This is an essay I wrote on drug courts. I use criminological theory to lend credence to drug courts as a legal remedy as opposed to relying solely on the thoughts of Bentham and Beccaria’s rational choice theories (also sometimes referred to as hedonistic calculus).
Drug Courts: Biological Criminological Theory as a Legal Foundation
Progress is both the crowning achievement and bane of humanity. Inventions and discoveries are not inherently good or evil; however, depending upon who wields them they can be a force for benevolence or malevolence.
Take for example computers: without computers we would not be able to rapidly make complex calculations; instead we would need to rely on mathematicians and slide rules working for hours on end. Without computers every modern institution would be remarkably less efficient and we would not have the luxury of being in the midst of an information availability renaissance as we are today. However, thanks largely in part to the prevalence of computers, there has never been a time in history more rife with identity theft (Samaha, 2008).
The pharmaceutical field has also greatly advanced over the course of the last few hundred years. At one time two thirds of the population of Europe died from pneumonic plague leaving the continent decimated. I was shocked to learn recently that pneumonic plague still exists; however, today pneumonic plague is cured by a simple treatment of antibiotics.
Unfortunately, just as computers and other forms of technology hold the potential for beneficial or detrimental uses, pharmaceutical technologies in the form of illicit drugs has become a serious source of crime and an apparent social cancer. America up until the middle of the twentieth century did not have a substantial drug problem with the exception of a series of opium dens along the western seaboard amongst Asian communities (Schmalleger, 2009).
While some notable drugs such as cocaine had been a staple ingredient in some products, including the original incarnation of Coca Cola which was then known as Cocaine Cola and utilized for headache relief, there was not widespread recreational drug use. Drug use tended to be utilized by individuals in the arts who wished to improve creativity (Schmalleger, 2009).
During the 1960’s attitudes toward recreation drug use began to change amongst the American population. Outspoken individuals such as Dr Timothy Leary and the Beatles introduced recreational drug use to a generation of open minded hippies (Schmalleger, 2009).
Recreational drug use reached an all time high in 1979 when an estimated 25 million individuals were at that time regularly using illegal drugs. Cocaine reached it’s height of popularity in 1985 with over 5 million addicts. Fortunately those numbers have since decreased while the American population has concurrently grown; this leaves a significant drop in percentages of drug users (Schmalleger, 2009).
These figures should not however marginalize the problems posed by the remaining drug users whom in 2000 spent an estimated 65 billion dollars on illegal drugs (Schmalleger, 2009). That same year the CDC reported that nearly 20,000 Americans died from drug induced overdoses. Today the loss in productivity alone each year in the United States influenced by drugs are estimated to be over 77 billion dollars (Schmalleger, 2009).
It should also be noted that 64% of arrestees test positive for drug use nationwide although depending on district this number can range from 22% all the way up to 81% (Schmalleger, 2009). Courts and incarceration facilities have been inundated by offenders with drug addictions (Bates, Hartley, & Polakowski, 2008).
Fortunately, just as pharmaceutical technology has progressed so has the study of criminology. The legal system when based on appropriate criminological theory can be a potent combination at solving social ills as is evidenced by the 20 year history of drug courts. First let’s explore criminological theories within the legal system.
Criminological Theory Within the Legal System
While the concept of written law has existed prior to the study of criminology, criminology has influenced the development of the American legal system. There are many criminological theories, all of which fall into six major schools: classical, biological, psychological/psychiatric, social structure, social process, and social conflict (Schmallager, 2008).
While some schools have been used extensively in other nations, such as the social conflict theories which originated with Karl Marx that were popular amongst communist nations, the predominant school within the United States has been the classical school (Samaha, 2008).
Rationalism and the Classical School
The classical school, and the study of criminology, originated with the theories of Cesare Beccaria who is in most respects considered the father of criminology. Beccaria was a legal prodigy from Milan who received a doctor of laws degree by age 20. Beccaria wrote an essay in 1767 which outlined his observations of the legal system as well as posed many legal theories (Schmalleger, 2009).
Beccaria’s primary contribution was his belief that punishments should be just severe enough to dissuade individuals from engaging in them. Another contribution he set forth was a concept that built upon the ideas of natural law and natural rights. Beccaria proposed that citizens are born with certain rights to freedom which government can not infringe upon (Schmalleger, 2009).
