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Citation: Senjo, Scott and Leslie A. Leip. 2001. "Testing Therapeutic Jurisprudence Theory: An Empirical Assessment of the Drug Court Process." Western Criminology Review 3(1). [Online]. Available: http://wcr.sonoma.edu/v3n1/senjo.html.
   

Testing Therapeutic Jurisprudence Theory: An Empirical Assessment of the Drug Court Process 

 

 

Scott Senjo

Leslie A. Leip

 

 

 

Abstract

Drug treatment court provides a distinct forum for the application of therapeutic jurisprudence. The theory of therapeutic jurisprudence is founded on the notion that the legal rules and procedures promote the psychological and physical well being of people. Offenders in drug courts participate in several legal and treatment processes which are collectively aimed at producing positive changes for the offender and hence society. In this article, Broward County, Florida drug court processes such as court monitoring, drug treatment, and drug court procedures are identified and measured to empirically assess the court’s therapeutic impact on first time, non-violent felony drug offenders. The findings of this research indicate that therapeutic jurisprudence theory does have explanatory power for understanding how the drug court processes positively and negatively impact offender behavior change.


Keywords: drug court, therapeutic jurisprudence theory, impact, offender recidivism, evaluation research, criminal behavior, community supervision


Testing Therapeutic Jurisprudence Theory: An Empirical Assessment of the Drug Court Process

The innovative drug treatment court (hereafter "drug court") emerged in the 1990s as one of the most receptive environments in which to empirically observe and evaluate the theoretical and conceptual elements of therapeutic jurisprudence. Since 1989 and the inception of the first drug court in Miami, Florida, these courts have proliferated in numerous jurisdictions. Some of these include Washington D.C., Guam and Puerto Rico, Native American Tribal Courts, and one federal district. Nationally, over 90,000 offenders have participated in drug court programs and 657 courts exist or are planned (U.S. Department of Justice 1999).

Research on drug courts suggests that the court can effectively address the intractable problem of drug use and criminal behavior. In a critical review of the research on drug courts, Belenko (1998:2) states "that drug courts provide closer, more comprehensive supervision and much more frequent drug testing and monitoring during the program, than other forms of community supervision. More importantly, drug use and criminal behavior are substantially reduced while offenders are participating in drug court". These findings are one part of the foundation for the growth of the drug court movement.

As the drug court movement develops, it is imperative that drug court lawyers, judges, administrators, and legislators have a clear understanding of how the specialized court works and how it operates within the framework of therapeutic jurisprudence. In order to accomplish this, the research community has the task of explicating, testing, and empirically analyzing the conceptual features of therapeutic jurisprudence theory. One of the first applications of therapeutic jurisprudence to the drug court was a 1999 article written by Hora, Schma, and Rosenthal in the Notre Dame Law Review (1999). The authors introduced therapeutic jurisprudence as a theory that has valuable, explanatory power for understanding the impact of drug court as a therapeutic agent. They state that therapeutic jurisprudence "focuses on the socio-psychological ways in which laws and legal processes affect individuals involved in the legal system" (Hora et al. 1999:3). The authors hoped to improve the drug court implementation process and assist those in the academy and the justice and health professions by applying the therapeutic jurisprudence theory to the drug court movement. They state (Hora et al. 1999:41) that

"…DTCs actively incorporate a therapeutic jurisprudential outlook into their daily routine. The DTC movement should recognize this heretofore silent adoption and begin to engage therapeutic jurisprudence scholars in a dialogue to explore the DTC concept and assist in the refinement and improvement of the movement."

The purpose of this research is to further explore and add to the conceptual development of therapeutic jurisprudence in the context of the drug court. A theoretical model, primarily based on therapeutic jurisprudence, is examined using a case study approach. The model focuses on three components that are pertinent to the therapeutic jurisprudence theory: 1) court monitoring; 2) drug treatment; and 3) criminal procedures. The model is empirically tested to assess the impact each component has on helping or hindering an offender’s ability to abstain from using drugs while in the drug court program. In addition to the court monitoring, treatment, and court procedures, offender characteristics are incorporated because the drug court literature demonstrates that these have an impact on behavior change (e.g. Reed 1995; Oberg 1996; Schiff and Terry 1997). This research is important because our model incorporates the primary components of therapeutic jurisprudence that have been identified in this literature as having an impact on offender behavior change.

