The Construction of Procedural Justice in Drug Treatment Courts - Research Proposal (2007)

THE CONSTRUCTION OF PROCEDURAL JUSTICE

IN DRUG TREATMENT COURTS

A Research Proposal

by Kony Kim

University of California, Berkeley: School of Law Jurisprudence and Social Policy Department

Law 209.5: Sociolegal Research Methods

Professor Kristin Luker

Law 285.63: Law and Social Justice Professor Mary Louise Frampton

December 21, 2007

I. Introduction 1 II. Background and Significance 2

A. Drug Treatment Courts 2 B. Legal Consciousness Studies 4 C. Linking the Frameworks 6

III. Research Query 7 IV. Purpose and Objectives 8 V. Literature Review 10

VI. Methodology 15 A. Data Collection Techniques 15 B. Data Analysis Techniques 16 C. Methodological Merits 17 D. Subject Selection 18 E. Site Selection 19

VII. Feasibility: Pilot Case Study 20 A. Purpose and Query 20 B. Methods: Data Collection 21 C. Preliminary Findings 22 1. Courtroom Observations 22 2. Interviews 26 D. Preliminary Analysis 31

VIII. References 33

APPENDICES A Alameda Co. Drug Court Services Dept. B Ten Key Components of Drug Court C Proposition 36: Overview D Proposition 36: Sections 1-3

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I. INTRODUCTION

This qualitative case study will analyze the mechanisms by which procedural

justice is interpreted and applied in the institutional cultures of drug treatment courts

(DTCs). The theoretical framework undergirding this project is legal consciousness.

Research design will involve in-depth interviews, ethnographic observations, and content

analysis of publications pertaining to two DTC sites: one in California, one in New York.

Findings will have implications for DTC personnel who are concerned about legal and

ethical standards, and especially due process. This research will also be of interest to

legal consciousness scholars who study the construction of legal norms in institutional

settings, and who seek to understand how such norms can (dis)empower citizens.

DTCs represent the first and most common type of problem-solving court (PSC).

In the past two decades, PSCs — special courts that address sociolegal or policy

problems by promoting treatment in a collaborative framework — have become

prominent features of the U.S judiciary, with initiatives in all 50 states. Most PSCs have

proved effective in reducing systemic and social costs; their success has secured federal

funding and state institutionalization of various PSC models. Their unconventional

judicial methods, however, have raised legal and ethical concerns. Research is needed to

clarify the normative tensions that DTCs implicate and to inform the design of legal and

ethical safeguards of DTC clients’ rights.

My study will address this need by addressing the research query: How is the

norm of procedural justice interpreted and applied in the institutional cultures of DTCs?

More specifically: By what social and procedural mechanisms are due process issues

resolved in DTCs, and with what concrete consequences for defendants?

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II. BACKGROUND AND SIGNIFICANCE

A. Drug Treatment Courts

DTCs represent the first and most common PSC model. PSCs are special courts

designed to address specific sociolegal or policy problems — drug abuse, juvenile

delinquency, domestic violence, mental health — where other institutional responses

have failed. Most PSCs present treatment regimes as alternatives to standard criminal

justice processes. Their focus on treatment entails judicial reliance on social and medical

science and is intended to target crime’s root causes.

All PSCs depart significantly from the traditional court model. Whereas a

traditional court focuses on determining guilt within an adversarial framework, a PSC

focuses on promoting therapeutic outcomes within a collaborative framework.

Specifically, in a DTC, court personnel — the judge, prosecutor, defender, and

probationer — work as a team to facilitate rehabilitation. Judges actively monitor

defendants’ progress, and prosecutors and defenders work as partners, freely sharing

information and feedback in the crafting and enacting of dispositions.

The first DTC — which was also the first PSC — was established in 1989 by the

joint efforts of criminal justice and therapeutic professionals in Dade County, Florida.

The model emerged as a response to three institutional imperatives: docket pressures

created by the War on Drugs, the “revolving door” of drug recidivism perpetuated by an

ineffective punitive system, and judicial discomfort with harsh mandatory sentencing

policies for drug crimes (Dorf & Fagan 2003:1502). The DTC responded to these

pressures by applying medical research within an innovative judicial structure.

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The Dade County experiment effectively reduced recidivism and system costs,

spawning 42 similar initiatives in the U.S. by 1994. The success of these iniatives led

Congress to pass the 1994 Crime Act, which established federal funding for DTCs. As of

June 2007, over 1,160 federally funded DTCs were operating in all 50 states. To date,

DTCs have won support among criminal justice stakeholders as an effective alternative to

a costly and overloaded case processing system. In addition, since DTCs emphasize both

accountability and rehabilitation for addicts, they have won support among legal and

political officials across the political spectrum (McCoy 2003:1515).

At the same time, DTCs’ collaborative framework and policy-driven mission have

raised misgivings among practitioners and scholars. Critics protest the loss of due

process guarantees that inhere in adversarial structures, as well as related threats to

judicial impartiality and zealous advocacy. Such critiques rest on concerns to protect

professional standards and legal rights that together constitute procedural justice.

Studies of DTCs (as of PSCs generally) abound, but most are self-assessments

designed to fulfill grant conditions, and few focus on normative issues as opposed to

cost-benefit analyses. Studies that rigorously address normative issues are largely

academic, and those attempting to ground normative concerns in practical experience are

mostly anecdotal and promotional in tone. Hence, critics have flagged the need for DTC

literature to address legal and ethical concerns in a way that links practical experience

with sound theory (Quinn 2001:38). I have designed my research with this need in mind.

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B. Legal Consciousness Studies

Legal consciousness (LC), defined as participation in the construction of legality,

is “a theoretical concept and topic of empirical research [that] developed to address issues

of legal hegemony, particularly how the law sustains its institutional power despite a

persistent gap between the law on the books and the law in action” (Silbey 2005:324)

As part of the broader critical enterprise of law and society scholarship, LC

scholarship adopts what is called the constitutive perspective, viewing institutions and

meanings as human constructs that emerge from ongoing micro-transactions (329). On

this premise, LC studies focus on everyday interactions to examine imperfectly enacted

ideals espoused by legal institutions. LC studies thus probe discrepancies between

abstract principles and specific experiences, seeking to explain how individuals

contribute to “law’s systemic effects as well as to its ineffectiveness” (346).

LC scholars hold that any single account of legality, taken alone, conceals the

social construction of law by erasing the links between concrete experiences and abstract

principles (350). Hence, LC is understood as a collective phenomenon and is not

reducible to individual-level variables, such as opinions about law. As such, to grasp the

process by which legal meanings are constructed, LC scholars must endeavor to keep in

view both the concrete/specific and the abstract/general. For the researcher, this entails

interweaving direct observation and interrogation, on one hand, with the abstraction and

synthesis of narratives thus uncovered, on the other hand (349).

Thus, LC studies reorient law-related research in a way that (1) shifts the starting

point from legal rules to daily life; (2) shifts the focus from measurable behavior to

actors’ “meaning making”; (3) shifts the unit of analysis from traditionally defined

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categories (discrete rules, institutions, opinions) to researcher-defined concepts

(consciousness or cultural schema) (326-28).

