Outline Draft

The Drug Court as Postmodern Justice

Edward G. Armstrong

Published online: 25 September 2008 � Springer Science+Business Media B.V. 2008

Abstract The drug court is far more than a new version of the old drug-diversion idea. It

is a fundamental embodiment of postmodern justice and represents a paradigm shift from

criminal court practices. This article compares the drug court to the criminal court in terms

of the dimensions of the modernism-postmodernism debate as specified in legal research

and public policy scholarship. First, the courts are differentiated in terms of their world-

views, ideas on the nature of society, definitions of truth, and conceptions of the foundation

of law. Next, the drug court and criminal court jurisprudence are juxtaposed. Specific

dimensions include their collaborative versus adversarial systems and the individualized

versus the due process framework. Finally, the two courts are considered in terms of their

divergent visions of the drug user. Upon analysis, it appears that the two courts are in an

intractable ideological disagreement framed by competing modern versus postmodern

intellectual dispositions.

Introduction

Commentators observe that criminal justice studies are ‘‘an a-theoretical pursuit’’ (Kraska

2006, p. 168) and ‘‘theoretically impoverished’’ (Frauley 2005, p. 251). The possibility of a

theoretically engaged account of criminal justice policy is thereby foreclosed. The lack of

theoretical concerns is particularly evident in the studies of drug courts (henceforth, DCs).

While DCs proliferate, DC research has neither a ‘‘unifying perspective’’ nor ‘‘a set of

competing perspectives’’ (Longshore et al. 2001, p. 11). In the rare instances when theo-

retical issues are paramount, the tendency is to subsume the DC under an already

developed middle-range justice framework. On the one hand, the underlying theory of the

DC is seen as an elaboration of the therapeutic jurisprudence model (e.g., Senjo and Leip

2001). On the other hand, the DC is envisioned as a development of the restorative justice

E. G. Armstrong (&) Sociology/Anthropology, St. Cloud State University, SH 262, 720 4th Avenue South, St. Cloud, MN 56301, USA e-mail: [email protected]

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Crit Crim (2008) 16:271–284 DOI 10.1007/s10612-008-9061-9

paradigm (e.g., Sanford and Arrigo 2005). Although Jensen and Mosher (2006, p. 451) tie

the DC’s basic philosophy to both therapeutic jurisprudence and restorative justice theo-

ries, they admit that neither paradigm ‘‘directly’’ informs DC philosophy. When theory is

an issue in the consideration of DCs per se, the term ‘‘theoretical’’ is used to modify

‘‘mechanisms,’’ as in factors that might mediate the effects of court process on outcomes

(Gottfredson et al. 2007, p. 5). The lack of a theoretical framework is all the more sur-

prising given that the quantitative work investigating DCs is a major contributor to the

‘‘renaissance’’ of scientific criminal justice research. Writing about DCs, Sherman (2005,

p. 128) states: ‘‘Perhaps no other innovation in criminal justice has had so many controlled

field tests conducted by so many different independent researchers.’’

The purpose of this paper is to describe, albeit in a preliminary manner, the nature of the

drug court as an embodiment of postmodern provisos delimited in philosophical discourse

as well as in legal research and public policy scholarship. Contemporary research on legal

culture and legal consciousness reflects a postmodern turn (Seron and Munger 1996).

Public administration writers increasingly focus on the postmodern condition and its

implication for public policy (Spicer 2005). To facilitate this task, I compare–more often,

juxtapose–the essential elements of the DC with those of the criminal court (henceforth,

CC). Before I do this, three caveats are in order. First, the typologies I present, as with all

classificatory schemes, are provisional characterizations. My hope is that they serve as

heuristic devices for further questioning of the possibility that postmodernism provides a

theoretical framework for the DC. Next, it appears to me that the DC is postmodern

because it combines ideas strongly influenced, perhaps even shaped, by postmodernism.

The DC is not postmodern by design, its prime movers are not adhering to any precon-

ceived intellectual or philosophical tradition. Instead the DC is a developing institution

whose creators add components and adapt features based on a first-hand consideration of

the problem at hand. This, it turns out, is exactly what individuals engaged in the post-

modern project do when they challenge adherence to universally applicable frameworks of

interpretation. Finally, my approach is marked by a fundamental ambiguity. To begin, the

analysis employs a rigidly dualistic framework, which, as will be discussed shortly, is

decidedly ‘‘modern.’’ But my goal is to have the CC–DC comparison motivate a radical

questioning of the ‘‘modern’’ foundation of CCs and direct attention to the DC as an

on-going and developing ‘‘postmodern’’ critique of conventional judicial wisdom.

