Why Drug Courts Fail

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Photo by Find Rehab Centers via Flickr

Over the last few decades, drug courts have emerged as a significant policy tool in the nation’s efforts to combat addiction. Touted as an alternative to incarceration, they are seen as a cost-effective option for providing treatment and offering a path towards a healthier, law-abiding lifestyle.

But the results don’t necessarily live up to their promise, according to Kerwin Kaye, an associate professor of sociology at Wesleyan University. In his new book, Enforcing Freedom: Drug Courts, Therapeutic Communities, and the Intimacies of the State, Kaye argues that drug courts and their partner programs are subject to the same biases and disincentives that have marred other much-touted justice reforms, and argues that they in effect “repackage” the status quo approach rather than transform it.

Kerwin Kaye

Kerwin Kaye

In a conversation with TCR, Kaye discusses how drug courts perpetuate racial stereotypes, why they often act as an extension of the punitive approach taken by the War on Drugs, and how they might be reshaped as a voluntary system to provide better outcomes.

This transcript has been edited for length and clarity.

The Crime Report: What led you to this topic? 

Kerwin Kaye: The paths to this book were a little roundabout. I had done prior work on male street prostitution in San Francisco and I discovered that most of the guys on the street were doing drugs. What caught my attention was that all of the guys, literally to a person, hated and despised the social service agencies that were supposed to be there to help them. So I become more interested in the social governance of street life, and of urban poverty in general, and I started to look at social governance and social control.

That led me to drug courts and the confluence of these two issues. I’m certainly not the first person to critique drug courts, but what I’m doing that’s somewhat unique is taking a very careful look at the forms of therapeutic control that are happening within the treatment centers, really looking at the logics of that treatment within the drug court itself, and trying to frame how those therapeutic techniques of governance operate in ways that are empowering to some but are also a form of social control for others.

I think it’s important because drug courts continue to be one of the few [reforms]that have gotten bipartisan support among the criminal justice community. They continue to be taken, generally, as a much needed reform and a move away from racialized mass incarceration. Unfortunately, I don’t think that they are.

TCR: You write that one of the shortcomings of the drug courts is their acceptance of a popularized idea of a “drugs lifestyle.”

KK: What I saw during my research was that the case managers who work with the drug courts were very insistent that what they’re doing is not just getting people off of drugs. They felt that if you just got people off of drugs you’d just be creating sober, more efficient criminals. They wanted more than that. They talked about a need to address and transform what they call an entire “drugs lifestyle.” And that drugs lifestyle really didn’t have much to do with, say, people on Wall Street who take drugs in order to celebrate or to stay up during a heavy trading day, even though there’s widespread drug use there. Instead, it had everything to do with ideas that had been previously labeled as the “culture of poverty.”

It had to do with a stereotyped understanding of what street life is about: an inability to delay gratification, an inability to make long range plans, establish a solid work ethic, trying to break the rules, get around the rules, a distrust of authority, etc. In the past, these were things that had been attributed to poor people by scholars such as Oscar Lewis or the sociologist Daniel Patrick Moynihan. However, that stereotyped image of what street life is about does capture something of the elements that are within a life of street hustling and what it means to be scavenging for survival in the context of very limited material resources and having to exploit the people around you to survive.

Treatment effectively consists of taking people who have been heavily engaged in hustling as part of street life and shifting them towards habits and dispositions that are much more suited for formal labor, particularly low wage formal labor. Things like doing as you’re told, following a schedule, following the bureaucratic hierarchies that are established within the residential treatment units, doing boring tasks that don’t necessarily make sense, even getting yelled at by staff and accepting that without responding.

There’s this implicit understanding that low-wage labor can be very degrading, can be very boring, that it doesn’t make a lot of sense, that the bureaucratic rules don’t make sense, that your boss might be abusive, and you need to learn to accept that. Treatment offers the re-narration of that experience of low wage labor as one of degradation, oppression, and subordination and, instead, presents it as a way to develop strength in the face of triggers that might lead you back to drug use. It makes participation in low wage labor a dignified experience. That was what I felt was the concrete aspect of treatment: this transition of street hustling life toward low wage formal labor and all that it meant. That was the de facto way in which addiction was operationalized, and that is true within both the courts and the treatment programs themselves.

TCR: What role does race, and the policing of minorities, play in the perpetuation of this idea of the drug lifestyle?

KK: The idea of the culture of poverty that the drugs lifestyle was riffing off of was really developed at the time of the civil rights movement, the black power/freedom struggle. It was a time when overt types of racism were becoming less possible to say out loud. Arguably, what the culture of poverty did was take a bunch of racist stereotypes and repackaged them so that it could be claimed that it wasn’t about blackness. So it takes this racist imagery—an approach that has tremendous emotional associations and a long history of being used to justify social exclusion—and applies it in a supposedly color-blind way to drug users.

