduce

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recidivism. However, the authors argue that the size of the effect is somewhat minimal, in light of research suggesting treatment programs have the ability to reduce recidivism up to 40 percent. The authors argue that the relatively small effect may be a function of variation in drug court participants, programmatic practice, and overall quality. As such, the chapter concludes with recommendations for improving drug court effectiveness. Building upon the importance of implementation to increase effectiveness, Chapter 11 provides additional direction for drug courts. The authors assert that we need a clearer understanding of how these courts work to identify gaps in current practices. The authors report on findings from a national survey of 141 drug courts. The results of the survey provide the foundation of this chapter, illustrating that each of the areas discussed in the previous chapters of this book—therapeutic jurisprudence, judicial involvement, team collaboration, and treatment services—has room for improvement. Recommendations for improvement are offered in the context of these findings.

2 The Development and Evolution of Drug Courts Brian Lovins and Edward J. Latessa

This chapter will outline the development of the drug court and subsequent problem-solving courts. The drug court movement has taken the criminal justice system by storm. Not since the separation of the adult and juvenile courts has there been such a significant change in how defendants are processed through the court system. Initially developed in 1989, the drug court concept quickly took root. Although adversaries of the drug court model predicted that it would simply remain a novelty, this type of court has grown exponentially each year (Huddleston, Marlowe, & Casebolt, 2008). In 1992, there were ten drug courts, as compared to over 3,100 drug courts operating in the United States as of today (Office of Justice Programs, 2017). The popularity of the drug courts has led to a significant increase in broader problem-solving courts that are designed to target defendants with issues of driving under the influence (DUI), mental health, domestic violence, reentry, and other problems. Although the modern version of the drug court was founded in 1989, there were attempts as early as 1950 to separate out drug offenders from the regular dockets (Belenko, 2002). Two of the original examples were in Chicago and New York City. Both cities set up “specialty courts” to address rising drug problems and overcrowded dockets. Although these courts were born more out of the necessity for efficiency, some proponents did recognize the need for treatment options (Belenko, 2002). Similar to the issues that faced Chicago and New York City in the 1950s, New York City was again confronted with a growing heroin problem due to the shift in laws regarding heroin. Once again, the justice system set out to separate drug offenders, specifically those addicted to heroin, to offset the burden on the normal court dockets (Falkin, 1993).

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Although several attempts had been made in the past to separate out drug defendants from criminal dockets, it was not until the implementation of the drug court model that it finally took hold. Listwan, Sundt, Holsinger, and Latessa (2003) identified the culmination of prison overcrowding, a decrease in available treatment options, and growing support for treatment over incarceration as primary reasons for drug court popularity. Others have pointed to the interaction of public fear, political response, and increased media focus to explain the significant and broad support for the drug court (Levine & Reinarman, 1988). Whatever the reason, it is clear that the conditions that existed in 1989 came together to create the perfect storm from which the drug court was born. Coined by Junger (1997), a “perfect storm” has become synonymous with situations in which a combination of factors come together to produce a significant event that would not have been otherwise possible. Usually referring to something catastrophic, such as the economic crash of the world markets in 2008, in this case it is clear that the combination of many different factors allowed the drug court to flourish. This chapter will explore the conditions that led to development of the first drug court, as well as review those factors that allowed the drug court to thrive and ultimately provided support to expand such capacity to other problem-solving courts. The Emergence of the Drug Court There were three predominant conditions that set the stage for the emergence of the drug court. First, the war on drugs and “get tough” sentencing provided a continuous stream of nonviolent drug offenders into the system. Second, the public’s growing fear of drugs and violence was spurred on by media focus on those issues and political agendas. Third, the traditional system of treating drug-addicted offenders proved ineffective. Separately, these conditions might not have had much of an effect, but together they created an opportunity for the drug court to take hold. The War on Drugs

By 1989, the war on drugs was in full swing. Although many cite President Ronald Reagan as the initial commander in chief of the war on drugs, the policy can actually be traced to the Harrison Act of 1914 (Belenko, 1998). The Harrison Act was designed to limit the access drug offenders had to cocaine and opiates by making it illegal for medical professionals to supply addicts with drugs. In 1914, opiate and cocaine use had started to cause significant social problems, including a spike in violence (Wisotsky, 1997). The Harrison Act was designed to reduce the use of cocaine and opiates by

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making the punishment severe enough that it would deter doctors from prescribing these drugs to their patients. Although well intended, the Harrison Act was the first of many laws that the federal government has enacted through the war on drugs that led to the incarceration of many nonviolent drug offenders. By 1928, one-third of the federal prison population was incarcerated for drug use, primarily as a consequence of the Harrison Act (Jonnes, 1995). Of course, the rise in inmate population had a significant impact on prison systems’ resources. Crowding, limited ability to supervise offenders, and lack of treatment were cited by wardens as primary problems associated with the rise in prison population during this period (U.S. House of Representatives, 1928). The next battle generally associated with the war on drugs was the Marijuana Tax Act of 1937. Initially focused on reducing the impact that hemp had on the textile and paper markets, the act leveraged a tax on all sales of hemp and any of its by-products. The maximum penalty for not paying the tax was a fine and up to four years’ imprisonment for both the seller and the buyer. Although the act focused on hemp production, many local jurisdictions applied the law to individuals who possessed marijuana for personal use. Like the Harrison Act, the unforeseen consequence of this act was the significant spike in the number of offenders processed through the court and ultimately incarcerated (Wisotsky, 1997). As the number of drug offenders processed through the courts increased, political responses to the war on drugs toughened. In the mid-twentieth century, drug users were again blamed for a significant portion of the country’s violent crimes, leading to the third stage of the war on drugs (McBride & McCoy, 1997). During this time, the Boggs amendment to the Harrison Act set mandatory sentences for opiate possession, and the Narcotics Control Act increased the penalties for possession and distribution of narcotics (Sharp, 1994). By 1971, the war on drugs reached the national spotlight. President Richard Nixon, in a speech to the nation, identified drug abuse as a national epidemic and influenced Congress to pass the Comprehensive Drug Abuse Prevention and Control Act of 1971 (Marion, 1994). The effects of the Comprehensive Drug Abuse Prevention and Control Act were felt immediately. The most important change was that Congress scheduled (or ranked) drugs in a combined assessment of their potential for harm and their medical utility. According to the new schedule, more dangerous drugs with no medical purpose, such as LSD and marijuana, were reserved for Schedule I, whereas drugs with some medicinal purposes, such as cocaine and methadone, were placed in Schedule II. The Congress also provided some discretion to judges on sentencing, allowing probation to be given to drug offenders who were convicted of minor possession (Marion, 1994). As the war on drugs progressed, the initial discretion provided to judges under the 1971 act was significantly limited. Under the original act,

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judges could sentence offenders to probation if the drugs were for personal use only. Under the Sentencing Reform Act of 1984 and the Anti-Drug Abuse Act of 1986, personal use was defined by the amount (or weight) of the drug, not the intent to sell, resulting in a significant spike in the number of offenders incarcerated for drug possession. By 1989, when the first drug court was implemented, almost 20 percent of the U.S. prison population was serving time for a drug crime (Snell, 1991). Simultaneously, the criminal justice system experienced a wave of “get tough” policies, resulting in heavier reliance on prison as a primary intervention. The “get tough” era continued to impact drug offenders through the late 1970s and into the 1980s. The system began to focus less on probation and community services and more on incarceration. Mandatory minimum prison sentences were introduced across the nation. States adopted special punishments for offenders found guilty of having crack cocaine, in an effort to deter people from engaging in the violence associated with its use (Reinarman & Levine, 2004). Similar to the Harrison Act of 1914, these “get tough” laws had several unintended consequences. First and foremost, the cocaine laws were routinely applied unequally across social classes. Powder cocaine rarely resulted in prison time, whereas drug offenders who were caught with crack cocaine faced mandatory prison sentences. Second, for those who remained in the community, high levels of supervision were provided regardless of risk for recidivating. Although these intensive services may be needed for a select few, lower-risk offenders placed on intensive supervision can actually recidivate at higher rates (Lowenkamp & Latessa, 2004a). Finally, in many states, three-strike laws resulted in lifetime sentences for violation of minor drug laws, resulting in significant overcrowding of prison populations. Public Fear of Drugs and Violence

At the same time the first drug court was being implemented, the public concern about drug use was at a historic high (Levine & Reinarman, 1988). In August 1989, 64 percent of those polled in a New York Times/CBS Poll (Oreskes, 1990) identified drugs as the number one problem facing the United States. This anti-drug sentiment was a complete reversal of the favorable attitude of the 1970s. In fact, in 1978 nearly seven out of ten high school seniors reported that marijuana should be legalized for personal use. By 1980, eleven states had de-criminalized small quantities of marijuana, and several more had bills before their state legislatures to do the same (Johnston, Bachman, & O’Malley, 1989). By 1980, however, the attitude toward drugs started to shift. National polls suggested that the public’s tolerance of drug use had begun to decrease. States such as Oregon and Alaska, which had legalized marijuana

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in the previous decade, reversed course and passed laws that once again criminalized personal use of marijuana (Goode & Ben-Yehuda, 1994). As the country began to adopt anti-drug sentiments, crack cocaine hit the mainstream media. Because this drug was regarded as instantly addictive and tied directly to violent crime, the war on drugs gained even more momentum. Media reports suggested that crack was widely available, associated with high levels of violence, and caused significant birth defects in newborn babies (Reinarman & Levine, 2004). Television commercials depicting the effects of crack cocaine were routinely aired (Oreskes, 1990). Even President George H. W. Bush, during a nationally televised primetime address, identified drugs as the most significant problem facing the nation and declared the United States at war (Kagay, 1990). Ineffectiveness of the Criminal Justice System in Treating Drug Offenders

The third condition that set the stage for the rise of the drug court was the lack of effective interventions for drug offenders. Since 1914, when the Harrison Act was passed, the criminal justice system at both the state and federal levels has struggled with managing the skyrocketing number of drug offenders. As early as 1928, wardens in federal prisons have complained that incarcerated drug offenders present unique challenges to a prison system (U.S. House of Representatives, 1928). To combat increasing prison populations, the federal prison system developed alternative placements for imprisoned drug offenders, coined “narcotic camps.” These minimum security camps were designed as a diversion from prison for drug offenders. They were in operation for nearly fifty years, but in 1975 after widespread reports of inmate abuses and ineffective programming, they were closed (Campbell, Olsen, & Walden, 2008). Beyond the controversy over narcotic camps, treatment programs had also come under fire. An article published by Martinson (1974) reported research showing null effects for treatment. Although the criminal justice system had been focused on rehabilitation for the previous seventy-five years, the goals of the system in the late 1970s and 1980s began to shift to deterrence and incapacitation. As stated earlier, the legislature began to control judges’ discretion by placing mandatory minimums on specific types of drug offenses and limiting those offenders who could be sentenced to probation. At the same time that treatment was challenged, funding for criminal justice efforts (e.g., community surveillance, incarceration) had grown 62 percent (Lock, Timberlake, & Rasinski, 2002). Clearly, treatment had taken a back seat to strategies of incapacitation and deterrence. By 2002, when drug courts were in full swing, there were nearly 200,000 drug offenders incarcerated. Processing speeds were slow, causing

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a logjam of offenders in the courts. Drug offenders were often arrested for new offenses before they even made it through court. Early attempts to provide pre-trial services to drug offenders were fragmented and lacked continuity. There were some hopes to improve these services when federal funds created Treatment Alternatives for Street Crimes (TASC), but there were still significant problems with integrating treatment services into the court once TASC was introduced (Falkin, 1993). Even with rising concerns about drug use and the lack of treatment options, the nation was still highly supportive of providing prevention and treatment in lieu of incarceration. Lock, Timberlake, and Rasinski (2002) found that 83 percent of those surveyed believed that the nation should maintain or increase spending on treatment, and 92 percent supported spending as much, if not more money on prevention services. The problem in the mid1980s was finding treatment services that were effective for drug offenders. The traditional criminal justice system faced several barriers to addressing the needs of drug offenders. In 1989, Judge Klein of Dade County, Florida, formed a specialized docket for drug offenders in order to address the major gaps of the traditional system. The problem with the traditional system, as he saw it, was that it had become overburdened with the adversarial process (Finn & Newlyn, 1993a). Drug offenders were sitting on dockets too long without treatment, and previous attempts to speed up the process had resulted in just cycling the offenders through the system quicker, but with no more success. To combat these gaps, he set out to develop a collaborative process among the courtroom work group. Its focus was no longer on guilt and innocence, but instead on the best course of action to help a defendant succeed in a prosocial life. Freeing the prosecutor, defense attorney, judge, treatment provider, and defendant to work together to find the best option for the defendant addressed several deficiencies with the current system. First, the processing speed of the case increased significantly. Because there was now limited friction between members of the court work group, the system could process the defendant quicker and ensure that the needs of the defendant were met in a timely fashion. Second, the defendant was available to enter treatment quicker and therefore had less time at risk prior to receiving help. Historically, the wait list for programming could be extremely long, and research suggests that the longer a person waits for treatment, the more likely he or she is to drop out (Belenko, 1998). Third, in this approach, all parties are working together to help the defendant be successful; therefore, all interventions are geared toward behavioral change. The second major area that the drug court addresses is the lack of oversight. In a traditional court, the probation officer takes the primary role of monitoring the defendant. In the drug court model, the judge or magistrate is the primary “case coordinator.” The role of the judge is shifted to more of an

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agent of change than in a traditional court. The defendant is scheduled on a regular basis (usually weekly at the start) to attend a review hearing in which the defendant’s progress is discussed with all the key personnel. Hence, the participant is being monitored on a regular and consistent basis by the court. Third, the drug court takes an active role in the treatment of the defendant. Community providers are part of the proceedings and provide ongoing updates to the team so as to remain up-to-date on the defendant’s progress. If the defendant is progressing appropriately, the court is available to provide reinforcements, and if the defendant is slipping backward, it can provide timely interventions. Historically, treatment providers have not been an active player in the court proceedings, if available at all. This model ensures that all relevant information is shared with the parties involved with the defendant. Furthermore, it promotes the integration of treatment with the court process. The Drug Court Model Based on the lessons learned from the early drug courts, the National Association of Drug Court Professionals (1997) set forth its list of Ten Key Components that should be incorporated in each adult drug court. Studies conducted since have refined these components and provided some clarification. First, the drug court should fully integrate court and treatment services. Previous attempts to target drug offenders were unsuccessful when the treatment services were not in conjunction with the court proceedings (Falkin, 1993). Second, the court work group should work collaboratively to ensure that the participant is prepared for long-term change; the adversarial approach of the traditional court should be avoided. Third, clear selection criteria should be established and participants should be referred to the drug court immediately. Fourth, the drug court should have access to an array of treatment services ranging from detox to residential care. The treatment should be responsive to the needs of the participant and involve family whenever possible. Fifth, the drug court should provide frequent and ongoing drug and alcohol urinalysis. Sixth, the court should monitor the progress of participants, including results of the drug and alcohol tests. These should be shared with the court and be part of the reinforcement/punishment schedule. Although the court should recognize that relapse is typical, the expectation should always be abstinence. Seventh, the relationship between the judge and participant is essential. Cooper and Bartlett (1996a) found that 88 percent of the participants of the drug court felt that the judge (or magistrate) was key in their success in the program. Drug courts that are able to retain participants are more likely to be successful at long-term change (Goldkamp, White, & Robinson, 1998). Eighth, ongoing quality improvement is necessary to maintain the fidelity of the drug court model.

