Gender, Psychology, and Justice: The Mental Health of Women and Girls in the Legal System - Linda Wolfe 2014
Women and Adult Drug Treatment Courts: Surveillance, Social Conformity, and the Exercise of Agency
Women and Girls in Various Justice Settings
Corinne C. Datchi
I used for nineteen years so, you know, I never learned to be honest until two years ago. . . . I’ve never succeeded or completed any probation or anything ever in my life. And when the judge’s seen I was begging for help, you know, that’s not the person that I really am, you know, I really want help. Even though I could have got help in prison, I didn’t want it back then. I’m a grown-up woman now. I am married. I have children. And I need to be at home with my children. And she’s seen that. . . . Drug court is like my last option of my life. To save my life. And that’s what it’s done.
—Chelsea, 38, African American, married with children, addiction to crack cocaine
Chelsea is among the 120,000 nonviolent substance-abusing offenders who are served annually by drug treatment courts (DTC) in the United States. DTCs are a criminal justice response to the problem of addiction and drug-related crimes. They provide an alternative to traditional adjudication as well as a solution to the overcrowding of jails and prisons with low-level drug offenders. The first DTC opened in Miami, Florida, in 1989, and in June 2014, the U.S. justice system counted 2,968 drug courts all over the nation (National Drug Court Resource Center 2014). DTCs are federally funded diversion programs for nonviolent drug offenders whose criminal behaviors primarily serve to support their addiction (Hora 2002). Prosecutors identify potential candidates and determine their eligibility for DTC (National Association of Drug Court Professionals 2004). Violent crime and drug sale are exclusion criteria. Participation is voluntary: Qualified defendants are given the option of enrolling in the DTC program for an average of eighteen months. In most jurisdictions, they must plead guilty to their current charges before they begin treatment in the community under the supervision of the court (National Association of Criminal Defense Lawyers 2009). If they comply and fulfill the requirements of the DTC program, their charges are dismissed; if they do not, they receive a prison sentence.
In the past decade, drug treatment courts have made the news headlines for giving addicts “a chance to straighten out” and “a free path” to a sober life outside prison (Eckholm 2008; Secret 2013). DTC judges and their team supervise drug offenders in the community: They hold defendants responsible for their criminal behaviors, and monitor their participation in substance-abuse treatment. Media images show compassionate judges shedding tears at a graduation ceremony and program participants thanking the court for saving them. As with Chelsea’s story above, they are evidence that the criminal justice system is taking a new approach to addiction and crime: Rehabilitation is now again a priority after three decades of a punitive and unforgiving war on drugs.
Drug treatment courts (DTCs) constitute a significant departure from criminal justice courts: First, they adopt a nonadversarial, collaborative approach to justice, where judges, prosecutors, defense counsels, law enforcement, and mental health practitioners form a therapeutic team (Mackinem and Higgins 2009). They emphasize problem solving, rehabilitation, and accountability; monitor the behaviors and treatment of program participants in regular team meetings and status hearings; and use a system of rewards and sanctions to increase drug offenders’ motivation for change (Berman 2009; Hora 2002; National Association of Criminal Defense Lawyers 2009). DTCs follow similar principles, yet vary in their implementation, routine practices, and type of services (Drug Policy Alliance 2011; National Association of Drug Court Professionals 2004). They operate within a theoretical framework that integrates the concepts of deterrence, therapeutic jurisprudence, and abstinence with the view that addiction is a disease of the brain (Brendel and Soulier 2009; Fentiman 2011). DTCs are designed to resolve the underlying causes of crime, shape pro-social attitudes and behaviors, compel drug offenders to enter and stay in treatment, and thus reduce recidivism and promote public safety. To accomplish these objectives, the role of the judge has been redefined from that of neutral facilitator of the adversarial justice process to team leader, service coordinator, and final authority in matters of treatment and legal interventions (Boldt 2009; Drug Policy Alliance 2011; Hora, Schma, and Rosenthal 1999). Informality has replaced professional distance in the courtroom; it also masks the judge’s increased power to use sanctions in order to promote compliance and transform drug offenders into law-abiding citizens. In DTCs, punishment and fear are mixed with caring, benevolence, and the desire to save lives (Tiger 2013).
This chapter offers a careful examination of the theories that inform the exercise of problem-solving justice in drug treatment courts (DTCs). It evaluates the impact of DTC interventions on women participants, using qualitative data collected for a study of family involvement in DTC programming. The aim of this study was to identify the legal and social processes that promoted and hindered the participation of family members in the treatment of DTC offenders. In the summer of 2012, thirty-two individuals were interviewed. Their stories were analyzed using the critical methodology developed by Phil Francis Carspecken (1996). The term “critical” refers to the theoretical assumptions that guided the research, in particular the idea that reality is the product of individuals’ agreement on what is and what is not true. The power that each individual holds determines the outcomes of such negotiations.