Contemporary LC research is animated by three questions: (1) how to socially

situate LC in status groups (race, class, gender) and in organizational settings; (2) how to

resolve debates about the definitions and locations of resistance to law; and (3) how to

bridge micro-level phenomena and macro-level theories, theoretically and

methodologically (351). Of these, the first and third are pertinent to my project.

In response to Question (1), many studies have tried to map variations in LC,

seeking links between distinct interpretations and social locations (or status markers).

Data rarely indicate stable links of this kind; they tend rather to describe how social sites

entail hetereogeneous LC (352). Question (3) entails looking at institutional practices as

“middle ground” between individual actors and abstract principles. The most revealing

inquiries have focused on “cultural industries” where LC is explicitly constructed, but

other studies have fruitfully examined the production of LC in workplaces, agencies, and

clinics, illustrating how internal norms shape formal rules and their applications (360).

My study is designed to build on both lines of inquiry, and to generate empirically

grounded theory where the literature is thin — e.g., in the treatment of “midlevel theories

and cultural practices” that can link specificity and abstraction and can thus illustrate how

a constitutive theory of law “actually works”— in this case, within an uncoventional legal

institution (Mezey 2001:161) Insofar as cultural practices make law, it is crucial to know

not only how the process occurs but the various forms it takes. Thus, I will not simply

document the various strands of LC that constitute the DTCs’ institutional culture; I will

further analyze the mechanisms by which these are propagated, circulated, and reshaped.

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C. Linking the Frameworks

To date, little research on DTCs, or on PSCs in general, incorporates a rigorously

theorized, empirically grounded sociolegal perspective, and no LC studies have focused

on PSCs.1 Thus, while the PSC literature abounds with theoretical critiques, quantitative

analyses, and practitioner-oriented assessments — and the LC literature with studies of

various social groups and institutional sites — no known research effort has bridged these

areas of inquiry. That is, no study has traced the legal meaning-making of PSC personnel

with an eye to linking “mid-level” PSC practices with concrete consequences for clients.

My research is intended to connect these literatures, invoking the methods of LC studies

to map the institutional culture of DTCs — that is, to identify influential normative

frames, to observe the mechanisms by which these frames influence official conduct and,

ultimately, to assess the concrete effects of this conduct on clients.

Thus I propose to study judges and lawyers in DTCs, observing their discourse

and conduct as they interact with each other and with clients. I will analyze professed

values, goals, and role expectations; and I will assess the content and relative salience of

normative frames that emerge from the data. I will look for tensions between frames,

discern common strategies for resolving these tensions, and note how such strategies

affect the treatment of clients.

1 One study that remotely resembles a link between the PSC and LC literatures is Marchandani’s (2005) case study of a domestic violence PSC, in which the researcher observed the interplay of two normative frames in court personnels’ discourse and conduct. However, that study’s design was grounded on theories of state governance; it was not in line with the LC agenda of tracing ideology construction.

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III. RESEARCH QUERY

How is procedural justice interpreted and applied in the institutional cultures of DTCs?

By what social and procedural mechanisms are due process issues resolved in court, and with what concrete consequences for defendants?

In order to answer these queries, I will examine:

• How procedures are framed:

o What values are used to describe roles and responsibilities?

o What objectives are named? How are they justified?

o What normative tensions are mentioned?

• How perspectives inform procedures:

o Are value commitments reflected or belied by courtroom conduct?

How so?

o Are “accepted” strategies for resolving value conflicts consistently

pursued?

• How procedures affect perspectives:

o Does sustained participation in DTC “teamwork” affect the relative

salience of different frames? How so?

o Do certain administrative pressures or practices constrain strategies for

resolving value conflicts? How so?

• How different perspectives interact:

o If normative priorities change, by what mechanisms does this occur?

o If normative tensions persist, what factors shape official responses?

o Are value conflicts explicitly recognized? How are value tradeoffs

characterized? How are responses to “tough choices” rationalized?

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IV. PURPOSE AND OBJECTIVES

Judicial legitimacy, as understood in U.S. legal culture, requires court procedures

that are both effective and fair, wherein neither technocratic nor therapeutic aims occlude

legal and ethical norms. On this premise, my study is designed to produce findings that

might ground a clearer statement of professional norms and procedural issues than DTC

protocols now provide, and thereby help uphold standards of judicial impartiality, zealous

advocacy, and defendant autonomy that are understood to constitute procedural justice.

My specific aims are to clarify the normative frames used to justify DTC

operations and to identify ways in which court procedures reflect or reinforce different

value commitments. I will observe the effect of normative frames on the treatment of

defendants, looking to identify norms and practices that create tension with accepted due

process requirements. To establish a clear and focused analyis, I will focus on the

influences of two value schema often linked with PSCs: technocratic and therapeutic. In

particular, I will consider how technocratic aims affect aspects of procedural justice that I

have identified as salient through preliminary research and fieldwork: judicial

impartiality, effective advocacy, and defendant autonomy.

In sum, this project will:

• Map the normative frames that inform DTC professionals’ discourse and

conduct. This will entail identifying themes that emerge from their discourse

and relating these themes to courtroom procedures and practices.

• Examine how professed value commitments (technocratic aims, therapeutic

aims, basic ethical and legal norms) directly and indirectly inform courtroom

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operations. Examine how normative tensions (conflicting value

commitments) are described and resolved, in discourse and in practice.

• Describe cognitive and procedural mechanisms by which normative priorities

are reinforced or revised. Analyze processes by which perspectives shift in

response to sustained participation in courtroom operations.

• Discern potential threats to the accepted standards of procedural justice,

specifically relating to judicial impartiality, zealous advocacy, and defendant

autonomy.

• Suggest strategies to address the concerns identified. Offer empirically

grounded guidelines for clarifying professional obligations and improving

procedural safeguards.

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V. LITERATURE REVIEW

Extant information on DTCs comes from two main sources: (1) state-sponsored

reports and technical assistance publications; (2) non-state-sponsored research reported in

scholarly literature. Since federal funds for DTCs are conditioned on self-assessments,

the DTC literature stretches back to the earliest initiatives. McCoy (2003:1518), based

on her review of this entire literature, has identified these themes in order of appearance:

• The need to relieve docket overloads and high expenditures in the criminal

justice system, as a result of the War on Drugs and overuse of incarceration.

• A new emphasis on therapeutic approaches to drug addiction, including the

use of 12-step models combined with close supervision.

• The desirability of structural alternatives designed to mitigate the “assembly-

line justice” tendencies of standard adversarial criminal courts.

• The potential of restorative justice models to engage victims in restoring both

offenders and communities.

• The need to ameliorate the severity of mandatory sentencing in drug cases.

Clearly, some of the implied motives are in tension. The first theme presents a utilitarian

rationale; those following it are more offender-centered and therapeutic, although linked

with objectives — rehabilitation, reduced recidivism, less reliance on incarceration —

that are cost-effective in a broad perspective.