A cohort of offenders from the drug court in Broward County, Florida is followed throughout their time in the drug court treatment program. Data collected during that time period are used in the empirical analysis. Offender behavior change, the dependent variable for this analysis, is measured by the ratio of urinalysis tests passed to urinalysis tests taken during their time in the drug court.1 Observation of offenders during their drug court conferences was used to create the court-monitoring component. There are three parts to this component: 1) the ratio of the total number of supportive comments to the total number of comments each offender received; 2) the ratio of the total number of indifferent comments to the total number of comments each offender received; and 3) the ratio of the total number of adversarial comments to the total number of comments each offender received. The cohort of offenders received a wide range of treatment--from acupuncture to individual counseling. The total number of treatments received, regardless of the type of therapy, is the second component of the model. The criminal procedures of the court make up the third component and is operationalized by combining days between arrest and the start of the drug court program, the offender's original charge, and the amount of time spent in the program. The fourth component consists of the offender's characteristics. Race, gender, age, and education level were used in this study.

Theoretical Foundations

Therapeutic jurisprudence is a relatively new legal theory that was originally defined by Wexler and Winick (1991) as the study of the extent to which substantive rules, legal procedures, and the roles of lawyers and judges produce therapeutic or anti-therapeutic consequences for individuals involved in the legal process. As the theory was applied by legal and academic scholars, the definition evolved into "the use of social science to study the extent to which a legal rule or practice promotes the psychological and physical well being of the people it affects" (Slobogin, 1995:193). The therapeutic jurisprudence theory was first used in the field of mental health law and later adopted in response to areas such as domestic violence, homelessness, and family law. More recently, Hora et al. (1999) has applied therapeutic jurisprudence theory to drug treatment courts (DTC). They state (Hora et al. 1999:4) that

"although born without the advantage of therapeutic jurisprudence analysis, the DTC movement represents a significant step in the evolution of therapeutic jurisprudence--the evolutionary step from theory to application. Through the introduction of drug treatment principles to addicted criminal defendants…DTCs unknowingly apply the concepts of therapeutic jurisprudence every day in hundreds of courtrooms across America. Once DTCs realize this, they can use therapeutic jurisprudence principles to enhance existing procedures, to make a greater impact on the lives of drug-addicted and alcoholic criminal defendants, and to increase the safety of communities across America."

Therapeutic jurisprudence theory helps to explain how the rules and processes of the drug court affect the offenders who go through a drug court program. The process of monitoring offenders throughout their programs is one component that is incorporated into the theoretical model. The rule of providing treatment for offenders is another component. The third component consists of other legal rules that establish the procedures of the court. This exploratory study embodies these components as the foundation for the theoretical model used to empirically examine how the Broward County, Florida drug court's rules and processes affect offender behavior change. The following sections specifically explore the links between the model components and therapeutic jurisprudence theory.

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Court Monitoring

The drug court is a special criminal court that streamlines drug cases away from traditional processing and punishment into an intensive drug treatment program. The drug treatment aspect mandates that drug courts substitute the adversarial approach with a collaborative style of case management to promote the psychological and physical well being of offenders, which is the foundation of therapeutic jurisprudence. In order for the collaborative case management style to be effective, the judge, prosecution, defense counsel, drug treatment providers, and probation representative must work together to monitor the treatment process of each offender to help them change their drug usage and criminal behavior. This practice creates new and different roles for the judges, prosecutors, and defense attorneys; they must work together to apply "smart punishment" to offenders rather than punish them for the sake of retribution (Tauber 1999). "The metamorphosis of these roles allows the goal of the court to become primarily therapeutic while remaining a legal institution" (Hora et al. 1999:15).

The judge is central to the unique collaboration style of the court. "The judge is the leader of the drug court team, linking participants to…drug treatment and to the criminal justice system" (U.S. Department of Justice 1997:4). The judge in drug court legally retains the prerogative over the final disposition of each case and uses his or her statutory power to achieve more than the goal of retribution and deterrence. The judge seeks to affect the behavior of offenders by using the influence of the bench, support, and guidance rather than harassment and intimidation often found in regular criminal case processing. As Belenko (1998:4) points out, the judge "functions as a reinforcer of positive client behavior."

As part of the overall organization and implementation of the drug court program, judges actively participate in a constructive, positive effort to help drug offenders change their behavior. In this sense, judges adopt a quasi-social service role as a supplement to the traditional role of adjudicator and enforcer of legal norms. The social service role they perform is court monitoring. In order to provide effective court monitoring, the judge reviews reports prepared by the drug treatment providers and the probation representative, which contain information about the progress the offender has made. In addition, the relationship the judge and offender have developed has an impact on court monitoring. The judge may be supportive if the offender is believed to be making a bona fide attempt to complete treatment program requirements (even though it may be a physiological struggle to do so). It may be negative if the offender is continually slipping and unable to maintain a consistent effort to abstain from drug use.

The practice of supportive court monitoring provided by the judge is a consequential component of the drug court. For offenders who are meeting the requirements of the drug treatment court, the supportive comments may have a significant impact on their psychological well being, which may ultimately lead to a reduction or abstinence from drug use for an extended period of time. Hence, the specific hypothesis tested here is: As the ratio of total supportive court-monitoring comments to total court-monitoring comments increases, the ratio of urinalysis passed to urinalysis taken will increase.