This chapter focuses on the stories of seven women who were arrested and prosecuted for nonviolent drug-related offenses (e.g., drunk driving, fraud, possession of illicit substances). These women, who faced possible prison penalties, pleaded guilty to their charges in order to enter the DTC program of their local community, located in a metropolitan area of the Midwest. They knew they would serve time in prison if they failed out of the program. At the time of their interviews, they had progressed to lower levels of court supervision and had remained sober for several months. Most of them expressed gratitude for the support of the DTC team and the opportunity to receive treatment in the community. Their stories illustrate the success of DTCs; yet, a careful reading reveals narratives of resistance that lie beneath the dominant discourse of “drug courts work” as promulgated by the National Association of Drug Court Professionals. These narratives show the need for more culturally and gender-sensitive interventions in the courtroom, and call for a redefinition of fairness in criminal justice. This chapter also considers how the intersection of race, gender, and class influences women’s experiences of DTC routine practices and of judges’ judicial autonomy. The aim is to advance understanding of the unique concerns of diverse DTC participants, in order to improve the problem-solving model of justice and the use of psychological theories in the courtroom.
The Theoretical Framework of Adult Drug Treatment Courts
There’s a great poster of an addict. This is a picture of an addict, half woman, half man, four different colors, like the physician thing here, and the plumber’s hat, or a construction hat, or hatch, or accountant thing. . . . I think what they have in common is they can’t stop drinking even though they got into a lot of legal trouble, drinking or drug. (Charles, 66, Caucasian, addiction specialist and DTC team member)
We’re all the same. We’re all there [in drug court] kind of for the same reasons. Yeah, we’re all different on the surface, but we’re all alcoholics and addicts. (Ruth, 40, Caucasian, single with children, addiction to opiates)
Drug treatment courts and problem-solving courts in general signal a return to the rehabilitative ideal of criminal justice and a concern for the therapeutic effects of legal interventions. The first DTCs were a pragmatic, atheoretical response to the overflow of drug cases in the criminal justice system. Today, they draw upon the principles of therapeutic jurisprudence, a field of inquiry that defines the law as a therapeutic agent (Boldt 2009; Hora 2002; Hora, Schma, and Rosenthal 1999; Winick 1997; Wiener et al. 2010).
In DTCs, the theories of two separate systems, psychology and criminal justice, are combined into hybrid practices designed to address the mental health needs as well as the criminogenic risks of drug offenders (Gonzales, Schofield, and Schmitt 2006; Volkow 2007). DTCs are therapeutic courts to the extent that they influence participants to accept treatment, facilitate access to appropriate social and psychological services, and target defendants’ motivation at all stages of the program. In theory, the judge and the team use strategies that increase offenders’ engagement with and responsibility for change (Hora 2002; Wiener et al. 2010). They recognize that enrollment in the DTC program is voluntary and refrain from exercising legal pressure. They tailor their interventions to the characteristics of the defendants, and use a system of immediate sanctions and incentives to promote desirable behaviors while in the program.
This system of reward and punishment is grounded in psychological theories of conditioning and operates to ensure compliance with the law (e.g., attending court hearings and twelve-step meetings, providing a valid urine sample). It also emphasizes defendants’ ability to learn new ways of being and to adopt a new lifestyle. Paradoxically, it coexists with the court’s definition of addiction as a chronic disease that reduces individuals’ ability to control their behaviors but, unlike with other diseases, does not free drug-using offenders from their legal obligations (Boldt 2009; Larkin, Wood, and Griffiths 2006; Reinarman 2005).
The opening quotations highlight the widespread assumption that drug users and alcoholics are all equal before the disease of addiction regardless of race, gender, age, or class. Although addicts represent all walks of life, their differences blend together into one figure—the human shape of addiction. The construction of addiction as a disease supports the view that drug-using offenders are impaired, act compulsively, and thus have lost control over their capacity to take actions (Foddy 2010). It justifies DTCs’ intervention in the everyday life of program participants and the provision of greater structure through mandated treatment, case management, twelve-step meetings, status hearings, and drug testing at least twice a week for the first several months. DTC participants may also have to submit weekly schedules of their activities and receive unplanned home visits from a field officer. These techniques of surveillance are specific ways DTCs participate in the growing reach of the criminal justice system into the private lives of drug offenders.
The framing of addiction as a disease of the brain and the use of conditioning techniques in DTC programs lay emphasis on the individual to the expense of relational and contextual factors. Yet, to understand human behaviors, it is critical to look at the natural environments in which they occur and to identify the social processes that account for problems related to substance use. Gender, race, and class, for example, have a prominent influence on individual experiences. For women in criminal justice settings, poverty, homelessness, lack of education, and health care, as well as cultural norms about motherhood and daily stressors associated with membership in a racial group, are issues that matter (Conner, Le Fauve, and Wallace 2009; Fentiman 2011).