Overall, the literature reveals varying ideological strains over time as DTCs

developed. From the outset, the movement encompassed divergent goals and methods:

court administrators sought to reduce caseloads and reduce incarceration costs; judges

were eager to circumvent harsh Drug War policies. Thus, initial responses to the crisis

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focused on streamlined case management and diversion of appropriate defendant groups.

The social work approach gained salience only slowly through the 1990s, as therapeutic

rhetoric gradually overtook management rationales (McCoy 2003:1519). Then, in 1999,

Hora, Schma, & Rosenthal published a landmark law review article linking DTCs with

the academic theory of therapeutic jurisprudence. This article provided what came to be

perceived in the legal community as a definitive conceptualization of the DTC movement.

The Hora et al article also provoked trenchant critiques, providing the impetus for

debates about DTCs that have spanned multiple disciplines and that persist to date. A

widely cited critic is Nolan (2001), who argues based on sociological fieldwork that

insofar as DTCs redefine justice as treatment, they open the door to judicial coercion in

the name of therapeutic efficacy. In the law review literature, Casey (2004) recounts the

history of juvenile courts as a cautionary tale for DTCs, pointing to similar risks of a

“legitimacy crisis” due to issues of perceived unfairness, coercion, and non-neutrality.

From a practitioner’s viewpoint, Quinn (2001) flags legal and ethical problems she faced

as a DTC defender, including split loyalties between the “team” and the client, and the

tendency of “teams” to downplay the right to counsel at key procedural moments. Quinn

also protests the lack of attention to defense perspectives in DTC literature.

Meanwhile, defenses of DTCs abound, but most take a therapeutic or policy

viewpoint and inadequately address legal issues (Quinn 2001:38). Pieces that do address

normative issues are largely theoretical. Among the most rigorous such defenses is that

of Dorf & Sabel (2000), arguing that DTCs are better positioned than mainstream courts

to protect rights because DTC monitoring promotes both efficacy and accountability in

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decision making. Dorf (2003) further describes DTCs (and PSCs) as embodying new

criteria of legitimacy that blur inter-branch bounds in response to complex social needs.

Beyond analytical critiques and defenses, the national drug court associations

sponsor and disseminate practitioner-oriented publications. Of note is an NADCP-

sponsored monograph (Meyer 2007) highlighting constitutional issues and related “best

legal practices.” Also of note are federally funded reports by Goldkamp et al (2002) and

Farole & Cissner (2005), providing feedback from the field. Goldkamp et al, based on

focus group discussions with clients in six sites nationwide, found that the judge’s role is

central, that court sessions play a therapeutic function, and that structured rewards and

sanctions are key motivators. Farole & Cissner, based on focus group dicussions held

with clients and staff in three New York sites, found that staff are aware of clients’

motives and perceptions, that clients perceive staff positively, and that one unaddressed

concern is lack of clarity about defense counsels’ role. Other themes worth noting:

• Many clients do not fully appreciate what they agree to when entering DTC.

• Most clients perceive the DTC’s rules as fair.

• Clients do not perceive defense attorneys as important to DTC operations.

• Courtroom appearances, especially interactions with the judge, have a

powerful effect on client motivation and compliance.

Both reports valuably insert defendants’ views in a literature dominated by academic and

professional perspectives. On this point, Farole & Cissner’s report is especially

noteworthy in explicating its premise that client and staff viewpoints must be compared,

because effective DTC operations depend on staff awareness of clients’ experiences.

Further, both reports illustrate the utility of focus groups as assessment tools.

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However, though focus groups are helpful in framing and identifying issues for

further inquiry, the data they yield are limited to topically arranged excerpts of elicited

opinions and experiences. As such, more scholarly lines of PSC research prefer case

study methods that incorporate long-term observations, to which focus group and

interview data may serve as supplements. For example, Lane (2003) presents transcribed

courtroom scenarios drawn from three PSCs in order to illustrate due process issues.

Based on discussion groups among practitioners regarding these scenarios, he has

concluded that PSCs embody an advance from “assembly-line” courts and that proper

safeguards can mitigate due process problems. Lane’s study insightfully analyzes the

empirical data in light of salient issues, but its key weakness is that the author himself did

not observe the scenarios or conduct the discussions he analyzes.

In contrast, Malkin (2003) has conducted a more empirically focused, rigorously

theorized ethnographic study of a New York community court. Her methods included

observation of the court’s operations and vicinities; attendance at community meetings;

and interviews (informal and formal) with defendants, personnel, and local residents.

Her assessments of legitimacy-related concerns are thus based on her in-depth grasp of

processes and social relations. Fagan & Malkin (2003) have further developed this rich

data, using the community court as a focal point for theorizing community justice.

Malkin’s work, which notably incorporates citizen perspectives, embodies sound research

design and analysis that has yet to be applied to a DTC setting.

Shifting the focus from jurisprudence to sociolegal phenomena, Mirchandani’s

study (2005) of a Utah domestic violence court combines courtroom observations,

content analysis of newspaper accounts and taped legislative debates, and in-depth

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interviews with legal professionals and other court personnel. Based on her analyses of

professional perspectives, she argues that the court structure enables the complementary

pursuit of two theoretically divergent goals: technocratic justice and social justice.

Mirchandani’s triangulated research design is robust and well-tailored to her purpose, and

her analysis links the data to sound theoretical frameworks. Her data lacks direct

attention to individual clients, though, insofar as she is concerned with implications for

large-scale social change. She does note that further work must be done to discern

whether her findings generalize to other PSCs, and whether they resonate with clients’

experiences (Marchandani 2005:411, 412).

My study of DTCs is designed to fulfill something akin to this role that

Marchandani has described: while my inquiry focuses on professional perspectives, it

does so with an eye to understanding the concrete consequences for clients. Thus, going

beyond extant critiques of DTCs (and PSCs), which simply list and analyze points of

ethical tension faced by personnel, I will join Marchandani in examining the process by

which these tensions are constructed. Further, I will go beyond the work of Marchandani

and the others in using the methods of LC scholars to analyze the social and procedural

mechanisms that constitute this process, and to situate these mechanisms in a framework

that links them to normative frames, on one hand, and concrete consequences for clients,

on the other.

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VI. METHODOLOGY

The purpose of my research is to characterize the mechanisms by which

procedural justice is interpreted and applied in the institutional cultures of drug treatment

courts (DTCs). The central guiding questions are:

• In terms of what values do professionals describe roles and responsibilities?

• In what ways do value commitments (fail to) shape official conduct?

• In what ways do procedures shape normative priorities?

• What are concrete consequences for defendants?

A. Data Collection Techniques

My research question will be investigated through a qualitative research design

that consists of multiple methods: observations of two DTC sites, content analyses of

related news accounts and court publications, and interviews of judges and lawyers.

Observations: I will select two DTCs for visitations spanning several months

each (up to a year if possible): one in California, one in New York. I will observe each

court’s internal proceedings and interactions with local service agencies. Specifically, I

will attend court sessions, operations meetings organized to monitor defendants, and

treatment group meetings. Events will be detailed in field notes, then coded and analyzed.

