Courts | Criminal Law | Food and Drug Law | Law
The phenomenal growth of drug courts and other forms of "problem-solving" courts has followed a pattern that is characteristic of many successful innovations: An individual or small group has or stumbles upon a new idea; the idea is put into practice and appears to work; a small number of other actors adopt the innovation and have similar experiences; if there is great demand for the innovation – for example, because it responds to a widely-perceived crisis or satisfies an institutional need and resolves tensions within organizations that adopt it – the innovation rapidly diffuses through the networks in which the early adopters interact. Eventually, what was originally an innovation becomes institutionalized.
Three institutional imperatives gave rise to the diffusion of drug courts. First was the docket pressure created by intensification of the war on drugs in the 1980s. Second was the perception shared by the public and legal elites that the crush of drug cases led to a crisis in the courts, characterized by an ineffective system of punishment and a "revolving door" that recycled offenders without reducing either their drug use or criminality. Third was discomfort among some trial court judges with the restricted sentencing discretion in drug laws enacted during this same period, creating incentives for experimentation with sentencing alternatives. At the same time, the popular demand for punitive responses to control what was perceived as a runaway epidemic of drugs and collateral social problems focused the courts on solutions that blended judicial control with therapeutic interventions.
Drug courts provided a structure and philosophy that promised to resolve each of these tensions. Whereas the public at large tended to view drug-addicted criminals chiefly as a social menace, judges and other legal actors were more comfortable treating (nonviolent) offenses committed by drug addicts as a medical problem. Indeed, because drug courts emphasized both the individual responsibility of drug addicts and the disease model of addiction, they enabled persons with widely divergent views about drug policy to find common ground. They were, in short, an innovation well suited to the times.
Michael C. Dorf & Jeffrey A. Fagan,
Problem-Solving Courts: From Innovation to Institutionalization,
Am. Crim. L. Rev.
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