On the other hand, adversarial comments made by the judge to the offender may be perceived as negative motivation, which may act as a barrier to offender behavior change. For this exploratory study, which is based on therapeutic jurisprudence, the following hypothesis fits the theoretical framework best: As the ratio of total adversarial court-monitoring comments to total court-monitoring comments increases, the ratio of urinalysis passed to urinalysis taken will decrease.

Many comments made by the judge to the offender may be indifferent, such as factual and objective statements concerning procedure or the times and dates of future court appearances. This category of court comments is also included in the court-monitoring component, but there is no expected impact of these types of comments on behavior change.

Treatment

Another important and obvious component of the drug court operation is the treatment each offender receives to address their drug-related problem. Within the drug court, drug-addicted offenders are not considered blameworthy, but "sick" and in need of treatment. This follows in the tradition set forth by the U.S. Supreme Court, which ruled that drug addiction is not illegal based on the case of Robinson v. California (1962). The drug court practice of treating the addiction rather than punishing the addiction is constructive and clearly aligns with therapeutic jurisprudence theory.

In his examination of the Broward County, Florida Drug Court, Terry (1996:17), states, "the approach of the court is built around a shared treatment philosophy." A Government Accounting Office (GAO) Report states that drug courts "operate with the philosophy that because drug addiction is a disease, relapses can occur, and that the court must respond with progressive sanctions and/or enhance treatment rather than immediately terminate a participant" (GAO Report 1995:12). The therapeutic principle is that drug use must be separate from criminality for treatment to be effective (McColl1996). This philosophy is illustrated by the fact that the drug court tolerates slips in the treatment program, such as a missed court date, because it recognizes that the offender has a problem with drug use. If the drug court simply punished offenders for noncompliance it would be doing nothing different than regular criminal court. Its existence would be unnecessary and it would be anti-therapeutic.

The range of treatment techniques offered by drug court also illustrates this philosophy. According to the Drug Court Survey Report Volume IV, most drug courts offer group counseling, individual counseling, acupuncture treatments and relapse prevention. Moreover, most offenders are involved in all of these therapies although some participate in more than others (U.S. Department of Justice 1999). In the Broward County, Florida drug court, twelve types of therapies are offered to offenders, but offenders are only required to attend individual and group counseling sessions.

The drug court treatment practices are supposed to promote the psychological and physical well being of offenders in the program by allowing them to receive different types of treatment to deal with their addictions. Hence, the specific hypothesis tested in this article: As the number of treatments received increases, the ratio of urinalysis passed to urinalysis taken will increase.

Court Procedures and Features

A unique component of the drug court is rules of law and procedure that establish the program features and structurally implement its therapeutic ideals. One procedure of the program is to have offenders promptly appear before the drug court judge after their arrest because drug treatment courts "recognize that immediacy is a key component of the treatment process" (Hora et al. 1999:13). By quickly placing an offender before a judge, the drug treatment court creates an immediate crisis for the offender and can force substance abusing behavior into the open, making denial difficult (U.S. Department of Justice 1997). In their study of the Denver drug court, Granfield, Eby, and Brewster (1998:197) state that "the sooner an offender receives treatment after an arrest, the more likely the intervention will be effective." Other drug treatment literature suggests that a processing delay or allowance for continuances fail to compel an offender to confront their drug use and criminal behavior (White and Wright 1998). The hypothesis tested here is as follows: As the number of days between arrest and the start of the program increases, the ratio of urinalysis passed to urinalysis taken decreases.

The statutory eligibility requirement (drug possession or use) to participate in the program is another legal tool that is unique to the drug court. Most drug courts started out with a "first time felony cocaine possession" only criterion, but many have expanded this criterion. Now the criteria range from "current drug possession charge/no prior convictions" to "current nonviolent charge/up to three prior nonviolent convictions" (Long 1996; GAO Report 1997).2 Rules for program entry also include the type of drug involved and the quantity. Drug court literature shows that offenders arrested for a cocaine charge are less likely to respond to drug treatment than offenders who are arrested for other drug charges (GAO Report 1997). Hence, the hypothesis tested is: Offenders who have a cocaine charge are less likely to have a higher ratio of urinalysis passed to urinalysis taken than offenders who have other drug charges.

The amount of time spent in the program is also a distinct feature of drug court. The cumulative amount of time offenders spend in the treatment program varies from court to court. Some courts have a one-year minimum, others an eighteen month minimum, and still others (primarily post-adjudication courts) permit program completion after nine months. In the Broward County drug court, offenders are encouraged to complete the program in twelve months. However, offender relapses may increase the amount of time they are in the program. Drug courts respond to the relapses in a variety of ways: some increase the frequency of court status hearings, some order short incarceration periods, some increase the frequency of urinalysis, and some increase the frequency and/or intensity of treatment services (U.S. Department of Justice 1999). Most of these responses increase the time the offender spends in the court. According to the therapeutic jurisprudence theory, allowing offenders to extend their treatment program because of relapses may ultimately have a positive impact on their psychological and physical well being because it permits them to continue to try to change their behavior and is not intended as punishment. The hypothesis tested in this study is: As the number of months in the drug court program increases, the ratio of urinalysis passed to urinalysis taken will increase.

