The Justice of Drug Courts for Offenders with Addiction: a Preliminary Case Study of the TIES Program

The Justice of Drug Courts for Offenders with Addiction: A Preliminary Case Study of the TIES Program

A thesis submitted to the Miami University Honors Program in partial fulfillment of the requirements for University Honors with Distinction

Jessica Best

May, 2006 Oxford, Ohio

Abstract

The present analysis evaluates justice within the United States’ judicial system by exploring the definition of “crime” and the impact of this understanding on the way in which laws are formed, then discussing the most just response of a society to a person who breaks these laws. An evaluation of the history of the United States’ penal system reveals that, though the response to criminal behavior in the United States has consistently revolved around punishment, the way in which this punishment is inflicted upon a person has changed correspondingly with the economic and structural changes within society. The current popular use of incarceration as a means to punish offenders is unjust in that it does not created the maximum social utility that justice demands. The exploration of alternative methods of justice, such as restorative and rehabilitative justice, lead to a more specific discussion of the drug court in Franklin County, Ohio – the Treatment is Essential for Success (TIES) Program. The results of the preliminary case study conducted on the TIES Program suggest that success within the program, as defined by graduation, is strongly tied to the past educational experience of the participants, as well as their use patterns in crucial phases of the program. Additional data suggest that future research will be able to more accurately predict which offenders are likely to succeed within the program and evaluate the efficacy of the program in reducing recidivism. By working at the root of criminality for these specific offenders in addressing addiction rather than punishing the results, drug courts such as the TIES Program result in greater justice and social utility for participants and society as a whole.

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The Justice of Drug Courts for Offenders with Addiction: A Preliminary Case Study of the TIES Program

By Jessica Best

Approved by:

______, Advisor (Dr. Terry Perlin)

______, Reader (Dr. Bill Newell)

______, Reader (Dr. John Forren)

Accepted by:

______, Director, University Honors Program

Table of Contents

Introduction……………………………………………………………………………....1

Chapter One: Criminality and Deviant Behavior………………….……………………..5

Chapter Two: Responses to Criminal Behavior: Justice, Punishment and Incarceration… ….25

Chapter Three: History and Justice of the United States Penal System…………..……44

Chapter Four: Alternative Justice and Drug Courts……………………………..……..68

Chapter Five: A Preliminary Case Study of the TIES Program……………..………….92

Conclusion…………………………………………………………………………...... 120

References……………………………………………………………………………...122

Appendices.…………………………………………………………………………….132

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Introduction

“The overspecialized division of theoretical images between competing disciplines is unfortunate. Some of the most fertile insights about deviance are those born in the cracks between disciplinary perspectives. There we are forced to confront such things as the rich and complex relationships between material and spiritual forces; between the economy and culture; between life today and life yesterday; between the body, the mind and the social environment; or between society as we know it and society as it is organized in other places and times… These topics… span the concerns of several disciplines: theology, law, medicine, psychology, anthropology, social work, special education, psychiatry and sociology.” ~ Stephen Pfohl, Professor of Sociology at Boston College

When attempting to determine the most just societal response to the influx of offenders with drug and alcohol addictions into an already overcrowded prison system, many aspects of this problem must be considered. As Pfohl so accurately stated, the most fertile insights surrounding the field of deviance result from the integration of several disciplinary perspectives. The present analysis utilizes the disciplines of sociology, psychology, economics, law, philosophy, medicine, psychiatry and history to explore the

nature of crime, criminality, justice and punishment in the United States. Upon

concluding that the practice of incarceration as a response to criminality lacks in social

utility, the discussion then turns to alternate forms of justice. The analysis culminates in

a case study of justice for a specific type of criminal offender – one with an addiction to

drugs and/or alcohol. The case study evaluates the participants in the Treatment is

Essential for Success (TIES) Program, a Franklin County, Ohio felony drug court. As the

young program has just completed its second year of operation, the data collected and

analyzed were focused upon success within the program and suggestions for future

analysis when more data become available. In providing a background of crime and

justice, then exploring specific officially-sanctioned reactions to criminality in the United

States, it will be evident that the present system of incarceration is not the most just option for maximum social utility. As a result, the exploration of alternate methods of justice and subsequent findings of the preliminary case study suggest that alternative responses to criminality, especially in the case of criminality that is exhibited by those with a drug or alcohol addiction, would result in greater justice.

Chapter One addresses the disciplinary definitions of crime and constructs an interdisciplinary definition that utilizes aspects of sociology and law. The primary consideration upon establishing a working definition of “crime” is to further explore the rights and duties upon which criminal law is based. In exploring the classic works of

Aristotle, Thomas Hobbes and John Calvin, the social nature of human beings is discussed and related to the formation of valued rights within a society. Once the valued rights have been established in a society, or even codified into law, it is the expectation of the members of that society that these rights and duties will be respected and upheld by all citizens; however, this is not always the case. The last section of Chapter One discusses disciplinary explanations of criminality, then explores the integration of these views.

The concept of justice is explored in Chapter Two. In an attempt to define

“justice,” the popular theories of Hume, Nozick, Kant and others are explored.

Punishment, as a general response to crime, is then discussed in terms of common rationalizations – such as just desert, deterrence and social utility. However, another view is presented – that of Michel Foucault – who hypothesizes that, on a broader scale, punishment, especially that via incarceration, serves to perpetuate the current class system. In this sense, the state of the current penal system is not failing to achieve

3 justice, it is succeeding in creating and maintaining a group of people who are necessary to maintain the present social order.

In Chapter Three, the history of the United States’ court system is traced from the religious courts of the colonial area to modern trial procedure. The focus of this analysis is to analyze the changes in the courts’ response to criminality as they correspond with changes in economic and social structure of the country. Particular attention is given to the trend toward incarceration that is currently the most popularly used response to criminal behavior. Incarceration is evaluated as a means of punishment via retribution, but social utility as well. Due to concerns such racism within the legal system as well as racial bias in sentencing and substandard healthcare, the present system of incarceration is deemed unjust.

Chapter Four discusses alternative responses to criminal behavior, other than strict punishment through incarceration. Restorative and rehabilitative justice are the two main alternatives discussed. Restorative justice focuses on restoring harmony within the community and rehabilitative justice focuses on assisting the individual in understanding the cause of their criminality and helping to eliminate this cause. To illustrate the sentencing options available to a Common Pleas judge, the court system of Franklin

County, Ohio was used. Several responses to criminal behavior are discussed through these options, most notably that of the TIES Program. Before evaluating the TIES

Program, however, the discussion first turns to the problems of rehabilitative justice, such as the ethical dilemma with and counterproductive practice of mandatory rehabilitation.

Finally, the preliminary case study of the TIES Program is contained in Chapter

Five. The study provides descriptive, correlational and qualitative data about the

4 participants that will be useful for future research when more data become available. The case study also explores the demographic and behavioral factors which are statistically different between those participants that were terminated from the program and those that graduated. The background literature of the study, the previously discussed theoretical concepts of crime, justice and punishment, as well as the data examined in the case study, allow for a conclusion that drug courts are a more just response than prison for offenders with addiction because they result in a greater social utility in both helping the offender maintain sobriety and preventing future criminal acts upon other members of society.

Chapter One: Criminality and Deviant Behavior

“It is forbidden to kill; therefore all murderers are punished unless they kill in large numbers and to the sound of trumpets.” ~ François-Marie Arouet de Voltaire

From home security systems to the local news to national elections, crime is an everyday consideration in the life of United States citizens. However, defining crime requires one to examine it from several perspectives, namely psychology, sociology, economics, philosophy and law. The sociological definition of crime differs from the definition utilized by attorneys and courts. Though they are not mutually exclusive, each discipline’s approach considers diverse aspects of human behavior and law in forming a definition. After establishing a working definition of crime, it is necessary to examine the rights and duties upon which laws and norms are based. The basic disagreement concerning rights centers upon whether they are inherent or constructed. Furthermore, it is essential to consider how and why rights are protected by society. A final consideration in examining crime is why people exhibit criminal behavior. Once the protection of a right is codified, it is the societal expectation that one will abide by the law. However, economic, sociological and psychological theories of criminal behavior explain the decision (or compulsion) to engage in behavior deemed illegal or socially unacceptable. Defining crime and discussing rights, duties, legality and criminal behavior are crucial in understanding and evaluating the societal response to crime.

The sociological definition of crime is part of a larger literature on social deviance. Deviance is broadly defined as behavior in contrast to societal standards, which can be defined either as codified laws or social norms. However, sociological

theories examine the importance of the identity of the person or group exhibiting deviant

behavior in determining whether the action is codified as a crime. Sociological theories

heavily weigh the fact that law is a social construct created by those with the power to

define “normal” behavior; Stephen Pfohl (1994) writes:

Deviants never exist except in relation to those who attempt to control them. Deviants exist only in opposition to those whom they threaten and those who have enough power to control against such threats. The outcome of the battle of deviance and social control is this. Winners obtain the privilege of organizing social life as they see fit. Losers are trapped within the vision of others. They are labeled deviant and subjected to an array of current social control practices. (p. 3)

Whether by informal means, such as ostracizing those who exhibit deviant behavior, or formal means of “criminal” punishment, the concept of social control is central to the sociological view on crime. The use of power to control and define deviance surrounds the definition of a crime in sociological views of crime. The sociological definition of

crime, then, is contingent upon societal classification of behavior, whereas the legal

definition pertains mainly to the similarity of behavior to a written law.

Legally, crime is defined as breaking a law. This seemingly simplistic definition,

however, takes into consideration many aspects of the behavior. Neubauer (2005)

defines “crime” in legal terms:

Corpus delicti, a Latin phrase meaning ‘body of the crime,’ refers to the essential elements of a crime. In defining the elements of a particular offense, criminal laws are based on three general principles. No behavior can be called criminal unless a guilty act is committed, with a guilty intent and the guilty act and the guilty intent are related. (p. 41)

Concerning the guilty act (actus reus), a person must voluntarily act in a way that results

in criminal harm (p. 41). Yet, this legal requirement is vague in defining a “voluntary”

crime. As crimes committed by those with an addiction are one behavior that will be

explored later, it is interesting to note that a medically-defined lack of control does not

always meet the legal criteria for an involuntary action. The guilty intent (mens rea) of a

crime is the mental state of the actor at the time of the action (p. 42). Though ignorance

of the law is not a valid defense, if one’s actions were accidental (but not negligent), one

cannot be found guilty of a crime.

Aside from actus reus and mens rea, legal definitions of crime consider additional

aspects. “A number of crimes are defined on the basis of attendant circumstances and/or

specific results” (Neubauer, 2005, p. 41). Not all legal definitions of crime contain these

two elements, but they are useful in classifying levels of criminal behavior. For example,

the classification of theft as a misdemeanor or felony depends on the monetary amount

stolen; in this example, the amount stolen is the attendant circumstance (p. 42). In a

smaller number of crimes, the result is important to the definition. A murder and a

battery are separated by whether the victim lives, and even within battery the level of

injury the victim sustains determines the degree of the crime (p. 42). The three necessary

and two conditional elements of crime “provide the technical (that is, legal) definitions of

a crime” (p. 42). Unlike the sociological definition, the legal definition does not consider

the cause of the behavior and does not typically weigh mitigating circumstances.

For the purpose of the current analysis, crime will be broadly considered as an

infringement on the rights of other members of a society, or the failure to uphold a duty to others, by the commission of an illegal act. This definition recognizes the importance of valued rights (a classification derived from power) while also incorporating the legal emphasis on written law. In the culture of the United States, the very nature of the word

“crime” denotes an illegal act, thus making the second part of the definition appear redundant. However, for the purpose of studying the response of the legal system to

crime, it is important to remember that specific actions have not always been, and will

not always be, legal or illegal. There are numerous ways one can infringe upon the rights

of others or neglect to uphold a duty, but not commit a criminal act. Including illegality in the working definition of crime allows for discussion of how and why certain actions are considered illegal. However, before addressing this topic, it is important to discuss the foundation of the rights addressed in the definition.

William Murnion (in Peden and Roth, 1992) best states the importance of rights in defining crime and law as “rights are presumed to be the foundation of justice, but what are the foundations of rights themselves?” (p. 271). The main disagreement in the foundation of rights stems from whether rights are inherent or constructed; once this is determined, one must consider how to balance conflicting rights and duties. Two prominent philosophers on the origin of rights, John Calvin, writing in the early-mid sixteenth century, and Thomas Hobbes, writing in the early-mid seventeenth century, represent opposing viewpoints. Arthur Dyck (2005) explains, “For Hobbes… no political order is, nor can be, actualized by ‘natural duties,’ as the tradition represented by Calvin would have us believe” (p. 15). Dyck sides with Calvin, arguing that human beings are social by nature, and he suggests that, as a result, laws form to protect the natural rights of social beings attempting to live together in a community.

The main point of contention between inherent and constructed rights, then, rests upon the social nature of humans. Hobbes and Calvin are two relatively recent scholars on the subject, compared to Aristotle’s foundational work, written approximately 340

BC. Aristotle’s work on ethics, in particular, is applicable, as he conceived of the natural talents of humans to be the ability to reason and the distinctive factor in determining the

good of human social action to be how this ability was applied. Young (2005) applies

Aristotle’s theory on community based upon this thinking:

We form communities not only to reach the instrumental benefits of cooperation and to avert a Hobbesian hell, but because there is intrinsic value in searching for the good life together. Aristotle’s polis is therefore charged not only with maintaining public order and setting a frame for individual pursuits of happiness, but also with substantively creating the realizable possibility that its citizens can attain a greater happiness together than each of them could hope for separately. Aristotelian politics is thus less about obligation or the justification of state coercion than it is about a joint search for the individual and common Good. (p. 9)

It is in this joining of individuals in search for a common good that Aristotle’s theory on the social nature of humans relates to rights and duties; joined together by the ability to reason, humans create and develop common understandings of the valued rights and duties of citizens.

Similarly, Dyck (2005) uses Calvin’s argument to contend that the desire for fairness and equality, and the subsequent feeling of ‘wrongness’ when these ideals are not upheld, are evidence of a natural law conferred upon human beings by a higher power (p.

20-21). In this view, government exists “to foster and protect individual rights through legal enforcement of the moral law” (p. 24). The moral law, then, is the belief of a duty to respect, uphold and not infringe upon the rights of others. Ultimately, Calvin views the conflict between rights and duties as one in which duties are “expectations we naturally have that others will behave toward us in accord with the moral law” (p. 24).

Calvin’s argument of moral law and inherent rights as natural rights imparted upon humanity lends itself to criticism from those rejecting the moral law as a viable legal justification for protecting these rights. However, other conceptualizations of inherent rights are not solely morally-based.

John Howie (in Peden and Roth, 1992) asserts that freedom and well-being are basic human rights “because they form the conditions without which human action would not be possible or at least not successful” (p. 201). He distinguishes these as ‘claim rights’ as opposed to ‘power rights,’ the difference being that claim rights underlie and make possible all power rights. Howie then outlines the four reasons that these rights must be basic, as the necessity for them is prudential, moral, logical and metaphysical (p.

201). In this view, freedom and well-being are valued rights because they are believed to be foundational to the basic functions of society and humanity. The power rights he discusses, the rights formed as an extension of basic rights, are similar to the constructed rights advocated by Hobbes.

Hobbes viewed rights as “claims and assertions we naturally make on our own behalf. These claims are more securely rendered operative through the social contract that establishes sovereignty, its commands and the power to maintain peace and the common defense” (Dyck, 2005, p. 24). The importance of the hypothetical social contract in Hobbes’ theory is that a society of individual actors all behaving in a manner solely benefiting themselves requires an agreement between these individuals not to unjustly interfere in each other’s quest toward prosperity. Thomas Platt (in Peden and

Roth, 1992) also forwards Hobbe’s theory of rights as “the device whereby the individual is both defended from social coercion and by means of which the individual may justify a claim against society” (p. 326). Exemplifying Hobbes’ rejection of the social nature of humans, this explanation also outlines his view of rights as a manifestation of individual self-interest.

Platt (in Peden and Roth, 1992) finds the dichotomous conception of social

contract and organic models as the sole explanation of rights and duties, respectively,

lacking in their explanation of societal organization. He instead conceives society to be

the result of a long, tedious process of socialization in which mutual dependence are

salient features of life, not inherent instincts (p. 335). As a result, members of society

have an obligation, or a duty, to ensure each other’s well-being so that societal functions

continue. This view rejects the necessity of distinguishing the social relationship

between humans as natural or constructed, but instead accepts that a social relationship of some kind exists and posits that duties to one another that have developed must be

upheld, regardless of their origin. Although Platt’s argument does not rely upon the

inherent or constructed social nature of humanity, his conception of duties as a result of

the social relationship between members of a society falls into the category of

constructed rights and duties.

The distinction between inherent and constructed rights is important because one

essentially cannot question the legitimacy of law if rights are inherent; the violation of a

right imparted by a higher power is inarguably an act which will be against the law.

However, if rights are constructed, there can be fault with the law; while this is not

necessarily a desirable quality of a stable legal system, it also allows for change within

the law. Murnion (in Peden and Roth, 1992) acknowledges the problem of asserting

rights in the image of God in a secular society and also points out the difficulty in relying

solely on an explanation of rights as an agreed upon personal preference. To rectify this

polarization of the conception of rights, he presents Figure 1.1 distinguishing the forms of

rights as well as the sources of rights:

Figure 1.1 The Meaning of ‘Rights’/ The Nature of Rights

Sources of Rights Forms of Rights Specific Generic . Convention Legal Right: Civil Right: Entitlement Warrant

Nature Social Right: Human Right: Claim Need (Murnion in Peden and Roth, 1992, p. 272)

In this conceptualization of rights, Murnion highlights the distinction between the

inherent and constructed rights, but also shows how the two views can appear to be similar. While natural, or inherent, rights lend themselves to human rights, convention, or constructed, rights are more easily aligned with legal rights. Murnion (1992) recognizes civil rights and social rights as being “in between” and stops just short of integrating the two. Most importantly, he establishes that all four types of rights and justifications are evident in contemporary United States law (p. 273).

Rights violations and failures to uphold a duty are not always against the law.

The classification of certain actions and behaviors as illegal denotes that society, or more

accurately, those with power within a society, has agreed to prohibit or restrict these

rights violations or legally require people to uphold a duty. The questions then become:

why are certain actions are criminalized? and why do people exhibit still exhibit these

behaviors once they are criminalized? Regarding criminalization, Kappler, Blumberg and Potter (in Hancock and Sharp, 1996) address the motivation behind two distinct groups of researchers who identify criminal problems, ‘claimsmakers’ and those who study the construction of social problems (p. 373). They identify claimsmakers as those who seek to discover ‘new’ social problems and typically advocate social change to

13 eliminate the problem. Constructionists, however, examine already-existing problems and attempt to debunk the perceived pervasiveness of a problem by attributing its creation to the media or another abstract source (p. 373). This is relevant to the issue of identifying the motivations of those who commit crimes because those who identify a behavior as a problem or crime in essence “create” a group of criminals. It would be inappropriate, then, to first discuss why a person commits a crime, but rather more appropriate to begin by discussing why that person’s behavior is considered criminal.

Douglas Husak (in Shute and Simester, 2002) argues that the “general part” of the criminal law, that which includes generalizations about legal justification, would be better suited in also considering the root of the criminalization of behavior. He argues that ignoring criminalization, which is generally considered too specific to be discussed in the general part of law, causes one to ignore the very basis for the aspects of the legality that are discussed. Central to his argument is the assumption that criminalization of a behavior must include more than immorality – it must include harm (p. 20); the lack of apparent harm in some crimes leads to what he asserts is an over-criminalization of behavior. Although most behaviors currently defined as illegal would quickly be seen as

‘harmful’ by most, there are many criminalized actions in which precise harm is difficult to assess. However, to find the rationalization for the (il)legality of every behavior, one must look beyond evident physical harm and examine the valued rights and duties of individuals, social relations and the power dynamic of the political system.

The discussion of criminalization of deviant behavior begins with valued rights and duties. In the United States, for example, one area of valued rights centers around the right to possess and accumulate property and wealth, and duties in this area generally

involve not interfering with this process. Another valued duty in the United States is the

belief that individuals should not cause harm to other citizens, physically or otherwise.

Logically, only those rights valued by the majority of the population should be protected

by law; however, this is not necessarily the case. Social relations are instrumental in

determining whether the valued rights of each class, race or political group will become

codified protections. Law-making power is primarily afforded to educated, middle-upper

or upper class citizens, and much more often than not, these citizens are Caucasian males.

From the sociological perspective, “labeled deviants are viewed as such because they

threaten the control of people who have enough power to shape the way society imagines the boundary between good and bad, normal and pathological, acceptable and deviant”

(Pfohl, 1994, p. 6). Though democracy allows for the rest of the population to have a political voice, the power afforded to the elite group of law-makers is vital in determining which valued rights will be protected.

