Therapeutic jurisprudence and procedural justice in Scottish Drug Courts
| Author | Gill McIvor |
| DOI | 10.1177/1748895808099179 |
| Published date | 01 February 2009 |
| Date | 01 February 2009 |
| Subject Matter | Articles |
29
Therapeutic jurisprudence and procedural
justice in Scottish Drug Courts
GILL MCIVOR
University of Stirling, UK
Abstract
Scotland, like other western jurisdictions, has recently witnessed the
development of problem-solving courts aimed at responding more
effectively to issues that underlie certain types of offending
behaviour. The first to be established were two pilot Drug Courts,
which drew upon experience of Scottish Drug Treatment and
Testing Orders. In common with Drug Courts elsewhere, the
Scottish pilots combined treatment, drug testing, supervision and
judicial oversight. This article focuses upon the role of judicial
involvement in the ongoing review of Drug Court participants’
progress, drawing upon court observation and interviews with
offenders and Drug Court professionals. Drug Court dialogues were
typically encouraging on the part of sheriffs, aimed at recognizing
and reinforcing the progress made by participants and motivating
them to maintain and build upon their achievements to date, while
participants were generally responsive to the positive feedback they
received from the sheriffs as their orders progressed. Interactions
within the Scottish Drug Courts reflect key features of procedural
justice, including ethicality, efforts to be fair and representation. By
contributing to enhanced perceptions of procedural justice, Drug
Court dialogues may, it is argued, increase the perceived legitimacy
of the court and by so doing encourage increased compliance with
treatment and desistance from crime.
Key Words
desistance • drug courts • procedural justice • therapeutic
jurisprudence
Criminology & Criminal Justice
© The Author(s), 2009. Reprints and Permissions:
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ISSN 1748–8958; Vol: 9(1): 29–49
DOI: 10.1177/1748895808099179
ARTICLES
The United Kingdom, in common with other western jurisdictions, has in
recent years sought to develop more effective ways of responding to drug-
related crime. Although the link between drug use and crime is complex, it
is recognized that much acquisitive crime in the UK occurs through the need
for individuals with drug problems to obtain the financial resources neces-
sary to maintain a regular supply of drugs. Previous legislative endeavours
had focused primarily upon attempting to reduce the supply of illicit sub-
stances through increasingly severe sanctions for those convicted of drug
dealing. However, by the late 1990s policy attention shifted towards
demand reduction through the provision of drug treatment to individuals
whose offending was related to the misuse of drugs. The rationale was that
addressing drug misuse would, in turn, result in reduced levels of crime,
since individuals would no longer need to commit offences to support their
drug habits. The criminal justice system was perceived as a suitable route
into treatment for individuals with drug problems in view of emerging
research findings that indicated that mandated treatment could be as effective
as treatment accessed voluntarily (Hough, 1996 and, more recently,
McSweeney et al., 2006, 2007). Furthermore, evidence was emerging from
the United States that Drug Courts, first introduced in 1989 and subse-
quently established across the country, were showing promise in reducing
problematic drug use and drug-related crime (Belenko, 1998).
Although courts in the UK already had the option of requiring offenders
to seek treatment for their drug problems as a condition of probation, in
practice there were often lengthy waiting lists. Unable to access treatment
at the start of their orders, probationers were likely to continue offending,
to breach their orders and to face a custodial sentence as a consequence.
Through the 1998 Crime and Disorder Act, provision was made for the
introduction of Drug Treatment and Testing Orders (DTTOs) across the
UK. DTTOs, which drew upon the US Drug Court model, differed from
existing community penalties in a number of important respects. First, they
allowed for the regular drug testing of offenders as a requirement of the
court. Second, they emphasized the case management role of the supervis-
ing officer, who would be responsible for co-ordinating service provision
rather than directly providing services. Third, and perhaps most signifi-
cantly, they included provision for sentencers to take an active role in
reviewing the progress of offenders on orders by bringing them back to
court on a regular basis (or, alternatively, scrutinizing progress through
paper-based reviews).
Pilot DTTO schemes were introduced in England in 1998 in three pilot
sites, with varying degrees of success (Turnbull et al., 2000). Revocation
rates differed markedly from 28 per cent in one site to 60 per cent in
another and a number of issues were identified that needed to be addressed
prior to any national rollout of orders. A subsequent analysis of recidivism
found that two-year reconviction rates were high, with 80 per cent recon-
victed and the reconviction rate varying significantly across schemes
(Hough et al., 2003). The reconviction rate among those who completed
Criminology & Criminal Justice 9(1)30
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