"Today when I think of reentry court, I am reminded that nearly every offender sentenced to time in custody will return to the community from whence they came. And thus, every sentencing court is in fact, a reentry court, creating a pathway for the offender’s reentry into society." -Jeff Tauber

LAW AND MORALITY IN DRUG COURTS

September 30,2015

Screen Shot 2014-08-04 at 8.44.52 AMI concur strongly with the recently passed New York State legislation finding Drug Court Judges unqualified to make certain treatment decisions. In my 2001 monograph, “Rational Drug Policy Reform: A Resorce Guide”, I spoke of the Drug court and the Drug Court Judge’s role “to motivate the drug abuser to comply with treatment requirements”, and concluded ” drug courts recognize that drug abuse is not primarily a criminal justice problem, but that the courts are a necessary component of its solution”.

“In 1961, the U.S. Supreme Court in the landmark case, Robinson v. California laid the groundwork for the drug court model. In Robinson, Justice Stewart speaking for the majority held that:

“It is unlikely that any State at this moment in history would attempt to make it a criminal offense for a person to be mentally ill, or a leper, or to be afflicted with a venereal disease. A State might determine that the general health and welfare require that the victims of these and other human afflictions be dealt with by compulsory treatment, involving quarantine, confinement, or sequestration. But, in the light of contemporary human knowledge, a law, which made a criminal offense of such a disease, would doubtless be universally thought to be an infliction of cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.”

Being an addict would no longer be a “moral affliction”, but be legally recognized as having a disease that needed treatment. While being in possession of illegal drugs was not a status offender and could be punished as a crime, from Robinson onward, treatment would become more acceptable and in some cases the preferred approach to the drug possessor. According to commentators, the Robinson decision spurred both the Nixon and Carter administrations to develop non-penal responses to drug offenders. In the 1970’s for example, TASC, a nationwide federal initiative, was designed to provide a bridge between the addict and the criminal justice system, providing treatment rather than punishment for the drug offender.

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Four Roles of a Judge in a Community-Based Court

The following article was published in 2009, in an attempt to define the importance of the Judge within the framework of a Community-Based Court (Drug, Mental Health, DUI Court, etc.), describing both the importance and limitations of the judicial position.  

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INTRODUCTION

About fifteen years ago, I described the role of the Drug Court Judge in a judge’s manual (J. Tauber, Drug Courts: A Judicial Manual, CJER; 1994).  I wrote, ” A drug Court provides direction and focus through the leadership of a single judge”.  A statement writ large, and in retrospect, an overstatement of the importance of the drug court judge.  For while, the drug court judge is an important reason for the success of the drug court, he or she acts more an enabler than director.  The major actor is “community” itself.

In effect, the drug court judge creates an environment in which successful drug court “communities” can thrive; where a “drug court team” comes together to institutionalize community-based structures for long-term success, and where a “community ” of drug court practitioners and participants exert systemic control over substantial numbers of serious drug offenders. So I suppose, if I were to write a definition of a Drug Court Judge today, it might simply read, ” a judge is the first among equals in a “drug court community”. [Note: the Drug Court Judge is generally described as a drug court practitioner and a member of the “Drug Court Team”, unless otherwise indicated.)

Over the past fifteen years much has happened in the drug court field.  Over 2500 drug courts and other problem solving courts have been established.  Both NADCP and NDCI now serve the field.  And while I presided over my first Drug Court in 1990, I’ve learned a great deal over the years watching, listening and talking to thousands of drug court practitioners and participants across the country and around the globe.  The world of the Drug Court, as well as the drug court practitioner and participant have changed irrevocably and continue to evolve.

I believe that The Community-Based Drug Court described is already in place to a substantial extent in every Drug Court in this country. We don’t always recognize the characteristics that define these court programs as community-involved, institutionalized, or systemic, but they are there.  And while not all Drug Courts or Problem-Solving Courts have moved rapidly towards this Community-Based model, I am convinced that most successful ones are doing so. [Though the analysis focuses largely on the Drug Court, it is in most cases equally applicable to Problem-Solving Courts in general.]

