Judging Addicts

Drug Courts and Coercion in the Justice System

Rebecca Tiger

• Publisher: NYU Press
• Year: 2012
• Print ISBN: 9780814784075
• eBook ISBN: 9780814785966
• Topic: Social Sciences
• Subtopic: Criminal Procedure
• Index: Social Sciences

The number of people incarcerated in the U.S. now exceeds 2.3 million, due in part to the increasing criminalization of drug use: over 25% of people incarcerated in jails and prisons are there for drug offenses. Judging Addicts examines this increased criminalization of drugs and the medicalization of addiction in the U.S. by focusing on drug courts, where defendants are sent to drug treatment instead of prison. Rebecca Tiger explores how advocates of these courts make their case for what they call "enlightened coercion, " detailing how they use medical theories of addiction to justify increased criminal justice oversight of defendants who, through this process, are defined as both "sick" and "bad." Tiger shows how these courts fuse punitive and therapeutic approaches to drug use in the name of a "progressive" and "enlightened" approach to addiction. She critiques the medicalization of drug users, showing how the disease designation can complement, rather than contradict, punitive approaches, demonstrating that these courts are neither unprecedented nor unique, and that they contain great potential to expand punitive control over drug users. Tiger argues that the medicalization of addiction has done little to stem the punishment of drug users because of a key conceptual overlap in the medical and punitive approaches—that habitual drug use is a problem that needs to be fixed through sobriety. Judging Addicts presses policymakers to implement humane responses to persistent substance use that remove its control entirely from the criminal justice system and ultimately explores the nature of crime and punishment in the U.S. today.

1

Both Bad and Sick

AN AFRICAN AMERICAN woman in her mid-thirties is escorted into the courtroom, her hands shackled behind her back. She faces the judge. It’s already been decided, before she gets there, that she will plead guilty to assault charges. Her sentence will be eighteen months in a lockdown, inpatient drug treatment facility. Her attorney provides the judge with some details of her life. She’s been homeless since she was eleven. She’s been arrested several times, for prostitution and theft. She’s been an addict for over twenty years. The judge repeats the offer of drug treatment, interspersing her legal, formal language with words of encouragement. It’s because the court cares and believes she can get better that she is being offered this opportunity. The defendant nods her head vigorously, repeatedly thanking the judge for this chance. The judge reminds her that this is tough work, and that there will be severe consequences if she doesn’t follow the treatment program. The defendant continues to nod, promising to do her best. The uniformed guards escort her from the courtroom. Looking back over her shoulder, she repeats “thank you” several times. A member of the drug court clinical staff whom I am sitting next to leans over and whispers to me, “Of course she’s going to say yes to drug court. She’s been homeless for so long, where else is she going to go?”

Scenes like this are repeated across the country regularly in drug courts. Judges interact with defendants differently than in traditional criminal court. They inquire about children, jobs, romantic relationships, and plans for education, comment on defendants’ appearances, or scold them for inappropriate language. They offer a “tough love” approach to defendants, being both judge, with the power to punish, but also a type of “case manager” or “therapeutic administrator.”¹ Defendants, also called clients and participants, face the judge, who offers them treatment but forcefully reminds them that it is no substitution for punishment.

The courtroom is an important aspect of drug courts, even though defendants spend the majority of their sentence in drug treatment programs. The sociologist James Nolan, in his ethnography of several drug courts titled Reinventing Justice: The American Drug Court Movement, refers to their “theatrical aspects” and “dramaturgical character.” Judges praise and admonish defendants, commenting on both small issues and larger infractions that affect the defendant’s sentence. A judge might remind the defendant to use “sir” and to speak and look up when addressing the judge. These behavioral comments, a form of discipline, are for the benefit of the particular defendant facing the judge as well as the others present in the courtroom on the day’s docket. Judges also respond to infractions of the treatment program, including “dirty urines,” the toxicological signs of continued drug use. These personal issues—relapse and continued drug use, the “triggers” that propel the defendant to use drugs—are addressed in the courtroom in front of the other defendants and other members of the “audience.” In Nolan’s study, judges referred to themselves as both “stage director” and “lead actor.” They are performing in the courtroom. As one drug court treatment director explained to Nolan, “It’s orchestrated. It’s a show. You are putting on a show.”² The point of the show is to remind everyone in the courtroom of the judge’s authority. It is to create a sense of accountability in the defendant, whose actions affect not only themselves but also everyone else in the courtroom, their lives, and the wider community.

