Drug abuse is one of the most prevalent crimes in the world. It is a concern for both local governments and international organizations. In fact, many countries around the world have understood that they cannot win the ‘war on drugs’ without a proper international cooperation. This came after the assessment that drugs abuse is classified among the most rapidly rising crimes all over the world. it has been ranked second only after human trafficking. In the past decades, local governments of several countries worldwide have been putting much efforts and resources in fighting this phenomenon. Their first reaction was to enable strict rules and juridical regulations in an attempt to limit drug abuse. They saw this phenomenon as an ever rising menace for the safety and security of their citizens and society. Thus, the justice system was introduced with various measures designed in dealing with the rising drug abuse tendency. Some of the latest measures were the introduction of what has come to be known as therapeutic justice. One of the most famous parts of these measures was the introduction of drug courts whose mandate is to hear cases related to drug related offences, which are minor in nature. The purpose of these new courts introduced in the juridical system was to prevent individuals with minor abuses step up their offenses to major ones. However, since the time of their introduction, a fierce debate has been ranging on whether the introduction of drug courts as an important advancement by the justice system in dealing with the drug abuse menace.
The purpose of this paper is to make a clear assessment and look in greater depths on therapeutic justice, the introduction of drug courts and how effective are they. An important assessment will be done to see if at all they are curbing this ever-rising trend of drug abuse. This is an important evaluation since the fight against drug abuse is something that society considers a priority and is keen in finding the right solution for it (Amy. 2009).
The drug courts
The first drug court was established in 1989. At the time it was clear that it was necessary and indispensable for the justice system to come up with an urgent measure of curbing drug abuse. The need was to try and help drug addicts who were already hooked to slowly get out of the practice. Since then, more than 1,500 courts of such a nature have been established throughout all the country. Therapeutic justice is a term that was first used by the author Winick. He was a legal scholar and used the term while he was trying to establish the best way in which a drug court could function effectively. According to his view, therapeutic justice appears like a practical guide on how drug courts should operate. However, a radical and thorough examination of the concept reveals that it brings complicated issues especially when it comes to the definition of justice of citizens (Nolan, 2002).
The aim of the drug courts is to reduce the rate of drug offenders, especially among the juveniles, by trying to prevent their accession to major offenses and abuses.
In the recent past use of drug courts became very popular among individual states. One of the reasons why this happened perhaps is the fact because the federal government consistently offered support for them in the form of funds and grants. One analyst has been quoted saying that “the introduction of therapeutic justice and the aspect of drug courts is a great advancement in the justice system as it now focuses on the needs of an individual rather than equality and justice for all. To many authors and scholars who support this concept, it is a revolution that has been long overdue in the justice system” (Amy, 2009).
To be able to understand this concept clearly it is necessary to have a clear picture of what it is and what it is not. Being a new concept and practice, therapeutic justice has been portrayed in many faces and versions. Some of them are quite misleading and opposite of the truth. A good start as an example is the concept of drug courts. If we have to consider legally what a court is, then it is impossible to deem these organizations as courts. In fact, they do not technically qualify to be referred to as courts. Thus to label them as drug ‘courts’ are quite misleading and far from the truth. From a juridical point of view, courts of any nature or level can only be established by an Act of Parliament. Thus, these drug courts are therefore, programs that are created administratively to offer social services (Nolan, 2002).
Drug courts are quite different from what we label as ‘traditional courts’, which are established through the judicial system. While traditional courts aim at guaranteeing justice and fairness for all by punishing the offenders, the so called ‘drug courts’ these days shift the attention to the offender.
Their claim is that offenders who are found guilty of a drug related offence require aid and help rather than imprisonment. The idea of drug courts and therapeutic justice is not as new. Although it has begun gaining popularity only recently, its roots can be traced back in the year 1899. However, for a long time this concept was reserved for the juvenile courts until our times when it was discovered that even adult offenders were in dire need of such a social service. Incorporating this idea into the mainstream courts was also difficult as the judicial system vehemently opposed the move terming as a direct obstruction of justice for the greater majority. It argued that although the idea of drug courts was well intended, it could not be exchanged with the process of the rule of the law. However, with time the idea of drug courts has slowly been assimilated and the judicial system has embraced therapeutic justice as part of the ordinary court process (Marilyn, 2003).
While this revolution and very important advancement in the judicial system now knows as therapeutic justice is considered to be the ‘promised salvation’ that we all have been waiting for, it is important to look at some other aspects of the issue. One of these important other issues is that of the costs that this new concept requires us to bear. To begin with some analysts argue that the incorporation of such a concept in the mainstream judicial system is a big threat to the attainment of justice, which is the main aim of courts. as described above, it is also a misleading term which may lead to misunderstandings and confuse people’s perceptions about what a court should be about. This is because while implementing this new institutional concept, the courts and the judges will be obliged to depart or shift slightly from the juridical procedure toward a more ‘compromising’ methodology. As such they are likely to compromise their delivering of justice for the aggrieved party. The conflict comes due to the fact that this methodology of therapeutic justice is more concerned with the achievement of particular intended results rather than impartiality of the judicial system or fairness (Nolan. 2002).
