Across the water

Judge Russell Canan, then a relative novice having been appointed to the Superior Court of the District of Columbia by President Bill Clinton just five years earlier, was not all that enthusiastic upon being asked by the then chief judge to sit on Washington DC’s experimental drug court. “I didn’t want to do it,” he admits. “[With] the little I knew about drug court, it didn’t really appeal to me. I wanted to try cases, I wanted to try jury trials, I wanted to work on my craft as a trial judge.” That was the late 90s. Today, with community courts and mental health courts also now established in the US capital, Canan spends much of his time encouraging others to embrace the problem-solving court model.

Nearly 13 years to the day since the first case came before Glasgow’s drug court, Canan was in Scotland to lend his experience to the process of bringing a problem-solving court to Aberdeen. Discussions are still at an early stage with government officials combing figures to identify where the greatest need lies. In the US some 25 years ago, drug offences were the firm focus. In 1980, 19 out of every 1,000 people arrested for a drug crime went to prison; by 1992, that figure had risen five-fold to 104.

Miami-Dade County, Florida, had been behind the nation’s first drug court in 1989, an initiative designed to get to the root of criminal behaviour. “Basically, in the early 90s, [there was a] crack cocaine rampage over Washington DC and many other cities,” explains Canan. “There were all these crack cocaine possessions and sell cases and open-air drug markets, and of course, wherever there are drugs, there is a spike in violent crime and the crime rate and murder rate went very high.” 

DC officials soon realised mass incarceration as part of the so-called ‘War on Drugs’ wasn’t working. “The leaders thought of an alternative way, modelled on the Miami Drug Court, to try to have a sanctions and treatment based programme offering a legal benefit,” says Canan. “That is, cases would either be dismissed if they were minor cases or we reduced to lesser charges and offenders wouldn’t be going to prison if they successfully completed a rigorous treatment and sanctions programme. That is what I was introduced to; trying to preside over that type of court and deal with defendants who, by definition, are non-violent. The crimes are non-violent and their backgrounds were non-violent for a significant period; if they had any violence it was well over ten years ago… It’s a completely voluntary court, no one is required to come in – if they don’t want to do it they could just go through the normal criminal processing.”

Intensive treatment was provided, while defendants would undergo drug tests several times a week. “If they tested positive they’d have to come to court and if their reason for testing positive was not satisfactory they would get a jail sanction ranging from one to three days with the principle being that swift and certain punishment is really an excellent guide for behaviour modification rather than long sentences,” says Canan. Then, each month, family and friends gather to see them graduate and, crucially, have their cases dismissed. “It is really quite a heart-warming event in the courthouse, which is usually a place of a lot of distress and dysfunction. Drug court graduation is a life-affirming event.”

A pilot community court followed in the early 2000s to handle misdemeanour cases and link offenders into the likes of education and employment at the same time as performing community service at the likes of churches and homeless shelters in the area where they committed their crime. Canan would later be charged with devising a programme for the entire city that would include judges attending at least one community meeting per month to ensure neighbourhood buy-in. “With this new programme we’re having an 80 per cent success rate, that is 80 per cent of the people who join the programme and participate successfully complete it and they get their cases dismissed,” he says. “We’re making inroads. We’d still like to do more with educational and employment opportunities, working with the groups that we have. That’s a main challenge now that we’re working on, but I’m reasonably hopeful that we’ll have success there.” 

Then, five years ago, Washington went a step further and introduced a mental health court for low-level offenders that brought judges, prosecutors, the defence bar and community-based treatment specialists together. Short spells in jail, however, is not a sanction at the judge’s disposal, with additional treatment typically the route taken when faced with non-compliance. 

In all of this, a more hands-on monitoring role is asked of judges. “It does require a different mode of communication in a drug court because you are communicating one-on-one with defendants, encouraging them at times, chastising them at times, congratulating them at times,” says Canan. That does prompt questions as to whether those on the bench are best-placed to do so. For Canan, research clearly shows that the dynamic between judge and defendant – and the latter’s eagerness to gain the respect of the former – helps explain the model’s success.   