Offender Characteristics

Offender demographic characteristics are also included in the theoretical model because the drug court and criminal justice literature document that these characteristics have an appreciable impact on behavior change. Race, gender, education, and age have been identified as important variables to include in drug court evaluations (e.g. Reed 1995; Oberg 1996; Schiff and Terry 1997) and are included in the model. The following hypotheses were developed based on the literature review that follows this section. The hypothesis for race is: Non-white offenders will have lower ratios of urinalysis passed to urinalysis taken than white offenders. The hypothesis for gender is: Male offenders will have a higher ratio of urinalysis passed to urinalysis taken than female offenders. The hypothesis for education is: As the education level increases, the ratio of urinalysis passed to urinalysis taken will increase. The hypothesis for age is: As age increases, the ratio of urinalysis passed to urinalysis taken increases.

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LITERATURE REVIEW

The purpose of this review is to examine research that is directly related to the model used in this study. Drug court literature has increased dramatically over the past ten years.

Judges and Court Monitoring

Studies on the impact of court monitoring on offender behavior change have yet to emerge in the drug court literature. However, there is literature on the importance of judges, who are primarily responsible for court monitoring, in the drug court. Cooper and Bartlett (1996) conducted a study that focused on participant perspectives and asked questions about the drug court judges. Their findings, based on 157 participant responses, showed that "50% of all respondents indicated that the opportunity to talk over their progress and problems with a judge was very important, 27% felt it was somewhat important, while 12% cited this program element as not important" (Cooper and Bartlett 1996:6). Sixty-five percent of the respondents said that they would not have been able to complete the drug court program if they appeared before a judge less frequently and 34 percent said they would have completed the program. When asked if they would have been able to complete the program if they had appeared before different judges rather than the same judge, 73 percent indicated that they would not have completed the program (Cooper and Bartlett 1996).

In a study of 500 judge-participant interactions, Satel (1998) identified variables that judges believe would strengthen the judge-participant bond, leading to participant success in treatment. Some of the variables were the closeness of offender to the bench, microphone on offender, offender next to lawyer, and offender remaining in court throughout the session. None of the variables were subject to statistical analyses, but rather were identified qualitatively through participant observation as characteristics that contribute to offender success in the drug court.

Judges in drug courts are working in new roles within different organizational relationships and are making decisions entirely distinct from those made in regular criminal court. They are obviously having relatively positive results given the growth of drug courts. As drug courts continue to gain in popularity and importance, the lack of knowledge about the nature of judicial court monitoring in them represents a significant gap in the literature. To gain valuable knowledge, and make a substantive contribution to the fields of drug court and therapeutic jurisprudence, an empirical investigation of drug court judicial monitoring is warranted. By examining the impact of judicial court monitoring within the therapeutic jurisprudence, drug treatment court context, this research moves forward this body of literature.

Treatment

Another important component of the therapeutic jurisprudence model is treatment. It is widely accepted that the most important task of any drug court as they have come to be known is drug treatment. Thus, the drug court literature includes a sharp focus on the treatment component of the program and examines treatment approaches and strategies.

Research on individual participants completed by Cooper and Bartlett (1996) shows that 65 percent of their sample would not have succeeded in the drug treatment program if treatment had not been provided. Tauber (1999:28) notes that "treatment retention is a key predictor of success; the longer an offender remains in treatment, the better his chances are of staying off drugs and out of trouble". An evaluation of the Washington D.C. drug court showed that adult offenders in treatment tracks were more likely to be drug-free the month before sentencing than those in a standard court docket (Drug Strategies 1997). Moreover, Vito and Tewksbury (1998:50) find that "completion of the treatment program was a definite indicator of success" for the Jefferson County, Kentucky drug court.

Some researchers who examined treatment and drug use before drug courts emerged have documented that treatment is only useful if the participant is sincerely motivated to reduce or eliminate her/his drug use (Bullington, Sprouls, and Phillips 1978; Klein 1979; Newman 1983). Other researchers have concluded, however, that mandatory treatment does have a significant, positive impact on offender behavior change because the threat of legal sanctions may lead offenders to remain in treatment longer than they otherwise would (Leukefeld and Tims 1988; Anglin and Hser 1990). Other scholars report that female offenders are less responsive to treatment, especially those who have a criminal history or who are supported by male addicts (Wellish, Anglin, and Prendergast 1993).

