Drugs, Courts, and the New Penology
Miller, Eric J., Stanford Law & Policy Review
Perhaps the most important judicial response to the War on Drugs (1) has been the creation of specialty "drug courts" designed to ameliorate the impact of drug sentencing policy on individual drug users. (2) The drug court's central goal is to provide a safety valve for the cycle of incarceration-release-recidivism that filled prisons with low-level drug users rather than the dealers and distributors that primarily facilitated drug use in America. Their central methodology is to replace the parole officer with the judge as primary supervisor of each defendant's treatment program, (3) so that the court takes responsibility for the "supervised referral of identified defendants into treatment." (4) Drug courts work at the input-end of the incarceration cycle: they intervene to divert offenders to treatment before imprisonment. The goals and methodology are shared at the output-end of the cycle by reentry courts that operate to supervise prisoners on parole or supervised release upon their return to the community. (5)
The result is the rise of the "problem-solving court" (6) as the hub through which the criminal justice system organizes drug rehabilitation. Thanks to the success of the drug court model, judicial influence has massively expanded in the control of drug policy and social regulation. This judicial power has exploded at a low level: the level of state trial courts engaged with local communities, often located in struggling urban districts around the courthouse. (7) These courts aim to restructure the lives of individual addicts in the context of their wider community, and so often seek to include in the rehabilitation process not merely the addict, but also his or her family, friends, and "significant others." (8)
Drug courts present tremendous opportunities for drug policy, and, in particular, for shaping the social norms that affect community responses to issues of addiction and incarceration. But drug courts also rest upon a series of controversial methodological assumptions underlying the selection of the court as the locus of treatment provision and management. The court's methodology implicates political issues of coercion and freedom in ways that derive from and respond to some of the central policy problems underlying the interaction of race, poverty, and drugs in urban environments.
Few people have recognized that the drug court's therapeutic methodology is not a repudiation of politics but one that takes sides by embracing a coercive version of justice based on a version of positive liberty. (9) In particular, the court's rejection of due process in favor of treatment expresses the now-classic opposition between positive and negative liberty; that is, the freedom to be left alone and the freedom to "determine someone to be ... this rather than that." (10)
Most critics who oppose the drug court's methodology simply call for a return to a courtroom practice centered around due process protections as a form of negative liberty to protect vulnerable defendants against intrusive state power. (11) My goal is to suggest a third concept of freedom, one that emphasizes a mutual respect for members of the community as peers sharing diverse values. (12) That form of freedom can only emerge through non-coercive interaction in the public sphere through low-level political organizations. (13) This concept of liberty has its roots in the founding fathers' political debates in town halls, (14) a form of political structure that became concretized and constitutionalized in the institution of the grand jury. Accordingly, as an alternative to the current structure of drug courts, I propose both a more radical and a more natural structure for court-based drug rehabilitation: a grand jury model rather than a judicial one.
Adopting the grand jury structure replaces the hierarchical relation between judge, on the one hand, and community and offender, on the other, with a horizontal relationship between community, offender, and law enforcement. …