Interviews: I will conduct semi-structured interviews with judges and lawyers

who work in each DTC. Ideally, interviews will occur near the end of my observation

periods, after I have interacted with the individuals informally. Prior to formal interviews,

I will also seek opportunities to talk to other staff, probationers, social service workers

(including treatment providers), and local residents (including defendants, present and

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former). Interviews will be recorded, coded in a qualitative database, and analyzed

according to emergent themes.

Content analysis: I will survey, code, and analyze print media accounts,

promotional publications, and focus-group reports pertaining to these two DTCs. I will

do the same for abstracts of recent publications relating to DTCs generally.

My coding strategy for the analysis of all data — observations and interviews

included — will draw on the research designs of McCoy (2003) and Marchandani (2005).

B. Data Analysis Techniques

McCoy (2003) has traced themes in the DTC literature from 1989 to 2002. I will

build on McCoy’s findings and use her methods to review the literature from 2003 to

2007. This will entail searching for “drug court” (and relevant permutations) in the

Criminal Justice Abstracts database and conducting a content analysis of article and book

abstracts retrieved. (CJA is an electronic database of articles published in 177 scholarly

journals pertaining to crime and the justice system. It includes U.S. and international

journals, six law reviews, and the entire Criminal Justice Library at Rutgers University.)

Marchandani, in her PSC case study, coded all data by the central themes of the

two normative perspectives whose influence she sought to assess: technocratic rationality

and the battered women’s movement. These themes were identified as central based on

reviews of the relevant scholarly literatures. The codes for technocratic rationality, which

provide a template that can be adapted to my research aims, included formal and informal

aspects. Codes for formal aspects were the central variables in Heydebrand & Seron’s

definition (1990): speed, efficiency, effectiveness, cost-effectiveness, techniques of

systemization or standardization, and catalysts triggering demand for technocratic justice

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(heavy loads and insufficient resources). Codes for informal aspects are categories of

informality and flexibility of procedures, including: collaborative approaches to justice,

merging of official roles, merging of disciplines, and common courtroom culture.

Like Marchandani, I will code all data: field notes, media accounts, and interview

transcripts. In coding and analyzing this data, I will take a mixed deductive and inductive

approach. That is, I will approach field notes, news accounts, and transcripts with

identified themes in mind, then modify thematic categories as various issues and insights

emerge and recede, during both data collection and data analysis phases.

C. Methodological Merits

My multi-pronged empirical strategy — observations, interviews, and content

analysis — is well-established in social science scholarship, and it has been employed

among legal and sociolegal scholars studying PSCs (including Malkin and Marchandani).

This triangulation affords several advantages over a single-method approach:

• Comparisons can be made between macro- and micro-level discourse (i.e.,

between print media accounts and feedback given in interviews).

• Comparisons can be made between “legality on the books” (professed value

commitments, published or orally given) and “legality in action” (actual conduct).

• Content analysis research can help place the studied sites in broader context —

that of the history of DTCs, that of surrounding cultural and political dialogues,

and that of contemporary DTCs across the U.S..

A qualitative, case-oriented approach is the best (if not the only) appropriate

strategy for answering my research query, which concerns the collective construction of

norms among actors in an institutional setting. I seek not to generate generalizable

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propositions about PSCs, but to characterize the cumulative process by which pressures

may affect personnel by way of social and procedural mechanisms, and thus to stimulate

fruitful normative reflection about DTC structures and norms. As such, focused

ethnographic study of each site is essential for ensuring that analyses are based on a long,

cumulative process of “being there” (Fagan & Malkin 2003:913).

D. Subject Selection

I have chosen to study DTCs among the PSC models based on interlocking

theoretical and practical grounds. First, as to theoretical reasons, the DTC model has

served as a template for all subsequent PSC applications. Next to mental health courts,

DTCs also embody the purest PSC application of therapeutic jurisprudence, in that its

mission is explicitly defined in terms of treating eligible clients. Second, for practical

purposes, DTCs have been widely institutionalized at state and federal levels. Most

DTCs receive federal grants, which are conditioned on regular reports and assessments.

As such, much data and analysis on DTCs is standardized and readily available.

I have chosen to focus on the perspectives of judges and lawyers based on the

theoretical demands of my research query: I seek to uncover tensions among normative

frames, and discrepancies between professed ideals and actual practices, as manifested in

official conduct. While clients may play some role in shaping these interpretations, the

phenomenon of interest is the collective interpretive process that occurs among those who

officially run the court. The focus, therefore, is on decision makers whose interpretations

collectively constitute official operations. Thus, in examining the operation of normative

frames among court personnel, I seek to contribute to LC scholarship by showing how

LC production among powerholders affects the relatively powerless in their care.

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On a related note, I have designated as units of analysis social and procedural

mechanisms, rather than normative frames or attitudes, based on the tenets of LC theory.

Unlike survey-based studies, which gauge individual opinions, I will examine the

operation of procedural justice as a social construct in a setting where individual actors

and institutional structures define and constrain each other through day-to-day

enactments of procedures. Taking a constitutive view of legality, I start from the premise

that the meaning of procedural justice emerges from this process. Thus, my units of

analysis are the mechanisms that constitute this process. This means that, though

predefined standards of “due process” and “procedural justice” exist, as I collect and

analyze data I will expect to find interpretations and applications that conform to or

diverge from these standards in varying degrees. These varying degrees of conformity

and divergence are of critical interest to the broader purpose of my research.

E. Site Selection

I have chosen to study DTCs in Oakland (CA) and Brooklyn (NY), which are the

sites of some of the nation’s earliest DTCs (second and fourth, respectively) and have

served as pioneer PSC initiatives in their respective state court systems. The successes of

both Alameda County DTC and Brooklyn Treatment Court have helped secure state

funding for DTCs. Both of these courts are part of well-established state collaborative

court programs — and these two state court systems reflect mutually divergent social and

political contexts. It will be instructive to compare how the two courts’ analogous

institutional frameworks operate within mutually distinct social and political cultures.

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VII. FEASIBILITY: PILOT CASE STUDY

Having described my proposed research, I endeavor here to establish that the

project is feasible and potentially fruitful based on the successful execution and

interesting findings of a pilot study.

A. Purpose and Query

As a semester-long project for Law 285.63 (Law and Social Justice) at U.C.

Berkeley School of Law, I conducted a short-term case study of Depart. 108, a courtroom

whose calendar is dedicated to “drug court services” cases, located within Wiley Manuel

Courthouse of Oakland, California (see Appendices A and B). The object of the short-

term study was to examine court operations through the lens of social justice theories. In

particular, I assessed the court’s ability to balance administrative goals with substantive

values espoused in the underlying legislation and in the related literature.

My broad research query was: Does Dept. 108 promote justice for clients as well

as efficacy for the court? To address this query, I focused my observations on aspects of

legal procedure and professional ethos. Regarding process, my guiding question was:

Are procedures carried out fairly as well as efficiently? Regarding ethos, my guiding

questions were: To what extent do personnel tend to empower or to dominate clients?

