Development of a judicial response to substance abuse


The response of the National Council of Juvenile and Family Court Judges to substance abuse
Guiding principles


Author: L. W. McHARDY
Pages: 15 to 25
Creation Date: 1990/01/01

Development of a judicial response to substance abuse

L. W. McHARDY Executive Director, National Council of Juvenile and Family Court Judges, and Dean, National College of Juvenile and Family Law, University of Nevada, Reno, Nevada, United States of America


The American juvenile justice system continues to be an arena in which a myriad of varying values and practices come under constant challenge and close scrutiny, not only from those outside the system, but particularly by those within the system, those on the firing-line-the judges, court administrators, prosecutors, defenders, police, social workers and probation officers who are responsible for the operation of the system.

Every juvenile court and the personnel who work with it are faced with the difficult process of evaluating and adapting to multiple "standards" and the challenges of implementing effective change within the perimeters of varying systems and statutes.

The National Council of Juvenile and Family Court Judges recognizes that the responsibility for further improvement, for effective and long-lasting change, in a juvenile justice system that operates in a vastly complex society will rest even more heavily in the future where it has been in the past-on the individual judge and practitioner.

The response of the National Council of Juvenile and Family Court Judges to substance abuse

Because the issue of substance abuse is central to juvenile and family court responsibilities, in the United States of America, the National Council of Juvenile and Family Court Judges has been providing leadership and has paved the way in addressing this pervasive problem through continuing education opportunities, technical assistance, policy guidance and publications. During the past several years, these activities have been intensified through the efforts of an organizational committee established to deal specifically with substance abuse. The judges on the committee have been evaluating related value-laden and complex issues with a view to identifying necessary action to be taken by the juvenile and family court systems to improve the effectiveness of their responses to the growing problem. The conclusion of the committee is that when all other community systems, including the family, fail, the juvenile justice system becomes the court of last resort for the most troubled children in the country. It is the responsibility of the juvenile justice system to attempt to balance the best interests of the juvenile against the interests of the community.

As part of the Council's efforts to counter the impact of this pervasive problem on the country's children, on 12 January 1984, its Board of Trustees passed a definitive resolution on alcohol and substance abuse that set forth the policy framework and the initial aims of the Alcohol and Substance Abuse Committee of the Council. The key elements of this resolution include:

  1. There is a direct causal relationship between adolescent drug and alcohol abuse and concerns of juvenile and family courts, such as delinquency and family dysfunction (neglect, abuse etc.);

(b) The Council recognizes its role in relating to relevant agencies and organizations and in addressing this pervasive problem among the nation's youth;

  1. The Council strongly encourages and supports the role of judges as community leaders in regard to resource development and community-wide education.

Alcohol and drug training has been stressed in the basic judicial curricula offered by the National College of Juvenile and Family Law. Member judges who are experts in the field of adolescent alcohol and drug abuse have addressed diverse audiences throughout the country, such as state judges conferences and probation and parole organizations. The National Center for Juvenile Justice, the research and technical assistance component of the Council, has increased its activities, including the publication of a volume of Today's Delinquent on drugs. Other Council publications have also focused on the dilemma, while the technical assistance component of the National College of Juvenile and Family Law has provided post-training assistance.

Guiding principles

Given the history of the involvement of juvenile and family courts in dealing with societal problems resulting from adolescent drug use or the impact of drug abuse within the family, the Council has developed a plan of action to deal with the many and complex issues related to such problems. Several principles were developed to give direction to the Council's programme:

  1. Because of the severity and complexity of the problems facing the juvenile and family courts, there can be no quick solutions; any immediate programmatic steps should be "building blocks" for a long-term plan;

  2. Juvenile and family courts cannot fight the problems alone and must become effective components of the community response, which includes leadership and use of power in the court;

  3. There are vast discrepancies between juvenile and family courts in their standards of response, as well as in their basic abilities to respond to the pervasive problems;

  4. Judges of juvenile and family courts and their programme staff need to be involved in community prevention and education activities;

  5. Family court issues such as divorce, abuse and neglect, child support and child custody must be included, as well as issues related to delinquency and status offences.

