Abstract
The Los Angeles Times recently ran a story featuring Lori Ann Newhouse, a 34-year-old mother of three who received a staggering 10-year prison sentence after she was busted by federal agents for buying a single gram of methamphetamine. In her case, prosecutors doubled what would have otherwise been a five-year sentence because it was Newhouse’s second drug conviction. The origin of harsh sentences like Newhouse’s can be traced back to a series of mandatory minimum penalties set by Congress in the Anti-Drug Abuse Acts of 1986 and 1988. Mandatory minimums are the heart and soul of this country’s “War on Drugs” and as we near the 30-year mark of that war, stories like Newhouse’s have become all too familiar. So have the numbers. In 2012, just over 1.5 million adult Americans were serving time in state or federal prisons compared to 300,000 in 1980. Much of the growth is directly attributable to changes in sentencing policies that target drug offenders. The profound economic, political, and social costs of such changes and the attendant phenomenon of mass incarceration they wrought have prompted calls for radical reform from politicians on both sides of the aisle. In September 2013, U.S. Attorney General Eric Holder instructed prosecutors to move away from using “get tough” sentences against low-level, non-violent drug offenders like Newhouse. Instead, states and the federal government have been pursuing a variety of reformist alternatives, and none of these is more popular or more well-received than drug courts.
In both the scholarly literature and in the popular press, drug courts are framed as an enlightened, progressive response to the drug problem, one that prioritizes rehabilitation over punishment and treatment over incarceration. But in much the same way that politicians and the public embraced the fiery rhetoric of “get tough” with little thought for consequences, we are in danger of a similarly uncritical and ill-informed embrace of the drug court movement. So argues Rebecca Tiger in her timely and persuasive book, Judging Addicts: Drug Courts and Coercion in the Justice System.
Tiger, who for many years worked in public health as a research and policy analyst, was once herself an advocate for drug courts and the broader discourse of medicalization in which they are embedded. However, as she became more familiar with drug courts, their practitioners, and their clients, her views began to shift. Specifically, two elemental aspects of the drug court movement gave her pause. First, most of the people she encountered in the courts were not there voluntarily but rather were mandated there by criminal justice system. The penalty for refusing to participate or complete drug treatment is frequently prison. Thus, instead of drug courts operating as a therapeutic alternative to the punitiveness of the penal system, they merely serve as an extension of it. In this sense, drug courts, like prisons, rely on coercion as a primary mechanism of social control.
Second, Tiger began to question the philosophy of addiction that ideologically anchors the work of the courts. The disease model holds that drug addiction is a symptom of a diseased self. Practitioners frequently note, “The problem is the person, not the drug.” As such, drug courts surveil far broader aspects of defendants’ lives than is typically the case in criminal courts. Beyond evaluating treatment progress and other law-related stipulations, drug court judges weigh in on everything from a person’s job and family relationships to their appearance and attitude. As Tiger observes, the courts are “… far more concerned with how their [clients’] sickness manifests itself, namely in ‘antisocial,’ not necessarily criminal behavior” (p. 92). As such, drug courts run afoul of larger concerns regarding net widening and do so on shaky scientific grounds. Indeed, although the disease concept is ubiquitous in American culture, it enjoys little in the way of scientific support. Its power is in its familiarity, not in its actual credibility as a theory of why people use and abuse drugs.
Tiger’s study is motivated by these concerns, as well as by a lack of independent research about the effectiveness of the courts. The prevailing assumption, often reported in the news media, that drug courts “work” is a product of evaluation studies that are conducted by the courts themselves. In these studies, a client’s relapse to drugs simply represents a manifestation of their addiction, not a failure of the court. It is important to note that in this book, Tiger is not offering an evaluation study of the effectiveness of courts. Rather, her goal is analytically broader. She wants to understand how the courts reconcile a therapeutic model with a punitive one, and how addiction ideology contributes to this. To do so, she adopts a sociology of knowledge approach and gathers a wide array of archival data from advocacy organizations, government agencies, and research centers affiliated with the drug court movement. She supplements this by interviewing key players in the field.
Among her key findings is that there is nothing terribly new or radical in the drug court movement. She argues that drug courts mimic Progressive Era penal reforms, in that they use the medical model to justify the expansion of the criminal justice system and that they inevitably default to coercion as a way of dealing with social problems like drug abuse, crime, and poverty. Addiction ideology plays a crucial role in facilitating the courts’ reliance on coercion as a primary mechanism of social control. The disease model simultaneously constructs drug users as both bad and sick. In this framework, sick people should not be punished for their disease; however, the nature of addiction is such that its sufferers often refuse treatment. Subsequently, force becomes a necessary mechanism for getting (and keeping) sick people into the treatment they are presumed to need.
This leads to her second finding, that drug courts do not represent an alternative to mass incarceration but rather a complement to it. Drug courts merely extend the reach of the penal state as it endeavors to manage the “unruly” classes. Finally, Tiger argues that what is particularly pernicious about addiction ideology is that it obscures the race and class politics that undergird the entire enterprise of the drug war and the penal state. Framing social problems as the products of a disease obscures how changes in drug laws and political decisions about how and where to deploy police resources contribute to both the explosion of the prison population and to racial bias and inequality.
Taken together, these findings lead Tiger to rightly conclude that treatment, at least as it exists in the present sense, is not the answer to the drug problem. She persuasively argues for a radical reorientation in how we conceptualize substances, use (and abuse), and sobriety. Legalization is a first step in this direction; another one is a harm reduction model that acknowledges that drug use (and abuse) is inevitable. The goal is not zero tolerance but, rather, to limit the harms associated with drugs, including the harm that is the criminal justice system.