The criminalization of deviant behavior can thus also be seen as a power struggle over the ability to define societal standards of conflict resolution. By controlling the means of legal recourse and defining the ability of the law to regulate behavior, those with power are able to protect their interests and the rights most important to them.

Austin Turk (1976) defines power as “the control of resources, and the exercise of power as their mobilization in an effort to increase the probability of acceptable resolutions of actual or potential conflicts” (p. 280). Turk defines law as legal conflict regulation, but goes beyond the simplistic ‘law is power’ explanation of the use of law to control resources. He breaks down the power of resource control into five categories:

I see five kinds of resource control, all represented in the cultural and social structural reality of law. These are (1) control of the means of direct physical

violence, i.e., war or police power; (2) control of the production, allocation and/or use of material resources, i.e., economic power; (3) control of decision-making processes, i.e., political power; (4) control of definitions of and access to knowledge, beliefs, values, i.e., ideological power; and (5) control of human attention and living-time, i.e., diversionary power. (p. 280)

Akin to Hobbes’ view on rights, Turk’s five powers relate to the regulation of conflict

that is created by the desire to possess property (i.e. resources). In both arguments then,

the rights that are protected are those who have amassed property and wish to protect

their control of resources. Turk goes so far as to characterize law as a weapon one can

use to legitimize one’s interests. In executing ultimate control over the law in their

jurisdiction, state and federal legislatures hold each of the powers Turk describes, and

they can manipulate these powers to benefit their interests and those of their powerful

supporters.

The legal status of private behaviors, such as vice crimes, are a prime example of

the effect of valued rights, class relations and power in criminalizing a behavior. At first

glance, certain crimes do not seem to fit into the definition of crime outlined above. The general argument for the criminalization of these behaviors either contends (1) that one is

infringing on one’s own rights through the real or abstract damage purported to be caused

by these crimes or (2) that one is infringing on the rights of others by hurting the social structure through the deterioration of the social relationships to which they belong

(Graham in Peden and Roth, 1992, p. 149). Likewise, Victor Tadros (in Shute and

Simester, 2002) discusses a necessary requirement for just punishment; “if criminal liability is to be imposed upon a defendant… the defendant’s actions [must be] a manifestation of one of a narrow range of vices: Primarily, vices that show that the defendant has insufficient regard for the interests of others” (p. 229). While Tadros is not

referring directly to vice crimes per se, his argument applies to the regulation of this

behavior.

As vice crimes, such as illegal drug use, gambling and prostitution, are not vastly represented (at least publicly) among the upper class, these behaviors are not valued by those with the power to make the law. For example, the drugs valued by the upper class appear to be alcohol and prescription drugs, both of which are harmful if used in excess, or even in combination. However, they remain classified as legal. Pfohl (1994) argues,

“To raise such concerns is not to claim that legal drugs are more dangerous than illegal drugs, but simply to suggest that what is officially labeled illegal or deviant often has more to do with what society values economically than with whether the thing is physically harmful per se” (p. 5). Furthermore, these behaviors are represented in a class of people that threaten the power structure of the government. For instance, each drug that is classified as illegal in the United States was given this classification precisely during the time that its use was popular with a race, class or political group the government viewed as a threat. Pfohl writes:

When deviance is opposed by individuals in power, it is because deviance threatens the way things are. Sometimes this threat is economic. It affects the social organization of material resources. At other times deviance may threaten the dominant organization of sexual, spiritual, racially marked or culturally specific resources. At all times it is political… deviance affects the way that power is socially organized and used. (p. 8)

The power structure of the United States thus allows for the criminalization of behaviors

that threaten the status quo and those that work to uphold it. Once a law is in place, it is the expectation of those in power that it will be upheld.

Although the general agreement among members of society appears to support a central structure of law, the excessive media attention given to the national crime rate

indicates that not everyone abides by the law. When discussing the reasons for the exhibition of criminal behavior, it is necessary to keep in mind the above discussion concerning the creation of law through the exercise of power. Kyle Scott summarizes four disciplinary economic and sociological explanations of why crime occurs: sociological perspectives which consider structural factors influencing criminality; rational choice theory, which posits that everybody has the potential to be a criminal, but criminal acts are a decision that depend on opportunity, costs and benefits; social disorganization theory, which examines personal social interactions, such as bad friendships and rundown neighborhoods; and control theory, which theorizes that everybody is a criminal, but social bonds, self-control and community control keep

people from acting on criminal impulses (lecture, 1 Sept. 2005).

For the purpose of the current discussion of criminality, rational choice theory will be considered an economic approach, as it emphasizes individual control over one’s behavior, as well as exemplifies thinking which assumes one should choose the most economically sound (“rational”) choice. The economic approach, for the most part, makes no judgment as to the validity of the law and provides a rational gain-based explanation as to what would cause a person to exhibit seemingly socially unacceptable behavior. Sociological perspectives and social disorganization will be discussed under the sociological approach, as they examine the effect of larger social forces on individual behavior. Sociological theories focus more on the importance of a group’s or person’s acceptance of law in forming theories of criminal or deviant behavior, as opposed to the individual approach of disciplines such as psychology.

Sociological theories of criminality have evolved over time and taken the form of many interdisciplinary theories. Pfohl (1994) elaborates on nine models of deviance that incorporate sociology with other perspectives: the demonic perspective, deviance as rational hedonism, deviance as sickness, social disorganization, the functionalist approach, the anomie perspective, the learning perspective and the societal reaction perspective (p. iii – vii). Of interest to the subsequent discussion of justice for those with addiction are deviance as sickness, social disorganization and anomie perspective.

The “deviance as sickness approach” examines the psychological and medical disciplines’ treatment of deviance as pathology. Pfohl writes, “Employing the language of medicine, pathological theorists attempt to transform images of deviance from badness to sickness” (p. 103). Related to the discussion of power in forming laws, the classification of behavior frowned upon by the ruling class as a ‘mental illness’ is a form of social control employed to categorize and, in some instances, forcibly ‘cure’ the behavior.

The categorization of criminality as an illness began with Giovanni Battista Dell

Porta’s hypothesis in the late sixteenth century that certain human facial characteristics were indicative of criminality (p. 105). Franz Joseph Gall and Johann Kasper

Spurzheim’s phrenology theories, derived around 1800, attributed criminality to the shape of the skull (p. 104). At the height of the theory was Cesare Lombroso’s The

Criminal Man (1876), in which Lombroso detailed his ‘scientific’ findings that indicated men were born criminal and could be identified by several ‘atavistic abnormalities’ (p.

104). The modern-day version of the deviance as sickness approach is the classification

of deviants as mentally-ill. It is in this regard that critics of the deviance as sickness

approach bemoan the physiological approach.

As this theory evolved, the danger of classifying people as “born criminals”

became apparent. The deterministic nature of the deviance as sickness model condemned those with certain facial features or bone structures to a life of crime without considering other variables. Even the modern approach of mental illness assumes that one is rarely cured, but rather learns to control his or her ‘disease.’ The legal arguments of the original position are not currently accepted by the United States judicial system, but past decisions were upheld based upon genetic determinism. Buck v. Bell, 274 U.S. 200

(1927) upheld the eugenically-minded imposed sterilization of “feeble-minded” men and

women, citing:

It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes… Three generations of imbeciles are enough. (Justice Holmes, Majority Opinion)

However, in Skinner v. State of Oklahoma Ex. Rel. Williamson, 316 U.S. 535 (1942) the

court relied on the failure of equal protection in due process to ban sterilization, but also

mentioned, “We have not the slightest basis for inferring the line [between larceny and

embezzlement] has any significance in eugenics nor that the inheritability of criminal

traits follows the neat legal distinctions which the law has marked between those two

offenses” (Justice Douglas, Majority Opinion). Calling doubt to the absolute

inheritability and genetic basis of criminal behavior, this decision outlawed sterilization

to prevent violations of equal protection perpetrated by selective sterilization for certain

crimes.

The mental illness approach has created an interesting debate in the legislative

system as well, where those classified as mentally incompetent to stand trial, temporarily

insane or not guilty by reason of insanity are perceived to escape punishment for their

actions. For example, the public uproar surrounding the 1982 acquittal of John Hinckley,

Jr. for the attempted assassination of President Reagan resulted in the 1984 Insanity

Defense Reform Act. This act tightened the definition of insanity, regarding not guilty by

reason of insanity as if “the defendant, as a result of a severe mental disease or defect,

was unable to appreciate the nature and quality or the wrongfulness of his acts” (A Crime

of Insanity, 2005). In the judicial realm, Ford v. Wainwright, 477 U.S. 399 (1986)

officially banned the execution of those deemed insane, regardless of their sanity at the

time of their criminal act. Later, however, the Supreme Court upheld Cowan v. Montana,

114 S.Ct.1371 (1994), in which the Montana Supreme Court held that the abolition of the

insanity defense was not against the Constitution. Court cases such as these, as well as the tendency in the United States to believe in individual responsibility have led to several psychological theories of criminality.

One psychological explanation of criminality is the coercion model of antisocial behavior. The coercion model is part of social learning theory, which posits that criminal behavior is learned and imitated based upon a child’s social interactions with his or her caregivers. Wiesner, Capaldi and Patterson (in Akers and Jenson, 2003) detail the importance of a child’s interaction with authority figures in predicting later antisocial behavior. They write, “the most important mechanism for learning antisocial behavior within the family is hypothesized to be a young child’s learned use of aversive responses

(termed ‘coercive behaviors’) to terminate the aversive behaviors of parents and siblings”

(p. 318). The success of these coercive measures teaches the child that aggression or avoidance will result in the desired effect – he or she will be left alone and the requests from the parent will desist. In relation to control theory, the child does not form social bonds and is never socialized to learn self-control.

This antisocial learning is often accompanied by the child’s failure to develop prosocial behaviors, such as problem solving, humor and negotiation (p. 318). As the child ages, these antisocial techniques are transformed into criminal behavior:

Intensive interactions with peers who model and reinforce deviant behaviors, as indexed by higher relative rates of reinforcement for deviant talk, more time spent with peers and a high proportion of antisocial youth in the peer group, are considered to be the driving mechanism for the development of more severe forms of offending. (p. 319)

Wiesner, Capaldi and Patterson (in Akers and Jenson, 2003) empirically tested the coercion model to determine what additional factors in youth and adolescence made it more or less likely that the child would progress to an adult level of offending. They summarize their findings in Figure 1.2:

Figure 1.2

(Wiesner, Capaldi and Patterson in Ackers and Jenson, 2003, p. 330)

From the psychological perspective, the coercive model traces the development of

antisocial behavior from initial parental defiance to more overt forms, such as truancy,

stealing and, later, adult crimes. Like most psychological theories, it emphasizes the

importance of childhood experience. Thus, developmental and academic failure are seen

as primary indicators of later criminality if not negated by the correction of these

problems or leaving deviant peers.

The psychoanalytic model examines abnormal behavior in terms of Freud’s theory of the id, ego and superego. Though not all abnormal behavior is criminal, most criminal behavior can be categorized as abnormal under Freud’s definition. Abnormality

is considered on a continuum with normality, and it is the strength of the ego (the force

that finds a rational solution to the id’s desire) that determines whether a person will act

in an abnormal manner. Alloy, Riskind and Manos (2005) explain, “The ego may be weakened by conflict but normally it bounces back. In some cases, however, the conflict continues, creating more and more anxiety, which in turn creates more and more rigid defenses in the form of behaviors that seriously impede adaptive functioning” (p. 111).

Therefore, criminal behavior is again seen as a purely individual action and as the result

of forces not entirely within an individual’s control. Psychoanalytic theory does not

stress learned behavior, though it does not reject the idea; rather, it focuses on the

importance of traumatic and significant events in one’s past and their influence on

present thought processes and functioning.

A second social-psychological approach, the social disorganization perspective,

originated in Chicago during the rapid growth of the city in the early twentieth century.

Observing the increased deviant activity in the city, “disorganization theorists developed

23 a model of naturalistic social causation. Deviance was viewed as a natural by-product of rapid social change. High rates of nonconformity occurred when too much change in too short a time disrupted the normative order of society” (Pfohl, 1994, p. 173). Eventually, the social system is said to become reorganized, but the immediate outcome of rapid change is disorder and deviance caused by competing social norms. With the current onslaught of technological innovation and a rapidly growing gap between the rich and the poor, this theory has been applied to modern deviance as well. However, critics point out that social disorganization theory often ignores upper class or “white-collar” deviance in favor of examining violent crime or “street crime” (p. 211). Some psychological theories, such as the anomie-strain theories, provide a psychological explanation that can be applied to both types of criminality.

The anomie-strain perspective consists of two related theories. The first, anomie theory, was developed by Émile Durkheim, who wrote in the late nineteenth century.

Pfohl (1994) explains, “[Durkheim’s first view of anomie] sees deviance as the result of a state of normlessness in which nobody knows the rules. The second version of anomie theory… defines anomie as a discrepancy between socially engendered goals and the availability of legitimate means to achieve such goals” (p. 252). Durkheim’s model is similar to social disorganization. It differs in that anomie is a specific symptom of a society in transition from the traditional to the modern world, whereas social disorganization is an ongoing problem in all societies over time. The second view, strain theory, primarily forwarded by Robert Merton in the mid-twentieth century, asserts that deviance is not a rejection of societal standards, but rather an alternate method of obtaining valued goals. Merton theorized, “frustration and thwarted aspiration lead to the

search for avenues of escape from a culturally induced intolerable situation” (in Pfohl,

1994, p. 251). Merton’s extension of Durkheim’s anomie theory is often referred to as

‘strain theory.’ In this perspective, a person commits a crime or exhibits deviant behavior

in order to obtain status and recognition. For example, a person lacking the educational

background and technical skills to work in a well-paying job might rob a store in order to

obtain the money that he or she is otherwise unable to get. Wealth is an accepted societal goal, and theft is an alternate route to achieving this goal. Anomie and strain theories are important considerations in the execution of justice as well, when one considers the

(in)correctness of punishing an individual who commits a crime, in part, due to the surrounding social structure.

The considerations of crime, rights, criminalization and the exhibition of criminal

behavior are all foundational to a discussion of the societal reaction to criminal behavior.

Defining crime as an infringement on the rights of others by the commission of an illegal act leads to a discussion of rights and criminalization of rights violations. Hobbes and

Calvin’s opposing theories on the nature of rights and duties calls into question the basis of law; further examination reveals that laws are codified protections of the rights valued by those with the power to make the law. Criminalization of a behavior is often an attempt to control a group that is in opposition to those in power, such as the criminalization of drug use. The rationale for the exhibition of criminal behavior lies primarily in the fields of economics, sociology and psychology, though each one utilizes several additional disciplines in their explanations. Relying on the underlying theories of crime and criminal behavior discussed in this chapter, the next section evaluates the response to crime within the judicial system.

Chapter Two: Responses to Criminal Behavior: Justice, Punishment and Incarceration

“Men are rewarded or punished not for what they do but for how their acts are defined. That is why men are more interested in better justifying themselves than in better behaving themselves.” ~ Thomas S. Szasz, State University of New York Professor of Psychiatry Emeritus

The concept of justice is foundational to the ideology of United States citizens’ perception of the legal system; even the current pledge of allegiance refers to the United

States of America as a nation in which there is ‘justice for all.’ However, justice is a somewhat intangible concept popularly presumed to be synonymous with fairness. There are contradicting disciplinary views on what considerations should be examined in an attempt to execute justice. Once justice is defined (and the goals of justice are agreed upon by a society), one must then examine whether that justice is being realized through the legal system by examining the judiciary’s officially sanctioned response to criminal behavior. This evaluation then leads to a discussion concerning the most prevalent response to criminal behavior in the United States – punishment via incarceration.

Common rationales for punishment are those of just desert, retribution and deterrence.

When evaluating the theoretical framework of these rationales, as they pertain to the aforementioned differing views on justice, it becomes evident that the free will of human behavior, to some degree, is foundational to the justification of punishment.

Furthermore, using Michel Foucault’s Discipline and Punish, it can be argued that punishment and, more specifically, incarceration, serve a more complex societal function than the retribution of a criminal offense. The goals of justice, the realization of those goals within a judicial system and theories of punishment are foundational to an in-depth look at the United States judicial system.

The philosophical debate over the definition of justice can be traced back to

Plato’s The Republic (360 BC), in which he put forth the question, “What is Justice?”

(Pojman, 2004, p. 3). Pojman points out that Plato uses the Greek word dikaiosune, which means ‘morally righteous,’ for ‘justice’ (p. 3). However, from this work, several schools of thought concerning justice emerged, some of which did not regard moral obligations or duties as the foundation of justice. For example, rather than arguing a straightforward definition of justice, eighteenth century philosopher David Hume wrote of the ‘circumstances of justice,’ a term that refers for the need for justice within a society. Wright (in Traiger, 2006) writes, “Since all actions, even those we normally call free, are on Hume’s view necessitated, we can have no contrast by which we can understand necessity” (p. 8). This conceptualization is applied to justice in Hume’s argument that if goods were unlimited, no debate about justice would arise because there would be no distinction among or ownership of property. Thus, in this sense, justice is seen as a necessary product of competition, as a tool to adjudicate among competing claims for limited goods – not just as a tool to uphold moral obligations. However,

Pojman (2004) argues that examined in a broad sense, there is a moral basis to all forms of justice; he contends that the overarching value placed by all societies upon the respect of human life, the defense of freedom, the protection of property, the prevention of unnecessary suffering and the adherence to promises constitutes a universal morality codified by law in modern societies (p. 3). For the purpose of this argument, though, moral obligations pertaining to justice will be considered analogous to the duty to others discussed in Chapter One rather than to a broad, all-inclusive definition of morality.

One example of a conceptualization of justice based upon an obligation to others is the classical theory of just desert. The premise of just desert is giving individuals

punishment or reward based upon what they deserve due to their actions. People who fail

to uphold their duty to others, ought to be punished accordingly and proportionately to

their offense; likewise if one performs his or her duty, this person should be rewarded.

Pojman (2004) explains that this basic premise is evident even in contradictory views on

justice:

[The classical theory of just desert] was held both by the father of capitalism, Adam Smith, as well as the greatest anti-capitalist, Karl Marx; both by the greatest deontologist, Immanuel Kant, and by the greatest Utilitarian John Stuart Mill, who thought that rewarding people according to their deserts would lead to maximal utility. (p. 19)

Though the idea of one deserving a reward or punishment seems similar to the ‘justice as

fairness’ argument, the theory of just desert presumes a natural desert rather than an

institutional desert. Rather, in this view, there is a higher moral order governing the

righteousness of human actions, and it is for these reasons, rather than an obligation to a

societal institution, such as government, that people should be punished or rewarded.

The primary critique of the just desert theory is the impracticability when one

attempts to apply the concepts to modern life. As Pojman (2004) points out, determining

rewards in an agrarian society is much more feasible than determining who put forth what

proportion of effort in, for example, building a skyscraper or to what degree each

executive is responsible for a corporate business scandal (p. 29). Another critique, from

the determinist perspective, is that in order to deserve a reward or punishment, it must be

assumed that individuals are free agents in that they are the author of their own actions;

since determinists reject the notion of free agency, punishment or reward are never

deserved. This argument is important to consider in relation to the present discussion

because crimes committed by offenders with addiction can be seen, to a degree, in a

deterministic light, thus casting doubt on the desert of punishment for their actions.

Whereas the idea of just desert is based upon a duty to perform morally righteous

actions, Robert Nozick’s libertarian theory of justice is based upon rights – or more

specifically, property rights. Pojman (2004) explains, “Nozick accepts a version of

Locke’s theory of property and sets forth a rights-based Entitlement Theory of Holdings,

involving the principle of justice in acquisition and transfer of holdings. A distribution is

just if everyone has that to which he is entitled” (p. 36). In order to determine just

property ownership, Nozick puts forth three principles:

1) A person who acquires a holding in accordance with the principle of justice in acquisition is entitled to it. 2) A person who acquires a holding in accordance with the principle of justice in transfer, from someone else entitled to the holding, is entitled to the holding. 3) No one is entitled to a holding except by (repeated) application of 1 and 2. (in Pojman, 2004, p. 36 – 37).

In this view, justice is not an exercise of governmental power, but a self-regulated

principle which one must uphold. Nozick asserts that free trade is the most just form of

property distribution, and likens taxation to slavery (p. 38).

Critiques of Nozick’s theory are abundant. First, although Nozick and other

libertarians do not oppose private, voluntary benevolence to help the poor who are

admittedly oppressed by the system, an outpouring of private donations is unlikely.

Rationalizing that individuals would either assume that others have donated enough, or

that their donation would not contribute significantly, Pojman (2004) rejects the idea that

any private benevolence would be successful in alleviating the plight of poverty (p. 38).

