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Statistics and anecdotal evidence show that when it comes to high-risk drug offenders, specialized drug courts can help reduce recidivism and promote abstinence, a panel of problem-solving court experts told a seminar audience Friday at the Urban Courts Symposium. Philadelphia Municipal Court President Judge Louis J. Presenza, who moderated the panel and oversees the city’s adult drug court, spoke of how the prevalence of drug courts has increased over the past decade and given rise to the use of other problem-solving courts. The first drug court, he noted, was created in the early 1990s in Dade County, Fla., when Janet Reno, the former U.S. attorney general, was district attorney. Today, he said, there are well over 1,000 problem-solving courts in jurisdictions across the country. Philadelphia’s system currently has adult and juvenile drug courts, a recently opened gun court and, by 2006, is expected to have a DUI court. Douglas Marlowe, a lawyer and drug courts expert who works at the Treatment Research Institute at the University of Pennsylvania, said the rising number of drug courts has prompted a debate over how involved the judiciary should become in proactive problem-solving initiatives. Many jurists who are thought to be aligned with the right wing – including the current nominee for chief justice of the U.S. Supreme Court – are of the belief that judges should be removed from resolution of legal disputes or other problems until they come before the court for trial proceedings, Marlowe said. But if John Roberts is correct, he continued, then drug courts represent judicial activism in the extreme. Drug courts arose out of necessity, he said, as judges began to see the same drug offenders coming before the court again and again, seemingly none the better for any time served behind bars. Drug courts commonly feature monthly hearings, court-supervised treatment and urinalyses and the prospect of having one’s record expunged. Marlowe cited studies that indicate a 16 percent re-arrest rate among “graduates” of drug courts, compared to a 45 percent rate among regular drug offenders on probation. But most studies, he said, have indicated that “high-risk” offenders – categorized as such based on a long history of substance abuse, anti-social behavior and other factors – benefit greatly from close supervision by a judge, while “low-risk” offenders show equal progress whether they go through drug court or regular probation. Drug courts, Marlowe argued, should be reserved for the most at-risk individuals. Justice Daniel T. Eismann of the Idaho Supreme Court echoed that sentiment. In the late 1990s, while still a district judge, Eismann helped the Boise area create Idaho’s first drug court. Idaho, along with several other largely rural states, has in recent years witnessed a devastating methamphetamine epidemic. The majority of the offenders who come before the Boise drug court, Eismann said, are meth users. (As of 2004, Idaho had 40 drug courts, compared with 15 in Pennsylvania. Missouri, a state whose struggles with the scourge of meth have been widely documented, had 124 drug courts in 2004, the third most in the country behind New York and California.) “Locking them up doesn’t do any good, because once they’re released, they go back to drugs,” he said. Eismann talked about some of his experiences in getting a drug court up and running. The monitoring of the offenders’ constant urinalyses requirements had to be taken on by Boise court staffers because the company to which the treatment services had been outsourced refused to maintain the level of oversight court officials felt was necessary. Funding has always been an issue, but Eismann and his colleagues were able to get a federal grant. Today, the local county pays for the Boise drug court, and additional funding comes from subsidies created by the state’s alcohol sales tax. Some in local law enforcement were skeptical of the program, referring to it as “hug court,” but Eismann said that once they saw how strict the process was, they eventually changed their minds. And finally, the attitudes of the high-risk offenders must be tackled head on. Many such offenders, he said, come before drug court with significant histories of physical and/or sexual abuse. “They don’t come into drug court because they want to get off drugs,” Eismann said. “They come because they want to get out of jail.” (The seminar’s attendees appeared to enjoy Eismann’s stories of being on the front lines of the war on drugs. They were particularly fascinated when Eismann recounted how he had heard an intravenous meth user say that shooting the drug felt like having an orgasm, eating a chocolate cake and falling in love for the first time, all at once. He also spoke of how Boise’s drug court enrollees, who are required to be employed full-time, usually see an increase in their incomes – unless they happen to be exotic dancers and aren’t permitted under the program’s rules to keep on plying their trade. Speaking last, Professor Susan Sturm of the Columbia Law School touched on the philosophical issues posed by the use of problem-solving courts. On the one hand, she said, courts must achieve process legitimacy, which she described as the way in which rule-of-law values are expressed via adjudication. But on the other, she continued, they must gain substantive legitimacy: a sense that the sense is working for the common good, and justice is being served. The tension between those two ideas, she said, lies at the heart of the debate over the propriety of drug courts. Those who are more interested in process legitimacy, she said, would likely be against the use of drug courts. Such critics might say that forcing judges to get too close to a defendant’s problems strips them of their objectivity. Others might argue that it’s wrong for judges to play amateur psychologists. But the perception that the justice system is broken – particularly among communities that are predominantly poor or of color – must be tackled, she said. And she noted that American courts are increasingly emphasizing a remedial phase of litigation: These days the majority of cases settle, often with a judge’s supervision.

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