In the theater of the courtroom, judges are enacting decisions that have been made behind the scenes, prior to the defendant’s face-to-face encounter with the judge, although the latter often acts as if this is the first time he or she is learning the specifics of the defendant’s case. The “drug court team,” usually comprising the judge, prosecution, defense, probation representative, and a clinical director with drug treatment experience, meet prior to the court session to discuss each case and the defendant–client’s progress in treatment. They alert the judge to any developments related to setbacks in treatment and suggest appropriate sanctions. The drug court team members have considerable discretion. If a defendant has “started using” again or engaged in other criminal activity but has been cooperative throughout the process, this information is considered and dealt with before the judge addresses the defendant in the courtroom. Likewise, if the defendant is considered by the drug court team to be difficult, the same infraction that leads to leniency for one defendant could lead to expulsion from the program for another.

Two examples from the recent HBO documentary series Addiction featuring the South Boston Drug Court highlight the deliberate nature of this differential treatment and its centrality to how drug courts are represented in the approving media coverage they receive. The nine-part Addiction series, a collaboration between HBO, the Robert Wood Johnson Foundation, the National Institute on Drug Abuse (NIDA), and the National Institute on Alcohol Abuse and Alcoholism, is meant to “demystify” addiction and present it as a treatable, chronic brain disease.³ The Addiction series, best understood as an advocacy piece for NIDA’s brain model of habitual substance use, was accompanied by an Addiction Project Outreach: the Robert Wood Johnson Foundation funded public health and abstinence-oriented drug treatment and addiction organizations to host viewing parties for the series to ensure that its message reached the widest audience possible. Series segments examining institutional sites where addiction is managed bolstered the overall message that addiction is a treatable, chronic brain disease. The series was widely praised; The New York Times lauded it for its “profiles of successful treatment programs” such as drug courts.⁴

This South Boston Drug Court episode opens with handcuffed men getting out of a police van, then immediately moves to a view of the men’s bathroom, where a defendant leaves a stall, handing a cup to court staff who have watched him while he urinated in it; it will immediately be tested for drugs. In the next scene, one drug court client, Daniel, explains that he used drugs again but tells the interviewer, who responds with approving verbal encouragement, “Instead of lying and getting caught in the urine, I came up here, I talked to my probation officer. I told him the truth, something I usually don’t do. I told him I messed up. It’s a vicious cycle.” In a subsequent scene, the presiding drug court judge, Robert Zemian, is speaking to Daniel. “Did you figure out what happened?” the judge asks Daniel. “Yeah,” Daniel responds. “Yes,” the judge corrects him. “I’m just getting real bored with everything,” Daniel explains. “It shouldn’t be an excuse but I used it as one. I’m back on the beam now.” The judge tells Daniel, “You did as well as anyone was doing here. It was very disappointing to me but you reacted correctly, which is important.” Daniel is given a probation violation and must go back to visiting the court every two weeks, where he will meet with the judge and resume regular drug testing. Daniel has been deemed sufficiently motivated. We later find out that he has lost his job but will begin working again soon; he’s buying a house and recently proposed marriage to his girlfriend. The court has to deal with his “slip”; he expressed enough deference to the process that his relapse is treated as part of, rather than counter to, the therapeutic process.