The treatment aspect of drug courts is one of the most important components of a model based on therapeutic jurisprudence theory. This research moves forward the body of literature because we examine the impact of the total number of treatments offenders received on offender behavior change. This includes the number of times an offender participates in any type of treatment.

Court Processes and Rules

The three drug court processes/rules (time between arrest and starting the program, drug charge, and time in program) are an important component of the theoretical model. Within the drug court and criminal justice literature, these processes are shown to have an impact on behavior change.

With respect to the time between arrest and starting the program, criminal justice literature suggests that immediate entry into a drug treatment program after an arrest increases the chances of program success (Long 1996). Tauber (1993) finds that quick diversion into treatment is most effective among young offenders. The study completed by Cooper and Bartlett (1996) indicates that 45 percent of the participants included in their study said that entry into the program immediately after arrest was very important.

The type of charge an offender receives prior to entry into drug court has not been given the attention that other factors have. Even though type of charge is a less salient factor in program success and plays a greater role in program eligibility, it also has been shown in one study to have an influence on behavior change (GAO Report 1997). The Clarke County Nevada Drug Court indicates that termination rates are higher for participants who enter the program charged with under the influence or possession of a controlled substance, particularly cocaine and amphetamines (Choices Unlimited Las Vegas 1996).

The amount of time that offenders spend in the drug court program is another drug court rule that is important to include in the therapeutic jurisprudence theoretical model. Cooper and Bartlett (1996) find that 67 percent of the participants believe the amount of time they spent in their program is appropriate, 27 percent said the time should be shortened, and six percent said it should be lengthened. When evaluating drug treatment programs, scholars have documented that retaining offenders in the drug treatment program for all of the months required is a key predictor in post-treatment positive outcomes (Leukefeld and Tims 1990; Rotgers 1992).

By including the three program processes/rules in the theoretical model, this research enhances our understanding of the impact of these features on offender behavior change while controlling for court monitoring, treatment, and offender characteristics

Offender Characteristics

Although the offender characteristic component is not founded in therapeutic jurisprudence theory, it is an important model component for understanding offender behavior change. According to some of the drug court literature, there are differences in offender characteristics among those who change their behavior and complete the program and those who did change their behavior and did not complete the program.

The empirical findings on the relationship between program success and race are mixed. Schiff and Terry (1997) investigated the first cohort of offenders in the Broward County, Florida drug court. Their research shows that race is a significant predictor of program completion; white offenders were more likely to complete the program than were non-white offenders. Oberg's (1996) study of the Ventura County Drug Court finds that Hispanic offenders are less likely to complete the program than non-Hispanic. Vito and Tewksbury (1998) study of the Jefferson County, Kentucky drug court program indicate that African Americans are more likely to complete the program successfully than others. The evaluation of the Clark County, Nevada drug court program indicates that there are no differences in termination rates between ethnic groups (Choices Unlimited Las Vegas 1996).

Findings on the relationship between program success and gender are also mixed. Reed's (1995) study of the Sodat-Delaware, Inc. Drug Court Diversion Program discovered that men had slightly higher graduation rates than women. Oberg's study indicated that males were less likely to complete the program. There are no significant differences between male and female participants in the Clark County, Nevada program (Choices Unlimited Las Vegas 1996).

A study of the Los Angeles County Drug Courts indicates that older participants are most likely to complete the program (Los Angeles County Municipal Courts Planning and Research Unit 1996). A study of a drug court diversion program in Delaware also documents that older participants (age 34 and older) have higher program completion rates (Reed 1995). An evaluation of the Multnomah County (Oregon) S.T.O.P. Program shows that older participants are more likely to complete the program (American University Courts Technical Assistance Project 1994). Likewise, an evaluation of the Clark County, Nevada Drug Court program indicates that older participants have higher completion rates (Choices Unlimited Las Vegas 1996).

The offender's level of education also has an impact on behavior change and program completion. Education is a significant predictor of program completion in a study on offenders in the Broward County Drug Court (Schiff and Terry 1997). Reed (1995) also finds that program completion is slightly higher for better-educated participants.

Overall, we hope this research contributes to the literature on drug courts by utilizing a model that includes the therapeutic jurisprudence components that have been identified as having an impact on behavior change.

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METHODOLOGY

For this study, one hundred offenders were randomly chosen from the 885 offenders who entered the Broward County, Florida drug court program in 1995. The dependent variable, ratio of urinalysis tests passed to urinalysis tests taken, was obtained from the treatment provider, the Broward Addiction Recovery Center. A ratio of the urinalysis tests passed to urinalysis tests taken was calculated in order to standardize the measure for offender behavior change. The drug court program includes a requirement that each offender participate in both random and scheduled urine testing. Throughout the program, the urine tests become a measure for behavior change. Some offenders consistently provide urine tests that indicate illegal drug use and they eventually will quit or are terminated by the judge for program noncompliance. Other offenders, on the other hand, provide urine tests that indicate drug use and, after approbation from the judge, are able to change, maintain abstinence, and eventually provide urine tests with no indication of drug use for the remainder of the program. Finally, some offenders seem to experience little difficulty in maintaining abstinence from illegal drugs and complete the program with a 100 percent ratio for urine tests passed to tests taken.