Overview

An overview of the history of the drug court and the nature of postmodernism is needed to

provide a bit of explication before the CC–DC comparison is possible. Often opponents of

DCs and critics of postmodernism serve as their chroniclers. My brief remarks provide a

more credible commentary.

The Drug Court

In June 1989, the Circuit Court of what is now Miami-Dade County, Florida instituted a

special DC docket, thereby creating the first drug treatment court. At that time, Janet Reno,

the future United States Attorney General, was the County’s State Attorney. She was

instrumental in the development of this judicial innovation. Unlike earlier segregated

courts that focused on expedited management of drug case processing, this new court

offered treatment protocols monitored by a specially assigned sentencing judge rather than

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a probation officer and allowed for continued participation even if conditions of partici-

pation were violated. After President Clinton appointed Reno the Attorney General, she

continued to speak out about the benefits of treatment, especially when compared to the

liabilities of interdiction. On September 13, 1994, the President signed a crime bill (The

Violent Crime Control and Law Enforcement Act of 1994) that, for the first time, included

grants, $1 billion worth, for DCs. At that time, there were 41 DCs operating nationwide. A

year later, their number grew to 84 (Drug courts 1997). In 2008, the United States has over

2,100 DCs (NDCI 2008).

But an interest in treatment was only a small, perhaps insignificant, part of the moti-

vation for the first and subsequent DCs. During the 1980, cities were experiencing a rise of

crack cocaine use and law enforcement was arresting vast numbers of the small-time

entrepreneurs dealing the relatively inexpensive substance. Criminal courts had a huge

backlog of defendants charged with drug possession. Cases were delayed because over-

worked prosecutors and defense attorneys could not coordinate their schedules. Numerous

prisoners in felony drug cases were released because the police laboratories could not test

the seized substances and return their findings in time for the required grand-jury hearings.

Jails and the courts were more crowded than ever. Allegedly, these crowded conditions

lead to hasty resolutions of plea bargains and a consequent drop in the average sentences

negotiated between the prosecutors and the defense attorneys (Kerr 1986). The number of

defendants continued to rise and something had to be done to handle the volume of cases.

Reno, among others, saw the DC as a potential solution to these problems. Throughout

American history, when criminal courts were faced with large numbers of arrests for

particular kinds of crime, specialty courts were created. Sunrise Courts handled arrested

drunkards, Women’s Courts dealt with prostitutes, and Traffic Courts were introduced

when traffic offenses reached first place on the list of the most common law violations

(Friedman 1993).

Likewise, the DC’s treatment approach to drug addiction was hardly innovative.

Throughout the twentieth century, drug-treatment hospitals admitted many who were

placed there under criminal prosecution (Anglin and Hser 1990). In 1961, the California

Department of Corrections initiated a program that mandated treatment for addicts con-

victed of any crime (California Cites Drug Cure Gains 1966). If individuals were arrested

for narcotics charges, any misdemeanors or prostitution, there was the possibility of

deferred prosecution. The arrestees could seek commitment and, if the judge concurred

with their request, the charges were dropped. If the judge thought that one of these

individuals appeared to be dependent on drugs, the judge ordered them to undergo a

medical examination. If they indeed were addicts, their choice was simple: commitment or

a trial. If they selected a trial and were convicted, they were sent to treatment for three

years. For felony defendants, the procedure was the same. But upon conviction, the judge

had the choice of either sending the individuals to prison or to a mandatory five years of

treatment. In a sense, the DC is a new version of the old drug-diversion idea of offering

convicted drug users treatment in lieu of incarceration (Kleiman 2003). But this ‘‘new

version’’ of diversion represents a radical departure from the old way of handling drug

cases. The court and treatment are no longer separate entities.

Commentators see the DC as a dramatic departure from traditional judicial philosophy

that represents ‘‘a sea-change in American courts’’ (Harrell 2003, p. 207). DC advocates

are deemed part of ‘‘a social movement’’ because they have joined together ‘‘with the

express purpose of transforming the American judicial system’’ (Nolan 2001, p. 43).

Proponents contend that the DC is a ‘‘qualitatively new phenomenon’’ (Steen 2002, p. 51),

one that makes ‘‘a significant contribution toward refocusing the criminal justice system’’

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(Reisig 1998, p. 172) and one that represents the ‘‘wave of the future’’ for criminal justice

(Simmons 1999/2000, p. 261).

