Somebody got it in their head a while back that drug courts was a good idea.  New York’s District Attorney Association thinks so, and has called for an expansion of drug courts.

“The entire board of directors, made up of DAs from upstate, downstate, big counties, little counties, both sides of the aisle, resolved to make (drug courts) a legislative initiative,” said Murphy, a Republican. For some time, drug courts have operated in several counties “even though we’re not getting a penny for them, but because it’s the right thing to do.”

Whenever the DAs think something is a great idea, I figure that there’s something wrong with it.  When they say it’s the right thing to do, then I get really scared.  Their idea of “the right thing” and mine rarely conincide.

The drug court notion was aimed at “fixing” perceived problems, the idea being that the basic adversarial nature of litigation had failed to provide people with a means of breaking the cycle of drug-related crime.  So drug courts promoted diversionary sentences, primarily treatment.  Now I assure you that I am all in favor of treatment for drug addicts.  What I am not in favor of is the notion that courts are no longer in the business of first deciding guilt and innocence.

The idea of drug courts emitted an unpleasant odor to me from day 1.  My problem is two-fold:  The cost to the integrity of the system and the courts, supposedly our detached and neutral magistrates, becoming a party to the law enforcement effort and engaged in curing society’s problems.  This isn’t the role of the court.

What is the benefit of a drug court?  According to the National Drug Court Institute, this is the purpose :

The traditional adversarial system of justice, designed to resolve legal disputes, is ineffective at addressing AOD abuse. Moreover, many features of the court system actually contribute to AOD abuse instead of curbing it: Traditional defense counsel functions and court procedures often reinforce the offender’s denial of an AOD problem. The offender may not be assessed for AOD use until months after arrest, if at all. Moreover, the criminal justice system is often an unwitting enabler of continuing drug use because few immediate consequences for continued AOD use are imposed. When referrals to treatment are made, they can occur months or years after the offense and there is little or no inducement to complete the program.

In response, a few forward-thinking and innovative jurisdictions began to reexamine the relationship between criminal justice processing and AOD treatment services. Several commonsense improvements sprang up spontaneously throughout the Nation. It became increasingly apparent that treatment providers and criminal justice practitioners shared common goals: stopping the illicit use and abuse of all addictive substances and curtailing related criminal activity. Each system possessed unique capabilities and resources that could complement the other and enhance the effectiveness of both if combined in partnership. Thus, the concept of treatment-oriented drug courts was born.

Very holistic.  But underlying this helpful scheme is one troubling concept; the end of a defendant’s ability to challenge the accusations against him.

In exchange for this wonderful system to help drug addicts, defendants are compelled give up the right to challenge their arrest, to vindicate violations of their constitutional rights, to argue their innocence.  This isn’t really a court; it’s surrender if, at the end of the day, a defendant wants diversionary treatment.

On the other hand, if a defendant, drug-addicted though he may be, seeks to challenge his alleged guilt or dispute the way he was caught, he gives up the opportunity to receive needed help at the end of the proceedings.  The adversarial nature of our criminal justice system is, according to drug court advocates, the problem with “fixing” this problem, and if you want to fight, then you lose the chance at rehabilitation.

Drug courts are a  trade off.  In my view, the wrong trade-off.  If rehab will make do such great things to eliminate recidivism, then why would it not be the appropriate option after the rest of the adversarial system has done its job?  The answer is that this is a game, where the system will give a defendant the benefit of actually helping him, but only if the defendant gives up the right to fight.  This is intended to coerce the defendant to make a choice, surrender your rights in exchange for help.  Fight and you will be denied the help you need.

Many will think this is a fair trade-off, one that benefits the defendant and exacts a reasonable price for that benefit.  To me, there is no reason why a price, reasonable or otherwise, need be charged at all.  Our criminal justice system exists for a reason, both to prevent the government from having its way with people and to keep its agents from violating the Constitution in the process.  There should be no price for exercising the rights set forth in the Constitution.  And there should be obstacle to fixing problems such as drug addition after the system has completed its job.

No, I don’t think drug courts are a great idea.  And denial of diversionary drug treatment because of the exercise of constitutional rights exemplifies why the government can’t be trusted.  It’s a blatant reminder of how needlessly punitive government can be when given a chance.