Treat All Addicts Rather Than Imprison Them?
What about the new New York state court mandate to treat all addicts rather than imprison them?
Dear Dr. Peele,
Thank you for your web site. You validated for me a lot of thoughts and opinions I developed when someone close to me was coerced into one of these 12-step treatment programs.
This past week New York has announced an expansion of treatment programs for “addicts” instead of jail. Can you explain to me how they can do this in a state that has deemed it unconstitutional to coerce people into 12 step/AA indoctrination programs? I haven’t seen anything mentioned about choice of treatment. I see this as opening the door for more coercion, overdiagnosis and overtreatment. I find the statement that it will save taxpayer dollars highly suspect since I’ve seen what these treatment centers cost.
As I and my co-authors Charles Bufe and Archie Brodsky detail in our book, “Resisting 12-Step Coercion,” the courts’ involvement in probation et al. around addiction treatment-addictive status has become a massive enterprise. In many states, large chunks of not only DUIs, but a range of other misdemeanors, family matters, and even felonies are linked to — or handed off entirely to treatment affiliates of the justice system. Typically, probationers, parolees, disputants in family court (divorce/custody cases, state placements/supervision of children) are entailed to attend treatment and/or AA and to abstain from alcohol/drugs. As an attorney in Morris County, I participate frequently in such assignments.
There is a body of law (established up to the Federal circuit (appellate) courts and several state Supreme Courts (most notably New York)) that probationers and inmates cannot be compelled to attend 12-step based programs without being offered an opportunity to attend a non-“spiritual” (read “religious”) alternative, since mandatory 12-step attendance violates the “Establishment Clause” (separation of church and state) of the 1st Amendment. Although at this point this interpretation of the AA/12-step program is virtually uncontested in the law, its impact is minimal. Inmates et al. make poor plaintiffs, and in the time it takes to resolve their cases they are likely to be out the prison door.
A related issue concerns the diagnosis and decision that a person needs treatment of any kind (particularly in light of informed consent standards supposedly governing medical practitioners, but which are nonexistent in addiction treatment). Many are stuck in this trap due to licensing (e.g., “attend this program or lose your pilot’s or medical license”) — as a group, these people are pissed off, but highly unlikely to legally challenge the system on which their livelihoods are based. A notable exception was the successful suit by a Florida physician named Masters of G. Douglas Talbott, founder and past president of ASAM, and his associates for compelling Masters into the Talbott Recovery Program. Another past president of ASAM (Anne Geller) testified against Masters’ diagnosis and treatment, and a jury awarded Masters $1 million + damages (punitive damages were settled by Talbott’s attorneys before the jury turned to that issue) based on fraud, false imprisonment, and malpractice (Talbott is still happily ensconced on the Board of ASAM, and I can find no sign that ASAM as a group has discussed the issue in terms either of Talbott’s suitability as an addiction therapist or practice guidelines for ASAM members).
This issue is an extremely active one, since many people involved in drug policy reform (which, as a fellow of the Lindesmith Center, includes me) seek to replace criminal sanctions with treatment. From where I sit, however, the legal and treatment systems are overly intertwined already. But there is room for expansion. Last week, the chief judge of New York State, Judith Kaye, ordered treatment for all “addicted” misdemeanants: “New York will become the first state to require that nearly all nonviolent criminals who are drug addicts be offered treatment instead of jail time, in an effort to sharply reduce both the number of repeat offenders clogging the courts and the population in the state’s prisons and jails.” (K.E. Finkelstein, “New York to Offer Most Addicts Treatment Instead of Jail Terms,” NY Times, June 23, 2000.)
The Times quickly ran a follow-up article which pointed out a range of difficulties with this plan — including (a) since most felonious drug offenders are covered by the notoriously stern Rockefeller drug laws mandating stiff prison sentences, this administrative regulation will apply only to low-level offenders, virtually all of whom walk currently, and who are thus not inclined to enter treatment programs, (2) Judge Kaye envisions two-year treatment stints for these addicts (!), while claiming their greatly reduced recidivism will save the state tremendous amounts of money — a claim seasoned observers take with a grain of salt — certainly when regarding up front costs. (J. Purnick, “Drug Plan is Clear, in Theory,” NY Times, June 26, 2000)
To these problems, I would add several others. For the chief jurist on a court that has decided the state may not compel probationers into 12-step programs, Judge Kaye seems unaware of what is mainly available out there for drug and alcohol offenders, and did not discuss this as an issue in her mandate. Furthermore, most of the people who will be swept up by such policies will be arrested on drug possession cases and other minor violations where a diagnosis of addiction (which may always be tricky) is definitively counterindicated.
We are entering a brave new world! The only consolation — pretty soon, no more addiction!