Therapeutic Jurisprudence and Procedural Justice in Scottish Drug Courts

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 recognised that much acquisitive crime in the UK occurs through the need for individuals with drug problems to obtain the financial resources necessary to maintain a regular supply of drugs. Previous legislative endeavours had focused primarily upon attempting to reduce the supply of illicit substances 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, States that Drug Courts, first introduced in 1989 and subsequently established across the country, were showing promise in reducing problematic drug use and drug-related crime (Belenko, 1998). 2 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 emphasised the case management role of the supervising officer, who would be responsible for coordinating service provision rather than directly providing services. Third, and perhaps most significantly, 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, scrutinising progress …