Two basic elements of the current mission of the Council are:

  1. Accountability: Juvenile and family court judges must rigorously enforce existing law relating to adolescent alcohol and drug abuse and participate in the development of prototype or model/legislation based on the accountability model;

  2. Demand reduction: Juvenile and family court judges must aggressively work towards the reduction of the use of alcohol and drugs by the youth in their communities.

The disintegration and dysfunction of the family in the United States, through the traumatizing effects of divorce and custody procedures, child abuse and neglect actions, family violence and worse, can be blamed, to a large and unrecognized extent, on the involvement of one or more family member with alcohol or drug abuse. The judges of the country's juvenile and family courts learn of these complicated problems first-hand. They see every day the tragic results of society's compulsive use and abuse of alcohol and illicit substances such as cocaine, crack and cannabis. They would like their fellow judges-and others-not only to recognize and attempt to reduce the terrible consequences of substance use and abuse, but also to halt the illegal demand for alcohol and drugs among youth.

Courts and court systems do not profit a child by diminishing the seriousness of a juvenile substance offence, however statutorily defined. By more appropriate sanctioning of patently illegal behaviour and rnandating relevant services or treatment where called for, the courts and their professional personnel should be able to have a greater impact on substance abuse. Nowhere is evidence of the failure to enforce the law more acute than within the United States juvenile and family court systems. Although it is estimated that alcohol or substance use/abuse is related to 90 per cent of serious juvenile offences committed nationally, less than 15 per cent of the actual charges brought against juvenile offenders nation-wide involve the illegal use of substances. The majority of judges and the public alike ignore the correlations-not only concerning substance use and delinquency, but also with regard to abused or neglected children, traffic fatalities, runaways, truancy, drop-outs, teenage pregnancies, other youth at risk and a host of related problems, including dysfunctioning families.

The courts cannot act in a vacuum. Courts do not detain or prosecute, nor do they make the laws. They can, however, in the name of public protection and welfare and in the best interest of children, appropriately exercise their judicial responsibilities and authority, They can improve and co-ordinate their own procedures and make known their concerns to others. They can sensitize and streamline their intake procedures, their available pre-hearing services and their final dispositions to meet the problems head-on. They can fairly, but strictly, assure appropriate sanctions. They can order treatment for the abusing child, perhaps services for a family in trouble. Judges can be strong catalysts for greater legislative and judicial recognition of the magnitude of the problem and the need to hold children and families accountable, firmly and effectively.

The Council conducted a working conference on substance abuse by juveniles and families in its headquarters at Reno, Nevada, in 1987. The conference, entitled "Juvenile and Family Substance Abuse: a Judicial Response", was part of the Council's continuing efforts to deal with the problems related to substance abuse. The participants included 50 juvenile and family court judges, 12 faculty resource experts and 10 Council staff members. Also participating were leaders of the Council and judges from various committees of the Council that have been concerned with drug and alcohol abuse since the early 1980s. One such committee, the Metropolitan Court Judges Committee, consists of the presiding juvenile or family court judges from 40 of the largest urban jurisdictions, whose courts hear over half of all juvenile and family court cases in the United States each year. For example, the Los Angeles Presiding Judge represents over 50 judges and law-trained hearing officers in Los Angeles County. Among the government agencies represented at the conference were the Office of Juvenile Justice and Delinquency Prevention, the Bureau of Justice Assistance, the National Highway Transportation Safety Administration, the Office of Substance Abuse Prevention, the Department of Education and the State Justice Institute.

The purpose of the conference was to develop a broad base of understanding for appropriate response by the juvenile and family court judiciary to substance abuse as a correlate and/or causal factor in cases presented to the courts. Nine fundamental issues were presented to the conference. Each issue was analysed and recommendations were developed by the participants in small groups composed of judges, representatives of law enforcement agencies and faculty resource persons.

The membership of the Council unanimously adopted the report and the recommendations at its fifty-first annual conference, which was held at Fort Lauderdale, Florida, on 14 July 1988. Thus, the recommendations contained in the annex to this article now represent the official policy of the Council.

The results of the conference directly serve the following goals of the Council in the field of substance use/abuse:

  1. Continued development of understanding for substance use/abuse problems confronted by juvenile and family courts;

  2. Continued development of judicial activism at the jurisdictional and community levels for prevention of and intervention on substance abuse by juveniles and families;

  3. Continued development of intervention strategies and accountability programmes through which juvenile and family courts may respond effectively to the needs and interests of those referred for adjudication and disposition;

  4. Continued development of curriculum for judicial education and training in the of substance use/abuse;

  5. Continued development of policy, practice and programmes for guidance of juvenile and family courts nationally in responding to the pervasive problem of substance abuse.