These concepts were widely accepted and adopted in nations such as France, Russia, Prussia, and Austria and it is believed that they influenced the United States bill of rights (Schmalleger, 2009). In 1789 Jeremy Bentham further expanded on the concepts of punishment set forth by Beccaria. Bentham proposed punishment should not be cruel or extreme, but rather enough to cause discomfort to the offender.
Bentham’s work assumed that human beings avoid pain and seek pleasure; therefore, individuals will make calculated decisions to weigh the potential pain versus the potential pleasure which will result from a given activity. For example, a given individual when they see money fall into a fireplace where it has not yet begun to burn will ask themselves “is the amount of money worth the potential risk of burning myself?”
Bentham and Beccaria’s works eventually would lead to many of the staples of our legal system which include punishment based upon conscious decisions, punishment that fits the crime, human rights, and due process (Schmalleger, 2009).
More recently the classical school once again garnered a great deal of attention when during the 1970’s the “nothing-works” doctrine became popular. This culminated in the 1975 book by David Fogel wherein he proposed that the purpose of the criminal justice system was to hold individuals both accountable and responsible for their actions (Schmalleger, 2009). This set a course for the American criminal justice system which would eventually lead to the current “get tough on crime” initiatives.
While the psychological school does not always exist entirely outside the realm of the classical school, it does represent a progression in criminological thought and separate theories on crime causation. Psychological theories contend that mental defects result in criminal tendencies.
This school of criminology has established a firm foothold within a certain niche of the American legal system; essentially the concept of not guilty by reason of insanity is firmly rooted in the psychological school (Samaha, 2008, Schmalleger, 2009).
Most importantly, the inclusion of the psychological school within the legal system represents a precedent for the inclusion of other schools as well to fill various niches.
The biological school is a diverse school with theories ranging from the ill fated and misguided eugenic, phrenological, and XYY supermale theories to the considerably more plausible sociobiological theories. While there is a lack of consensus as to where pharmacological models of crime causation should fall, the most reasonable place would be the biological school as illicit drugs and medications cause chemical changes within a subject’s body.
Biological theories have not typically fared well within the American legal system. In the United States biological defenses to crimes have not been successful as evidenced by Richard Speck’s attempted XYY chromosome defense for the murder of eight nursing students; however, in a 1969 case in Australia, Lawrence E. Hannell was acquitted on the grounds of having XYY chromosomes. One noted exception to a biological theory of crime causation was the 1980 case of Dan White who was given a reduced sentence for the double homicide of San Fransisco Mayor George Moscone and City Counselman Harvey Milk based upon the belief that White’s poor nutrition and excess sugar intake reduced his ability for rational thought (Schmalleger, 2009).
Modern drug courts operate under the biological school of criminology and occasionally overlaps with social strain theories. The underlying logic of drug courts is that an addict’s body needs additional drugs or alcohol which in turn causes addicts to commit crimes. Therefore the best way to reduce recidivism within the addict community is to cure the addict of the overwhelming need for drugs or alcohol.
History of Drug Courts
During the 1980’s the drug problem in the United States was spiraling into an epidemic. As a response in particular to record high use of crack cocaine the first drug court was established during 1989 in Miami, Florida. From it’s humble beginnings as an administrative order from a single judge drug courts have flourished; as of 2007 there were 2,147 drug courts operating within the United States and many more have opened in other countries as well. In fact, every state and territory excluding the US Virgin Islands has at least one drug court operating within it’s borders (Casebolt, Huddleston, & Marlowe, 2008).
The rise in drug court popularity stems from it’s ability to on average produce drug free graduates in the range of 30% to 40% of cases depending upon the program (Casebolt, Huddleston, & Marlowe, 2008). These graduates present a very low incidence of recidivism as well.
The main drugs that drug courts contend with vary depending upon area; however, as a general rule, can be broken down as cocaine or crack cocaine in urban areas, marijuana in suburban areas, and methamphetamine in rural areas. Within most states, the percentage of drug court cases involving methamphetamine users is rising (Casebolt, Huddleston, & Marlowe, 2008).
Overall drug courts prove to be highly viable from an economic perspective, as the savings generated by the reduction in recidivism begin to multiply. Not only are direct costs to the state saved, but costs attributed to victimization are also saved. This can result in savings exceeding $10,000 per graduate as opposed to traditional incarceration (Casebolt, Huddleston, & Marlowe, 2008).
It would appear that drug courts will continue to expand in the future; however, important factors for communities will not be whether or not drug courts are effective, but rather how to maximize drug court effectiveness.