The foundation of the DC model is ‘‘its underlying values and philosophical outlook’’

(Goldkamp 2000, p. 930). Often, researchers regard these underlying values and philo-

sophic outlook as sufficiently unprecedented and open-ended to constitute a tradition

shattering ‘‘paradigm shift’’ from CC practices (Harrell 2003; Sanford and Arrigo 2005;

Egbert et al. 2006). As DCs developed, they have shown an affinity for the predilections of

postmodernism. I contend that postmodernism provides the basic tenets and theoretical

infrastructure for this new paradigm.

Postmodernism

Postmodernism is contextually understood in two ways: as a ‘‘negation’’ and as an

‘‘epochal change’’ (Jarvis 1998, p. 96). More precisely, ‘‘it is important to distinguish

between postmodern theory and the postmodern era or to differentiate between post- modernity (period of time) and postmodernism (theory/philosophy)’’ (King 2005, p. 519).

In their investigation of studies of penality, Penna and Yar (2003, p. 475) found ‘‘prob-

lematic conceptual slippages’’ in the use of these terms. Specifying the different meanings

of the terms is necessary to avoid any sort of slippage between them.

The postmodern historical period is alternately called post-Fordist, post-industrial, post-

structural, and within criminal justice and penal policy theorizing, late-modernity. Indeed,

the ‘‘late-modern orientation’’ links criminal justice and crime control phenomena to

developing social conditions. For example, when Hallsworth (2002, p. 148) insightfully

characterizes and critiques postmodern penality as a punitive shift in which pain delivery is

a legitimate penal strategy, the referent is ‘‘recent economic shift and changing social

relations.’’ Likewise, Garland and Sparks (2000, p. 200) ascertain that new penal policies

such as the expression of punitive sentiment and enhanced control are rooted in a reac-

tionary schematization of ‘‘late modernity’’ which ‘‘has been prominent since the late

1970.’’ In the last 35 years, as Brown’s (2006, p. 306) critical commentary concisely

clarifies, ‘‘punitivity arose out of the experience of unsettled sociopolitical conditions.’’

This perspective on postmodernity is ‘‘probably the most theoretically vigorous pursuit of

criminal justice/crime control phenomena in the literature today’’ (Kraska 2006, p. 179).

Postmodernism emerged as a reaction to and deconstruction of established forms of

modernism. Modernism is a product of the Enlightenment. In pre-modern or traditional

society, truth is revealed by God through religious traditions. The fundamental duality is

the scared and the profane. Modern scholars place their faith in scientifically-derived

empirical data and ultimately, the power of reasoning. Science is the way to prove which

alternative hypothesis is valid. Truth is achieved by reasoning. The fundamental dualities

are subjective impressions versus objective facts, emotions versus reason, and true versus

false. Postmodernism begins with a rejection of these and all other dualities (e.g., Plato’s

form-content and Descartes’ mind-body).

Jacques Derrida is often considered the leading figure of postmodernism (Sarup 1989;

Rorty 1995; Peters 2004). Derrida began his scholarly life with an examination of

phenomenology where a rejection of dualities is fundamental. Phenomenologically

understood, consciousness is defined by its intentionality—every ‘‘I think’’ has ‘‘some-

thing thought.’’ Both phenomenology and postmodernism transcend the subject-object

polarity and the dichotomized ‘‘knower’’ and the ‘‘known.’’ Derrida (1981, p. 41)

approaches dualities by using what he refers to as ‘‘a kind of general strategy of

deconstruction.’’ Derrida (1972, p. 271) also offered a more specific definition where

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‘‘deconstruction’’ is referred to as the questioning of ‘‘the sedimentation of the language

we use.’’ This critical operation uncovers implicit dualities that are inscribed within

language, or specifically, a particular text. However, oppositional concepts are not simply

paired notions. Interpreting or attending to the differences between the concepts reveals

their salient features. The taken-for-granted dualities are ‘‘a hierarchy and an order of

subordination’’ (Derrida 1982, p. 329). It is the scared over the profane, reason over

emotions, mind over matter (body) and truth over falsehood. The deconstructive process

is on-going because language is always developing and the meaning of texts is never

fixed. Accordingly, for Derrida (1979, p. 140), ‘‘truth is plural.’’ The postmodern

rejection of all philosophical systems is tied to the notion that the deconstruction is a

never ending process of interpretation.