If the recommendations are widely implemented throughout the country, the impact on the nation's families and children will be tremendous and significant results in the "war on drugs" will be achieved over the next several years.


Drugs. the American family in crisis; thirty-nine recommendations


Our society faces a moral and spiritual dilemma on the issue of substance use and its effects on American families. In the span of one generation, we have witnessed a 10-fold increase of substance use that affects every stratum and group in our society. No credible debate can remain as to whether the problem exists. We are a society that has placed itself at risk through our own ambivalence towards drugs as they become a pervasive and harmful influence on all our lives.

Between 20 per cent and 30 per cent of our total population has come to be at risk of serious dysfunction from the misuse of psychoactive drugs. In some communities that risk is above 50 per cent. We know that substance abuse is significantly associated with serious crime. We know crime is spawned and fueled by the enormous profits of illicit drug sales. We know that substance abusers endanger themselves and others with whom they have close or casual contact. Most alarmingly, we know that the pervasiveness of substances has contributed profoundly to a genuine crisis among American families.

Juvenile and family court judges are uniquely situated to address this issue as they observe daily the tragedies in which children are placed when substance abuse is prevalent in the family and its immediate environment. A 1986 survey of its members, conducted by the National Council of Juvenile and Family Court Judges, revealed their estimate that substance abuse was a significant factor in 60 per cent to 90 per cent of all cases referred to their courts. These are cases which directly reflect the crisis confronting American families. They include issues of child violence, family dissolution and juvenile delinquency. The association of substance abuse with these cases is overwhelmingly evident. As a consequence, the judiciary is compelled to assert all its authority and power to confront and remedy the abuse of substances that presents a fundamental threat to the well-being of children and their families.

Judges are acutely aware that alone they cannot effectively reduce the problem. Its roots are too deeply set within society. Society itself must change if the judiciary, law enforcement, education, public health and other systems are to have a chance to reverse the substance abuse trends of a generation. Therein lies the source of our shared dilemma. A society that is unwilling to change its own attitudes towards all psychoactive drugs cannot expect its institutions and systems to resolve the problem. On an individual and collective scale, there must be broad and deep resolve to reject substance abuse as acceptable behaviour. That reassessment must begin with a focus on families and their capacity to prevent children from becoming involved with drugs.

Societal problem

We must recognize that our dilemma stems from the very nature of drugs and their use in our lives. They are at once beneficial and endangering, licit and illicit, socially accepted and abhorred. We have quite properly declared many drugs to be illicit for any use because they have been determined to present far more danger than benefit. Others have been declared to be illicit for use outside the control and supervision of medical administrations. Still others are licit for adult use and illicit for juveniles. These variances of law and regulation regarding drugs reflect the complex nature of substances and their appropriate uses. No sweeping reform to prohibit all drugs or to legalize all drugs will resolve those complexities. We must recognize and acknowledge that we rely on the beneficial uses of psychoactive drugs for our well-being as a society, while simultaneously abhorring and rejecting their endangering uses.

The stark reality is that chemical substances with the potential for misuse can be found in virtually every household. They include prescribed and over-the-counter medicines, hydrocarbon component products, other commercially produced agents that are classed as potential inhalants, and alcoholic beverages. In some households, small quantities of illicit drugs may be present. So pervasive is their presence that accessibility to drugs in one form or another is nearly universal. As a practical matter, we are a society that puts great store in the value of substances for their beneficial attributes and we surround ourselves with them. In so doing, we set the stage for prospective misuse and create ambivalent attitudes about them. We will not eradicate them from our lives. We can reduce or minimize their misuse.

Another reality must be recognized. Popular culture in America has consistently glamorized the use of substances. The messages conveyed are vivid and insistent: substances are essential social lubricants; they make us feel good; and they enable us to cope with the stress and pain of everyday living. Such cultural messages convey a social acceptance of all substances, not just the specific products being extolled and glamorized. Seldom mentioned are the dangers of misuse. Seldom is there a distinction made to suggest that "good times" can have bad consequences.

