Professor Nolan is cited as the primary critic of problem solving courts (which provide alternatives to jail time for drug offenders) in this interesting article. Nolan opines:

Ideological critiques also tend to distract from what some see as structural flaws of problem-solving justice — and there are a few. Problem-solving justice’s most vocal critic is James Nolan Jr., a criminologist from Williams College in Massachusetts. He has dedicated a good portion of his career to writing articles and books challenging the approach, and his latest book, to be released in 2009, will compare the operations of problem-solving courts around the world.

Nolan’s chief criticism involves due process rights. “My concern is that if we make the law so concerned with being therapeutic, you forget about notions of justice such as proportionality of punishment, due process and the protection of individual rights,” Nolan says. “Even though problem-solving advocates wouldn’t want to do away with these things, they tend to fade into the background in terms of importance.”

Nolan offers an example, a drug court participant in Miami-Dade County who was forced to remain in the program for seven years. “So here, the goal is not about justice,” he says. “The goal is to make someone well, and the consequences can be unjust because they are getting more of a punishment than they deserve.”

With the caveat that I haven’t read anything more fleshed-out by Nolan, I disagree. As a former prosecutor, I’ve seen first-hand how habitual drug users are failed by the system, wasting tax payer dollars and law enforcement / judicial resources in the process. I don’t see a system which is not punitive as threatening due process — to the extent someone is marooned in the problem solving court for years, all that means is that they are a habitual drug user who would otherwise be in jail or dead. Moreover, many states impose — without violating due process — far more intrusive “non punitive” measures on habitual sex offenders (namely, locking them up indefinitely beyond the term of their sentence, if they are deemed a serious enough recidivist threat).

One thing is for sure, the system of locking up more and more people for drug use or petty crimes (small time dealing, shoplifting, larceny) associated with feeding their habits has proven not to work. I don’t see the harm in trying to be creative with a novel approach.

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