Related to drug and/or alcohol abuse, the predicted surge in poverty, or at least the

increase in the gap between the rich and the poor, would put those with addiction at an

even larger disadvantage. As another basis of criticism, Robert Solomon (in Peden and

Roth, 1992) rejects Nozick’s dispassionate approach to justice. He writes:

Justice, is not, first of all, a set of principles or policies; it is, first of all, a set of personal feelings, a way of participating in the world. Without the cultivation of those feelings – and some of them are by no means attractive – the principles of justice are nothing but abstract ‘ideals,’ and the policies that would make us just, however justified, seem overambitious and even irrelevant, but in any case unsuited for application in the so-called ‘real world.’ (p. 382)

In examining Nozick’s three principles in light of this critique, one can see the

impracticality of his assertions. Especially in the current political and social climate,

deregulating all trade and leaving welfare to private organizations would likely not result

in the balanced, just world Nozick envisions.

John Rawls’ liberal theory of justice (‘justice as fairness’) encompasses both rights and duties, but focuses upon equal distributions and plausible philosophies upon which a society should be based. Schmidtz (2006) quotes Rawls in saying:

The conception of justice which I want to develop may be stated in the form of two principles as follows: first, each person participating in a practice, or affected by it, has an equal right to the most extensive liberty compatible with a like liberty for all; and second, inequalities are arbitrary unless it is reasonable to expect that they will work out for everyone’s advantage, and provided the positions and office to which they attach, or from which they may be gained, are open to all. (Rawls in Schmidtz, 2006, p. 187)

To achieve this ideal social contract a hypothetical situation is described in which members of a society are made unaware of any aspect of their social status and are called upon to form basic tenets of societal organization (p. 187). Rawls theorizes that rational, logical human beings would choose the societal structure most beneficial to the most people. For example, these momentarily equal members of society would not choose a

highly monetarily stratified system, for fear that they would be placed at the bottom when

their hypothetically-induced ignorance of their own social status ceased. The purpose of

this exercise in Rawls’ argument is to envision a system of justice that can be

synonymous with fairness, which is plausible if the system is conceived apart from self-

interest in the outcome.

As with the theory of just desert and Nozick’s libertarian theory, Rawls’ liberal

theory of justice is not without criticism. Pojman, in particular, takes issue with Rawls’

alignment of justice and fairness:

Justice is keyed to objective standards, whereas fairness has to do with consistency of application. Something can be just but unfair or fair but unjust… Rawls wants to collapse the distinction, making fairness synonymous with justice, but this obscures a genuine distinction. Fairness is comparative, while justice typically is noncomparative. (p. 10)

Additionally, Pojman criticizes Rawls’ rejection of natural desert in favor of institutional desert. Rawls contends that individuals cannot be rewarded or punished based upon their actions because it cannot be said that these actions are the result of anything other than an upbringing for which one cannot claim credit. Though he challenges his critics to demonstrate the existence of free will, he does not accept the burden of proof for his own contention. In Rawls’ view, pre-institutional desert is void because the conditions under which one performs a noble or evil act are the product of forces beyond one’s control – not the product of a decision to behave in a noble or evil manner. Pojman disagrees, writing “Just because I don’t deserve my talents doesn’t entail that I don’t deserve the benefits that I obtain through using my talents” (p. 52). In this sense, Pojman separates desert through the use of ability, whereas Rawls’ rejects reward or punishment because abilities are not within one’s personal control.

The goals of justice in each theoretical view depend upon the theory of criminality to which one subscribes. One example of an interdependent view of justice is

Immanuel Kant’s conceptualization of the criminal justice system as an intersection of philosophical and legal theories. Alan Norrie (2000) explains Kant’s views as utilizing a model of human which:

…accepts the philosophical postulate that individuals have free will and are able to make rational, self-interested choices… [It] accords individuals the status of autonomous moral agents who, because they have axiomatic freedom of choice, can fairly be held accountable and punishable for the rational choices they make… [I]nformed voluntary choices of action are both necessary and sufficient to justify blame and punishment. (p. 2)

This interdisciplinary approach uses economic and psychological theories of crime to rationalize punishment as the philosophically appropriate legal response to criminal behavior. Norrie’s critique of Kant’s view of justice, however, attacks this ‘orthodox individualistic’ approach while putting forth a new interdisciplinary idea of the individual.

Norrie contends that the Kantian approach’s emphasis on a free moral agent fails to account for the conceptualization of the modern individual. To envision the modern individual, Norrie uses the argument of Alasdair MacIntyre, developed in the 1980s, which holds that “there is an essential emptiness in modern moral life which stems from the separation of the individual from her moral community. This is the result of the invention of a ‘distinctively modern self,’ and what was invented was, precisely, ‘the individual’” (in Norrie, 2000, p. 4). This contention is in disagreement with the Kantian view because Kant relies upon an individual’s knowledge and acceptance of morality; in

MacIntyre’s argument, modern individuals mirror a morality to which they have lost their comprehension, both theoretical and practical (p. 4). In this sense, Norrie shows

ambivalence toward criminal justice and punishment as Kant conceptualizes it and

advocates ‘relational blaming.’ He concludes that rather than prescribing solely to free

will (or the philosophical antonym, determinism), one must:

…[identify] the real individual as, in important and fundamental measure, a social being, but in the same moment as an active agent. This is a non-abstract, non-individualistic, individual agent, and the conflict between (free) individual and (determining) context is replaced by a concept of shared responsibility between agent and context. (p. 230)

This interdisciplinary view removes the sole individual blame advocated by Kantian supporters and those that advocate just desert. In considering aspects of agency and

situational context, Norrie re-defines the appropriate application of justice as a relative

response to an individual’s actions and surrounding environment. This redefinition is

important, in practical terms, when determining the desert and necessary harshness of a

punishment.

In the numerous theories of justice described above, a common critique is the

practicality of implementing a system based upon the principles outlined. Macklin

Fleming’s book, Perfect Justice (2001), addresses not what the ideal of justice is, but

whether perfect justice by any definition can be attained. He argues that “the law cannot

be both infinitely just and infinitely merciful. It cannot achieve both perfect form and

perfect substance. Nor can it universally and without exception always convict the guilty

and always acquit the innocent” (p. 3). Though this view reflects the dichotomous

“guilty or innocent” view of justice, in assuming that a system is either just or unjust,

merciful or unmerciful, it provides a concept important for the later evaluation of the

United States’ justice system. Rather than seeing this evaluation as a dichotomy between

just and unjust, it should be taken as a criticism of methods which are “less just” than

others, as opposed to strictly “unjust.” Viewing guilt and innocence as a continuum

involving culpability allows for a more interdisciplinary evaluation of justice. A critique of the United States’ response to criminal behavior, then, is not to be taken as a

comparison to a wholly impractical ideal, but weighed with this consideration in mind.

In order to evaluate the United States’ response to crime, the possible responses must first

be discussed in relation to the philosophies of justice previously examined.

In the first chapter, crime was defined as an infringement upon the rights of

others, or the failure to uphold a duty to others, by the commission of an illegal act. The

following chapter discusses the history of the United States’ response to crime and the

success or failure of each method. The current discussion, however, is concerned with an

interdisciplinary approach to assessing the possible responses to criminality and

determining the justice of each response. Specifically of interest is the tendency to rely

upon a retributive theory of punishment.

Whereas the working definition of crime utilized for the present purpose does

address an individual’s rights and duty to others, it does not address a government’s duty

to its citizens. Arthur Dyck (2005) contends that nurturance is an individual, parental and

communal responsibility. He writes:

Nurture is a demand of justice; it is a responsibility justly expected and justly claimed and, hence, a moral right. Nurture as a right, responsibility and requisite of both self-fulfillment and communal life can be effectively neglected or even overwhelmed in laws and practices guided by a view of the individual as a self- sufficient ‘lone rights bearer.’ (p. 280)

From this duty to nurture, evident by laws protecting and valuing human life, Dyck

asserts, a punishment for a violation of rights or disregard of duty (evident in the breaking

of said laws) is justified. The rationale for punishment, then, is found in retributive

theories of justice which regard the individual as a free-willed moral agent.

All of the abovementioned theories rely upon the presumption of moral agency

and advocate individual responsibility for action, but retribution and punishment, in a broad sense, are most strongly aligned with the just desert view of criminality. Strict believers in retribution and just desert, such as Kant, uphold three theses about the justification of punishment:

1) Guilt is a necessary condition for judicial punishment; that is, only the guilty may be punished. 2) Guilt is a sufficient condition for judicial punishment; that is, all the guilty must be punished. If you have committed a crime, morality demands that you suffer an evil for it. 3) The correct amount of punishment imposed upon the morally (or legally) guilty offender is that amount which is equal to the moral seriousness of the offense. (Pojman, 2004, p. 114)

It is important to note that the only mitigating factor Kant recognizes is the seriousness of the offense – not the degree of agency. Aside from the impracticality in determining proportional responsibility already discussed, this view presents another implausibility in punishing an individual in the same manner of his or her offense. In this ‘eye for an eye’ practice, a rapist would be punished, then, by rape, and a murderer would be killed.

However, whereas violent crime provides obvious prescriptions of punishment, most criminal offenses do not. For example, there is no equivalent action to be taken against a person who causes the bankruptcy of thousands of people or an executive who knowingly allows for the sale of a dangerous product which harms millions. As Pojman points out,

“Our legal systems are not equipped to punish according to the harm inflicted but, rather, according to the wrong done, measured against specified statues with prescribed

penalties” (p. 114). It is in this sense that retributive theories are applied to modern

practice.

Pojman (2004) defines punishment as “an evil inflicted by a person in a position

of authority upon another person who is judged to have violated a rule” (p. 111). Using

this definition in modern retributive rationales for punishment, he further states that they

“make infliction of punishment dependent upon what the agent, as a wrongdoer,

deserves, rather than upon any future social utility that might result from the infliction of

suffering on the criminal” (p. 113). In this view, again, desert is based upon the

seriousness of the action not the culpability of the actor. The concept of punishment as a

deserved response to criminal behavior, when framed in this light, excludes more liberal

theories of justice by ignoring societal or individual utility. However, Duff (2001) asserts

that criminal punishment can be re-conceptualized as a type of secular penance; “it is a

burden imposed on an offender for his crime, through which, it is hoped, he will come to

repent his crime, to begin to reform himself and thus reconcile himself with those he has

wronged” (p. 106). From this, punishment regains a social utility. Duff advocates for

punishment to be understood in this sense, arguing that “[this] conception of punishment

is suitable for a liberal political community – a conception of punishment as a

communicative and inclusionary response to the public wrongs committed by citizens of such a polity” (p. 106). Thus, relying upon the underlying theory of criminality with a

basis in free will and moral agency, one can integrate the arguments of retributive desert

theorists and supporters of social utility to form a justification for the punishment of

criminal offenses.

Corporal punishment and an ‘eye for an eye’ mentality are not practical considerations in modern societies. Retribution and desert for criminal offenders via punishment has been more symbolic than literal. In the United States, for example, punishment for any type of offense most commonly takes place in the form of incarceration, though monetary fines, community service and suspension of privileges can be used to punish offenses classified as lower crimes. In this chapter, incarceration as a form of punishment and response to criminality in theory is of primary interest; the following chapter discusses specific practices of incarceration in the United States, and

Chapter Four addresses additional responses to criminal behavior, such as restitution and rehabilitation.

Incarceration can be examined by employing the conceptualization of justice via punishment as both a tool of retribution and of social utility. As literal equivalent punishment is often impractical, incarceration serves as a symbolic punishment for a rights violation or the failure to perform a societal duty. In depriving a citizen of almost all basic rights afforded by the law, incarceration mirrors the violation of another’s rights perpetrated by the individual in question. Further arguably unintentional punishment results from this confinement as well. Philip Cooper (in Flanagan, Marquart and Adams,

1998) explains that the legal standard of cruel and an unusual punishment is often a consideration in incarceration in the United States. He writes that it is the United States

Supreme Court’s use of “society’s ‘evolving standards of decency’” (p. 59), that has allowed for leeway in judges’ determinations of the cruel and unusual conditions of prison. Cooper points out that overcrowding, substandard nutrition and lacking health care are the most common cases in which prison conditions are found to be cruel and

unusual. This conflict between desert and the United States’ guarantee against cruel and unusual punishment is a large cause for concern for the justification of incarceration; if some aspects of prison life can be found to be a violation of a prisoner’s rights, the argument could be gradually applied on a larger scale to the entire penal systems’ deprivation of rights in general.

The social utility of incarceration comes not only from the perceived, often unassisted reform that is expected, but also from the contention that the use of such a system will deter criminal behavior and encourage compliance with the law. While a crime against a free individual by an imprisoned individual cannot, logically, occur, this

deterrence argument fails to consider crimes committed between prisoners as well.

Furthermore, it must be considered that incarceration may not be a deterrent for all

individuals because of a flawed system of sentencing. Elliott Currie (1985) points out that

classic conservative criminological theory utilizes the economic “rational choice” approach to criminality and lobbies for an increase in punishment to increase deterrence

by making the ‘decision’ to commit a crime less appealing (in Heiner, 1996, p. 219).

Currie argues, however, that to make such an assertion, one must be able to prove that in times of less harsh sentencing (or in comparable countries with a ‘softer’ sentencing policy) crime rates are higher than when harsh punishment is used, a trend for which there is no proof. Even if Currie’s arguments and evidence are ignored, the theory that

swift, harsh punishment via incarceration is a deterrent would require that the

performance of sentencing in the United States follow this mandate of efficiency.

This is a standard that the United States’ implementation of a system of

incarceration has failed to uphold. A modern example of flawed sentencing, discussed in

more detail in the following chapter, is the racial disproportion of the United States’ prison system. Micheal Tonry (in Flanagan, Marquart and Adams, 1998) argues that

racial disproportion in the prison system is caused by the differing punishments for crimes statistically most likely to be committed by of certain races:

…a large part (but by no means all) of the long-term incarceration rate differential by race in the United States results from racial differences in participation in the kinds of crime, like homicide, robbery and aggravated assault, that typically result in prison sentences; a recent short-term worsening of racial incarceration differences results from foreseeable discriminatory effects of conscious policy decisions of the Reagan and Bush administrations in launching and conducting the federal ‘War on Drugs.’ (p. 289)

Behaviors often become classified as criminal when they are exhibited by a group in opposition to those in power. In criminalizing drug use, using Tonry’s argument, it was foreseeable that large groups of people, primarily divided along racial and socioeconomic boundaries, would be punished through imprisonment for committing these types of offenses.

Whereas the above discussion considers the justice of incarceration, another consideration is the practical necessity for such a system. Richard A. Wright argues in In

Support of Prison (in Hancock and Sharp, 1996) that there is positive and negative proof that incarceration is the most effective means of punishment. He writes:

Current empirical research suggests that punishment works and that prisons are at least modestly successful in controlling crime. This evidence is referred to as positive support for prisons. Further more… the alternatives typically offered for imprisonment… are either unworkable, inhumane or unfeasible. This is referred to as the negative support for prisons. (p. 252)

In framing the argument this way, however, Wright relies heavily upon declining crime rates that cannot be attributed solely to one cause and the inarguable fact that a sudden,

widespread change in punishment theory would cause initial upheaval. Wright’s

argument also suggests that since nonintervention, corporal punishment and the radical

transform of capitalism are not feasible or popular alternatives to incarceration, then

incarceration must be the only response (p. 252). However, he fails to consider models of response such as rehabilitation and restitution when making this ultimatum.

Michel Foucault addresses the structure of penal systems on a broader basis than the previously-discussed justifications for incarceration. In Discipline and Punish

(1975), he traces the transformation of the penal system since the seventeenth century, and, more importantly, he explores the discourse of punishment and power. Beginning with the spectacle of public executions, Foucault notes the conversion from public infliction of pain as an end, to the private focus upon the deprivation of rights as a means to an end. Foucault (1975) writes:

But the punishment-body relation is not the same as it was in the torture during public executions. The body now serves as an instrument or intermediary; if one intervenes upon it to imprison it, or to make it work, it is in order to deprive the individual of a liberty that is regarded both as a right and as property. The body, according to this penality, is caught up in a system of constraints and privations, obligations and prohibitions. Physical pain, the pain of the body itself, is no longer the constituent element of the penalty. From being an art of unbearable sensations punishment has become an economy of suspended rights. If it is still necessary for the law to reach and manipulate the body of the convict, it will be at a distance, in the proper way, according to strict rules, and with a much ‘higher’ aim. (p. 11)

However, the transformation from public to private, regulated punishment did not

eliminate all torturous aspects. Deprivation of liberty through incarceration denies other

liberties which constitute an indirect infliction of pain, such as solitary confinement. For

offenders with a serious drug or alcohol addiction, imprisonment can force an unhealthy

withdrawal from use that causes illness and pain. Thus, the move away from punishment

as a public spectacle did not denote a societal shift away from a punitive system, but

rather the desire to make the punishment serve an additional purpose – reform.

In his analysis of modern punitive systems, Foucault sets out four rules that he

intends follow. Of interest to the current analysis is the third mandate:

Instead of treating the history of penal law and the history of the human sciences as two separate series whose overlapping appears to have had on one or the other, or perhaps on both, a disturbing or useful effect, according to one’s point of view, see whether there is not some common matrix or whether they do not both derive from a single process of ‘epistemologico-juridical’ formation; in short, make the technology of power the very principle both of the humanization of the penal system and of the knowledge of man. (p. 23)

In setting forth this rule, Foucault integrates the penal system and social sciences using the common thread of power. This interdisciplinary approach, or the ‘power-knowledge relations’ (p. 27) as Foucault refers to them, allow one to see the ways in which knowledge has influenced the power to judge another individual and the ways in which power has forwarded the knowledge base of legal and punitive theory. One primary example of the effect of the power-knowledge relations in the judicial system is the transformation from the punishment of a criminal act to the punishment of the individual which, Foucault asserts, has become more lenient due to the consideration given to the social sciences.

Foucault argues that before mass incarceration, punishment dealt strictly with the act of crime, whereas punishment now focuses on the underlying causes and attending circumstances. The power to judge, then, has shifted from determining truth and sentencing to an exploration of the rationale for the behavior. Foucault writes, “…the sentence, even if it is always formulated in terms of legal punishment, implies, more or less obscurely, judgments of normality, attributions of causality, assessments of possible

changes, anticipations as to the offender’s future” (p. 20). This represents a power- knowledge relation because the power to judge is derived from the professional

knowledge used to make the judgment. In the United States, for example, it is not

uncommon for psychiatrists to testify during a trial concerning the mental competency of

the accused. In the case of offenders with a drug and/or alcohol addiction, the court often

considers the addiction when sentencing. Additionally, this ‘expert’ or ‘professional’

knowledge is used to frame laws concerning sentencing.

During the implementation of mass imprisonment, from 1820 – 1845, there was

an almost immediate negative public reaction. Prior punishment had focused on

retribution in a more equivocal or corporal sense, and public support for mass

incarceration was not widespread. Foucault writes:

In a very strange way, the history of imprisonment does not obey a chronology in which one sees, in orderly succession, the establishment of a penality of detention, then the recognition of its failure …just as the project of a corrective technique accompanied the principle of punitive detention, the critique of the prison and its methods appeared very early on, in those same years. (p. 264 – 265)

The importance of this abnormally early criticism is that the arguments made at the initial

implementation of incarceration are, almost identically, the same arguments debated in

modern discussion. Foucault recounts the original claims as follows: prisons do not diminish the crime rate; detention causes recidivism; the prison cannot fail to produce delinquents; the prison makes possible, even encourages, the organization of a milieu of

delinquents; the conditions to which the inmates are subjected upon release from prison

necessarily condemn them to recidivism; and prison indirectly produces delinquents by creating broken families (p. 265 – 268). These arguments, still currently upheld by many criminologists and legal theorists, are the basis for Foucault’s assertion that the structure

of the prison system, and its marked failure, must be a necessary, fundamental aspect of

modern society.

The power-knowledge relations are most evident in the assertion that incarceration, as a punishment, is a necessity to maintain the current social order.