Derrida (1972) invented the term ‘‘post-structuralism’’ as a way to summarize his

challenges to analytical perspectives that retain fixed foundational assumptions and that

develop as a linear narrative from these assumptions. Minimally, he had in mind

structuralist branches of linguistics and anthropology that reduce the meaning of texts to

the structure of particular languages thereby removing any interest in the foundation of

the texts. However, this critique was extended to all theoretical perspectives that accept

a fund of concepts deemed indispensible. Similar reductionist practices range from the

Enlightenment’s faith in science to Marx and relations of economic production and

Freud and the workings of psychic apparatus. Of course, Derrida’s approach does not

constitute any sort of standard for others who share his rejection of dualities. For

example, Michel Foucault’s (1979) philosophically informed history of prisons is hardly

suited for reliance on deconstruction. Here, Foucault finds that the more rational pun-

ishment became, the more the power to punish became inserted into the society.

Consequently, Foucault (1979, p. 27) shows, in one of his innumerable postmodern

insights, how ‘‘power and knowledge directly imply one another.’’ Without question,

rejection of any limitations concerning one’s style of research is a key element of

postmodernism. Typically, adherence to a pre-conceived conceptual scheme restricts the

fund of available investigative tools. One thing is certain: in postmodernism, this will

never happen. As Lyotard (1984, p. xxiv) writes: ‘‘I define postmodern as incredulity

towards metanarratives.’’

Challenging metanarratives and deconstructing dualities are radical activities.

According to Derrida (1981, p. 41), ‘‘to deconstruct the opposition is above all, at a

particular moment, to reverse the hierarchy.’’ For example, the notion that truth is ‘‘plural,’’

that it is not a static, pre-social entity, leads to recognition of social pluralism and cultural

relativism. It is a short step to uncovering the role of power in defining truth. Of course, the

idea of power immediately implicates the powerless. Postmodernism is an intellectual

disposition that is unavoidably animated by a compassionate concern for individuals’

well-being.

Fundamental Observations

Now I can begin to frame the CC–DC comparison in terms of the modern-postmodern

differentiation. The DC continues to develop as a reaction to and a rejection of the CC

model. Starting at the broadest level, CCs and DCs differ in terms of their modern versus

postmodern worldviews, visions of the nature of society, definitions of truth, and con-

ceptions of the foundation of law. Table 1 summarizes these distinctions.

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Worldviews

American courts have different characteristics depending on the state in which they are

located. These differences are mostly found in the lower courts, the trial courts of limited

jurisdiction. Immediate courts of appeal are often unique state creations as well. But the

trial courts of original and general jurisdiction, courts that are empowered to hear all types

of cases and where cases are tried and decided, are nearly identical across state lines. With

regards to drug cases, they are identical. The trial courts become mere sentencing bodies

because 96% of convictions for drug offenses result from plea bargaining (OJP 2007). But

there is a potential source of confusion. States give their trial courts different names. The

most common modifiers are district, circuit, and superior. In two states, Ohio and

Pennsylvania, they are called Courts of Common Pleas. New York State uses the desig-

nation ‘‘Supreme Court’’ (Neubauer 2005, p. 84). But more important for my purposes,

‘‘the standards of criminal procedure’’ employed in every CC are the same throughout the

nation (Friedman 1993, p. 269).

Modernity frames the vision of ‘‘systematizing legal knowledge using coherent and

verifiable propositions about the nature of law and adjudication’’ (Minda 1995, pp. 224–

225). This modern orientation supplies a ‘‘grand theory’’ leading to ‘‘routine, rationality

and uniformity in treatment before the law’’ (Young 1997, pp. 5, 7). Everyone knows the

routine after an arrest for a crime. There is the charge and the filing of a complaint–

formal submission of a charging document in court. An initial appearance follows where

the arrestee becomes a defendant. A preliminary hearing establishes probable cause and

can lead to an indictment (or information). An arraignment is next, and in a small

number of cases, a trial follows. Of course, the majority of all convictions for serious

offenses results from accepting a plea. A guilty verdict or guilty plea results in a

sentencing hearing.

The DC challenges the idea of the grand, objective, unified theory manifested in CC

principles. The monistic modern CC is opposed by a pluralistic vision. The essentialism of

the CC is juxtaposed to the DC’s multiplicity of variations. Unlike the CC, there is no

standard DC. In fact, ‘‘no two drug courts are essentially alike’’ (Inciardi et al. 1996, p. 70).

They vary from state to state and county to county and have as many varieties as there are

jurisdictions. They also differ from one another in their approaches to processing cases. For

example, one survey of DC case disposition processes found the following distribution: (1)

pretrial/pre-plea = 30%; (2) pretrial/post-plea = 16%; (3) post-conviction = 12%; and

(4) combinations of the above = 42% (Cook 1997). DCs also diverge with respect to their

target populations, treatment methods, how they monitor participants, program sanctions,

and termination criteria. Due to this diversity, the concept of DC, in itself, exemplifies a

disavowal of the CC’s accepted scheme or metanarrative.