We must create a national awareness and commitment at all social levels to reduce the demand for drugs and we must eliminate their misuse or abuse. The task before us is massive. It must involve all of the systems in our social structure. Resolute, consistent, balanced, patient strategies are required. To protect the next generation, fundamental change must be our goal.

Family focus

Members of the National Council of Juvenile and Family Court Judges have concluded that families and children must be the primary focus of our national strategy. It is a conclusion based on two observations. Families have been profoundly affected by the pervasiveness of drugs in society and have been placed at risk by them. Families and their children represent that level of society through which we have the greatest opportunity to bring about reductions in demand for drugs.

Adult family members who are serious and chronic abusers tend to produce children who are at increased risk to become abusers themselves. Thus, children of families in which one or more adult members are alcoholics create circumstances from which a child of the family is at four times greater risk of alcoholism than a child of a non-alcoholic family. Recent research suggests that genetic factors may be present along with environmental influences within those families. Ultimately, the fact remains that alcohol abuse in one generation significantly increases the risk inherent within the next.

Especially tragic consequences of substance abuse occur through immediate transfer from abusing pregnant mothers to their unborn children. Increasing numbers of babies are born addicted and developmentally impaired with fetal alcohol syndrome. The association of substance abuse with sexual activity among juveniles enhances the risk for direct effect on newly born infants. Not only are these infants impaired developmentally, but they may be highly susceptible to substance abuse or dependency as they mature.

Risk to youth

The major risk factors that lead youth into substance abuse are heavily influenced by the family. When the family is functioning effectively, these risks are reduced. When it is dysfunctional, they are greatly increased. A family history of alcoholism, family management problems, early child anti-social behaviour, parental drug use and tolerant attitudes toward use, child failure in formal schooling, low commitment to schooling and alienation from society are some of the risk factors largely attributable to family environment. When present to any appreciable degree, they are precursors of child substance abuse.

The link of adult substance abuse and the abuse of children within the family is well established. Sexual, physical and emotional abuse of children is often triggered by episodes of substance abuse affecting one or more adult family members. The resulting trauma to these children frequently produces effects in adolescence and young adulthood which contribute to their own abuse of substances and the perpetuation of abuse among their own children.

Particularly alarming is the younger age at which experimentation is beginning. The consensus among experts is that tobacco and alcohol are the drugs through which youth enter into more serious substance abuse. Currently, the average age for first use of tobacco is I 1; for alcohol it is 12. During the 1980s, experimentation with these gateway drugs has become a "rite of passage" or transitional experience from childhood to adolescence. In turn, adolescence has become a period during which a youth either avoids the progression into significant substance abuse or falls prey to it. This change in initial usage is most significant. As recently as the mid-1970s, initial use of alcohol and other drugs was associated with youth's transition to adulthood. A later adolescent experience presents a more limited risk for problem abuse and dependence on substances in adult years. That risk obviously becomes much greater when the average age for first use of alcohol is the child's twelfth year.

Judicial response

Courts alone cannot resolve the substance abuse problem in American society at any level, youth or adult. However, they can and must be a strong force within their communities towards reducing the problem. The special role of the judiciary in our system of government can be used as follows:

Consistently hold accountable those juveniles and families referred to the courts whose substance abuse behaviour endangers the child, the family and the community.

Consistently mandate sanctions and remedies to require that substances abusers be identified, assessed, and treated effectively.

Consistently require juveniles and their families to adhere to community standards for substance abuse as expressed by law, including the prohibition of purchase, possession, consumption or sale of substances by juveniles, or providing such substances to juveniles by adults.

Provide leadership for the community to recognize that substance abuse endangers the well-being of children, families and the community and that the solution lies in comprehensive programmes for effective prevention and intervention.

Judges must use the powers and prestige of the court to achieve these broad goals and to establish the judiciary as catalysts in the community to reduce substance abuse among juveniles and their families.

Summary of recommendations: a community problem

Creating acceptance that substance abuse is a community problem requiring comprehensive response is crucial to this nation's "war on drugs". Only the community can bring about the fundamental changes, attitudes and behaviours that will significantly reduce our demand for drugs. Only the community can develop and sustain accessible programmes that, over time, will successfully prevent and control drug abuse to create a social environment in which all of its members can live.

