Enforcing Freedom: The Insidious Nature of Drug Courts

    The fact that drug courts often widen the [criminal justice] net is hardly a surprise given that the initial impetus for their development was to create a more efficient mechanism to handle the large numbers of new, low-level cases generated by the drug war. 

    Increasing judicial capacity was thus one of the key purposes of drug courts, removing something of an institutional bottleneck within the expanded War on Drugs. With constant calls to be tough on crime, the rest of the criminal justice system can readily expand into the space they create. 

    Drug treatment courts thus join a long line of intermediate sanctions that have worked to amplify criminal justice control.

    But even if drug courts do not mark a complete break with the earlier focus on punishment, it is nevertheless clear that a significant shift has occurred, one with much greater emphasis upon what the legal scholar David Wexler has favorably termed “therapeutic jurisprudence,” an approach to law that seeks to maximize the reparative and healing benefits of the legal system.

    No longer a site primarily devoted to the establishment of truth […], the court now seeks to learn and deploy pragmatic psychic truths in an effort to rehabilitate.

    Drug courts thereby significantly redefine the traditional judicial model, with judges no longer acting as seemingly impartial arbiters in a contested process of truth-seeking and instead engaging intimately with program enrollees. No longer a site primarily devoted to the establishment of truth beyond a reasonable doubt, nor a location for the purportedly neutral application of procedural rules, the court now seeks to learn and deploy pragmatic psychic truths in an effort to rehabilitate.

    Equally important, drug courts supervise participants while coercing them to attend drug treatment programs and to receive whatever vocational training and educational services the court deems necessary.

    In this regard, drug courts can perhaps best be said to act as a form of “judicial probation,” a site where judges closely monitor those who have already pleaded guilty and ensure that they undergo what the court understands as suitable forms of discipline, training and self-development.

    In pioneering this mode of therapeutic jurisprudence, drug courts have acted as forerunners for a whole panoply of problem-solving courts—specialty courts focusing on a range of issues including mental illness, homelessness, domestic violence, sex work and even truancy—that no longer work to ascertain truth but which instead use the threat of imprisonment to force aid upon those it governs.

     

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    The focus on occupational concerns extends into the imposition of normative expectations regarding work. After quitting a job, for example, the judge told one 18-year-old Latino man, “You quit a job because you couldn’t get a day off. That’s not how we do things in the real world. You have one month to get another job or it’s a year in jail.”

    Another Latino man of approximately 30 years was required to turn in slips indicating the jobs for which he had applied; having turned in two scribbled notes, the judge said, “This is not professional. You need a book.”

    Upon finding out that the man had in fact turned down a job he had been offered, the judge issued an ultimatum, telling him that, “You should take the job if it is offered,” and that he had one month to find a job or be incarcerated.

    The drug court model follows earlier models of criminal rehabilitation in insisting on formal labor as a criterion for release from criminal justice sanction.

    Much of the work that the court does thus involves the enforcement of work-oriented norms (whether it be involved in finding work, being able to provide documentation that certifies one’s level of self-organization, continuing at a job or in relation to obtaining a GED). This is indeed the most sustained focus that the court brings to its participants, taking up as much or more of the court’s time than issues arising from ongoing drug use and positive drug tests.

    While utilizing a rhetoric that emphasizes “addiction,” the drug court model very much follows earlier models of criminal rehabilitation in insisting on formal labor as a criterion for release from criminal justice sanction.

    While advocates for drug courts often present such programs as compassionate responses to drug use, they also work to medicalize a longstanding criminal justice focus: Work now becomes a therapeutic need in the treatment of addiction.

    At the same time, the structure of the drug court significantly repositions work within the overall disciplinary scheme, introducing intensive probationary surveillance and a system of rapid sanctions in a manner that brings much greater state control over the disproportionately nonwhite and poor populations that are targeted through the War on Drugs. 

     


     

    Excerpted from Enforcing Freedom: Drug Courts, Therapeutic Communities, and the Intimacies of the State by Kerwin Kaye. Copyright (c) 2020 Columbia University Press.  Used by arrangement with the Publisher. All rights reserved.

    The first section of this article is excerpted from the chapter “Policing Addiction in a New Era of Therapeutic Jurisprudence.” The second section is excerpted from the chapter “Drug Court Paternalism and the Management of Threat.”

    Photo by John T on Unsplash.

    • Kerwin Kaye

      Kerwin Kaye is associate professor of sociology, American studies, and feminist, gender and sexuality studies at Wesleyan University.

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