Table 1 Fundamental observations

Criminal court Drug court

Worldview Modern Postmodern

Nature of society

A cohesive whole A fragmented aggregate

Definitions of truth Absolute Relative

Conceptions of law A collective achievement

A cultural construction

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Society

The monolithic CC rests on the assumption of an equally monolithic society characterized

by consensus; society is a cohesive whole. The foundation of the CC is an alleged coherent

unity called ‘‘society.’’ In terms of the individual versus society duality, reified notions of

society presuppose the subjection of the individual. A different viewpoint results when the

individuals are considered inhabitants of a pluralist society. The DC proffers a notion of

society as a fragmented aggregate subject to constant, often chaotic, changes. In general,

communities shape their DC programs to fit local circumstances. Specifically, DCs are

modified to address the unique problems faced by families, women, juveniles and Native

Americans. Modifications of these forms are equally varied, from subdivisions within a DC

to specialized courts in themselves. One jurisdiction, for example, has male-only, female-

only, and juvenile only DCs. DCs evolve to address complex postmodern and multicultural

disputes and issues. The DC is a multilevel ‘‘open system’’ (Hser et al. 2003, p. 484) and

gives substance to the postmodern penchant for ‘‘many methods’’ (Menkel-Meadow 1996,

p. 43).

Truth

In the CC, the neutral and objective faculty of reason determines one-sided facts and, by

applying abstract rules, discloses ‘‘legal truths’’ (Urbonya 2002, p. 463). Based on tradition

and precedent, these truths are absolute. They are, in themselves, dogmatic, moralistic, and

stable over time. Modern legal truths are codified in advance of any particular instance and

are publicly known to all members of society. The assumption that grounds the modern

notion of legal truth is that truth is ‘‘methodologically-secured’’ (Mootz 1998, p. 557). The

method is the faculty of reason in applying abstract rules.

Contrary to modernism’s unexamined assumptions, postmodernism is constantly

engaged in an on-going discovery of presupposed divisions and a consequent process of

revealing their hierarchical development. A core conception is the universal rejection of

representative truth and the acceptance that truth is plural. Postmodernism advances a

vision of a situated and ‘‘provisional’’ truth (Young 1997; Mootz 2000). So-called ‘‘truth’’

is a multi-sided social construction. What is accepted as truth is always a product of

rhetoric and persuasion used by the people in power. In Menkel-Meadow (1996, pp. 14–15)

terms, ‘‘the legacy of postmodernism is that truth is not fixed … and people who ‘find’

truth, whether judges [or] juries have interests––social, economic, political, racial, gen-

der––that affect how they see the world.’’

Law

In the CC, law is considered an absolute. Accordingly, dogmatism and moralism are its

taken-for-granted features. After all, ‘‘common law endures as a great collective

achievement’’ (Rush 1986, p. 45). Law is a matter of social fact. In practice, CCs seek to

identify the applicable law by reference to institutionalized conventions. Perhaps it is not

surprising that a first definition of law is simply ‘‘that which must be obeyed’’ (Oran 1983,

p. 240). Thus, Socrates correctly rejected Crito’s escape plan and died honorably and

Martin Luther King belonged in the Birmingham jail.

A postmodern task is the deconstruction of the modernist ideal of the rule of law. To

begin, the conceptualization of justice and the formulations of laws are distinguished.

According to Derrida (1992, p. 12), ‘‘laws are not just as laws. One obeys them not because

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they are just but because they have authority.’’ Postmodern jurisprudence denies ‘‘the truth-

conditional account of propositions of law’’ (Patterson 1996, p. 19). As Litowitz (2000,

p. 45) writes, ‘‘the postmodern project seeks to expose these [modernist] assumptions

within a given law by paying attention to the rituals, discourse, symbols, and rhetorical

devices.’’ Postmodernism recognizes that law in itself is a cultural construction. More

specifically, the modernist view of law as a representation of the will of the majority is seen

as a tool of the powerful to maintain their position. Here the simultaneous existence of two

or more differing legal systems is immediately evident. The postmodern project, however,

extends far beyond its critical deconstructions. As Mootz (1998, p. 555) judiciously

explains, postmodern legal theory avoids skepticism by attending to ‘‘decentered agents

engaged in ongoing communicative exchanges and meaning-laden actions … in a constant

inventive renewal of shared meanings that underwrite subjectivity.’’ The DC embodies the

notion that ‘‘methodologies of the past must change’’ (Gould and Murrell 2002, p. 2131).

In the DC, collaborative law replaces common law. In DCs, everyone engages in creative

problem solving.