But, of course, given the way we are policing the war on drugs by targeting disproportionately poor, black and latino minorities, this racialized aspect remains. It continues to mobilize all that imagery both in terms of how individuals are treated going through the system and then to motivate and support that system itself.

TCR: How do drug courts actually extend the reach of the war on drugs?

KK: My largest critique of drug courts is that they generally operate on a post-plea model. In order to participate in drug courts, people plead guilty to the most serious charges that can possibly be leveled against them. And then half the people fail at drug court. One might wonder how you can fail at things like drug treatment or that they would even fail you, but you can and they do.

What that means, if you’ve already pled guilty to the most serious charges, is that you’re now going to go to jail or prison, with no opportunity to plea bargain. In most cases you don’t receive any credit for the time you’ve already spent under the courts supervision, which can be several months to one or two years. So, for the half that fails, it’s really intensifying the war on drugs. And, unsurprisingly, given the way that the ideas of addiction already encode this racialized language and imagery, it’s disproportionately poor and black people who are failing at drug court.

coverPart of the reason drug courts were initially developed is because they were experiencing a bureaucratic log jam in the courts with the rise in the number of people going through the court system for drug charges. The entire purpose of the drug court was to streamline the process of dealing with drug charges through the court system. Having people plead guilty as part of that process was an essential element. There’s a very specific reason why it’s set up the way it is and that’s to facilitate the ongoing war on drugs. It’s an institution that’s embedded within that war’s larger structural logics.

Even though it has these appealing positive aspects for some, for others it’s making a deal with the devil and you really need to pay attention to the fine print. In some cases, having a drug court around, having this more efficient structure to deal with all these drug cases, has meant that police have been willing to go out and arrest more people for drug courts.

[As a result] there’s been a process of net widening, in terms of bringing more people into the criminal justice system. Drug courts are actually intensifying the effects of the war on drugs on populations that need the most relief from the war on drugs. For me, that makes drug courts a real nonstarter.

TCR: Therapeutic communities (TCs) are one of the primary topics of your book. How did the questionable efforts and philosophies of past TCs, like the now-infamous Synanon community, establish the foundations for many of the negative practices that are still occurring today?

 KK: Synanon was founded in 1958 in Santa Monica, Ca., by Charles Dederich. Incidentally, he is credited with coming up with the slogan “today is the first day of the rest of your life.” At first, Synanon attracted a lot of positive attention from the media and the many high profile senators and psychologists that visited and praised its program. It seemed like they had success with drug users in ways that no one else did.

But eventually, Dederich started to go off the rails. He prohibited people from leaving the program and created an internal organization called the Imperial Marines to enforce that and other rules. By the end, Synanon was being called a cult. Dederich seems to have taken a lot of the programming ideas for Synanon from media reports of Chinese brainwashing techniques during the Korean War. He would say that everyone needs their brain washed now and again, especially drug users. One of the key elements of these techniques is that everyone is required to police their interactions with others and if anyone is breaking a rule, or appears to have a bad attitude, they need to report that and the person gets challenged within the program.

Synanon had a hot seat: people would gang up on one person who had a bad attitude or had broken a rule and would verbally challenge them in intense and abusive ways. Men and women would be required to shave their heads and have privileges taken away. It was an abrasive and abusive form of treatment. And that also appears today.

They are deliberately looking for ways to creatively humiliate people. A program I observed, which had a very good reputation of being very mild and professional and was very well regarded by the drug court staff, had abuses nevertheless. There was a male/female couple who had an affair. They were both married outside the institution, and the woman had been writing sexually explicit love letters to the guy. Sexual relations were not allowed, so, they took her and put her in front of the entire group of residents, about 80 or 90 people, and read her letters to everyone, essentially slut-shaming her.

‘Totalitarian Policing’

Just before I arrived, they had taken a couple of people and made them clean the bathrooms with toothbrushes. In other institutions, I heard stories where one woman had gone on a weekend pass with her boyfriend who had been dealing drugs and she had helped him package some of those drugs. She was made to get into a trash can because she was dirty. Other people were made to dig their own graves because that’s what they’re doing by doing drugs. In another case, people were made to wear diapers over their clothes because they’re acting like a baby, which is an old Synanon practice. These are therapeutic techniques which are very much oriented towards a totalitarian idea of policing every single one of your interactions and that lends itself to abuses in power.

TCR: Is there any kind of oversight to keep abuses like this in check?

