Vanderbilt Law Review

Article Title

Drug Treatment Courts and Emergent Experimentalist Government


Despite the continuing "war on drugs," the last decade has witnessed the creation and nationwide spread of a remarkable set of institutions, drug treatment courts. In drug treatment court, a criminal defendant pleads guilty or otherwise accepts responsibility for a charged offense and accepts placement in a court-mandated program of drug treatment. The judge and court personnel closely monitor the defendant's performance in the program and the program's capacity to serve the mandated client. The federal government and national associations in turn monitor the local drug treatment courts and disseminate successful practices. The ensemble of institutions, monitoring, and pooling exemplifies what the authors have elsewhere called "experimentalism."

The authors argue here that treatment courts as open and evolving experimentalist institutions point one way beyond the conventional limitation of courts and other institutions. By pooling information on good and bad performance, and sanctioning when necessary unsatisfactory performers, the courts enable and oblige improvement by the actors both individually and as members of a complex ensemble. Judicial involvement in reform is permanent and continuous in this model. Yet it is, paradoxically, less imperious than traditional methods of court-directed reform for two reasons. First, the court in effect compels the actors to learn continuously and incrementally from each other rather than instructing them to implement a comprehensive remedial plan devised by the court alone or even in consultation with the parties. Second, the court is itself compelled to change in response to the changes it facilitates. In part this occurs through the exchanges with the treatment providers and in part it occurs in response to comparisons with experience in other jurisdictions as revealed by national pooling. Thus, the article argues, the experimentalist architecture of the drug courts suggests that they and like institutions need not face a strict tradeoff between efficacy and accountability.