The following excerpt is from a speech delivered by Judge Mark Farrell in Sante Fe, New Mexico, on March 31, 2005

THE THERAPEUTIC JUSTICE APPROACH

Switching hats for a moment to that of a Therapeutic Treatment Court Judge, I have been an active participant for the last nine years in running the first Suburban Drug Treatment Court in the United States, for the last seven years operating the first Domestic Violence Court in my County and for the last two and a half years in applying the Drug Treatment Court protocol and implementing the first and only Gambling Treatment Court in the United States. All of these ventures have helped educate me as to the risks and perils of alcohol and substance abuse, as well as the interrelationship of social issues that affects these societal blights.

Education is the key. Unfortunately, many Judges operate in a vacuum, not because of personal desire to do so, but because the underlying philosophy of the judiciary causes many Judges to think very narrowly and to apply the laws based on the theory of stare decisis and they fail to see that Courts in the 21st Century can very appropriately take a pro-active role in certain societal issues to break the cycle of certain repetitive behavior. In seminal research publication in the issue Notre Dame Review Article of January 1999, entitled "Therapeutic Justice" it is consistently stated to that addictive behavior that manifests itself in the Criminal Justice System is like an unending circle. For instance, drugs, crime, jail, drugs, crime, jail, domestic violence, crime, crime, jail, domestic violence, crime, jail, and apply as we find in my most recent Court gambling, crime, jail, etc.

While those who embarked on the concept of Therapeutic Justice were often criticized over the last decade for being "social workers" as opposed to true judges, slowly but surely the 50 Chief Judges around the United States recognized the importance of problem-solving Courts and recognized the need of Judges to become educated, pro-active and committed agents of change as opposed to being solely reactive.

Going from the general to the specific, my approach to underage sales cases that have presented themselves in front of my Court has been to, first of all, where appropriate, request that the family of the offender come into Court for a specific Conference. Thereafter we probe the issues that might affect the application of the concept of "social norms" marketing and attempt to determine what the causative factor was for the underage sale or use. As part of this process, I will often times request a substance and alcohol abuse evaluation to determine 1) whether the offender has an underlying substance abuse problem or 2) an alcohol related problem or 3) potentially a mental health disability 4) learning disability, or 5) in the final analysis, potentially disruptive or dysfunctional family circumstance that has led to either willful violation, inattentiveness to the circumstances within employment, or to surrender to peer pressure within the growing environment of youth substance and alcohol consumption.

While most often the foregoing does not result in any identification of drug or alcohol dependence, it may develop certain probative factors that allow for dealing with the offenders problems and better educating parents, school officials and the representatives of the licensee. I will routinely request that the licensee be in the Courtroom along with the Clerk and I will, to the greatest extent possible, make the licensee a partner in the offender's acceptance of responsibility and, if appropriate, supporting either re-education or rehabilitation.

In situations involving a non-compliant licensee, where the infractions appear to be due to either carelessness, inattention or negligence, I will be more likely to meet out financial penalties and utilize the modalities of re-education, community service, etc. For repetitive offenders, I take the steps of requesting the District Attorney to advise and work with the regulatory and enforcement agencies to meet out a more deterrent penalty such as licensee suspension or revocation.

This is a very problematic area, as all you well know. And notwithstanding the fact that I'm a Therapeutic Treatment Court Judge, I am not unwilling to sanction and sanction severely where the circumstances call for it. However, the concept of Drug Court for those individuals who may be dealing with a severe abuse or dependence problem mandates that we take a much more holistic and comprehensive look at the individual who is presented before the Bench. In so doing, we isolate not only abuse and dependence problems but family difficulties, educational deficiencies, potential or actual mental health diagnoses, vocational needs, etc.

Many of you in this room may be quite familiar with Drug Courts but they are run on the concept that an individual who presents himself before the Court having committed a crime whose genesis is based on alcohol or substance dependence is referred for an automatic comprehensive and sometimes exhaustive screening by a licensed substance abuse treatment provider who, in my Court for instance, is a member of a large array or panel of providers who are working in partnership with the Court to implement Drug Court participation and monitoring. The individual defendant is screened by this provider and a comprehensive individually tailored program is developed and reported to the arraigning Judge within 48 hours after arraignment. The same time this therapeutic screening process takes place, the defense attorney and the District attorney confer and based upon the District attorney's willingness to refer the defendant to Drug Court participation, the case is effectively diverted for involvement in Drug Court with prosecutorial agreement that the original charge will be reduced to what in New York we call a "ACD" with no jail time, or if a more serious crime, to a lesser crime with no jail time and minimal fines, should there be positive and complete compliance.