  1. Possession, use and sale of illegal drugs must not be legalized.

  2. Primary emphasis of the "war on drugs" should be placed on reducing demand.

  3. Every community must develop and sustain comprehensive programmes for the prevention of substance abuse -by juveniles and families.

  4. Community system, institutions, agencies, education and social services must work as partners.

  5. Each community should establish a substance abuse council to coordinate information about referral to programmes for prevention, intervention, treatment and rehabilitation.

  6. States should create trust funds supported by appropriate fees, levies or forfeitures to provide substance abuse programmes among juveniles and families.

  7. Federal and state statutes should be enacted to limit advertising and place warning labels on alcohol and other dangerous products.

  8. The effects of substance use on pregnant women and their unborn children must be given special attention.

  9. States should establish statutory authority for confiscation of property used in the distribution of substances to minors.

  10. State statutes should be extended to impose civil liability on licensed vendors and others for any damages caused by or to a minor to whom they have supplied alcohol or other substances.

  11. II. Tobacco should be prohibited in schools and other juvenile service facilities because tobacco is a gateway drug to alcohol, marijuana and other substances.

  12. Health insurance coverage must sustain a broad range of services for substance- dependent children and their families.

Parental responsibility

Families are the first level in our society with the responsibility and authority to prevent substance abuse by their children and to intervene if their children become involved. They are responsible for exemplifying and teaching the values of drug-free lives for their children. These responsibilities are more than the practice of good parenting skills. They are inherent responsibilities recognized by society and by law. Supported in their efforts by community services, parents must be encouraged to fulfil their roles and to recognize themselves as accountable.

  1. Parents must recognize that substance abuse is a family problem and educate themselves on its impact on their children and families.

  2. Parents must recognize that their own substance use can seriously harm their children.

  3. Parents must be responsible for preventing their children's use of substances.

  4. Parent education programmes must include substance abuse information.

Unique role of the court

The court is a unique and vital institution within the American system of government. Th 'e court's fundamental responsibility is to assure that all members of society are protected under law from harm by others. Juvenile and family courts have, within this system, the equally important responsibility to protect the best interests of children, families and communities. These responsibilities convey to the courts a role vital to our anti-substance abuse efforts on behalf of society and especially on behalf of children and their families. Such efforts must recognize the existence of non-traditional, as well as traditional, family units within today's society.

  1. Judges must assert community leadership for prevention and treatment of substance abuse among juveniles and their families.

  2. Courts must intervene early to increase the effectiveness of substance abuse treatment.

  3. Treatment and services for juvenile and family substance abuse must focus on the family.

  4. Courts must hold children and their families accountable for substance abuse and mandate sanctions and remedies, notwithstanding, the fact that dependence on substances is widely regarded as a disease.

  5. Courts must support and enforce parental responsibility for their children's abuse of substances.

  6. Courts must issue and enforce orders for protection, treatment and rehabilitation of children, family members or other household members whose substance abuse detrimentally affects the child.

  7. Courts must have authority to place juvenile offenders in a secure treatment facility, when necessary, to assure control and treatment if substance abuse is determined to be a significant threat to the safety of the child or others.

  8. Juvenile courts should have jurisdiction over juveniles who drive while under the influence of substances.

  9. Juvenile courts should be given authority to suspend, revoke or delay access to a driver's licence for a juvenile who has been determined to abuse substances.

  10. Courts should strictly enforce laws prohibiting parents and others from providing proscribed substances to children.

  11. When a substance abuse is a significant contributing factor in domestic relations and civil or criminal family violence cases, courts must impose sanctions and require treatment.

Assessment and treatment

Assessment of all who are referred to court jurisdiction and treatment for all who are identified to be seriously involved with substance abuse are essential components for courts when addressing the substance abuse issue. Each court must have access to acomplete range of services for effective screening, identification, assessment, evaluation, treatment and rehabilitation. Such services may be developed within the court operation or in co-operation with related agencies or through contracted service providers. Many jurisdictions will use a combination of these basic approaches for provision of services. No matter how they are organized, the key is that they must be in place and consistently used.

  1. A full range of substance abuse assessment and treatment programmes should be funded and made readily available to the courts.

  2. Courts must develop aprocess for screening, assessing and monitoring the presence of substance abuse by a child or family.

