How To Insure Sanctions In Drug Courts Are Fair

Since the inception of drug courts there has been a struggle to insure procedural due process. Early advocates of drug courts claimed that drug courts could not be effective within an adversarial system. There were critics of this approach most notably defense lawyers.  There are no easy answers. Addictive behavior that is part of chemical dependency is not an easy thing to deal with. Yet the mind set of “I am doing this for your own good” can lead to judicial arrogance. It can undermine procedural fairness which values voice by litigants and respect for litigants. 

“Procedural Due Process, Drug Courts, and Loss of Liberty Sanctions” is the  title of this article authored by Michael Sousa on available via SSRN.  Here is its abstract:

The exponential growth of problem-solving courts across the United States in the past several decades represents a paradigm shift in the American criminal justice system.  These spec that endeavors to treat and rehabilitate offenders with underlying conditions as an alternative to incarceration.  Drug treatment courts focus on providing drug addiction treatment services to offenders suffering from severe use disorders.  As a condition of participating in drug court, offenders agree to be bound by a system of sanctions imposed by the court in response to certain proscribed behaviors.One concern with the quotidian operations of drug treatment courts is whether, and to what degree, procedural due process applies in situations where a participant receives a sanction amounting to a loss of liberty, either a short-term jail stay or an order to attend a residential treatment facility for a designated period of time. Despite their thirty-year existence, these issues remain unresolved.  This Article highlights the current state of the law regarding procedural due process and liberty sanctions in drug treatment courts and then offers qualitative empirical data regarding how these knotty issues play out in action in the context of one adult drug treatment court located in a Western state.  Ultimately, I assert that based upon the very special context in which these problem-solving courts operate, judicial precedent requires only minimal due process protections prior to the imposition of loss of liberty sanctions, and such protections can be satisfied by having drug court clients sign a knowing waiver of these rights prior to the imposition of such sanctions – a practice not presently done in large measure in drug treatment courts nationwide.ialized courts depart from the traditional adversarial model commonly found in the judicial system towards a collaborative model of justice

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