The Relative Success of Drug Treatment Courts
Since their creation in the late 1980s, DTCs have attracted substantial interest from the political and scientific community at the national and local level. Their rapid expansion with the generous support of Congress is evidence that DTCs and other problem-solving courts are becoming a standard of justice that generates enthusiasm among correctional, court, and government officials. This enthusiasm is bolstered by empirical findings that DTC programs increase treatment retention and reduce general and drug-related recidivism by an average of 8 to 14 percent (Cosden et al. 2010; Franco 2010; Koetzle et al. 2015; Mackinem and Higgins 2009; Marlowe 2011; Mitchell et al. 2012). However, this interpretation of the evidence comes with caveats: Dropout rates (between 30 and 50 percent), inconsistent outcomes among different groups of DTC participants, variations in program implementation, the limitations of the studies, and the paucity of follow-up data make it difficult to draw firm conclusions about the effectiveness of DTCs in general (Gray and Saum 2005; NACDL 2009). A few studies have suggested that DTCs produced positive outcomes for those offenders who completed the program and had higher criminogenic risks, such as young adults with multiple past felonies who had not responded to community-based interventions (Marlowe 2011; Koetzle et al. 2015). In contrast, Larsen, Nylund-Gibson, and Cosden (2014) reported that high-risk individuals with a history of early involvement (before age sixteen) in criminal activities and substance use had a lower probability of successfully completing the drug court program. Female DTC participants may fare less well than men on social and mental health outcomes: Green and Rempel (2012) found that women were less likely to be employed, and more likely to report depressive symptoms eighteen months after the start of the program. Although initial evidence indicates that participant characteristics have a moderating influence on the outcomes of DTC programs, questions about who fails out of the program at what costs and who gets excluded still remain to be answered. In addition, there is still limited information about the differential effects of DTC procedures on diverse offenders. Judicial monitoring and the use of sanctions, in particular, are key DTC interventions that warrant more scrutiny in light of research showing that the severity of the first sanction may be linked to program completion (McRee and Drapela 2012).
Women’s Experiences of DTC Interventions: Monitoring and Sanctions
I knew that okay, every Wednesday I need to be in court at seven o’clock. I need to call every morning at five-thirty. I need to go to IOP and aftercare. Three meetings. . . . Mm. You know, I guess I just thought it was something that I would do and then carry on my activities of daily living and, you know, my life, which in a way I am. But in a way [the drug treatment court] comes first as far as me planning my day. . . . So it’s more invasive than I thought it would be. (Leonore, 43, Caucasian, married with child, problems with alcohol)
It was amazing to me how much they knew about each person. The more I went to those drug court sessions, I thought, “Boy, they know everything.” . . . I learned to live in a glass house through all this. (Matilda, 44, Caucasian, married with children, addiction to opiates)
The women interviewed during the summer of 2012 used words such as “invasive,” “a glass house,” and “their eyes on me all the time” to describe their experience of surveillance in the drug court. Their stories indicated the extent to which the court had infiltrated their daily lives and made their affiliation with the program—and thus their identity as DTC participants—a priority over already existing relationships with families and friends. They also highlighted how graduated sanctions, or the use of more severe penalties in response to repeated violations, constituted a mechanism through which the court exercised legal control over their personal lives, and echoed existing worries about the predominance of punishment and the misuse of jail for minor violations such as being late or being obstinate (Boldt 2009; Drug Policy Alliance 2011).
So I’ve been in jail so many times, but not because of drink[ing]. I’ve been in jail because my boyfriend is a drinker, and they don’t want me to be with him. . . . I said, “Judge, I didn’t put the money [in my boyfriend’s jail account].” She said, “If you say you didn’t put the money, I’m gonna put you back there [in jail].” I said, “Yes, I put the money.” Now let me lie to you. (Samira, 68, African, single, problems with alcohol)
In Samira’s case, jail time was used to deter her association with a drinker and, most likely, to minimize the risk factors that could contribute to her relapse. It also compelled her to take a one-down position in her interactions with the Caucasian female judge. This process was supported by the definition of addiction as a sickness that impaired her control and ability to make “rational” choices. It produced a relation of domination that strengthened the operations of gender, race, and class in the courtroom, and perpetuated a social system where lower-class Black women enjoy the least privilege and authority in the public and private spheres.
The women in the research project expressed their fear of sanctions and jail time in particular. Anxiety was a defining element of their experience in the courtroom: It resulted from their perception that punishment was inconsistent and unnecessary, and that jail (“the drunk tank”) was a stressful and humiliating event that did not seem to fit the crime—being late and lying.
To me, it is horrifying. . . . I sit there and I know that I’ve done nothing that I’m gonna be in trouble for. But it’s the people around you . . . they’re talking about their kids and what’s going on with their lives and work and this and that. And the next thing you know they’re going to jail. (Leonore, 43, Caucasian, married with children, problems with alcohol)
It was very scary. It was very scary. [I was afraid of] being yelled at, you know, being yelled at in front of all these people. Or being thrown in jail. I’ve seen people come in there, who lie. . . . I think it’s aggravating for [the judge] because she wants them to be honest. (Margaret, 27, Caucasian, married with children, addiction to heroin)
In fact the sanction for being late for checking in, . . . you spend the day in jail. . . . You sit in a room that is freezing cold . . . for about eight to ten hours. (Matilda, 44, Caucasian, married with children, addiction to opiates)
The drunk tank is cold, stinky. . . . The camera is there. The men can see you, whether you pee there or not. It’s cold. . . . You don’t have no clothes. . . . And you already talked, you’re honest. (Samira, 68, African, single, problems with alcohol)
For Lenore, Margaret, Matilda, and Samira, jail was shaming and unsafe, and detention was associated with deprivation and vulnerability. Matilda and Samira described handing over their clothes in exchange for a jumpsuit, being confined with others in a “freezing cold” room, and being placed under the close watch of the men behind the camera. Exposed, they had to turn inwards for some sense of privacy.
