Reclaiming Discretion

Abstract

In an attempt to involve drug-related defendants in treatment, California's Proposition 36 constrains judges' discretion to restrict access to treatment and to revoke treatment. Despite its formal rule scheme, judges nevertheless develop and implement strategies to coerce and persuade defendants into treatment compliance. Proposition 36 is an unexplored setting for examining the externally and interactionally imposed limits on judicial discretion and attempts by judges to reclaim it. This article describes strategies judges use in response to defendant noncompliance and shows how the alternatives available to defendants further constrain judicial attempts at coercion. While judges would rather find a way to make treatment work, ultimately defendants can opt out of treatment by choosing incarceration. Ironically, incarceration may be preferred by defendants because it may be a less onerous alternative. This perception constitutes an important interactional impediment to the judge's treatment option and significantly constrains judicial strategies to enhance treatment outcomes.