In contrast, Patrick is trouble for the court. In the pre-court meeting, the drug court team discusses his case. One court staff member tells the judge that she’s “having problems with him.” The probation officer on the team explains, “What concerns me about this case is that each time he comes back, he comes back with the same complaint. He wants to write his own treatment plan. He’s not cooperating.” The judge tells the team, “We’ll deal with him in court.” In court, the judge looks at Patrick and shakes his head disapprovingly. The probation officer explains what he has already told the judge and what the judge already knows: “He’s been found in violation of his probation, he went into treatment, tested positive for opiates.” The judge tells Patrick, “You did well for periods of time but you’ve been out there too long and you know what’s going to happen. You’re going to have to do the program in the house of corrections.” Patrick asks if there’s a chance that he can move to another program. The judge tells him that “there’s always a chance” but remands him to prison, where he remains for six months. He is ultimately denied reentry into drug court.

While both Daniel and Patrick used drugs, Daniel took the blame for his relapse while Patrick attributed it to the treatment program. Daniel’s explanation for his drug use fit within the treatment paradigm of the court; Patrick’s justification implicitly questioned the efficacy of treatment while simultaneously deferring blame. Daniel also displayed sufficient respect for, and a desire to be a part of, the institutions of work and marriage, portrayed here as a sign that he is engaged in the recovery process. In drug courts, the judge and other court staff are always assessing the defendant’s commitment to treatment and amenability to change.⁵ It is factors such as these, and the discretion that comes with them, that are used to determine a drug court client’s fate.

Judges also reacquaint themselves with the specifics of a defendant’s case so that when they face the defendant in the courtroom, they can enact the personalized nature of drug courts, considered essential to their success. The judge can show that he or she cares about the defendant and remembers important details of the defendant’s life. Drug courts collect very personal information on defendants, which is considered essential to the courts’ success. The sociologists Stacey Burns and Mark Peyrot, in their ethnography of a two drug courts in Southern California, emphasize the dual nature of this personalized information. Its goal is to convey caring, to show that the court is committed to the defendant’s recovery, but it is also a way that defendants are held accountable to the court. It is part of the “mentoring and monitoring” function of the drug court. The individualized information that judges collect can be used to craft meaningful rewards but also particularly effective sanctions. The personal information, combined with strict monitoring, is used to determine a defendant’s progress in the drug courts, measured in stages. These stages, ranging from the trial orientation phase to graduation, can take years for a defendant to complete. As the defendant progresses through these stages, the monitoring becomes less intense. They can also be demoted back to earlier stages if they do not comply with treatment. During these stages, the judge often uses jail as an “extension of recovery” and a form of “behavior modification.” As one judge they interviewed explained, sanctions are “supposed to put that kind of torture and fear and whatever else is unpleasant in your memory so that when you do cross that trigger again, you really remember. … The behavior modification thing … is basically pleasure and pain.”⁶

An important aspect to drug courts is that judges show they care about defendants. They recommend sanctions for “dirty urines.” They take into account participants’ commitment to sobriety. Judges praise, cajole, reprimand, and lecture drug court participants. Sometimes they hug them. They remind them that sobriety is difficult to achieve but that actions, such as “slip-ups,” have consequences. The judge is there to remind them of these consequences, which can range from courtroom admonishments to brief stints in jail to years in prison. These consequences remind defendants that they are in control. They might be sick with a disease, a compulsive relationship with drugs, but its cure rests within them and their commitment to the hard work of sobriety. Some defendants, unable to convince the judge of this commitment, end up in prison. Having pled guilty to get into the drug court, they have a certain prison sentence waiting for them when they fail to achieve sobriety.

Background

Formed partly in response to the overcrowding of jails and prisons that has stemmed from punitive drug policies, drug courts are intended to address the underlying addiction many in the criminal justice system believe is the impetus for crime while retaining the coercion traditionally associated with criminal justice.⁷ As the U.S. Department of Justice’s Drug Courts Program Office explains, “Drug courts leverage the coercive power of the criminal justice system to achieve abstinence and alter criminal behavior through the combination of judicial supervision, treatment, drug testing, incentives, sanctions and case management.”⁸ Unlike previous attempts at coerced treatment, sanctions “of increasing severity”—including incarceration—imposed by the judge are considered “instrumental” in drug court operation.⁹ Drug court judges retain considerable power over the treatment process, meet regularly in the courtroom with defendants, and routinely monitor their progress, using urine testing and reports from treatment programs to assess compliance with treatment protocol.¹⁰

