While upholding the law, judges each have their own way of viewing things. And they are given a certain amount of leeway in deciding what to do with the cases that come before them. This is what is referred to as their discretion. It comes strongly into play when they have to decide how to address people who have violated the terms of their probation or diversion programs. When is it best to send them back to jail? When should they be given a warning and no punishment? What about changing the conditions of their release to add something like alcohol monitoring, or another class? Or giving an in-between punishment like a few days on work crew?
In Drug Court it is common for the judge to acknowledge that “relapse is part of recovery”. The focus is on reaching a healthy, sustainable sobriety. The crime is considered a side effect of the addiction. And the addiction is considered a disease. So as long as the person admits – ahead of time – that their next UA (urinalysis) will come out positive (for drugs) they will likely get some kind of additional punishment and perhaps additional supervision, but they will usually be allowed to continue avoiding prison as long as they immediately get back into treatment. The idea is that sobriety is going to be a win-win for society and for the individual, so it is worth “letting them slide” with certain protections in place. Recovery is a bumpy road. The judge acknowledges this.
Not all judges agree. One judge I regularly work with is frankly sick and tired of the recovery model that allows relapse as a normal part of recovery, at least as a free pass on legal consequences. The following is part of her lecture to a person who relapsed in her court after being granted a “dispo” or a dispositional continuance (which if done successfully ends with a dismissal and no conviction).
“I don’t believe that relapse is part of recovery, and I’ll you why. Because when you relapse, there IS no recovery! You are simply using again. Now, you didn’t have to take a dispo. You could have just pled guilty, or you could have gone to trial, but you chose to request a very special sentencing alternative – the Dispositional Continuance. If your lawyer instructed you well, you would know that this is ONLY for people who KNOW they are addicts – who WANT to recover – and who are READY and WILLING to abstain for the rest of their lives. Who are through with it! If you are not, please do not come into my courtroom asking for favors while you use. Not gonna happen. This isn’t a program set up for you to avoid punishment for your crime.”
“Yes, we know that alcoholism and drug addiction is a disease. But that isn’t a free pass to keep using and call it ‘part of your recovery’. No. If you are getting proper treatment, and you are putting it into practice, you are not going to relapse. You are through. So I don’t accept relapse. Some judges will tell you that if you admit to your relapse ahead of time, before you are found out, and it is early in your process, then you deserve another chance. I disagree. Now, don’t get me wrong. You certainly deserve another chance at TREATMENT for your disease. But you do NOT merit another chance to avoid the lawful punishment for the crime that you committed. That is a one-time deal. As it should be.”
Following people for years through the courts, I see some people who end up in jail or prison. I see others who graduate clean and sober from a drug diversion program. And sometimes I see someone in drug court who picks up a new criminal charge while supposedly working the program. A few have died of an overdose during a relapse. The hard part for the judge, no matter what their personal philosophy, is how to handle that first relapse. We cannot know ahead of time who is most deserving of a break. We cannot know who is going to benefit from a break. We cannot know whose relapse will be their last, and whose relapse is the first of many, until the addict just gives up for good, and others suffer for it. In the above case, the “strict” judge did give the addict one last chance, with work crew days and tighter supervision.
When I first walked into a drug diversion court many years ago, I thought it was a little corny that people would clap for the defendants who had reached the next stage of their recovery and their criminal process. Many years later now, after having viewed so many failures, so many heartbreaking setbacks, long prison sentences and even untimely deaths, I now clap along with the judge, the prosecutor, and the defense attorneys when the audience applauds at these promotions. Why clap for a law-breaking addict? Because I now have a better sense of what heroic, sustained effort is needed for some people to simply stay sober. For vulnerable people, it is a lot harder than it looks. It is easy to fall, and hard to get back up. So if one more person clapping can encourage one more person to stay sober, I say, clap.