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Data should be collected to ensure that participants in the program are receiving effective services. Ninth, the professionalism and training of staff is extremely important. Staff should be trained in the drug court model, core correctional practices, and behavioral change. Tenth, the drug court staff must be active in the community, garnering support for the drug court and its participants. The drug court staff cannot operate in a vacuum; staff and participants must share the successes of the program to ensure long-term support. Guided by early attempts and the drug court principles, most drug courts have evolved into a unique blend of court procedures and treatment. Although there is no single model for the way drug courts have been implemented, there are some common themes. Most are structured like traditional courts, with the presence of a judge, a prosecutor, and sometimes a defense attorney. Rather than using traditional adversarial procedures, this process takes more of a treatment team approach toward addressing the defendant. The judge operates as a hybrid case coordinator, reviewing the defendant’s progress, admonishing the defendant for any negative behavior while praising prosocial alternatives. The prosecutor and defense attorney work together with the treatment provider to determine the best course of action. Some courts serve as a pre-adjudication court, whereas others are operated post-disposition. For those pre-adjudication courts, the defendant agrees to participate in the program, usually with the promise of either a dismissed charge or a heavily reduced charge (e.g., felony reduced to a misdemeanor). Post-dispositional programs are offered after the rendering of guilt (usually through plea) and are part of the supervision plan for the offender, offered to mitigate sentence or as a post-adjudication program that offers to reduce the conviction if specific indicators are met. Most drug courts have set exclusionary criteria, including a history of violence and lack of motivation to participate, although lately this has been shifting. Once admitted, the defendant is expected to follow a set of strict rules designed to support a sober lifestyle. If these rules are violated, sanctions can be provided up to and including incarceration (Peyton & Gossweiler, 2001). Kassebaum and Okamoto (2001) suggest that oversight is key to the success of drug programs. Unlike a traditional docket in which there is very little oversight from the bench, in the drug court the judge provides immediate feedback to the defendant, either to support the choices being made or to address them if they are leading the defendant down the wrong path (National Association of Drug Court Professionals, 1997). The length of time a drug court performs its oversight varies, but it is not uncommon to find drug courts that provide services for at least twelve months and sometimes upward of two years. The types of intervention are quite mixed. Most rely heavily on Alcoholics Anonymous (AA) or Narcotics Anonymous (NA), although others have formal agreements with substance abuse providers to deliver treatment services. Treatment targets

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range from criminogenic to non-criminogenic needs. Usually separated by phases, successful completion is typically based on a combination of time, a period of documented sobriety, and other behavioral indicators (e.g., obtaining employment) (Peyton & Gossweiler, 2001). The Expansion of Drug Courts and Problem-Solving Courts Based on the success of the drug court model, jurisdictions were quick to broaden the scope of the drug court to meet the needs of other specialized populations that tend to get marginalized. Specifically, drug courts expanded to juveniles and DUI drivers, while the problem-solving courts began to target the mentally ill, families, violent offenders, reentry cases, and sexual offenders. Although the problem-solving courts are fundamentally similar to the drug court, there are some distinct differences. The following section briefly describes the models for the more widely used courts, including the juvenile drug court, the mental-health court, and the family drug court. Juvenile Drug Courts

The first juvenile drug court was established in 1995. As of June 2014, there were 433 juvenile drug courts in operation across the United States. The juvenile drug court was initially adapted from the adult drug court model but had to be modified rather quickly to address several challenges that were unique to juveniles (Drug Court Clearinghouse and Technical Assistance Project, 1998). Typically, juvenile drug offenders have significant barriers, including lack of family involvement, low motivation to change, and involvement with multiple systems. These barriers, coupled with limited treatment options, made it even more challenging to provide effective services to youth. The juvenile drug court does have one advantage over the adult drug court; juvenile courts tend to operate more collaboratively than adult courts and are usually focused primarily on rehabilitation. The juvenile court subscribes to the parens patriae doctrine (the government or other authority is viewed as legal protector for those unable to protect themselves), which some argue represents the first type of problem-solving court model. Mental-Health Courts

Mental-health courts, like drug courts, were designed to address a growing population of offenders who face significant barriers in the traditional court system. Lamb, Weinberger, and Gross (1999) found that mentally ill offenders have a difficult time engaging in the traditional criminal justice system

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and that the system is not responsive to the needs of the mentally ill offender. The goal of the mental-health court is to reduce the barriers that exist in the system while assisting the offender in stabilizing his or her mental-health symptoms. To meet this goal, the mental-health court works collaboratively with the judge, court workers, community supervision officer, treatment staff, and other stakeholders to engage the offender and ensure that he or she complies with the identified treatment plan (Miller & Perelman, 2009). Unlike the drug courts, the mental-health courts’ focus is not directly on the criminal behavior. Instead, it focuses on reducing the impact of the underlying mental illness, assuming that if the symptoms are managed effectively, the offender will reduce his or her involvement in the criminal justice system. The mental-health court has gone through some recent modifications. Initially focused on offenders with low-level misdemeanors, mental-health courts around the nation have begun to expand their services to higher-level misdemeanants and low-level felons. With the shift to more serious offenders, mental-health courts have had to reconsider some of their earlier decisions. First, many courts have shifted from a post-adjudication model to a pre-adjudication or pre-sentence model. Second, supervision responsibilities have transitioned from community mental-health staff to probation officers. Third, the use of jail as an intermediate sanction has increased significantly (Miller & Perelman, 2009). Family Drug Courts

The family drug court is the most unique among the problem-solving courts. Developed in 1996, there are currently 303 family drug courts in operation (National Drug Court Resource Center, 2016). Although similar to the other problem-solving courts in structure, its primary target is not criminal behavior but parental rights. The family drug court model is designed to reduce the impact that substances have on families by working with them to increase retention of their children, reunite the children if removed, or assist in permanent custody where appropriate. Referrals are typically provided by the local Department of Human Services or prenatal/neonatal care workers. Many of the family drug courts handle both criminal and civil cases, but their sole interest is in managing the child-protection case (Wheeler & Siegerist, 2003). Reentry Courts

The reentry court, designed to assist ex-offenders with reintegration issues, was implemented in 2001. The goal of the reentry court was to work with ex-offenders while they were still incarcerated, so that the barriers to suc-

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cessful integration could be removed prior to release (Hamilton, 2010). The court was designed to increase collaboration among community supervision officers, court personnel, and community providers. Human-Trafficking Courts

Human-trafficking courts are one of the newest versions of the problemsolving courts. These courts are unique in that the defendant is also the victim of human trafficking. They work to increase communication among all parties involved in addressing the victim-defendant in a way that is trauma informed and attempts to prevent future exploitation. These courts are relatively new and remain understudied. They operate on many of the same principles as traditional problem-solving courts, but they must be mindful of developing strategies to manage special circumstances (see OVC Training and Technical Assistance Center 2011 for further discussion). Domestic-Violence Courts

The domestic-violence court’s primary purpose is the same as the sexoffender court: to increase accountability of the perpetrator. The domesticviolence court started in 1998, and by 2009, there were 208 courts in operation. The court focuses on monitoring the offender through additional contacts, progress hearings, extended compliance monitoring of protection orders, and mandated batterer programming. A survey conducted by Labriola, Bradley, O’Sullivan, Rempel, and Moore (2009) found that 83 percent of the courts identified victim safety as the primary goal, with 79 percent citing offender accountability as extremely important. In contrast, only 27 percent of the courts stated that rehabilitation was a very important aspect of the domestic-violence court.1 Issues Facing Drug Courts Although generally supported across the nation, drug and problem-solving courts are not without their critics. Marlowe, DeMatteo, and Festinger (2003) acknowledge that research on the effectiveness of drug courts is not without its flaws. First, a majority of studies use no comparison group or do not overcome selection bias. Second, the methods used to collect data in some of the primary studies have been called into question. Third, most of the studies that show effects use successful graduates as the study population, not a sample of intent to treat. In fact, the Government Accountability Office (2005) found that only twenty-seven of the 117 evaluations published on drug courts were methodologically acceptable.

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In addition to expressing some concerns regarding the evidence, Boldt (2002) argues that the cooperative nature of the drug courts can be problematic for vulnerable defendants. With judge, prosecutor, and defense attorney working together, he posits that there is little protection in place for the drug offender. Similar arguments are made for mental-health courts. Critics suggest that mentally ill offenders are often underrepresented in court, are potentially forced to accept plea bargains that are not in their favor, and are coerced into maintaining compliance of psychotropic medications (O’Keefe, 2006). Johnson, Hubbard, and Latessa (2000) suggest that the drug courts, and presumably all problem-solving courts, have been adopted without considering the broader context. Johnson et al. posit that local jurisdictions should apply the broader principles of effective interventions to the drug courts in an effort to make them more successful. First and foremost, the drug courts should adopt a method of classifying offenders into levels of risk. The drug court model is a relatively intensive intervention and should be reserved for moderate- to high-risk offenders (Andrews & Bonta, 2010; Lowenkamp & Latessa, 2004a). Second, the drug court should adopt a cognitive-behavioral model and insist that its community providers use a similar model to deliver treatment. Typically, drug courts rely on community providers to deliver the treatment services to the offenders. These providers should be monitored, and the court should insist that the programs use models that have shown to be effective for treatment. In addition to the concerns regarding the context of the programs, others have challenged the use of AA/NA that often occurs in drug courts. Drug courts were found to rely heavily on twelve-step models for either primary treatment or social support (Peyton & Gossweiler, 2001). WellsParker and Bangert-Drowns (1995) found that Alcoholics Anonymous and Narcotics Anonymous were not effective for offender populations. Specific to drug courts, Shaffer (2006) found that drug courts that mandated attendance at AA/NA had lower effect sizes than those that did not mandate these services. Conclusion Drug court and problem-solving court models have found significant support across the nation. At last count, there are more than 3,000 drug/ problem-solving courts in operation (Office of Justice Programs, 2017). Proponents of the model suggest that the non-adversarial nature of the specialty courts provides defendants with a speedier, more therapeutic alternative to a traditional court, while driving down costs. Initial evaluations suggest that specialty courts can have an impact on intermediate and long-term

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outcomes, including a reduction in recidivism. Future specialty court evaluations should begin to tease out the impact drug courts have on different offender risk levels while controlling for the fidelity of the model. Notes 1. Although 27 percent of the courts in the survey stated that rehabilitation was not very important, there was a clear distinction between New York state and the rest of the country. Only 19 percent of New York courts identified rehabilitation as very important, whereas 53 percent of the courts across the rest of the United States supported rehabilitation.

3 The Theoretical Foundations of Drug Courts Scott Senjo

The expansion of the drug court model has led to a number of studies outlining their effectiveness, as reviewed in detail in Chapter 9. Although these courts have been shown to be an effective option, there have been calls to develop a better theoretical framework for understanding their impacts. This chapter outlines the relevance of using therapeutic jurisprudence as the underlying theoretical foundation for the drug-treatment court. Therapeutic jurisprudence (TJ) guides the drug court in functioning to assist drug offenders as they experience abstinence from drugs and alcohol. The legal actors within the court work with participants by challenging dimensions of personal accountability with therapy, drug treatment, the breakdown of denial, and a new way of living within oneself in a social domain with rules and responsibilities. This chapter discusses the origins of the theory of TJ, the application of the theory to the various components and processes of drug-treatment court, and the role of TJ within the ambit of the traditional adversarial model of criminal court decisionmaking. Origins and Development of Therapeutic Jurisprudence The theoretical constructs of therapeutic jurisprudence were originally developed in the mid-1980s by Wexler and Winick (1991b). These researchers studied mental-health law and policy and the court hearings that exercised jurisdiction over the commitment status of persons under a state civil commitment order (Wexler & Winick, 1991a). While observing the effects of courtroom procedures on the parties subject to the court’s interrogative, Wexler and Winick were not convinced that the power, status, and influence of the court were being used in a manner consistent with the 21

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treatment goals of mental-health patients. A gap seemed to exist between the procedurally aloof court operations and the needs and experiences of those subject to the jurisdiction of the court. Imagining greater possibilities within the jurisprudential realm of the court, Wexler and Winick noted the enormous potential for law, court procedures, and courtroom personnel to directly influence a positive outcome for mental-health patients who bounced back and forth between the court system and the mental-health treatment system (Wexler & Winick, 1991a; Winick & Wexler, 2003). They reflected that the two could be merged to work toward a common set of goals that would have far greater impact than the impersonal, procedurally driven status quo orientation of the court and court processes. Wexler and Winick (1991a) first elaborated on their new theory in 1991 with Essays in Therapeutic Jurisprudence and later provided the most detailed insight yet with their voluminous Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence in 1996 (Wexler & Winick, 1996). These authors have continued publishing in this area and have further outlined the role of TJ within the broader problem-solving court model (Richardson, Spencer, & Wexler, 2016; Wexler 2000, 2013; Wiener, Winick, Georges, & Castro, 2010; Winick 2003, 2005, 2013; Winick & Wexler, 2001, 2003). The impetus for the integration of a wellness-oriented theory into the sometimes impermeable environment of law, policy, and courts is not difficult to understand (Carlsmith, Darley, & Robinson, 2002). In a social system fractured by the demands of war, capitalist competition, and a relentless work ethic, TJ offered an unusually prescient array of ameliorative antidotes that were embraced by courthouses in every region of the United States, seemingly overnight (Goldkamp, White, & Robinson, 2001). The ancient adversarial model of courtroom decisionmaking, which is defined by a painful win-lose scenario, was replaced in the specialty courts by TJ and a collaborative courtroom model in which no one has to lose and everyone stands to benefit, thereby decreasing the possibility of lingering resentments and misunderstandings for the “losing” party. In their wildest imaginings, Wexler and Winick may never have foreseen the scale of approval that awaited the therapeutic-jurisprudence concept. As central to the existence of the drug court, TJ has opened the door to possibly the most profound and improbable innovation ever to occur in the American criminal justice system (Hora, 2002; Hora, Schma, & Rosenthal, 1999). Based on the sturdy foundation of TJ, the model expanded rapidly, with drug courts operating across all fifty states today. The enthusiastic reception of the therapeutically driven drug court concept can be attributed to a variety of factors such as more effective caseload management, reduced system costs and jail crowding, and decreased rates of recidivism among drug court participants.

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In the 1990s, as early drug courts began to demonstrate their effectiveness, conferences were held and professional associations such as the National Drug Court Institute were formed that allowed more and more people within the criminal justice system to gain access to important drug court information. The successes of various drug courts, coupled with the growth of conferences and professional organizations, helped the proponents of TJ and drug courts to generate state and federal support for the concept. Continued funding for drug courts and the active role of the NADCP in facilitating research and standards for drug courts nationwide all point to the success of the drug court therapeutic ideal (Belenko, 1998; Hora, 2002; NADCP 2013, 2015). Defining Therapeutic Jurisprudence Therapeutic jurisprudence is defined as the study of law as a therapeutic agent (Wexler & Winick, 1991b, 1996). Therapeutic jurisprudence focuses on the ways in which laws and legal processes affect individuals involved in the legal system. By examining the effects of the law in this fashion, TJ can illuminate how laws and legal processes may support or undermine the public policy reasons for instituting laws and legal processes. It is an interdisciplinary set of principles that seeks to assess the therapeutic and countertherapeutic consequences of courtrooms, judicial roles, and legal procedures and how they can produce changes designed to increase human well-being and decrease criminal offending (Nolan, 2002b; Winick, 2005, 2013). Therapeutic jurisprudence may also be thought of as a mental-health approach to law that uses the tools of the behavioral sciences to assess the law’s therapeutic impact and that when consistent with other processes and procedures, can improve the psychological functioning and emotional well-being of those who come before the drug court (Cooper, 1995; Lynch & Perlin, 2017; Schopp, 2016; Winick & Wexler, 2003). Comporting with the principle of therapeutic jurisprudence, specialty courts and drug courts consist of treatment program components aimed at the underlying disturbance within an offender—the condition that compelled the offender to act out his or her dis-ease, agitation, and rebellion. The “therapeutic” part in therapeutic jurisprudence targets the emotional state inside the offender that leads to the obviously self-defeating act of a criminal offense; no one in a sound state of mind would purposefully invite harm to themselves. In short, TJ mandates a treatment program for offenders, but most important, it harnesses the powerful position of the judge and the court in a collaboration with the offender, guiding the offender through a thoughtfully painstaking treatment program and regimen (Belenko, 2002; Cooper, 1994; Senjo, 2001).

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For better or worse, TJ compels the criminal justice system to look at itself because lawyers, judges, and the law itself all function therapeutically or anti-therapeutically, irrespective of whether the laws and legal actors care to acknowledge their social and moral responsibility (Nolan, 2001). By examining the law through “the therapeutic-jurisprudence lens,” we can identify the potential effects of proposed legal arrangements on therapeutic outcomes. The results of that examination should then inform and shape policies and procedures in the law and the legal process. Therapeutic jurisprudence allows, in fact requires, legislators, judges, and practitioners to make legal policy determinations based on empirical studies and not on uninformed hunches. Jail and prison are useful for retributive theory but fail to address the underlying problem; jail and prison do not seek to reduce the rate of crime. The Drug Court Process and Therapeutic Jurisprudence Therapeutic jurisprudence seeks to address root causes in a therapeutic manner. By treating the underlying addiction of the drug cases that come into drug court, this approach forces those who work with the standard criminal justice system to move their orientation away from the traditional role of the court. It shifts the paradigm of the court system and asks judges, prosecutors, and defense counsel to change their outlook in the specialty court to allow therapeutic jurisprudence to function effectively. A drug court will require different roles and perspectives than those found in typical courtrooms (Goldkamp & Weiland, 1994; Tauber, 1999); however, within the parameters of TJ, drug court programs see the court, and specifically the judge, as filling a role that goes beyond that of adjudication. Some argue that the drug court is a product of the therapeuticjurisprudence concept and regular criminal court is a product of the theory of retribution. The drug court requires participants to see the process as therapeutic and treatment oriented instead of punitive. Utilizing this approach, drug courts use sanctions for treatment noncompliance to augment the treatment process rather than simply to punish inappropriate behavior (Inciardi, McBride, & Rivers, 1996; Marlowe, 2010; Marlowe, Festinger, Dugosh, Arabia, & Kirby, 2008; Marlowe & Kirby, 1999). The drug court model uses a collaborative effort among criminal justice system participants who traditionally see each other as adversaries in a process mediated by a neutral referee as illustrated in Figure 3.1 (Senjo, 2001). Drug courts promote recovery through a coordinated response to drug offenders (Marlowe, 2010). Realization of these goals requires a team approach, including cooperation and collaboration of the judges, prosecutors, defense counsel, probation authorities, other corrections personnel, an array of local service providers, and the greater community.

