Problem-solving courts have experienced intermittent enthusiasm and support in the UK, with drugs courts, mental health courts, domestic violence courts and community justice courts introduced at various points since the early 2000s. These emerged as short-lived pilot projects and as longer-term solutions to complex family issues as seen in the nationwide Family Drug and Alcohol Courts (FDAC).
But, the inclusion of problem-solving courts in the Police, Crime, Sentencing and Courts Bill and 2020 sentencing reform White Paper indicates renewed governmental interest in this style of courts justice. The detail is thin so far, but an initial phase of piloting five drugs courts is suggested. This will be welcome news for justice system reform advocates, because of the rehabilitation and health treatment support that define specialist drugs courts. However, there are fundamental points that need to be raised in relation to the model of practice that might emerge. This is to ensure it is model based on principles of ‘fair’ justice and that it retains the ‘therapeutic jurisprudence’ underpinnings problem-solving courts were set up to achieve. A ‘graduated sanctions and incentives’ system with ‘custodial time’ for non-compliance of a Court Order as suggested in the Bill, is a radical step in the context of UK justice. It requires careful and important legal consideration. Importantly, it fails to understand the difficulties experienced by people attempting to achieve drug free lives and the time and flexible support that is needed to reach these goals.
Problem-solving courts operate on a model that attends to the social, health and lifestyle problems connected to a person’s offending behaviour, such as drugs and/or alcohol misuse, mental disorder, homelessness, prostitution etc. Various problem-solving models exist depending on the lifestyle issues they are seeking to address, but the core components are a tailored treatment programme supported through multi-disciplinary team-working that bridges specialist health, social, and welfare services with regular progress reviews and judicial oversight and monitoring. The role of the court judge in appraising a person’s progress through their programme of rehabilitation is considered one of the most powerful features of this justice model. Drugs court participants frequently cite this as the first time anyone of authority has taken an interest in them (Logan and Link, 2019). Outcome evaluations of drugs courts report positive results with reduced re-offending rates, lower levels of individual drugs use and improved social relationships. The wider benefits of breaking the ‘revolving door’ cycle of repeat offending and court prosecutions and the financial savings realised through removing imprisonment costs are also positive features.
Problem-solving courts are a progressive model of justice reinforced by a rational and pragmatic response to particular forms of offending that are more participatory and person-centred than traditional court processes. Any model of drugs courts advanced within the English and Welsh justice system must embed these values. The design detail in terms of the specific model of drugs courts that will be adopted is not yet accessible, though there is sufficient information that raises concern. This is the ‘graduated sanctions and incentives’ and the use of short custodial sentences for non-compliance with a court order. The drugs testing and sentence review amendment to legislation that is included in the Bill, point to how a failed drugs tests might garner enforcement action. Indeed, it is the ‘carrot and stick’ approach and ‘jail time’ that draws criticism of the USA drugs courts model (Goldkamp et al, 2002; Logan and Link, 2019). The ‘reprimand’ aspect of the USA drugs courts is criticised by some as overly punitive for the ‘jail time’ that can be added for drugs abstinence failure (Transform Drug Policy Foundation, 2013).
Any proposal that advocates to legislate for the ability of a drugs courts model to punish non- compliance with a short spell in custody, firstly misses the fundamental point of problem-solving justice, which is located within ‘therapeutic jurisprudence’ and the therapeutic, helpful capacity of the law (Wexler and Winnick, 1996). Secondly, there is ample evidence to show that time in prison custody however brief, severs people’s ability to hold onto employment, housing and family relations and makes homelessness more likely on release. To end up doing time in prison when the initial offence would not meet the custody threshold is wrong. Further, it shows a deep misunderstanding of the complex and difficult journey moving from drugs dependence entails. Trying to achieve drugs abstinence through a deterrence strategy of prison time misses the point.
The reality is that time and flexibility is necessary when supporting a person’s drugs recovery. Indeed, Verberk (2011) argued from her critical analysis of drugs courts, that stabilising a drugs dependent person rather than trying to achieve drug abstinence maybe a better aim in itself. A drugs courts magistrate in my research (Ward, 2016, 2019) reflecting on what could be considered success among clients was to get to the end of the six or nine month programme and a person ‘to be on a sustainable path to being drug free …It’s not really realistic to say you must be completely drug free after a six month period…’. It is this reality that the proposed drugs courts should design into the model.
It is essential those working on the drugs court prototype look closely at the international evidence and further afield than the USA drugs courts. The New Zealand Alcohol and other Drugs Treatment Courts (AODT) model is one to study. Participant selection criteria is critical, recruiting only those to the programme whose ‘index offence’ would otherwise attract a prison sentence, thereby providing some justification if indeed non-compliance does lead to prison custody. Doing time in prison when the initial offence does not meet the custody threshold is simply wrong.
Drugs courts are a welcome justice system development, but we have to get them right.