Criminology

Is therapeutic justice, especially in the form of drug courts, the most important advance the justice system has made in dealing with drug abuse

Drug abuse is one of the most prevalent crimes both locally and even in the international scene. Governments of countries have in the past put great efforts in a bid to fight this ever-rising menace. Drug abuse is classified among the most rapidly rising crimes worldwide having being ranked second after human trafficking. The justice system have introduced various measures to deal with the rising trend, the latest measure being the introduction of what has come to be known as therapeutic justice. This has seen the introduction of drug courts whose mandate is to hear cases related to drug related offences which are minor in nature. However a debate has been ranging on whether the introduction of drug courts as an important advancement by the justice system in dealing with the drug abuse menace. This paper looks in greater depths on therapeutic justice, introduction of drug courts and how if effective, if at all they are, in curbing this ever-rising trend of drug abuse (Amy. 2009).

The first drug court was established in 1989. This was after the justice system found it necessary to come up with an urgent measure of curbing drug abuse by helping addicts who are already hooked slowly get out of the habit. Since then, more than 1,500 courts of such a nature have been established. Therapeutic justice is a term that was first used by Winick who was a legal scholar while trying to establish the best way in which a drug court could be function effectively. On the face of it therapeutic justice appears like a practical guide on how drug courts should operate. However a radical and thorough examination of the concept reveals that it brings complicated issues especially when it comes to the definition of justice of citizens (Nolan, 2002).

The aim of the drug courts is to reduce the rate of drug offenders especially among the juveniles. In the recent past use of drugs courts has gained popularity among many a state perhaps because the federal government has come out to support them in form of funds and grants. One analyst has been quoted saying that introduction of therapeutic justice and the aspect of drug courts is a great advancement in the justice system as it now focuses on the needs of an individual rather than equality and justice for all. To many who support this concept, it is a revolution that has been long overdue in the justice system (Amy. 2009).

To be able to understand this concept clearly it is necessary to have a clear picture of what it and what it is not. Being a new concept, therapeutic justice has been portrayed in many faces some of which are quite misleading. A good example is the concept of drug courts. In the light of what a court is, these institutions do not qualify to be referred to as courts. Thus referring to the as courts is quite misleading. Courts of any nature can only be established by an Act of Parliament. Drug courts are therefore programs that are created administratively to offer social services (Nolan, 2002).

Drug courts are quite different from the traditional courts that are established through the judicial system. While traditional courts aim at ensuring justice for all by punishing the offenders, the drug courts now shift the attention to the offender. The argument is that offenders who are found guilty of a drug related offence need help rather than punishment.

The idea of drug courts and therapeutic justice is not as new. Although it has begun gaining popularity only recently, its roots can be traced back in the year 1899. However for along time this concept was reserved for the juvenile courts until recently when it was discovered that even adult offenders were in dire need of such a social service. Incorporating this idea into the mainstream courts was also difficult as the judicial system vehemently opposed the move terming as a direct obstruction of justice for the greater majority. It argued that although the idea of drug courts was well intended, it could not be exchanged with the due process of the rule of the law. However with time the idea of drug courts has slowly been assimilated and the judicial system has embraced therapeutic justice as part of the ordinary court process (Marilyn. 2003).

While the new revolution and the most important advancement in the judicial system as therapeutic justice is now known seems as the promised that we all have been waiting for, it is important to look at the other side of the coin  and what cost this new concept requires us to bear. To begin with some analysts argue that incorporation such a concept in the mainstream judicial system is a big threat to the attainment of justice which is the main aim of courts. This is because while implementing this new concept, the court and the judges will be required to depart or shift slightly from the due judicial process and as such likely to compromise the justice for the aggrieved party. The conflict comes in due to the fact that this new concept of therapeutic justice is more concerned with the achievement of particular intended results rather than impartiality of the judicial system (Nolan. 2002).

The people who are in support of this concept do recognize these dangers but dismiss them as mere disadvantages which can be easily overcome. However the matter of the fact that these loopholes are quite serious and can lead to miscarriage of justice. The advocates of drug courts and therapeutic justice have a couple of justifications with which they support their argument. To begin with, they argue that these social programs are quite effective. According to supporters of drug courts, all offenders who have gone through this program do not go back to committing drug related offences, and those who go back into crime commission the rate is far much lower than that was the case before. By so doing, the advocates of this concept argue that public and government resources are saved as there are not as many people who have to be confined in prisons. In addition, it reduces the congestion that characterizes the prison systems in the country (Marilyn. 2003).

Secondly, therapeutic justice brings about harmony as courts collaborate with other agencies. The traditional courts used to work independently without involving other stakeholders. However with the introduction of drug courts judges have ton consult with other people especially those in charge of social programs so as to achieve the desired results of therapeutic justice. Drug courts have also forced the general public to have respect for the judicial system. The traditional judicial systems appeared to alienate the public as they were not allowed to participate in the attainment of justice. However therapeutic brings in a whole lot of different agencies and organization most of which are social oriented (Amy. 2009).

These advantages notwithstanding, there are many disadvantages some of which could be quite costly if they were to be ignored. Firstly therapeutic justice has been seen to cause a great strain on the resources due to its approach. The approach of the drug courts is one court-one judge which means many judges are required and this means that the government has to spend more on salaries of judges. In addition judges have to personally supervise the treatment that the drug offenders are being administered. This supervision takes a great amount of time and as a result there is a backlog of cases that await hearing. Although one of the aims of drug courts as mentioned earlier is to ensure unity between courts, this purpose is defeated by the fact that drug courts are special as they were established separately from the mainstream courts (David. 1972). 

Therapeutic justice is also seen as a concept that has brought about comprise when it comes to the separation of powers and independence in three arms of government. This they do by allowing judges to com up with decisions and solutions which are supposed to be made by particular people ion their various duly elected positions. By so doing the line that divides the law makes, the interpreters of these and those with the mandate to implement the laws becomes blurred and sometimes non-existent (Nolan. 2002).

The impartiality and objectivity of judges has also been heavily compromised with the introduction of therapeutic justice. The judge is required to be part of the team that conducts the therapy sessions. The main aim in the therapy process and sessions is to achieve certain results which are ensuring that the offender who is hooked in drugs is able to come out clean. When participating in these sessions, there is a likelihood that the judge may bend some ethical rules in an attempt to ensure that the desired results are achieved. It thus compromises on the impartiality and objectivity of judges. It thus becomes complex when the judge who is supposed to be the adjudicator becomes engaged in the therapy sessions as his independence is lost (Bruce. 2005).

These social programs have also been seen to substitute the judgment of the judge with the various checks of the process of therapeutic justice. By so doing a loophole is created which can easily lead to abuse of power. Separation of the three arms of the government, impartiality of the judiciary, justice for all, rule of law and the due process have always formed the bedrock on which the jurisprudence of America legal principles lay (Marilyn. 2003).

Therapeutic justice unfortunately seems to compromise all of them. It is thus perhaps not advancement in the judicial system but rather a retrogressive move which will snatch away the constitutional right of every citizen to be accorded justice in a court of law. If all these loopholes are to be ignored, then it is an equivalent of doing away with the judicial system and following the law of the jungle. While there are times all these loopholes need to be addressed and necessary amendments made to ensure that the greater majority still enjoy their rights to have equal justice