Download How Can We Transplant Problem-Solving Justice and Drug Courts?

Prof. M. H-Evans
Rheims University
Time to Reflect
 At this point it is time to take stock of what we’ve seen
and heard
 What does this mean for France?

I’ll run you through two hypothesis:
 - add PSC and DTC components to our existing JAP;
 - simply experiment DTCs
Legal Transplants…
 Nolan (2009): Legal Accents, Legal Borrowing
+ Penal transfer literature.
- Risk of losing out (and having poor outcomes) if we adapt too much (England &
Wales: Bowens & Fox, 2015)…
- Risk for the transplant to be incompatible with the receiving system if we do not
adapt enough.
So:
- Make sure we keep the main operative components… + comply with EBP
practices (crimino+drug and mental health)
- Be clear why we transplant – not a fad but:
- What we do does not work
- Nobody (practitioners, service users, families, the community) seems to be
satified
- Others have done things that has both worked and made people happier
Main DTC components & others
Again… a reminder
1.
Judicial regular supervision
2.
Public and Fair Hearings
3.
Specialisation
4.
Problem-Solving
5.
Swift Intermediary Sanctions and Rewards
6.
Collaborative and Interagency work
7.
Community-Based Justice
8.
One-Stop Shop
9.
Frequent Drug Testing
10.
Desistance Rituals

And
1) Evidence-Based Practices (Drug Treatment, Mental Health Treatment, crime) which requires getting your
theories right (no addiction is not an ordalic attempt at testing the limit between life and death and shouting under bridges
won’t cure it – no more than psychoanalysis)
2) Outcome eval
3) holistic individualistic approach (but structured)
4) Flexibility
How Can We Transfer the Main
Components
1) Judicial regular supervision
We have JAP. Let’s use them! (right choice made in Bobigny)
Obstacle 1: probation services now consider they are solely in charge of supervision.
They often even have issues with the third sector supervising…
Political will necessary if we want to go to scale…
Another way around this would be to mainstream backwards, ie by keeping fair trial but going
back to the original JAP collaborative model.. But similar institutional obstacles…
Obstacle 2: no JAP time…. Whereas we would need very regular hearings (and depending on the
level of risk)
= > again point towards experimental unique experiments dealing with the more serious cases in
regions plagued with addiction (e.g. North East and the current heroine rural epidemic)
2) Public and Fair Hearings
We already have hearings with JAP. We need to keep these hearings rather than allow them to
disappear (e.g. with the recent 2014 Act).
We need to reconsider publicity in JAP hearings. At least in a drug court context – a minima
whenever the offender does not request the hearing to be held in camera.
And we should organise the docket so that addicts who are starting the programme or not doing so
well can benefit from seeing success stories.
How Can We Transfer the Main
Components
3) Specialisation
Our JAP are specialised in a sense.
A Drug Court JAP would need to receive enough specialised
training in addiction and treatment and other useful things
(therapeutic jurisprudence, procedural legitimacy, communication
techniques…)
We might want him to have experience…?
4) Problem-Solving
Would require a clear compass (manual)
Hands on judges but collaborative ones and structure (EBP…)
It also is an attitude so we need judges and other staff recruited
based on their skills… not just legal geniuses.
How Can We Transfer the Main
Components
7) Community-Based Justice
One aspect: collaborating with local agencies has been addressed (leaves
open the question of their competence…)
Another: being open to the public can be solved by holding public
hearings and organising public events – France might have a pb with
barcecue days for a nb or reasons… but we can invent our own events
(« open doors »?)
A third aspect is : how do we make practitioners think about the local
community as a beneficiary – justice is ‘In the Name of the French People’
– too large and too abstract?
8) One-Stop Shop
We have seen it is essential in terms of collaboration, and in terms of
attrition rates and therefore of outcome.
We would need big buildings… How do we fund this?
How Can We Transfer the Main
Components
9) Frequent Drug Testing and accountability
We have seen that frequent drug testing is not punitive and is essential to
treatment
There cannot be any social learning without accountability.
We would need to overcome our laissez faire usual attitude and get the
money for these testings.
10) Desistance Rituals
Regular hearings = we can rely on judicial classic rituals (Maruna,
personal email: yes they also are rituals).
But issue of the robe and the elevated bench… JAP sit across the table
and don’t wear their robes.
We also need to create our own graduating ceremony. A cake?
How Can We Transfer Other
Essential Components
Evidence-Based Practices (Drug Treatment, Mental Health
Treatment, crime) not quackery or Dr Freud (or worse Lacan!)
 Outcome eval
You need to budget for real evaluation not a nonsensical before/after local
statistic that NEVER EVER proved anything
And you need to make sure the programme allows for such an eval which
means you need researchers helping you build the programme and
explain time and again to practioners why things need being done in a
certain way.
And you need to eval based on a variety of outcome criteria (including
economic: how much money do we save the tax payer)
How Can We Transfer Other
Essential Components
 As in Glasgow we need:
 - A holistic individualistic approach and yet EBP structure
 - Flexibility (e.g. with abstinence v. maintenance or with
appointments for mentally ill or homeless service users) and yet
still EBP structure
 => with all of this we need a Manual that describes not just
the procedures and referral processes, but the treatment
theories, the main principles, the proximate and ultimate
goals, and we need an audit system to see whether this is
actually done… (see programmes in real life literature…)
The French Context – Wider issues
Silly right/left opposition (but little actual difference between the two with criminal issues): symbolic reforming
that hardly ever address real issues
Turf wars and institutional corporatism
Lack of funding
Lack of collaborative culture
Lack of EBP knowledge (but better with Drug issues)
Recruitment via national exams and not based on human skills
Everyone is overloaded to the max. A good start: get rid of the crazy bureaucracy and paperwork + focus on goals + have
a good manager/coordinator and yes, do ask for more money (be creative: go local and European) and staff.
And different drugs: not so much crack cocaine; lots of cannabis (do we include cannabis?), huge alcohol issue (and it’s
sold everywhere without control), and local heroine epidemics.
But
A far more favourable public opinion
A long tradition of judicial supervision (JAP + Juvenile Judges)
Conclusion
 We can create a few drug courts but ignore the lessons of
the PSC movement for our own system (JAP in particular)
 Alternatively, we can create a few drug courts and learn
from the PSC movement how to improve our own JAP
system and other procedures (notably prosecutor led
programmes – and yes they need to learn collaborate in a
much less authoritative manner)
 Mostly, if we want good justice to be sustainable, we need
major institutional reforming to control (once and for all
get rid of) our over the top corporatism + a concerted effort
to go local.
References
 Bowen P. & Fox A. (2015), ‘The limits of legal
transplants. Is there a problem with English and Welsh
problem-solving courts?’, in M. H-Evans (ed.),
Offender release and supervision. The role of Courts
and the use of discretion, Nijmegen, Wolf Legal
Publishers: 447-463.
 Nolan J. L. Jr (2009), Legal Accents, Legal Borrowing.
The International Problem-Solving Court Movement,
Princeton, NJ, Princeton University Press
Merci! Thank you!
 http://herzog-evans.com
 [email protected]
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 @ProfMEvans