What law school ought to be.



Drug Treatment Court : The Making of Judicial Capital

- Collaborative Therapeutic & Preventive Practices -

a perspective by
David Stevens Hobler


Introduction. I have coined the phrase "judicial capital" as a catch-all useful concept to identify and circumscribe the resourceful production of drug treatment court (DTC). My emerging definition of "judicial capital" is: "a result that is somehow always greater than the sum of its evolving parts." Stated another way, judicial capital names a disproportionate successful outcome (result) achieved by the collaboration (sum) of therapeutic and preventive practices (parts). What is the source of my inspiration? I have witnessed the phenomenon of dramatic recovery in DTC clients, family, and community - as well as, the psychological benefits to DTC judges, attorneys, and other criminal justice professionals.


How It Works. DTCs function on the premise that treatment works. This specialty court supervises a treatment protocol for non-violent substance abusing offenders. Once eligibility is quickly determined, the offender is offered the choice of traditional criminal prosecution or the option of a rigorous trial of treatment. By choosing treatment, an offender openly declares a readiness to accept help to begin recovery. A contract charting the conditions of this goal is formally agreed to. If the offender is a youth, the court typically requires a parent or responsible adult to publically pledge their adherence to the contract.


Treatment progress is closely monitored by regular, sometimes weekly, court appearances and by the collaborative DTC team of judge, prosecutor, defense attorney, probation officer, and treatment provider. Participation by the offender includes compliance with the DTC contract, typical terms being: regularly attend recovery fellowship meetings; select a mentor already working the recovery program; begin work on the recovery program with the mentor's guidance; check-in with the DTC coordinator or case manager, as required; submit to random urine tests; attend counseling sessions, if ordered; and, never miss court. Failure to comply with the DTC contract can result in various intermediate sanctions. Repeated violations can eventually lead to expulsion from the treatment program and referral for traditional criminal prosecution. Program satisfaction depends on individual progress, usually between 14 and 24 months, when a joyous "graduation ceremony" is held and the originating charges dismissed.


Why It Works. The unity of purpose in DTC signals a paradigm shift in the criminal law and the exacting practice of therapeutic jurisprudence in action. This new perspective calls for the person in the "hot seat" - the offender - to be recast in the role of "client," a term of respect and equanimity. The challenge for the DTC team members is to collaborate with their client to develop a flexible, realistic, and current treatment strategy. This process starts by identifying people, places, and things that support a lifestyle that can help the client get and stay clean and sober.


While the DTC reporter's transcript designates each participant by traditional title, new and different behaviors are suggested for everyone by the key therapeutic principles of recovery found in every DTC program. The very nature of the team mission - the design for and by the client of a living recovery program - modifies judicial rules, procedures, and communication postures. The judge should possess the temperament and technique to serve as a team player, coach, mediating differences, coordinating styles, and encouraging the client to follow the path of recovery. The judge no longer needs to referee the attorneys who collaborate for the client's benefit and accountability.


The attorneys cease gamesmanship and behave like partners for a common client, tailoring remarks and input to support adherence to the treatment plan or modification of it. Treatment professionals report on the client's recovery progress not the need for perfection. Emphasis is placed on positive behavior change by confirming client strengths and suggesting restorative options. When the possibility of intermediate sanctions are openly discussed, everyone presents an evaluation about what immediately needs greater attention, ways to best do this, and then coming to a collaborative resolution. In the case of youth - parents, school representatives, and concerned significant adults attend court and, as team members, contribute to the solution.


What Works Best. Recent studies in the field of psychotherapy - "studies of many studies" - find that none of the various recognized therapy models have proved more reliable than any other. There are no clear cut "winners" in the competition for best method. The authors of this new research call this the "Dodo Bird" proclamation, taken from Alice In Wonderland, where the Queen exclaims, "All have won, so ALL must have prizes!"


If each method is more effective than nothing at all, but no one more so than any other, what are the similarities to positive behavior change each conjures up? When evaluating common factors and their respective weight to motivating positive behavior change, this research provides this strength-based percentage allocation:


Client - 40%: The largest single contributor to positive behavior change is the client - what assets the client brings into court augmented by supportive aspects of family and community environment. These include individual strengths, hobbies, past problem solving abilities, social supports, beliefs, and resources. In shaping a recovery plan, a client is not a mere conduit or processors of information. A client needs to be active and generative. The more the other DTC team members encourage and foster client participation, the more judicial capital harvests the single biggest power booster "to change."


Relationships - 30%: To the extent that the judge and treatment professionals can foster a good alliance with the client, the next largest contribution to change is reaped. This translates to perceived empathy, acceptance, and warmth. The "kicker" here is this is determined by the client, not by another's evaluation. The greatest predictor of relationship alliance comes from the client's reported perspective. The most fertile opportunity to commence this emotional bridging is when the DTC contract is solidified. The greatest gains (positive final outcomes) are found when the client reports a positive alliance by the 4th treatment meeting or court session. The strong recommendation is to consider how indelible first impressions conveyed to client are and their lasting influence upon concerned significant others (CSOs). In these initial sessions, DTC team members should make every effort to accept client goals at face value and to collaboratively consider these client options to the recovery plan. While the prospect of having a "clean record" is the moving force to the client entering treatment, research shows that what keeps the client "keeping on" in DTC for over a year is the positive relationship with the judge.