Drug Court Methodology
One of the keys to the successfulness of drug courts are that they are considered a community court, placing them in line with other peacemaking approaches and forms of restorative justice. Due to the nature of restorative justice and community based approaches to crime reduction, it can be difficult to generalize aspects of drug courts; however, despite the individuality of each court, the National Association of Drug Court Professionals and U.S. Department of Justice has recognized certain key components:
- Drug courts integrate alcohol and other drug treatement services with justice system case processing.
- Using a nonadversarial approach, prosecution and defense counsel promote public safety while protecting participants’ due process rights.
- Eligible participants are identified early and promptly placed in the drug court program.
- Drug courts provide access to a continuum of alcohol, drug, and other related treatment and rehabilitation services.
- Abstinence is monitored by frequent alcohol and other drug testing.
- A coordinated strategy governs drug court responses to participants’ compliance.
- Ongoing judicial interaction with each drug court participant is essential.
- Monitoring and evaluation measure the achievement of program goals and guage effectiveness.
- Continuing interdisciplinary education promotes effective drug court planning, implementation, and effectiveness.
- Forging partnerships among drug courts, public agencies, and community-based organizations generates local support and enhances drug court effectiveness (Idaho State Police, 2002).
Drug courts do not operate entirely outside the legal system, but rather compliment it by shifting the workload of many minor offense cases from the traditional courts to drug courts. This empowers the traditional court system to more adequately serve felony cases (Bell & Giacomazzi, 2007).
The first and unequivocally the most important process in the establishment of a drug court is selecting staff and subsequently providing them with the appropriate drug court training. Drug courts need specially trained judges, prosecutors, public defenders, and a range of administrative staff (Idaho State Police, 2002).
With that training drug court prosecutors or judges select candidates for drug court. Most drug courts only select misdemeanor offenders and generally exclude dealers from eligibility; however, this varies from district to district and is often based upon state level legislature.
Offenders are sentenced to a number of hours of substance abuse counseling, the minimum recommended being 322 hours of group counseling and attendance of alcoholics or narcotics anonymous. It is not uncommon to have other goals set as well such as a stipulation that the offender must find employment, obtain long term housing, or attain a GED (Bell & Giacomazzi, 2007).
During the estimated minimum of 52 weeks to complete the goals set forth by the court, the offender will have regular progress hearings before the court. When an offender accomplishes the goals set forth and graduates from the program, there is typically some sort of celebration held by the court.
It is important to remember that drug courts are incapable of operating without support from community organizations and treatment facilities. Since neither entity is owned by the state, the court must cooperate with these organizations. They generally must also achieve the cooperation and support of a probation and parole department.
Factors Determining Effectiveness
One of the first factors that determines the level of effectiveness in reducing recidivism by increasing numbers of offenders who finish the drug court program is providing all the drug court staff with the same training. It is also important to hire staff who are invested in the success of the program and who are willing to collaborate with various stake holders (Idaho State Patrol, 2002, Bell & Giacomazzi, 2007).
Probation and parole officers play a pivotal role in the successful graduation of offenders; of graduates polled, most indicated that the ability to contact their probation officer at any hour and their probation officers’ assistance in gaining employment led to their graduation. Similarly, it is important to regularly recognize and reward progress within the program with certificates and small tokens (Bell & Giacomazzi, 2007). An old Chinese proverb when translated states “a journey of a thousand miles begins with a single step,” in order to prevent participants from believing goals are too distant to be attainable, it is important to place small reminders of how much progress has already been made and effectively present the overall goal as a series of smaller goals.
When offenders have a single judge who presides over all their drug court hearings they are less likely to terminate the program early, and much more likely to continue attending their counseling sessions (US Department of Justice, 2006). Cycling through judges and preventing participants from knowing their judge effectively breaks the very nature of community which a restorative justice model is based upon.
Program length has many implications, currently many programs are 12 month programs; however, half of all participants require longer than 12 months to complete their treatment and many require 24. A more effective average course of treatment would be approximately 16 months (Idaho State Police, 2002, US Department of Justice, 2006). During my own unstructured interviews with recovered methamphetamine addicts, they still reported the urge to purchase and use methamphetamine despite three or more years of sobriety which is a testament to the difficulty of overcoming addiction and the ease at which relapse can occur.
Likewise, the availability of aftercare can be vital to reducing recidivism; Carey and Finigan (2002) reported that some participants sabotage their own efforts when graduation nears out of fear of the loss of a support network. In response, some districts provide free aftercare services of various lengths of time.