To what extent are clients respected rather than badgered or processed?

In sum, this preliminary study entailed forming impressions of courtroom

operations and professional conduct, for the purpose of describing how competing value

priorities in DTCs might adversely affect the treatment of defendants.

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B. Methods: Data Collection

Like the larger project proposed, this study combined multiple techniques:

observations, interviews, and (cursory) literature reviews.

Courtroom observations: I attended court sessions (9 am – 12 pm) once per week

for seven weeks (21 hours total). I gained a basic sense of courtroom operations:

procedures, roles, relationships, behavioral patterns, normative and interpersonal tensions.

I took field notes at each visit but did not begin coding data, though patterns began to

emerge. These notes will help shape the thematic categories I use to analyze future data.

Interviews: Over the course of my visitation phase, I spoke informally with two

current clients, one former client, one private defense attorney, and one bailiff. At the

end of the observation phase, I conducted a formal, open-ended interview with the judge.

I took only limited notes during the informal conversations, but recorded summaries and

impressions shortly thereafter. I took extensive notes while interviewing the judge. This

interview data primed my attention to specific issues, which will inform my selection and

presentation of discussion questions to be used in future semi-structured interviews.

Literature reviews: I searched the court website and relevant online databases for

publications (1) discussing due process issues in DTCs, (2) describing DTC programs in

the Alameda County jurisdiction, and (3) pertaining to the underlying state legislation of

Dept. 108 (“Proposition 36”) and other “drug services” calendars like it. This literature

gave me a working knowledge of legal standards and normative issues relating to Dept.

108. It also gave me a sense of Dept. 108’s public mandate as a “Prop. 36 court” (see

Appendices C and D).

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C. Preliminary Findings

In collecting and analyzing fieldwork data from 21 hours of observation and 5

interviews, I formed some key impressions. These impressions will ground preliminary

refinements of the themes that will constitute my coding system (to be developed).

1. Courtroom Observations (21 hours)

Normative Priorities:

• Technocratic pressures and therapeutic elements coexist in tension.

• Technocratic pressures and due process norms coexist in tension.

• Therapeutic aims and due process norms generally do not conflict.

• Technocratic pressures generally predominate.

Like Marchandani, I perceived the simultaneous pursuit of theoretically divergent

aims. Tendencies toward efficient processing (technocratic pressures) coexist with real

concern for clients’ rights as well as for their rehabilitation (due process norms and

therapeutic aims). When these pull in opposing directions, the balance is primarily tipped

by the judge, but attorney input and circumstantial factors (lateness in the day, urgency of

issue raised, accessibility of confirming data, credibility of complaint) also play roles.

Due process and therapeutic aims seem to coexist in harmony with each other,

while both exist in tension with technocratic pressures. The tasks of duly informing

clients, of ensuring their interests and wishes are represented, and of producing properly

tailored dispositions entail slowing down to confirm information. Despite palpable

docket pressures, concern for these aims is apparent, namely in the way that the judge

and defender stop to dialogue with clients who look confused. The defender often moves

to pause proceedings to confer briefly with clients about options presented. Morever, at

23

times when a client seems hasty to waive important rights, the judge stops and confirms,

and re-confirms again, that the decision is informed and voluntary.

That said, overall operations are highly efficient, coordinated, and businesslike.

Efficiency is facilitated by free flow of information among personnel: often, when details

of a client’s case seem problematic, attorneys approach the bench to confer with the

judge. In such cases, technocratic and due process aims are both served. Even so,

technocratic pressures generally push against due process. The businesslike tendency to

speed through cases is in apparent response to commonly felt docket pressures: especially

near the end of the day’s calendar, everyone is glancing at the clock, and personnel show

a heightened preference for pushing problematic cases to tomorrow’s calendar.

Professional Roles:

• Judge has a crucial role in balancing pressures, esp. in preserving due process.

• Judge and court attorneys (defender and prosecutor) are familiar with each other,

which facilitates smooth processing.

• Court attorneys represent different angles on cases without being antagonistic.

• Public defender has informal advantage over private defenders as “team” member.

Private defenders are less coordinated with the team logistically and relationally.

As noted above, when normative pressures become acute, it is the judge who tips

the balance. In Dept. 108, this is a good thing: the judge is conscientious about

protecting due process rights as well as therapeutic aims. He is much less intent on

rushing through cases than are the attorneys; he halts them to clarify facts, and he also

gauges clients’ levels of comprehension by way of facial expressions and body language

(making comments such as “you look confused; do you understand what was just said?”).

For in-custody cases, he recites to clients of their due process (Miranda) slowly and

24

clearly, including paraphrases in plain language. He asks them if they understand their

options, and if he is not convinced that they do, he repeats the information and asks again.

The judge and attorneys have positive working relations: they address each other

in respectful tones, solicit and consider each other’s feedback, and banter during breaks.

Proceedings, while brisk in pace, are informal in tone; team members do not generally

interrupt each other, but will freely interject key clarifications, or even objections, to

facilitate understanding of a case. The judge shows equal respect for each attorney’s

perspective: he listens attentively to their reports; in problematic cases he solicits their

opinions as well as the facts. The defender and prosecutor seem to be on good terms;

their desks sit side by side, and they interact constantly (e.g., exchanging papers, asking

questions, approaching the bench together to confer with the judge).

The defender represents clients’ interests directly: she confers with each client

and gives oral progress reports to the judge, typically highlighting compliant conduct,

noting mitigating factors in cases of non-compliance, and/or arguing for program

modifications desired by the client. The prosecutor may raise countervailing concerns

based on the record (e.g. history of non-compliance: failure to appear or positive drug

tests), but is “on the same page” as the defender in approving rewards for compliance.

In short, the judge and attorneys collaborate to make decision making informed

and efficient. Contra Quinn, I have observed that the public defender plays an important

and respected role on the court team. Tensions may exist between therapeutic and

technocratic goals, but these are goals seem to be shared equally by all team members.

On a related note, this collaborative context creates a distinction between the bulk

of cases assigned to the public defender and the minority of cases handled by private

25

defenders. The public defender, as a member of the court “team,” is closely attuned to

the court’s formal operations and, presumably, to the personal tendencies of other team

members. Official interactions are efficiently coordinated in part because team members

anticipate each other’s questions and responses — at least the nature and timing thereof,

if not the specific content. At the same time, the public defender handles nearly all Dept.

108’s clients — a heavy caseload — and has only minutes to prepare for each appearance.

Often she pauses proceedings to confer with clients who, even while stepping before the

judge, do not know their rights or options. On occasion she mixes up facts or cases.

Private defenders who represent Dept. 108 clients, on the other hand, while

presumably able to prepare more thoroughly for court sessions, are clearly not part of the

team. They must carve out time from their schedules to appear; they are not as intimately

familiar with rules and conditions particular to Dept. 108; and they “get along” with the

judge to varying degrees. Some are late to arrive, others are in a rush to get to another

appointment afterward, and still others do not show up. (The judge responds by cordially

reprimanding tardy attorneys; and he re-schedules no-show cases with apologies to

clients, instructing staff to contact the attorneys.) Certain attorneys, due to lack of

familiarity with Dept. 108’s peculiar operations, grow frustrated and even verge on

disrespecting the court. The judge typically responds by clarifying issues in a tough and

patient tone; he does not gloss over the case or penalize the client. Still, such incidents

hinder smooth and effective decision making, and are clearly not therapeutic for clients.