Foucault asserts that the prison system’s structural shift from punishing the body to reforming the soul is evident in even the shift in terminology from ‘criminal’ to

‘delinquent’ (p. 277). The change from punishing the body to reforming the soul is

aligned with the re-classification of illegal behaviors to include unpopular actions of the

lower class or groups in opposition to those in power. This joint transformation is the

result of what Foucault calls ‘popular illegality’ (p. 273). Popular illegality refers to the

accepted consensus on what behaviors are deemed to be criminal. This consensus is

reached by those with the power to make the law. As law is a tool of control used by those in power, punishment, as the result of breaking these laws, is also a construct

dominated by the power class. It is at this point that the constant critique of the

incarceration system becomes important; one must conclude that the failure of

imprisonment to meet its goals of deterrence and, more recently, reform, must serve

another purpose. Foucault summarizes:

… the prison, and no doubt punishment in general, is not intended to eliminate offences, but rather to distinguish them, to distribute them, to use them; that is not so much that they render docile those who are liable to transgress the law, but that they tend to assimilate the transgression of the laws in a general tactics of subjection. (p. 272)

The classification of behaviors as criminal, the punishment of these behaviors and the

‘failure’ of the incarceration system to rid society of this behavior, then, serves to perpetuate a society in which a class of people can consistently be controlled and defined,

through their behavior, as ‘delinquent.’ With this distinction, those with the power to

make the law use the power-knowledge relations of popular legality to monitor and

regulate behavior which could endanger their reign.

Before analyzing the United States judicial system in practice, the larger theories

of justice, punishment and incarceration must be evaluated. Theories of justice differ in

agreement upon the goal of justice in court procedures. Whereas one theory proclaims

that a criminal act should be punished because the act deserves a punishment, another

justifies punishment based upon an upheaval in social order. In all views of justice,

however, some degree of free will and moral agency is upheld; this view of free human

action is necessary to logically justify punishment. Punishment is seen as both a form of

retribution and a response which ultimately results in a positive social utility. In the

United States, incarceration is the most common form of punishment. However, incarceration, in theory and in practice, fails to meet the stated goals of deterrence and reform. Foucault’s Discipline and Punish outlines a theory in which the ‘failure’ of the prison system, in reality, is a success for those in power because it maintains a social order in which the behaviors of an opposing class can be classified as delinquent. With the previous section as a foundation, the next chapter evaluates the realization of justice in practice throughout the history of the United States.

Chapter Three: History and Justice of the United States Penal System

“Justice has nothing to do with what goes on in a courtroom; Justice is what comes out of a courtroom.” ~ Clarence Darrow

The Salem, Massachusetts “Witch Trials” of the 1690s are an infamous blemish in colonial history and just one example of injustice in the religious courts of what would eventually become the United States justice system. Upon examining the evolution of the criminal justice system in the United States, it is clear that a formal system has largely replaced the previous reliance upon religion and irrational methods of determining guilt.

Punishment for criminal acts has also shifted, from an emphasis on corporal punishment

to retributive incarceration, but the progress toward reform has stopped at this step. The

use of incarceration has been repeatedly justified by claims of deterrence, both in preventing an individual from initially committing a crime for fear of imprisonment and also from committing a crime after experiencing the conditions of imprisonment.

However, further discussion will show that neither deterrence argument is supported by

statistical data, and in fact, prison conditions are more likely to perpetuate future crime

than deter it. Inhumane conditions of incarceration in the United States have led to controversies concerning justice, as well as to cruel and unusual punishment. Prison reform movements have been anecdotally successful in improving some elements of the incarceration system, but mass implementation of these practices has proven problematic.

A discussion of justice within the United States judicial system is necessary to understand

the current state of the system and the alternative forms of punishment and justice that

have arisen in response to its practices.

Though the roots of justice and punishment in the United States can be traced all the way to the beginnings of English justice, and beyond, it is of use to the present analysis to examine only developments that took place after the first settlers arrived in

North America from England. These developments provide enough information about the background of English law and justice for one to have a framework in which to understand the transformation of justice in the United States since this time. Friedman

(1993) summarizes three basic elements of colonial criminal justice:

First, there was English law, or rather, as much of the law and customs as the colonists brought with them from England and remembered… The physical and social environment was the second of the three elements… Life on this side produced problems that life in the mother country never had to face. English law had nothing to say about dealing with native tribes. It had no law concerning slavery… The third factor also drew a line between legal worlds on the two sides of the Atlantic. This was the factor of ideology: the worldview of the colonists, or at least those who called the shots in the colonies. (p. 22 – 23)

The third factor, ideology, was primarily influenced by the religion of the settlers in each colony. The trial procedure in the colonies was fundamentally the same as today in the sense that a formal trial took place in front of a judge. However, there was no jury; the judge decided the outcome of the case based upon witness testimony. Additionally, only the person bringing the claim could have an attorney; it wasn’t until 1730 that the accused was permitted to have an attorney present at trial (p. 27).

In colonial times, judges were almost always religious leaders in their communities, and they decided cases based upon a duty to their God rather than a communally agreed upon set of standards (p. 24). Friedman details the spectacle of trial and punishment, writing, “Whipping, branding and pillory were public displays of the fruits of crime designed to warn the immoral. In a face-to-face society, public rituals of this nature strengthened the legitimacy of criminal proceedings” (p. 26). Durkheim

46 attributed the importance of the conformity that this public shaming caused to the religious emphasis of small societies. Fish (2005) writes, “Durkheim’s argument in The

Division of Labour was that in societies where there is mechanical solidarity, the emotional intensity of religion was seen to quash individuality by forcing people to resemble one another” (p. 96). As such, the offenses prosecuted during colonial times were primarily religious violations, such as fornication, nonattendance at church and profanity. As each individual’s conformist behavior in a mechanically-organized society is necessary for the success and prosperity of the society, public methods of punishment worked to shame an individual into conformity and warn others of the dangers of individuality.

The focus on public corporal punishment ceased in the eighteenth century as the colonies grew. Friedman writes, “Towns were bigger, more diverse; the population was growing; magistrates and divines had lost some of their control. The criminal justice system shifted focus, then, from victimless crimes to more conventional crimes – in particular, crimes against property” (p. 54). Additionally, though public spectacle was still utilized in some cases, punishment shifted primarily to labor and imprisonment.

Durkheim’s theory on societal organization can again be used to explain this shift. Fish

(2005) writes:

Durkheim’s understanding of organic solidarity…appears to support the view that emotional similarities become weakened through a secular belief in the importance of human individuality. The principle of individuality appeared most strongly in modern industrial society. (p. 96)

As the division of labor in the increasingly industrial societies grew, conformity was less important to those who regulated justice. Individuality no longer hindered the productivity of a society, so there was no longer a need to induce conformity with public

shaming. Instead, justices of the peace and judges responded to criminal behavior with

sentences that forced the individual to more directly compensate for their transgression

against the productivity of society.

To understand the shift from corporal punishment to physical labor, then to incarceration, one must also examine the economic climate of the country as these changes were made. Daniel Glaser (1995) writes:

From ancient times until well into the twentieth century, in most parts of the world as well as in the United States, poor convicts were worked – often in chains – to quarry stone, row large coastal and river ships, build roads and do other physical labor now done by machines. (p. 1)

The reduction in the need for labor from offenders caused by the Industrial Revolution in

the late nineteenth century increased the population of jails, prisons and penitentiaries

throughout the states.

After this influx, the penitentiary model, in which prisoners were held in solitary

confinement, became too costly to maintain. As a result, “increasingly, prisoners were

housed and worked in groups, but required to remain silent” (p. 2). This prison structure,

called the “Auburn System,” was adopted throughout the colonies in the early nineteenth century, replacing the penitentiary model. For young offenders, often aged 16 to 30 years old, the “reformatory” model was often used. This model utilized academic and vocational training while the prisoners were incarcerated; additionally, the concept of parole originated in this model, as prisoners were released under the condition that they would be incarcerated again if any wrong-doing was suspected (p. 3). Blomberg and

Lucken (2000) report that it was during this reform era, from the 1880s until the 1930s, that the concepts of “good time” and the indefinite sentence also became widespread (p.

63). ‘Good time’ refers to an incentive of having time taken off a sentence for good

48 behavior, and indefinite sentences were given to offenders in order to allow as little or much time as was needed for reform to be complete (p. 64 - 65). These methods were intended to motivate prisoners to reform their behavior while inside prison, with the hope that this reformed attitude would continue upon release.

Even as the use of convicts for menial labor outside the prison declined during and after the Industrial Revolution, social and economic forces continued to influence the states’ prison policy concerning labor within prison walls during the late nineteenth and early twentieth centuries. Rather than punishment, labor was viewed as a practical consideration of prison, and it became rationalized as an additional method of reform;

Friedman (1993) writes:

Prisoners were supposed to work; work was a tool of reformation. It was also a way to make prisons pay for themselves. The trick was to put prisoners to work on something the state could profitably sell. But this made prisoners direct competitors of organized labor; this provoked a bitter political struggle in state after state. (p. 158)

Labor unions objected to the use of inmates to make a profit for the prison because it undermined their power within their skilled profession. This battle continued for decades, during which time several laws were passed outlawing inmate labor for profit.

However, it was not until the early twentieth century that inmates ceased to create profit for the prison; Glaser (1995) writes, “After the Great Depression of the 1930s, when labor unions objected to inmates being employed while free citizens could find no jobs, laws were passed permitting prisons only to produce goods and services for government use” (p. 5). This form of inmate labor was adopted throughout the 1930s and 1940s, and remains in use today, especially in the Southern United States. However, other aspects of incarceration and sentencing have shown more drastic reform.

The first wave of theoretical reform began alongside the organizational and labor

reform of the early twentieth century. Friedman (1993) explains, “When fear of crime is

reduced from a boil to a slow simmer, professionals can put though programs of reform and rehabilitation. This was the case in the late nineteenth century and in the first part of the twentieth” (p. 306). Prior to reform, prison conditions were abysmal. Prisoners across the country complained of being crowded with up to four people in a small cell, inadequate nutrition, physical abuse and the rampant spread of disease (p. 308-310).

Though the press would occasionally expose this treatment and cause an immediate public concern for extreme conditions, the general sentiment of the time was that prisoners deserved to be subjected to horrible conditions as retribution for their actions.

Friedman writes, “The prison, in short, was a zone of power and immunity from law in which warden and guards could do as they pleased – except in very extreme cases. But, starting in the 1960s, a series of decisions, reflecting a new form of activism, changed the legal situation dramatically” (p. 313). These cases, discussed below, were among the first important victories of inmates’ attempts to shed light upon cruel and unusual punishment within the prison system. The next progressive reform occurred in the 1960s and 1970s, when indeterminate sentencing came under attack. Courts began to place maximum guidelines on prison sentences to prevent indefinite imprisonment (p. 307).

This marked the latest period of widespread reform for the United States incarceration system.

As the crime rate began to rise steadily, the fear of crime, referenced earlier by

Friedman, rose as well; the backlash caused a massive increase in prison population.

According to the Bureau of Justice Statistics, there were 319,598 people imprisoned in

1980, whereas there were 1,421,911 people imprisoned in 2004; the total amount of

people either on probation, in jail, in prison or on parole rose from 1,842,100 in 1980 to

6,996,500 in 2004 (p. 1). These numbers reflect the net amount of people without taking

into consideration population growth, but they still show a disproportionate growth in the prison population. Figure 3.1 reflects the incarceration rate between 1980 and 2004, taking population growth into account:

Figure 3.1

(Bureau of Justice Statistics: Incarceration Rate, 2005)

Friedman attributes this rising trend to incarcerate to the prevalent view of

criminality in the United States. He writes, “A society does not randomly pick ways of

punishing people; methods of punishment are always related to what is happening in the

larger world. They are related to ideas about the causes and cures of crime that rattle

about in the heads of good citizens” (p. 315). Starting in the late nineteenth century, the

trend in criminological theories shifted from a focus on the crime committed to the

person who committed the crime; however, up until the 1950s, this individual, for the

most part, was seen as a person who committed a crime, but was capable of reform (p.

315). After this time, people who committed crimes became ‘criminals,’ a condemning

deviant label which indicated the permanency with which society viewed criminal

behavior. Rather than being a bad personal decision, crime was seen as an incurable

sickness or the perpetual activity of a deviant underclass; the difference between the view in the 1950s and the “deviance as sickness” model of the early twentieth century is the latter attributes the sickness to a physiological rather than a strictly psychological cause.

The disbelief of a “cure” for criminality caused only by psychological problems, in most cases, resulted in the increased perception in the permanency of the behavior. Lengthy prison sentences have become the default sentence for almost all offenders, and the prison population trends show the strain of this view on the current incarceration system.

In order for a crime to be punishable, one must ascribe to the economic or rational choice theory of criminality, at least to some degree – for if an action is not at least somewhat voluntary, it would be unjust to punish individuals for their actions.

Furthermore, it was argued that in order for justice to be achieved through punishment, the punishment may serve a retributive purpose, but it must serve a social utility as well; it is only in this way that there is justice both to society and for the offender. Social utility is usually interpreted in terms of deterrence, but it is also useful to examine the practical implications of mass incarceration (e.g. racism, prisoner health and cruel and unusual punishment) in determining overall social utility.

Golash (2005) explores the utilitarian approach to evaluating incarceration in the

United States, by examining whether punishment does more good than harm. Using this approach, the harm done by imprisonment could only be justified if those harms were necessary to produce a greater good by averting a large number of crimes (p. 22). Golash

52 rejects the typical utilitarian analysis – tax dollars spent versus crime prevention – because this method fails to address the effect of imprisonment on offenders as well as social costs. He concludes that, form a utilitarian perspective, the current punishment practiced in the United States cannot be said to do more good than harm, and suggests that:

...the correct approach would be to pursue nonharmful methods of discouraging crime, perhaps supplemented by less harmful forms of imprisonment concentrated on a smaller prison population. The deeper problem, however, is that utilitarianism is inherently flawed: it requires that we use individuals as mere means to the good of others, provided only that the total good outweighs the total harm. Punishment, conceived simply as the doing of harm to some in order to prevent harm to others, is as morally suspect as quiet euthanasia of the unsightly homeless. (p. 47 – 48)

In making such a harsh analogy, Golash expresses dissatisfaction with prison as a tool for simply hiding criminal offenders from society without any attempt to cure the cause of the problem

Another way in which one can examine the justice and social utility of the United

States incarceration system is to examine the way in which individuals are sentenced to prison. Even if one were to assume that the reality of incarceration is a humane, just punishment, the use of mass incarceration would have to be examined to ensure that this punishment was equally and fairly afforded to people who committed similar criminal offenses. Perhaps the most controversial topic concerning sentencing is the equality and fairness of sentencing among members of minority races versus Caucasians. Michael

Tonry (in Flanagan, Marquart and Adams, 1998) writes:

The initial tendency to compare American blacks’ proportion of the general population, 12 per cent, to their presence in the prison and jail population, 48 per cent, is understandable, but wrong, and it greatly underestimates the scale of the problem. The better comparison is between racially disaggregated incarceration rates measured as the number of confined persons of a racial group per 100,000

population of that group. By that measure, black incarceration rates are six to seven times higher than white incarceration rates. (p. 291 – 292)

While these statistics clearly highlight the disproportionate amount of African-Americans

in prison, they do not attribute the cause of this problem.

Defenders of the current system argue that, while there may be a racial prejudice

in the overall social system of the United States, there are more African-Americans than

Caucasians incarcerated simply because African-Americans are more likely to commit

crimes – not because the system is unjust. William Wilbanks (in Hancock and Sharp,

1996) writes:

The assertion that the criminal justice system is not racist does not address the reasons why blacks appear to offend at higher rates than whites before coming into contact with the criminal justice system. It may be that racial discrimination in American society has been responsible for conditions (e.g. discrimination in employment, housing and education) that lead to higher rates of offending by blacks, but that possibility does not bear on the question of whether the criminal justice system discriminates against blacks. (p. 51-52)

However, Wilbanks fails to consider the social construction of law and punishment in

making this statement. Rather than saying that African-Americans commit more crimes,

it is more accurate to say that the deviant acts of African-Americans, as a class, have been

criminalized as punishable by prison moreso than the deviant acts of other races.

Furthermore, opponents of Wilbanks’ position attack this rationale using

quantitative studies that show a racial discrepancy in sentencing. Coramae Richey Mann

(in Hancock and Sharp, 1996) cites a study done by Petersilia (1983) which found that

“minorities were less likely to be given probation, more likely to receive prison

sentences, more likely to get longer sentences and more likely to serve a longer time in prison than whites after controlling for offense seriousness, prior record and prison violence” (p. 55). This evidence is upheld regardless of whether one believes Wilbanks’

argument, that the conditions of African-American life lead to criminal behavior, or the

constructionist argument, that the crimes most likely to be committed by African-

Americans are those punishable by prison. This study makes those arguments a non-

issue in showing that even when an African-American and a Caucasian commit similar

crimes, there is a racial bias in sentencing which favors Caucasians. The danger, then, of

a system which distributes punishment unequally is that justice is not possible, from a

social utility aspect, if the system is inherently unjust to an entire race or group of people.

In examining the above findings concerning racism, it becomes clear that,

regardless of the attribution of the cause, African-Americans are overrepresented in the

United States prison system. The criminalization – and punishment via incarceration – of

behaviors more likely to be presented by African-Americans and those in poverty is a

primary example of the use of power to create a class of criminals due to behavior that

threatens the status quo. Friedman (1993) echoes the earlier theoretical criticisms of

Foucault, writing, “Law protects power and property; it safeguards wealth; and, by the

same token, it perpetuates the subordinate status of the people on the bottom” (p. 81).

This is further evident not only in the over-imprisonment of African-Americans through

criminalization of underclass behavior, but also in the difference in sentencing for ‘white-

collar crimes,’ which tends to be monetary rather than through incarceration.

One concrete example of a criminal sentence correlated to the likely race of the

offender is the punishment for the use or possession of crack cocaine versus that of the

powder form of cocaine. Lewis and Kim (2005) explain the rationale for the difference

in punishment, despite the fact that the chemical properties of the drug remain the same:

The United States Sentencing Guidelines Manual §2D1.1(c) assigns a 1:100 ratio between crack and powder cocaine. In other words, it treats 1 gram of crack as

being equivalent to 100 grams of cocaine in drug quantity. Congress has offered five reasons for the distinction: (1) crack is more addictive than powder cocaine; (2) there is a greater relationship between crack and serious crimes than with other drugs; (3) crack has a more dangerous physiological effect than powder cocaine; (4) young people are more prone to use crack than powder cocaine; and (5) crack’s affordable cost per dose leads to more widespread use. States have strayed from the 1:100 ratio; however, they continue to distinguish between crack and powder cocaine, assigning harsher penalties for crimes involving the use, possession, sale or transportation of crack. (Crack Cocaine and Powder Cocaine)

While these rationalizations may seem plausible, it is also important to consider that the vast majority of crack cocaine users arrested are African-American, whereas the vast majority of the powder cocaine users arrested are white. In an equal protection case before the Minnesota Supreme Court, defendants argued that in 1988, 96.6% of persons charged with possession of crack were black while 79.6% of persons charged with possession of powder cocaine were white (Lewis and Kim, 2005). When determining the justice of incarceration, one must also consider the justness of the laws and court procedure that determine an individual’s sentence.

Prisoner health care is another important practical implication in determining the justice of incarceration. Once incarcerated, those with a perpetual need for medication or treatment are dependent upon the prison or jail to provide proper healthcare. Among even the strictest retributivists, the denial of healthcare is not advocated as a just punishment for criminal behavior. However, there is a large gap in the United States between the denial of healthcare and the provision of proper treatment. According to

Cooper (in Flanagan, Marquart and Adams, 1998):

The Supreme Court issued the authoritative pronouncement on [basic care] in 1976 in Estell v. Gamble, which held that failure to provide care to inmates who are necessarily completely dependent upon the institution for their medical needs is an infliction of unnecessary suffering that serves no penological objective and is ‘inconsistent with contemporary standards of decency.’ (p. 61-62)

While this ruling set the standard for basic care, it did not address the prison’s duty to attempt to prevent the spread of disease or the quality of the care provided; to prove a violation based upon this ruling, a prisoner had to show ‘deliberate indifference’ on the part of the prison official (p. 62). When dealing with terminal illnesses, such as Human

Immunodeficiency Virus (HIV) and Acquired Immune Deficiency Syndrome (AIDS), quality of care is instrumental in determining the ultimate effect of the virus.

Evidence that HIV and AIDS are more prevalent and more deadly within prison than in the general public leads one to believe that more efficient measures of prevention and treatment are possible. “At the end of 1994, the rate of confirmed AIDS in state and federal prisons was more than 7 times higher than in the total U.S. population.

Approximately 0.52 percent of all prisoners had confirmed AIDS, compared to 0.07 percent of the U.S. population” (Brien and Beck in Flanagan, Marquart and Adams, 1998, p. 159). The Bureau of Justice Statistics report released in September, 2005 confirms this statistic and adds, “In every year since 1991, the rate of confirmed AIDS has been higher among prison inmates than in the general population” (p. 5). The inmate violence and rape that causes the spread of HIV and AIDS within prison would be hard, if not impossible, to erase completely, but measures to prevent the spread of the disease can be taken. Recent medical developments have led to increased success of drugs that assist in stopping the transition from HIV to AIDS, but these developments have not been utilized in prisons as they have been in the general public. Though the number of AIDS-related deaths in prisons dropped slightly from 1995 to 2003, there is still an evident disproportionate amount of prisoners that die from AIDS-related causes. “About 1 in every 11 prisoner deaths were attributed to AIDS-related causes compared to 1 in 23

deaths in the general population” (p. 6). Though prisoners may be serving a sentence that

is retributive in nature, there is no argument that the denial of sufficient health care is of social utility or in any way furthers justice, and although basic care may be afforded to individuals with HIV or AIDS, this care has not been sufficient.

