Meet a Heavyweight Critic of Drug Courts and Therapeutic Communities

    Dr. Kerwin Kaye is associate professor of Sociology, Feminist, Gender, Sexuality Studies and American Studies at Wesleyn University in Connecticut. Living in New York City, he teaches courses on Mental Illness and Society; Pleasure and Power; and Drugs, Culture and Society. But don’t let these impressive intersectional credentials make you think he’s an armchair academic who never steps outside the university classroom into the real world.

    Kaye’s ethnographic work finds him inside drug treatment programs, talking to clients and staff, and out on the streets with sex workers. As an empathic person, he fits right in. The son of two social workers, he cares deeply about people who use drugs.

    “I’m just not interested in tough approaches to drug use,” he said during our interview. “I’d rather have the problems that come with a focus on harm reduction, on offering support and social services and housingthe things people need to surviverather than the problems that we get with an intensive focus on criminal justice.”

    Kaye plunges us into the dysfunctional world of a therapeutic community and unpacks how this modality works.

    His new bookEnforcing Freedom: Drug Courts, Therapeutic Communities and the Intimacies of the State (Columbia University Press), from which Filter recently excerptedis a much-needed critique of drug courts and the treatment programs in which people are forced to participate. It’s a primer on how drug courts work, and Kaye examines how they both help and harm. Little escapes his critical eyefrom how drug-court judges berate people who are failing in treatment to the joyous, tearful celebrations when a person “graduates.” And then Kaye plunges us into the dysfunctional world of a therapeutic community and unpacks how this modality works.

    Chuck Dederich, the founder of Synanon, created the first therapeutic community (TC) in 1958. TCs are residential programs where people live for months or even years. They understand drug use as a disorder of the whole person. The primary goal is to break down a person’s negative patterns of behavior, thinking and feeling that led to their drug use.

    To accomplish this, confrontational group therapy, where participants are attacked and humiliated, is often used. Although some of the most dehumanizing and harsh aspects of TCs have been eliminated, critics argue that participants in these programs are still traumatized and subjected to brainwashing techniques.

    Kaye explained that his ethnographic work took place in one TC program. He spent about eight months going to the TC, visiting regularly at different times of day, from three-to-five times per week. As an observer, he was permitted to move freely between staff and resident areas. He was also able to accompany participants on their brief passes outside of the facility.

    My only quibble with Kaye’s book is that at times the writing is too academic for a lay audience, dense with jargon and reference to theorists. But that shouldn’t put readers off. Because Kaye’s trenchant analysis offers new and vital insights into our understanding of the insidious ways that the criminal justice system oppresses people who use drugs.

     

    Helen Redmond: What motivated you to write this book?

    Kerwin Kaye: I’ve done work around male street prostitution. In that work, I saw how a lot of street life is organized around drug use and the social networks that form around drug use. I got interested in the social control that happens around street life. And that led to my interest in drug courts, criminal justice reform and the modes of drug treatment.

     

    Can you summarize what drug courts are, and who the major “players” are?

     Drug courts make a proposal to people that you can do supervised treatment rather than go to jail or prison. Which sounds good: It has an appeal to people who are liberal or progressive. The players in the court [include] the judge, but the role of the judge is significantly transformed. It’s not a court that determines innocence or guilt. It’s a court that supervises treatment, usually after people have pled guilty.

    Then there is the district attorney’s office, that has to agree that this is a program that they are willing to consent toand that gives the DA’s office enormous power in shaping where people are assigned as part of their treatment.

    There are also defense attorneys who have a role in the court, even though people have pled guilty. They stand up for their clients’ rights. And there is also a case management office; they work with the client to make sure they are following the rules, and they do drug testing.

    I want to emphasize the power of the DA’s office.

    Regular drug testing is part of all drug courts. Since people have already pled guilty and they are supervising the treatment, rather than an oppositional model they have sessions prior to meeting with people in courtwhere all of “players” meet and collectively decide upon what is going to happen to the person based on how they are doing in their treatment program.

    In this meeting DAs have a disproportionate amount of say, although the judge is ultimately the one who decides. I want to emphasize the power of the DA’s office. If the judge disagrees too frequently with the DA, they might withdraw their consent to participate in the entire program. They can do that. So the judge is formally at the center of the power and the decision-making but they have a limited capacity to oppose the recommendations of the DA. A “guesstimation” is that 80 percent of the time the judge is going to side with the DA. 

     

    What are some of the other major problems with drug courts?