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Figure 3.1 The Drug Court Collaborative Process

Defense Attorney

Treatment Program Representative

consensus

Prosecuting Attorney

Judge

Offender Change

Probation Dept. Representative

The theory underlying the drug court incorporates a long overdue change in the relationships between communities that have been traditionally at odds and foreign to each other—treatment communities, court communities, prosecutors, and defense attorneys. The drug offender becomes a client of the court and, as such, the judge, prosecutor, and defense counsel must shed their traditional roles and take on roles that will facilitate an offender’s recovery from the disease of addiction. In this manner, the jurisprudence becomes therapeutic. The court “team” focuses on the participant’s recovery and law-abiding behavior—not on the merits of the pending case or the imprimatur of a hostile public opinion. Drug court proceedings focus on the treatment needs of the offender and not the legal formalism of traditional courts (Goerdt & Martin, 1989; Goldkamp & Weiland, 1994; Satel, 1998). As therapeutic jurisprudence shifts the main focus of the court from legal to therapeutic concerns, the drug court applies different solutions to the problems of the drug offender than do traditional courts. The courts recognize that “relapse” to drug use is an expected and accepted part of a drug offender’s treatment process. Allowance for relapse episodes and a willingness to give defendants a chance to reform represents the application of therapeutic jurisprudence in the drug court setting. Instead of immediately revoking a drug offender’s probation and putting him or her in jail for a positive urinalysis, the court will utilize a form of “smart punishment.” Smart punishment refers to the imposition of the minimum amount of punishment necessary to achieve the twin sentencing goals of reduced criminality and drug usage (Belenko, 1998; Hora et al., 1999; McColl, 1996; Tauber, 1993c). Smart punishment is not really punishment at all, but rather a therapeutic response to the realistic behavior of drug offenders who are in the grip of

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addiction. The type of sanctions given by a drug court to a drug offender serves to underscore the therapeutic perspective of the drug court model. The therapeutic orientation compels the court and its participants, such as judge, prosecutor, and defense counsel, to pursue and utilize relationships, methods, and ideas that will reinforce and support the goal of getting the individual to stop using drugs, and hence cease criminal offending. Structural Accountability: Implementation Features of Therapeutic Jurisprudence in Drug Court Although drug courts function using a different jurisprudential model than more traditional criminal courts, they still operate within the framework of the larger criminal justice system. The therapeutic orientation of the court should be viewed as a new but integral part of the existing system. Drug cases may not always start out in drug court but may be transferred there from a traditional court. In the same manner, a drug offender who fails to make the mandated progress may ultimately end up having his or her case sent back and tried in a traditional court. In addition, in some drug courts, defendants can elect to stop their participation in drug court and return to the standard adjudication route if they desire to do so (DeHart, 1997b). This overlapping responsibility between traditional courts and the drug court helps to emphasize the idea that the drug court attempts to use effective therapeutic adjudication methods to, among other things, relieve the strain placed on traditional courts by certain types of drug cases. One aspect of TJ in drug court is that caseload pressure should be relieved from other court functions, and resources should be saved as a result of an efficient and effective treatment approach (DeHart, 1997b). To be truly successful in attaining this goal, drug courts cannot operate in a vacuum; they must remain connected to a given jurisdiction’s traditional courts. However, the connection between the drug court and traditional courts does not and should not affect the internal operational structure of the drug court, which is grounded in a different jurisprudential theory, therapeutic jurisprudence (Finn & Newlyn, 1993b; Mahoney, 1994). Unlike more traditional courts, drug courts usually handle only cases involving defendants screened for the drug court program. The idea of a drug court handling only drug cases also applies to traditional jurisdictions that use drug court–type sessions. In many urban jurisdictions, drug courts do not adjudicate other types of criminal cases, nor do they handle civil cases of any sort. This important feature allows a jurisdiction’s drug court to concentrate its efforts on administering the treatment program. Those smaller jurisdictions that do not have the caseload to support a full-time drug court have created drug courts that hold court less frequently. For example, one

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small drug court in Michigan holds court every Friday but reverts to a traditional court setting the rest of the week (Jacoby, Ratledge, & Gramckow, 1992). This setup allows the court to administer and supervise treatment of addicts without devoting unnecessary assets to this method of adjudication. The flexibility allowed in the model makes the drug court a viable method in a variety of jurisdictions. In accordance with their therapeutic focus, drug courts may operate as a single entity and are well suited to do so (Belenko, 1998). In a single-entity drug court, “only one” means that only one court with one judge adjudicates and monitors all the cases screened and all the offenders admitted to the treatment program. This important component of the drug court concept provides the court with structural accountability, both to the parole/probation and treatment agencies and personnel administering the court and treatment program, as well as to the offender in treatment. In a structurally accountable system, participating agencies share program responsibilities and are accountable to each other for program effectiveness, with each participant directly linked to, dependent on, and responsible to the others (Hora et al., 1999). Following this theme of structural accountability, the personnel in the drug court (e.g., judge, prosecutor, and defense counsel) are usually assigned for at least a twoyear term. The two-year term provides both the court and the defendant with continuity and accountability throughout the treatment process and enhances the therapeutic function of the court (Olson, Lurigio, & Albertson, 2001; Tauber, 1993b). The personnel assignment process underscores the structural accountability of the drug court. Structural accountability means that drug court personnel and their respective agencies take responsibility for the success or failure of an offender to complete the treatment program (Granfield, Eby, & Brewster, 1998). The drug court builds this accountability into the structure of the treatment process because the drug court is solely responsible for the defendant and the program. By establishing a separate but also connected court, drug courts guide offenders through the treatment process. By providing a single drug court, the system does not force defendants to shuttle from courtroom to courtroom and defense counsel to defense counsel over a period of months, which jeopardizes the subtleties of the treatment process. Under the drug court system, the defendant confronts a single judge and drug court team that become intimately familiar with the defendant and his or her drug and other problems and hence are uniquely situated to assist, rather than antagonize, the offender. This drug court team will hold the defendant accountable for actions during the course of treatment and its members will reinforce one another in actions taken to ensure that the defendant stays in treatment whenever possible and appropriate (General Accounting Office, 1997). Drug courts abandon the traditional

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adjudication process that may slowly wind its way from arraignment to preliminary hearing, pretrial hearing, and trial, and involve many judges, defense counsel, and prosecutors. This traditional structure conflicts with the therapeutic foundation of the drug court and, as mentioned above, may actually reinforce addictive behavior and possibly derail an otherwise successful treatment program (Senjo & Leip, 2001c). As compared to the traditional court structure, drug courts recognize that immediacy is an important implementation feature. To reinforce this effect, the structure of a drug court places the offender quickly before a single judge and drug court team because an arrest creates an immediate crisis for the substance abuser and can force substance-abusing behavior into the open, making denial difficult (Satel, 1998). In a drug court, through the structural accountability of the court, addicts are forced to confront their denial of substance abuse, accept their addiction problem, and be relatively open to the recovery process (Bean, 2002). Therapeutic Jurisprudence Within the Ambit of Courtroom Policies and Procedures The drug court structure supports and enhances the effectiveness of the policies and procedures that the court utilizes to engage the offender in his or her own treatment. In recognizing and addressing the compulsive behavior of the drug-addicted defendant, the drug court uses policies and procedures designed specifically to interrupt the offender’s addictive behavior. The court process actually becomes part of the treatment, and drug court procedures reflect that therapeutic ideal (Burns & Peyrot, 2003). Drug court procedures try to ensure that the court does not miss the opportunity for intervening and introducing the value of drug treatment into the defendant’s life (Hora et al., 1999). In contrast to the traditional court system, which may or may not adjudicate a drug offender’s case for months after the original arrest, as indicated above, the drug court places the defendant into the program immediately. In some instances, defendants may find themselves inside a drug court within two days of release from jail after the original arrest. The first drug court appearance by the defendant happens quickly, and treatment begins as soon as possible following the first drug court appearance, even the same day (Tauber, 1993a). This drug court procedure is calculated to take advantage of the court features found in the theory of therapeutic jurisprudence. Therapeutic jurisprudence adds other features to the administration of drug courts. In addition to the drug court procedure of speedy program entry, drug courts design the courtroom process itself to reinforce the

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defendant’s treatment. The court may set up its daily calendar so that firsttime participants appearing in drug court are the last items on the session calendar. This gives them an opportunity to remain in the gallery and see the entire program in action, and thus they know exactly what awaits them if they become a participant. The drug court may handle program graduates first in order to impart a sense of hope to newcomers and continuing program participants, who may experience various fears and concerns at the beginning of the process. The court may then devote the next portion of the calendar to defendants who enter the court in custody. This procedure is designed to convey to all drug court participants the serious nature of the court and the possibility of incarceration for a failure to abide by the court’s policies and procedures. A violation of drug court rules may not get a defendant ejected from the program, but the court may use jail time as a form of “smart punishment” to get the defendant to conform to treatment protocol (Marlowe, 2010, 2012a; Senjo & Leip, 2000; Terry, 1996). Those drug courts that do not have treatment facilities in their jails recognize that incarceration represents a break in treatment for the individual. Finally, the court handles the cases involving new defendants who wish to enter the drug court program. All of these policies and procedures are founded on the therapeutic-jurisprudence theory that every aspect of a drug court can and does have a powerful impact on the success of the defendant in treatment. Courtroom Role Modification Within the Parameters of Therapeutic Jurisprudence The orientation, structure, and procedural portions of the drug court cannot maximize the successful treatment of addicts without the essential element of collaboration among the court’s primary players (McColl, 1996; Shaffer, 2011). Therapeutic jurisprudence compels a special collaborative effort among judges, prosecutors, defense attorneys, and related criminal justice agencies, along with treatment providers and other social services and community organizations (Winick & Wexler, 2003). This collaborative effort is based on local needs and the targeted population being served and may differ considerably among drug courts. Specifically, drug courts create new and different roles for judges, prosecutors, and defense attorneys. Drug courts transform the roles of both criminal justice practitioners and drug treatment providers (Hora et al., 1999). Drug courts transform these roles because the therapeutic nature of the court cannot work without these modifications. The metamorphosis of these roles allows the goal of the court to become primarily therapeutic while remaining a legal institution and hence draws the court into the theoretical realm of TJ.

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Therapeutic Jurisprudence from the Bench: The Role of the Judge

The drug court judge stands at the heart of this collaborative environment (Goldstein, 1997). The role of the judge will be discussed in greater detail in the next chapter. However, it is important to note that in keeping with the therapeutic nature of the drug court concept, the judge is the central figure in a team effort that focuses on sobriety and accountability as the primary goals (Tauber, 1993b). The judge is the leader of the drug court team, linking participants to drug treatment and to the criminal justice system (Goldkamp & Weiland, 1994). However, the drug court judge cannot rely on traditional methodology to carry out effectively the judicial role demanded in a drug court. To the contrary, drug courts require judges to step beyond their traditionally independent and objective arbiter roles and develop new expertise in order to understand the disease model of addiction and drug-abuse behavior patterns (Inciardi et al., 1996; Marlowe, 2011). This expansion of expertise composes a necessary part of the drug court judge’s repertoire because the structure of the court requires early and frequent judicial intervention. Without knowledge about addiction and the effects of drugs, the drug court judge cannot purposely intervene and apply the “smart punishment” necessary to keep the offender on the path to recovery. Therapeutic jurisprudence asks a lot from a traditional criminal court judge. Judges and offenders become relatively close. The fact that only one judge will deal with the offender’s case through frequent, mandatory court appearances allows the judge and offender to develop an ongoing working relationship. This one-on-one relationship tends to facilitate honesty through familiarity and permits the drug court judge to become a powerful motivator for the offender’s rehabilitation (Finn & Newlyn, 1993b; Goldkamp & Weiland, 1994; Marlowe et al., 2008; Tauber, 1993a). The judge, using the power and authority of the court, provides the addict with the incentive to stay in treatment, while the treatment provider concentrates on the treatment process itself. Without judicial leadership involving active monitoring of an offender’s recovery, a drug court would not implement therapeutic jurisprudence. Rather than moralize about an addict’s character flaws, the judge must assume, according to Judge Tauber, “the role of confessor, task master, cheerleader, and mentor” (Tauber, 1993a). Prosecutor/District Attorney

Like the drug court judge, the drug court prosecutor must wear the new mantle of therapeutic team member (DeHart, 1997b). The prosecutor’s role in a drug court, like the judge’s, represents a significant departure

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from the traditional prosecutor’s job as the detached, objective enforcer of the law. Many prosecutors recognize that the public safety and punishment-oriented goals of the prosecution are not naturally compatible with drug treatment perspectives (Deschenes, Turner, & Greenwood, 1995). However, even with a shift to a therapeutic perspective, the prosecutor still enforces public safety through the drug court. The drug court prosecutor screens new drug-related cases with an eye toward whether each candidate is appropriate for the program and not whether the case is winnable in court. Within the collaborative framework of the court, prosecutor and defense counsel may jointly determine initial eligibility based on mutually developed criteria that have been approved by the entire treatment team. Instead of each side attempting to bolster its case for or against the offender (in a win-lose scenario), the prosecutor and defense attorney approach a case with the defendant’s recovery as the goal (a win-win scenario). Moreover, because drug courts reduce recidivism, the drug court process facilitates and increases the ability of the prosecutor to protect the public from present and future criminal conduct, both drug use and drug-related crime. Drug court involves smart punishment, and also smart prosecuting (Senjo & Leip, 2000). The therapeutic approach taken by drug courts also requires that the prosecutor not file additional charges against the offender when the offender provides a positive drug test or open-court admission of drug possession or use (Finn & Newlyn, 1993b). Because drug courts recognize that addicts have a tendency to relapse, the drug court prosecutor views the offender’s behavior as an expected and normal part of the treatment process; relapse is expected. Yet through the collaborative nature of the drug court process, the prosecutor participates in shaping the response to the dilemma of positive drug tests and other instances of noncompliance. In assisting the court in the smart-punishment-shaping function, the drug court prosecutor can still carry out his or her public safety role by ensuring that each candidate complies with all drug court requirements. Finally, the drug court prosecutor has constant input “regarding the participant’s continued enrollment in the treatment program based on performance in treatment rather than on legal aspects of the case” (Giamenta, 1997). Rather than risking public safety, TJ promotes it. A prosecutor can and does enhance public safety by understanding the nature of addiction and treatment. The prosecutor comes to realize that the therapeuticjurisprudence approach taken by a drug court reflects nothing more than the realization that the court process itself can and does impact the behavior of a defendant (Winick & Wexler, 2003). The drug court concept allows the prosecutor to capitalize on this fact and stop the revolvingdoor scenario that drug offenders play out daily in the present traditional criminal court process.

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Defense Attorney/Defense Counsel/Public Defender

Like the drug court prosecutor and judge, the drug court defense attorney must also put aside a traditional mind-set and engage in the collaborative efforts of the treatment team. During the screening process, the drug court defense counsel reviews the defendant’s criminal history with the prosecutor and evaluates whether individuals meet treatment-program requirements. Defense counsel ensures that prior to entering into the treatment program, the defendant understands the nature of his or her legal rights, the requirements of the program, and the possible legal consequences should the defendant fail to complete the program (Belenko, 1990; Cooper, 1996). In stark contrast to the traditional role of a defense counsel to minimize a client’s exposure to criminal sanctions, the drug court defense attorney may assist the team to ensure that the addicted defendant stays in the treatment program until graduation. Actions by defense counsel may include, after full disclosure to the client, forgoing legal-defense tactics such as motions to suppress evidence, which might delay the process or prevent the defendant from accepting responsibility for his or her drug use. These actions may also include counseling a defendant to disclose continued drug use (relapse) in order to foster honesty and reduce the barriers to effective drug treatment. In accepting the therapeutic concept of the drug court, defense counsel views success as a drug-free client who is less likely to recidivate than the “business as usual” client. Although the defender will still identify cases in which charges should be dropped for lack of probable cause, his or her role in the drug court becomes much more treatment oriented, designed primarily to assist the defendant through the various difficulties that might be experienced along the way. With the consent of the defendant, the drug court jurisprudential goal becomes recovery from addiction and not the exercise of the full panoply of the defendant’s rights. Ancillary Parties: Probation Officers, Treatment Providers, Sponsors, and Mentor

Drug courts connect treatment providers with a portion of our society that may need the most help with addiction yet generally has the least access to that help (Lang, 1997; Taxman, Perdoni, & Harrison, 2007). However, with the theory of therapeutic jurisprudence, treatment providers no longer serve exclusively as the gatekeepers to treatment, as they have been accustomed to doing. Courts will decide who will be sent to treatment and when treatment can be terminated for poor performance. Because drug treatment drives the court, however, treatment providers play an integral role in the drug court process.

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Addiction treatment providers also appear in court on behalf of offenders to provide the drug court judge with important and valuable information upon which to base supervision and disposition decisions. Some drug courts naturally give great weight to the recommendations of the treatment program representative because that person works so closely with the offender. Treatment providers keep the court informed of each participant’s progress so that rewards and sanctions can be provided. The expertise and advice of treatment providers enable the court to use the coercive power of the court in an effective, therapeutic manner. Just their presence in the court as part of the drug court staff represents a significant departure from the traditional court system, in which only the sworn officers of the court had any input in the adjudication process (Cooper & Bartlett, 1996a; Lang, 1997; McColl, 1996; Schiff & Terry, 1997). The Theoretical Dimensions in Perspective As is evident from the above description of the roles of the drug court team, and as noted throughout the analysis above, TJ represents a substantial departure from the traditional criminal-law approach to justice as well as the state’s role in achieving justice for its citizens (Nolan, 2001). The implications of this approach prompt a greater question: What does it mean to criminalize drugs and how should criminals be treated by the court system? We can also ask if the traditional approach is effective or if TJ can play a greater role in other criminal cases besides drug cases. Therapeutic Jurisprudence Compared to Traditional Retributive Justice In the traditional model of retributive justice, an appropriate punishment corresponds to the severity of the crime committed (Vidmar, 2002). In the case of a drug violation, a retributive approach would ask what social rule was violated by the offense (i.e., the belief that illicit drug use is wrong), to what extent the offense was in violation of the social rule (i.e., how egregious was both the amount of use and the type of drug), and what harm was caused (i.e., who was harmed by the drug use). After calculating the extent of the violation, a traditionalist would seek a punishment in equal measure to the harm. Underlying this approach is the idea that the degree of punishment accurately fits the crime. Retributive justice is highly patterned, but it may not help much. Any person committing the same crime under the same circumstances will tend to receive the same punishment. Also, the traditional approach can rely on

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the adversarial process in which lawyers are allied with their clients and the judge is a neutral decisionmaker. The theory of traditional retributive justice does not permit the judge to incorporate emotions in deciding the punishment. In a given case, a person may decide that one value (retribution or procedure) is more important than the other, but generally speaking, both the courts and social sentiment and rules maintain a commitment to retributive justice (Slobogin, 1995). Therapeutic jurisprudence is, of course, an alternative to the traditional retributive model. Instead of emphasizing punishment as the retributive perspective does, therapeutic jurisprudence shifts the focus on justice evaluations to maximizing individuals’ physical and mental health (Hora, 2002). Therapeutic jurisprudence begins with the assumption that law is a therapeutic agent that impacts well-being (Winick & Wexler, 2003). In direct opposition to the objective and predictable vision of justice incorporated into the retributive approach, therapeutic jurisprudence emphasizes the emotional experience and the individual characteristics of each person involved. The question, then, is not what punishment is just but what laws and implementation of laws will enable the offender to be better off, both physically and psychologically, when compared to the situation the offender was in before being brought into the system. It is almost obvious that TJ takes a more constructive approach. In the drug court, this approach manifests in efforts to free the offender from what got the offender into trouble in the first place. Proponents of TJ in drug court believe that addiction is the root cause of the offender’s crime and that if the person were able to recover from addiction, then the person would be able to function productively in society (Butzin, Saum, & Scarpitti, 2002). This view that the end of recovery is the fundamental concern of the court is a different end than seen in the retributive perspective’s emphasis on the violation of a social norm. According to therapeutic jurisprudence, drug use is not a moral violation but “a condition requiring therapeutic remedies” (Hora et al., 1999, cited in Nolan, 2001, p. 134). Drug use is a disease that needs treatment rather than a crime that needs punishment (Nolan, 2001). Although there is punishment in drug court, value is placed on the ends in therapeutic jurisprudence, and the end is recovery and not punishment. Whereas a retributivist would seek balance between the moral violation committed and the punishment administered, the therapeutic drug court aims to balance the person’s addiction and recovery. Because justice in TJ is recast as a measure of how successful the court is in aiding in the offender’s recovery, the court is then justified in using the means necessary to produce this end (Nolan, 2001). The court can justify ostensibly any decision as long as it can connect the purpose of the decision with the aim of recovery. The drug court’s commitment to the ends of recovery removes the careful attention to procedure found in trial courts and allows the judge flexibility.