The defendant returns to Court within 48 hours to one week after the initial arraignment and referral for evaluation, at which time he and his defense counsel execute a contract of participation wherein the defendant agrees to comply with all aspects of an individually tailored Drug Treatment Court program that may involve either in-patient participation of 28 days to 6 months, or out-patient treatment which may include one-on-ones, group participation, vocational training, GED completion, etc. The defendant waives many of his or her constitutional rights and acknowledges in writing a list of items that constitute non-compliance with the Court's contractually mandated provisions and separately a list of increasing or progressive sanctions that could be applied by the Court for non-compliance.

The defendant is referred to the agency to which he or she has been assigned and then comes back to Court once a week with a written report from that provider outlining either compliance or non-compliance. The defendant will continue to come back every week with the said same report being generated until such time as there is improvement and documentary recovery in process. At this point, the defendant will see the Court less frequently going from an every week basis to every other week, every third week, every fourth week, every fifth week to the point of graduation. Should there be non-compliance, the defendant will be subject to an increasing level of sanctions, and in my Court it's usually a week or two of jail with referral to an earlier stage of treatment upon release from the holding center. Random drug and alcohol testing is done both in the agencies and in the Court house which, as an aside involves a growing body of education on the part of this Judge to the creativity of drug and alcohol abusers in terms of trying to avoid detection .

Graduation is treated quite seriously as we will hold a ceremony for the graduating participant who is usually in our Court from anywhere from 8 months to 3 years. Refreshments are served, a certificate is given out evidencing compliance for the program but of course, "who the hell puts that up on their dining room wall" and courtesy of my wife, who is Director of Genetics at Roswell Park Cancer Institute in Buffalo, we have cornered the market on the children's book, "The Little Engine that Could" that we give out to the graduating participants to evidence there compliance, the restoration of their dignity and a humorous connection or bond between the Court and the defendant.

In 11 years, we have handled over 3,000 participants in our Court, we have graduated over 1,500 with approximately 400 still in processing and out of the 1,500 only approximately 120 have been rearrested for drugs and alcohol during that 11 year period.

The long explanation of this type of protocol underscores the message that I leave with you today. In areas of Underage Sales and use, there is usually a larger and much more complicated set of factors going on in the offenders life than would ordinarily be seen or even appreciated by summarily sweeping the offense under the rug and failing to intervene. Personally, I do not believe that incarceration or criminal records or excessive fines on servers and clerks serve to accomplish much unless it is volitional behavior and the individual has either caused harm to others or has repetitively offended. However, this does not mean that Courts cannot assume the responsibility of looking behind the issue of offense and attempting to send a message to not only the offenders but also the licensees with regard to a willingness on the part of the Court to intervene and to persist for a significant period of time if necessary in order to bring about compliance.

Judges around the United States are being exposed more and more to the concept of Therapeutic Justice and to the necessity for them to understand the effects and the modality of use of illegal substance and alcohol. As a society, we send many conflicting messages with regard to alcohol and certainly with regard to many diagnosable illnesses. We rely upon drugs and substance as the cure-all.

There is no simple way that Courts can effectuate total adherence to a policy surrounding responsible retailing unless they are willing to shed the bonds of tradition and of parochialism and involve themselves actively in not only the reason for the offense but also what motivates the offender. Judges are fully capable to speaking to community groups, schools and business organizations and of holding sessions for interested groups within the community to send the message of enforcement and that, in addition to the standard criminal penalties, the Court is willing to and is prepared to intervene in the problem in a creative and proactive way to bring offenders and stakeholders into compliance with public policy mandates.

Before in going too far, I should also mention that Judges should be willing to back community efforts to seek governmental grants to enforce underage drinking laws and the enforcement against underage use, sale, and drinking and driving. And at the same time be willing to take definitive and sometimes unpopular steps to enforce the laws against third-parties who purchase on behalf of minors and of parents who consent to or acquiesce in underage use, such as at proms, graduation parties, etc. The potential affect of having to deal with an A misdemeanor that carries up to a year in jail for unlawful dealing with a child is often a significant motivational factor for either a business owner or a parent to become active in the area of compliance. Only if Judges are willing to enforce these laws will the appropriate message be sent.

If potential offenders and actual owner/licensees or retail chains know that the particular Judge within that jurisdiction is ready, willing and able to be a consistent "pain in the ass" in order to get to the bottom of the problem, there will, I believe, be a much greater motivational force to enforce compliance.