    The biggest problem I have with drug courts is that they are structured in a way that you have to plead guilty in order to participateand when you do that, you lose your ability to plea bargain. You have to plead guilty to the most serious charges that the DA’s office levels against you. 

    And half the people fail at drug treatment. So half the people who end up in drug court get no credit for participating, and now they are going to start serving a sentence that is even longer than it would have been if they had been able to plea bargain initially. The half that fail are disproportionately black and poor, so it’s actually intensifying the War on Drugs. Drug courts are making things worse for this group of people. 

    If you are part of the half that graduates from drug court, it’s a pretty good deal. The charges are completely blocked out, so they can’t be seen. And drug courts offer occupational training, help getting a GED,  and help getting Medicaid. So some real services are offered.

    But the structure of the drug court is changing the structure of criminal justice. It’s taking people and spending a longer time with them and putting them under intense surveillance and offering them some services, and at the end, it’s seeing who succeeds. And the primary criterion for success is if the person gets a job.  

     

    Talk about how work is central to graduating from drug court. 

    You can see why the people who fail at drug court are mainly black and poor because the criterion is not just getting off drugsand the case managers were very insistent about thisit’s about treating what they call a “drugs lifestyle.” And by the “drugs lifestyle” they don’t mean people on Wall Street who use drugs. It’s the approaches to life that people who are spending a lot of time on the street hustling to survive that the case managers were pathologizing.

    What they would refer to as an inability to delay gratification or to make long-term plans, well, those things don’t make any sense if you are hustling on the streets.

    Treatment, as I saw it, consists of preparing people for low-wage labor, for doing tasks that are boring and tedious, for following orders. Doing what you are told at work is explicitly part of the treatment program. Not speaking back when spoken to harshlywhich again, is very adaptive on the street, to stand up for yourself and not be taken advantage of. Letting someone shout at and humiliate you, that is part of treatment. If someone does speak back, they might be told: “If your boss speaks down to you, are you going to yell at them? You’ll lose your job.”

    People are told this is what you might have to put up with as part of recovery. But for people who are looking to get off the street and out of that life, it provides a different narrative as to why they’ve had a hard time succeeding within the formal labor sector. And [it implies] that the problem all along was drugs, it didn’t have anything to do with racism or the degraded nature of the work. 

     

    Why did you decide to include chapters on therapeutic communities? 

    The nature of drug court has much more to do with the treatment program than with the court itself. The court is an institutional nexus that supervises treatment, but people’s day-to-day experience has much more to do with treatment.

    Many people are spending months or more than a year in a residential treatment center, 24/7. Or they are going to an outpatient facility five times a week. What happens in court has to do with how they are engaging in drug treatment much more than their very limited, say five-minute, interaction with the judge. 

     

    What did you see in the therapeutic communities (TCs)? 

    Apparently, to get better from drug addiction you really have to be yelled at quite a bit. There is a lot of yelling and humiliation. That is built into the program. If you break a rule, you can be brought up in front of the entire group and humiliated.

    They frame it as driving home the realities of drug use and the drugs lifestyle. Part of the so-called drugs lifestyle is breaking rules. For example, there was a couple having a sexual affair and they were both married to other people. Sex isn’t allowed in the program. The woman had been writing explicitly sexual love letters to the man.

    At the program they used a lot of gendered forms of humiliation to enforce rules.

    Staff found out. They pulled her up in front of the group, about 80 people, and they read the letters out loud. They slut-shamed her. What exactly is the relationship between adultery and drug addiction? 

    The connection is, “You broke the rules and there are consequences.”

    Another example is, a man was loaning out small amounts of money to people in the program, which is not allowed. Staff noticed he’d been wearing the same clothes since he arrived at the program. They brought him up in front of the group and piled on him, saying, “You present yourself as a big-time drug dealer, but you wear the same clothes every day. How do you wash your clothes? Don’t they smell?”

    They really humiliated him. At the program they used a lot of gendered forms of humiliation to enforce rules.

    The other thing I saw that is key to how TCs operate is the mutual surveillance that people are required to engage inand the collective punishments that come when people don’t. People are required to inform on one another if rules are broken. It’s explicitly designed to break apart forms of social solidarity that are based on resistance to the police and authorities. The staff would argue that this social solidarity is a form of the drug lifestyle that is negative and needs to be broken down.      

    The staff went into the rooms and they just destroyed them. It wasn’t in search of contraband, it was just to punish.

    What ends up happening is people distance themselves from everyone in the program. They are like, “I don’t want to know anything that is going on.” It puts them at risk. When people don’t enforce the norms sufficiently against one another, the staff will inflict collective punishments.