For the cohort used in this study, thirty percent maintained enough of a ratio of urine tests passed to tests taken to complete the program and graduate from the drug court. The court does not have a clear line drawn where offenders who experience a low ratio of urine tests passed to tests taken automatically fail the program. Each offender's situation is managed on a case-by-case basis and governed by flexible rules and procedures. The remaining seventy percent of the sample voluntarily terminated their participation or were involuntarily terminated by the judge for urine test failures, rearrest, excessive Failure-To-Appear (hereafter FTA) in court violations, or for fleeing the jurisdiction.

Direct observation in the Broward County Drug Court was used to collect court-monitoring data. Before the data collection of the court-monitoring data occurred, numerous pre-test sessions were completed in order to define and operationalize the court-monitoring process. During these sessions, it became obvious from the repeated patterns of interactions in the courtroom that the nature of the court comments fell into three categories: supportive, indifferent, and adversarial. For example, during status conferences, where offenders come before the judge for monitoring, the court typically offers praise and support to offenders who are in full compliance with the program; encouragement to those who are failing to keep up with the requirements; and sanctions or the threat of sanctions to those who are unable to fulfill any requirements. After pre-testing, the notes from the court-monitoring sessions were classified into one of the three categories. Because of the assembly-line pace and routinization of the court status conferences, the delivery of the same court comments became somewhat predictable. This made recording the comments easier and the identification of "unusual" comments simpler. An example of a common supportive comment is: "That is an excellent report [that your treatment counselor has given to me]." An example of a common indifferent comment is: "We're going to give you a new court date. We'll see you then." An example of a common adversarial comment is: "You're not doing what you are supposed to be doing [in this program]."

Once the court-monitoring process was operationalized, status conferences for each of the one hundred offenders were observed while they interacted with the judge, prosecution, defense, probation, and treatment people. It is important to note that all of the drug court personnel remained in the Broward County Drug Court during the period that the status conference data were collected. This provides stability and continuity for offenders and also enables the drug court to maintain a consistent and thorough understanding of each offender’s progress at any stage in the program and apply an immediate response to those who fail to comply with program requirements. The response may or may not include a criminal sanction depending on the type of consensus formed by the court officers.

Court officers may recommend a short jail term or possibly recommend a modified treatment plan--whatever they believe will help the offender abstain from drug use. Each offender is required by the terms of the program to appear for status conferences, but the exact number of appearances varies according to the need of the offender. Additional status conferences are scheduled if the drug court believes an offender needs to be more closely monitored. Some offenders have to appear before the drug court judge more frequently due to relapses in treatment. The actual number of supportive, indifferent, and adversarial comments made by the court to an offender was recorded (videotaped hearings could also be viewed numerous times to record specifically each comment that was made). This occurred until each offender either completed the program or voluntarily or was involuntarily terminated.

The data for the number of drug treatment therapies each offender attended were obtained from the Broward Addiction Recovery Center database. The types of treatment program that offenders could attend included: 1) acupuncture; 2) group therapy; 3) individual therapy; 4) feelings workshop; 5) anger workshop; 6) HIV education workshop; 7) GED training; 8) pharmacology workshop; 9) relapse and recovery workshop; 10) stress management workshop; 11) women's group therapy; and 12) relapse prevention. The treatment variable is defined as the the total number of therapy sessions that each offender attended.

Data on the number of days between arrest and the start of the program, the drug charge, and the amount of time spent in the program were gathered from the Broward Courthouse database, known as Dockettrac. The drug charge is the actual charge the offender received under the Florida Penal Code and the variable was coded as "0" for all charges except cocaine and "1" for cocaine. The number of days between arrest and the start of the program is the total number of days that transpires between the day of the arrest and the day the offender appeares in court for the first time. The time in program variable is defined as the total number of months each offender spends in the drug court program.

Pre-existing records from the Broward Courthouse database were used to gather demographic data on each offender. The offender's race (coded 0=nonwhite, 1=white), gender (coded 0=female, 1=male), education level (number of school years completed), and age (age when entered into the program) were gathered from the database.