Women’s Experiences of Therapeutic Change in DTC: Autonomy and Agency
“Mandated treatment is effective,” says Nora Volkow, director of the National Institute on Drug Abuse (2006), and the criminal justice system offers the “extraordinary opportunity to intervene and start treating people that are addicted.” However, the women interviewed in 2012 indicated that forced participation in treatment was not synonymous with client engagement and therapeutic change, and when the use of judicial power was perceived as a threat to self-determination, DTC participants turned to various forms of resistance.
You can tell when people are at meetings and they’re on their phone, you know, they’re going outside to smoke when you only have to sit there an hour. . . . Either they don’t participate, you know, they don’t share, they always, always pass. They’re just there because they have to be. (Ruth, 40, Caucasian, single with children, addiction to opiates)
Being on the phone, going outside to smoke, and being silent in AA meetings were behaviors that defied the orders of the court but did not break the rule of compliance. They helped maintain a sense of independence in a context where individuals’ rights to privacy and decision making were diminished. It was not judicial power per se but participants’ ability to take ownership of the treatment process that determined their level of engagement. For Margaret, Chelsea, Samira, Lenore, and Ruth, motivation for change was a matter of personal choice rather than the outcome of external pressure and intimidation.
You know, it wasn’t about me going to prison, it was about me, if I was ready to accept this, be ready to do what they’re asking me to do, and learn to love [myself]. . . . (Chelsea, 38, African American, married with children, addiction to crack cocaine)
But the drug court help you when you feel yourself that these things are gonna help me. It’s like going to school, you know, you’re not going to school for a teacher. You’re going to school for yourself. (Samira, 68, African, single, problems with alcohol)
But for the most part the best [AA] meeting I go to is when I don’t have to have proof that I was there. That I can go on my own. Nobody’s making me go. I just go. (Lenore, 43, Caucasian, married with child, problems with alcohol)
Because if I don’t have AA or a program of recovery in my life, then drug court does nothing for me. . . . Drug court, I mean it’s there, but they can’t get inside your thinking and your heart like the programs do. (Ruth, 40, Caucasian, married with children, addiction to opiates)
Chelsea, Samira, Lenore, and Ruth highlighted the role of agency and autonomy with regard to their sobriety and progress in the drug treatment court. They did not view the court as an agent of change; however, they recognized that it provided boundaries that helped them focus on their sobriety.
Female Drug Offenders Have Unique Concerns: Implications for DTCs
To hear about a woman or a sister that’s a drug addict is one thing, but “Oh, she’s got kids, two girls.” You know. That’s even worse. That’s a lot worse. And it’s just like, you know, my brother saying, “Your kids weren’t even enough to stop.” . . . Jail is a lot of shame for me. And shame does nothing for me, except make me feel worse. (Matilda, 44, Caucasian, married with children, addiction to opiates)
Female drug offenders face a dual form of marginalization: Their drug use and criminal behaviors defy both the law and gender norms, and challenge women’s positioning in structures of social reproduction as well as the gendered organization of social relations (Campbell 2000). Women offenders who use substances have been portrayed as morally stained, irresponsible, sexually promiscuous, unfit, neglectful mothers who are preoccupied with self-gratification rather than their children’s welfare (Anderson 2008; Fentiman 2011; Gueta and Addad 2013; Kendall 2010; Larkin, Wood, and Griffiths 2006). They have also been defined as powerless victims of addiction who lack agency and are unable to negotiate their environment (Anderson 2008).
Stigma and shame compound the negative legal consequences that women incur when they disclose their substance use (e.g., loss of child custody) and form a barrier to seeking treatment. They also intensify guilt, self-blame and low self-esteem, increase the risk of relapse, and make it more difficult to discuss drug use publicly, for example, in the courtroom of a drug treatment court where denial is viewed as a form of deceit and punished with sanctions. For female defendants, however, denial may be a coping strategy as much as a sign of addictive or criminal thinking, and a mechanism for managing the negative emotions that result from their interactions with the social environment.
Shame, guilt, and marginalization are some of the concerns women experience while in DTC programs. Compared to men, they have medical and psychological problems as well as family responsibilities that distract them from the priorities of the DTC program and the injunction that they focus on their recovery. They face greater economic challenges, are less educated, and are more likely to be unemployed and homeless and to use harder drugs such as crack and heroin (Ferdinand, Edwards, and Madonia 2012; D’Angelo and Wolf 2002; Glaze and Maruschak 2008). They are also two to four times more likely to report symptoms of depression and anxiety (Gray and Saum 2005).
