Sanctions in Family Drug Treatment Courts

Judge Leonard EdwardsJudge Leonard Edwards (ret.), Superior Court Judge, Santa Clara County, CA

Summary: The author addresses sanctions that are appropriate and inappropriate in family drug treatment courts.


Introduction

We all know that sanctions and rewards are essential parts of the success of family drug treatment courts (FDTC), but no one is clear about what these sanctions and rewards should be. What are permissible sanctions in an FDTC? Is jail an effective sanction? Are fines or community service permissible? What about a reduction in visitation? This article concludes that imprisonment is an unnecessary sanction in FDTC, and that sanctions in these courts should be guided solely by treatment considerations.

Background

FDTC are collaborative courts and look similar to most criminal drug courts except that they operate in the context of child protection proceedings. In this respect they are quite different from criminal and juvenile drug courts. Child protection proceedings are not about the offending parent—the legal action is brought on behalf of the child. The purposes of child protection proceedings are to protect the child, to provide timely permanency for the child, and to ensure the child’s well-being. The stakes are high—higher than any other court proceeding with the exception of the death penalty. The state may remove a child from parental care and if the parents are unable to reunify, they may permanently lose their parental rights.

Rewards and Sanctions

There seems to be a consensus among drug court professionals that rewards and other positive incentives enhance the effectiveness of collaborative courts. Whether sanctions produce positive change is more difficult to assess. Most criminal drug court experts contend that the threat of jail is critical to the success of these courts.[1] But as the author of a San Joaquin study wrote, “[j]ail sanctions are unnecessary in FDTC’s because they have a different “ultimate” threat of taking kids away.”[2] That same author conducted a focus group with parents at an FDTC in Oregon. The parents “were adamant that jail as a sanction discourages their progress, especially for those that never experienced time in jail before participation in the voluntary FDTC.”[3]

In practice, many FDTC do not use jail as a sanction. Surveys from the BJA Drug Court Clearinghouse show that about half of these courts do not use jail.[4] As Judge Douglas Johnson from Omaha states:

An appropriate trauma-informed response to these families does not include a jail sanction for a parent who has not followed a program requirement. Missteps are inevitable on the road to sobriety.…Jail is the currency of criminal court, not juvenile and family civil courts.[5]

In fact, imprisonment is an inappropriate sanction in the FDTC context for many reasons.

First, it appears that because jail is an effective sanction in criminal court, many professionals assume that it will be just as effective in FDTC. Experience has shown, however, that the two courts are distinct and that successful practices in criminal court do not necessarily ensure success in FDTC.

Second, the most rigorous national study of FDTC undertaken by NPC Research indicates that courts that use jail as a sanction do not necessarily have better results than courts that do not use jail.

Third, some FDTC have concluded that jail is inappropriate because children will learn that their parents are going to jail. These courts conclude that a jail sentence may result in a loss of respect and dignity for the parent in the eyes of the child.

Fourth, significant due process issues arise when courts use jail as a sanction. There must be a hearing with notice, an opportunity to confront those who claim that there has been a violation of the treatment plan, an opportunity to present evidence, and then a decision by the court regarding the alleged violation. All of this brings the adversarial process into the treatment court, and this runs contrary to the key components of collaborative courts.

Fifth, the imposition of a jail sentence is likely to disrupt the FDTC client’s life including employment, work on the service plan, and visitation with the client’s children.

A New Framework for Sanctions in FDTC

All of these reasons lead to the conclusion that the FDTC should not use jail as a sanction because it is unnecessary. A much greater sanction is already in place—the permanent loss of one’s children. The standard response to failure should be a re-evaluation of the treatment plan and a likely increase in some aspect of that plan such as more testing, moving from out-patient to in-patient living, staying away from certain locations or people, attending FDTC more frequently, participating in counseling, and similar strategies.

An appropriate sanction might be community service, such as 100 hours of doing something to improve the community, perhaps in a community-based substance abuse service provider or at assisting at an Alcoholics Anonymous meeting. Fines and picking up trash on the highway would not an appropriate sanction.

Visitation presents a different set of issues. Reducing visitation for a failure in the FDTC is improper. Visitation is the child’s right to stay connected to the parent and the parent to the child. It should never be used as punishment. Reducing visitation can punish the child as well as the parent.

Conclusion

In a treatment court, treatment considerations should guide decisions concerning parental failure to follow service plans. Imprisonment and other sanctions that are not treatment oriented should not be imposed by the court in FDTC proceedings. Nor should reduced visitation be used as a sanction in FDTC. Parents already have a significant potential sanction—permanent loss of their children—and a limited time to demonstrate that they can parent safely. Punishments are neither necessary nor appropriate.



Editor's Note:

For a full review of the issue of sanctions relating to FDTC, see "Sanctions in Family Drug Treatment Courts" by Judge Leonard Edwards (ret.) published in Volume 61, no.1, Winter 2010 issue of the National Council of Juvenile and Family Court Judges' publication Juvenile and Family Court Journal

References:

[1] Marlowe, D., and Kirby, K., “Effective Use of Sanctions in Drug Courts: Lessons From Behavioral Research,” National Drug Court Institute Review,Vol. II, Issue 1, 1999.

[2] Burrus, S., Email to the author.

[3] Id.

[4] Summary of Drug Court Activity by State and County,June 18, 2009, BJA Drug Court Clearinghouse, Justice Programs Office, School of Public Affairs, American University.

[5] Judge Douglas Johnson, Douglas County Courts, email to the author.  

 

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