In addition to lacking medical care for disease, there are complaints addressing inadequate mental health care and treatment for drug and/or alcohol addiction while in prison. To some, prisoners have no rights upon entering prison, only privileges. The provision of mental health services and treatment for addiction would fall under this category of privileges, but the Supreme Court rejected this distinction. Cooper explains:

The Supreme Court has held (in Wolff v. McDonnell, 418 U.S. 539 (1974)): ‘[T]hough his rights may be diminished by the needs and exigencies of the institutional environment, a prisoner is not wholly stripped of constitutional protections when he is imprisoned for a crime. There is no iron curtain drawn between the Constitution and the prisons of this country.’ (in Flanagan, Marquart and Adams, 1998, p. 63)

However, the provision of treatment is not always adequate or even present. Rogers (in

Hancock and Sharp, 1996) writes, “The recent news from Texas is not encouraging when

it is reported that 67 percent of their drug-abusing inmates are released from prison

without receiving any treatment” (p. 297). This is an alarming figure, considering that

the prevalence of drug use among prison inmates, at 78 percent, is significantly greater

than that of the general population, at 37 percent (p. 297). Also considering that two out

of five inmates reported that they were under the influence of alcohol or drugs while

committing the crime for which they were imprisoned (p. 297), it is of extreme

importance that proper treatment for drug and alcohol abuse be provided within prison, if

not for humanitarian reasons, then for justice in the social utility of preventing future

criminal behavior.

Complaints of inadequate healthcare, as well as complaints concerning safety, nutrition, climate, rodent infestation and more, have led to the use of the Eighth

Amendment to file suit against prisons for cruel and unusual punishment. The prisoners’ cases can be interpreted under the argument that the conditions of their confinement go beyond the punishment necessary for social utility and justice. These sentiments have been echoed in a multinational analysis. The “Global Report on Prisons” prepared by the

Human Rights Watch (in Heiner, 1996) is a comparative study of penal systems around the world. The study concluded that in terms of humanity, the United States prison system was far worse than any other developed nation (p. 224). Specifically, the report denounces the use of solitary confinement, physical restraints, denying contact with relatives and any form of violence as inhumane and against basic human rights (p. 224 –

237). However, the United States judicial system evaluates claims of cruel and unusual punishment by “society’s evolving standards of decency” (Cooper in Flanagan, Marquart and Adams, 1998, p. 59), which allows for leeway in the evaluation of prison conditions.

Today, cases involving cruel and unusual punishment within prison are widely heard by courts at all levels of the judicial process. However, prior to the 1960s, federal courts had a strict “hands-off” policy concerning the regulation of prisons (Rogers in

Hancock and Sharp, 1996, p. 293). The evolution of prison litigation began at this time under the Warren court; Rogers writes:

… with the advent of the Warren court, [the ‘hands-off’] posture was abandoned through a series of decisions enlarging the federal courts’ role in prison administration. The stage was set with two key cases: (1) Jones v. Cunningham (1963) in which the Supreme Court ruled that the state prison could employ a writ of habeas corpus to challenge not only the legality of their imprisonment, but also to contest the conditions of incarceration; and (2) Cooper v. Pate (1964) in which the Court held that prisoners possessed standing to sue in federal court under the Civil Rights Acts of 1871. (p. 293 – 294)

Using these standards, prisoners were able to file suits concerning rights violations due to the inhumane conditions of their incarceration. These decisions caused cases involving inmate legal rights to rise 120 percent between 1970 and 1983 (p. 294).

Three early victories for prisoners were two against the prison system in Arkansas and another against the California prison system. Talley v. Stephens (1965) put the use of corporal punishment temporarily on hold in Arkansas prisons because of evidence that the use of whipping had become unfair and out of control (Friedman, 1993, p. 313).

However, the courts did not object to a return to whipping once it could be implemented fairly. Though Arkansas restructured its system, a federal court declared in Holt v.

Sarver (1970), according to Friedman, “the whole state system to be one giant violation of the Constitution, one giant act of cruel and unusual punishment” (p. 313). In

Procunier v. Martinez (1974), the Supreme Court deemed California’s policy regulating the inmates’ access to mail unconstitutional (p. 314). These three cases took place during the last widespread era of prison reform, in which the denial of basic rights while incarcerated was found to hold no greater social utility than affording these rights.

Ignoring the practical implications of imprisonment, such as racism, access to healthcare and evidence of cruel and unusual punishment, the main contention of proponents of incarceration is that social utility is achieved through both deterrence and incapacitation of criminal offenders. In Justice (2004), Pojman contends that “unlike retributive theories, which are backward-looking and based on desert, utilitarian theories are forward-looking, based on social improvement” (p. 118 – 119). He forwards the arguments of Jeremy Bentham and John Stuart Mill, who argue that deterrence is a necessary condition of judicial punishment (p. 119); essentially, they argue that

60 punishment is justifiable so long as it prevents more evil than it causes. However, quantifying this theory often proves troublesome, if not impossible.

The first deterrence argument is that the threat of incarceration prevents crime from taking place due to a fear of going to prison. Thus, the social utility of incarceration as a punishment is that, in theory, the prospect of going to prison is a less appealing option than the gratification of committing a crime. This argument relies on the rational choice theory of criminality. However, Golash (2005) points out the implausibility in measuring this claim:

Given the factors that may militate against effective deterrence, we cannot know a priori whether punishment has any net deterrent effect at all… Actual measurement of deterrent effects is inherently difficult because it requires the measurement of events that did not occur – crimes that would have been committed had they not been deterred by the threat of punishment. (p. 25)

Since no perfect measure of actual deterrence is available, studies aiming to quantify a deterrent effect often use a rise or decline in crime rates as they coincide with public policy. One large scale analysis of this type was that conducted on the crime rates in

New York City after the implementation of strict prison sentences for even minor crimes.

In Downsizing Prisons: How to Reduce Crime and End Mass Incarceration

(2005) Jacobson discusses the relationship between reducing crime and incarcerating people who have committed criminal offenses. Specifically, he theorizes that increased prison sentencing cannot be shown, in and of itself, to reduce crime. To demonstrate this theory, Jacobson examines New York City’s drastic drop in crime within the past ten years in relation to what most perceived to be an increased prison population. He writes,

“From 1993 to 2003 the number of reported violent crimes in New York City declined by

64 percent; homicides fell by 69 percent while robberies and assaults dropped by 70

percent and 55 percent respectively” (p. 106). Mayor Rudy Giuliani and Police

Commissioner William Bratton claimed credit for this success, both in reference to a

strict, zero-tolerance response to crime, especially low-level crimes such as drug use,

public intoxication and drug dealing.

However, examination of New York City’s prison growth shows a decline for the years during which this policy was implemented – a decline that was partially caused by

an increase in jail admissions and short-term sentences, but not an increase in the overall

jail population (p. 113). At first glance, the statistics seem counterintuitive; Jacobson

writes, “From 1985 to 1992, the number of prison sentences increased by 75 percent.

This period also saw an increase of 18 percent in reported violent crime. In contrast,

from 1993 to 2001, New York City’s use of state prison declined by 47 percent and violent crime rates decreased by 52 percent” (p. 123). While this correlation alone does

not imply causation, the striking change in public policy during this time cannot be

ignored as one source of the declining violent crime rate. Rather than increasing the

frequency and duration of prison sentences, short-term jail sentences were used to

communicate a ‘tough’ attitude toward crime and arguably deter future crime. While the

punishment still relied on a denial of freedom and liberty through a form of incarceration,

this method of incarceration did not utilize dehumanizing conditions and a long-term

separation from social life in order to achieve deterrence.

An important factor affecting deterrence is the swiftness and certainty of

punishment; this is perhaps another reason that New York City’s zero-tolerance policy for even small offenses brought about an overall reduction in violent crime. Miethe and

Lu (2005) assert that when people are uncertain of the possible punishment for their

actions, or if they perceive that they have the ability to commit a crime with little risk of

punishment, they are more likely to commit a crime (p. 204). They relate this theory in

comparing the high crime rates of the United States with the low rates of China and Saudi

Arabia, two countries with severe and certain sanctions for criminal behavior. However,

Miethe and Lu warn against an overgeneralization which would assert that swift, severe sanctions are the only method of preventing criminal behavior:

…it is important to emphasize that compliance to societal norms is most commonly achieved through a wide range of social control mechanisms outside the area of criminal sanctions. These include the deviance inhibiting effects of various institutions (e.g. family, education, religion, economic), cultural values and traditions, and general ethical and moral beliefs. (p. 205)

They further point out that both China and Saudi Arabia have laws and concepts of community based more upon religion and social cohesiveness than the United States does. This is important because, “The low levels of reported crime and deviance in

China and Saudi Arabia are directly tied to these alternative mechanisms of control and the subsequent use of severe criminal punishments when the threat and implementation of formal sanctions fail to achieve conformity” (p. 205). This coincides with Durkheim’s theory of mechanic solidarity in which methods of physical punishment and shaming are used to force conformity (Fish, 2005, p. 96).

The second overall facet of the deterrence argument in is that punishment for a crime will reduce a person’s future criminality. However, in the United States system of incarceration, this has not been the case. A 2002 report by the Bureau of Justice Statistics,

Recidivism of Prisoners in 1994, stated:

Of the 272,111 persons released from prisons in 15 States in 1994, an estimated 67.5% were rearrested for a felony or serious misdemeanor within 3 years, 46.9% were reconvicted, and 25.4% resentenced to prison for a new crime. The 272,111

offenders discharged in 1994 accounted for nearly 4,877,000 arrest charges over their recorded careers. (p.1)

Put into context, during the three years of the BJS analysis, from 1994-1997, “re-arrests of the released prisoners were 4.7 percent of all arrests for serious crime from 1994 –

1997… the released prisoners accounted for 8.4 percent of all the homicides in the 13

States [studied] in 1995” (p. 6). Though these percentages may seem low, it must be taken into consideration that this data deals with recidivism for serious criminal offenses only and cannot attest to the recidivism for lower crimes.

The failure of the prison system to prevent recidivism can be attributed, in part, to the deprivation of positive social influence while incarcerated. Not only are inmates kept from contact with the outside world, but as a result, they are forced to identify with and garner support from their peers inside prison walls. Gresham Sykes (in Hancock and

Sharp, 1996) writes, “…what makes [the] pain of imprisonment bite most deeply is the fact that the confinement of the criminal represents a deliberate, moral rejection of the criminal by the free community” (p. 242). The strict visitation rules, along with the small number of people willing to continuously visit those in prison, forces the prisoner to look within the prison for social acceptance. Sykes explains:

… the wall which seals off the criminal, the contaminated man, is a constant threat to the prisoner’s self-conception and the threat is continually repeated in the many daily reminders that he must be kept apart from ‘decent’ men. Somehow, this rejection or degradation by the free community must be warded off, turned aside, rendered harmless. Somehow the imprisoned criminal must find a device for rejecting his rejectors, if he is to endure psychologically” (p. 243)

So the isolation of imprisonment does not cause one to internalize the views of the outside world, but rather to further reject those standards. Sykes provides further evidence of the lack of identification with the outside world with the denial of goods and

services, heterosexual relationships, autonomy and security while imprisoned (p. 243 –

248). Rather than a system structured toward preventing recidivism, then, systems of

incarceration in which contact with law-abiding citizens is restricted perpetuate the very

problem that they are purported to prevent..

As Foucault pointed out, prison reform movements began almost simultaneously

with the implementation of mass incarceration. Whereas initial reform focused mostly on the internal organization of the prison, recent reform has been geared largely toward theories of rehabilitation within prison walls and the implementation of social programs as a tool of crime prevention. Rogers (in Hancock and Sharp, 1996) discusses an interdisciplinary examination of crime and punishment in the United States in order to more effectively reform prisons:

From the start it must be recognized that corrections is a component of an interdependent but uncoordinated system of justice which must be understood in relation to the wider structures of social control in American society. This means we must examine criminality in a multilayered fashion – from inception and process to change; from societal ills and malfunctioning to social reform; from community roots to community return. Criminality and delinquency are not unrelated to conditions and problems of other social institutions – family (e.g., domestic violence, runaways); economy (e.g., poverty, unemployment, homelessness); education (e.g., dropouts, drugs); and government (e.g., mismanagement, inadequate funding). (p. 298)

Though a restructuring of incarceration and crime prevention based upon these guidelines would be ideal, it would seem that such a widespread re-organization is impractical.

Two overwhelming problems facing prison reform and the implementation of social crime prevention programs are the political resistance to reform and fiscal dilemmas. Philip Cooper (in Flanagan, Marquart and Adams, 1998) argues that the differing agendas of the court and politicians and social workers and mental health professionals slow the reform process. In relation to the budgetary constraints, he writes:

In addition to the obvious financial demands, corrections reform has presented two continuing controversies. First, corrections administration has had a continuing conflict between addressing costs of custody and the needs of rehabilitation programs… administrators… have historically favored custody over rehabilitation. The second frustration… has to do with the financial demands of new construction required to replace outmoded facilities. (p. 69)

Though the issues of political resistance and financial constraints have remained a constant problem, reform within the prison system has been possible through the work of dedicated individuals.

One such individual, who exemplified reform efforts throughout the early to mid- twentieth century, was Richard McGee. In Preparing Convicts for Law-Abiding Lives

(1995), Daniel Glaser examines McGee’s work in revamping the California prison system. Among many other achievements and positions, McGee was the first Director of

Education at the U.S. Penitentiary in Leavenworth, Kansas (1931), the first Warden for

Rikers Island (1935), the first president of the National Jail Association (1938), the first

Director of the California Department of Corrections (1944) and the first Chairman of the

American Justice Institute (1959) (Glaser, 1995, p. 16). McGee’s work aimed to maintain the prison system, but in the process, he envisioned a more humane, cause-of- crime oriented approach to dealing with the prisoners. He implemented inmate employment and training, inmate schooling, restructured the prison architecture, provided resources for coping with addiction, increased and improved inmate visitation and expanded counseling programs (p. 29 – 80). This reform within the prison resulted in improvements upon release.

Of the inmates released during McGee’s tenure in California who had participated in the vocational training he implemented, 35 percent received a job in the field in which they were trained in prison, and maintained these jobs for at least twelve months (p. 53).

Furthermore, the percentage employed increased with the hours of training completed

and the grades in this training (p. 53). McGee initiated group counseling for inmates,

which proved effective as well. Glaser writes:

A Department of Corrections study reported in 1964, based on 8,000 parolees, provided suggestive data… The statistically significant findings show that men who had group counseling at the institution of release did better on parole than those who had no group counseling. Men who had a ‘stable’ group counseling experience of over a year with on leader generally did much better on parole than those who had ‘unstable’ group counseling. (p. 76)

McGee’s reform efforts upheld the use of incarceration as retribution for criminal behavior, but also recognized that social utility was necessary for justice to be achieved.

In preparing convicts for life outside of prison and improving the social structure within the prison, McGee provided a model of reform that exemplified justice through incarceration.

The realization of justice in the past and present United States justice system, or the lack of justice, is foundational to a discussion of alternative forms of punishment and

justice. Whereas the first court structures in the colonies were based upon religious

ideals, the court system of the United States became focused upon a set of organized

laws. However, the punishment for breaking these laws first began with corporal punishment and hard labor and then also included imprisonment and reform, each step coinciding with a corresponding shift in societal organization. Mass imprisonment of people who had committed criminal offenses became common practice in the United

States, but this punishment has not been awarded or practiced in accordance with the goals of justice through maximum social utility. The widespread racism, inadequate health care and cruel and unusual punishment that has been evident in many prison systems calls into question the purported deterrent advantages. Prison reform aimed at

67 correcting a handful of these problems has been successful in some systems, but financial constraints remain a problem. As a result, as the next section addresses, alternative judicial procedures and programs have been implemented to replace or complement incarceration as a tool of justice.

Chapter Four: Alternative Justice and Drug Courts

“People crushed by law have no hopes but from power. If laws are their enemies, they will be enemies to laws; and those, who have much to hope and nothing to lose, will always be dangerous, more or less.” ~ Edmund Burke

Burke’s statement echoes the views of those that call for a more proactive justice system, rather than a reactive system of retribution. The court systems in urban areas in particular have felt political pressure for a more efficient, humane system. This, along with the strain placed upon urban courts by prison overcrowding, has allowed for the implementation of ‘alternative’ forms of justice. Rather than incarceration, avenues such as restorative or community justice have been implemented, as well as programs that integrate education and employment with less restrictive imprisonment. Using the court and penal systems of Franklin County, Ohio as an example, it is evident that the modern day sentencing options provided to the court have begun to move past strict retributive incarceration. One method used, therapeutic or rehabilitative justice, has focused upon the root of the problematic behavior rather than the actual crime. Perhaps the most widespread evidence of this method is the use of ‘drug courts’ to help offenders overcome addiction rather than sentencing them to prison. This relatively new development in justice systems across the nation has raised issues concerning the legality of drug use, mandated treatment, theories of addiction and treatment methods. Before evaluating Franklin County’s drug court, the TIES Program, it is necessary to understand the use of alternative justice within the court system and the interdisciplinary debate surrounding the integration of treatment and justice.

The most just response to criminal behavior is that which provides the maximum social utility. Rather than simply punishing an offender, it is most logical to ensure that

the behavior will not be repeated and/or amends are made to the victims of the crime.

Golash (2005) disagrees with the argument that “crime can be understood to be annulled

through punishment where the state acts as an agent of the victim” (p. 52). He asserts

that the use of punishment by the state on behalf of the victim implies that the victim’s

desire (for retribution) is more important than the offender’s rights, whereas the problem with the offender’s behavior in the first place was that his or her action indicated that his or her desires were more important that the victim’s rights. Thus, punishment does not nullify the behavior, but perpetrates another violation of rights. Golash argues that the offenders should be given a chance to make amends or contribute to society in a positive manner in order to nullify their actions (p. 60). Furthermore, he argues, the state has a responsibility to attempt to prevent criminal actions rather than simply punishing them:

Insofar as it is true that changes in social conditions can reduce motivation and opportunity for crime, we are obligated to make those changes, rather than to impose retributive punishment, at least up to the point where the costs of those changes to individuals begin to approximate the costs of punishment to individuals. Retributive punishment is a social policy, and its reasonableness must be considered in conjunction with that of other social policies that may reduce or increase the occasions for such punishment. (Golash, 2005, p. 94)

Seeing punishment as a constructed response to criminal behavior allows one to conceive of programs and policies that address the root of the problem rather than simply locking up all those that continue to exhibit the effect.

Restorative justice, also known as community justice, is a method which allows the victims to confront offenders and achieve peace and compensation through their interaction. Rather than solely punishment via incarceration, offenders often have to pay the victim or work towards making amends in a manner related to their offense. Morris and Young (in Strang and Braithwaite, 2000) explain the aim of restorative justice:

Restorative justice endorses a collective ethos and collective responsibility. Thus it emphasizes the existence of shared values which can be used to address the offending and its consequences (for victims, offenders and communities) and to reintegrate victims and offenders at the local community level. It is premised on the belief that the reasons behind the offending, and hence the solutions to it, lie in the community. (p. 14)

An example of restorative justice in practice would be an offender who broke a window to rob a store paying to replace the window and working in the store, or somewhere else in the community, to repay his or her debt. This method of justice would also involve a meeting between the store owner and the offender, so the store owner could explain the harm done to his or her business and the offender could offer to make amends.

Other forms of restorative justice emphasize the importance of the offender’s reintegration into the community over victim compensation. Harold Pepinsky (in

Hancock and Sharp, 1996) addresses the strictly incarceration response to criminal behavior as that which wrongly relies on punishment rather than supporting this needed confrontation between victim and offender. He argues that abolishing punishment is not an argument to “let offenders go and get away with whatever they want” (p. 267) but rather that it gets in the way of a more effective way to deal with offenders – confrontation. Pepinsky acknowledges that some offenders are so likely to recidivate and such a danger to society that they cannot be left to their own devices, no matter how much compensation they offer to their victims (p. 272). However, for the same cost, he proposes that these offenders instead be monitored around-the-clock by security personnel rather than confined to prison. Pepinsky explains:

…under supervision, the offender would be free to make his or her way in the world, and amount to more than a drain on society. That is confrontation without punishment. Confrontation means standing in the way of those who are hurting themselves or others. Punishment means bringing them to their knees for good

measure. Incapacitation without punishment is simple to conceive. (p. 272 – 273)

Though the radical idea of a mass abandonment of prisons in favor of strict supervision is

unlikely, the implementation of several models of alternative justice methods is evident in modern court systems.

