SENTENCING PATTERNS: Drug Court Judges Serving in Conventional Criminal Courts

By Shomade, Salmon A. | Judicature, July/August 2012 | Go to article overview

SENTENCING PATTERNS: Drug Court Judges Serving in Conventional Criminal Courts


Shomade, Salmon A., Judicature


Despite the popular belief that drug court judges go easy on defendants in conventional criminal courts, research of one such court shows that they are not different from their peers who have not served in drug courts

In recent years, problem-solving or specialized courts have mushroomed throughout the United States. The first problem-solving court in the form of a drug court was established in 1989. Today, there are more than 2,600 drug courts and an additional 1,099 problem-solving courts such as mental health courts, community courts, and domestic violence courts spread throughout the U.S. and its territories, as well as many others internationally. The de-facto theoretical justification for the creation of drug courts and other problem-solving courts, and the immense popularity of the drug court movement, has been attributed to Therapeutic Jurisprudence ("TJ").1 TJ as a judicial theory proposes that the substantive rules and procedures of the legal system and the actions of legal practitioners have therapeutic and non-therapeutic consequences.2

Professors Bruce J. Winick and David B. Wexler note that TJ "focuses our attention on the traditionally under-appreciated area of the law's considerable impact on emotional life and psychological well-being."3 They further explain, "The law consists of legal rules, legal procedures, and the roles and behaviors of legal actors, like lawyers and judges. [TJ] proposes that we use the tools of the behavioral sciences to study the therapeutic and anti-therapeutic impact of the law, and that we think creatively about improving the therapeutic functioning of the law without violating other important values."4 Winick and Wexler maintain, "[TJ] can thus be regarded as a theoretical foundation for problem-solving courts and approaches."5 As long-term advocates of TJ, Winick and Wexler (2003) have consistently argued that the theory holds much promise for the judiciary. These scholars note that once judges get introduced to TJ, they become convinced of its utility and adapt the theory even when they no longer work in specialized courts. They argue that the holistic approach engendered by TJ might be influencing "the work of judges in trial courts of general jurisdiction."6

Professors Winick and Wexler are not alone in championing the utility of TJ. Several judges in different jurisdictions have either written about its benefits or anecdotally claimed how this unique judicial approach has enabled them to be better judges in their non-problem solving court settings. For example, retired Michigan Judge William Schma maintained that through adapting the lessons provided by TJ, "At sentencing, [he could] confront defendants much more effectively with the reality of their behavior and the wrongfulness of their conduct. This result is also more therapeutic for victims of [felony sexual abuse] crimes."7

Judge Michael Zimmerman, previously a chief justice of the Utah Supreme Court, has been quoted as calling for "involved judging in which judges and courts assume a stronger administrative, protective, or rehabilitative role toward those appearing before them, that they become more involved in . . . [TJ]; and that [TJ] will not go away, and, unless we craft our own response, it will be thrust upon us by society."8 Likewise, retired Hawaiian Judge Michael Town has joined the discussions. Judge Town claimed to have seen "the problem solving court movement as transitional, hopefully as a stepping stone to broad-based reform in the judicial profession as a whole."9

The Conference of Chief Justices and Conference of State Court Administrators have also lent their voices to the discussion by encouraging the application of specialized court practices in conventional court settings.10 In addition, Professor James L. Nolan, Jr., a leading critic of drug courts and their related TJ theoretical justification, reports that advocates of problem solving courts are hoping that TJ and other practices adopted in specialized courts are introduced on a "comprehensive scale" into the criminal justice system. …

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