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172 Chapter 8 The (In)justice of Discretion: Drug Courts as Therapeutic Punishment and Therapeutic Justice The future for drug courts in the United States appears bright. They have achieved widespread support among liberal and conservative policy makers alike, as well as many academics who study drug policy. Advocates applaud the courts’ potential to reduce the prison population and to provide drug treatment to a previously underserved population of drug users. Drug courts are being incorporated into state drug policies across the country, including New York, where the Rockefeller Drug Law reforms passed in 2009, earmarking $50 million to expand the existing 175 drug courts in the state. On the federal level, the Office of National Drug Control Policy sees drug courts as a critical component in its plans to meet the nation’s treatment priority of reducing drug abuse and addiction. Its 2009 National Drug Control Strategy states that “for individuals whose drug use has brought them into contact with the criminal justice system, drug courts combine the power of the courts with the renewing potential of treatment to foster a community of support and to change drug-using behavior” (U.S. Office of National Drug Control Policy 2009, 2). The policy research on drug courts suggests that they offer a structured and effective way to keep drug offenders from relapsing and from recidivating . This study does not mean to contradict or nullify those findings outright; rather, it poses additional questions about how drug courts assess client noncompliance, which other studies have largely taken for granted. For example, even if drug courts do appear better than previous strategies to deal with drug offenders, what is the cost to the offenders? Is the drug court’s form of treatment helping drug offenders? This study problematizes the treatment-legal fusion in therapeutic jurisprudence as well as explores how drug courts represent a broader trend toward individual accountability to tackle social problems like poverty and racial inequality. The central question is this: Are drug courts truly therapeutic or are they simply a new form of punishment under the guise of help? Blurring Lines between Law and Therapy: Theoretical Implications of Drug Courts Drug courts have two interesting features for sociologists of law and punishment: their reintroduction of discretion into legal decision making and a treatment-centered approach toward drug offenders. Compared to the draconian mandatory minimum sentencing policies in which judges’ discretion was essentially absent, drug court judges have much more flexibility to craft responses to offenders. As seen in the previous chapters, the judge and staff could handle a youth’s noncompliant behavior in a variety of ways, depending on how they interpret the seriousness of that behavior. If the youth came home late one night, the staff could dismiss the incidence altogether if the youth had been doing well, or they could formally consider it a probation violation if the youth had been struggling in other areas and needed a reminder to behave better. For the same kind of noncompliant behavior, a youth could get community service, house arrest, or a three-month stay in a probation camp. Drug courts then appear to offer a way to improve upon the traditional juvenile court model of parens patrie—that is, taking on a parental role to teach youths how to adopt more appropriate lifestyles. At the same time, there has been no significant discussion about the limits to that discretion. This study has shown how staff decisions about normal remedies are often highly contested and negotiated. Those decisions—which are largely made in the backstage team meetings—are not on the official court record. As a result, they cannot be used in any kind of appeal process. This leads me to question, as other scholars (Baar 2002) have, if drug courts are simply repeating the mistakes of the pre-Gault juvenile court era, when judges sometimes gave harsh sentences to curb troublesome behavior without any significant regard to the youth’s due process. In short, is the drug court’s discretionary decision-making process, in its current informal form, helping offenders or leading to an overreaching of the law? Wexler and Winick (1991, 2003) write extensively about the idea that the law can be used as a therapeutic agent. In practice, that means drug court judges are not just referring offenders to treatment programs; they are becoming familiar with drug treatment approaches and incorporating that newfound knowledge into their decision-making process. While this may seem like a good approach to...

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