The judicial system of Franklin County, Ohio is one example of a modern court system with a number of sentencing options. Franklin County encompasses Columbus,

Ohio and the surrounding suburbs, serving a population of over one million citizens

(Franklin County Facts, 2006) and housing approximately 45,000 inmates (February

2006 Facts, 2006). Like most Common Pleas judges, the judges of Franklin County sentence offenders primarily to jail or prison, depending upon the gravity of the crime and the offender’s background. Franklin County is home to two jails, Franklin County

Correctional Center I, which is attached to the courthouse and includes a juvenile

detention facility, and Franklin County Correctional Center II, the ‘main jail.’ Though each facility offers some medical treatment, inmate programming and other social

services, the primary purpose of these facilities is incarceration. The Franklin Pre-

Release Center, which provides orientation for new prisoners and assistance for outgoing

prisoners, is also located in Franklin County (Ohio Department of Rehabilitation and

Correction, 2006). Criminal offenders who are sentenced to prison may be sentenced to

one of many prisons in Ohio, the closest being the Orient Correctional Institution, in

Orient, Ohio, a few miles south of Franklin County (ODRC, 2006). Offenders from

Franklin County that are in need of psychiatric treatment are primarily sent to Oakwood

Correctional Facility in Lima, Ohio (ODRC, 2006). Aside from these traditional

sentences, however, there are additional options which incorporate a rehabilitation model.

The Community Based Correctional Facility (CBCF) in Franklin County is

another sentencing option for criminal offenders; the Ohio Department of Rehabilitation

and Corrections describes these facilities:

Community Based Correctional Facilities (CBCFs) are residential programs that provide comprehensive programming for offenders on felony probation. CBCFs provide a wide range of programming addressing offender needs such as chemical dependency, education, employment, and family relationships. A Judicial Corrections Board, comprised of local Common Pleas Court Judges, is responsible for oversight of the facility. (Bureau of Community Sanctions, 2006)

The interior of Franklin County’s CBCF resembles a mixture between a recreational

center and a school. Inmate life is structured to promote community values and reliance upon others. Offenders sentenced to CBCF have to complete classes to qualify for release, and after a pre-determined amount of time may be eligible to leave the facility during the day for employment purposes. Until the summer of 2005, Franklin County also had a Work Release/ Home Incarceration program, in which offenders either lived at the facility and only left for work, or wore an ankle monitor to ensure they stayed within their home during non-working hours (Work Release/Home Incarceration Program,

2005). The Work Release program also offered employment assistance, chemical dependency classes and other social services. It was different from CBCF in that offenders were assisted individually rather than on a community level. However, this county-run program was recently terminated for mismanagement.

Aside from CBCF and Work Release as alternative sentencing, other methods more directly incorporate psychiatric or psychological treatment with incarceration.

Alvis House, a private, nonprofit organization located in Columbus, Ohio, is one such sentencing option that serves 1,400 clients yearly (Alvis House, 2006). The mission of

Alvis House is “To reduce the repetition of criminal behavior in our community by

working within the criminal justice system to provide services and programs which offer

alternatives to incarceration and facilitate the reintegration of the offender into the community” (Alvis House, 2006). Offenders can be sentenced to Alvis House involuntarily, but judges generally confer with the offender before sentencing.

While programs like Alvis House are still a form of incarceration, additional forms of alternative justice seek to achieve similar goals without employing the use of

incapacitation. For less serious offenses for which offenders are placed on probation, the

Franklin County Adult Probation Department has several specialized officers.

Probationers can be placed on regular or intensive probation, and can be placed on the

caseload of an officer specializing in one of the following: chemical dependency mental

health, treatment in lieu of conviction, CBCF liaison, violence prevention, non-support,

intensive misdemeanor or sex offenders (Franklin County Adult Probation, 2005).

Additionally, the Franklin County Municipal Court has unique dockets for family drug

court, juvenile drug court and mental health court – all of which function in a specialized

manner, dealing with similar offenders in a group setting and customizing sentencing to

fit the specific situation (Murphy, 2006). The Franklin County Common Pleas Court has

a specialized docket for gang crime, as well as a drug court that assists offenders with

addiction

Whereas most of the programs and institutions utilized by Franklin County

revolve around reform while incarcerated, the drug court, the TIES program, uses

theories of therapeutic or rehabilitative justice. Therapeutic justice aims to rehabilitate

criminal offenders and help resolve the core causes of the person’s criminality. Richard

Gebelein (2000) argues that the rehabilitative approach widely supported in the 1950s

slowly came to be thought of a failure by the 1980s due to the lack of empirical evidence

to support its effectiveness. He argues, however, that the rise in the popularity of drug

courts since the early 1990s is indicative of the increasing prison population and the

effectiveness of treatment in addressing the core causes of crime (p. 5). In the case of

offenders with a drug and/or alcohol addiction, the main concern is to assist in the

treatment of addiction. James Nolan, Jr. (2002) argues that drug courts “represent a

rational and effective means of breaking the vicious cycle of drug use and drug-related

crime” (p. 145). However, mediating the interests of the law and therapy causes many

conflicts. The legal status of certain drugs and the punishment invoked for others sparks

debate over the relationship between power, class and (il)legality. Furthermore, medical and legal definitions of addiction and views on mandated treatment are often in conflict.

Another consideration in examining drug court models is the efficacy of the treatment methods used. These issues, along with the cost associated with supporting a drug court program, bring forth several disciplinary perspectives on the most just method of

responding to offenders with a drug and/or alcohol addiction.

Distinct drug use patterns are evident within specific socioeconomic classes, races, religions and cultures over time. It is these use patterns that widely determine the legal status of each drug. At some point in time, every drug that is currently classified as illegal was used freely among the United States population. Even in modern times, there are drugs that remain legal, despite widespread knowledge of their negative effects.

Tracy and Acker (2004) write, “History allows us to see that the identity of a psychoactive drug owes as much to its users, their patterns of use and the political climate in which the drug is taken, as it owes to the drug’s documented physiological effects” (p.

2). Beginning with the time of colonial North America, tobacco and alcohol were present, and the use of these drugs grew exponentially well into the nineteenth century.

Also during the nineteenth century, in 1805, scientists working on the development of

pharmaceutical drugs were able to isolate morphine from opium. Tracy and Acker

explain the discovery of additional drugs throughout the century:

Over the course of the nineteenth century, many active compounds were isolated from their plant sources; these included codeine, another extract from opium, and cocaine, take from the coca plant. Heroin was formed by adding acetic anhydride to morphine to yield a semisynthetic drug which had the same effects as morphine but seemed more powerful… it was introduced as a cough remedy in 1898. (p. 5)

The portrayal of these drugs as medicine led to use for anything from calming anxiety to

maintaining energy. Though most of these drugs required a prescription for use, it was

relatively easy to find a doctor willing to write one.

During the first part of the twentieth century, a large social opposition arose to the

widespread use of such drugs, as well as to the consumption of alcohol. Progressive

reformers sought to eliminate recreational drug use and exert control over the actions of

deviant subcultures (p. 7). The reformers’ first large victory was the Harrison Narcotic

Act of 1914, which “forbade the use of opiates, cocaine and a few other drugs except as

authorized by a physician; it was the first federal law to ban nonmedical use of any drug”

(p. 7). This policy was largely the result of the upper class’ reaction to the drug use by

the working class and immigrants; in order to control behavior they found unacceptable

and force assimilation, reformers pushed for illegalization of the substances used by these

classes. The reformers’ next success was the ratification of the Eighteenth Amendment,

in 1919, and the coinciding legislation of the Volstead Act in 1920, which prohibited the

sale and use of alcohol throughout the United States. Prohibition lasted thirteen years.

With the repeal of the policy in 1933, alcohol consumption resumed public acceptability.

However, the societal disapproval on other drugs remained in place; Tracy and Acker

write:

Alcohol, a drug with long-standing cultural acceptance in many human societies, regained its place as a legally permitted drug, and cigarette smoking, though less deeply entwined in social custom, rapidly assumed a mantle of glamour and sophistication. On the other side of a legal divide, the heroin addict became an increasingly powerful symbol of deviance. In 1937, federal legislation would add marijuana to the list of banned drugs. (p. 8)

The increasingly strict regulations placed upon pharmaceutical drugs and the growing list

of drugs classified as illegal took place primarily during the early to mid-twentieth

century. Upon closer examination, it can be argued that the status of these drugs, or their

identity, as Tracy and Acker refer to it, is closely tied with the group among which the

use of the substance was popular.

Once Prohibition was repealed, reform attention returned to the use of other drugs. Susan Speaker (in Tracy & Acker, 2004) argues that “as Prohibition rhetoric was extended into anti-narcotic campaigns, and Prohibition itself was winding down, ‘drugs’ took on the mantle of ‘evil’ that alcohol had worn for many generations” (p. 205). This

‘evil,’ however, rather than being placed upon the lower class, as alcohol had been, was applied to the drug use of immigrants. Richmond Hobson, who had been active in the

Anti-Saloon League in speaking out against alcohol use, switched his focus to the use of other drugs after the repeal of Prohibition. Speaker details the use of racism and prejudice in Hobson’s argument:

But because narcotics (unlike alcohol) are not produced domestically, the elements of conspiracy in [Hobson’s] rhetoric are not the American liquor interests but shadowy foreign ‘enemies’ rarely specified… In an earlier New York Times article, Hobson had noted, ‘The United States is assailed by opium from

Asia as a base, by cocaine with South America as a base and by heroin and synthetic drugs with Europe as a base. (p. 213)

By associating drug use with ethnic groups that were disliked by the Caucasian-American population, Hobson used this prejudice to garner support for his anti-drug campaign.

Speaker explains that the press joined in this campaign as well, as “The New York Times regularly ran articles on the drug traffic and short pieces on arrests, raids and convictions, always highlighting the illegal activities of the Italians, the Greeks, the Chinese and the

Mexicans” (p. 213). Harry Anslinger, the head of the Federal Bureau of Narcotics, used racial strategies to dominate his campaign against marijuana in the 1930s as well. He referred to marijuana as the ‘killer weed’ and “told audiences that this new drug was ‘the worse evil of all,’ that ‘fifty percent of the violent crimes committed in districts occupied by Mexicans, Spaniards, Latin-Americans, Greeks or Negroes may be traced to this evil,’ that marijuana induced violent, atrocious crimes, including murder and rape, and caused permanent insanity in users” (p. 215). Thus, the identity of marijuana, as with other now- illegal drugs, became intertwined with negative images of the time, and use of the drug became illegal due to racial and ethnic sentiments rather than actual physiological effects.

After a rash of drug use criminalization seen throughout the early to mid- twentieth century, criminal law turned to the prevention and punishment of drug use.

Speaker notes, “In 1970, President Richard M. Nixon declared that drugs were ‘public enemy number one’ and initiated the ‘war on drugs’” (in Tracy and Acker, 2004, p. 219).

However, contemporary critics question the harsh punishment afforded to drug users.

Douglas Husak (2003) writes:

The question I believe should be asked – ‘Should drug use be criminalized?’ – and the question that is generally asked – ‘Should drug use be decriminalized?’ – are different, and the difference is important. The right question demands a

justification for existing policy. It asks whether we have a good reason for doing what we now do to drug users. The wrong question does not demand a justification for existing policy. (p. 504)

In light of the prejudice that framed initial drug laws, as is evident in a retrospective look at the history of drug policy, Husak’s contention that the status quo should be justified merits consideration. In order to justify the status quo, without racial or political bias, one would have to show that the current policy produces the greatest social utility – in other words, that it can withstand scrutiny according to the standards of justice. Husak writes, “Justice should not be conceptualized as a goal our policies should try to achieve, but as a constraint that limits what we are allowed to do in pursuing these objectives” (p.

505). Whereas eliminating drug abuse is an acceptable goal, one must examine the use of incarceration as an effective or just manner for achieving this goal.

R. Barri Flowers (1999) attempts to justify the government’s right to regulate and punish drug use through the connection between drug use and criminal offending. Rather than basing his argument on the direct effects of drugs and alcohol on the user’s body, or even more broadly, the abstract effects on society, he contends that laws controlling substance use serve the simple purpose of combating alcohol and drug use – which, in turn, serves to reduce related criminality (p. 146). He provides statistics to found his argument concerning the relationship between drug use and criminality:

Thirty-eight percent of robbery inmates had been under the influence of drugs at the time of the crime… sixteen percent of violent inmates had been under the influence of drugs and alcohol when committing the crime… almost one-fifth of violent inmates committed the offense to get money for drugs… and twenty-seven percent of robbery inmates committed offenses for money to buy drugs. (p. 147)

Though the numbers that Flowers presents irrefutably show a connection between drug use and criminality, they fail to explain the relationship. For example, O’Callaghan,

Sonderegger and Klag (2004) explain the vicious cycle of criminality perpetuated by the

way in which the criminal justice system deals with offenders with addiction: “Drug

users are typically labeled as criminals, which has been found to impact on individuals’

self-esteem and to exacerbate the vicious cycle of drug use and crime” (p. 189). Thus,

although one can argue that the relationship of drugs and criminal offending warrant

restrictions on drug use, the labeling of users as ‘criminals’ and the subsequent

punishment cannot be shown to be a just method of attempting to eliminate drug abuse.

On a larger scale, some argue that drug laws exist as a necessity for harmonious

social order and the greater good of the public health. Peter J. Cohen (2004) discusses the public health perspective he believes is utilized by the United States government and criticizes elements of its use. Cohen echoes Husak’s concern about the justification of the criminalization of drug use:

Public health interventions need justification because they intrude on individual rights and incur economic costs. Coercive interventions can be justified in only three cases: to avert a risk of serious harm to other persons, to protect the welfare of incompetent persons and, most controversially, to prevent a risk to the person himself/ herself. (p. 15)

In attempting to address these issues, the public health perspective bridges the gap between science (facts regarding drug and alcohol use) and the law (legal rules regarding

individual freedom) (p. 14). Cohen clarifies that public health theory rationalizes the

imposition on individual freedom by considering the effects of drug and alcohol abuse

on the ‘common good,’ but he points out several examples in which atrocities committed

in the name of the common good were simply expressions of prejudice and/or ignorance

(p. 16). Similar to the retrospective analysis of the criminalization of drugs, one must

consider whether there is currently a rationale for laws against drug use based upon the

80 above standards. Cohen advocates an approach that considers the individual impact of drug use and, therefore, the need for a more treatment-based (rather than punishment- based) system of dealing with drug addiction. However, in framing a treatment-based system, one must define and examine addiction as it relates to the justice system.

The “drug problem” of the United States referred to by the popular media focuses mainly on the addictive, recreational use of drugs. However, defining addiction is a problematic issue debated in the fields of sociology, medicine and psychiatry. The differences in these perspectives on addiction have legal implications due to their varied degrees of emphasis on individual control. William White (in Tracy and Acker, 2004) argues that addiction is the product of rhetoric which began to develop during the

‘discovery of addiction,’ a period in the mid to late nineteenth century “in which those who consumed alcohol ceased being a homogenous group of ‘drinkers’ and became separated into normal and abnormal drinkers” (p. 33). This sociological perspective treats addiction not as a disease or disorder, but rather as a socially-created label for a pre-existing behavior; this label is then used to stigmatize, and therefore control, a behavior that has become regarded as socially unacceptable. White’s perspective does not deny a lack of individual control, but instead negates addiction as an inherently problematic. In relation to the justification of criminal punishment for the use or abuse of drugs and/or alcohol, the sociological perspective presents no discrepancies concerning the matter of the state’s response to an autonomous behavior, but rather finds fault in the state’s claimed right to judge and devalue this behavior.

The medical and psychiatric definitions attribute the problematic nature of addiction, in part, to the health threat it poses. Flowers (1999) does not take a position on

the cause of addiction per se, but his discussion of the prevalence of addiction requires that he define addictive drug and alcohol use as compared to social or moderate use.

Whereas many medical and psychiatric models focus on control over substance use and

deterioration of health as indications of addiction, Flowers defines addiction, for

empirical purposes, in the context of frequency of use. As he presents data and discusses

studies on addiction, he has a necessarily solid definition of the numerical frequency of

use which constitutes addiction – “binge drinkers [are] defined as having at least five heavy alcoholic drinks during the same occasion at least five times over the past month”

(p. 7). Numerical definitions of addiction such as this spark debate over where the line between addictive and non-addictive use should be drawn and who has the power to define it.

Proponents of the medical model of addiction recognize the need for a line to be drawn for empirical purposes, but argue that drug and alcohol addiction and dependence can only be defined by examining the interaction of the substance with the users and its effect on their lives. Cohen (2004) defines the label of addiction as not dependant upon the legality of the substance, but rather “drug dependence is accompanied, and likely caused, by specific neurochemical changes precipitated by the interaction of drug and is user” (p. 55). This definition allows for a medical professional to recognize and treat dependence on currently legal substances. The rhetoric of the medical definition uses

‘addiction’ and ‘dependence’ interchangeably, denoting a biological need for the drug once the body (not the person) has become addicted. In other words, in the medical model, people with an alcohol or drug addiction are seen as sick – as people with no objective control over their addiction.

According to Tracy and Acker (2004), the medical model of addiction began in

the mid to late nineteenth century, when anti-substance abuse policy was primarily

focused on alcohol consumption:

This [post-Civil War] era of social reorganization and professionalization also brought the first widespread attempt to medicalize drunkenness. The American Association for the Cure of Inebriates (AACI), founded in 1870 by physicians and reformers, promoted the disease concept of inebriety, implicating both heredity and chronic debauchery in its etiology. As inebriates’ drinking progressed, the AACI contended, inebriates lost control of their actions and required restorative medical and moral treatment. (p. 5)

However, organizations such as the AACI slowly dissolved during Prohibition, as the popular sentiment was that with the disappearance of publicly-sold alcohol, so too would addiction vanish. However, after Prohibition was repealed, the medical model resurfaced and became applied to both drug and alcohol use. The judicial response to drug and alcohol use moved toward the acceptability of the rehabilitative approach evident throughout the 1950s and 1960s, and “In 1958, the American Bar Association and the

American Medical Association issued a joint report calling for treating addiction as a medical problem, not a criminal one” (p. 8). This agreement between the professional associations of two disciplinary approaches gave the judicial system official power to integrate the treatment-based approach of the medical model with court proceedings.

The medical and psychiatric definitions of drug and alcohol addiction are similar.

The important common thread between each of these definitions is the emphasis of addiction as a problem that is beyond one’s control; though initial use is regarded as a conscious decision, addiction is treated as a disease which sufferers are unable or unlikely to cure themselves. Cohen even explains the psychiatric definition as analogous to the medical definition:

Drug dependence has a specific psychiatric/ medical definition – loss of control is a sine qua non. The American Psychiatric Association’s Diagnostic and Statistical Manual (DSM-IV) defines drug dependence as a syndrome characterized by a maladaptive pattern of substance use, leading to clinically significant impairment or distress, as manifested by three (or more) of the following:

1. Tolerance, as defined by either of the following: (a) a need for markedly increased amounts of the substance to achieve intoxication or desired effect, or (b) markedly diminished effect with continued use of the same amount of the substance 2. Withdrawal, as manifested by either of the following: (a) the characteristic withdrawal syndrome for the substance, or (b) the same (or a closely related) substance is taken to relieve or avoid withdrawal symptoms 3. The substance is often taken in larger amounts or over a longer period than was intended. 4. There is a persistent desire or unsuccessful efforts to cut down or control substance use. 5. A great deal of time is spent in activities necessary to obtain the substance…, use the substance…, or recover from its effects. 6. Important social, occupational or recreational activities are given up or reduced because of substance use. 7. The substance is continued despite knowledge of having a persistent or recurrent physical or psychological problem that is likely to have been caused or exacerbated by the substance. (p. 56)

As evident by the DSM IV definition, there is no numerical requirement for number of alcoholic drinks consumed or frequency of drug use that is often required for social science’s empirical examination of addiction. The emphasis of the definition is the users’ lack of control over their addiction, an assertion that has important legal implications.