Expectancy - 15%: This "placebo factor" deals with the client and CSOs' hope and expectancy that the DTC recovery plan will bring positive change and help. This means the treatment program must convey the "possibility" for change. Hope, optimism, encouragement...extending these to the client counteracts demoralization and improves outcomes.


Technique - 15%: This refers back to the "Dodo Bird" finding. What is most significant is how weak this factor is as a contributor to change. Why then do universities and graduate schools spend a majority of time promoting this component instead of teaching more effective ways to elicit, amplify, and reinforce the client, CSOs, and relationship factors? This 15% seems meaningful only if "techniques" work to raise the other 3 factors - sort of a Catch 22! The real point is that any technique, to be therapeutic, must be delivered with compassion, tolerance , and suggestion. Talk is idle if not heart-felt. When the message is preached from a pulpit or delivered with an authoritative spin, the listener steps back from the speaker.


The significance of these weighted contributions illustrates The Making of Judicial Capital: when people are connected and responsible to one another, any team member can be more productive. Personal recovery depends upon the common welfare and group purpose.


How It Keeps Working.

Getting clean and sober is easy; maintaining and insuring this lifestyle is much harder.


Therefore, relapse prevention - daily awareness and skills training - is imperative. To a certainty, the client has repeatedly tried to abstain from the use of alcohol and other drugs (AODs), em- ploying the utmost sincerity and determined self-will. Now standing before the DTC judge, the mounting adverse consequences may have beaten the client into surrendering sheer self-reliance. Giving up old ideas and habits of I can do it myself about AODs is hard. But by agreeing to the DTC's treatment protocol, the client stands at the turning point and begins to realize the lifesaving value of seeking guidance from therapeutic sources of support in day-to-day decision making.


Hopefully this admission by the client begins to reverse denial, a major psychological barrier to recovery which has persisted for a long time. This is a crucial therapeutic step in the recovery process. Other psychological healing includes accepting personal responsibility and the restoration of self-esteem. By using AODs the client may have crossed that "invisible line" into active addiction, the most clear and convincing "Public Enemy No. 1" to the recovery process.


Active addiction brings on an overwhelming preoccupation and psychological mix of craving, terror, and self-loathing. The active alcoholic and addict uses to survive, not for relief or to feel "normal." The progressive and fatal nature of active addiction is accurately portrayed by Nicholas Cage in the film "Leaving Las Vegas when this phenomenon ran its inevitable course. Relapse begins long before the client actually picks up the drink or drug. It starts as denial returns in attitudes of ignorance, complacency, and defiance. Remaining vigilant one-day-at-a-time is essential for relapse prevention. This keeps everyone on the DTC team on their toes and current. A service commitment by the client - listening to and working with others in recovery - is perhaps the most effective antidote to these psychological states that portend relapse. Thus, belonging to a recovery group is a foundational absolute. This healing community atmosphere helps breakdown the sense of stigma, isolation, and self-will. The major loss in active addiction is the loss of self-esteem.


Concerned significant others (CSOs) play an important role in the client's recovery. Many CSOs exhibit "blue" moods, physical complaints, and lowered self-confidence. The loved ones of alcohol and drug users are victims just as surely as are the users whose bodies bear the brunt of abuse. It is estimated that for every active alcoholic and addict, there are multiple other victims. CSOs of a client entering treatment have elevated levels of depression, anger, anxiety, and negative body ailments. Separate skills training for CSOs is necessary for their recovery and as an added measure of relapse prevention insurance for the client.


Active addiction is a puzzling phenomenon - cunning, persistent, and incurable - an affliction old enough to be recorded in the Bible. The hopeful feature about addiction is that while treatment is lifelong, it is affordable and highly effective. So effective, many say, that once recovery becomes a lifestyle practice for the client, a remarkable paradox often occurs. This defined and continuous path of healthy living allows the client to achieve a greater social usefulness and sense of well-being than ever previously experienced. This unique transformation means quite literally that the client gets healthier in recovery than before the on-set of active addiction - better than as good as new! No other affliction can make this claim.


In practicing recovery, You've got to give It away to keep It. By passing on this message of gratitude and hope to other suffering alcoholics and addicts, the lay client's recovery is tuned-up and strengthened by the "authorized" practice of Preventive Law. Preventive law seeks to intervene in legal matters before disputes arise. It recognizes the otherwise enormous psychological and financial costs. Its practice preserves ongoing healthy relationships by intervening in potentially troublesome situations before they erupt. The vectors of preventive law and therapeutic jurisprudence are alive and well in the collaborative practices of the DTC, ever busy making judicial capital.


* David Stevens Hobler, J.D., LL.M., serves as an advisor to drug treatment courts utilizing his background in criminal justice, trial practice, mediation training, and health education. His consulting firm, Fit In Recovery, designs and implements health intervention strategies for individuals, families, and organizations. The firm's programs affirm its mission - actualizing the systemic link between recovering health and physical activity. Program evaluation demonstrates that real institutional goals are achieved and sustained only when operational policies promote individual empowerment and well-being. The author's own experiences have generated motivational articles and radio discussions. As a teacher, he develops clinical courses in law-related education for students from elementary to graduate school. He speaks regularly on behalf of national law associations on the general topic of Practicing An Ethic of Self-Care. Mr. Hobler residers in the Bay Area, Northern California.