Enforcing Freedom

Drug Courts, Therapeutic Communities, and the Intimacies of the State

Kerwin Kaye

• Publisher: Columbia University Press
• Year: 2019
• eBook ISBN: 9780231547093
• Topic: Social Sciences
• Subtopic: Criminology
• Index: Social Sciences

In 1989, the first drug-treatment court was established in Florida, inaugurating an era of state-supervised rehabilitation. Such courts have frequently been seen as a humane alternative to incarceration and the war on drugs. Enforcing Freedom offers an ethnographic account of drug courts and mandatory treatment centers as a system of coercion, demonstrating how the state uses notions of rehabilitation as a means of social regulation.

Situating drug courts in a long line of state projects of race and class control, Kerwin Kaye details the ways in which the violence of the state is framed as beneficial for those subjected to it. He explores how courts decide whether to release or incarcerate participants using nominally colorblind criteria that draw on racialized imagery. Rehabilitation is defined as preparation for low-wage labor and the destruction of community ties with "bad influences," a process that turns participants against one another. At the same time, Kaye points toward the complex ways in which participants negotiate state control in relation to other forms of constraint in their lives, sometimes embracing the state's salutary violence as a means of countering their impoverishment. Simultaneously sensitive to ethnographic detail and theoretical implications, Enforcing Freedom offers a critical perspective on the punitive side of criminal-justice reform and points toward alternative paths forward.

1

Policing Addiction in a New Era of Therapeutic Jurisprudence

First Impressions

I wait in the courtroom for the judge to appear, somewhat anxiously trying to take in everything that I see and hear. Lawyers shift papers at the front, while approximately thirty or so people—mostly black and Latino men—talk quietly or sit bored waiting for the proceedings to begin. A sign behind the judge’s bench reads “In God We Trust,” and a U.S. flag is positioned to the side. Finally the judge enters from a door in back of the room. We stand as asked. A white woman of around fifty, the judge handles a few minor issues with the lawyers before the first program participant is called before her. “I am very impressed with the report I received,” she says, looking directly at the individual, a thirty-year-old black man. The judge smiles broadly as she speaks and actually gives the man a thumbs up. “I see your mother is here, your family is here. Good.” Then, speaking to his mother, she loudly proclaims, “You should be very proud of him. He has done fantastically well.” Turning her attention back to the program participant, she tells him to approach the bench. As the man steps forward, she takes his hand, shaking it enthusiastically and then speaks to him in quiet tones. I overhear only a brief snippet, something to the effect of “I have kids too. It’s tough.” A few moments later, she allows the man to return to the defendant’s table. “You’re in the home stretch, and you look great,” she says before leading a round of applause from those gathered in the courtroom. Not only do both the prosecuting and defense attorneys join in, but to my surprise, even the bailiffs clap with what seems to be genuine feeling.

The second person called is a middle-aged Latino man dressed in a suit. The judge greets him energetically: “You look very dapper today, sir. You look nice. How is your job?” Calling this gentleman close in as well, she shakes his hand and speaks quietly. I cannot hear what they say, but the judge makes direct eye contact the entire time she is speaking, and she smiles throughout their conversation. Releasing him back to the defendant’s desk, she returns to the topic being presently decided. “I have a note from your mother. You wish to move back in with her?” She turns to the prosecuting attorney, “The People have no objection to his moving back in with his mother?” (The district attorney signals no.) Then she addresses his treatment supervisor, “And I’m assuming the program has no objection to this?” (Her query is met with a shake of the head from the case manager.) With this assent, the judge permits the man to move back in with his mother. She sets another date for him to return, this one only two weeks away, and she moves onto the next case. The judge acts in much the same friendly manner with all of these initial cases. Spending perhaps three to four minutes on each case, she rapidly offers praise to each of the participants, often asking about their jobs or, in a few cases, about their educational pursuits. She leads the court in a round of applause for each and every person who is doing well, and some receive one-month, two-month, or three-month certificates of completion.

A thirty-five-year-old Latina woman soon follows. “The essay you wrote about lying was excellent,” says the judge. “Not only was it well-written, but the statements you made were right on target. If you don’t tell the truth, people will lose trust in you. It seemed to me that you learned your lesson. I am going to have you move into an outpatient program. This is not me saying that what you are doing is correct. It is a last chance for you. If you mess up, I’ll have no choice but to send you back to jail. What happens to you is up to you, not me.”