Criminal punishment is predicated on the theory that individuals are free agents, to some degree, able to consciously decide their behavior. As such, punishment is afforded because an individual has purposely or negligently failed to perform a duty or infringed upon the rights of others. Modern criminal law does not require that individuals be entirely responsible for their actions, but any degree of control denotes

84 purposeful action. Even those found to be Not Guilty by Reason of Insanity (NGRI) can be held to have control of their actions, but simply lack the moral reasoning to know that the action is wrong. In the case of punishing offenders with addiction, the legal system’s purported use of the medical model is problematic in that the medical model denotes a lack of control over one’s drug or alcohol use, and in some cases, the secondary criminality that results from an attempt to continue this use. Robinson v. California, 370

U.S. 660 (1962) repealed a California law making it unlawful, and punishable, for a person to be addicted to narcotics, “even though he has never used or possessed any narcotics within the State and has not been guilty of any antisocial behavior there” (370

U.S. 660). This decision outlawed punishment for addiction, as a status, but not for criminal drug use or crimes committed due to addiction. Following this decision, in

Powell v. Texas, 392 U.S. 514 (1968) the Supreme Court decided the ability of a defendant to use of addiction as a defense for secondary crimes resulting from this problem. The Court held that although chronic alcoholism destroys one’s will to resist the excessive use of alcohol and that a chronic alcoholic does not appear in public by his own volition, but under a compulsion symptomatic of the disease of alcoholism, alcoholism was not a defense to public intoxication (392 U.S. 514). The main reason cited for this discrepancy was the lack of general agreement in the medical community about the degree of compulsion present in addiction and the lack of resources in the justice system to deal with such a widespread social problem.

In punishing offenders without taking the full scope of the medical model into consideration, the legal system essentially denies the medical definition and assumes at least some degree of conscious control of the offender. Claire Finkelstein’s discussion

(in Shute and Simester, 2002) of instances in which crimes committed while unconscious

(e.g. while sleepwalking), applies to the actions of those who are said to have no control over their addiction. Whereas the actions are legally ‘voluntary’ in that no one coerced the behavior, both the sleepwalker and the offender with addiction cannot be punished for their action because they lacked the control to prevent the criminal behavior. The position advocated in this argument is not to ignore the offenses of those with addiction, but rather to respond with a treatment-based approach rather than strict punishment for actions that are at least partially beyond a person’s control.

Possibly in an attempt to exemplify an attempt at a therapeutic response, the judicial system has also been a party to atrocities committed in the name of mandated treatment. Rather than sentencing an offender to incarceration, past Supreme Court and lower court decisions have allowed for the forced institutionalization of any person the state deems to require this service. Instead of advocating treatment per se, this method is similar to incarceration in that impedes upon the freedom of an individual in response to an offense deemed to be caused by psychological problems. Perhaps the most infamous example of the misapplication of therapeutic justice is the case of Buck v. Bell, 274 U.S.

200 (1927) in which the Court upheld “Virginia’s right to subject one of its citizens to involuntary sterilization. The state of Virginia based its action on the purported mental retardation of Carrie Buck and the incorrect belief that this condition would inevitably be inherited” (Cohen, 2004, p. 17). The court decided that it was in the best interest of the public good to prevent Buck from having children who (they believed) would have mental retardation, so they mandated treatment. Though this extreme decision is unlikely to be repeated in a modern court decision, it brings to light the intersection of medicine,

psychology and law, and the possible dangers of mandating life-changing treatment based upon popular social or scientific theories of the time.

Drug courts have also come under scrutiny for mandated or coerced treatment.

Tyuse and Linhorst (2005) warn, “Although participation in these programs is typically

voluntary, an element of coercion exists when defendants are presented with an option of

going to jail or participating in the treatment program” (p. 237). Motivation to abstain

from drug or alcohol use is an influential factor in the success of treatment. By mandating an offender to rehabilitation or by making the option of participating in a drug court inconceivable to turn down, the intrinsic motivation to stop using drugs or alcohol

may be lessened. Furthermore, the use of incentives and sanctions within the program

can influence a participant’s motivation and recovery. Bernard Weiner (2006) discusses

the limits of rewards and punishment in modifying behavior. He argues that punishment

has limited value in that it tells the individual that he or she was capable of doing well,

but since he or she chose to do poorly, punishment is necessary (p. 127). This approach

puts the focus on individual choice and control over behavior. Rewards are seen to

inhibit motivation in that, if they are too significant, they replace the will to do well with

the desire for reward. This is undesirable in a drug court setting, as the participants will

be on their own after the program without material rewards for not using drugs.

Aside from lacking the personal, intrinsic motivation to recover from addiction, in

a mandated treatment setting, offenders lose the right to refuse treatment – a right that is

recognized as basic, but problematic, throughout the psychological community. Williams

and Arrigo (2002) examine the intersection of law and psychology as it relates to the

right to refuse treatment and argue that, from a psychological standpoint, the refusal of

treatment is often seen as a further sign of a mental disorder (or addiction) and therefore

further reason to treat the person against his or her will (p. 165). From a legal standpoint,

they contend that the right to refuse treatment has become more akin to the right to object

to treatment, but they acknowledge that some ground has been gained in the higher

standards required to impose medication upon an individual. Regarding the

interdisciplinary nature of this issue, Williams and Arrigo (2002) argue that the professional duty of psychologists sometimes requires them to treat people regardless of

their will, whereas the law does give some, even if little, consideration to the person’s desire (p. 162). Though the court can take a person’s desire into account when sentencing, judges still have the ability to mandate treatment.

From a purely legalistic perspective, Cohen (2004) upholds the use of mandated treatment based upon the diminished rights of convicts. He explores mandated treatment from a legal perspective, citing Griffin v. Wisconsin, 483 U.S. 868 (1987) and

Pennsylvania Board of Probation and Parole v. Scott, 524 U.S. 357 (1998) as precedent for the diminished right to due process afforded to people on probation or parole. The underlying legal argument put forth through these cases supports warrantless searches (a category under which mandatory drug testing is usually debated) and compelled psychotherapy (p. 241). Thus, ignoring the implications it has on the success of recovery, the Court has upheld its own right to impose treatment upon individuals for social utility under the guise of diminished rights.

Although the right of courts to mandate treatment has been upheld, restrictions have been placed on the type of treatment that the court may mandate. Cohen (2004) approaches treatment methods from a legal perspective, citing Kerr v. Farrey, 95 F.3d

472 (7th Cir. 1996) and Warner v. Orange County Department of Probation 173 F.3d 120

(2nd Cir. 1999), cert. denied as legal precedent against mandating Alcoholics Anonymous

(AA) attendance within prison or as a condition of parole. These cases address the

religious nature of AA and the inability of the state to mandate participation because of

the emphasis on religion (Cohen, 2004, p. 313 – 314). The importance of Cohen’s

explanation of these cases is the finding that AA, or similar religion-based twelve-step

treatments, are acceptable as options for parole, but may not be mandated as ‘the only

way out’ (p. 314).

Aside from the legal problem of mandating AA because of its religious emphasis, there is debate concerning the efficacy of the program. Though participation in drug

courts is usually voluntary, the primary requirement for treatment in most drug courts is active participation in a twelve-step treatment program, such as Alcoholics Anonymous

(AA) or Narcotics Anonymous (NA). Twelve-step programs emphasize addicts’ lack of

control over their addiction; this concept, as discussed above, becomes problematic when

considered in relation to the legal system’s ability to dictate punishment. Stanton Peele’s

(1991) critique of the predominance of twelve-step treatment defines addiction in a

unique way, by regarding the degree of addiction as a result of motivation to become sober and the existence of external factors (or lack of) rather than solely as an internal condition (p. 3). His evaluation of the efficacy of treatment found that success was largely dependent upon how much a person had to lose by continuing to use rather than the type of treatment program used; therefore, Peele regards addiction not as a stable condition across all people, but one that varies between users due to their motivation to change. In this perspective, individual control over addiction is presumed, but only in

conjunction with a motivation to stop using for fear of losing an external factor, such as family. Thus, drug courts’ insistence on mandating twelve-step treatment as the only way to rehabilitate addiction is called into question.

There is considerable disagreement concerning the efficacy of twelve-step programs’ ultimate goal of total abstinence and focus upon this area rather than building positive life habits. Peele (1991) asserts that the most effective programs, when motivation is a controlled variable, focus on life skills and managing stress rather than

strictly maintaining sobriety (p. 1-2). Additional research has found the need for

interdisciplinary treatment as well. The examination of alcoholism treatment by Alcohol,

Research & Health (2000) explicitly explores both medical and psychological treatment options, but emphasizes the necessity of combining the two for effective treatment (p.

56). The article advocates the position that while twelve-step programs appear to be effective, they should be considered for use only in conjunction with professional therapy

(p. 57). The drug court models’ use of treatment in lieu of incarceration allows a greater chance for rehabilitation, but solely using (and mandating) twelve-step treatment limits the participants’ chance for growth and recovery.

A final concern in evaluating the use of drug courts as an alternative to incarceration is whether they are cost-effective. Although critics of the drug court approach often focus on a programs’ failure to reduce recidivism and prevent relapse, supporters counter that they are at least as effective as punishment through prison, but cost substantially less. Wells and Munsterman (2005) report a National Institute of

Justice Study which found that offenders who had gone through a drug court program were rearrested less frequently than those that went through a traditional court setting (p.

24). Furthermore, Carey and Finigan’s (2004) cost-benefit analysis “indicates that the

drug court participants also cost local taxpayers $5,071 less on average over a 30 month

period than those processed through traditional court” (p. 330). Carey and Finigan

(2004) break down the investment costs into categories surrounding the court process

(Figure 4.1), and Wells and Munsterman (2005) use Figure 4.2 to determine the total savings:

Figure 4.1 Difference in Investment Costs: Drug Court vs. Traditional Court Processing, by Transaction Cost per Drug Cost per Traditional Cost Difference: Court Participant Court Participant Drug Court Transaction (n = 594) (n=573) Savings Arrest $193 $193 $0 Booking $284 $284 $0 Court time $682 $679 -$3 Treatment $2,644 $2,009 -$635 Jail time $1,611 $2,783 $1,172 Probation time $514 $1,422 $908 Total Cost $5,928 $7,370 $1,442

(Carey and Finigan, 2004, p. 329)

Figure 4.2 Sources of Savings to the County, Per Participant Drug Court Traditional Court Difference: Drug Types of Costs Participants Participants Court Savings A. Investment Costs $5,928 $7,370 $1,442 B. Court and Law Enforcement Costs $8,983 $11,311 $2,328 C. Victimization Costs $6,676 $7,977 $1,301 Total Savings (A + B + C) $5,071 (in Wells and Munsterman, 2005, p. 24)

Another study, reported in Alcoholism and Drug Abuse Weekly (2004), contends that the average drug court participant produces $6,779 in benefits from reduced

recidivism (p. 3). Furthermore, “Those benefits are made up of $3,759 in avoided criminal justice system costs to victims. A total of $1.74 in benefits for every dollar spent on drug court was realized” (p. 3). In addition to the primary costs saved by drug courts, the meta-analysis prepared by the Drug Court Clearinghouse and Technical

Assistance Project (1998) reported that over 500 drug-free babies had been born to female drug court participants at the time of the study (p. 7). This affects secondary costs associated with drug use, because it “obviates the substantial medical and social services costs (estimated at a minimum of $250,000 per baby) required to care for a drug-addicted infant, let alone the societal impact that results” (p. 7). As such, aside from being a more just method of responding to offenders with addiction, drug courts save money via reduced costs related to recidivism and secondary costs associated with drug use.

Methods of alternative justice, such as restorative and therapeutic justice, evolved as a response to the strict use of incarceration to achieve justice; however, the integration of medical and psychological treatment with legal procedure has produced interdisciplinary debate on the matter. The modern court system of Franklin County,

Ohio provides an example of the sentencing options currently open to judges. The use of a drug court to assist in the rehabilitation of offenders is not unique to Franklin County, and the discussion surrounding the use of this type of therapeutic justice applies to its program as well. Before evaluating the TIES program, a discussion of the criminalization of drug use, definitions of addiction, mandated treatment and the efficacy of treatment was necessary. In the next section, the progress of the TIES program is reported through a preliminary statistical analysis.

Chapter Five: A Preliminary Case Study of the TIES Program

======ABSTRACT: Since 1989, the use of drug courts as a therapeutic model of justice has grown from one county’s experiment to a national, federally-funded movement. The Treatment Is Essential to Success (TIES) Program, in Franklin County, Ohio, began in April, 2004 and has since served 88 participants who are now still active in the program, have graduated or been terminated. The present study is a preliminary analysis of the TIES Program that aims to provide descriptive, correlational and qualitative data concerning the program and evaluate factors influencing success within the program. Preliminary findings confirm previous research indicating no direct effect of gender or race upon completion of the program, but do indicate a significant effect of education. Additionally, the time of relapse was found to be a significant factor in determining completion of the program. This analysis will be helpful for later large-scale analysis when the program has served more participants and more data become available. ======

Introduction

Drug courts are a model of therapeutic justice that purports to reduce involvement

in the criminal justice system through the treatment of drug and/or alcohol abuse. “What began as an experiment has grown into a national movement that has changed the way in which the criminal justice system processes drug cases and responds to drug offenders”

(Sanford and Arrigo, 2005, p. 240). As of November, 2003, 1,093 drug courts for adult offenders were active in all 50 states, as well as Puerto Rico, Guam, Native American tribal courts and 2 federal districts; additionally, at that time, another 414 courts were under development (p. 240). The current research examines one such drug court and evaluates its efficacy in meeting the stated goals of the program by utilizing recommended evaluation methods.

The Treatment is Essential for Success (TIES) Program began on April 7, 2004.

The TIES Program is a felony drug court in Franklin County, Ohio. Franklin County encompasses the city of Columbus and the surrounding communities. According to the

TIES Program handbook, “[TIES] is a pilot program of fifty persons who qualify for

specialized programming on community control” (p. 3). To qualify for participation in

the TIES Program, a person must be charged with one or more fourth or fifth degree

felonies; if offered placement in the program, a person must plead guilty to these charges

and be sentenced to the completion of TIES as a condition of community control

(probation). The program does not accept candidates who have a history of violent or

sexual offenses. Though it is not a requirement, participants generally have several prior

convictions for charges related to drug and/or alcohol abuse.

The specialized programming offered by the TIES Program goes beyond the

requirements of intensive probation; in each phase of the program, participants must meet

several strenuous criteria before moving ahead to the next phase. During Phase One,

participants are screened for drug use three times per week and required to attend at least

three 12-step program meetings per week, as well as meet with the program’s probation

officer once per week, attend weekly hearings before the program judge, call the

coordinator at least once a week and comply with the additional treatment recommended

by the court-provided referral service. During this phase, the participant must also obtain

a 12-step sponsor and pay the one-time $60 supervision fee. In order to move to Phase

Two, the participant must spend 12 weeks in Phase One, have negative urine drug screens

for at least four weeks prior to advancement and no sanctions for other violations for at

least six weeks prior.

During Phase Two, the requirements are relaxed slightly. The participant is

screened for drug use once a week, attends bi-monthly hearings, calls the coordinator and

meets with the probation officer every other week. The requirement of three 12-step meetings remains. During this phase, participants must also provide documentation of

94 the completion of any additional treatment that was recommended by the court, provide proof of a visit to a doctor and a dentist and update the coordinator on their progress toward employment or education. Participant who have completed twelve weeks in

Phase Two, had negative urine drug screens for at least six weeks prior to advancement and no sanctions for eight weeks may advance to Phase Three.

The requirements in Phase Three are much lighter than the previous stages. The participant must attend only one hearing a month, call the coordinator and meet with the probation officer once a month, attend two 12-step meetings per week and submit to two urine drug screens per month. During this phase, the participant must provide evidence of participation in at least five “non-use” leisure activities and three volunteer “giving back” activities. If the participant has had negative urine drug screens for at least eight weeks and no sanctions for at least ten weeks, he or she may petition to move to Phase

IV, also known as Continuing Care. During the last phase, the participant must submit to random urine drug screens at the request of the probation officer, have an interview with the program judge, pay all fees and fines associated with the charges and participation and have obtained a GED, if applicable. Once all of these requirements are met, the participant is recognized in a formal graduation ceremony.

The sanction for positive drug screens, missed meetings with the coordinator or probation officer and dirty, diluted or missed urine drug screens is jail time, typically beginning on the day of the hearing when the participant is informed of the dirty screen.

The amount of time differs for each violation, and the sanctions for positive drug screens increase with each additional positive. Other violations, such as being late to a treatment appointment, weekly hearing or probation appointment, results in a sanction of

community service. Participants who miss any 12-step meetings, must attend double the

number they missed during the next week, in addition to completing the meetings for the

current week.

While the TIES Program demands much of the participants’ time and effort, it

also provides participants with incentives and resources to cope with these demands.

The TIES participants are rewarded for successfully completing each phase with a medallion or similar symbol or recognition, and it is the aim of the coordinator and

program judge to award personal rewards to individuals showing an outstanding level of

commitment to their treatment and the program. Regarding resources, Community

Connections, a local non-profit organization, works closely with TIES participants to

assist in finding employment, housing and transportation. For those participants that

have had their children removed from their custody, the TIES Coordinator and

representatives from Community Connections also assist in finding parenting classes and

obtaining resources to regain custody of their children. Furthermore, the TIES Program

has treatment providers contracted in several areas around Columbus, thus allowing the

participants access to care close to their homes. The program offers bus passes to

participants without personal transportation to ease the cost and worry of being able to

attend weekly meetings and treatment sessions.

The current study aims to evaluate the efficacy of the TIES Program. The stated

purpose of the TIES Program is:

…to try to decrease the impact of drug and alcohol problems on the level of crime in Franklin County. The court understands that drugs and alcohol play a big role in many crimes. The court wants to try to deal with the cause of some of the crimes committed in this county by connecting persons who have committed crimes that are related to their drug or alcohol problem with needed treatment and

other life services. In doing this, the court wants to try to help that person make a permanent change and not return to crime in the future. (p. 3).

In order to determine whether the program is effective in meeting its goals, two main issues must be examined. First, as the court aims to prevent a return to crime, the recidivism of the TIES participants must be evaluated. Secondly, as the program attempts to bring about a permanent life change, the progress of the participants’ sobriety must be examined.

Additionally, the grant supporting the program requires progress reports and

evaluations of the participants’ success. It is of interest to the program coordinator for

the purpose of this ongoing research to evaluate the correlation of success in the program

with demographic factors and differences in program experience, such as treatment

providers or participation in voluntary TIES activities.

Literature Review

Methods of Study

When determining whether drug courts are effective, one must first determine

how to measure the efficacy of drug court programs. Nolan (2001) best explains the dilemma in writing: “the viability of modern methods of empirical measurement have

been joined or colored, if not called into question, by the predominance of narratives” (p.

127). Stories of individual success often accompany, and sometimes attempt to replace, quantitative data; Nolan argues that this practice causes some critics to disregard drug

courts entirely as they do not put credit in ‘non-scientific’ methods of evaluation (p. 128).

However, drug court participants and administrators argue that quantitative statistics

mask the often non-linear path to recovery (p. 127). In this sense, narrative stories of

97 success and failure are complementary to statistics, especially concerning relapse.

Whereas a study might convey a relapse as a failure of the program to reduce drug use, a narrative would be able to explain the significance of that relapse in a participant’s overall recovery.

Inciardi, McBride and Rivers (1996) define the evaluation of drug courts as “the systematic application of social research procedures to the assessment of the conceptualization, design, implementation and utility of social intervention programs” (p.

74). Working backwards, they suggest elements that must be examined in creating a drug court so that it will support a successful system and comply with future evaluation. Their recommendations include an examination of the current court system’s ability to support a drug court, the need for drug rehabilitation services in the area and the structure most likely to be supported by the political nature of the area (p. 75-77). In this view, the success of the program is seen as a result of the surrounding environment rather than solely the progress of the participants. Inciardi, McBride and Rivers (1996) further suggest that there are two measures used to assess the impact of a drug court on recidivism: felony re-arrest rates for both drug and non-drug crimes and time to re-arrest

(p. 79). When evaluating treatment, they suggest examining “proportions of clients completing treatment, proportions of clients requiring motivational jail time, restarts required and the length of time to completion” (p. 79). Their further suggestions revolve around assessing the cost-effectiveness of the program.

Sanford and Arrigo (2005) point out that “the variation in recidivism across drug courts is a natural and direct product of the individuality of the drug court itself” (p. 246).

They argue that one must determine the type of offender the drug court accepts and the

national rate of recidivism for that type of offender before declaring success in reducing

recidivism; one must also determine this information before comparing the outcome of

two different programs (p. 246). Whereas some programs, for example, accept violent

offenders and others do not, this population difference makes a comparison between the

two more difficult. Another methodological issue addressed by Sanford and Arrigo

(2005) is the ability of programs to assess rates of recidivism and relapse after

participants leave the program, an issue first exposed by the meta-analysis discussed

below.