Judicial leadership is critical. “It really is a team of professionals working for the same goal, which is a different paradigm than the usual court process which is an adversarial system and where the judge plays a much more neutral role in terms of just adjudicating case by case. I don’t want this to be misunderstood, our main mission still is to adjudicate cases and make sure that due process is protected. But our model has shown that the judges can do more than just that.”

Holyrood understands discussions are ongoing between Sheriff Principal Derek Pyle and sheriffs in Aberdeen to gauge support ahead of a local criminal justice board meeting at the start of next month. “There has to be the will to do it and if the judge is not willing to do it, you could have extra resources and extra money and cooperation with the defence bar and the prosecution bar but if the judges are not onboard, it is not going to happen,” adds Canan. “That has been my experience, not only in Washington DC but observations of other courts. 

“Where there are leaders who are willing to bring everybody together and foster this collaborative team effort, that’s really the key, because I think what they will find is that people are willing to come together and try to maximise whatever resources they have. Like, in Aberdeen, if they’re going to get some extra resources all the better, because I think people will realise that this a cutting edge part of criminal law. It has really been part of a criminal law revolution to try to deal with offenders in a different way.”

Canan, who has twice visited Scotland, admits to being very impressed with the Judicial Institute for Scotland, which is responsible for judicial training here at home. Whether what the Washington judge describes as ‘cutting edge’ will catch on in Scotland remains to be seen, however, given Glasgow is the only current example after a second drug court in Fife saw its funding withdrawn. “To my mind, I don’t know why you wouldn’t try it – the results speak for themselves,” says Canan, cautioning, however, that change must not be for change’s sake. “If Scotland, in some places, don’t have enough cases to support it then it is probably not worth the resources and time of a particular community to do it… It is a lot of work to put these courts in action, it really is. And if there isn’t a demonstrated need and demonstrated risk in the population then it’s probably not worth it.”

Whether the model proves to be resource intensive depends on existing services within the community that can be called on, says Canan. Expansion of the community court concept in Washington, for instance, came despite no additional funding being provided. That said, is there an argument to be made that problem-solving courts divert scarce resources from the many to the few? “We try to address the defendants who are the highest risk of committing crime,” he says. “A lot of the crime is committed by a small number of people, I’ve heard some Scottish judges say that [too], that there’s a limited number of people committing repetitive crimes and if we could focus on those. I don’t think we’re bypassing others because the criminal justice system is going to operate the way it always does in terms of the others. 

“For our community court, roughly one fourth of the defendants who now come in – a lot of the same defendants who would appear before sheriffs here – are in this programme. That, if nothing else, for the court administration, we save so much time and effort to litigate those cases because we’re getting them out of the system on a different track. I think that courts, the police and prosecutors, their first goal always is going to be combating violent crime. This is not inconsistent with that at all.”

Undoubtedly, the problem-solving court model has come of age across the Atlantic, extending to veteran courts, re-entry courts for those recently released from prison, as well as homelessness courts. “In the US right now, our political system is struggling to move forward on a number of different issues,” Canan, five days before the Republicans won control of the US Senate in mid-term elections, says. “But this is an issue that has been supported by Republicans and Democrats alike. President George W Bush supported it, he strongly supported it, and President Obama supports it as well; both the Bush and Obama administrations have put money into drug courts and into problem-solving courts. 

“I think people realise the ‘war on drugs’ was a bit harsh, it didn’t openly solve problems. Crime is down substantially in the United States, drug crime, violent crime. I can’t pretend that it’s these drug courts and mental health courts that did it but I think we played our part because the crime rate is substantially down than it was 20 years ago; the murder rate is substantially down, almost 80 per cent in some jurisdictions like Washington DC. That’s tremendous change in the right direction.”