Addiction research has highlighted other key sex differences that are important for treatment and legal decisions in adult drug courts (Center for Substance Abuse Treatment 2009; Fentiman 2011; Chen 2009; Hartman, Johnson Listwan, and Koetzle Shaffer 2007; Harvard Medical School 2010). First, biological factors (e.g., metabolism, water and body fat ratio, hormonal changes) explain women’s greater vulnerability compared to men: Women may experience the rewarding effects of alcohol and drugs with more intensity, suffer more severe medical problems, find it more difficult to quit, develop symptoms of dependence more quickly, and be at a higher risk for relapse while in the DTC program.
In many cases, female addiction develops in the context of interpersonal and family violence where substance use functions as a strategy for coping with the psychological effects of past and/or present victimization (Covington 2008; Fentiman 2011; Chen 2009; Waldrop 2009). Women’s exposure to sexual, physical, and emotional abuse results in lower feelings of safety and control over their body and their environment, and undermines their sense of agency. Boyfriends, partners, or spouses who use substances have a major influence on women’s initiation to drugs and alcohol (Center for Substance Abuse Treatment 2009). Some women perceive substance use as a bonding activity that sustains their intimate relationship; they also experience relational conflict as a stressor and relapse trigger.
The psychological profile of women with addiction has important implications for therapeutic interventions in justice settings and drug treatment courts in particular. First, it is essential to underscore the link between trauma and addiction. Trauma is related to relapse in women but not in men (Heffner, Blom, and Anthenelli 2011). When drug courts emphasize abstinence and recovery as a treatment priority, they neglect women’s unique need to address the effects of violence before they can imagine life without alcohol and drugs. When the treatment team uses jail time as a response to relapse, they also fail to consider whether this sanction may exacerbate women’s trauma-related symptoms, including helplessness, self-blame, guilt, depression, and anxiety, and thus complicate women’s progress towards sobriety. Jail weakens any sense of safety and power women may have gained during treatment. It may reduce trust and make it more difficulty to comply with the court’s expectations for honesty and transparency. For female participants with a history of abuse, incarceration reinforces the belief that the person does not have control over herself, her body, and her environment. It reproduces the processes of disempowerment that occur in abusive relationships, and makes it less likely that women will address their trauma while in the DTC program. If addiction is not a choice and if substance use affects brain processes involved in the control of behaviors (Home Box Office 2007), then the threat and fear of incarceration will not prevent addicts from pursuing their drug of choice, even if they do not want to use. However, it may have adverse consequences on the vast majority of female DTC participants who have a history of interpersonal violence and sexual trauma in particular.
Because incarceration is usually associated with criminal behaviors, it is a sign of deviance that supports the perception of substance-using women as unfit mothers. For female defendants involved in the child welfare system, jail time may pose a threat to their parental rights and place them further at risk of developing psychological problems that will undermine their recovery. Detention is also a significant disruption in the defendants’ everyday life. It may result in loss of employment and income, limit the participant’s ability to pay court fees, and therefore delay graduation from the program. This is an important concern given the wage gap between men and women in the United States (See chapter 9 in this book). The use of jail time may exacerbate already-existing gender disparities in income and thus further reduce women’s ability to meet the requirements of the drug court program.
The Intersection of Gender, Class, and Race: Implications for DTCs
The focus of DTC programs on individual recovery, abstinence, fear, and deterrence conflicts with the multidimensional needs of substance-using women. In some cases, it may perpetuate the cycle of drug-using and law-breaking behaviors, as abstinence intensifies psychological distress, which in turn increases the likelihood of relapse for female offenders who use drugs and alcohol to self-medicate psychiatric symptoms. Trauma, relationships, and family roles are critical factors that may explain differences in outcomes between men and women. Likewise, considerations of race and class are critical to understanding the effects of DTC programs on diverse women.
Because African American women have the lowest retention rates in substance abuse treatment (Davis and Ancis 2012), and are three times as likely as White women to serve time behind bars for drug offenses (ACLU 2005, 2006; Glaze 2011; Mauer 2013), their culturally specific concerns warrant further consideration and offer an opportunity to highlight the intersection of class, race, and gender as relates to addiction and crime. Racism and sexism create persistent barriers to economic and social opportunities, perpetuate the lower status of African American women, and affect their well-being in ways that increase their vulnerability to substance use. Current research suggests that the stress associated with experiences of racial oppression has a direct impact on substance use; yet, the effects of racism are moderated by the strength of women’s identification with and participation in African American culture (Stevens-Watkins et al. 2012). When African American women engage in the cultural practices of their racial community and connect with family and friends, they are better able to cope with racial aggressions and are at lower risk for drug use. Research also highlights the protective role of religion and spirituality, the link between feelings of powerlessness and experiences of racism, and the positive effects of trust, cultural sensitivity, and egalitarianism on treatment retention (Conner et al. 2009; Curtis-Boles and Jenkins-Monro 2000; Davis and Ancis 2012).
