Discretionary Justice: Looking Inside a Juvenile Drug Court
by Leslie Paik. New Brunswick, NJ: Rutgers University Press, 2011. 272pp. Cloth
$72.00. ISBN: 9780813550060. Paper $25.95. ISBN: 9780813550077.
Reviewed by Philip Kronebusch, Department of Political Science, St. John’s
University/College of St. Benedict, Collegeville, MN. E-mail: pkronebusch [at]
csbsju.edu
pp. 649-651
With 2000 drug courts created in the United States in the past twenty years,
drug courts represent a significant change in the way that some types of drug
crimes are adjudicated. The successful creation of drug courts now leads a
larger movement toward what are sometimes called “Problem Solving Courts,” which
include DWI-courts, mental health courts, family law courts and others.
So the burgeoning scholarly literature on drug courts is very welcome.
There are now several book-length studies of drug courts, and Leslie Paik’s
Discretionary Justice: Looking Inside a
Juvenile Drug Court is a timely and valuable contribution.
Paik’s contribution is distinctive in two respects. First, it focuses on
juvenile drug courts, while most drug courts are for adult offenders. Second,
Paik’s study depends heavily on the notes that she took as an observer to the
confidential staffing meetings that are held by the drug courts she studied.
While she also provides descriptions of drug court sessions, information from
interviews with drug court participants and their parents, and some brief
descriptive statistics, the bulk of the book comes from her notes of the
staffing meetings. Paik’s ethnographic approach provides an insider account of
the operations of a juvenile drug court in an unnamed jurisdiction in California
during her fifteen months of fieldwork. During this time period, she had open
access to staff members and drug court participants.
In these staff meetings, which take place prior to the formal sessions of drug
court, the drug court judge meets with a representative of the prosecutor’s
office, a public defender, a probation officer, a representative of the police,
and other drug treatment counselors. The staff meetings review recent reports of
each drug court participant’s attendance in treatment programs and at school, as
well as the results of random urine tests that participants have been required
to provide. Paik’s notes, which are close to verbatim transcripts and quoted at
length, show that these meetings are characterized as negotiations among the
several participants, with the judge often in the role of creating a consensus
among the staff members regarding what the judge will announce as the sanction
or reward in the formal drug court session. A sanction for a participant with a
positive drug test or missed treatment sessions might include a few days in
juvenile hall; a reward might include a loosening of curfew requirements.
Repeated positive drug tests (or missed tests) may lead to termination from the
drug court program, which would likely lead to confinement in a locked facility.
Paik observes that drug court participants are treated by staff as belonging to
different “workability” types. A participant with a “drug oriented” workability
type is likely to relapse and use drugs one or more times during the drug court
program, but this workability type can often be successful because he or she
will recognize that continued drug use will lead to increased levels of
sanction. This workability type responds to the incentives and sanctions of drug
court. The drug court staff adopts a “helping oriented” approach if a
participant seems unable to escape drug use because of, for example, a
problematic home environment. With this workability type, drug court efforts may
focus on finding a stable home or school environment for the youth, rather than
use increased sanctions. In contrast to these workability types, Paik describes
“compromised” workability types. For example, if a participant has an
underlying, undiagnosed mental illness, the drug court’s use of graduated
sanctions is unlikely to be effective.
Among the key arguments of the book is that, while drug courts are premised on
the idea of individual accountability, the drug court staff’s “sense of the
youth’s workability is contingent upon many outside factors (e.g., parental
involvement, treatment resources) besides the youth’s actions.” (p.131). Paik’s
observations include several examples where drug court staff members are unable
to place a participant in an appropriate treatment program, which then
compromises the likelihood of success for the participant.
Race, ethnicity and gender also appear to play a role in the drug court staff’s
assessment of the workability of a participant. Paik reports that a Latino male
who is involved in a fight at school might readily be thought of by staff as a
member of a gang and therefore unworkable in drug court. Such a drug court
participant may be terminated in drug court and his case referred to the state’s
gang supervision unit while a non-Latino white student would not be similarly
treated. An economically advantaged white drug court participant may also have
access to mental health diagnosis and treatment (through a parent’s health
insurance) that an economically disadvantaged participant would not.
Paik provides some descriptive statistics of the outcomes of drug court
participants, separated according to race, ethnicity and gender that show the
difficulty of making sweeping generalizations about the outcomes of drug court.
Latinos appear to have a higher rate than whites of successful graduation from
drug court in the cases Paik observes. At the same time, whites are
administratively discharged from drug court (often for moving out of the court’s
jurisdiction) more often than Latinos, making the figures difficult to compare.
Boys have a higher graduation rate than girls, but girls have a higher
administrative discharge rate because the court discharges girls who are
pregnant (presumably to a different program, but this isn’t clear in the book).
Drug courts are, in part, a reaction against the rigid formulas and grids of
determinative sentencing and a “reintroduction of discretion into legal decision
making” (p.173), so finding the use of discretion is not surprising. Paik
generally supports the development of drug courts, saying that she is not [*651]
challenging the conclusion of research that drug courts “offer a structured and
effective way to keep drug offenders from relapsing and from recidivating”
(p.172), but she does have concerns that drug courts emphasize individual
accountability in ways that ignore factors like race and poverty. Paik suggests
that “while drug courts and, by extension, therapeutic jurisprudence, can be
seen as therapeutic, they also could be considered a form of new penology under
the guise of help” (p.176).
Paik concludes with a number of thoughtful policy recommendations, but the chief
value of the book is the extraordinary level of detail that she communicates
about the individual cases she encountered and the staff discussions of those
cases. These accounts effectively capture the “complicated interpretative dance
of assessing youth noncompliance” (p.68). Assessing noncompliance is much more
difficult in practice than appears to policymakers who might think that drug
testing provides simple results. Is a “diluted” test result caused by a
participant intentionally drinking large amounts of water before the test to
obscure its results, or did the participant need to drink a lot of water because
it was a hot day? How should a drug court handle a participant who never tests
positive for drugs, but chronically misses his scheduled drug court appearances?
Is home detention an appropriate sanction when drug court staff members suspect
that the parents are, themselves, using drugs in the home? These case studies
are reminders of the critical role that judgment and discretion play in the
day-to-day operation of drug courts.
Paik, by documenting the complexity of the factors taken into account
during the staff meetings and the judgment calls made during those meetings,
provides the reader with insights that are an important contribution to research
on drug courts.
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© Copyright 2011 by the author, Philip
Kronebusch.