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2. Interviews

Informal dialogues with clients and personnel alerted me to both parallels and

contrasts among various perceptions about what constitutes fair treatment or “due”

process. (These dialogues also established the potential for future conversations: most of

my informal interviewees gave me permission to contact them again.)

The formal interview with the judge was especially informative in juxtaposition

with my informal exchange with one particular former client. I observed not so much a

dichotomy between perceptions but a complementarity between two differently situated

accounts of the same normative tensions: problems related to informed consent in cases

of diminished mental capacity, tensions between technocratic and therapeutic aims,

conflicts between due process standards and professional incentives in the court structure.

Below I present key points in my dialogues with the former client, Drew, and the

Dept. 108 judge, Hon. Evilio Grillo. To reflect the style and substance of each exchange

as it occurred, I use a narrative style to recount my talk with Drew and an outline to

summarize my talk with Judge Grillo.

Former Client: Drew (90 min. conversation)

Drew, who is in his thirties, is not exactly a “client” of Dept. 108 but a former

defendant who waived out of Prop. 36. We met on my third visit; he had come to “just

hang out” and watch the proceedings, which he claims to do often.

Drew explained that, when first brought to Dept. 108 on drug charges five years

ago, he was in a physically and mentally unstable state due to a recent violent assault.

The public defender advised him that, given his ailments, he would not benefit from

27

treatment and should waive out of Prop. 36 (decline the DTC route in favor of standard

processing) and plan to stay out of trouble. Drew waived out and was put on probation.

What he did not grasp: his waiver was unretractable, and thus he would be subject to

harsher sanctions if he re-offended. He did re-offend, and despite his plea for

consideration of mitigating factors surrounding his waiver, the court sentenced him to 16

months in state prison.

Drew was bitter: both times when he appeared in Dept. 108, he desired treatment.

The first time, his rights to treatment were waived without his full understanding. The

second time, the court did not find his explanation sufficient to give him another chance;

instead, it imposed a sentence that gave him no opportunity to act on his desire to recover.

But Drew stayed true to his desire: on release, he enrolled in a local treatment program,

and he is now living in a halfway house with 24 other recovering addicts. He plans to

return to school, study substance abuse, and ultimately work in a place like Dept. 108.

Drew expressed distress about an in-custody defendant, a young man, whose

hearing we had just watched. This man, who had just been arrested on a second drug

violation, had waived his Prop. 36 benefits in favor of the legally prescribed 9-month

prison sentence. Under Prop. 36, he would undergo therapeutic assessment, agree to the

monitored treatment program recommended by staff, and on completion have his record

expunged. As he explained to the judge, he was rejecting this option because his wife

had just given birth; he wanted to get the sentence over with so he could support his

family. As the defender further explained on his behalf, the client worried that the court

would assign residential treatment, making him unable to support his family for up to a

year. The judge stressed that treatment might be outpatient and could last only 6 months.

28

The defender and judge advised him to reconsider, and the judge stressed that the waiver

was unretractable: if the client re-offended post-release, yet more severe sentences would

apply. But the client stuck to his choice. He signed the waiver and took the sentence.

Drew said this client was making a serious mistake, putting himself in the same

position that Drew unwittingly had. Without treatment, Drew said, a drug addict is

certain to re-offend — and receive a long prison sentence, which did nobody any good.

I asked: What is it that makes things like this happen? What is the biggest

problem with the way the court is doing business? Drew’s reply (paraphrased): They do

not listen to you; they do not care about you; your case makes no difference to them.

They say this program is supposed to help people, but they all just go through the

motions. They rattle off your rights and options to you, but when you are stuck in

custody, you have one thing on your mind: you want to get out. So when it is your turn

on the stand, you say “yes, I understand my options” even if you don’t; you say whatever

you think will get you out of there. The young client — he is not thinking about where

he will be two years from now; he is thinking about his family today. The judge and

lawyer are telling him the consequences, but he is not hearing it.

Drew said that this is why he wants to get educated, become certified as a

substance abuse expert, come back to this court and make a difference. He wants to

ensure that clients know their options: what is at stake when they waive their rights. He

also wants to ensure that clients are heard and informed in a way that he was not. As for

the young client we saw, Drew wished he had just five minutes to sit down and talk sense

to him; he was sure he could reach the young man in a way the professionals could not.

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Judge: Hon. Evilio Grillo (75 min. interview)

What follows is a synopsis of salient topics covered in our interview.

Personal history. Judge Grillo grew up in Oakland. He holds an advanced degree

in public policy. He has worked for social service agencies and the Urban League in

Boston; has worked for the Mayor of Oakland; has 18 years’ experience in private

practice and 8 on the bench. While growing up in Oakland, Judge Grillo observed first-

hand the social problems that bring many Dept. 108 clients before him.

View of role. Judge Grillo sees himself as a small-scale reformer in Dept. 108.

He abides by the “boy scout” principle: leave the campsite cleaner than you found it.

Therefore, he seeks to improve Dept. 108 operations by using his discretion in productive

ways, thus helping the court to accomplish its mission: changing the culture. The best

thing a court can do, he says, is give hope — to clients, personnel and staff, police,

communities — and it can do so by conducting its daily business effectively. Concretely,

this means: increasing the use of drug testing, considering the complexities of a case

before choosing to remand it for an update, discussing relevant new case law with

attorneys to develop consensus on how to interpret and apply it.

Judge Grillo also sees himself as an educator. First, he represents the court in re-

educating addicts for whom drug use is normal. The program’s risk/reward scheme,

which he enforces, is a teaching tool that pushes them toward healthy thinking. Second,

he demonstrates his commitment to due process in a way that pressures overworked

attorneys to pause and do the same. Third, through the court and its enforced dispositions,

he helps send a message to the community that drug abuse is unacceptable behavior but

also a treatable condition.

30

Courtroom relations. The Dept. 108 personnel work well together. They share a

compassion for clients, grounded in a view of addiction as a disease and of addicts as sick

people. (These elements are necessary for an effective judge or advocate in a DTC.) As

for outside attorneys, Judge Grillo has had “rocky times” with many who “try to run the

show” — showing up when they want, ignoring procedural rules. If Judge Grillo

sanctions them, he says, they “trash” him in the legal news. But he tells them when they

are out of line and does not tolerate consistent patterns of non-cooperation.

Due process and normative tensions. Judge Grillo sees procedural justice as a

major concern. The main obstacles to due process: overworked attorneys and “the crush

of business.” The dominant pressure is to standardize, not individualize: rules tend to

swallow up cases. Protection of due process depends on the judge: he is a “lightning

rod,” injecting due process when attorneys would speed through. Attorneys do not have

in mind the grave risks of glossing over pleas and waivers — the potential damage to

individuals (liberty) and to the system (legitimacy). Thus they chafe when Judge Grillo

repeatedly explains terms because they have heard it all before; but he continues to do it,

ever aware that the client has not heard it, and it is the client whose rights are at stake. He

continues to do it because he firmly believes that every client is has right to be heard, and

that efficiency is fully consistent with a minimal recognition of that right.