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Bean (2002) constructively argues that judges neglect the rules of evidence when using urinalysis exam results to make a decision. In a trial court, the prosecution has the burden of proving that proper procedures were used in securing the sample and that the results of the test are scientifically reliable. Drug courts, on the other hand, regularly rely on urinalysis exams and therapists’ reports and require only minimal (if any) burden of proof before incorporating this information as evidence. Furthermore, because it is assumed that a person in the early stages of recovery will deny their addiction and lie about their drug use, the courts often disregard statements made by the defendants on their own behalf (Burns & Peyrot, 2003; Slobogin, 1995). In stark opposition to retributive justice, the therapeutic court is remarkably unbound to implement a variety of interventions over an indeterminate amount of time. Greater Effects of Therapeutic Jurisprudence in the Courtroom

The discussion has emphasized therapeutic jurisprudence’s view of the offender as a person in need of treatment. However, this perspective reaches beyond the offender to consider the well-being of all parties involved in the court process. The goal is not only to improve the life of the offender but also to promote the physical and mental health of the court staff. Thus, the shift from an adversarial court to a collaborative court is a strategic shift to empower the court’s team members to make a real difference in the lives of defendants (Olson et al., 2001). Thus, drug court judges are no longer required to suppress emotional reactions and distance themselves from the offender, but instead are invited to acknowledge personal feelings and invest emotionally in individual defendants (Burns & Peyrot, 2003). One of the ways that the court team affects recovery is by actually caring about each individual offender and wanting to see that person have a better life after recovery. And judges do report that by caring about offenders and having an outlet to express that investment, they find their jobs more rewarding and personally satisfying when compared to trial court (Nolan, 2002b). From a therapeutic-jurisprudence perspective, this affirmation that drug court is a gratifying experience for judges is in line with the goal of improving people’s lives through their contact with the law. Future Research for Scholars of Drug Court and Therapeutic Jurisprudence

The literature has aptly noted many important features in the TJ approach, some controversial and others quite supportive. One, mentioned above,

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concerns the undue, unbounded flexibility of the judge to tailor policies and procedures around offenders without fear of being objected to or having a case go up on appeal. Further, it could be argued that the drug court design contains conflicting aims that are difficult to reconcile. The twin aims of maintaining the legal structure (at least those laws that are deemed to be therapeutically advantageous) and promoting recovery from drug addiction through therapeutic practices result in a dual focus that is both coercive and compassionate (Winick, 2005). The question remains whether a marriage between these two goals is possible. The therapeutic-jurisprudence approach does not reject all laws as problematic. Rather, the aim of this perspective is to first recognize that laws can have both therapeutic and anti-therapeutic effects and then to evaluate particular laws to separate out which laws fall into which category (Hora, 2002). Therapeutic-jurisprudence scholars do not have a problem with legal strictures per se. Therapeutic-jurisprudence theorists attempt to locate this middle ground in which regulation is beneficial but not harmful. For example, laws regulating marriage might be beneficial in the sense that these laws enable a couple to have rights and protections that are distinctive for a pairing as opposed to individuals (i.e., the ability to make end-of-life decisions for a loved one without having a biological relationship to that person). On the other hand, if the laws regulating the dissolution of that relationship are so complex that they are unilaterally prohibitive, then a therapeutic-jurisprudence scholar might argue that these laws force people to stay in marital relationships that are harmful (i.e., abusive or degrading). This scholar then would use social science research to demonstrate that these effects are indeed measurable and harmful. Thus, regulation itself is not problematic; rather, particular laws that produce harmful effects for individuals are the issue (Burns & Peyrot, 2003; Hora, 2002). While affirming that laws are an important component of society, therapeutic-jurisprudence researchers also seek to promote those laws that are advantageous for individuals’ well-being (Hora, 2002). Beyond the law itself, researchers want to explore how the law is carried out and what the potential consequences are (Nolan, 2002a). Therapeutic jurisprudence is not concerned with punishment for a person who does not comply with the law but rather with treatment of the causes for a given violation. Research on prison releases that report high recidivism rates could be used to demonstrate that the prison system is not “working.” If former convicts are more likely to commit crimes following incarceration when compared to the general population, then therapeutic-jurisprudence scholars would want to know what parts of the prison system contribute to a return to a criminal way of life. The researcher would want to know what interventions and social services might be implemented to help improve the life chances of the offender. Indeed, therapeutic-jurisprudence scholars move beyond an

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ideological interest in improving an individual’s quality of life and argue that it is the responsibility of the state to improve well-being (Nolan, 2001). Such a conclusion is logically derived from the position that law itself is the culprit. It is not the responsibility of the community to correct this problem, nor is it the responsibility of the offender to correct her or his own problems. Rather, it is the duty of a just state that regulates people’s lives to do so in a manner that is beneficial for all people. When discussed separately, these two components of upholding the law and state-provided treatment may seem like valid goals. How the two elements can be accomplished simultaneously is less clear to TJ scholars. The state continues to be coercive—to enforce its laws and regulate its citizens—but the state also has an obligation to improve the lives of its citizenry in the exercise of that regulation. The potential conflict between these two positions can be illustrated with a situation that is common in a drug court setting. As a participant in drug court, an offender may be expected to abstain from drug use, to secure regular employment, and to attend Narcotics Anonymous meetings. However, in the early stages, it is also expected an offender in the height of his or her addiction will have difficulty staying clean, finding a job, and attending scheduled meetings. Historically, teams were faced with having to determine at what point noncompliance warranted a legal response (Hora, 2002; Winick, 2005). Recent research on proximal and distal goals reminds us that goals for compliance will likely vary over time. Early in the drug court process, the team should focus on setting proximal goals, or those behaviors that participants can successfully meet, and as a participant progresses in achieving sobriety, the focus should shift to distal, or longer-terms goals such as obtaining employment. This is important for both therapeutic justice and procedural justice concepts (Kaiser & Holtfreter, 2016). Distinguishing between proximal and distal goals can help the court team determine when the participant is making meaningful progress toward behavioral change or when a sanction may be warranted (Marlowe, 2011). Framing responses to noncompliance through a therapeutic lens helps to uphold the principles of TJ, simultaneously invoking traditional legal powers. Additionally, for an offender who has continued to use drugs while the court has known about the usage without imposing any legal consequences, the switch from a compassionate to a coercive stance may be confusing, as if the boundaries between therapy and punitiveness are blurry. Indeed, practically speaking, blurry is an appropriate descriptor. From a therapeutic perspective, a person is able to begin recovering at the moment that she or he acknowledges being addicted and takes responsibility for recovery (McNeece & DiNitto, 1994). Treatment professionals continually encounter individuals who deny their addiction and therefore are unable to start the path to recovery. In a standard treatment environment,

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providers are able to do little to compel the person to view the situation differently. If a person chooses to leave the treatment program, the provider is powerless to prevent it. However, locating the power to begin recovery fully in the hands of the addicted person (and not at all in the hands of the treatment professional) is a result of the belief that successful recovery must be a personal choice (Bristow-Braitman, 1995). In drug court, the treatment profession has leverage. If a person is in denial, the treatment provider (along with the court team) can invoke the power of the court to force the person to stay in the treatment program whether the person believes he or she is addicted (Burns & Peyrot, 2003; Nolan, 2001). Team members report that this additional leverage is valuable to them because it helps them to overcome the limitation in a noncoercive environment that requires self-acknowledgment (Banks & Gottfredson, 2003). This therapeutic and coercive combination of the court is problematic because it undermines one of the central tenets of TJ in drug court. A person’s ability to acknowledge his or her own addiction is important because it is the starting point on the road to recovery. But, in a larger conceptual perspective, self-acknowledgment is important because it is empowering— it enables people to gain some level of control over a situation in which they have been fundamentally powerless (McWhirter, 1991). The belief that a person has control over her or his own life is a primary predictor of both physical and psychological well-being (Mirowsky & Ross, 2003). By allowing an addicted person to make this transition from powerlessness to empowerment, a noncoercive treatment environment promotes wellbeing in multiple dimensions. In the drug court environment, a person who is in denial and is forced to identify as addicted and begin a treatment regimen may eventually make the transition to recovery (Burns & Peyrot, 2003). Therapeutic jurisprudence is not only focused on recovery but instead is interested in the health of the whole person. Thus, a drug court environment that coercively (and successfully) promotes recovery but maintains the person’s powerlessness (and related physical and mental-health benefits of empowerment) can achieve that primary aim of wholeness and well-being. It is an exciting time for therapeutic jurisprudence and procedural justice concepts. As noted by Wexler (2016, p. 372), “this is a dynamic area and requires ongoing attention to developments in psychology, criminology, and social work and to their integration into the legal system.” Conclusion The underlying theoretical foundation for the drug court process originated in the 1980s when Wexler and Winick studied mental-health courts and the procedures used in the application of mental-health law and policy. Their

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theory of therapeutic jurisprudence explains, guides, and tailors the law and policy of the drug court in its processing of drug offenders through a courtmonitored drug-treatment program. Without a doubt, therapeutic jurisprudence represents a substantial departure from the traditional, adversarial model of criminal court decisionmaking. In drug court and other specialized courts such as mental-health courts, TJ transforms the roles of the court’s main actors and compels them to look beyond mere violation of a moral wrong and the appropriate sentence as retribution, and toward the amorphous social conditions that compelled the offender’s wrong in the first place. Therapeutic jurisprudence does not accept that the law is neutral and value-free and seeks to promote wide-ranging well-being for every party involved in the court process, most distinctly, the offender, and is an important response to a nation with the highest prison population in the world. In so doing, TJ represents a profound shift from two hundred or more years of limited punitive, coercive-based state sanctioning to a more progressive and far-reaching series of techniques that are targeted to the social well-being of all parties involved.

4 Ethical and Legal Considerations Steven Leben, David Rottman, and Pamela Casey

In this chapter we discuss the ethical and legal considerations that arise with the drug court model. The early problem-solving courts, starting with the Miami drug court in 1989, provoked a vigorous debate on the status of ethical rules for judges, prosecutors, and defense lawyers. To some, the gap between expectations associated with the drug court model and the applicable ethical duties cannot be bridged: drug courts are based on a nonadversarial, team approach that fatally undercuts the defendant’s due process rights. To others, a compromise can be reached: either ethical rules can be adapted or restated to support the roles required to achieve the positive outcomes promised by the drug court model, or drug court procedures can be modified in ways that respect core ethical and legal principles and still achieve better outcomes. Much has been written on both sides. Arguably, those working in drug courts have become comfortable with their roles and their ability to perform them in an ethical manner; very few appellate opinions involve challenges to drug court procedures. Comments recognizing a changed role for judges in these courts were added to the revised Code of Judicial Conduct approved by the American Bar Association (ABA) in 2007. Yet the debate continues. Major professional organizations and commentators, primarily from the ranks of defense lawyers, continue to take strong, often critical, positions on ethical issues associated with drug courts. The debate over ethics typically proceeds by juxtaposing the drug court model against a pure version of the adversarial process in which each case is vigorously contested. This chapter takes a different approach. It compares the ethical dilemmas posed by what takes place in a drug court to those associated with the practice of plea bargaining, the method of resolution for the overwhelming proportion of cases in America’s criminal courts (Durose & 41

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Langan, 2007). The role of the adversarial process in plea-bargaining courts is often more nominal than real. Police evidence is rarely challenged. Plea agreements take place in the context of shared understandings of what constitutes a specific kind of offense and the appropriate sentence that should be imposed. This comparison to plea agreements still recognizes that each individual defendant’s rights must be respected in each case. Even if—on balance—drug courts achieve better results, they are still in need of improvement if a defendant’s rights are not protected. The chapter discusses typical issues that arise in drug courts and provides suggestions to ensure defendants’ rights are respected while maintaining the key features that make drug courts successful. Distinctive Features of the Drug Court Process Drug courts are different in some key respects from traditional misdemeanor and felony courts. Any discussion of ethical issues in drug courts should consider the key differences described below. First, entering a drug court program is likely to present a defendant with a greater risk of failure than he or she would experience through traditional plea bargaining for a similar offense. The conditions imposed can include staying in treatment, finding employment, or completing a General Equivalency Diploma (GED). Although many of these same requirements may be imposed in a traditional proceeding through a diversion or probation agreement, the monitoring regime imposed by the drug-treatment court is likely to be more rigorous over a more extended period of time. Second, in plea-bargaining courts, the judge’s role is limited because of the nature of the bargaining that takes place. Prosecutors tend to hold the power as the gatekeepers to the system. In problem-solving courts such as drug courts, the range and quality of information available to the judge and the frequency of his or her interaction with defendants makes the judge the most powerful player in the courtroom, central to all case decisions. This is particularly challenging to the way defense attorneys define their role and the ethical obligations they carry. Third, drug courts generate records on defendants that are more extensive than in traditional courts and share that information among a wider set of stakeholders. Fourth, defendants entering the program waive a host of legal rights fundamental to due process. This is especially problematic in post-plea drug courts, in which the drug treatment provided through the court is available only after the defendant has pled guilty or no contest to the charge—and usually has agreed to a stiff sentence if he or she fails in the court-sponsored drug-treatment program.

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Fifth, the decision to enter a drug court is expedited compared to the traditional court process. There is an imperative to get the defendant into treatment as quickly as possible, placing pressure on the defendant and his or her attorney to make a speedy decision. Sixth, drug courts encourage a team approach to making decisions on cases. In some jurisdictions, this can involve the judge communicating with others without the defendant or the defendant’s attorney present. Such conversations—including a judge but excluding one of the parties—are called ex parte communications and usually are not part of an official record.

Ethical Considerations Judges

Judges face some common ethical questions when presiding over a drugtreatment court or another problem-solving court in which the judge oversees the defendant’s treatment. Although each state has its own ethics rules for judges, all of them are based on model conduct codes approved by the American Bar Association. The ABA’s most recent major revision of the model code for judges came in 2007, and this chapter generally considers the rules for judges from that code. The code contains four general “canons” to govern judicial conduct, as described below, along with thirtynine rules that are organized around those general canons (American Bar Association [ABA], 2007). Impartiality

Canon 3 requires that a judge perform his or her duties impartially. Five concerns over impartiality arise in the drug court context. First, in any problemsolving court, the judge may have greater knowledge of the underlying issues (such as addiction and treatment) than the lawyers or the parties. If the judge acts on that knowledge—without letting the parties know—there is a perception that the judge is not impartial. This problem is not new. A judge has always had the ability to take account of commonly accepted social science information by taking judicial notice of it (Monahan & Walker, 2007). To do so, the judge should advise the parties of any special information the judge wants to consider to allow the parties an opportunity to challenge it (Arkfeld, 2007). Second, because of the presentation of information to the judge through team staffing meetings and sometimes directly from treatment personnel, the judge might obtain information ex parte (without the defendant’s participation), contrary to ethics rules. The problem of ex parte contact also is not

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new, but it is a significant one in the drug court context. Rule 2.9(A)(5) provides that except for administrative matters like scheduling a hearing, a judge may consider ex parte communications only “when expressly authorized by law to do so” (ABA, 2007, p. 24). During the process of developing the revised 2007 ABA code, many comments were made that special rules were needed regarding ex parte contacts in problem-solving courts (Gray, 2007). One impetus for such comments is the lack of specific statutory or rule authority for ex parte communications in drug courts or, in many jurisdictions, even for the establishment of drug courts (Arkfeld, 2007). In response, the drafters of the 2007 ABA code added a comment to Rule 2.9: A judge may initiate, permit, or consider ex parte communications expressly authorized by law, such as when serving on therapeutic or problem-solving courts, mental-health courts, or drug courts. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others. (p. 24)

The comment is not a rule, and though it does recognize the existence of drug courts and other problem-solving courts, it does not purport to amend the rule, which provides that ex parte communications may be had only when authorized by law. Thus, in drug courts located in jurisdictions in which no statute or court rule provides for ex parte contacts, the drug court judge is ethically prohibited from having them. Consequently, either the defendant or the defendant’s attorney ordinarily should be present whenever the judge receives information in a meeting setting, and the defendant or the defendant’s attorney should be copied on substantive communications to the judge, such as treatment-status reports. Despite this rule, however, the National Association of Criminal Defense Lawyers (NACDL) has reported that many defense lawyers do not show up for staffing meetings (National Association of Criminal Defense Lawyers [NACDL], 2009). The judge remains in compliance with the ethical rule by making sure that defense counsel is notified of and invited to the staffing meetings and that defense counsel is promptly notified of any substantive information about the client that was discussed (Freeman-Wilson, Tuttle, & Weinstein, 2001). Third, if the judge makes a presumptive decision about the defendant during a staffing meeting while the defendant is in the treatment program, the judge may find it difficult to make an impartial decision when disputed factual matters are presented to the judge. This problem is different only in degree from situations judges face in other contexts. Judges normally are not disqualified based upon information about a case that comes to them through court hearings. A judge may form some opinions about a defendant during the time any criminal case is pending.

