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This chapter discusses the incompatibility between drug courts and retributivism. It is organized as follows. Section I briefly describes the phenomenon of therapeutic jurisprudence generally, and the drug court movement in particular. Section II raises normative concerns. It argues that we have overwhelming evidence that the dual-track system in which drug courts are embedded imposes punishments that violate the principle of proportionality. Section III indicates how existing practices might be reconciled with the normative worries that have been uncovered. It suggests that these difficulties are best resolved by a drastic change in contemporary drug policy. Although the public can continue to ignore the problems examined, penal theorists who take proportionality seriously can support drug courts only as a second-best alternative to the more radical solution of drug decriminalization.

Under China’s dual-track system, in which the command economy and the market economy coexisted, transition was to be achieved through a gradual strengthening of the market and a step-by-step weakening of the plan. This approach had obvious advantages, including the opening up of opportunities for the development of the private sector, which led to bursts of previously suppressed creativity and entrepreneurship. Nonetheless, under the incremental reform strategy, whereby the private sector and the state sector coexisted in parallel, the dual-track pricing strategy for many products and services allowed those in power to reap huge personal gains, and ultimately led to large-scale official profiteering and corruption. However, based on rent-seeking theory, corruption is not an inevitable outcome of a market economy. The corruption in China originated from the administrative controls and the government interventions in market activities, that is, the so-called mixing of power and business.

The chapter analyses the formation of the dual-track system designed by European criminologists and penal reformers as a method to combine retributivism and prevention by providing the possibility for the judge to add an indeterminate measure of social security to the ordinary penalty. It examines the International Prison Congresses in Brussels 1900 and Washington 1910, where European and US reformers debated the desirability and limits of indefinite punishment, and where the divide between two penological approaches was clearly recognized. The chapter also describes the theorization of the dual-track system elaborated by Carl Stooss at the turn of the twentieth century, and its first legislative implementation in the Norwegian Penal Code 1902, the Prevention of Crime Act of 1908 in the United Kingdom, and some other continental draft codes.

The chapter explores how the shift from retributive to preventive justice affected the constitutional balance between judicial and administrative sentencing powers. After analysing the Spanish law framed by De Asúa on the dangerousness without crime, it compares the European solution of the measures of security with the US indeterminate sentence system, stressing the European attitude in favour of judicial sentencing jurisdiction. It examines the growth of penal administrative powers in the United States, focusing on the shift from legal rules to legal standards in sentencing discussed by Roscoe Pound, Felix Frankfurter, and Sheldon Glueck, and then describes the hybrid system of penal/administrative security measures provided for by the 1930 Italian Fascist Code. The chapter finally investigates the different positions on the powers of the judge in the sentencing phase debated at the Berlin Congress in 1930 and the ambiguities of the dual-track system.