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D. Preliminary Analysis

From my preliminary findings, I have identified the following points as salient

concerns for further investigation and reflection regarding Dept. 108’s operations:

• Despite formal adherence to due process norms regarding pleas and waivers, consent may not be truly informed, partly due to a communicative disconnect between professionals and clients.

• Heavy caseloads make procedures speedy, while discouraging due consideration

of each case’s details.

• The public defender admirably represents many clients, but lacks time and energy to prepare for cases thoroughly.

• Representation by private defenders may disadvantage clients: outside attorneys

are less coordinated with the court, logistically and personally.

• If not for a judge who is committed to clear standards of procedural justice, technocratic pressures would overwhelm due process norms.

So, to revisit my central queries for this pilot study: Does Dept. 108 promote

justice for clients as well as efficacy for the court? Are procedures carried out fairly as

well as efficiently? To what extent do personnel empower or dominate clients? To what

extent are clients respected rather than badgered or processed?

I have observed that procedures are generally fair, but there is a constant push

toward greater efficiency, and it falls to the judge to inject due process: by intervening at

specific moments, and by setting a general tone of respect for defendants. The personnel

do not oppress or badger clients, and they seem conscious of the need to respect client

rights. But when workload stresses increase, individual attention decreases, just as in any

non-therapeutic court. In contrast to mainstream courts, though, technocratic pressures in

the DTC blur into paternalism: when a decision about treatment is made hastily, it seems

to reflect an assumption of “team knows best.” Judge Grillo did not mention this

particular tendency alongside his concerns about assembly-line styles of justice — he

32

voiced only a strong desire to make the court more therapeutic than technocratic — but

this hasty paternalism created a crucial and life-changing issue for Drew.

In terms of viewing the data through a “legal consciousness” lens, my observation

period has been too brief to discern patterns that might constitute a collective process of

norm construction. However, my study has familiarized me with court operations and

alerted me to various issues, some explicitly recognized by personnel and others perhaps

less so. It has also alerted me to tensions between different personnel, and to ways in

which central figures (judges) may play key roles not only within existing interactive

mechanisms that influence interpretation, but in actually reshaping those mechanisms.

Judge Grillo’s remarks have furnished information about his role that can focus

my search for such mechanisms. For example: he regularly brings new caselaw to the

attorneys’ attention and initiates consensus-building discussions; he consistently repeats

the terms of waivers until he is confident the client understands; he explains his reasoning

for refusing to remand a case if it is based on the client’s needs. As the central figure in

the courtroom, he exerts considerable influence on the interpretive processes of other

personnel. Moreover, he is conscious of this influence and tries to exert it productively.

Further observations might reveal other patterns of formal or informal behavior

— and, more interestingly, patterns of behavior on the part of attorneys manifesting

acceptance, resistance, or revision of the normative priorities that the judge upholds

through his conduct. Judge Grillo mentioned, and my observations confirmed, that both

collaboration and normative tension are ever-present in varying degrees. Longer periods

of immersion in the courtroom environment would surely bring to light the social and

procedural mechanisms that produce that variation, as well as create opportunities to

observe the consequences for defendants like Drew.

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VIII. REFERENCES

Casey T. 2004. When good intentions are not enough: problem-solving courts and the impending crisis of legitimacy. SMU L. Rev. 57:1459-1519

Dorf MC. 2003. Legal indeterminacy and institutionalism. N. Y. U. L. Rev. 78: 875-981 Dorf MC, Fagan JA. Problem-solving courts: from innovation to institutionalization. Am.

Crim. L. Rev. 40:1501-1511 Dorf MC, Sabel CF. 2000. Drug treatment courts and emergent experimentalist

government. Vand. L. Rev. 53:829-883 Fagan J, Malkin V. 2003. Theorizing community justice through community courts.

Fordham Urb. L. J. 30:897-951 Farole DF, Jr., Cissner A 2005. Seeing eye to eye? Participant and staff perspectives on

drug courts. New York: Center for Court Innovation Goldkamp JS 2002. An honest chance: Perspectives on drug courts. Federal Sentencing

Reporter 14(6) 369-372 Hora PF, Schma WG, Rosenthal JTA. 1999. Therapeutic jurisprudence and the drug

treatment court movement: revolutionizing the criminal justice system’s response to drug abuse and crime in America. Notre Dame L. Rev. 74(2):439-537

Lane E. 2003. Due process and drug treatment courts. Fordham Urb. L. J. 30:955-1026 Malkin V. 2003. Community courts and the process of accountability: consensus and

conflict at Red Hook Community Justice Center. Am. Crim. L. Rev. 40:1573-1593 McCoy C. 2003. The politics of problem-solving: an overview of the origins and

development of therapeutic courts. Am. Crim. L. Rev. 40:1513-1534 Meyer WG. 2007. Constitutional and other legal issues in drug court. NADCP.

Retrieved December 20, 2007 from http://legisweb.state.wy.us/2007/interim/ DrugCourt/LegalIssues.pdf

Mezey N. 2001. Out of the ordinary: law, power, culture, and the commonplace. Law &

Soc Inquiry. 26:145-167 Mirchandani R. 2005. What’s so special about specialized courts? State and social change

in Salt Lake City’s domestic violence court. Law & Soc. Rev. 39(2):379-418 Sileby, SS. 2005. After legal consciousness. Annu. Rev. Law Soc. Sci. 2005(1):323-68

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APPENDIX A About Alameda County Drug Court Services Department

Background

The first Drug Court was founded in Dade County, Florida in 1989. The Oakland-Piedmont-Emeryville Municipal Court Drug Court was established in 1991. It was the first Drug Court instituted in California. In 1995, the Alameda County Superior Court created a separate department of the Superior Court to provide defendants charged with possession of controlled substances an opportunity to address their drug addiction through a comprehensive program of drug rehabilitation. In 1996, the two courts combined operations at one courthouse location, thus forming the Alameda County Consolidated Drug Court.

Program

The core components of the Superior Court of California Drug Court are provided by the Alameda County Probation Department, community based treatment providers, and pre-treatment services provided by the Superior Court of California Drug Court Services Office. Once assessment and interviews are done through a collaboration with treatment service providers, the participant is matched with the appropriate level of treatment (outpatient, residential, NA/AA meetings, etc.), all of which include regular drug testing. The drug court team addresses the participant’s drug addiction as well as other critical areas such as mental health problems, medical conditions, literacy skills, motivation and readiness to participate in an on-going drug treatment program and finally, vocational training / job placement services.

Eligibility

Individuals are eligible for participation if they are charged with felony counts of possession of a controlled substance and have no record of violence. They must also meet the requirements of not having a prior drug sales conviction. Some individuals are eligible if they have a documented history of drug use and have been convicted of offenses in attempt to support their drug dependency.