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In the drug court context, the judge, prosecutor, defense attorney, treatment provider, and other team members review the defendant’s treatment process quickly before each status hearing. The judge, often with agreement of most or all of the team, may make a tentative decision about how to handle a defendant’s apparent lapse in treatment during the team meeting. Some have contended that this is ethically problematic because the judge is no longer impartial when the hearing is held with the defendant present (Weinstein, 2000–2001). As long as the judge considers whatever the defendant may present at the hearing, there is no problem under the ethics rules regarding ex parte contacts unless the judge gained factual information through ex parte sources and there is a related factual dispute that must be resolved (Arkfeld, 2007). Fourth, some defendants will not successfully complete the treatment program; they will then either be sentenced (in a post-plea drug court) or proceed to have their guilt determined (in a pre-plea court) and, if found guilty, be sentenced. The question is whether the same judge who has terminated a defendant’s participation in drug court can fairly preside over the defendant’s subsequent proceedings. This problem relates to the rules for judicial disqualification. Under Rule 2.11, a judge is required to disqualify himself or herself “in any proceeding in which the judge’s impartiality might reasonably be questioned,” including when the judge “has a personal bias or prejudice concerning a party . . . or personal knowledge of facts that are in dispute in the proceeding” (ABA, 2007, p. 27). As noted earlier, merely acquiring knowledge about the defendant through the court proceeding itself does not require disqualification— knowledge learned through the court proceeding is not personal knowledge of the facts. However, drug court cases raise a more significant issue regarding the appearance of impartiality. Drug courts differ from traditional probation or diversion situations because the judge has a personal and substantial role in supervising the defendant during the treatment program. Arkfeld, a judge sympathetic to problem-solving courts, suggests this may be a problem: The judge who had worked with the defendant throughout the failed treatment process might no longer be in the position to be considered objective and open-minded. This could be analogous to a judge’s participation in a settlement discussion. (Arkfeld, 2007). As Judge Arkfeld explains, a comment to another portion of the judicial-conduct code notes that a judge may sometimes learn information during settlement discussions that could influence the judge’s decision making during trial; in such situations, the code comment suggests that the judge “should consider whether disqualification may be appropriate.” (Arkfeld, 2007, p. 320, citing comment to ABA Rule 2.6)

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Given these concerns, some courts have required that a different judge be appointed to determine whether to revoke a defendant’s probation—thus requiring the defendant to serve the underlying prison or jail sentence— after the defendant has been removed from the drug court program (Gray, 2014; State v. Cleary, 2016). On the other hand, the Tennessee Court of Appeals, citing the comment to Rule 2.9, found no error when the same judge handled both termination from the drug court program and revocation of a suspended sentence (equivalent to probation) where the judge had not received any significant information about the case on an ex parte basis (State v. Watson, 2016, p. 5). Because the ethical standard at issue is the appearance of impartiality, judges should err on the side of caution in making the sentencing decision following a termination from drug court. Research shows that judges often are unable to disregard inadmissible information when making decisions, even though the law presumes their ability to do so (Wistrich, Gutherie, & Rachlinski, 2005). To ensure the appearance of fairness in drug court cases, the Oklahoma Court of Criminal Appeals adopted a rule that applies even earlier in the process: the decision to terminate a defendant’s participation in drug court for repeated violations of drug court rules. In such cases, when the judge has been involved in supervising the defendant, the Oklahoma court concluded that if the defendant asked for disqualification of the judge, that motion should be granted in any case in which the judge had been part of the team supervising the defendant and another judge should be brought in to decide whether to terminate the defendant from the treatment program (Alexander v. State, 2002). Fifth, because of the judge’s enhanced role, which is not part of standard judicial training, some judges may be tempted to go beyond accepted limits, including engaging in personal investigation of factual matters. In many jurisdictions there are no specific statutes or court rules authorizing the establishment of drug courts. Consequently, it is likely that the type of judges who set up and work in drug courts are more willing than other judges to take initiative, to innovate, and to push the limits of the system while trying to attain the positive outcomes that everyone wants. Sometimes, given their authority, judges will take this too far; the National Association of Criminal Defense Lawyers documented some troubling cases. According to that group, one judge candidly admitted that he did things that were “absolutely over the line in the canons of judicial conduct,” including midnight curfew checks on participants and sitting in on individual treatment meetings (NACDL, 2009, p. 27). The judge was correct that his conduct violated the rules. Rule 2.9(C) provides that the judge “shall not investigate facts in a matter independently” (ABA, 2007, p. 25). All judges are required to follow the rules.

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Coercion

Coercion is one of the major complaints defense lawyers lodge against drug court judges. They contend that judges are unduly coercive in getting defendants to agree to waive their rights as part of the process of entering into the drug court treatment program (Kluger et al., 2001–2002; Meekins, 2007; NACDL, 2009). This issue arises in other criminal cases with respect to a judge’s role in encouraging—or coercing—a plea bargain. The role of the judge in plea bargaining generally is as contentious as the judicial role in the drug court context. Klein (2004) provides numerous examples in which trial judges have told defendants that a plea must be accepted that day or the case would go to trial and that the judge would give the maximum sentence if the defendant was convicted. Judges who punish a defendant (e.g., by giving a harsher sentence) for exercising the right to trial violate the defendant’s due process rights and are subject to reversal. Thus, judges engaging in the conduct Klein describes act improperly. The existence of such examples in the traditional plea-bargaining setting only heightens the concerns in the drug court arena in which the judge plays a more central role, including one that makes the judge the central player in supervising the defendant throughout the treatment process. Given the judge’s central role, a defendant might place even greater importance on any statement that the judge might make before the defendant decides whether to accept a plea, whether to enter the treatment program, or whether to waive various rights. This issue is not easily resolved for two reasons. First, the rules that apply are quite generic—judges must be impartial, and they must follow the law. Generic rules are hard to apply to specific, highly variable situations. Second, the defendant wants to have some information about how the judge might view sentencing in a particular case. For this reason, some judges routinely advise attorneys, if they have reached a plea agreement, that the judge is unlikely to follow the plea when sentencing the defendant. Such information is obviously valuable to a defendant. Without it, for example, the defendant might give up all of his or her rights in anticipation of receiving probation without knowing that this judge would never grant probation for the crime charged. Thus, any rule flatly prohibiting judges from providing such information might be harmful to many defendants. Without more specific rules, judges are left to interpret the individual variables in each case, and some may go too far. Judges in problem-solving courts, therefore, should be especially careful to ensure that defendants do not feel coerced into waiving rights or admitting guilt. The National Association of Criminal Defense Lawyers has noted that some courts have established educational procedures to make sure that

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defendants have a clear understanding of the drug court process before being asked to enter and/or waive any rights. Some courts have detailed handbooks for participants and clearly written participation contracts; others require that defendants participate in an orientation process during which they observe drug court proceedings and talk with participants (NACDL, 2009). Methods like these help ensure that participants do not feel that they have been coerced. In general, close adherence to the key concepts of procedural fairness—such as demonstrating respect and empathy toward participants, allowing participants to be heard directly, and fully explaining court processes and rulings—helps to allay feelings of coercion among participants. One study of a mental-health court specifically documented that the participants did not feel coerced in a court that emphasized procedural-fairness concepts (Poythress, Petrila, McGaha, & Boothroyd, 2002), and a study of a community court showed that the use of procedural-fairness principles was the main driver of litigant satisfaction with the court (Lee et al., 2013). Confidentiality

Rule 3.5 provides that a judge may not intentionally disclose or use nonpublic information that was learned while the judge was acting in a judicial capacity (ABA, 2007). This rule clearly precludes the judge from speaking in public about an individual defendant’s circumstances, except as they have already been disclosed in open court. There are two additional limitations of note. First, Rule 2.10 also precludes a judge from making “any public statement that might reasonably be expected to affect the outcome or impair the fairness” of any pending court matter (ABA, 2007, p. 26). Because drug court proceedings remain pending and under court supervision during the treatment process, the judge must refrain from any public comment that might impair fairness. Generally, that means the judge should not comment publicly while a case is pending before the judge. As Rotunda and Dzienkowski (2016) note, this understanding parallels what jurors are routinely told during trial, that is, that they should not discuss the case among themselves or with others while the trial is ongoing. The premise of the rule is, in part, that a person may publicly commit to one position and later be reluctant to change it. Accordingly, compliance with Rule 2.10 generally requires that a judge not comment publicly in any way regarding the judge’s pending cases (Rotunda & Dzienkowski, 2016). Second, much of the information the judge receives regarding drug treatment may be subject to the federal Health Insurance Portability and Accountability Act or other privacy laws. Accordingly, judges should be reluctant to discuss individual cases in public, and disclosures that are made should generally be made with informed consent (Tauber, Weinstein, & Taube, 1999). Even disclosures that are made between team members in the

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drug court should generally be made under the terms of a written agreement (generally called a memorandum of understanding) to make sure that confidential materials are properly treated (National Drug Court Institute, 2011; Tauber et al., 1999). Still, judges may need to provide some information about what takes place in drug court—whether in educating the public or in reporting to a legislative or other body providing funding. Caution is the rule. Indeed, even in the courtroom, the National Drug Court Institute suggests addressing participants only by first names so as not to unnecessarily disclose personal information about them (Freeman-Wilson et al., 2001). Such measures highlight the importance of a cautious approach to any statements made by a judge outside the courtroom about individual cases in drug court. Connections with Community Organizations and Treatment Providers

Drug court judges often enlist community organizations and treatment providers when generating the initial interest in, or in expanding the reach of, a drug court. This is another area in which bright-line rules are hard to find. On the one hand, a judge is ethically allowed to serve on the board of directors of a nonprofit organization. For example, one state has an ethics advisory opinion specifically concluding that a judge may serve on the board of a nonprofit corporation whose purpose is to formulate and implement strategies for the education and prevention of drug and alcohol abuse (Alabama Judicial Inquiry Commission, 1987). On the other hand, at some point, the advocacy of a particular organization may go so far that the judge cannot reasonably appear to be impartial. For example, if a judge serves on the board of a group whose stated position is that anyone who uses illegal drugs should do jail time, defendants would reasonably question the fairness of that judge when deciding between jail time or a treatment option. Another potential for conflict arises when a private organization provides services or assistance to a drug court. A state ethics advisory opinion concluded that funds from a private foundation could be used to assist indigent participants in the drug court. In that situation, however, the opinion concluded that the judge should disqualify himself or herself from hearing any case in which the foundation was a litigant (Arkansas Ethics Committee, 2004). Prosecutors As discussed in the previous chapter on therapeutic jurisprudence, the role of the prosecutor is complex within these types of courts. Although Hora,

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Schma, and Rosenthal (1999) describe the prosecutor’s role in drug court as “a significant departure from the traditional prosecutor’s job as the detached, objective enforcer of the law” (p. 477), Thompson (2002) notes that among the judge, defender, and prosecutor, “drug courts have altered the prosecutor’s role the least” (p. 79). Prosecutors have discretion in all criminal cases. For example, they may choose to charge an offense or to overlook it, agree to amend a charge to a lesser offense as part of a plea agreement, or insist that the defendant plead guilty to the most serious provable charge or go to trial. Within the context of drug court, a prosecutor may conclude that a defendant’s participation in drug court will have long-term benefits for the community. At the same time, the prosecutor is not precluded from seeking to enforce a plea agreement or to move forward with a criminal case if the defendant fails in the treatment process. Some defense attorneys criticize drug courts because prosecutors have a great deal of discretion, but prosecutorial discretion is not unique to drug courts. Prosecutors serve two functions. Although they advocate for the state in seeking convictions, they are also expected to seek justice. Thus, if a prosecutor discovers that the evidence does not support a charge, the prosecutor’s duty is to dismiss it. The American Bar Association (2003) Model Rules for attorneys form the basis for state-adopted ethical rules for lawyers; Rule 3.8 notes the prosecutor’s special duties to refrain from bringing charges the prosecutor knows are not supported by probable cause, to make timely disclosure of materials that might negate the defendant’s guilt, and to disclose new evidence that a convicted defendant did not commit an offense. In a monograph prepared for the National Drug Court Institute (NDCI), Freeman-Wilson, Tuttle, and Weinstein (2001) identified ethical considerations for lawyers practicing in drug courts based on the ABA’s Model Rules and the ABA’s separate Standards for Criminal Justice. Many of the considerations (e.g., achieving and maintaining high standards of professional skills, avoiding unnecessary delay in prosecution activities, timely disclosure of evidence) for drug court prosecutors are the same as those for prosecutors practicing in traditional court settings. A later judicial benchbook prepared by the National Drug Court Institute also explores the ethical issues judges face when handling a drug court docket (National Drug Court Institute, 2011). Our summary does not repeat all of the issues covered in those reviews; we highlight two ethical issues that are particularly relevant in the drug court context: discretion in the charging decision and forgoing prosecution for new crimes (Weinstein, 2000–2001). Hora and Stalcup (2008) describe the prosecutor as the drug court’s gatekeeper. Although drug court eligibility criteria may have been developed jointly by the court’s stakeholders, the prosecutor decides which defendants meet the criteria. For example, a particular drug court may be

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limited to felony cases or to misdemeanor cases, and the prosecutor may have discretion to choose either charge. Critics of drug courts express concern that prosecutors overcharge some defendants either to (1) exclude a defendant who might otherwise be eligible for drug court, or (2) include a defendant who might otherwise not have been prosecuted (Freeman-Wilson et al., 2001; Hora & Stalcup, 2008; Nolan, 2003; Weinstein, 2000–2001). That some defendants might be excluded from the program because prosecutors choose not to bring certain charges is consistent with traditional views about the discretion given to prosecutors. Standard 3-4.4 of the ABA Standards for Criminal Justice, as adopted in 2015, documents this discretion, indicating “the prosecutor is not obliged” to present all charges which might be supported by the evidence. The prosecutor may in some circumstances and for good cause consistent with the public interest decline to prosecute, notwithstanding that sufficient evidence may exist which would support a conviction (ABA, 2015). The concern is that the prosecutor may needlessly restrict some defendants from participating in drug court based on ideological or political reasons rather than on more objective criteria regarding the defendant’s criminal history and likelihood of success in the program. That some defendants might be included in the program because of the prosecutor’s discretionary call raises different concerns, including the possibility that the prosecutor is using the drug court alternative because evidence against the defendant is weak and would not hold up in the traditional court process. ABA Model Rule 3.8 requires the prosecutor to have probable cause before charging an individual with a crime. As long as that standard has been met, the prosecutor may bring a charge, even though the evidence is weak. Although critics of drug courts may be concerned that prosecutors sometimes use their discretion to choose who will and will not be eligible for drug court, the adversarial system and the ethics rules governing prosecutors provide considerable prosecutorial discretion in making those decisions. Once the defendant is in the drug court program, a second issue arises when the defendant suffers a relapse and uses illegal drugs or engages in other illegal behavior. The drug court team understands that relapse is part of the recovery process and that information about the defendant’s noncompliance will be shared with all team members, including the prosecutor. Part of the drug court model involves the prosecutor’s agreement not to use the defendant’s admission of drug use as a basis for filing additional charges (National Association of Drug Court Professionals, 1997). Traditionally, prosecutors are not supposed to agree to overlook future criminal activity; Standard 3-3.1 of the 1993 edition of the ABA Standards for Criminal Justice provided that a prosecutor should withhold from promising not to prosecute future criminal activity. That provision is not contained in the 2015 version of the standards, perhaps reflecting the special situations that may arise in a drug court, a mental-health court, or some

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other problem-solving court where a defendant goes through treatment— and often relapses—on the road to potential recovery. But a difficult problem remains for the prosecutor. No one would suggest that a prosecutor agree in advance to overlook all criminal conduct, but overlooking some criminal conduct (illegal drug use) seems essential to the drug court model. Defendants are unlikely to admit to violations if they think the prosecutor will use the information against them, either immediately or if they are eventually terminated from the program. Freeman-Wilson and colleagues (2001) and Weinstein (2000–2001) distinguish between promising not to use information revealed during the course of the drug court program and promising not to prosecute for future crimes. Weinstein explains the rationale, referring back to Standard 3-3.1: Under this guideline [Standard 3-3.1], then, prosecutors should not make open-ended promises of leniency to defense counsel and their clients. Nonetheless, the standard does not prohibit prosecutors from giving their assurances to drug court offenders that information obtained in drug court proceedings will not be used against them. Because the crux of drug court is trust . . . such assurances are acceptable if they do not grant dispensation for future crimes but merely restrict the use of certain information in prosecuting those crimes. After all, prosecutors in the traditional setting exercise ordinary prosecutorial discretion when deciding whether or not to bring charges against an arrestee. (p. 28)

Drug court proponents offer strategies to help address these ethical issues. With regard to charging discretion, Weinstein (2000–2001) recommends developing written policies for identifying defendants who are appropriate for drug court. This is in keeping with Standard 3-4.2 of the ABA Standards for Criminal Justice (2015), which advises that prosecutors develop a handbook of policies and procedures to guide prosecutorial decisions and functions. Freeman-Wilson and colleagues (2001) suggest that the handbook include eligibility requirements, a schedule of sanctions and incentives and the criteria under which each would apply, criteria for graduation or dismissal from the drug court program, confidentiality, and restrictions on the use of information learned during the drug court process (p. 25). Tauber and colleagues (1999) recommend that each drug court have a memorandum of understanding covering these sorts of issues, along with descriptions of the roles and responsibilities of all parties (e.g., court, defense, prosecution, treatment providers) involved in the drug court. In such a memorandum, the prosecutor generally agrees not to use information obtained in the drug court to prosecute the participant. Tauber and his colleagues identify child neglect or abuse offenses and crimes committed at the treatment center or against treatment personnel as exceptions to the prosecutor’s agreement. Having these provisions clearly spelled out in a memorandum of understanding is certainly a preferred practice.