Since their first appearance in Dade County, Florida, in 1989, drug courts have expanded to every state, with 2,459 in operation as of December, 2009.¹¹ The majority of these, 1,317, are for adult felony offenders, 455 are for juveniles, and more than 300 are family drug courts. It is difficult to get consistent data on the number of people who have gone through drug courts. According to the National Association of Drug Court Professionals (NADCP), the sole drug court advocacy organization in the United States, more than 300,000 people have “participated” in drug courts since 1989; however, the organization does not provide any data on completion rates for these people.¹² NADCP estimated that, as of December 2008, there were over 116,000 drug court participants and that over 22,000 people graduated successfully in 2008. I could find no data on the numbers of people who did not complete the drug court program. NADCP claims, on their website, that “drug courts transform over 120,000 addicts yearly in adult, juvenile, and family court systems into drug-free, productive citizens.”¹³ The discrepancy between 22,000 graduates, 116,000 participants, and 120,000 lives transformed is too large to begin to estimate the real numbers of people graduating from drug courts in any one year, and speaks to the difficulty in discussing, with any accuracy, a punishment strategy whose main source of data collection and reporting is also its advocacy organization. Added to this, many judges not presiding over drug courts mandate people to drug treatment.

Drug courts come in two main models: pre-plea and post-plea. In pre-plea drug courts, also called “deferred prosecution,” the defendant enters mandated drug treatment before pleading guilty to a charge. If the defendant completes treatment, the charges are dismissed. If the defendant doesn’t complete treatment, she or he is then prosecuted for the original offense. According to the U.S. General Accounting Office, this pre-plea model “is intended to capitalize on the trauma of arrest” to get people into treatment with the possibility of avoiding a felony conviction.¹⁴ In the post-plea model, the defendant pleads guilty to the offense before accessing drug treatment. The sentence is suspended or deferred while the defendant is in treatment. But because they have pled guilty to a felony, which carry strict sentencing guidelines, they have a certain prison sentence awaiting them if they do not complete the treatment program. If they successfully complete the treatment program, their sentences are waived or, in some instances, their case records are expunged.

As the GAO explains of the pre- and post-plea models, “Both of these approaches provide the offender with a powerful incentive to complete the requirements of the drug court program,”¹⁵ the incentive being an almost certain prison sentence if they fail to complete drug treatment. While drug courts initially started with a pre-plea model, 58% of adult drug courts are now post-plea.¹⁶ This means that the majority of drug court participants, in order to access drug courts, have pled guilty to a felony and will face the charges for this felony if they do not comply with court-mandated treatment.

An important component to the expansion of drug courts, since the early 1990s when there were fewer than twenty, has been their inclusion in federal criminal justice policy. The Omnibus Crime Control and Safe Streets Act of 1994’s Title I, Subchapter XII-J, authorized the attorney general to make federal dollars available to states, local governments, and court systems to establish drug courts.¹⁷ In many jurisdictions, drug courts have been incorporated into state court systems and are funded through state criminal justice channels rather than through federal technical assistance or start-up grants.¹⁸ Some states are using the drug court model of coerced treatment, intensive supervision, and sanctions in other specialized courts such as mental health, juvenile justice, domestic violence, reentry, tribal, family dependence, gambling, and truancy courts.¹⁹

The Obama administration strongly supports drug courts as part of its “demand-side” approa...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Dedication
• Contents
• Acknowledgments
• Introduction
• 1 Both Bad and Sick
• 2 Criminalizing Deviance: Reconciling the Punitive and Rehabilitative
• 3 “The Right Thing to Do for the Right Reasons”: The Institutional Context for the Emergence of Drug Courts
• 4 “Enlightened Coercion”: Making Coercion Work
• 5 “Force Is the Best Medicine”: Addiction, Recovery, and Coercion
• 6 “Now That We Know the Medicine Works”: Expanding the Drug Court Model
• Conclusion
• Appendix
• Notes
• Bibliography
• Index
• About the Author