An even more strict tone is struck for the next individual, a thirty-year-old Latino man. “You will need to wait over here,” the judge says, gesturing to a bench at the side of the court. “The threats you have made against your wife are unacceptable.” It is unclear exactly what he has done, but from comments that the judge makes, it seems that his wife called to complain to one of the case managers about whatever happened. The judge has the power to decide what sort of penalty is merited in a case such as this, and—without hearing any explanations whatsoever from the man—she eventually informs him that he will be sent to jail for a one-week stay.

Another man, the only white participant I see during my ninety minutes of court viewing, is called up from the same side bench where the man accused of abuse was told to wait. He is one of a small number of people who have been brought in from the jail for possible participation in the treatment court. “Do you smoke marijuana?” the judge asks him. Seeming confused, he answers with a weak “No.” “Treatment court is for addicts. If you don’t use drugs, then we can’t place you.” The defense attorney has a quick hushed word with the man. The judge asks again, “Do you smoke marijuana?” “Yes,” he offers this time, seeming only slightly more sure of himself. “Treatment court has three goals,” offers the judge, “to get you off of drugs, to get you to become a regular member of society, and to get your case dismissed. It’s a lot of time and effort. Now, do you want a quick sentence or do you want to go through our program?” After a bit of back and forth, the man at last opts to participate in the program. The judge arranges for an evaluation to be done in one week and returns the man to jail in the meantime.

Later, I walk into a side office of the Treatment Court, finding the staff too preoccupied to immediately greet me. One of the program participants is having difficulty with his urinalysis. After testing negative the day before, this eighteen-year-old black youth is now testing positive. He emphatically proclaims that he has not smoked marijuana since beginning the program and that he most definitely did not smoke it the night before. One of the staff members seems to believe him and is arguing with other staff members that the test result is actually somewhat indeterminate. The staff supervisor suggests that the youth pee into a second cup. A second man is also angry because his urinalysis has turned up positive, and he likewise insists he has not done any drugs. “I don’t have time for this shit,” he mutters aloud, “I have to get to work.” On the wall hang two posters, one entitled “Health Dangers of Cocaine,” the other “Health Dangers of Marijuana.” Ironically—to me, in any event—a poster of a rather bedraggled cat is hung nearby, featuring a caption that reads “Before I get my morning coffee, I might as well be a dog.” Eventually, the staff members address all of these testing challenges, and we have some time to speak about my project.

In what has come to be called a “quiet revolution” in the judiciary, the first drug treatment court began in Miami, Florida, in 1989 under the direction of then-State Attorney Janet Reno.¹ Indeed, this successful experiment was one of the key factors that eventually helped propel her to become U.S. attorney general (the first woman to serve as such) under President Clinton. As of 2014—twenty-five years after the establishment of the first such court—there are some 3,057 drug courts within the United States and its territories, covering 56 percent of all U.S. counties, and collectively handling just over 107,000 individuals on an annual basis.² In sending those arrested for drug-related crimes to a court-supervised treatment program rather than to jail or prison, drug courts are widely perceived to offer an alternative to the lawmaking trends of the 1980s, including the war on drugs, when harsh penalties were established for crimes that were previously considered to be relatively minor in nature. Perhaps best exemplified by New York State’s Rockefeller Drug Laws and the more general war on drugs, this model of long-term incarceration rested upon a dual justification: it purportedly prevented crime by establishing punishments that deterred illegality, and it locked up those individuals who nevertheless committed crime, ideally keeping those deemed inherently dangerous off the streets for as long as possible.

While the decades-long campaign for law and order was generally initiated by conservatives, the 1990s saw Bill Clinton and other Democrats working hard to make sure that they would not be outflanked on the issue of crime, passing legislation such as 1994’s infamous Violent Crime Control and Law Enforcement Act (VCCLEA) and taking the Democratic Party decidedly to th...

Table of contents

• Cover 
• Series Page
• Title Page
• Copyright
• Contents 
• Acknowledgments
• 1 Policing Addiction in a New Era of Therapeutic Jurisprudence
• 2 Drug Court Paternalism and the Management of Threat
• 3 Today Is the First Day of the Rest of Your Life: Rehabilitative Practice within Therapeutic Communities and the History of Synanon
• 4 Control and Agency in Contemporary Therapeutic Communities
• 5 Gender, Sexuality, and the Drugs Lifestyle
• 6 Retrenchment and Reform in the War on Drugs
• Notes
• References
• Index