By Leslie Paik. New Brunswick
DISCRETIONARY JUSTICE: LOOKING INSIDE A JUVENILE DRUG COURT
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. [*650]
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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