THE DRUG COURT REVOLUTION

At the most recent Washington, D.C., Drug Court "graduation"-a monthly
event for drug defendants who have successfully stayed in
treatment-Mark Williams stole the show. Williams, a transvestite
dressed in checkered hot pants with matching pocketbook, gave spirited
testimony. "I want to thank God. And all my lawyers. And I want to say
that you've got to want to stop smoking. You've got to put your mind
to it."

The rest of the graduating class-about 20 in all-whooped and hollered
from the jury box. Judge Russell Canan, who was presiding over the
ceremony, couldn't help but chuckle. "This is one of the happier days
we have in Drug Court," said Canan. "The people we are honoring here
today have gained some respect for the law and for themselves."
Williams, by the way, is still awaiting trial on prostitution charges.
"He's very creative," his lawyer told me. "Very smart."

After the speech and the applause, the clerk read Williams's case, a
misdemeanor drug charge. Then the case was dropped-the reward for the
"client" (as all defendants are called) having completed the drug
court program, a year-long regimen of therapy and frequent court visits.

In addition to getting his drug charge dropped or reduced, each of the
graduates receives a certificate of achievement and a copy of Iyanla
Vanzant's 1993 book Acts of Faith: Daily Meditations for People of Color.
Most of the graduates make speeches-very heartfelt, gracious testimonials.
They thank the judge, their treatment counselor, and (some of them, anyway)
God. This is, they say, a new beginning.

The event is moving, and perfectly attuned to our therapeutic age.
Which is exactly the way the drug court "professionals" (as the
lawyers, judges, and counselors who run the nation's drug courts call
themselves) have designed it to be. Graduations should be "used to
capture the public's interest and garner favorable media publicity,"
writes Judge Stephen Marcus, one of the gurus of the drug court
movement. "The Drug Court graduation is the Super Bowl, NBA Finals,
and World Series all rolled into one." The "emotional appeal" and
"tears of joy" make journalists, politicians, and lawyers into
"immediate converts."

Drug courts are the cutting edge of therapeutic jurisprudence, the
latest panacea in the ongoing war against drugs. They are the
brainchild of Attorney General Janet Reno, who organized the first
drug court in 1989 when she was state's attorney for Dade County, Florida.

Reno's vision-a courtroom unencumbered by traditional rules, a
criminal justice system that focuses on the "individual needs of the
client" rather than equal justice for all, cooperative therapy rather
than adversarial trials-has taken the nation by storm. Five years ago
there were only 12 drug courts nationwide. Now there are almost 400,
with hundreds more in the planning stages, backed by over $100 million
in federal seed money. Some 140,000 defendants who would otherwise
have been prosecuted for non-violent drug offenses have enrolled in
drug courts since 1989.

Perhaps as significant, the drug court advocacy machine is firmly in
place-and growing. There is a National Drug Court Institute; a drug
court office in the Department of Justice; a drug court journal;
hundreds of national, state, and local associations for drug court
professionals; and an endless stream of resource guides and pamphlets
selling the concept with all the public relations savvy of Madison
Avenue-think Chicken Soup for the Addict. This elaborate promotional
apparatus, it turns out, is all the more necessary, because the drug
courts' results, as yet, don't speak for themselves.

Drug court is, as its advocates triumphally declare, "a revolution in
justice." It did not come out of nowhere, though, but is the
culmination of three decades of agitation to supplant traditional
criminal justice with therapeutic rehabilitation.

In 1970, Congress passed the Treatment and Rehabilitation Act, which
gave courts the authority to commit drug offenders to treatment. In
response, "Treatment Diversion" programs sprang up across the country,
bolstered by social science claims that the root cause of drug use is
economic deprivation and medical science claims that drug addiction is
a physiological problem largely beyond individual control. Junkies
were redefined as victims of both an undeserved social pathology and a
sickness.

The largest and most important treatment organization was
TASC-Treatment Alternatives to Street Crime-formed in 1972 with the
explicit purpose of "linking treatment and the judicial process." But
treatment and justice remained distinct. Where appropriate, the courts
diverted offenders into treatment programs, but the purpose of the
criminal justice system-namely, to mete out impartial justice under
the law and punish the guilty-was maintained. Judges were judges,
prosecutors were prosecutors, and therapists were therapists.