KK: In New York, there were a lot of things that raised concern among the District Attorney’s (DA) office upon hearing some of these stories. It sounded like cruel and unusual punishment. One of the DAs spoke with the Office of Addiction Services and Supports (OASAS), the regulatory agency that governs the treatment centers, and asked if they knew about these incidences, and they did, so the DA dropped it. But when I spoke to OASAS about their feelings on the matter, the person directly in charge said that, while they actively discourage this type of behavior, they don’t do anything about it because they felt that the state legislature didn’t really care and that there was a limited amount of things that they could do without their support.

So OASAS ends up regulating and focusing much more on financial concerns and making sure that no one is syphoning off money or spending money improperly, but it does not pay careful attention to complaints received on a regular basis about behaviors that might constitute cruel and unusual punishment.

 TCR: You point out that TCs follow a gendered structure that imposes a masculinized implementation of policy and procedure. What are the effects of this structure on female members of these communities?

KK: Synanon originally developed its treatment philosophy around men, even though it was a mixed gender facility. That continues today in both male only facilities and those that are mixed. Women in the predominantly male facilities are dealing with a structure that has originally been created with men in mind. In the male-only facilities, and the predominantly male facilities, the treatment is really oriented towards becoming a productive member of society and making that transition from street hustling to low wage labor.

Within the women-only facilities there is much more focus on what the institutions believe to be the emotional needs of the women and, in some ways, that can be even worse for the women in those programs. They end up having to do much more emotional exposure both to one another and the staff and within this context of policing one another, if there’s a dispute, people know each other’s intimate history and it becomes common to throw the worst elements of that in each other’s face. Within the mixed facilities, which are predominantly male, women get a double burden in a way that men do not. They are required to both become productive according to the traditional male model and also pay attention to the emotional issues.

TCR: How are these institutions equipped to treat members of the LGBTQ community?

KK: These programs are definitely oriented towards straight folks. The facility I was at, and all of the coed facilities that I know of, are structured geographically so there are floors for men only and women only and stairwells for men only and women only. A man and a woman would not be able to talk to one another one on one without a third party present because they’re trying to ensure that no romantic coupling happens. But two men and two women can talk to each other because the program is oriented towards policing heterosexuality and it means that some of the LGBTQ connections might not be visible.

When I talked with the director of the program [which I was observing], I said that people already try to hide that usually, so it doesn’t pose an institutional problem of control. From his perspective, when people form romantic couples there can be jealousies that arise and it can create challenging situations to control within the program.

But iff people are LGBTQ and already being discreet they don’t have to police it because it is effectively already being policed. That can also mean that the specific needs of different LGBTQ communities don’t get addressed within the programs at all.

Specific trajectories of why people are using drug or specific contexts in which people are using drugs aren’t considered. They’re incapable of addressing these kinds of themes because the staff are generally not aware of those themes. There are exceptions, and very meaningful ones, but, in general, these institutions are not equipped to deal with and assist LGBTQ communities.

Gender Stereotyping

TCR: When it comes to the treatment of women, even in programs solely for women, how does the gendered stereotyping that prioritizes the emotional over the practical negatively affect their outcomes?

KK: Women really get put at a disadvantage because the drug court itself is insisting on this move from whatever form of hustling that might have been happening to, instead, having a real job. One of the criteria to get out of the drug court is that you have a job at the end of it. But, with women, and particularly women in the women’s-only programs, they’re putting such an emphasis on dealing with emotional issues, worrying about what you wear, promoting seeking a partnership vs. sleeping around, that it duplicates some of the sexist understandings of what women are supposed to be about through an ironically feminist language.

These conventional understandings of what appropriate femininity is about get emphasized so much while, at the same time, programs are conversely forbidding women from leaving the facility to look for jobs or get job training. And then those women are at a significant disadvantage when it comes to finding a job and getting out of the drug court. As a result, the women going to the women only facilities are typically spending a longer time, ranging 6 months to a year longer, than either the men or women going to the predominantly male facilities.

TCR: This stereotype burdens and targets women even more so if they have children.

KK: This was routinely brought up in both the women’s facilities and the predominantly male facilities. In looking for these creative forms of humiliation, they really draw on a lot of gendered stereotypes. When the woman I mentioned earlier was slut shamed, and they brought up the man who had been having an affair with her, they didn’t slut-shame him. Instead, they challenged him for disrespecting the mother of his child, which is an understanding that continues to position him as the dominant person within the partnership.