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Defense Lawyers Public defenders and private defense attorneys as individuals and as professional associations include some of the loudest and most persistent critics of drug courts, questioning whether their role in a drug court allows them to meet ethical obligations to their clients. Critics and skeptics point to distinctive features of the drug court model that change the defender’s role in significant ways. A drug court, for example, is designed to get defendants out of the legal process and into treatment programs quickly. This cuts against the ability of a defender to do the fact-finding necessary to challenge improper police evidence. Once a defendant is undergoing treatment under court supervision, the defense attorney is expected to become a member of a team that includes social workers, treatment providers, and the judge, abandoning their adversarial stance on behalf of the client. Defenders instead participate in reaching a collective decision about their client that can have far-reaching consequences for their client’s well-being. Widely divergent views about drug-treatment courts and other problem-solving courts can be found within the defense bar itself. The vast majority of public defenders responding to one survey said that drug courts were beneficial to their clients (Kluger et al., 2001–2002). And the chief public defender in Brooklyn, New York, reported that although public defenders there were initially skeptical, they “decided to take a leap of faith in favor of this new court” and “were genuinely pleased to see our clients getting what they deserved—treatment rather than prison” (Schreibersdorf, 2007, p. 405). The National Legal Aid and Defender Association and American Council of Chief Defenders staked out a compromise position by contributing “ten tenets” that can guide a defender to effective representation in the drug court context (National Legal Aid and Defender Association, 2004). But others who have worked on the defense side say that defense lawyers “are frustrated with the realities” that are not squarely addressed in such “sanitized and theoretical discussions” in academic literature (Meekins, 2007, p. 76). This negative view of the potential for effective defense advocacy in drug court settings was endorsed in 2009 by the National Association of Criminal Defense Lawyers, which concluded that “in many ways throughout the different stages of the proceedings, the prevailing drug court model contravenes ethical obligations of the ABA Model Rule of Professional Conduct” (2009, p. 30). The National Drug Court Institute, which supports and promotes drug courts, has argued that some of these criticisms are based on caricatures, not valid arguments. In a review of ethics issues, the NDCI contended that defense attorneys in drug courts are neither zealous defense advocates for

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whom “nothing is spared to achieve victory for a client” nor the team player who “regularly endorses sanctions” against the defendant for violating drug court rules (Freeman-Wilson et al., 2001, pp. 20–21). These authors argue that some of the perceived problems can be solved without serious difficulty. It should be noted, however, that some of the solutions the NDCI report recommended are seen as impractical. For example, the NDCI argued that “it is quite simple for attorneys to reconcile” the competing demand for sufficient investigation to evaluate the client’s defenses and the court’s early deadline for drug court enrollment. If counsel cannot get sufficient information within the time limit, “the attorney should try to arrange for conditional enrollment” in the treatment program (Freeman-Wilson et al., 2001, p. 32). But as Meekins (2007) noted, many drug courts do not have a conditional-enrollment mechanism, and the very notion of conditional enrollment is at odds with a basic concept of the drug court treatment program—that the defendant recognize a substance abuse problem and commit to treatment and behavior modification. It is not possible here to reconcile these different perspectives or to state that one point of view is correct. In the review of ethical issues that follows, it will be noted that the criticisms raised often also apply to traditional criminal proceedings where attorneys resolve most cases through plea bargain; but the need for a quick decision on plea offers in some drugtreatment courts and the ongoing nature of representation throughout the treatment process in these courts may well make these issues more apparent, more frequent, and more intense in the drug court context. Competence and Adequacy of Representation

The first rule found in the ABA’s Model Rules of Professional Conduct for attorneys requires competent representation. As Rule 1.1 explains, this means that the attorney must have the legal knowledge and skill required for the representation and must also exercise the “thoroughness and preparation reasonably necessary for the representation.” In a criminal case, some decisions—like whether to plead guilty to a crime or enter into a drug-treatment program—are exclusively up to the client to make, but a competent attorney must provide the background information the client needs to make those decisions. This highlights another basic ethics rule for attorneys. Rule 1.4 on communication requires that the attorney “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation” (ABA, 2007, p. 49). These rules present a dilemma for defense lawyers in a drug-treatment court that tries to get defendants to make a quick decision on whether to enter the court’s treatment program. And that pressure is especially intense

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if it is a post-plea treatment court, meaning that the defendant must plead guilty to the underlying drug offense to enter the court’s treatment program. An attorney who meets Rule 1.1’s requirement of thoroughness and preparation clearly must do something to investigate the possible defenses the client might have to the criminal charge, but the attorney may not be able to check out everything that ordinarily might be looked into given the time constraints. Under Rule 1.4, the attorney would at least need to explain what had—and had not—been done to investigate matters, as well as what the potential risks and benefits were to the defendant from doing what was required to enter the drug-treatment program. But it is certainly possible that a defense attorney would need to do more to investigate the case before plea than could reasonably be done in courts that expect a quick plea if the defendant wants to enter the court’s treatment program. The NACDL (2009, p. 31) argues that an attorney “must fully investigate the case” before explaining the options to the client. If so, the drug court must adjust so that defense attorneys have the time needed to do their jobs. The NACDL would accommodate this need by having all drug courts provide treatment before a plea is entered; if the defendant fails the treatment program, he or she would still have all of the traditional rights (presumption of innocence, trial by jury, etc.) available (2009). The drug court world, however, is moving in the opposite direction. A growing proportion of drug courts have become post-plea courts, including the second oldest, located in Multnomah County (Portland), Oregon, which began as a pre-plea court and in 2000 became a completely post-plea court (Finigan, Carey, & Cox, 2007). At present, no appellate-court opinions address how much time must be provided for investigation before entry of a plea in the drug court context, leaving defense attorneys with little guidance on how to address this important aspect in the prevalent world of postplea drug courts. Dual Role vs. Adversarial Model

Drug court critics in the defender community emphasize the tension between an attorney’s traditional role in an adversarial system of criminal justice and the role sought for attorneys by drug courts—one in which the attorney seeks to serve both the client’s interest in that case and the client’s long-term best interest of overcoming substance abuse and the criminal problems associated with it. In drug courts, defense counsel as a team member seeks to help a defendant achieve the court’s treatment goals. However, the drug court team’s goals and the short-term interest of the defendant—which may be strongly expressed by the defendant to defense counsel—may diverge. A defendant facing jail time as a sanction

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for violating program rules might not share the team’s goal of promoting compliance with the treatment plan. Also, in some cases, treatment providers may give information at team meetings that is not to be shared with the defendant so as not to disrupt the therapeutic relationship. These situations present difficulties for defense counsel (Kluger et al., 2001– 2002; Quinn, 2000–2001). Simon (2003) has suggested that some of the tension between these roles may relate to the very nature of a problem-solving court, which essentially operates on an experimentalist design. Such a court tries to decide things like what sanctions will be effective in achieving treatment success based on objective data. Simon argues that the tension between the adversarial role of counsel and effective representation in drug court is lessened if defense attorneys recognize that they can effectively advocate for individual clients in this setting based on social science data: Defenders wonder how the lawyer can respect the premises of the adversary system and still be a “team member.” The answer depends on how we understand the adversary system. If we take seriously those conceptions of the adversary system that see it as a mechanism for combating prejudice and self-validating preconception through a division of labor designed to ensure that all perspectives are considered, then the adversary system fits well within experimentalism. On the other hand, if the adversary system means treating as a “fundamental value” the ability to conceal, obscure, or distort evidence when it is in the client’s interest to do so, the adversary system has no place in the experimentalist model. (pp. 1600–1601)

Simon acknowledges that courts may interpret the defendant’s rights to include those that he finds inconsistent with an experimentalist model. In such a situation, Simon notes a defendant can waive those rights on entering drug court. Conflict of Interest

Attorneys must avoid conflicts of interest, which under ABA Model Rule 1.7 includes situations in which there’s a “significant risk that the representation” of the defendant “will be materially limited by the lawyer’s responsibilities” to someone else or “by a personal interest of the lawyer” (ABA, 2007, p. 107). Some have suggested that the lawyer’s personal financial interest may conflict with client interests in problem-solving courts in which the court appoints private attorneys to represent indigent defendants (either in the absence of, or in addition to, representation by a public defender’s office). If the judge is promoting a team, nonadversarial approach, an attorney may feel that his or her chance to be appointed to future cases might be adversely impacted by asking for evidentiary hear-

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ings or otherwise firmly asserting the defendant’s rights (Klein, 2004; Meekins, 2007). Ongoing Nature of Representation

The very nature of drug courts places an additional burden on defense attorneys. These courts are designed to have the judge front and center in supervising the treatment program; thus the court case remains pending and before the judge throughout treatment, and there are frequent hearings. In a more typical criminal-court proceeding, the defendant would plead guilty and, if amenable, would then receive drug treatment as a requirement of probation, supervised by a probation officer. In that situation, the criminal case would be over, and the defense attorney would have finished his or her role in the case. In drug court, however, the case remains pending, and the defense attorney has additional hearings to attend and additional advice— requiring adequate information and preparation—to give to the defendant. Given that public defenders are almost always overworked and underfunded, the increase in workload associated with ongoing representation can be significant, and defense attorneys may have difficulty meeting all of the obligations placed upon them. In at least some jurisdictions, it appears that some defense attorneys have resolved this work-overload issue by skipping status hearings and staffing meetings altogether (NACDL, 2009). Because the defendant’s rights, including liberty, are clearly still at issue during the treatment phase, these lawyers are not meeting their ethical duties under Rules 1.1 and 1.4. Indeed, one judge who noted a “disturbing trend” of defense lawyers in problem-solving courts skipping hearings when their clients were doing well called the practice “unacceptable” (Kluger et al., 2001– 2002, p. 1895). And the National Association of Criminal Defense Lawyers noted that some of the most effective advocacy may occur in staffing sessions (NACDL, 2009). Even though defense lawyers in drug court have an ethical duty to do more than sometimes has been done—and certainly to show up when their client’s rights are at stake—it is likely that the failure to fully meet these obligations may largely be due to a real shortage of resources on the defense side. Problem-solving courts are typically set up without allocating any additional resources to the public defender’s office. Unless sufficient resources are provided on the defense side, defense lawyers may have great difficulty in meeting their ethical obligations, and the ability of a problemsolving court to meet its objectives may be limited as well (NACDL, 2009, pp. 35–36). Thus, even if in theory it should be possible for defense lawyers to meet their ethical obligations within the drug court context, in practice that may be difficult to achieve.

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Legal Considerations

Beyond ethical restraints on the actors (judges and attorneys) who work in drug courts, there are some legal issues that are either peculiar to problemsolving courts like drug courts or that play out differently in the problemsolving-court context. These issues include separation of powers (whether the judge ventures into territory reserved for other branches of government), the right to counsel (whether the defense role has been curtailed too much in drug courts given the defendant’s constitutional right to counsel), and informed and voluntary waiver of rights (whether the waivers are truly informed and voluntary). Separation of Powers

Ours is a government of checks and balances, with each branch of government in some sense operating as a check on the others. But the line between what one branch can do and another cannot is not a precise one, leading one constitutional-law treatise to conclude that, at the federal level, “no fruitful rule or test . . . governs decisions relating to separation of powers” (Rotunda & Nowak, 2012, § 3.12[c]). The situation may be even murkier at the state level, where constitutional provisions and interpretations differ among the fifty states (Marks & Cooper, 2003, pp. 186–191). In addition, some drug courts are established by statutes granting specific authority to them, whereas others are established by judges and courts through local rules or the assigning of certain types of drug cases to a specific judge or court. Despite this lack of clarity regarding applicable rules, a credible argument can be made that the drug court judge exercises some legislative functions by creating a program and deciding its policies, some executive functions by supervising program participants in treatment, and some judicial functions by deciding when participants have violated program rules (Hoffman, 2000). The question is whether these combined roles violate any separation-of-powers requirements in the state constitution of the jurisdiction. To date, the authors are aware of only one appellate court whose judges have suggested that a drug court may violate separation-of-powers requirements. In 2002, a single member of the five-member Oklahoma Court of Criminal Appeals took that position (Alexander v. State, 2002). His view was that the Oklahoma Constitution established judges as “independent adjudicators” and that a judge has no power “to create or act as a judicial triumvirate wherein the judge, by performing three distinct functions, legislates the rules, determines the judgment and enforces/supervises the judgment” (pp. 115–116). Later, in 2013, the same judge included a footnote in an opinion he authored for the full court in which he cautioned—though it did not affect the ruling in the case before the court—that drug courts and mental-health courts “run afoul of the separation of powers doctrine” and “jeopardize the protec-

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tion of judicial immunity afforded to judges,” as drug court judges, in his view, are performing duties outside the judicial function (Tate v. State, 2013, p. 281.) Notwithstanding his conclusion, this may be another case in which it is helpful to compare drug court procedures with procedures in regular criminal courts. Regular criminal courts certainly determine the judgment and supervise its execution; in many states, probation officers are an arm of the court and report back to the judges. Drug courts are in many ways an extension of practices that have been implemented before in other contexts, and any broad-based ruling that a drug court violates separation-of-powers principles might have broad consequences. An appellate court would no doubt consider the matter quite carefully before reaching such a conclusion. A broad challenge to drug courts that they lacked jurisdiction to hear cases was rejected in Maryland (Brown v. Maryland, 2009). The defendant had raised several constitutional issues, including separation of powers, but had used them to make an overall challenge to the court’s essential, or subject-matter, jurisdiction. Although that challenge was rejected, Maryland’s highest court noted that challenges may be made on a case-by-case basis (p. 936). Ordinarily, even many constitutional challenges to a court proceeding require that the defendant show that he or she was in some way prejudiced by the alleged defect in the process (Strickland v. Washington, 1984, pp. 692–693), so not every drug court case will offer the chance to raise these issues. Still, with more than 3,000 drug courts in operation, it is likely that these issues will be raised again. If the separation-of-powers objection to drug courts gained a favorable ruling by a state supreme court, the most likely result would be that the drug court judge could not preside over the treatment program in such an involved manner. As noted, though, some judges in traditional criminal proceedings provide fairly close supervision in probation or diversion situations. On balance, it seems unlikely that the separation-of-powers objection will gain traction in the courts. Some problem-solving courts have been created by legislation, others have been created by court rule, substantial funding has been allocated to them, and the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA) (2004) have broadly endorsed problem-solving courts. In fact, the CCJ/COSCA 2014–2015 policy paper sets standards for court coordinators to evaluate the courts and to use validated risk instruments to remove subjectivity. However, this is the one objection that—if successful—could require major revision of the conceptual framework of problem-solving courts. Right to Counsel

Defendants in criminal cases have a constitutional right to an attorney at all “critical stages” of the proceeding (Montejo v. Louisiana, 2009, p. 801).

