November 23, 2004

Federal Drug Courts

Last week Senior Judge Donald Lay of the 8th US Circuit Court of Appeals had an op-ed in The New York Times on the need for federal drug courts. Considering that 1) such courts have a great record of improving things at the state level and 2) over half of the people in federal prisons are there on drug-related convictions, it strikes me as quite odd that this concept hasn't been pursued before. Or has it been pursued? Have I just missed something? Are there forces standing in the way of implementing this idea? If so, what are they? This seems like a complete no-brainer, and I don't understand why these haven't been created yet.

Posted by armand at November 23, 2004 04:29 PM | TrackBack | Posted to Law and the Courts


we have them; they're called United States District Courts. i mean, that's an awful lot of what they do, in any event. they'd probably be bored if you took the drug cases off their docket.

Posted by: joshua at November 24, 2004 09:37 AM | PERMALINK

Well, true enough ... but what I (really Judge Lay) was referring to was rearranging the system to create special courts for these types of cases, work more directly on addiction fighting/health issues into the system, etc. These cases are treated separately in something like 20 states (Louisiana being one), and from what I understand they've worked wonders in terms of both cutting down on repeat offenders and saving the states lots of cash.

Posted by: Armand at November 24, 2004 10:08 AM | PERMALINK

i guess my skepticism derives from this: the creation of specialized courts is neither necessary nor sufficient to the recognition of the rehabilitative effectiveness of treatment over incarceration.

the system's broken at the legislative level, and the proposal you ascribe to lay (disclosure: i haven't read the article) amounts to rearranging deckchairs on the titanic.

Posted by: joshua at November 24, 2004 10:14 AM | PERMALINK

This is a question out of (nearly) complete ignorance: what kinds of cases get prosecuted at the federal level? I ask because of the following... With the connection between drug trafficking and terrorism (or at least outlaw parts of regimes [poppies/Afghanistan] and revolutionaries [FARC/Colombia]) I see little chance that the Bush administration would give up to "drug courts" the chance to go after the drug/terror connection.

Posted by: binky at November 24, 2004 10:54 AM | PERMALINK


the united states federal courts, unlike equivalent state courts, are courts of limited jurisdiction. just as the federal government is one of "enumerated powers," so is the federal judiciary restricted in what sorts of cases it may consider. there are two principal kinds:

1. federal question cases: federal courts can serve as courts of original jurisdiction for any case presenting a federal constitutional or federal statutory issue. thus, whatever the congress makes a law about, more or less, federal courts can here cases on. thus, given the federal government's preoccupation with drug trafficking (and at the trafficking level it's understandable, since the bigwigs are all engaged in interstate and international commerce, requiring interdiction the states are ill-suited to undertake -- and in some cases precluded from doing so), and the rather elaborate regime of federal law on the topic, many significant drug cases end up in federal courts.

2. diversity cases: if a party from one state seeks monetary relief from a party from another state, and that monetary relief is greater than the federal civil rules 'amount in controversy' requirement (last time i checked it was $75K, but it might be at $100 now; it ticks up fairly frequently), the plaintiff has the option of filing suit in federal district court. similarly, if a plaintiff brings in state court a case that could have been brought in federal court due either to the presence of a federal question or the criteria for diversity jurisdiction, the defendant may "remove" the case to federal court.

other aspects of the federal system that might bear on discussion:

3. united states court of claims: court of original jurisdiction for claims involving contracts entered into between the united states government and another entity.

4. district magistrates: these cats are appointed to district courts for limited but as best i can tell variable terms (thus they are not strictly speaking article III judges, and i don't believe their tenure is subject to advice and consent). these judges work in support of the article III district judges, and tend to field the bulk categories of cases, such as social security appeals, criminal arraignments, and occasionally low-end trials. nothing a district magistrate does, however, has the force of law until an article III judge signs off on it. these are the work horses of the district courts, probably from an administrative point of view the sine qua non of the courts' abilities to process the huge load of cases they are called upon to handle.

now, as i've noted, i don't know the ins and outs of lay's proposal, but it seems to me that to instantiate a drug court at the federal level, you'd have two primary choices:

1. you could make drug courts something like district magistrate courts. a place to process certain classes of relatively low-end offenses, presided over by someone without article III status, over whom sits a district judge who must sign off on the magistrates (or drug judge's) rulings and actions. for precisely the reason you note, binky, such a judge's jurisdiction would almost certainly have to be restricted for the idea to have any legs politically: thus, there would probably be a hot list of statutory violations that would trigger automatic article III district justice jurisdiction, bypassing the drug magistrate (the name i'm settling on for now). thus, a possession or small-time possession with intent rap (perhaps even where weapons or violence are involved) could readily be tried before a drug magistrate. any case where a larger dealer, someone alleged to be directly engaged in interstate or international commerce, would go directly to distict court.

2. the other option would simply be to identify certain article III district judges as drug judges. their jurisdiction would involve cases where the principal charges are drug related. odds are, something like half of district judges would serve in this role, if proportionality ruled, since probably half of the federal cases tried (or at least charges filed) involve drug-related activity. these positions probably would have to rotate; thus perhaps for the first five or ten years of a judge's tenure on the district court, he would have to serve as a district judge hearing the above-mentioned cases, and after which tenure he'd graduate to the broader jurisdictional position. it could also be five-year rotations assigned randomly throughout a judge's career. because these judges would be held to the same standards as article III judges -- to wit, at least we hope, general aptitude in federal law and the advice and consent of the senate -- cases implicating both terrorism and drugs would be appropriate to either a drug or non-drug courtroom.

the bottom line, is even in federal court, a lot of drug prosecutions are directed at small-timers, who at best can only finger slightly-less-small-timers. so plenty of cases would not be problematic to identify as appropriate for special judges, whether drug magistrates or article III district judges serving as drug judges by designation.

finally, i'd like to note that "fed jur," or "federal jurisdiction," or something very like that concerning precisely that topic, is the course to end all courses at pretty much every law school across the country. it's usually taught by one of the biggest swinging dicks on the faculty; it's sometimes offered as a six-credit course. this is because federal jurisdiction is the most byzantine terrifying beautiful subject in the law. i'm no swinging dick of the legal academy, i needn't say; nor am i the equal of the professor i was fortunate to have for the subject, who has forgotten more fed jur than i will ever know. accordingly, to quote richard bach, "everything in this [post] may be wrong."

Posted by: joshua at November 24, 2004 12:46 PM | PERMALINK

ah yes, casino games. so it is. so it is.

Posted by: joshua at November 25, 2004 08:41 PM | PERMALINK

you would be astounded at the volume of these things. you see some, but we get even more and have a "blacklist" of thousands of URLs that are prevented from posting in the first place. it's beyond frustrating.

Posted by: binky at November 28, 2004 12:46 PM | PERMALINK
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