DATA DESCRIPTION

The mean ratio of urinalysis passed to urinalysis taken is 73.85 percent with a standard deviation of 34.3. The range of the ratio is 0 percent to 100percent. The ratio of supportive court-monitoring comments to the total number of comments received range from 0percent to 57 percent. The ratio of indifferent court-monitoring comments to the total number of comments received ranges from 0 percent to 94 percent. The ratio of adversarial, court-monitoring comments to the total number of comments received range from 0 percent to 88 percent.3

The total number of treatments ranges from 2 to 92 and the mean is 21. The minimum number of days between arrest and start of the program is 1 day and the maximum is 126 days. The mean is fifteen days. Seventy-seven percent of the offenders have a cocaine charge and 23 percent have a drug charge other than cocaine. The variable representing number of months in program(s) has a minimum of 0 months and maximum of 23 months, with a mean of nine and a mode of twelve months. Eighteen offenders were in the program longer than twelve months.

The number of school years ranges from four to eighteen years, and the mean is eleven years. Offender age ranges from 21 to 59 and the mean age is 34. Sixty-seven percent are white and the remaining 33 percent are nonwhite. Thirty percent are female and 70 percent are male.

RESULTS

A bivariate correlation was computed to learn the strength of the bivariate relationships and multicollinearity between the independent variables. No multicollinearity was detected; hence all of the independent variables remain in the empirical model for the multivariate analysis. The correlation results are listed in Table 1.

The bivariate relationship between the ratio of urinalysis passed to urinalysis taken and supportive court-monitoring comments is moderately strong (r=.32), positive, and statistically significant at the .01 level. The correlation between the ratio of urinalysis passed to urinalysis taken and indifferent court-monitoring comments is moderately weak, positive (.17), and statistically significant at the .10 level. The relationship between the dependent variable and adversarial court-monitoring comments is moderate, negative (-.20), and statistically significant at the .05 level.

The bivariate relationship between the ratio of urinalysis passed to urinalysis taken and treatment is also statistically significant at the .01 level. None of the correlation coefficients for the court procedures/features variables (days between arrest and start of program, charge, or months in program) are statistically significant. The only offender characteristic with a statistically significant correlation coefficient is race (.17).

One objective on the multivariate analysis is to identify the explanatory model that will account for the maximum amount of variance in the ratio of urinalysis passed to urinalysis taken. To more easily differentiate between the impact of variables in each component, four models are tested using ordinary least squares regression. The first model incorporates only the court-monitoring comment variables; the second model includes only the treatment variable; the third model includes only the court procedure variables; and the fourth model includes the offender characteristic variables. In order to assess the effect of all of the variables, a fifth model is presented, which includes all of the independent variables. The results are listed in Table 2 (see below).

The first model, which incorporates the court-monitoring comments, produces a statistically significant F-score and an R2 of .13. The standardized beta for supportive comments is positive and statistically significant, which supports the hypothesis. The standardized beta for indifferent comments is positive but not statistically significant. For the adversarial comments, the standardized beta is negative and statistically significant. Hence, as the number of adversarial comments increases, the ratio of urinalysis passed to urinalysis taken decreases.

For the second model, treatment, the standardized beta coefficient for total number of treatments is .26. The direction of the relationship corresponds to the hypothesis and the relationship is statistically significant. The F-score is statistically significant, and the R2 is .07.

The F-score for the model that includes the court procedure variables is not statistically significant. The standardized beta coefficients for the court procedures are weak and not statistically significant. The lack of statistical significance for the days between arrest and start of program, the type of charge, and months in the program indicate that these procedures do not explain variation in the ratio of urine tests passed to tests taken in our data.

In the fourth model, which incorporates the offender characteristic variables, the F-score is not statistically significant. The only offender characteristic that is statistically significant is race. Non-white offenders have lower ratios of urine tests passed to tests taken than white offenders. The relationships between age and the dependent variable and education and the dependent variable are also not statistically significant. Moreover, the low standardized beta for gender does not support the hypothesis that males will have higher ratios of urine tests passed to urine tests taken.

The model that includes all of the variables produces a statistically significant F-score, and the highest R2 (.24) of all of the models. The beta for supportive comments remains positive and statistically significant, and the size decreases from .29 to .25. The beta for adversarial comments remains negative and statistically significant, and increases from -.19 to -26. For the treatment variable, the beta remains positive and statistically significant, but its size decreases from .26 to .18. The court procedure variables remains negative and insignificant. Race is the only offender characteristic variable in the that is statistically significant, and the size of the standardized beta actually increased.

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Table 2. Regression of Ratio of Urine Tests Passed to Tests Taken on Independent Variables (n=100).