During my tenure working in juvenile detention I observed that after six months of work I already held seniority due to length of service over half of the staff. While this is a serious issue in any organization, it has a significant impact on the ability of participants to graduate from drug court programs. Drug courts with low staff turnover experience higher rates of graduation (Carey & Finigan, 2002).
Another factor leading to success in programs was early involvement in drug court by community stakeholders. This leads to greater communication and cooperation amongst the various parties needed of a functional drug court. Research shows that early involvement resulted in heightened graduation rates (Carey & Finigan, 2002, Idaho State Police, 2002).
Finally, when evaluating individual drug court effectiveness, the best method is to evaluate based on cohort rather than based upon year of graduation. This gives a more accurate picture of program graduation rates and recidivism rates (Heck, 2006, Carey & Finigan, 2002).
While these findings help in the establishment of effective drug courts, the implications of shifting portions of the legal framework from rationalism to suit the offending population and community are far reaching. I do not advocate a shift away from the American tradition of ardently supporting natural law as it has been a solid foundation for providing individual freedoms; nor do I propose a shift to radical forms of criminology for a basis as history has shown they rarely work.
I do, however, propose the consideration of social structure and social process theories as legal system foundations when the situations warrant. For example shoplifting and other non violent property crimes where drugs or alcohol were not a factor may be better served by basing legal actions on strain theories. A strain theory approach would focus on providing offenders with the means to attain middle class goals; imposing education or job training requirements on offenders would likely suffice. Having the means to legitimately acquire middle class goals would make participants less likely to resort to adaptation via criminal means.
Whatever criminological basis is used, it is obvious that success hinges on the cooperation and commitment of court participants and community stakeholders. Furthermore, a stable court environment with low staff turnover will result in the best offender outcomes. Finally, time must be spent prior to the establishment of a court to ensure that local treatment options exist.
When our forefathers established the American legal system, they did so incorporating the best criminological and social theories of the time. It is our responsibility to face social ills as they did by upholding concepts of natural law that protect individual freedoms while utilizing cutting edge criminological theories that best explain the problems being faced.
Who could possibly fathom what new criminal and social challenges America will face 200 years from now nor what advances will occur in the field of criminology; what I am sure of is that the American tradition of ingenuity and adaptation can see the legal system through any challenges faced so long as criminological foundations continue to be properly applied to new problems.
Bates, L., Hartley, R. E., & Polakowski, M. (2008). Treating the tough cases in juvenile drug court: individual and organizational practices leading to success or failure. Criminal Justice Review, 2008(33), Retrieved from http://cjp.sagepub.com/cgi/content/abstract/33/3/379 doi: 10.1177/0734016808321462
Bell, V., & Giacomazzi, A. L. (2007). Drug court monitoring:lessons learned about program implementation and research methodology. Criminal Justice Policy Review, 2007(18), Retrieved from http://cjp.sagepub.com/cgi/content/abstract/18/3/294 doi: 10.1177/0887403407301494
Carey, S. M., & Finigan, M. W. U.S. Department of Justice, National Criminal Justice Reference Service. (2002). Analysis of 26 drug courts: lessons learned (194046). Rockville, MD: DoJ.
Casebolt, R., Huddleston, C. W., & Marlowe, D. B. National Drug Court Institute, (2008). Painting the current picture: a national report card on drug courts and other problem-sovling court programs in the united states. Alexandria, VA: NDCI. Retrieved from http://www.ndci.org
Heck, C. National Drug Court Institute, (2006). Local drug court research: navigating performance measures and process evaluations. Alexandria, VA: NDCI. Retrieved from www.ndci.org
Idaho State Police, Idaho State Police, Planning, Grants, and Research Bureau. (2002). Process evaluation of the kootenai county drug court. Boise, ID: ISP. Retrieved from www.isp.state.id.us/pgr/Research/documents/DrugCourtEvaluation.pdf
Samaha, J. (2008). Criminal law 6th edition. Belmont, CA: Thomson Learning.
Schmalleger, F. (2009). Criminology today:an integrative introduction. Columbus, Ohio: Pearson.
U.S. Department of Justice, Bureau of Justice Assistance. (2003). Juvenile drug courts: strategies in practice (NCJ 197866). Washington, DC: DoJ. Retrieved from http://ojp.usdoj.gov/bja
U.S. Department of Justice, National Institute of Justice. (2006). Drug courts: the second decade (NIJ 211081). Washington, DC: DoJ. Retrieved from http://ojp.usdoj.gov/nij