I’m certain they would have loved to humiliate him as much as possible. But just considering the way that oppression and sexism operates in society, they didn’t have the same ability to shame him as they did with her. The discursive resources are such that women are going to be able to be shamed in much more intimate and powerful ways. Another way in which that operates is with the fact that women with children, which is probably around 60 percent-70 percent of the women in the program, could have it thrown in their face that they didn’t love their children anytime they broke a rule because “if you don’t make it through this program you stand to have your kids taken away by protective services.”

This logic of the bad mother, and saying that the women going through the program are bad mothers, is one of the constant refrains. The idea that you’re a bad father just doesn’t have the same weight. Usually the men aren’t the primary caretakers anyways so they’re not going to lose their kids so long as the mother stays around. And the rhetorical weight of being a bad father is much lighter than being a bad mother. The way that sexism operates in society provides these very intense and intimate ways of shaming women in ways that just don’t operate for men.

TCR: How are drug courts contributing to what you call the “medicalization” of the criminal justice system and what are the consequences of that act?

KK: Drug courts are really taking the war on drugs, which has been challenged, and they’re putting a therapeutic framework on it that really appeals to a lot of liberals. The idea of sending people to treatment rather than incarceration sounds great. And until you start looking at the fact that half the people fail, and that the treatment seems very punitive, it sounds very good. So, it’s really a process of gaining consensus about something without changing the basic structure of what is, basically, a very punitive structure. Drug courts get called therapeutic jurisprudence, but the only thing that’s really therapeutic, or that gets medicalized, is the punishment itself.

There’s nothing particularly medical about the forms of treatment that are offered. The model of the drug court is also used in relation to a number of different probation and parole programs that have brought in judges to fulfill a similar position that drug court judges have. The price of punishments that the drug courts dole out, a system of graduated punishments that escalate as you continue to break rules, that is done for people who aren’t doing drugs. The only thing that is medicalized is the rhetoric of the drug court.

The therapeutic language means that it has much greater acceptance among liberals who think that these programs are offering something beneficial. But if it only changes the war on drugs from something that is being done to punish people into something where we are supposedly arresting people to help them, then you’re actually not changing anything about the overall structure. You’re still using the police to arrest people and that is arguably extending the life of the war on drugs and just helping liberals get on board with the idea that everyone needs to get arrested for there to be a benefit.

TCR: What are some of the positive aspects of drug courts and therapeutic communities, how could they be further improved, and is there a better system out there?

KK: Drug courts have this vision of social inclusion, and they do offer these very important services, including the treatment itself, which many feel is helpful. And for the half that succeed at the court, it’s a good deal: charges are removed from your record or blacked out and you’ve received a lot of great services like job training, help getting a GED, case management to link you with other services like Medicaid or housing.

I think you could make adjustments to drug courts so that the procedure is based on a pre-plea basis, as opposed to a post-plea basis. Then, if you do fail, you still have the opportunity to plea bargain. Just that one change would change the dynamics of the drug courts and how they work in a much better way. If you follow the logic of the drug courts today, the more people you arrest the more people you are helping.

It provides a logic in which you would want to arrest as many people as possible because that’s how you offer people help. It really works against the main alternative which would be the public health approach where you are offering services that people want while also not forcing those services on people.

Some argue that people won’t take services unless they are forced to, and I’m willing to concede that that is true for some. But I would much rather have the problems you might end up with in a fully voluntary system of robust services than the problems we currently have from criminalizing people and locking them up for extended periods of time in very racial and classed ways. It wouldn’t be a utopia, but you would have a much better set of problems to deal with than the ones we have now.

Isidoro Rodriguez is a contributing writer to The Crime Report

2 thoughts on “Why Drug Courts Fail

  1. Thanks for this. I am a tribal court judge and have been presiding over a tribal healing to wellness court for five years. I downloaded the book and am eager to read for more insights. I think the discussion around how/why courts exert coercive control of participants is hugely important. I am curious about whether Mr. Kaye looked into tribal court programs at all. In my experience, tribal wellness courts are less punitive than state courts and more focused on getting folks connected to their culture and tribe, rather than punishing for ongoing substance misuse. Thanks.

  2. I founded and directed a residential therapeutic community in Newark, NJ from 1968 to 2012 called Integrity House. The TC concept initiated by Chuck Dietrich in 1958 has grown and matured over 7 decades. The length of time a resident had to spend in the TC was often measured in years due to the extraordinary mission of the program to encourage and support self help lifestyle change. The TC was and still is often created and operated by the very people who needed help, now in recovery. Many people going through TC programs over the years did change their addiction lifestyle through the TC tools of self help, peer encouragement, peer role modeling, and much practice and support for years thereafter. It differs from traditional treatment in that many of the “counselors” are peers in recovery.
    Dave Kerr – dkerr.recoveryadvisorygroup@gmail.com

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