 

 Model 1

 Model 2

 Model 3

 Model 4

 Model 5

 Court-Monitoring

 
 
 
 
 

Supportive Comments

 .29**
 
 
 
 .25*

Indifferent Comments

 .03
 
 
 
 .01

Adversarial Comments

 -.19*
 
 
 
 -.26*

Treatment

 
 
 
 
 

Total Number of Treatments

 
 .28**
 
 
 .18*

Court Procedures

 
 
 
 
 

Arrest and Start of Program

 
 
 -.05
 
 -.02

Charge

 
 
 -.06
 
 -.05

Months in program

 
 
 -.04
 
 -.06

Offender Characteristics

 
 
 
 
 

Race

 
 
 
 .20*
 .23*

Gender

 
 
 
 -.13
 -.18

Age

 
 
 
 .04
 .09

Education Level

 
 
 
 .09
 .05

F

 4.76
 2.40
 .16
 1.25
 3.01

Significance

 .01
 .04
 .92
 .29
 .03

R2

 .13
 .07
 .01
 .06
 .24

* p < .05

** p < .01

 

 

 

 

DISCUSSION

According to therapeutic jurisprudence theory, the processes and rules of the drug court should have a positive, therapeutic impact on offender behavior change. The hypothesis of this study is that increases in supportive court-monitoring comments will lead to positive increases in offender behavior change. The hypothesis is supported by this exploratory analysis. In addition, the hypothesis that increases in adversarial court-monitoring comments will lead to negative offender behavior change was empirically supported. As would be expected, indifferent court-monitoring comments did not have a significant impact on offender behavior change.

The results indicate that the drug court rule for providing treatment to offenders does have a significant impact on offenders behavior change. The hypothesis that increases in treatment will lead to increases in offender behavior change was supported in the analysis.

Other procedures of the court, treatment and time in the program, are found to be unrelated to the dependent variable. The drug charge variable is negatively related to the dependent variable, which means that those offenders who have a cocaine charge are less likely to change their behavior.

Race is positively and significantly related to the dependent variable, which means that white offenders were more likely than blacks to have clean urine tests. According to the findings, education level, gender, and age are not significant predictors of offender behavior change.

Our findings show that a model including both the court-monitoring and treatment components have more explanatory power than ones that include court procedure and offender characteristics. However, based on these results, it appears as though the regression model which incorporates all of the independent variables has the most power for explaining the variance in offender behavior change as measured by the ratio of urine tests passed to urine tests taken. The results clearly show that for this exploratory study, therapeutic jurisprudence theory does have explanatory power for understanding offender behavior change.

CONCLUSION

This research can provide criminal justice policymakers and practitioners significant information for the theory of therapeutic jurisprudence inherent in the implementation of the drug court program. Although the empirical findings show that the therapeutic jurisprudence concept of supportive court monitoring enhances the therapeutic effects of the Broward County Drug Court procedures, generalizing these findings to all drug courts would not be appropriate. This, of course, is one of the shortcomings of this study as well as many other studies on drug courts, which was pointed out by Belenko (1998) in his review of drug courts. If possible, scholars who complete future research on drug courts may want to focus on court monitoring in several courts around the nation in order to be able to make generalizations for all drug courts.

In the case of the Broward County Drug Court, the results have some implications for the management of the drug treatment court at the micro- and macro-levels. By knowing that supportive comments in judge-offender status conferences have a significant impact on offender behavior change, drug court personnel may want to pay special attention to their comments while they interact with offenders. Since judges are at the center of the interactions, they may want to discuss the importance of supportive comments in the context of the collaborative case management style. At the macro-level, it is apparent that the therapeutic jurisprudence principles have explanatory power for understanding the practices of the drug court. The theoretical model used in this study may provide scholars with a neoteric model that can be used to enhance our understanding of the management practices of drug courts.

Overall, the therapeutic jurisprudence theory suggests that offenders may be more responsive to an orientation of a court that uses positive reinforcement rather than the traditional tools of retribution, deterrence, and punishment found in the crime control model used in regular criminal case processing. As the drug court movement moves forward with its technology for managing drug cases, it is imperative that the legal rules and practices, which define its case management style, promote the psychological and physical well being of the people being affected by the court.

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Endnotes

1. The dependent variable, the ratio of urine tests passed to urine tests taken, is chosen over program completion because it captures behavior change even if the offender does not complete the program. For example, an offender may remain in the program for only eight months and not complete the program, but during that time s/he is required to take urine tests. The urine tests taken during that period identify whether or not an offender abstained from drug use, even if the behavior change did not result in program completion. If program completion is used as the dependent variable, the behavior change for the months s/he did remain in the program would be lost. Moreover, offenders can change their behavior but still not complete the program because there are numerous procedural components (e.g. failure to appear, leaving the jurisdiction) that may prevent them from completing the program.

2. Prior criminal history data, although a critical variable in the analysis of any criminal justice system program which attempts to modify behavior, are not available for this study. The efforts to access records in a Sheriff Department database and a National Crime Index Computer (NCIC) database were unsuccessful. Attempting to locate and ask individual members of the cohort about the number of their prior offenses, arrests, convictions, and incarcerations were also unsuccessful.

3. For each offender, all three categories of court-monitoring comments added together equals 100 percent. For example, an offender received 22 percent supportive comments, 46 percent indifferent comments, and 32 percent adversarial comments.


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