    After one incident, everyone was put on house restriction. Anyone who had advanced to a point where they got passes to go outside for a few hours or visits with family members was put on lockdown. And no phone calls. People are supposed to keep their rooms immaculate, and the staff went into the rooms and they just destroyed them. They overturned mattresses, took everything out of dresser drawers and threw them in the middle of the room. It wasn’t in search of contraband, it was just to punish. I have pictures of this in the book.

    So after an extended group session where people were made to first sit in silence for several hours, they brought up a series of people to humiliate. The session was about five hours in total. After midnight, people were told to go back to their rooms and they discovered that their rooms had been totally trashed. A staff member who was a social worker, an MSW, said he was a little embarrassed about what they did. But his explanation was that when he first got to the program, he thought it was bad, but he now saw the therapeutic value in doing it.   

     

    Did you ever intervene and say, “This is ethically wrong, this is abuse?”

    No. I felt it was more important to learn and ask questions and then raise any challenges in a larger way later. With that particular incident, I briefly participated, but I felt so uncomfortable I could not continue. I thought I had to participate because I was with the staff. The director kindly saw how uncomfortable I was and said, “You don’t have to do this Kerwin.”

    I had conversations with people about how they conceptualized what was happening. Some staff see it as “tough love.” I guess I did not see how anything I could say, like “This is abuse,” “This is an outrage” was really going to make a big difference. It was more important to expose the larger structure than to take a strong stand. 

     

    In your book, it’s not clear where you stand on the continued use of therapeutic communities like the one you observed. I’m for closing them.

    In the last chapter I lay out where I come down on this question. We should get criminal justice out of drug issues. We should be taking a public health approach, rooted in harm reduction and in dignity and supportnot coercion.

    The thing that held me in check was that half the people in the program say they found benefits. I had to think a lot about why that was, and how that challenged my own feelings. 

    My ultimate position is not to close them down but to never mandate them. I’m willing to accept that some people might find these programs beneficial, and to allow people to use them on a voluntary basis. 

     

    How do drug courts view people being on methadone? 

    The federal government has been pushing drug courts to accept methadone and other medication-assisted treatment, but there is still a tremendous amount of resistance. In New York drug courts, they allow methadone at firstbut by the time you finish the program, you have to be completely off. 

    Methadone has a lot of problems in the way it is currently administered. For example, you can’t choose your own dose. Methadone needs to be opened up for more people and to let them have a say over their dose. Australia and New Zealand have had positive results with people choosing their own level of methadone.

    There are, however, some drug courts that are overly reliant on medication-assisted treatment. There are some drug courts that have given themselves the nickname “Vivitrol courts.” And if you are opioid-dependent, you pretty much have to agree to take Vivitrol if you want to participate in drug court. I think that is a problem also.   

       

    How has your book been received in the world of drug courts? 

    I gave some people I met in drug court free copies, and I said there are criticisms in the book. We talked about what some of them were, like having to plead guilty and how that led to longer prison sentences.

    I think the head administrator of the court was not very thrilled by my analysis.

    Some of the case managers said they could see that as a valid criticism. I think the head administrator of the court was not very thrilled by my analysis, but he listened and responded. I was unable to reach the staff at the TC; they had all moved on.

     

    Do you want to abolish drug courts?

    Ideally, yes. I’d like to abolish the entire focus on criminal justice as a means of dealing with drug problems.With drug courts and the criminal justice system, you’re making a deal with the devil. And when you deal with the devil, you really have to pay attention to the details and the fine print. And the fine print shows half the people are going to fail drug court.

    We, “the court,” are now going to have a lot more say over your intimate life because it’s therapy. We are going to decide who you live with, the clothes you wear. We are going to tell you which attitudes are appropriate and which are not. We, “the court,” will threaten and imprison you if you don’t act in very specific ways that are normative.

    You shouldn’t be punished for attempting to receive treatment for a drug issue. The current way drug courts are structured, you are very much penalized.  


    Top image via Columbia University Press.

    • Helen Redmond

      Helen is the senior editor of Filter. She has written about nicotine, mental health and drug policy for publications including Al Jazeera, AlterNet, Harper’s and The Influence. As an LCSW, she works with drug users in medical and community mental health settings. An expert on tobacco harm reduction, she provides training and consultation on mental health, nicotine use and THR, and in 2016 organized the first Tobacco Harm Reduction Conference in the US. Helen is also a documentary filmmaker.

    • Show Comments