Jurisprudence

The CC and the DC are grounded in different jurisprudential theories. The CC is the

product of the common law based traditional adjudication. The DC has evolved into a

demonstration of the ideal of therapeutic jurisprudence. This differentiation touches every

aspect of the two courts. Table 2 presents an overview of these developing distinctions.

Justice

It is crucial to overcome binary systems because they are always hierarchical and

repressive. Traditional jurisprudence reflects an essential duality in the two-sided contest

implicit in the adversarial system. As a modern institution, the CC is adversarial in nature.

The adversarial framework is at the center of the American legal system such that any

departures from this framework are typically viewed as aberrations. CC proceedings are

attorney-driven with a separation of powers. A prosecutor has the burden of proof. A

defense attorney counters evidentiary points and inductive propositions. The judge’s role is

reactive––refereeing the proceedings and deferring to tradition and precedent. The judge is

a passive, impartial, and objective arbiter who makes all the decisions.

Table 2 Understanding justice Criminal court Drug court

Jurisprudence Traditional Therapeutic

Nature of justice Adversarial Collaborative

Driving force Attorneys Judge

Decision making Judicial De-centered

Judge’s role Reactive Proactive

Model Due process Individualized

Eligibility Unlimited Limited

Discretion Restricted Enhanced

Temporality Fast-track Slow-track

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The DC is primarily therapeutic and non-adversarial/collaborative in nature. All par-

ticipants are part of a unified team. The relationship between defense attorney and

prosecutor is no longer adversarial and lawyers, in general, play a less prominent role.

Instead, the DC judge stands at the center of this collaborative environment. The DC

proceedings are judge-driven. DCs reshape and are reshaped by the professional roles of

the judges. DCs are ‘‘virtually defined by the fact that they are managed by the judge’’

(Marlowe et al. 2004, p. 1). The DC judges are proactive, personally involved and inter-

ested, and immediately responsive to the needs of the drug users. DC judges, therefore,

must think differently than members of the CC judiciary. Their levels of cognitive func-

tioning must include ‘‘multiplistic thinking’’ which entails a recognition that several

divergent ‘‘right’’ alternatives exist simultaneously and ‘‘relativistic’’ thinking which

involves an awareness of their own conflicting thoughts and which gives ‘‘context’’ a

prominent role (Gould and Murrell 2002, pp. 2126–2127). Opposed to the CC, in the DC,

there is a decision-making team. Consequently, decisions are collective, decentralized and

immediately contextualized. In the DC, as a critic aptly summarizes, ‘‘substantive deci-

sions about a felony defendant are being made by some inter-branch committee acting

more like a support group than a court of law’’ (Hoffman 2002, p. 2094–2095).

Models

The CC is organized under a due process framework. Laws are applied in a fair and equal

manner and justice is dispensed in a timely fashion. Justice is universal––all citizens are

protected from the arbitrary power of the state. Further, everyone is ‘‘eligible,’’ that is,

every one of a certain age and mental capacity is subject to the same criminal justice

proceedings. In the DC, a therapeutic framework replaces the due process model. The DC’s

mission is carrying out individualized justice. Sanctions are tailored to the individual

participant; they are not applied in a standardized manner. This sanctioning philosophy

appears self-evident because, after all, DCs are unique in that they promote human

interaction at all levels.

While the due process model attempts to reign in discretion, the DC advances an

‘‘enhanced’’ (Nolan 2001, p. 105), an ‘‘interpretive’’ (Dorf and Sabel 2000, p. 837), a

‘‘broad’’ (Boldt 1998, p. 1230) and even a ‘‘potentially ungovernable’’ informal (Fischer

2003, p. 239) form of discretion. With the postmodern theme of the breakdown of ‘‘linear

narratives’’ potential inconsistencies in judicial discretion are an expected sign of the

greater flexibility of justice as an on-going social construction. The DC, therefore, is a

latent reaction to the once prevalent legislative intent to restrict the discretion of CC judges

by passing mandatory and determinant sentencing laws. The DC also limits eligibility,

differing among themselves in terms of definitions of target populations. The eligibility

criteria vary from court to court. Typically, however, a key dimension is population

severity, that is, the potential clients’ severity of drug use and severity of criminal

involvement. The eligibility issue is the most vexing question confronting those trying to

establish a DC (Hora et al. 1999).

