By Regan Gibson, ACLR Featured Blogger
In her new book, Judging Addicts: Drug Courts and Coercion in the Justice System, sociologist Rebecca Tiger explores what she believes are the weaknesses of drug courts, a system where addicts are given the option to avoid traditional criminal prosecution and choose court-ordered drug treatment instead. Tiger challenges the view that drug courts, which operate on the philosophy that addicts are best served by coerced treatment rather than traditional incarceration, help to shift substance abuse from a criminal justice issue to a public health issue. She criticizes the now widely-accepted notion that drug addiction is an incurable disease characterized by inevitable relapse that can only be managed through institutional treatment and eventual abstinence. While her conclusion that a “harm reduction” approach is the best option for dealing with our nation’s drug problem is unlikely to take hold any time in the near future, the book does stimulate a critical analysis of the “success” of drug courts, and what they really mean in the larger context of the criminal justice system.
Drug courts were developed as an alternative to the incarceration of low-level drug offenders and seek to address the “underlying addiction many in the criminal justice system believe is the impetus for crime” through the traditional coercive power of the criminal system. The courts incorporate society’s current understanding of addiction as a chronic disease that is best addressed by treatment and eventual abstinence, rather than incarceration. Through a combination of “judicial supervision, treatment, drug testing, incentives, sanctions, and case management,” addicts are ushered through the process of becoming clean, sober, and productive members of society.
Of the drug courts’ many weaknesses and contradictions Tiger describes, the most striking from a legal perspective is the contrast between the perceived medicalization of the drug court system and the reality that gives criminal court judges more power than ever. Drug courts are premised on the idea that addiction is a disease that needs treatment, but doctors are rarely involved in drug court operations. Defendants are diagnosed as addicts by judges and drug court staff, and the staff prescribes the course of treatment. When addicts test positive for drug use, it is the judges who impose sanctions. When the addict is ready to “graduate,” the judge affirms their ability to function in society. The judges get to know the defendants and devise sanctions tailored to the defendant’s life. Where a traditional judge is focused on process, and assuring fairness in the adjudication of past acts, a drug court judge is focused on shaping the defendant’s future behavior. The goal is not sobriety, but to create a sober, law-abiding citizen. This concept of “recovery” brings into the courts' purview the defendant’s education, housing, employment and personal relationships and allows them to judge the defendant on behaviors that are legal but that the judge can claim are affected by addiction. For example, some drug courts require defendants to have a job or achieve a GED before they graduate, and if they fail to comply, they can be jailed on their original charge. Tiger interviewed drug court advocates who described judges discussing with addicts “who they’re dating, who they’re having sex with, how they’re eating, where they are living,” and other personal details. All of this delving into the defendant’s personal lives is done in the name of helping addicts “cure” themselves, but clearly raises questions about the role of the criminal justice system and whether a judge’s role is to ensure that justice is done or actively rehabilitate defendants.
Tiger’s position is not only that judges should not be exercising such immense power over drug court defendants, but that society should cure itself of it’s obsession with treatment and the need to alter what it perceives as undesirable behavior. She suggests a “harm reduction” approach wherein society accepts that drug use will never go away, and works to mitigate the harms of drug use as much as possible without requiring abstinence, forcing treatment, or coercing drug users in any way. Instead of focusing on sobriety, a harm reduction approach focuses on health and wellness, and gives support to users whether or not they want to stop using. Such an approach is clearly in stark contrast to both criminal and treatment-based systems. While it is unlikely that our society would achieve such a non-judgmental attitude towards behavior that has been for so long considered both deviant and criminal, the book illuminates perspectives that cause the reader to think critically about what kind of society they want to live in. Is it better to continue the traditional “War on Drugs” approach and treat addicts the same as other criminals? Should we continue on the drug court path that allows judges and court staff to make treatment decisions for defendants and decide what makes them a productive member of society? Should we truly adopt the disease model and prescribe truly medical treatment for addicts? Or should we take Tiger’s recommendations and accept drug use as part of our society and allow drug users to decide for themselves what is best for them? Perhaps Tiger’s approach is not the right one for the country, but in an era of rampant addiction and mass incarceration, it is certainly valuable to scrutinize the way society and the justice system interact with these most vulnerable individuals.