In drug court, however, the mission of the court is transmuted.
Offenders are now patients; prosecutors, defense attorneys,
therapists, and judges are all part of the "treatment team." Indeed,
drug court judges talk directly to "clients," who are encouraged to
"share their feelings" in the courtroom. Treatment counselors make
detailed presentations of the "client's" progress-Mr. Young has
suffered a setback this month; Mr. Smith has maintained a firm pattern
of sobriety; Ms. Jones has made significant contributions to group
process and is ready to update her treatment plan-while prosecutors
remain silent. After the monthly progress report, the treatment
counselor makes a recommendation about the client's status in the drug
court program, which the judge, after a few words of encouragement or
fatherly scolding, almost always accepts.

"It's really open-court therapy," Judge Canan told me. The judge plays
the "role of confessor, taskmaster, cheerleader, and mentor," says
Jeffrey Tauber, a former judge from Oakland, Calif., now president of
the National Association of Drug Court Professionals. "We try to build
self-esteem. I'm talking in terms of treatment, love, and care," says
Judge Robert Fogan.

In most jurisdictions, participation in drug court is voluntary. Those
who are eligible-and this varies somewhat from court to court, though
it generally includes any defendant indicted for a nonviolent drug
offense-are given the choice of standing trial or entering mandatory,
court-regulated treatment. If the defendant elects drug court, he is
assigned to a case manager-a "licensed addiction treatment
professional"-who explains the program in a lengthy pretrial
orientation. Then the offender comes before the judge, who asks him if
he is willing to waive his right to a speedy trial to opt instead for,
as Canan puts it, "an opportunity to change your life and clear your
record." Once the client agrees, his treatment begins
immediately.

The Washington, D.C., treatment facility is state of the art and looks
like a mix of pediatrician's office and elementary school. There are
pamphlets everywhere-on every drug imaginable, on sexually transmitted
diseases, on various government programs. In the lobby,
drugs-ruined-my-life videos run nonstop while clients wait for their
next counseling session or drug test. The plastic chairs in the
therapy rooms are in a perfect circle. There are pictures on the wall
from the most recent drug court picnic. There is a hand-painted sign
that reads: "We will involve you in a process of self-evaluation and
positive productive change, while also responding to your individual
needs and concerns. . . . We believe you can fly. Don't you?"

Upon arrival, the client undergoes a lengthy psychological evaluation:
He signs pages and pages of release forms. He takes an AIDS test. He
answers hundreds of multiple-choice questions about his childhood
problems, family problems, drug use, and sexual behavior. He writes an
autobiography ("for the purpose of allowing us to know the inner
you"). Many clients are then referred to other psychiatrists and
psychologists for further evaluation. Some end up in in-patient
treatment centers. The rest begin treatment with the drug court staff.

The Washington Drug Court has four phases of treatment: "Orientation
and Assessment," "Stabilization and Cognitive Restructuring,"
"Transition," and "Maintenance." Each week, the client attends two
group therapy sessions ("feelings processing groups"), receives
individual counseling, and takes substance abuse education classes. He
completes a series of assignments and worksheets-first to "explore his
addiction," then to develop a "recovery and warning sign management
plan." He learns to identify "intervention points," "triggers,"
"action urges," and "internal dysfunctions." He builds a "personal
recovery schedule" and learns "effective feelings management."

Strikingly, in all the hundreds of pages of workbooks, self-assessment
guides, and personality tests, there is never a mention of morality,
character, virtue, or right and wrong. One personality test asks the
clients if they "turn to God" for answers. A yes response
means-categorically-that "you are in the late stage of addiction."

When I ask a number of the therapists and the judge whether they try to
teach any moral lessons to their "clients," they all look stunned, then
offended. "We don't frame it as a moral lesson. Your morality isn't
necessarily my morality," says Suzzette Brann, the drug court program
director. "We don't try to dictate judgments," says Rashida Mims, assistant
treatment coordinator. "We don't do that. We can't do that. If I were to
attempt to dictate my values on someone I'd be doing them a disservice."
Says Judge Canan: "My personal morals may or may not be meaningful to
someone else."

Nevertheless, the drug court program does, at its best, teach some
moral lessons-if for no other reason than that clients are required to
show up on time, hand in assignments, and examine their lives. More
important, offenders must remain drug-free to "graduate." Everyone in
the program takes two drug tests a week-one on Monday, one on
Thursday. A positive test results in "sanctions"-typically three days
of "motivational jail." Many participants are sanctioned a number of
times before finally staying clean long enough (three months) to
graduate. Such relapses are, according to the therapists, part of the
recovery.

Advocates claim that drug courts are a "miracle," a "new reality,"
"our last, best hope." The statistics they cite seem impressive:
According to the Department of Justice's drug court program office and
the National Association of Drug Court Professionals, 70 percent of
all drug court participants have either finished the program or stayed
in treatment; 90 percent of drug tests have been clean; and the
recidivism rate for drug court graduates is only 4 percent, compared
to "well over 50 percent" of defendants who go through the
"traditional adjudication process."