This knowledge may help explain why African American women in ten Missouri drug courts were more likely than all other groups to terminate early (Dannerbeck, Sundet, and Lloyd 2002). According to the National Association of Drug Court Professionals (2011), addiction to crack cocaine and lower socioeconomic status explained racial disparities in the study. This interpretation focuses on individual characteristics and does not recognize the importance of systemic processes in and outside of the courtroom. To enhance treatment outcomes, it is critical to integrate considerations of gender, class, and race. For example, it is possible that the demands of the DTC programs increased the stress associated with racial and gender oppression. Historically, African American women have been denied equal access to economic, political, and social resources; they have fewer opportunities for employment, which puts them at a disadvantage compared to their peers in DTC programs. Emphasis on individual recovery through regular attendance at case-management and twelve-step meetings, counseling sessions, and status hearings may represent a financial burden and limit their ability to engage in the activities of their racial community, to heal their relationships with family and friends, and to strengthen their racial identity in order to manage the effects of oppression. In their interactions with law officials and treatment providers, African American women are most likely exposed to racial and gender micro-aggressions, intentional or not, that reduce their chances of success (Nadal et al. 2014). These micro-aggressions shape their perception of the court as insensitive and untrustworthy, which in turn creates difficulties for treatment compliance and retention. Finally, ongoing monitoring and sanctions may increase their feelings of powerlessness and lead to avoidant behaviors in a context where active coping may result in more punishment (Stevens-Watkins et al. 2012). As a consequence, African American women may disengage from the DTC program, receive more sanctions, experience more stress, and be at higher risk for relapse and dropout.
Recommendations for Culturally and Gender-Responsive Justice
Cultural and gender responsiveness in adult drug treatment courts requires awareness of human differences and the way related social processes influence mental health and help-seeking behaviors as well as criminal justice practices (American Psychological Association 2007). It depends on the court’s knowledge of the specific social, economic, and psychological needs of diverse populations and calls for appropriate program adaptations. Substance-using women in the criminal justice system face barriers that are unique to their social positioning: The majority are members of a racial/ethnic minority and are responsible for minor children; they are undereducated and have fewer job skills; they also have a history of victimization and high rates of medical and psychological problems (Bloom, Owen, and Covington 2002; Ney, Ramirez, and Van Dieten 2012). Their circumstances have important implications for the administration of the law in adult drug treatment courts.
Below are recommendations designed to promote the integration of psychological knowledge into legal practice and to enhance the cultural and gender responsiveness of DTC programs. These recommendations follow the American Psychological Association’s Guidelines for Psychological Practice with Girls and Women (2007). In particular, they offer strategies to increase awareness of gender socialization and discrimination as they relate to mental health (APA Guideline numbers 1 and 3), to integrate information about human differences into DTC practices (APA Guideline number 2), and to support the use of gender- and culturally affirming interventions in adult drug treatment courts (APA Guideline number 4).
Recommendation # 1: Educate the DTC team about women’s issues and integrate considerations of gender and race in treatment decisions.
Judges and staff should tailor their motivational strategies to address both addiction and trauma among women in adult drug treatment courts (Center for Substance Abuse Treatment 2005). Initial assessment of participants’ risk factors should include questions about past and current abuse, trauma symptoms, and triggers. Survivors of interpersonal violence are sensitive to conditions that remind them of traumatic events, including tone of voice, body posture, and confrontational techniques. The court should adjust interventions to minimize trauma triggers and consider the need for more treatment rather than more punishment in response to relapse. Decisions about judicial sanctions and jail time in particular should take into account the participants’ clinical profile, as detention may increase the risk of relapse among women with a history of abuse (Covington 2008). DTC staff should strive to create a supportive environment where women with trauma symptoms feel safe. If possible, they should minimize the use of punitive, shaming, and intrusive interventions. Women’s specific concerns call for the development of new monitoring and behavior-management strategies. While this may pose a significant challenge for judicial settings that are primarily designed to handle male offenders, the tailored approach of DTCs creates conditions that are favorable to gender-responsive interventions.
Gender responsiveness is contingent upon the team’s awareness that women’s issues limit their ability to engage in treatment. Women’s caregiving responsibilities are a critical factor as relates to treatment outcomes: Substance-using mothers fare better when they are able to participate in programming with their children; they are more likely to remain in treatment and maintain sobriety (Center for Substance Abuse Treatment 2009). Yet, very few facilities offer this opportunity: In 2003, 4 percent of residential programs had the capacity to serve mothers and their children, and 8 percent provided childcare services. When childcare is not available, mothers who have custody of their children are more likely to drop out of treatment (Brendel and Soulier 2009). Parenting is also a major stressor that complicates the recovery process (D’Angelo and Wolf 2002). For example, child and adolescent externalizing behaviors associated with parental substance abuse increase the caregiving burden. Women’s restricted income exacerbates these family difficulties and is associated with a pattern of no-show or tardiness in therapy. These issues should inform the court’s understanding of women’s behaviors: Noncompliance may be the result of practical difficulties as much as criminal and addictive thinking. Appropriate responses to these problems include parenting classes, family therapy, and assistance with childcare and transportation.
