There is a belief that loss of liberty means prisoners give up constitutional protections. This is true of some, but not all protections.
For those existing rights, there is the burden of reasonableness.
For women facing drug charges in a therapeutic and non-adversarial setting, the meaning of reasonableness is unclear. This is particularly troublesome given that drug charges are inalterably tied to relationships between public health and legal meanings that do not engage the question of constitutional protections.
Women are under the radar when it comes to constitutional protections. One reason for this, based on the literature, is that drug courts do not benefit low level offenders as much as high level offenders. The majority of women are low level offenders and their cases receive little scrutiny.
Judges have to be aware of how district attorney offices approach these low level crimes committed by women. While the argument has been given that women signed away constitutional rights, their consent is frequently given in a coercive environment.
Many women are caught in a revolving door.
They are most likely to be returned to prison for technical violations. Yet these violations are related to psychological and socioeconomic stresses that brought women into the criminal justice system in the first place.
A team approach in drug courts with the potential for interpersonal understanding between the team and a woman charged with a drug-related crime might set a woman free of the revolving door. However, the team would need to include judges and ideally representation from the district attorney's office.
Without this kind of cooperation, there is the very real danger of collusive, non-transparent practices based, not on sound legal principles, but on moral judgments concerning a women’s role in society.
Diversionary courts are for the most part designed and built for men. Court-sponsored job training programs mostly involve traditionally male dominated fields.
Women who appear before a judge in drug courts are frequently the heads of impoverished households. It is likely that they have a history of mental illness and abuse.
Are they in the right court?
Stephen V. Manley, judge of the Santa Clara Mental Health Court says, "In a drug court we use incentives and sanctions to motivate clients. With the mentally ill it is totally different...[and] eighty percent of mentally ill people are substance abusers."
When it comes to addiction , research has shown that female felony offenders are more likely to be addicted to a serious substance than males. Yet, the behavior change approach most often found in drug courts, a carrot/ stick, e.g., sanction and reward approach within a short time frame, is designed for men.
Furthermore, treatment mandates in these courts generally follow Medicaid rules that demand a quick cure. The real-world long term success due to empowering strategies is ignored.
If women fail to comply with the diversionary court's ruling, they are returned to prison. And, women do fail and recidivate because of the socio-economic inequities and psychological histories that brought them into the criminal justice system in the first place.
More courts are discovering that gender plays an important role. For instance, women demonstrate a significantly different behavior from men in terms of interpersonal relations within the court setting. They are more likely to share personal revelations with a judge and are more vulnerable to reactions that tell women, who above all else need to feel safe, that the court is an unsafe place.
Some drug courts have begun to address gender bias in court settings. A Michigan drug court created a separate court for women primarily because, as is typical across the country, there were far less post-release services available to women.
In California, The Santa Clara County Drug Treatment Court separated men and women defendants. When women were scheduled on a separate court calendar, court planners found that these participants were less distracted and more able to develop a productive relationship with the judge. They were also able to develop useful support networks with other female defendants.”
The Santa Clara court worked with the local correction department to identify female addicts who might be eligible for drug court. It also partnered with county's dependency court, which handles family cases as well as with the local public health department.
A Brooklyn drug court set a precedent when it compiled comprehensive statistics for women. It found striking differences in women's socioeconomic, health, and mental health status compared to men.
The court received a grant to revamp itself as a “treatment court. Funded by the Center for Substance Abuse, the court subsequently designed a program called Project Return, which provided tools for empowerment, including joint therapy sessions for mothers and their children with the goal of reunification.
New kinds of alternative courts appear daily. Is the justice system's relatively new way of doing business with alternative courts a fad or a sea change in criminal justice? The jury is still out. These collaborative courts go by various names. In many jurisdictions, it is called “problem solving.” In California the growth of alternative courts goes by the name of “collaborative justice.”
Collaborative court programs are specialized tracks that combine judicial supervision with monitored rehabilitation services. They include integrated treatment, social services, strict oversight, accountability, a team approach to decision-making, and frequent interactions between the judicial officer and the participants. These courts are in a county's jurisdiction and frequently differ according to the discretion of the judge.
There are problems. These problems include rushed judgements where even the most basic information is missing juvenile dependency court.
The diversity and number of of collaborative courts ranges from county to county. New kinds of court are proposed continually. For example, domestic violence courts.
Alternative courts are streamlined, less costly, and a black box.There is the possibility of constitutional violations particularly involving the regarding 1st, 4th, and 14th amendment rights .
These violations can include due process and procedural due process violations involving the scientific reliability of drug testing results, lack of due process in termination proceedings, the paucity of lawyers educated in an evolving system of justice represented by diversionary courts, judicial bias, lack of evidence, e.g. a reliance on police reports and hearsay, and sanctions without hearings or a right to counsel.
Participants in termination proceedings might experience a lack of educated lawyers, judicial bias, dependence on police reports, and sanctions that do not include hearings or a right to counsel.
The first drug court, a hybrid legal/therapeutic model, was formed in Florida in 1998. Combining drug treatment with the structure and authority of a judge was seen as a way to minimize repeat offenders through a quasi therapeutic treatment and legal approach.
These alternatie courts grew exponetially. By 2012 there were 2,734 drug courts across the country, half of which were adult drug courts.
California’s Proposition 36, implemented July 2001, mandated diversion of non-violent drug offenders to treatment in lieu of prison.
The general belief has been that drug courts overall work. But how well does this alternative criminal justice system work for women? Are structural issues that encourage inequities, including gender and racial bias, resolved?
Many authors say no for a number of reasons.
The jury is still out as to their overall effectivenss. Each court is different and subject to discretionary practices.