This article is designed to give you a candid insider’s analysis of the role of the Drug Court Judge [DCJ]  in the Community-Based Drug Court.  In it, I will attempt to discuss the political, emotional, psychological and personal issues that many drug court or problem-solving court judges face.   I will provide straightforward text and then one judge’s perspective (found in bold type)

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VISION 8: The Drug Court Movement Needs To Own Its History

trainees-nashvilleTHE IMPORTANCE OF HISTORICAL FACT

History is important to the life of any reform. It teaches us what others have been able to achieve against enormous odds. It describes the sacrifices that those who led had to endure to succeed. And hopefully, it educates future reform leaders as to what obstacles to expect and goals they may achieve, as they create new paths toward social justice. My name is Jeffrey Tauber, the founding President of NADCP and Director of NDCI, I was present during much of the early history of NADCP and the Drug Court field, I feel a responsibility to the current Drug Court field, to recite the facts as I remember them and correct major factual misrepresentations.

I may inadvertently  leave individuals out of events, or include others that weren’t present. I definitely will get the dates and sequence of events wrong from time to time, but I will not manufacture facts (and I welcome any correction to an admittedly imperfect history).

This leads me to a difficult and unfortunate conclusion, that NADCP and the Drug Court field’s history has been distorted and usurped by those who came later. I understand that my taking a stand for historical truth can easily be seen as self-aggrandizing, but i think a reform as important as the Drug Court Movement needs to be accurately chronicled without distortion or misrepresentation. One cannot learn from history, if that history isn’t factual.

THREE RECENT EXAMPLES

1. NACP CEO West Huddleston, recently describes himself in his Foreword to the widely distributed 2011 NDCI publication, “Drug Court Judicial Benchbook”, “As the original founding NDCI Director”. That is not accurate. Nor was his LinkedIn bio reference to himself as  having “cofounded” and been  “Director of NDCI” from May, 1998 (which has been modified by Mr. Huddleston since publication of this article).

In contrast, in his blog in The Huffington Post, he reflects in his own words, on his status when he arrived at NDCI in 1998, “Mr. Huddleston served as the first Deputy Director and then Director of NADCP’s professional services branch, the National Drug Court Institute (NDCI), for nine years.” In fact, he did  report for his entry-level management position, as Deputy Director of NDCI, in May of 1998, a young man in his early thirties, who turned out to be an extraordinarily capable and hard-working assistant, a loyal employee, and a friend.

However, NDCI’s Founding Ceremony was held in the Roosevelt Room of the White House on December 10, 1997 (some six months earlier; see Excerpt 6).  At the White House Ceremony, as the Founding Director of NDCI, I was honored to be the first of several major speakers (including General Barry McCaffrey, Director of ONDCP, Laurie Robinson, Assistant Attorney General and Director of the DOJ Office of Justice Programs, and Judge Pat Morris of San Bernardino CA, (with the chair of NADCP, Claire McCaskill, (now Senator McCaskill), introduced from the podium; (see CSPAN Video: Establishment of Drug Court Institute, December 10, 1997)

2. I presided over the DWI Focus Group in November of 1998 and authored the monograph, “DWI Courts: Defining a National Strategy”, published in March of 1999. That same monograph, republished without change in 2004 by NDCI, gave primary authorship to my successor at NADCP, Karen-Freeman Wilson, (NADCP currently attributes authorship in its web pages to Karen Freeman Wilson). Her authorship of that monograph, as well as the description of her in that monograph, as Executive Director of NDCI in 1999, are not accurate.

3. Retired California Superior Court judge Peggy Hora, a knowledgeable drug court scholar and NADCP Senior Judicial Fellow, declares in her published article, “Through a Glass Gavel: Predicting the Future of Drug Treatment Courts” (2007), on page one:  “I was one of the 100 people who gathered in Miami and created the National Association of Drug Court Professionals in 1994”.

That is not accurate. NADCP was created on May 10th of 1994 in Alexandria Va., where I was elected the founding President of NADCP. Judge Hora was not present (as described in Excerpt No.4; see NADCP Press Release and Bylaws issued May 10, 1994; Summer, 1994 CJER Publication, Drug Courts: A Judicial Manual, found in Appendix D1)

There is a lesson here for all of us. Those in authority may have the power, as well as the right, to create a new future for us, but not a new past.

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