Practical barriers, victimization, and higher rates of mental and medical disorders increase women’s vulnerability to relapse. Repeated drug and alcohol use may result in more severe sanctions, which in turn may increase participants’ burden and reduce their ability to meet program requirements, leading eventually to their termination and sentencing to prison. To avoid these iatrogenic outcomes, DTC judges and staff may consider alternatives to the model of abstinence. Medications are now available for the treatment of opiate and alcohol addiction; they can help DTC participants to manage the biological processes of relapse, early in the program, as they address the psychological and environmental factors that contribute to their substance-use disorder. Addiction medications offer an evidence-based strategy accepted by the National Institute on Drug Abuse but underutilized in justice settings (Volkow 2006). They have the potential to enhance DTC female participants’ chances of success.
Recommendation #2: Adopt an empowerment approach to the rehabilitation of female participants.
In general, substance-using women enter treatment with a diminished sense of self and a history of self-neglect (Covington 2002). Their recovery depends on their ability to attain higher levels of self-esteem and to regain a sense of control over their lives. Empowering interventions aim to promote women’s autonomy and agency. They help manage the effects of social inequalities and marginalization, and require the creation of an environment where women feel safe and respected, and where they can form meaningful connections with others.
In adult drug treatment courts, women’s interactions with judges and case managers are opportunities for growth-fostering and empathic relationships, provided these interactions do not reproduce women’s experiences of abuse and do offer a model of healthy relating based on reciprocal influence and trust (Bloom, Owen, and Covington 2002). Reciprocal influence and trust are characteristics of collaborative relationships. These are difficult yet not impossible in relations of power; they call for an empowerment approach to DTC procedures and for judges’ readiness to share power in the courtroom. Power sharing may take different forms:
· • Behavorial contracts between participants and the court. Similar to individualized plans in mental health services, these contracts would be discussed with all parties, and both the team and the participant would agree on their terms. They would specify which behaviors are unacceptable and how they will be sanctioned. They would be subject to change, and would replace discussions that happen behind closed doors, solely between the judge and the team (NACDL 2009). They would enable participants to assume greater responsibility in the court’s treatment process.
· • Participants’ role in making decisions. The Honorable Peggy Fulton Hora (2002) suggests that it is possible for judges to modify their position in the courtroom and to allow participants to select their own sanctions, in order to enhance the therapeutic effects of DTC practices: “When participants themselves propose the sanctions, they are more likely to comply with them, and not feel coerced by the system or the judge. Persons who propose their own punishment can’t help but think it’s fair” (1477). When participants play a role in making decisions, they have a voice in the legal process; they are more likely to experience interactional fairness and to comply with judicial orders.
· • Empathy and positive regard are important ingredients of therapeutic interactions. Judges communicate respect through nonverbal behaviors and their efforts to understand participants and explain their decisions. Their knowledge and consideration of gender and racial issues enhance their ability to deliver empathy and caring.
· • Emphasis on progress and rewards. When DTC judges distribute sanctions, they highlight individual errors and faults as well as their legal and social consequences. Their goal is to deter noncompliance among all participants in the DTC program. However, if public punishment prevails in the courtroom, and if it is perceived as unfair, it may be less successful in producing long-term positive change than the use of rewards. To date, there has been much debate, but little evidence, about the outcomes of graduated sanctions and jail time in particular (Marlowe 2012; Boldt 2009; McRee and Drapela 2012). Until research answers questions about the prevalence and effectiveness of punishment compared to rewards, it is important to consider the value of an empowerment approach to DTC interventions, where judges emphasize participants’ strengths and reward progress in ways that increase women’s self-esteem and self-efficacy.
In general, female offenders pose lower risks to public safety than men: They tend to engage in nonviolent criminal activities that involve drugs and property and that are driven by poverty and addiction (Bloom, Owen, and Covington 2002). These gender differences justify the adoption of an empowerment approach to justice interventions. Collaborative decision making, transparency, empathy, positive regard, and positive reinforcement promote agency, foster a sense of safety, and constitute a model of relating that values women’s voices and experiences. They have the potential to enhance the outcomes of nonviolent female drug offenders in adult drug treatment courts.
Recommendation #3: Recognize the significance of relationships in women’s lives, and adopt a relational approach to judicial interventions in and out of the courtroom.
Psychological research has shown that belongingness and connectedness are critical to women’s identity development, and that the quality of women’s relationships with others has an impact on their self-esteem and well-being (Covington 2002; Frey 2013). Relationships also play a major role in women’s initiation of substance use and introduction to a criminal lifestyle (Bloom, Owen, and Covington 2002; Covington, 2002, 2008; Ney et al. 2012). In general, women engage in antisocial behaviors to provide for their children or to protect their connection with a significant other. Effective intervention programs take into consideration the relational pathways that lead to women’s involvement in the criminal justice system (SAMHSA 2011a). They translate current knowledge about women’s contextual risk factors into family and community-focused practices that help substance-using women form healthy relationships with their children, family members, and other social support systems.