DCs employ non-traditional sanctions and social services. Unlike CCs’ ‘‘fast-tracking’’

or expedited management of drug cases, the DC is in itself a ‘‘slow-track’’ treatment

program. The length of treatment is characterized by an ‘‘extreme indeterminacy’’ (Boldt

1998, p. 1243). In this slow-track, the clients may receive more than one sanction while in

the same treatment program. The possibility of multiple and alternative sanctions is a

major difference between the DC and the CC. Cautious not to employ CC language, DCs

refer to periods of incarceration as ‘‘adjustments’’ not ‘‘punishments or sanctions.’’ The

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subsequent section on the drug user deals with the terminological issue in greater

detail.

The Drug User

The CC and the DC have their greatest disparities in terms of their consequences for the

drug users themselves. Table 3 presents the key dimensions of the CC–DC stance con-

cerning the drug user.

Personal Identity

Postmodernism’s anti-essentialism is reflected in its challenge to the modern/essentialist

notion that a person’s identity has a static core and is fixed after the completion of a

developmental stage. In the modernist model, the self is a permanent, real attribute. After

all, we have all ‘‘found ourselves’’ while growing up. In the postmodern view, the self is

mutable, a process not a product, unanchored, and continually changing. A common

postmodern endeavor is to demonstrate how selves are composed and constituted by the

words used to describe them.

The CC uses the modern model in its ongoing processes of objectification. The oper-

ative question is whether the alleged illicit drug user is guilty or not guilty. This standard

accusatorial procedure is derived from the CC’s common law tradition. The individuals are

labeled ‘‘defendants’’ and the convicted drug users are called ‘‘offenders.’’ Of course,

offenders are sanctioned––they get a determinate sentence. The CC’s concern is ‘‘drug use

first … the user’s eventual reform is not essential’’ (Weisheit and Klofas 1998, p. 200).

With regards to the past-future differentiation, CCs focus on the past. By doing this, the

CC’s sentencing philosophy is circumscribed by the concept of retribution and therefore,

limited to the use of punitive sanctions. The goal is to provide a vengeful response to

antisocial conduct. CCs may refer selected offenders ‘‘out’’ to treatment, but more often

drug users are placed outside of the community.

Similar to ‘‘peacemaking theory,’’ the DC approaches the illicit drug users ‘‘without

objectifying’’ them (Whiteacre and Pepinsky 2002, p. 27). The DC looks upon the iden-

tification of individuals with their criminal labels as neither effective nor morally

appropriate, if the goal is reducing drug use. The DC refuses to reduce the identity of

individuals to cultural caricatures of drug abusers. Illicit substance use is a behavior that

does not confer an insidious status on the individual. In the DC, individuals are ‘‘clients’’

not convicts. The terminology change from offender to client is not merely semantic but

rather evocative. It offers a basic recognition that language has the power ‘‘to conceal,

distort, dismiss, or otherwise deny one’s identity’’ (Arrigo 2000, p. 13). The alternative

Table 3 The drug user Criminal court Drug court

Personal identity Modernism Postmodernism

The self Self is permanent Self is mutable

Focus The past The future

Labels Offenders Clients

Plan To Punish To treat

Drug use A crime A relapse

280 E. G. Armstrong

123

verbal designation points to a more important shift––the client becomes an important part

of the DC team. Clients are actively engaged in determining judicial responses and agree to

individualized program plans. The DC implicitly accepts a vision of the postmodern self

with its ‘‘polysemic and floating character’’ and through which ‘‘individuals actively represent and manage their identities’’ (Gubrium and Holstein 1995, p. 555). Instead of a

vengeful reaction to an objective, antisocial act, the DC offers a compassionate reaction to

a subjective, personally harmful behavior. Here the focus is on the future. The DC aims at

restoration, integrating the drug user into the community of non-drug users. This post-

modern perspective affirms that individuals ‘‘function as subjects-in-process or as

emergent subjects’’ (Arrigo and Williams 2000, p. 334).

Drug Use

A major concern for both courts is the individual’s future illicit drug use. In terms of CC

action, any illegal drug use means another crime has occurred. If the law violators are on

probation, their probation is revoked and they are incarcerated. The public interest is

served by the detection and prosecution of another crime. The good/bad and right/wrong

dichotomy is reaffirmed.

Alternatively, a DC client’s subsequent illicit substance use is not a new crime. Rather it

is considered an incident that is a typical part of the treatment process. The DC assumes

that drug use is a chronic relapsing condition and the user is expected to relapse. Relapses,

in fact, may have a positive impact on clients because it permits them to continue to work

at avoiding the use of banned substances. Addiction and recovery specialists universally

agree that because ‘‘relapse is a common experience on the road to a stable nonaddict [sic]

identity, it is important to understand and deal with relapse sensibly and realistically’’

(Peele and Brodsky 1991, p. 271). The DC shares a vision of corrections that acknowledges

‘‘the varying degrees of effectiveness … that are more likely to characterize real-life

practices than the dichotomy of complete success or total failure’’ (Stinchcomb and

Hippensteel 2001, p. 173.)