Drug Court Services Department

The Drug Court Services Dept. links all relevant criminal justice agencies, community-based treatment providers, and other anti-drug community organizations in the service of the drug court program’s overall goal of creating a criminal justice environment that promotes treatment and recovery.

The primary goals of the Drug Court Services Dept. is to assess and accurately diagnose participants’ underlying alcohol, drug and in some instances, co-occurring disorders, reducing drug-related crime, retaining participants in treatment, and improving the vocational skills and/or educational levels of all the drug court participants.

Savings to Taxpayers

Recent statistics reflect that taxpayers pay an annual cost of $20,000 to $50,000 per defendant to incarcerate a drug-abusing offender. Treatment in a drug court, however, ranges from approximately $2,500 to $4,000 per offender per year. Moreover, because treatment works, drug court participants are less likely to commit new offenses. Thus, taxpayers save money that would otherwise be expended on new prosecutions and incarceration of offenders.

(available at http://www.alameda.courts.ca.gov/dcs/aboutdcs.html)

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APPENDIX B Ten Key Components of Drug Court Services

Key Component One: Integrate alcohol and other drug treatment services with justice system case processing. Drug Court works with the Probation Department, the District Attorney (DA) and Public Defender’s (PD) Offices, community-based treatment providers, city and county law enforcement agencies, public and faith-based programs. Key Component Two: Use a non-adversarial approach, promote public safety and protects participants’ due process rights – The DA and PD Offices devote full-time staff to work in the Drug Courts. Attorneys participate in discussions to develop individual plans that promote safety and due process for all Drug Court Services clients. Key Component Three: Identify participants early and promptly place them in drug treatment and rehabilitation programs – The court refers defendants to Drug Court Services to meet with a specialist for immediate assessment/interview and placement in outpatient or residential treatment programs. Key Component Four: Provide access to a continuum of alcohol, drug, and related treatment and rehabilitation services. Participants are offered a wide spectrum of treatment options, largely provided by licensed community-based organizations (CBOs) operating under contract to Alameda County Behavioral Health Care Services (ACBHCS). Participants may also participate in faith-based treatment programs. Key Component Five: Monitors clients’ abstinence with continuous alcohol and other drug testing – A series of timely progress reports coupled with court appearances encourage compliance with treatment protocols and judicial mandates that may be ordered as specific terms of probation. Drug Court Services coordinates with treatment providers who administer random and frequent alcohol and other drug testing to monitor abstinence and Drug Court program compliance. Key Component Six: Use a coordinated strategy to govern drug court responses to participants’ compliance – Positive performance results in reductions in fines, fees, and length of probation, as well as, positive affirmation from judicial officials, reduced supervision and eventual graduation from the Drug Court program. Sanctions, when needed, are imposed based on their therapeutic value and include personal admonishments from judicial officials and increased supervision. Participants may also be withheld from advancing from one Drug Court program phase to the next. Key Component Seven: Ongoing judicial interaction with each drug court participant – Drug Court takes place in open court where model participants’ cases can be viewed by less successful and newer clients. This peer-to-peer model allows clients to observe and benefit from the judicial officials’ consistent involvement and interaction with each Drug Court participant. Key Component Eight: Monitor and evaluate to assess program goals and gauge program effectiveness – Drug Court Services Office utilizes information technology to manage and analyze data and client referral needs of the Drug Court program. Key Component Nine: Continue interdisciplinary education to promote effective Drug Court planning, implementation, and operation – Staff meets formal education and experience benchmarks by continuing to educate themselves through regional and national training conferences, studies and research efforts. Key Component Ten: Forges partnerships among Drug Courts, public agencies, and community-based organizations (CBOs) to generate local support and enhance Drug Court program effectiveness – Staff are constantly in communication with Probation Department, the District Attorney (DA) and Public Defender’s (PD) Offices, community-based treatment providers, city and county law enforcement agencies, public and faith-based drug treatment providers to share information and enhance drug court effectiveness. (available at http://www.alameda.courts.ca.gov/dcs/components.html)

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APPENDIX C Proposition 36: Overview

The Substance Abuse and Crime Prevention Act, also known as Proposition 36,

was passed by 61% of California voters on November 7, 2000. This vote permanently

changed state law to allow first- and second-time nonviolent, simple drug possession

offenders the opportunity to receive substance abuse treatment instead of incarceration.

Proposition 36 went into effect on July 1, 2001, with $120 million for treatment services

allocated annually for five years.

Over 36,000 Californians enter treatment each year through Prop 36.

By July 2006, when initial funding for the program ran out, over 150,000 people

benefited from Prop 36 treatment and California taxpayers saved about $1.3 billion.

Requests for expanded funding in 2006 were ignored, and again in 2007 Governor

Schwarzenegger threatened to keep funding at 2000 levels, which amounts to a

significant cut.

The University of California at Los Angeles, which was chosen to run the

required evaluation of Proposition 36, has issued five annual reports on the

implementation and impact of the program since 2003. These reports provide data and

analysis that will help state legislators determine the future of the program. The latest

report, released in April 2007, shows that Proposition 36 treatment is severely under-

funded, and that this is affecting treatment quality. According to researchers, the program

needs at least $228.6 million to provide adequate treatment. UCLA’s contract with the

state has been extended, and researchers will continue to collect and analyze data on the

law and its impacts.

(available at http://www.prop36.org/about.html)

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APPENDIX D Proposition 36: Sections 1-3

SECTION 1. Title

This Act shall be known and may be cited as the "Substance Abuse and Crime Prevention Act of 2000."

SECTION 2. Findings and Declarations

The People of the State of California hereby find and declare all of the following:

(a) Substance abuse treatment is a proven public safety and health measure. Non-violent, drug dependent criminal offenders who receive drug treatment are much less likely to abuse drugs and commit future crimes, and are likelier to live healthier, more stable and more productive lives.

(b) Community safety and health are promoted, and taxpayer dollars are saved, when nonviolent persons convicted of drug possession or drug use are provided appropriate community-based treatment instead of incarceration.

(c) In 1996, Arizona voters by a 2-1 margin passed the Drug Medicalization, Prevention, and Control Act which diverted non-violent drug offenders into drug treatment and education services rather than incarceration. According to a Report Card prepared by the Arizona Supreme Court, the Arizona law: is "resulting in safer communities and more substance abusing probationers in recovery," has already saved state taxpayers millions of dollars, and is helping more than 75% of program participants to remain drug free.

SECTION 3. Purpose and Intent

The People of the State of California hereby declare their purpose and intent in enacting this Act to be as follows:

(a) To divert from incarceration into community-based substance abuse treatment programs non-violent defendants, probationers and parolees charged with simple drug possession or drug use offenses;

(b) To halt the wasteful expenditure of hundreds of millions of dollars each year on the incarceration – and re-incarceration – of non-violent drug users who would be better served by community-based treatment; and

(c) To enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders, and to improve public health by reducing drug abuse and drug dependence through proven and effective drug treatment strategies.