A relational approach to judicial practices in adult drug treatment courts requires a careful assessment of the multiple systems that influence women’s behaviors. It also calls for legal decisions that enhance connection in women’s lives. For example, DTC judges and staff should consider referrals to couple and family-based substance-abuse treatment before they order female participants to avoid contact with significant others and relatives. They should promote family reunification, when it is safe for children, and provide assistance with legal procedures in family courts. Women’s ability to regain custody of their children is a motivating factor for long-term rehabilitation. However, parenting and childcare challenges together with recovery needs may also increase the risk of relapse. For that reason, parenting programs should also be included in the treatment of female defendants, to reestablish their caregiving role and improve parent-child relationships.
Problem-solving courts represent a drastic and welcome change in the criminal justice system. The success of adult drug treatment courts, in particular, highlights the value of jail diversion and community-based rehabilitation. DTC programs integrate mental health treatment and criminal law in order to save lives. Their intent is both benevolent and noble. However, the blending of therapeutic and judicial principles constitutes a significant challenge in settings that have traditionally been punitive in practice. It is judges’ responsibility to rule in favor of public safety. In drug treatment courts, they must combine public safety with treatment considerations in ways that produce positive outcomes for individual offenders and the community.
The therapeutic administration of the law depends on the justice system’s sensitivity to the specific needs of diverse offender populations. This chapter has highlighted the concerns of substance-using women in criminal justice settings, and discussed how this knowledge might be used to enhance the therapeutic effects of DTC practices. In addition, this chapter has raised concerns about the court’s increased power over participants, and nonviolent women defendants in particular, whose criminal activities (e.g., theft, drug possession, drunk driving) present a lower risk to public safety.
In adult drug treatment courts, caring and coercion coexist in ways that conceal the reproduction of social structures of domination. During status hearings, judges have the authority to override team decisions and to modify interventions in response to defendants’ actions. Their challenge is to encourage participants to make healthy choices using coercive mechanisms that reproduce relations of domination. Their one-up position is strengthened by the use of punitive measures, jail time in particular. How disadvantaged individuals experience judges’ exercise of power is important to treatment. When jail time is the consequence for being late, missing a meeting, lying, or being obstinate, then it is clear that the court’s interventions are guided by an ideological discourse that emphasizes responsibility, hard work, truthfulness, and transparency. It is also apparent that change in DTC programs is a process of reformation: Adult drug treatment courts are not only a diversion program but a place where drug offenders should redeem themselves, shed their old self, and abide by the norms of society. When graduation from the DTC program is linked to social conformity, then there are important questions we must ask: Whose social norms and ideals must the participants embrace? To what extent are diverse participants equally able and willing to embrace these norms and ideals? And what are the consequences when they succeed or fail to meet these standards? Both the hierarchical organization of the court and the injunction to enact dominant social norms may compound the effects of women’s subordinate status in society. Combined with the perception that sanctions are not fair, they may diminish women’s sense of agency, level of motivation, and opportunity for success.
Therapeutic jurisprudence provides a theoretical and empirical framework for the ongoing assessment of drug court procedures. The key components of DTC programs offer broad guidelines for implementation (NADCP 2004). What happens in and out of the courtroom is subject to local variations, norms, beliefs, and broader social processes that should be examined in order to prevent undesirable outcomes. Evaluations of DTC programs should address questions about gender, class, and race, how they influence participants’ interactions with DTC staff, the court’s assessment of the participants’ progress, and the selection of interventions. Research should also investigate the unintended consequences of defining drug offenders as sick and powerless, yet willful and responsible, and examine how structural inequalities get reproduced when judicial power is used to motivate DTC participants, to encourage them to accept their illness, to surrender to the demands of the court, and, if necessary, to give up their due process rights for the sake of recovery and rehabilitation. Answering these questions will enhance the implementation of problem-solving justice and promote fairness, impartiality, and collaborative decision making, which are key ingredients of change in offender rehabilitation.
Problem-solving courts offer a unique opportunity for psychologists to advance social justice by participating in the development, implementation, and evaluation of legal programs and interventions. Psychologists’ expertise as relates to human behaviors, addiction, mental health, and person-environment interactions can help broaden the perspective of criminal courts and increase judges’ responsiveness to diversity issues. However, the successful integration of treatment, psychology, and justice may require a fundamental shift in the structural organization of problem-solving courts and in the relations among judges, participants, and mental health professionals. In particular, this chapter proposed to increase women’s involvement in decision making in order to support the development of women’s autonomy and agency in DTC programs. This recommendation asks for the subversive redistribution of power in the courtroom, in order to make women’s issues a treatment priority. It is also a major departure from the principle of parity and equal treatment in criminal justice, because it calls for the recognition that women’s crimes and criminogenic needs (i.e., the risk factors that are amenable to change) warrant greater treatment consideration. Until judges and other legal staff acknowledge and integrate gender differences in judicial practices, problem-solving courts may fall short in implementing a tailored approach to justice.
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