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Due Process and the Role of Judges

Date Published
September 26, 2019

Sidebar to the article Problem-Solving Courts: Fighting Crime by Treating the Offender by Paul A. Haskins, published in NIJ Journal issue no. 281.

A recurring theme in drug court research, including the Multnomah County and Multisite Adult Drug Court Evaluation studies, has been the critical role of the judge. Drug court procedures are designed to enable judges and participants to interact in a cooperative, largely nonadversarial setting that encourages positive treatment outcomes. As one scholar surveying relevant research observed:[1]

These courts get good results in large part because participants have positive perceptions about them. Faith in the court makes people more likely to follow treatment plans and stay away from trouble in the future. In interviews, specialty court participants report feeling that they have a voice in the treatment process and are treated with dignity and respect. … Offenders who take part in specialty court programs frequently rate interactions with judges as one of the more important and positive aspects of their experience.

It has long been recognized, however, that the procedural freedom enabling a drug court judge to act as an ally of the defendant in a nonadversarial setting comes at some risk of judicial inconsistency or impairment of defendants’ rights. A report prepared by an American University team, based on findings from a national focus group of problem-solving court (PSC) administrators and judges, observed:[2]

Another challenge from the traditional court perspective was the practice [in PSCs] of suspending the adversarial process and having defendants “give up their rights to the traditional process in order for the court to help them.” The adversarial process was described in this group not as contentious, but rather as the taking of differing positions to ensure that the situation of the defendant was understood more fully. The participants agreed that the adversarial process could have a detrimental [effect], where the sides could become overly contentious and in turn slow or prevent the resolution of a case. In spite of this concern, the participants acknowledged that the original principle behind the adversarial process was still a good one and should not be lightly put aside.

With that inherent institutional tension in mind, a pillar of the drug court model is preservation of core due process principles. The seven program design features developed by NIJ and the Bureau of Justice Assistance state that with respect to procedural and distributive justice, “The basic concerns are fair process and equitable outcomes.”[3]

About This Article

This article was published as part of NIJ Journal issue number 281, published October 2019, as a sidebar to the article Problem-Solving Courts: Fighting Crime by Treating the Offender, by Paul A. Haskins.

[note 1] Kelly Frailing, “The Achievements of Specialty Courts in the United States,” Scholars Strategy Network, April 11, 2016; and Rachel Porter, Michael Rempel, and Adam Mansky, What Makes a Court Problem-Solving? Universal Performance Indicators for Problem-Solving Courts, submitted to the State Justice Institute (New York: Center for Court Innovation, February 2010), 22. “One focus group participant put it this way: ‘Judges interact with the accused or interact with participants and the players in the system in an entirely different way of talking to people. That is a very, very real distinction … . When you walk in, you start to go, Oh my god. The judge is actually looking the client in the eyes and talking to them like he’s a person. In traditional courts, judges try hard not to do that [because] they are trying to maintain their objectivity.’”

[note 2] American University, “Challenges and Solutions to Implementing Problem-Solving Courts from the Traditional Court Management Perspective,” Bureau of Justice Assistance National Training and Technical Assistance Project, April 2008.

[note 3] Bureau of Justice Assistance and National Institute of Justice, “Seven Program Design Features: Adult Drug Court Principles, Research, and Practice,” Research to Practice fact sheet, January 2012, 8, NCJ 248701.

National Institute of Justice, "Due Process and the Role of Judges," September 26, 2019, nij.ojp.gov:
Date Created: September 25, 2019