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The question unique to the drug court context is what constitutes a critical stage of the proceeding while the defendant is in the treatment program but subject to direct judicial oversight. Because of the variation in drug court rules and practices, this issue may arise in some jurisdictions (e.g., where practices have developed in which defense attorneys are not always present when the defendant may encounter the judge) and be unlikely to arise in others (e.g., where defense attorneys are well integrated into all interactions between the judge and a defendant). The New York Court of Appeals, that state’s highest court, found that post-plea hearings in the drug court did not require counsel when the hearing “was not an accusatory proceeding affording defendant an opportunity to explain charges against him or requiring the court to make factual or legal determinations affecting his liberty” (People v. Garcia, 1999, p. 994). Thus, in a case in which the defendant admitted violating the rules of the assigned treatment program and the court was only getting information from the treatment provider about other program options, there was no right to counsel while the judge explored those issues. In the context of criminal cases generally, a probation-revocation hearing is not considered a “critical stage” that triggers the constitutional right to counsel (Gagnon v. Scarpelli, 1973), but state statutes or court rules generally give a defendant the right to counsel in such hearings (Quinn, 2000– 2001). In a post-plea drug court, the defendant likely would have the right to counsel in any hearing to terminate participation in the treatment program because the case would move directly to sentencing, at which the defendant has a right to counsel (Mempa v. Rhay, 1967; People v. Garcia, 1999). In a pre-plea drug court, the defendant arguably might not have a right to counsel in a hearing to determine whether the defendant would be terminated from the treatment program, at least if the defendant had retained all of the rights that a defendant normally has in a criminal case. When counsel is provided but performs below minimum constitutional standards, proceedings will be set aside if the defendant can show prejudice from the attorney’s substandard performance (Strickland v. Washington, 1984, pp. 692–693). When no counsel is provided at a critical stage of the proceedings, prejudice is presumed, and the proceedings will be set aside based solely on the lack of counsel (Mickens v. Taylor, 2002, p. 166). Informed and Voluntary Waiver of Rights

A defendant may waive constitutional rights only if the waiver is sufficiently informed and voluntary (Iowa v. Tovar, 2004; Johnson v. Zerbst, 1938), and a defendant who wishes to enter a plea to participate in a postplea drug court waives several rights, including the right to a jury trial. So if a defendant’s waiver of rights is not sufficiently informed or is coerced,

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the defendant’s constitutional rights are violated, and the waiver of rights is set aside (Johnson v. Zerbst, 1938). Although the Maryland court brushed aside a sweeping challenge to the essential jurisdiction of drug courts, a narrowly based challenge by an individual defendant that he or she was not sufficiently informed to make a valid waiver of rights—or that the procedures in a specific judge’s drug court were sufficiently coercive that the waiver was not voluntary—might have merit. Reisig notes a court in which pleas are generally entered within three days of arrest, saying that he “would not want to be the defense lawyer involved in a three-day rush to a guilty plea” (Reisig, 2002, p. 218). Meekins described a court in which the public defender assigned to the defendant did not get assigned to and meet with the defendant until the very hearing at which the defendant was expected to decide whether to enter the drug-treatment program. In that jurisdiction, a representative of the public defender’s office appeared at the defendant’s first hearing, an arraignment; the permanent assignment of the case was not made until the coming week (Meekins, 2007). Given funding and staffing considerations, it is not unusual for a public defender’s office to have one attorney attend arraignments and then to assign the cases permanently to specific attorneys for each defendant thereafter. In either of these examples, it is easy to imagine that a defendant would have very little information upon which to base a decision whether to plead guilty to the underlying charge. Might a review of the police files show some misconduct or flaw in the state’s case? Would interviews with witnesses show that some of the information in the police files, if they have been obtained, is inaccurate? In addition to the lack of information, the defendant may feel overwhelmed by the process and may or may not be thinking clearly based upon either continued substance usage or withdrawal from it. Individual cases will have many variables, but it is not hard to imagine that some of the waivers of rights made by defendants early in the process might be set aside as insufficiently informed or insufficiently voluntary. Conclusion To hone in on the ethical issues raised by drug courts, we highlighted the degree to which many of the same issues are presented in traditional court forums processing the same types of cases through plea bargaining. In that light, the ethical issues facing judges and attorneys in drug courts, though real, seem less formidable than when compared to a pristine adversarial process. Some have noted that the traditional way of resolving most cases through plea bargaining essentially involves a courtroom work group in which prosecutors and defense attorneys work together to resolve most

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cases (Nardulli, Eisenstein, & Fleming, 1988). That parallels in some ways the role of the drug court team. Nonetheless, there are distinctive aspects of drug courts that raise real ethical concerns. One set of concerns arises from the preeminent role a drug court judge can assume. Judges in drug courts have more information, more sentencing options, and a direct relationship with defendants largely unfiltered by their attorneys. Other concerns arise from the composition of the drug court team, which includes clinical staff and the wider range of personal information on defendants than would surface in a conventional court. Still others stem from the short period of time defendants and their lawyers have to decide whether to agree to drug court. Although there are valid concerns about potential abuses in the drug court process, this chapter identified several checks and balances that can be incorporated to keep drug courts compatible with the ethics rules applicable to judges and attorneys. However, this is not a call for complacency. There are ample grounds for continuing to monitor how specific features of the process might challenge compliance with the rules governing professional conduct. In addition to ethics issues, there are also some legal issues that have not yet been fully explored regarding drug courts. The one legal issue that could undermine the drug court movement generally would be the concern that the judge’s role in these courts exceeds that of a judge and intrudes on the powers of other branches of government. To date, though, there is little to suggest that this conclusion will be reached by the appellate courts overseeing these drug courts. Although other legal issues may well be raised in individual cases, they seem capable of resolution on a case-by-case basis, as is routinely done with similar issues arising out of general criminal courts. Thus, there do not appear to be any legal issues that are likely to remove drug courts from the landscape, though some facets of some courts may need to change in response to legal developments.

5 Juvenile Drug Courts Christopher Sullivan, Lesli Blair, Jennifer Lux, and Carrie Coen Sullivan

This chapter provides a review of juvenile drug courts and their potential for effectiveness. Shortly after its inception, the “drug court movement” extended its reach across the border of the adult criminal justice system. Drug courts have now been implemented widely in juvenile justice systems across the United States. The first juvenile drug court was developed in 1995, and since that time these specialty courts have grown at a rapid rate. Initially, policymakers questioned the need for such initiatives because the juvenile court, and the juvenile justice system more generally, was founded on the ideals of care, treatment, and helping wayward youths. Why, they asked, was a treatment-based specialized court needed if the individualized approach promised by the juvenile court was already present (Sloan & Smykla, 2003)? Sloan and Smykla (2003) explain that such courts arose in response to an increase in the number of drug offenders coming into the juvenile court. These specialty courts also emerged at a time when juvenile justice had come under attack as being nonresponsive to the grave threat posed by juvenile crime (Butts & Mears, 2001). Juvenile drug courts have evolved since their start in 1995, and today they attempt to create a structure for enforcing sanctions and facilitating treatment and rehabilitation programming for an important subgroup of adolescent offenders (Sloan & Smykla, 2003). This chapter considers the existing literature base on juvenile drug courts and reviews the history, development, and current reach of this type of court. We also consider the “problem” at the center of juvenile drug court initiatives and indicate why, if implemented correctly, juvenile drug courts may be valuable in addressing long-term crime-prevention objectives. The chapter also reviews potential pitfalls that may arise in implementation and consider how those might be overcome. The chapter 63

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outlines the key principles and operations of juvenile drug court programs and includes a discussion of the focal points of these initiatives and the roles of key players. After considering the current prevalence and operations of these programs, we then briefly review the state of the evidence around juvenile drug courts and consider some strengths and weaknesses of that literature. This is used as a foundation from which to briefly describe the design and results of a recently completed multisite study of juvenile drug courts. The conclusion of the chapter highlights some of the key lessons that can be drawn from the review and study results, and it also considers some directions for future research on juvenile drug courts. History and Development of Juvenile Drug Courts As in the adult system, juvenile courts saw an influx of cases involving drug offenders during the 1980s and 1990s. It appeared to some that available treatment and rehabilitation services for these youths were lacking. Courts also found that youths who were charged with a drug-related offense tended to be involved in other delinquent behavior (Belenko & Logan, 2003; Cooper, 2002; Nissen & Kraft, 2007). A 2003 report by the National Council of Juvenile and Family Court Judges explains that attempting to deal with these substance-abusing youth in the traditional juvenile court setting was difficult because of treatment waiting lists, disjointed service delivery, a lack of family engagement, and a lack of communication across agencies regarding the nature and extent of treatment for these youths. In short, the system was not adequately prepared to deal with these multiproblem youths, creating a “revolving door” for the subpopulation in need of treatment services and close monitoring. In the mid-1990s, several jurisdictions created separate dockets that focused on juvenile offenders with substance abuse problems. As the years went on, these “special” courts began increasing in number, and today we see them throughout the United States. Between 1995 and 2001, for example, more than 140 juvenile drug courts were established, and more than 125 were being planned (National Council of Juvenile and Family Court Judges, 2003). By 2003, there were 294 juvenile drug courts in forty-six states and the District of Columbia (McKenzie, 2004). By December 2009, juvenile drug courts had extended to all fifty states and the District of Columbia, totaling 476 of these specialty juvenile courts (National Drug Court Institute, 2010). One report suggests that they may have experienced a slight decline in recent years. As of December 2014, 420 juvenile drug courts were in operation in the United States (National Drug Court Resource Center, 2016).

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“Problem-Solving” and Juvenile Drug Courts Although reported levels of adolescent substance use suggest some declines in recent years, a number of key indicators have held steady or increased slightly. For example, in Johnston, O’Malley, Bachman, and Schulenberg’s (2010) “Monitoring the Future Survey,” eighth-, tenth-, and twelfth-grade students reported using some illicit drugs at an increased rate, after a drop over most of the 2000–2007 time period (Johnston et al., 2010). Looking at official reports, juvenile arrest rates for drug-abuse violations have shown declines in recent years; however, 140,000 youths were arrested for such offenses in the most recent year (2012) for which data were available (Puzzanchera, 2014). Among juvenile arrestees more generally, studies have found a high prevalence of substance use (Belenko & Logan, 2003; McClelland, Teplin, & Abram, 2004). The sturdy relationship between drug use and offending suggests that certain youth have risks and associated behavioral patterns that cross multiple problem domains. Those who engage in drug use, for instance, are also likely to be involved in other forms of antisocial behavior such as theft, violence, and risky sexual activity, and there may be subgroups for which there are emergent patterns of serious problem behavior across domains (Bartlett, Holditch-Davis, & Belyea, 2005; Mun, Windle, & Schainker, 2008; Reinke, Herman, Petras, & Ialongo, 2008; Sullivan, Childs, & O’Connell, 2010). Over time, drugs may become intertwined with all aspects of users’ social and psychological circumstances (Hunt, 1997), entrenching them in increasingly deviant lifestyles from which it may prove difficult to break (da Agra, 2002). If not adequately addressed, these behavioral patterns can give rise to sustained drug use and offending that present substantial individual and societal consequences (Cohen & Piquero, 2009; Farrington & Welsh, 2007). Cooper (2009) argues that the justice system is missing an important opportunity to reduce long-term individual, family, and societal costs if it does not effectively address these problems in adolescence. Thus, a “problem-solving” court would seem to be a reasonable fit in taking steps to address the issues presented by a goodsized segment of the young offender population. Drug Courts and the Philosophy of the Juvenile Justice System

The prevalence of juvenile substance use and delinquency—and their level of co-occurrence—suggests the resounding need for an approach to sanctioning and treating juveniles that can effectively address this constellation of problem behaviors. Somewhat distinct from the approach of adult drug courts, juvenile drug courts are explicitly preventive in that they seek to

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foster long-term behavioral change in targeted youth as opposed to simply sanctioning and managing the immediate problem (Cooper, 2002). Clearly, the problems presented by younger offenders, and their potential needs, are likely to be different from those of their adult counterparts. From that standpoint, the operations and potential success of the juvenile drug court have important implications for the overall juvenile court philosophy. When the juvenile court was first developed in 1899, its goal was not to facilitate greater intervention in the lives of adolescent offenders but rather to divert juveniles from the harms inflicted by jails and criminal (adult) courts (Krisberg, 2005; Zimring, 2005). Officials of the juvenile drug court, from the time of its establishment, have tried to keep the best interests of youth at the forefront, maintaining sight of the fact that young offenders should remain in their home environments whenever possible, rather than progressing through the system toward institutional confinement (Bryan, Hiller, & Leukefeld, 2006; Zimring, 2005). In some sense, the operation and philosophy of the juvenile drug court fits well with the classic goals of individualized treatment inherent in the American juvenile justice system. At the same time, it appears that its operations follow some emerging philosophies of juvenile justice that seek to provide reasonable consequences for youthful offenders while offering treatment aimed at preventing later delinquency and criminal behavior (Kurlychek, Torbet, & Bozynski, 1999; Mears, 2002; O’Connor & Treat, 1996). The emergence of juvenile drug courts is part of a broader interest in implementing alternative approaches for processing juvenile offenders that are meant to “do what the original juvenile court was supposed to do—provide individualized and rehabilitative sanctioning” (Mears, 2002, p. 16). It is different from the traditional juvenile court process, however, in that it consists of more intensive substance abuse treatment for adolescent offenders. The juvenile drug court “combines individual adolescent treatment needs with the accountability sought by the juvenile justice system” (Bryan et al., 2006, p. 93). Thus, this specialized court continues to emphasize the juvenile court’s overall philosophy of diversion while also integrating rehabilitative and restorative services, close monitoring, and graduated sanctions (Nissen & Kraft, 2007). Targeted Youth

In juvenile drug court settings, cases are assigned to a docket based on criteria set by local officials (Cooper, 2001). A report published by the Office of Juvenile Justice and Delinquency Prevention (OJJDP) explains that determining the background and characteristics of the youth who will be served by such a specialty court is a necessary first step in establishing an effective operational framework (National Council of Juvenile and Family Court

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Judges, 2003). Juvenile drug courts vary in target population and should vary based on the nature of the local population, the local substance abuse problem, and the resources available to that particular community. It is important for local systems to analyze the juvenile offender population in their area to determine how to best respond to youth of different ages, races, and gender and also precisely define the nature of the drug problem (Belenko & Logan, 2003). Although local populations do vary, the Office of Justice Programs Drug Court Clearinghouse and Technical Assistance Project at American University advises that juvenile drug courts should focus on juveniles with moderate- to high-risk substance abuse problems who are not dangerous to the community (Cooper & Bartlett, 1996b). These tend to be juveniles who have been charged with drug or nonviolent, drug-related offenses. At present, it is not always clear that target populations are optimally selected for juvenile drug courts (Sullivan, Blair, Latessa, & Sullivan, 2016). Key Principles and Practices of Juvenile Drug Courts Although many aspects of the adult drug court carry over to its juvenile counterpart, some modifications are necessary when working with younger offenders. The National Drug Court Institute has outlined sixteen strategies for juvenile drug courts (2010). A review of all sixteen strategies is beyond the scope of the current chapter, though several strategies are particularly relevant to the discussion. These strategies include having (1) a clearly defined target population and established eligibility criteria, (2) developmentally appropriate strategies and services, (3) gender-appropriate services, (4) family engagement, (5) educational linkages, (6) confidentiality, and (7) goal-oriented incentives and sanctions (p. 10). Several of these guidelines parallel the ten strategies that were originally prescribed by NDCI for adult drug courts, but others differ in their usage or are specific to implementation in juvenile justice settings (Cooper, 2002). First, establishing clear eligibility criteria is a key component of both adult and juvenile drug court processes. The substance use leading to eligibility for juveniles may look somewhat different than that of adults admitted to drug court, however. Juveniles who use illegal substances are often in an experimental phase of use where long-term patterns have not yet developed (van Wormer & Lutze, 2010). Because of the short-term nature of their use, few juveniles can be classified as chemically dependent. Moreover, charges against juveniles in drug court may not be explicitly related to drug use (Cooper, 2002). Therefore, admittance to juvenile drug court is often based on any identified substance use by a juvenile offender, potentially casting a wider net relative to an adult drug court.

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Second, availability of developmentally appropriate services is essential in the juvenile drug court process. Juveniles are still developing, which gives them a different orientation to risk-taking behavior than adults (Scott & Steinberg, 2008; van Wormer & Lutze, 2010). Consequently, cognitive and emotional factors must be considered in the treatment and sanctioning process. Differences in how juveniles are situated developmentally might also signal different root causes for their substance use and offending behavior, compared to adults. For example, programs for juveniles must pay particular attention to the negative influence of peers as research indicates that adolescents tend to be influenced by the individuals around them (Belenko & Dembo, 2003; Sloan & Smykla, 2003). Court officials and treatment providers must also be sensitive to these differences, and youth must be taught prosocial skills so that they might better deal with their present and future circumstances in a way that is consonant with positive development. Third, the need for gender-appropriate approaches is also particularly important in the juvenile drug court. More specifically, boys may differ from girls in the way they experience adolescence. Girls, for example, tend to experience more co-occurring mental-health and substance abuse problems compared to boys. Gender-specific factors such as these may need to be taken into consideration when youths are processed in drug court, and subsequently, programs for young women should be responsive to these issues (Belenko & Dembo, 2003). Fourth, family and school play an integral role in the lives of juveniles. As a result, these institutions should take an active part in the juvenile drug court process as the continued success of the youth after drug court completion will likely depend on their support and involvement. In particular, the potential gains from the juvenile drug court process stand to increase if the family is included. A study by Henggeler and colleagues (2006), for example, considers the role of Multisystemic Therapy (MST) in amplifying the effects of juvenile drug court participation. Similarly, Dakof and colleagues (2015) investigated the effect of family-based treatment—Multidimensional Family Therapy (MDFT)—in comparison to group curriculumbased substance abuse treatment. The results revealed that although both groups saw reduced levels of delinquency, externalizing symptoms, and substance use during the drug court phase, there were no statistically significant differences between them. There were, however, significant differences between the groups during the follow-up phase. Here, MDFT youths saw significantly better outcomes than those in the control group on selfreported delinquency and externalizing symptoms. In cases where the family holds antisocial values and/or refuses participation, the juvenile might be taught prosocial skills to more effectively navigate their environment. Still, it is important that the potential challenges posed by the social environment are considered in the drug court process with juveniles. Involve-