The people who are in support of this concept do recognize these dangers but dismiss them as mere disadvantages which can be easily overcome. However, it remains a matter of fact that these loopholes are quite serious and can lead to miscarriage of the justice system itself.
Thus, what was intended to be a mode of fighting drug abuse can turn into a ‘collateral damage’ for the entire system. Yet, the advocates of drug courts and therapeutic justice do have some justifications with which they support their arguments. To begin with, they argue that these social programs are very effective. According to supporters of the drug courts, all offenders who have gone through this program are less willing to turn back to committing drug related offences. Furthermore, for that minority which decides to go back into crime commission the rate is far much lower than the rate prior to the use of drug courts. By so doing, these advocates of this concept argue that public and government resources are saved as there are not as many people who have to be confined in prisons. In addition, it reduces the congestion that characterizes the prison systems in the country (Marilyn. 2003).
Secondly, therapeutic justice brings about institutional harmony which is essential in fighting the drugs abuse phenomena.
This happens because drug courts are indulged to collaborate with other governmental agencies or non-governmental organizations. The traditional courts used to work independently without involving other stakeholders. For example, with the introduction of drug courts the judges assigned had to consult with other people related to the issue. This was true especially for those in charge of social programs in order to achieve the desired results of therapeutic justice. Drug courts have also made the general public to have respect for the judicial system by involving it into the process. The traditional judicial systems appeared to alienate the public as they were not allowed to participate in the attainment of justice. However therapeutic justice brings in a whole lot of different agencies and organization most of which are social oriented (Amy. 2009).
These are some of the main advantages of this system. Nevertheless, there are many disadvantages some of which could be quite costly if they were to be ignored. Firstly therapeutic justice has been seen to cause a great strain on the resources due to its approach. The approach of the drug courts is that of a court composed of its own judges. This means that many judges are required to be employed exclusively for this purpose. This means that the government has to spend more on judge salaries and related expenses. In addition judges have to personally supervise the treatment of their drug offenders which are being administered. This supervision takes a great amount of time and as a result there is a backlog of cases that await hearing. Although one of the aims of drug courts as mentioned earlier is to ensure unity between courts, this purpose is defeated by the fact that drug courts are special as they were established separately from the mainstream courts (David, 1972).
Another critique is that therapeutic justice is also seen as a concept that has brought about disturbance when it comes to the separation of powers and independence in the three forms of state authority. They do this by allowing judges to come up with decisions and solutions which are supposed to be made by particular people in their various duly elected positions. By doing so the line that divides the lawmakers, the interpreters of these laws and those with the mandate to implement the laws becomes blurred and sometimes non-existent (Nolan, 2002).
The impartiality and objectivity of judges has also been heavily compromised with the introduction of therapeutic justice. In addition to conducting the judging process, the judge is required to be part of the team that conducts the therapy sessions. The main aim in the therapy process and sessions is to achieve certain result which is to ensure that the offender who is hooked in drugs will be able to come out clean.
When participating in these sessions, there is a likelihood that the judge may bend some of the ethical normative in place in an attempt to ensure that the desired results are achieved. As a result, the impartiality and objectivity of the judge are compromised and the purpose of the whole process is at risk. Now, this becomes a complex issue, where the judge who is supposed to be the adjudicator becomes engaged in the therapy sessions as his independence is lost (Bruce, 2005).
These social programs have also been evaluated to serve as interfering with the judgment of the judge.
They serve as a form of substitution for individual judgment with their various checks of the process of therapeutic justice. By doing so the process results in the formation of a loophole which can easily lead to abuse of power. The separation of the three forms of power within a state, the impartiality and autonomy of the judicial system (the ‘justice equal to all’ emblem), the rule of law and the due process have always formed the bedrock for the sound foundations on which is based the juridical system of the United States along with its legal principles (Marilyn, 2003).
As one can understand from what is written above, therapeutic justice unfortunately seems to compromise all of the above mentioned established achievements. This form of justice may be deemed as important steps forward for the judicial system but still it has so many negative collateral effects and causes so many damages that rather it would be best to label it a retrogressive move. Such a move may, and will, snatch away the constitutional right of every citizen to be accorded justice in a court of law. If all these loopholes are to be ignored, the result will be the equivalent of putting away the judicial system and following the ‘law of the jungle’ (Gray, 2001). While there are times all these loopholes need to be addressed and necessary amendments made to ensure that the greater majority still enjoy their rights to have equal justice.
Amy, D. (2009). Law, literature, and therapeutic jurisprudence, New York: Carolina Academic Press.
Bruce, J. (2005). Civil commitment: a therapeutic jurisprudence model. London: Oxford University Press.
David, B. (1972). Therapeutic Justice. London: Minnesota Law Review Foundation.
Gray, J. (2001). Why has our drug laws failed? Temple, MI: Temple University Press.
Marilyn, M. (2003). Therapeutic Jurisprudence, New York: Federation Press.
Nolan, M. (2002). Therapeutic justice: The efficacy of the drug court movement in Georgia. New York: Sunny Press.