Likewise, the drug court story is heroic, inspirational, a grand
social drama with progressive judges and therapists as the
protagonists. "A revolution has been going on in the criminal justice
system over the past ten years," writes Judge Tauber. "We understood
it would take a new kind of community . . . a circle of interveners .
. . to restore our cities and our people to health."

A closer look at the statistics, however, tells a far less heroic
tale. The most extensive independent evaluation of the nation's drug
courts-conducted by the General Accounting Office in 1997-concluded
that current evidence "did not firmly establish whether drug court
programs were successful in reducing drug relapse and offender
recidivism." The GAO report cited three major problems with the
available studies: Most drug court programs were still in their first
or second year of operation; most courts did not keep follow-up data
on the rate at which "clients" relapsed or were rearrested; and most
studies made no comparison between drug court participants and
nonparticipants.

Other studies by outside agencies-including the Rand Corporation and
the American Bar Association-have found that drug courts have had no
discernible effect on crime rates. James Nolan, a sociologist whose
recent book The Therapeutic State devotes a chapter to drug courts,
found that despite the claims of drug court advocates, the most
important factor in the apparent success of drug courts is the
criminal history of the defendants, not the treatment program. In
addition, Nolan found that many of the leading studies are based on
questionable, often misleading assumptions-such as excluding early
dropouts from the calculation of success rates or counting as success
stories individuals who have stayed in the program for more than a
year (despite the fact that such career participants have not
graduated because they routinely fail their drug tests).

In fact, many drug court professionals reject on principle evaluations
of their program according to such empirical, hardheaded criteria as
recidivism, relapse rates, and urinalysis testing. They believe, as
one put it, that an emphasis on statistics undermines "the real human
realities, the changed lives." As Judge Lawrence Terry puts it, we
need to "reeducate judges about what success is." A professor of
criminal justice at Florida International University conducted a study
that found "little difference between persons remaining in the [drug
court] program and those who have not." Still, he concluded that
"there is absolutely no question that the drug court is having a very
positive effect upon the lives of many people."

No one doubts that the drug court movement will expand, even though
its effectiveness remains in serious question. But the rise of
therapeutic jurisprudence raises sobering questions about the future
of American criminal justice: Is the purpose of courts to "meet the
individual needs" of defendants, as the drug court literature
routinely assumes? Are justice and therapy one and the same thing?
Should judges really play the role of "confessor, cheerleader, and
mentor" to the accused who come before them? In the present euphoria
over the "drug court revolution," these questions are almost never
pondered.

For the fact is that the most passionate advocates for drug courts
have a thoroughgoing contempt for "traditional justice." When they
call the present system "adversarial" they mean to disparage it, and
they mock as antiquated the idea that a judge should be a
"dispassionate, disinterested magistrate." They see drug courts as the
first step in the transformation of the courts into a wholly
therapeutic enterprise. They want to expand the therapeutic model to
cases of domestic violence, larceny, prostitution, and even rape. The
individuals who commit these crimes are sick, they insist, and should
be treated by therapists rather than punished and exiled.

There is no doubt something very pragmatic and sensible about trying
to get addicts off drugs, which explains why many prominent
conservatives-James Q. Wilson, John J. DiIulio Jr., Jeb Bush, Rudolph
Giuliani-have had nice things to say about drug courts. Indeed, when
it comes to dealing with most drug-related misdemeanors, drug courts
are actually more demanding and coercive than the usual suspended
sentence and probation. Offenders who would otherwise be unwatched or
at best loosely monitored are instead kept to a rigorous schedule and
drug-tested twice a week. Moreover, the best drug courts process cases
quickly, which, as Wilson argues, links crime and punishment in the
defendant's mind.

What's more, there is no question that the present system-the
revolving door of drugs and crime-is in need of reform. As DiIulio
recently wrote, two million prisoners, roughly a quarter of them
drug-only offenders, are enough. A self-governing people should not
abandon the effort to help drug offenders become decent citizens
again. The principles that underlie this effort, however, are
important. And it is here that the drug court revolution is most worrisome.

The Washington, D.C., Drug Court tells its clients that lifelong
therapy is a "part of healthy living." The evidence so far-from the
entrenched moral relativism of the therapists to the transformation of
lawyers and judges into "helping professionals"-suggests that
therapeutic justice will lead not to the remoralization of society but
to the rise of a therapeutic state. Instead of an explosion in the
prison population, then, we would have an explosion in the patient
population. This is not an outcome that a free society should welcome.