Conclusion

Upon analysis, it appears that the proponents of the DC and those of the CC are in an

‘‘intractable ideological disagreement’’ about every aspect of the problem of illicit drug use

(Dorf and Sabel 2000, p. 883). The elements identified in this paper show that post-

modernism is a potential unifying framework for developing criminal justice and public

policy expositions of ongoing DC developments. In addition, postmodernism serves to

suggest a way to assess opposed visions of the DC phenomenon.

Opponents of DCs promulgate two diametrically opposed critiques. On the one hand,

DCs are condemned because they represent a change in the status quo. On the other hand,

DCs are vilified because they are a compromise approach standing moot on questions of

drug decriminalization and legalization. Categorized on this issue alone, I use the terms

conservative and radical to differentiate the approaches.

In general, conservatives challenge the ‘‘excessive leniency’’ implicit in the DC’s

treatment-related sentencing practices. However, that is not all they have to say. According

to Hoffman (2002, p. 2070), therapeutic jurisprudence, as exemplified by the DC, is ‘‘anti-

intellectual.’’ In the ‘‘postmodern therapeutic world’’ that Hoffman (2002, p. 2096)

laments, ‘‘drug offenders are not wrongdoers.’’ DC judges engage in ‘‘mindless public

Postmodern Justice 281

123

relations’’ and act ‘‘immorally as amateur psychiatrists’’ (Hoffman 2002, p. 2091). Courts

are incapable of deciding whether a drug user needs treatment or ‘‘is just a jerk’’ (Hoffman

2002, p. 2097). For Chriss (2002, pp. 195–196), DC ‘‘defenders’’ conveniently inflate rates

of treatment success by carrying out a ‘‘trick,’’ not counting relapses as failures. Allegedly,

they achieve this deceptive and fraudulent act by ‘‘definitional fiat.’’ While not on the

rhetorical level of either Hoffman or Chriss, Armstrong (2003, p. 133) reduces DCs to a

‘‘de facto legalization of drugs.’’ The complaint is that DCs have no legal basis for

disregarding the inherent criminality of relapses.

Radicals are equally harsh in their indictments. While the conservatives attend to a

specific DC element, radicals take a far broader viewpoint. For Miller (2004, p. 1492), DCs

do not represent a ‘‘paradigm shift.’’ Instead, the DC’s ‘‘alleged novelty’’ hides its ‘‘highly

incapacitative effects’’ (Miller 2004, p. 1481). Continuing, Miller (2004, p. 1516) sees DCs

as engaged in a kind of Pavlovian conditioning similar ‘‘to training a pet.’’ Fischer (2003,

p. 234) encapsulates part of his critique under the rubric ‘‘ontological.’’ For Fischer, DCs

are best understood as a political strategy that uses symbolism to reinforce the hegemony

of punitive social control. The main function of the DC is to re-affirm the legitimacy of an

addiction policy tied to prohibition by symbolically signaling their innovative and pro-

gressive features. Anderson (2003) agrees that the DC’s ascendant ideology and forceful

rhetoric are engineered to support the status quo. However, Anderson adds a bit of forceful

rhetoric as well. Since DCs attempt to combine treatment and punishment, Anderson

(2003, pp. 258–260) calls them a ‘‘bizarre hybrid.’’ Because DCs promote ‘‘freedom from

addiction,’’ they are a ‘‘paternalistic’’ perversion and ‘‘demonic parody’’ of an authentic

concern for the needs of individuals.

So we have conservatives moving from the relapse issue to the invective that DC

supporters are anti-intellectual tricksters. Because no arrested drug user should have a

treatment option, immoral DC judges are allowing these ‘‘jerks’’ to be on the street. Then

we have radicals fulminating that DCs are bizarre and demonic symbols rooted in the

oppressive institutions of social control that treat people like laboratory dogs. Postmod-

ernism provides a way to deal with these disparate opinions. In Derrida (1972, p. 265)

understanding, an indispensable aspect of the postmodern human sciences is the simul-

taneous appearance of ‘‘absolutely irreconcilable’’ interpretations of interpretations. Better

still, postmodernism finds the ‘‘master code’’ of any interpretation in ‘‘the ideology it

works to perpetuate’’ (Sarup 1989, p. 143). In other words, the conservative and radical

considerations of DCs have been framed in advance of any first-hand examination of the

bases and provenance of the DCs themselves.

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