The almost universal acceptance of the "problem-solving court" concept by both the courts and the academic community provides a good example of the hazards of the bandwagon effect on the development of public policy.
Their proponents have successfully promoted the adoption of these programs by repeating, and then having others repeat, a mantra of success that grossly belies reality and ignores the compelling issues they raise. Not surprisingly, this has led to the development of an extensive bureaucracy fueled almost entirely by federal money and encouraged by cheerleaders entrenched in an all-too-often self-serving subculture of "therapeutic jurisprudence."
UNFORTUNATELY, DRUG courts, mental health courts, and other problem-solving courts have proliferated as one more proposed panacea for solving complex behavioral problems despite only the most limited debate. These initiatives raise important issues that go to the heart of the justice system and its place in the larger political structure.
In general their success has been misrepresented and their disadvantages largely ignored. A recent controversy concerning the drug court policies of a judge in south Georgia have brought these issues to the forefront.
It must be noted there are no uniform or standardized legal rules or criteria for operating a drug or mental health court, and there is considerable diversity in the way they operate.
One common denominator is that offenders are given the opportunity to avoid incarceration and sometimes a criminal conviction by following certain rules. Most employ, at least loosely, B.F. Skinner's principles of operant conditioning and manipulate rewards and punishments to motivate offenders to follow treatment and behavioral requirements.
It is central to the drug court concept that participants require treatment. For mental health courts this almost always includes the use of psychotropic drugs. Most importantly, judges directly supervise the offenders' performance and mete out sanctions for failure to follow the rules.
WHAT'S WRONG WITH drug courts? As they say, let me count the ways.
First they don't work nearly as well as the proponents espouse. The early reports of their success were largely based on anecdotal reports of judges who got giddy with the notion that some of the people in the programs actually stayed off of drugs and were so happy about it that they hugged their judicial therapists.
Subsequent research fueled by large amounts of federal money seemed to support this impression -- until it was noted that the research was anything but scientific, and had it been used to support the approval of a new drug, many patients would have died. The newest and somewhat more sophisticated research has indicated that any success is modest, applicable to only a select group of offenders and much less cost effective than represented.
In addition, shifting the responsibility for solving the problems of drug addiction and mental illness to the court system, and in particular to the judge, is a very risky proposition that threatens both judicial independence and impartiality.
Assuming drug and mental health courts provide a model for effective behavior modification, the same results can be accomplished without the need to fundamentally alter the judiciary's traditional role as an independent adjudicator and guardian of the rule of law.
These courts do not provide individuals with access to any new or unusually effective form of treatment. Professionals can offer treatment only that our current scientific knowledge of human behavior supports. If the treatment doesn't work in the community, it won't work any better if carried out in the context of the court system.
Moreover -- assuming that these initiatives offer some advantage in the management of criminal offenders -- direct and ongoing judicial involvement is not required. The dissemination of rewards and punishments can be done by anyone who has the practical ability to do so.
IN THE COURT system, or more broadly, the justice system, probation officers and perhaps parole officers are not only capable of doing it but are better positioned to do so. They have arrest powers and therefore the authority to incarcerate offenders thought to be in violation of the conditions of release. They can be properly delegated authority to do all sorts of things related to the supervision of offenders that can affect the offender's quality of life in the community.
Also, they are better positioned to distribute consequences in a manner consistent with the requirements of operant learning theory, including using more carefully constructed and precisely executed schedules of reinforcement and punishment.
Perhaps of most concern is that the actions of drug and other specialty court judges in most states are all most entirely without accountability. Few of these court cases will ever be reviewed by appellate courts and there most certainly will be no direct supervision of a drug court judge's day-to-day decision making. In short they are bastions of almost unbridled judicial discretion and subject to an increased risk of abuse -- albeit in the name of good intentions.
I am certain that the overwhelming majority of judges assigned to these specialty courts are sincere in their intentions to solve what they see as pervasive social problems, and eager to help those struggling with the often devastating effects of drug and alcohol addiction and mental illness.
On the other hand, judges are not elected or appointed to serve as therapists, and the courts should not be expected to carry out responsibilities that the community has failed to fully embrace.
(The writer retired in 2010 from a 21-year career as a judge in Pennsylvania's Sixth Judicial Circuit. He serves as a senior judge by assignment of the Pennsylvania Supreme Court, and resides in Aiken, S.C.)