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ment in the juvenile justice system may also affect delinquent youths’ success in school, which can confound preexisting academic challenges (Belenko & Dembo, 2003). There is little research that formally considers school-related outcomes in conjunction with drug court (or academics as a mediator), but it is likely that active participation in school will also increase the likelihood of prosocial outcomes, as school is known to be a criminogenic need (Andrews & Bonta, 1994). Fifth, confidentiality is imperative when minors are involved with the drug court process, as these youth may have stronger “labeling” concerns than would be present in an adult setting. Unfortunately, this can be a daunting task in the drug court model, as it typically involves community treatment providers working in partnership with justice agencies. Despite the strong need for information sharing, confidentiality standards must be set by the juvenile drug court when selecting treatment agencies to which they will refer participants (Cooper, 2002). Given that the risks and needs of these youth will likely cross multiple areas, it is essential that the agencies involved can share information while also maintaining appropriate privacy safeguards. Finally, relative to adult drug courts, different sanctions and incentives may be emphasized in the juvenile drug court model. Typical sanctions for noncompliance used in the adult system, such as jail time, may be counterproductive with the juvenile population. An example of a more effective sanction for a juvenile’s noncompliance is an earlier curfew or house arrest. On the other side, incentives for compliance and achievements are particularly important for juveniles. Many delinquent youth come from antisocial environments where they do not receive regular recognition for their positive accomplishments (Cooper, 2002). The use of incentives in the juvenile drug court model seems to be important in the process and may counteract some other possible deleterious effects (Long & Sullivan, 2016). Structure and Process of the Juvenile Drug Court These key principles provide the foundation for juvenile drug court operations and establish some contrasts with normal court processing. Sloan and Smykla (2003) found that most juvenile drug courts consist of four phases that amount to a “step down” approach. Juveniles move through the phases by meeting predetermined goals. In the initial phase, juveniles are assessed on risks and needs, which dictate the nature of their treatment and rigor of the supervisory process. That phase is the most intensive, with the highest level of supervision and the highest dosage or amount of treatment. Once the juvenile meets or makes progress on his or her associated goals, he or she moves into a less demanding phase where the intensity of supervision

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and/or treatment decreases. Each subsequent phase is triggered by the youth meeting court and/or personal goals of the previous one, and each successive phase is less rigorous than the preceding one. The juvenile may be moved down (i.e., back) in phases at the discretion of the team that oversees his or her case due to noncompliance, relapse, or other violations. Repeated violations may warrant terminating the drug court process, returning the juvenile to more traditional juvenile justice methods (e.g., intensive probation supervision, referral to secure residential facility). Variation in Juvenile Drug Court Processes Although the NDCI has outlined strategies for juvenile drug courts, implementation of the model varies widely. Using a typology of adult drug courts developed by Goldkamp in 1999, Sloan and Smykla (2003) found several inconsistencies in juvenile drug court systems, including differences in admittance criteria, the structure and content of treatment, the use of sanctions and incentives, and the number of treatment agency referrals. In adult drug courts, a drug-related charge is typically necessary for admittance. However, some juvenile drug courts have been found to admit offenders whose charges are not drug-related (e.g., theft, truancy) but have engaged in some substance use (Sloan & Smykla, 2003). Of larger concern is that substance use is often a necessary component to admittance, but the degree of such use and associated problems can vary. This could be problematic if juveniles are placed in intensive treatment services that they do not need. Although there is some variety in the length of the juvenile drug court process, the duration for most jurisdictions is between twelve and twentyfour months. Graduation requirements vary considerably, and some are not directly related to substance use or recidivism. In Sloan and Smykla’s (2003) review, sobriety, completion of treatment requirements, and earning a high school diploma were the most frequently cited “graduation” requirements. As noted above, most juvenile drug courts “step-down” supervision and treatment levels as youth make progress, and some provide aftercare upon graduation. Although juvenile drug courts naturally use sanctions and incentives, they tend to vary in what they use and how they use them. “Public recognition” is a commonly used incentive, but most juvenile drug courts tend to vary levels of supervision and treatment as the main vehicle for positive reinforcement (Sloan & Smykla, 2003). Juvenile drug courts also vary in the number and types of treatment programs to which they refer clients. In keeping with the strategies of developmentally and gender-appropriate services, juvenile drug court systems should have referral options that cater to a variety of specific needs. However, Sloan and Smykla (2003) found that

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54 percent of the juvenile drug courts in their study only used one treatment agency. This is problematic if that agency lacks the ability to comprehensively treat a variety of risks and needs areas in a developmentally appropriate fashion to reduce recidivism and promote prosocial outcomes. Roles of Juvenile Drug Court Personnel As in adult drug courts, the nature of the relationship between the various actors in the juvenile drug court system is more collaborative than in traditional adversarial courtroom relationships. The judge, lawyers, probation officer, treatment program coordinators and staff, and the youth and their family all aim to work together toward a common goal: guiding the juvenile into a drug- and crime-free lifestyle. Although juvenile court processes are typically less adversarial than those in an adult courtroom, the judge plays an even more active part in the juvenile drug court. The juvenile is brought before the judge as often as once per week, making the judge’s function much more hands-on than in a usual caseload. During these hearings, the juvenile drug court judge reviews the juvenile’s progress in treatment and compliance with court conditions and then provides incentives, encouragement, and/or sanctions accordingly (Cooper, 2001). If a juvenile is doing well, for example, the judge may extend his or her curfew an extra hour. Conversely, the judge may set the juvenile’s curfew to an earlier hour as a sanction for noncompliance. The juvenile drug court probation officer is also more actively involved. This interaction includes meeting with the juveniles more regularly and, in addition to typical compliance checks, helping them overcome potential barriers to success much in the way a case manager would. The probation officer also serves as an advocate for involvement of the family and may meet with both family members and the youth. Treatment providers are a crucial component of the drug court model as well. They work with justice officials to establish benchmarks for advancement through the drug court process and monitor youth and share information associated with program goals (Cooper, 2001; van Wormer & Lutze, 2010). Research on Juvenile Drug Court Effectiveness Although this can still be viewed as an immature area of research, a number of studies have looked at the efficacy of juvenile drug courts, providing some useful information regarding potential effects. Most of these studies have considered recidivism as their outcome measure. Belenko (2001) included seven juvenile drug courts in his early review of the evidence for effectiveness. The availability of recidivism information was

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generally limited and included only one study with a comparison group (Summit County, Ohio). The observed rates of recidivism during program participation were fairly low for juvenile drug court participants (< 25 percent) in those studies. The Summit County study had a very small sample of cases with recidivism data (n = 27), but the results appeared to favor the experimental drug court group in terms of volume of subsequent offending. In a meta-analysis of drug courts, Shaffer (2006) found smaller overall effects for juvenile drug courts as compared to adult drug courts. Specifically, her analysis of twenty-one studies, comprising nearly 3,500 youth total, yielded a small effect size of .05. Many of the comparative effects that were analyzed were drawn from technical reports produced by state or locally funded evaluation studies and only some included optimal contrasts or statistical controls. Wilson, Mitchell, and MacKenzie (2006), who identified only six studies as meeting their eligibility criteria, reached similar conclusions with respect to the comparison of effects for juvenile and adult drug courts. The pooled effect size for juvenile drug courts was reasonably sized, with an odds ratio of 1.44 (greater likelihood of recidivism for comparison cases) but did not reach statistical significance. The effect for the adult drug court was comparably stronger and statistically significant. Unfortunately, the limited volume of evaluation studies on juvenile drug courts and their scope in terms of measurement of prospective moderators makes it difficult, even with global assessments of the literature such as these, to get a solid sense of why such differences might emerge. Several studies do offer further insight into the overall conclusions emerging from these reviews. A study by Latessa, Shaffer, and Lowenkamp (2002) used a comparison group of youth who were referred to drug courts but did not participate and, consequently, were placed on standard probation. They found that roughly 75 percent of comparison-group youth were rearrested, as opposed to 56 percent of youth who went through the juvenile drug court process. Others have reached similar conclusions when comparing youth engaged in the drug court process with those who receive “treatment as usual” processing, sanctions, and services (e.g., Rodriguez & Webb, 2004; Thompson, 2002). In looking at recidivism, Thompson (2002) found a particularly wide gap between drug court youth and those on standard probation supervision (16 percent and 57 percent, respectively). Henggeler and colleagues (2006) found that juveniles involved in a drug court program scored significantly lower on self-reported delinquency and substance use when assessed twelve months after treatment. The effects were particularly pronounced when drug court was coupled with MST programming. The authors also report, however, that these positive effects were no longer seen when looking at outcomes through official records. They partly attribute this to a potential surveillance effect from the drug court.

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Some studies have found comparable or worse outcomes for youth involved in drug courts than those who were processed in a more typical fashion. For example, Anspach, Ferguson, and Phillips (2003) compared drug court participants with probationers and failed to find significant differences between the groups in terms of their recidivism levels. Perhaps following a similar pattern as the Henggeler and colleagues (2006) study, this negative conclusion was tempered somewhat when those who actually received treatment during the drug court experience were broken out from the rest of the sample. Sloan, Smykla, and Rush (2004) found parity between drug court cases and youth who received treatment as usual, but these authors came away with a generally positive conclusion because drug court youth tended to be a riskier group in their study. Hartmann and Rhineberger (2003) found that drug court had a negative impact on participants, observing a 13-percentage-point difference in the prevalence of rearrest for comparison and drug court youth (23 percent and 36 percent, respectively). Overall, there is some preliminary evidence that these initiatives may be successful under certain conditions, but the literature on juvenile drug courts has some key limitations that preclude an authoritative answer to the question of whether drug courts work as a solution to the problem of juvenile offenders with drug issues. Although increasing, the still-limited number of evaluations presents a fundamental problem in this body of literature. Unfortunately, the quality of research designs is not optimal, either. A number of questions have yet to be tackled in a fashion that provides a sense of the internal, external, and measurement validity surrounding evidence on juvenile drug court outcomes and processes. In terms of measurement, recidivism appears to be operationalized primarily through official measures, which may be problematic in cases where youth receive varied degrees of monitoring during the follow-up period. Furthermore, given that the programs are inherently process driven, the lack of ongoing measures of change in offender drug use and delinquency is problematic in understanding how the drug court works to reduce recidivism or drug use. The general lack of process measures also creates problems in terms of fully contextualizing the array of findings observed in the literature and offering clear attribution regarding the effects of the court process and treatment components. A Multisite Study of Juvenile Drug Court Processes and Outcomes The brief review presented above suggests the straightforward, but unsatisfying, conclusion that some drug courts seem to work but others do not, which likely explains the relatively modest or even equivocal effects observed in broader synthesis of the evidence. The difficulty in discerning

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the former from the latter has been referred to as the “black box” of drug court processes (Goldkamp, 2000; Harrell, Cavanaugh, & Roman, 2000; Peters & Murrin, 2000). It is imperative for researchers to couple the mixed results and limitations from previous studies with the findings regarding the prevalence of substance use issues among youthful offenders, the number of juvenile drug courts now in operation, and their continued proliferation. This analysis would help future research identify the characteristics that distinguish successful and unsuccessful juvenile drug court models. Still, the level of variability in a number of key dimensions of juvenile drug court populations and processes gives a sense that despite a shared core idea, the landscape of these programs as actually implemented is quite heterogeneous (Sloan & Smykla, 2003), presenting difficulties in taking stock of their effectiveness on a broader scale. With that in mind, in 2007, OJJDP awarded funding to the Center for Criminal Justice Research (CCJR) at the University of Cincinnati for a study entitled Outcome and Process Evaluation of Juvenile Drug Courts. The intent of this project was to further inform the field concerning the overall effectiveness of juvenile drug courts, but an additional priority of the study was to identify the elements of successful juvenile drug courts by examining their processes in more depth. The outcome evaluation compared results for drug court participants with a matched group of youth on traditional probation caseloads. The process component examined how closely the court and referral agencies were adhering to effective practices. Information from the two were linked together to identify which components of drug courts resulted in the greatest reductions in recidivism, allowing a view inside the “black box” (see Latessa, Sullivan, Blair, Sullivan, & Smith, 2013, for more details). The study involved nine juvenile drug courts nationwide. The selected drug courts encompassed multiple regions of the country, including the Northeast Atlantic Coast, the Midwest, the Pacific Northwest, and Northern and Southern California. The courts varied in the size and nature of the localities they serve: three of the courts were in large sites ranging in size from 1 to 3 million persons; four of the courts were located in counties with 350,000 to 475,000 persons; one court was located in a county with approximately 175,000 residents; and the last court was in a small county with a population of approximately 70,000. These courts represented urban, suburban, and rural areas, and one small state. Two of the drug courts served approximately sixty youth per year; another two processed roughly fifty juveniles; two served between thirty and fifty youth per year, and the remaining three courts served fewer than thirty youth per year. The stage at which juvenile offenders were brought into and processed in these courts also varied across sites. For example, one-third of the courts used a predispositional model, whereas the others were either post-dispositional courts or followed a mixed model.

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In the outcome evaluation, drug court youth at each of the nine sites were matched with a youth on traditional probation based on gender, race, baseline risk level, and substance abuse need level. Data collected for the outcome evaluation included variables such as current offense, criminal history, risk and needs assessment, education, family, employment, substance abuse, mental health, drug tests, violations, incentives, treatment referrals, motivation level, satisfaction level, and nature of case closure. Official recidivism data, comprising new arrests and adjudications (number, dates, and type of charges), were collected from individual sites at the end of the study. Participants were split evenly among the drug court and comparison groups, for a total sample size of 1,372. Of the youth enrolled in the study, 58 percent were white, 8 percent were black, and 25 percent were Hispanic. Three of the nine sites did not assess risk level using a validated, standardized, and objective tool. For the six sites that used a risk assessment, 40.2 percent of youth enrolled in the drug court group were high risk, 42.3 percent were moderate risk, and 17.4 percent were low risk. Of youth enrolled in the comparison group, 42.3 percent were high risk, 51.6 percent moderate risk, and 6.2 percent low risk. Drug court youth had varied substanceuse problems with alcohol (23.5 percent) and marijuana (71.1 percent) serving as the primary substances of choice. Participants did report using other drugs as well. These include crack/cocaine (14.2 percent), hallucinogens (16.9 percent), methamphetamine (9.7 percent), and prescription drugs (14.7 percent). This suggests that, collectively, the substance abuse problems of many of these youth likely extend beyond substances that are more commonly used among adolescents, but the majority of youth would still be considered relatively nonserious users. Overall, the matching process resulted in fairly similar treatment and comparison groups. Six of the nine drug courts had no significant differences between the groups on key baseline variables. One site differed significantly on one matching variable (drug-use frequency), and two sites differed significantly on two matching variables (alcohol-use frequency and drug-use frequency). At these sites, the drug court youth had higher rates of substance use/abuse. Given the differences in baseline factors, multivariate models were utilized to assess the effects of drug court on recidivism. These models include controls for months at risk of a new offense, age, gender, race, and risk level. The results for official recidivism suggest that drug court youth had worse outcomes than those in the comparison group. These findings illustrate that drug courts did not meet their intended objectives, and instead, youths were actually at greater risk of new referral or court adjudication. The finding that youth who participated in drug court have worse outcomes than youth on probation held up across numerous analyses, including controls for risk level, time at risk, race, gender, primary substance of choice, frequency of substance use, previous drug and

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alcohol treatment, parental substance use, and mental-health problems. Further, the general effect was the same after controlling for site as only two of nine drug courts evidenced small, positive effects on recidivism. In addition to examining the effectiveness of these courts, a process evaluation component was meant to foster a better understanding of the elements of successful juvenile drug courts. The Evidence-Based Correctional Program Checklist–Drug Court (CPC-DC) was used to assess whether the participating drug courts met known principles of effective intervention. Specifically, the CPC-DC ascertains how closely drug courts follow established guidelines that have been proven effective in reducing offender recidivism, including, for example, the use of risk and needs assessments, the use of targeted interventions, skills training, the application of positive reinforcement, and the establishment of quality assurance processes (Andrews & Bonta, 1994). This checklist also matches up with several of the strategies recommended for effective drug court implementation (National Council of Juvenile and Family Court Judges, 2003). As discussed by Blair, Sullivan, Lux, Thielo, and Gormsen (2016), the CPC-DC consists of two instruments: one to be used for the evaluation of the formal drug court and the other to be used for the evaluation of the major referral agencies involved in providing treatment and services to drug court clients. A separate instrument evaluates the major referral agencies. This is essential in the context of juvenile drug court research because, although public justice agencies are heavily involved, services provided in these courts are commonly delivered via referral to affiliated community agencies. Each of CPC-DC tools is divided into two basic areas: content and capacity. The capacity area is designed to measure whether the drug court and its referral agencies have the capability to deliver evidence-based interventions and services to offenders and covers two domains: Program Support/Staffing and Quality Assurance. The content area focuses on the extent to which the drug court and its referral agencies meet the principles of risk, need, responsivity, and treatment; it covers two domains: Offender Assessment and Treatment. The Drug Court tool includes forty-one indicators, worth forty-three total points, and the Referral Agency tool includes fortynine indicators, worth a total of fifty-one points. Each area or domain is scored and rated as: “Very high adherence to evidence-based practices” (65 percent to 100 percent); “high adherence to evidence-based practices” (55 percent to 64 percent); “moderate adherence to evidence-based practices” (46 percent to 54 percent); or “low adherence to evidence-based practices” (less than 45 percent). The scores in all domains are totaled, and the same scale is used for the overall assessment score. Data were collected through structured interviews with drug court staff, treatment staff, participants, and family members, as well as through observation of treatment groups and service delivery. Other

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sources of information include policy and procedure manuals, client handbooks, treatment materials, curricula, and open and closed case files. The CPC-DC report generated for each site provides scoring information, highlights strengths and areas in need of improvement, and provides specific recommendations for how the primary agency and/or referral agencies can put the recommendations into practice. One of the advantages of the CPC-DC is that it allows researchers to measure the degree to which programs meet evidence-based standards. Also, the checklist can specify the quality of a program through a scoring process, allowing comparisons across programs and benchmarking against explicit standards derived from relevant research studies. The CPC-DC process was completed on all nine drug courts and thirtyfour referral agencies during the summer and fall of 2009. Figure 5.1 provides the average scores for the drug courts and referral agencies. Results from these assessments indicate that, in aggregate, the drug courts in this sample did not closely adhere to many of the known principles of effective intervention. Collectively, the average overall( scores for both entities were " ( * 1 in the “moderate adherence” range. These drug courts( scored the highest in Program Support/Staffing and Offender Assessment domains, and treatment

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Figure 5.1 Average CPC-DC Scores for Participating Drug Courts and Referral Agencies CGG( ?G(

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