  3. All judges and intake, probation and casework staff must have substance abuse training.

  4. Interdisciplinary approaches must be used for treatment and rehabilitation.

  5. Treatment plans should require that providers submit progress reports to the court for monitoring and enforcement purposes.

  6. All correctional facilities, state training schools and community-based alternative programmes should provide substance abuse treatment and rehabilitation to meet the needs of juveniles and families.

Youth gangs: a special problem

Beginning in the mid-1980s, some youth gangs with origins in the large urban centres of Los Angeles, Miami, Chicago, Detroit and New York became major criminal entrepreneurs in the supply of illicit drugs. Within a very short time, many of these gangs have developed intrastate and interstate networks for the purpose of expanding their highly profitableparticipation in the state, regional and national illegal drug sales markets. Significant levels of violence and related criminal behaviour have accompanied this phenomenon.

Youth have always been distributors and sellers of drugs within their local peer groups, whether these groups were informal or organized as "gangs". Most youth who are involved with illicit drugs have not had direct contact with drug dealers. Their street, school or neighbourhood suppliers have been friends and acquaintances. The onset of domestically produced drugs or drug compounds presented an opportunity for youth to be in control of the supply. Domestically grown marijuana represented such an opportunity. Clandestine laboratory-produced methamphetamine and phencyclidine (PCP) increased it. And, finally,domestically manufactured "crack" or "rock" cocaine opened the floodgates for serious youth participation in the huge profitsavailable through illicit drug trafficking.

The "Crips" and "Bloods" of Los Angeles, the "Miami Boys" of southern Florida, the "Jamaican Posses" of Florida and New York and the."Vice Lords" of Chicago are among the gangs who entered the fieldon a large scale. They follow on the heels of marijuana and methamphetamine supply activities conducted by motorcycle gangs for a number of years. They are being mimicked by white-youth-dominated ("Stoner", "Heavy Metal", "Neo-Nazi") and satanical cult groups. Crack and rock-cocaine dominate as a product for youth trafficking on a major scale. Other products are involved in the trade, including methamphetamine, PCP, lysergic acid diethylamide (LSD), designer drugs such as "ecstasy", marijuana and brown heroin. The reach of such youth-dominated trafficking enterprises astounds us. Some have been identified to be active thousands of miles from their home turf, even coast-to-coast.

Characteristically, the gangs consciously exploit the difference between juvenile and adult law in their activities. Often led by young adults, the gangs employ youth aged 8-17 in their street operations because, if apprehended, youth will be referred to juvenile courts. The juvenile courts and juvenile law were not established and developed to adjudicate major organized crime activities. As a consequence, youth under age 18 who are involved with major criminal offences can avoid adult sanctions normally associated with that level of offence. The entire justice system is challenged by the phenomenon of major criminal drug trafficking by youth gangs, but no part of it is so challenged as the juvenile courts. Judicial response to meet these challenges is exceedingly difficult.

Waiver or certification of the cases to adult court jurisdiction is one option that has to be considered on a case-by-case assessment. That option has limits. Courts in most states will not permit those under age 15 to be certified. Beyond those statutory limits, there is a broadly based social and statutory aversion to placing youth under age 18 in adult correction facilities. Yet, the drug-related criminal offences being committed by juveniles through the use of sophisticated weapons and criminal intimidation are as appalling as any involving organized adult crime.

The youth gangs' large-scale criminal drug trafficking has exploded so recently that our judicial systems have not developed an adequate response. Recommendations offered at this time necessarily reflect responses based on existing law and existing alternatives. Federal and state legislation will be required to strengthen the statutory authority enabling the judiciary to deal successfully with the problem.

  1. Communities should use various strategies, including aggressive sup- pression, to address drug trafficking by youth gangs.

  2. Parents must inform themselves about youth gang substance abuse activities and assume responsibility for preventing their children from becoming criminally involved through gang association.

  3. All judges and intake, probation and casework staff must be trained in organized youth gang drug activities.

  4. Juvenile offenders should be screened and assessed for their possible involvement with gang drug trafficking activities.

  5. Courts should consider waiver to adult jurisdiction for those youth charged with serious gang-related drug trafficking.

  6. Federal and state legislation should make serious juvenile youth gang drug trafficking an interstate criminal activity.