The United States General Accounting Office (GAO), recently renamed the

General Accountability Office, conducted a meta-analysis of twenty drug courts in 1997,

in an attempt to evaluate the efficacy of the programs. The six issues examined were:

(1) criminal profile of program participants compared to similar offenders processed through the traditional adjudication system (2) completion rates of participants (3) differences in characteristics between program graduates and dropouts (4) sanctions imposed on persons who failed to complete the drug court programs or comply with program requirements (5) drug use and criminal recidivism rates of program and non-program participants and (6) costs and benefits of drug court programs to the criminal justice system. (p. 4)

Overall, the GAO was “…unable to provide definitive answers to the six specific issues raised about drug courts based on information from existing evaluation studies” (p. 74).

This was primarily due to the inconsistency in evaluation methods across the studies and

the lack of a control group throughout all studies when examining recidivism and drug

use after completing the program. The Department of Justice, in issuing the block grants,

had suggested data collection in the following areas:

¾ Criminal justice history, ¾ History of substance abuse,

¾ Level of use of controlled or addictive substances at the point of entry into the program, ¾ Data on re-arrest and/or conviction for a crime while in the program, ¾ Completion/ non-completion of drug court program, ¾ Follow-up data on substance abuse relapse after completing the program and ¾ Follow-up data on re-arrest and/or conviction for a crime after completing the program. (GAO, 1997, p. 11)

It is in the last two categories that the GAO meta-analysis found the current studies to be lacking. Acknowledging the methodological obstacles to gathering data about participants after program completion, the committee proposed follow-up methods ranging from criminal history checks to self-reports by graduates of the program. Despite the insufficient analysis in the 20 studies, the GAO was able to tentatively summarize their findings and report limited results.

The GAO review found that the 56 programs that had been in operation for more than 18 months at the time of their analysis yielded completion rates ranging from 8 percent to 95 percent, averaging approximately 48 percent (p. 56). No median was reported. Retention rates were equally as variable, as 131 programs reported retention rates ranging from 31 percent to 100 percent, with an average of 71 percent (p. 56). The additional findings of the GAO meta-analysis are as follows:

¾ As of December 31, 1996, 65,921 people had been admitted to drug court programs in the United States since 1989. About 31 percent (20,594) had completed programs, and about 24 percent (16,501 had failed to complete programs because they were terminated or they voluntarily withdrew or died while in the program. About 40 percent, or 26,465 offenders, were reported to be enrolled in drug court programs… The status of the remaining 4 percent, or about 2,800 people, was unknown. (p. 11)

¾ Of the 26,465 enrollees, about 25 percent, or 6,564, did not regularly attend the program or were wanted on bench warrants for failure to appear. (p. 54)

¾ Drug relapse, indicated by positive drug tests, was measured only during program participation, and different studies revealed relapse rates that ranged from 7

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percent to about 80 percent for drug court program participants. Criminal re- arrest recidivism rates ranged from 0 percent to 58 percent for drug court program participants. (p. 74)

The GAO cautioned about interpreting these results, as they felt that the data from each

program were difficult to compare to dissimilar programs. The statistics reported above

convey information about many types of drug courts with varied procedures. Other

studies have more closely examined individual drug courts.

Efficacy Results in Previous Studies

Keeping in mind the various constraints and hesitations against generalizing

individual findings described above, several studies have been conducted, each of which

reports different findings concerning the actual efficacy of drug courts.

Recidivism The importance of putting the reported recidivism statistics into a national context

is explained by Sanford and Arrigo (2005). They report the findings of Roman et al.

(2003), who found that the national recidivism average of drug court participants was

27.5 percent (p. 246). The U.S. Department of Justice Bureau of Statistics projected in

2002 that 65 percent of drug offenders (in general) will re-offend within 3 years after

release from incarceration (in Sanford and Arrigo, 2005, p. 239). However, no basis of

comparison was found for similarly situated individuals in the Roman et al. study, so this

number cannot be cited as a success or failure in relation to the expected national rate.

Sanford and Arrigo (2005) conclude that the recent success of rehabilitative programs has

important policy implications (p. 256). They argue in support of the use of rehabilitative

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justice and point out the possibility of applying the problem-solving technique used to other types of criminal behavior (p. 256).

Relevant to Sanford and Arrigo’s (2005) previous contention that the type of offender affects the success rate of the program, Banks and Gottfredson (2004) report that the nonviolent offenders that went through the drug court observed in their study had a significantly longer time to re-arrest than the control group of people with similar convictions who did not participate in the study (p. 637). They also report the findings of

Peters and Murrin (1998), who compared recidivism rates of drug court graduates, non- graduates and a similar comparison group that did not participate in the drug court. They found that “Graduates were significantly less likely to be rearrested throughout the 30-

month follow-up. Non-graduate re-arrest rates were higher than the comparison sample,

however (in Banks and Gottfredson, 2004, p. 641). This was attributed to the relationship

of time spent in the program and success in the ‘outside world.’

Torgensen, Buttars, Norman and Bailey (2004) examined the prevalence of the

substance abuse problem among prisoners in Utah. They found that “Approximately 80 –

85 percent of the inmates in the state of Utah have major substance abuse problems, and

80 percent of these get little or no treatment whatsoever for these problems. Seven out of

ten prison parolees recidivate within two years” (p. 69). The researchers also discuss the

importance of looking beyond the original charge to determine whether an offender has a

drug and/or alcohol problem. For example, “studies show that the vast majority of

identity theft crimes are committed by those who are feeding their substance abuse

addictions” (Torgensen et al., 2004, p. 69). Relating this issue to the importance of

treatment, they continue, “If all we do is put these people in jail, make them serve their

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time and release them back to their problems while still struggling with addiction, we, as a society will lose the fight” (p. 69). Torgensen et al. report that the recidivism rate of

Utah offenders who participated in a drug court program was only 17 percent, whereas the GAO reported the recidivism rate for the similar, untreated population to be 70 percent (p. 72). This recidivism statistic is one of few that is reported using the guidelines of comparison that the GAO recommended in its 1997 report.

The Alcoholism and Drug Abuse Weekly newsletter reports the results of the

Government Accountability Office (GAO) analysis, which found that “adult drug court programs… led to recidivism reductions corresponding to the length of time spent in a program” (p. 1). In this study, titled “Adult Drug Courts: Evidence Indicates Recidivism

Reductions and Mixed Results for Other Outcomes,” the GAO examined only programs

that met their previous recommendations for data collection. They examined 27

evaluations of 39 adult drug courts; the population was primarily male with poor

employment and educational achievements (p. 1). The GAO reported the following

additional results:

¾ Lower percentages of drug court participants than comparison group members were rearrested or reconvicted. ¾ Program participants also had fewer incidents of re-arrests or reconvictions and a longer time until re-arrest or reconviction than comparison group members. ¾ Recidivism reductions were found across-the-board – all different types of offenses. ¾ Completion rates in selected adult drug court programs ranged from 27 to 66 percent. (p. 5)

Most importantly, the GAO findings reported that the recidivism reductions remained

after completion of the program. In fact, lack of re-arrest was the most reliable factor in

predicting completion of the program, other that adherence to program procedure (p. 5).

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Banks and Gottfredson (2004) approached the study of recidivism from a different angle by comparing the “time until failure” (either committing a person, property or drug crime) for participants in a drug court and a control group of similar

offenders. They found that drug court participants were far less likely than the control

group to recidivate within the time period of the study, with 33 percent of the drug court

sample “surviving” two years without an arrest, whereas only 18 percent of the control

sample survived the two year period (p. 649). Banks and Gottfredson found that there

was no initial difference between the two groups: “Both samples experienced their

sharpest decline in the cumulative proportion surviving between months 0 and 4, when each lost about one-third of its members to failure” (p. 649). However, after the fourth month, the failure rate of the drug court participants declined dramatically.

Relapse The data concerning drug court participants overwhelmingly deal with recidivism as opposed to a return to drug use. Due to the tactical and ethical concerns of collecting accurate data concerning drug use after program participation, no study cited by the GAO reported data on post-graduation drug use. Studies accounting for in-program use are scarce as well. Belenko (2000) notes in his meta-analysis of 37 evaluations of 36 different drug courts, “Unfortunately, with the exception of urinalysis data, very few of the evaluations reviewed for this article provided quantitative data on program services, supervision or sanctions” (p. 22). Of the five studies that did provide data concerning sanctions, none identified the cause of the sanctions; for example, an evaluation of the drug court in Butler County, Ohio found that participants received a mean of 2.4

104 sanctions (p. 22). However, it is not specified whether this sanction is a result of a return to drug use or any number of other possible violations.

One way in which the decline of drug use is indirectly referred to is in the correlation between the success of treatment and lessened recidivism. Drug courts have shown success in reducing recidivism not only overall, but regarding particularly addictive drugs as well. C. West Huddleston III (2005) reports that drug courts are an effective strategy for reducing methamphetamine use among offenders because of the long time of the program as compared to regular prison sentencing or probation (p. 1).

For example, the Orange County, California, Drug Court “has graduated more than 1,000 addicts to date; of those, 80 percent have no re-arrest for a drug-related crime and 74 percent have no re-arrests at all” (p. 16). Though these numbers sound impressive, again, they must be put into context and compared to a national or similar state-wide analysis to be useful. Additionally, it must be noted that these statistics only report arrest data and cannot guarantee that graduated participants are not using again. However, considering the aforementioned ethical dilemmas, examining re-arrest for drug-related crimes is often the best indicator researchers have concerning a relapse.

Huddleston also stresses the importance of accountability in treatment, addressing co-occurring mental disorders and community involvement as factors that are important to reducing drug use. Though the drug court participants face a heightened level of accountability for their actions during treatment, Huddleston refers to the accountability of the treatment team; he writes: “This added accountability from the court, probation and law enforcement is central to effectively managing and treating a methamphetamine- involved offender” (p. 3). Huddleston quotes Hon. Dennis Fuchs, Salt Lake City, Utah:

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As a seasoned judge, I have found that frequent and immediate responses are the most effective way to deal with the methamphetamine addict. In addition, it is essential through treatment and court intervention to get to the underlying cause of the addiction and deal with the physiological and psychological reasons for the addiction. Drug courts are the most effective way to deal with these problems. (in Huddleston, 2005, p. 3)

Treating co-occurring mental disorders in people with substance abuse issues is problematic because of the reliance on psychiatric medication. Huddleston advocates addressing the issue a month into sobriety in order to facilitate dialogue between the treatment provider and the participant concerning the best course of action (p. 6). Lastly, the community reinforcement promoted by Huddleston refers to the involvement of the participants’ family, employer and friends, if applicable. He writes, “The approach uses individualized treatment to promote lifestyle changes in three key areas: marital therapy, employment and vocational counseling and assistance and the development of new social networks and recreational practices” (p. 6). The goal of this type of treatment approach is to integrate the participant back into the community with the support of non-using friends and family members. Huddleston’s study found these elements of the program as effective indicators of success upon graduation; however, there were no data to indicate what factors were indicative of success within these parts of the program.

Demographic and Other Factors Indicative of Success

Examinations of drug court success rates also report data concerning the demographics of the population, and the correlation between these factors and success.

According to Belenko (2001), “an estimated 72 percent of drug court clients are male; 38 percent are African American, 42 percent white non-Hispanic, and 17 percent Hispanic”

(p. 19). Though individual case studies often report the prevalence of the types of drugs

106 used by the population studied, these statistics differ between drug courts. Belenko writes, “Drug of choice vary widely across regions and courts. These differences probably reflect local drug use patterns as well as local law enforcement strategies” (p.

19). These demographic factors are often examined in the light of correlation to success in the program. Multivariate analyses of factors affecting graduation were included in an analysis of several drug courts by Goldkamp et al. (2001). They found that:

Male participants had higher graduation rates than females in Lackawanna County (NY), but females had higher rates in Portland (ME) and Polk County (IA). In Roanoke (VA) and Polk County (IA) whites had much higher graduation rates than nonwhites… In Polk County (IA), the evaluators also found that clients whose primary drug was cocaine had much lower graduation rates than those who used methamphetamine, and drug type was strongly correlated with race. (p. 27)

These findings present useful correlational data concerning the success of participants based upon demographic factors, but no attempt has been made to causally link success to any single factor because of the complex relationship among them. For example, success rates based solely upon race are not meaningful because of the strong correlation between drug of choice and race.

Further analysis by Goldkamp et al. (2001) in the evaluations of the Portland

(OR) and Las Vegas (NV) drug courts found that several variables were significantly related to the success of the program. For the purpose of their analysis, success was considered graduation from the program. In the Portland (OR) drug court, time in treatment, not receiving sanctions and number of court appearances was positively correlated to graduation (p. 28). Individual demographic factors were not statistically significant. In the Las Vegas (NV) drug court, not receiving any jail sanctions was significantly related to program graduation, in addition to the same factors found for the

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Portland court (p. 28). When evaluating these findings, it is important to keep in mind that all these factors themselves reflect compliance with drug court requirements and longevity in the program, which by definition lead to program graduation.

An additional component of success within the program studied is participation in certain aspects of the program. Judicial status hearings are mandatory for some drug courts and somewhat voluntary for others. Marlowe, Festinger, Dugosh and Lee (2005) found that at six and twelve months of participation, those that attended bi-weekly

judicial status hearings fared better than those who were in the program and did not

attend the meetings; however, there was no control group of similar users that were not in

a drug court environment (p. 145). This finding, again, must be interpreted with the

understanding that success within the program is often directly related to compliance with

program procedures.

Other studies have evaluated program procedure and requirements as they relate to success. In this sense, success is meant as reduced re-arrest rates and relapse. This view, then, evaluates the success of the program goals rather than the success of the participants within the program. Marlowe et al. (2005) put forth several factors influencing reduced recidivism and drug use, stating:

The likelihood that an offender will engage in drug use or illegal activity is influenced by the perceived certainty of being detected for infractions or recognized for accomplishments, the perceived certainty of receiving sanctions for infractions or rewards for accomplishments and the anticipated magnitude of the sanctions and rewards. (p. 183)

The perceived certainty of detection is especially important when considering the monitoring of drug use. Drug courts commonly use urine drug screens to monitor drug use by participants, and participants are sanctioned for positive screens. The Drug Court

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Clearinghouse (2000) emphasizes the necessity of accurate drug testing because of the

important implications of a positive screen. Their manual on drug testing states: “As

with any scientific test, the interpretation of a drug test result requires balancing in a

number of factors, including elements directly related to the test, the physical

characteristics of the individual being tested and the nature and length of the individual’s

drug usage” (p. 1). Proper interpretation of results is important not only to uphold the

perception of detection of use within the program, but to build credibility for the testing

by not sanctioning a participant for a falsely positive drug screen. This mistake affects

not only perceived detection, but would be counterproductive for the participant who

expects a reward for a clean screen but is sanctioned for a false positive.

Methods

Participants The participants evaluated in the present study were active, graduated and terminated members of the TIES Program (see Appendix B). A total of 88 participants

were evaluated; 30 were active participants (34.1 percent), 10 were graduated participants

(11.4 percent) and 48 were terminated participants (54.5 percent). Examining all three

groups, a total of 26 participants were female (29.5 percent) and 62 were male (70.5

percent); 36 were white (40.9 percent), 51 were African-American (58 percent) and the

race of 1 participant was unknown (1.1 percent). The age of the TIES participants

evaluated ranged from 20 to 53; the average age of the participants was 34.6 years and

the median age was 35 years.

The highest education level completed for the participants varied in a range from

completing some middle school to obtaining a Bachelor’s degree; 2 participants had

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completed some middle school (2.3 percent), 25 participants completed some high school

(28.4 percent), 20 participants obtained a high school diploma (22.7 percent), 12

participants had attended some college (13.6 percent), 2 participants had obtained a

Bachelor’s degree (2.3 percent) and educational data were unavailable for 27 participants

(30.7 percent).

The age that the participants first used a drug ranged from 6 to 31; the average age

that participants first used drugs was 15.3 and the median age was 17 years. The first

time the participants used a drug, 18 used only marijuana (20.5 percent), 24 used only

alcohol (27.3 percent), 8 used both marijuana and alcohol (9.1 percent), 1 used powder

cocaine (1.1 percent), 2 used crack cocaine (2.3 percent), 4 used heroin (4.5 percent), 1 used painkillers (1.1 percent) and data about drug of first use were unavailable for 30 participants (34.1 percent).

The drug of choice for participants was marijuana (10; 11.4 percent), powder cocaine (8; 9.1 percent), crack cocaine (26; 29.5 percent), alcohol (7; 8 percent), heroin

(4; 4.5 percent) and painkillers (2; 2.3 percent). Data on drug of choice were unavailable for 31 participants (35.2 percent). Of the 10 participants that completed treatment and graduated from the TIES Program, total time in the program ranged from 14 to 18 months; the average time to complete the program was 15.5 months.

Materials The data for the present evaluation were collected from the database and staff

notes created and maintained by the TIES Program Coordinator. The database can only

be accessed from the Franklin County courts, and contains background and demographic

information on each participant who has been admitted to the program. The staff notes

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are individualized reports for each participant that contain information about felony charges, the treatment plan, weekly updates on the participants status and the results of the urine drug screens. The staff notes were used to determine the number of positive urine drug screens for each participant and which phase the participant was in when the use occurred. No names were transferred from the database or staffing notes to the spreadsheet used to tabulate the data; the participants’ TIES program identification numbers were used to ensure that the data were accurate without using names. Once the data were transferred into a spread sheet, statistical analysis was completed using SPSS

12.0, Student Version.

Procedure With the permission and assistance of the TIES Program coordinator, a data

spreadsheet was created with the following information for every active, graduated and

terminated participant (See Appendix A):

¾ TIES Program number ¾ current phase/ phase at termination ¾ age at start of program ¾ gender ¾ race ¾ marital status ¾ educational status ¾ literacy ¾ age at initiation of drug use ¾ drug used at initiation, drug of choice ¾ whether the participant completed a 90 day Community Based Correctional Facility (CBCF) sentence before joining the program ¾ whether the participant was sentenced to CBCF during the program ¾ number of drug and or alcohol use events in Phases One, Two, Three and Four ¾ length of time it took to graduate from the program

After this information was gathered, it was re-coded into numerical data to be analyzed with SPSS software. Additionally, two interviews were conducted to provide qualitative

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data about the program. The interviews were tape recorded, but no identifying

information, other than the gender of the participant, was evident on the tape during the

course of the interview.

The majority of the previous studies evaluating drug courts examine recidivism or

factors correlated to success within the program. As the TIES Program has only been

operating for two years, data concerning the recidivism of graduates as compared to those

terminated from the program or turned down for admission (the most accurate control

group available) are not yet abundant. As of April, 2006, ten participants had graduated

from the program, and none had been re-arrested. As the TIES program takes a

minimum of 14 months to complete, it is just now, at the two year mark, that a significant

number of participants are beginning to near graduation. Due to this methodological issue, an evaluation of the success of the program based upon recidivism would not be

meaningful.

The current study, then, provides descriptive, correlational and qualitative data

about the participants and also examines factors influencing success within the TIES

program. Descriptive data concerning the program population provide information about

the use patterns of individuals that cannot yet be statistically evaluated due to the small

sample size. The correlation analysis provides data concerning the likelihood of success

without implying causality. Even without identifying a cause for significant correlations,

this information allows the treatment team to take preventative action for the groups

exhibiting the demographic or behavioral factors found to be correlated to later use. The

qualitative data complement the statistical analysis by providing personal accounts of motivation to succeed in the program. Finally, success within the program was evaluated

112 by use events in each phase of the program by comparing the use patterns and demographic information of terminated and graduated participants.

Results

A descriptive analysis of the demographic and use patterns of program participants was first conducted to provide preliminary information about the TIES

Program participants. The most useful analysis to determine success within the program is that which provides information concerning the success of participants based upon drug use. There are several ways that the data can be split and analyzed to look for differences in success rates; as previous research indicated less of a difference in success based directly upon gender or race, the data for the descriptive analysis were split according to drug of use at initiation and drug of choice. There were seven groups of drugs used at initiation (marijuana, cocaine, crack cocaine, alcohol, heroin, painkillers and marijuana used in conjunction with alcohol) and six groups classified for the participants’ drug of choice (marijuana, cocaine, crack cocaine, alcohol, heroin and painkillers). Due to the large number of groups and the small sample size within each group, there was not sufficient data to compare the mean success rate (calculated by use in each phase and program status) with statistical analysis. However, this preliminary presentation of data provides information regarding each group that may help in identifying groups that merit further analysis when more data become available. The complete tables of descriptive analysis are compiled in Appendix C.

The correlation analysis revealed three correlations in the participant data that were significant at the p < .05 level (see Appendix D). First, the number of uses in Phase

I was negatively correlated to the number of uses in Phase II (r = -.327, p = .030). This

113 means that a higher number of use events in Phase I was correlated to a lower number of use events in Phase II and vice versa. The second significant correlation was positive relationship between the number of uses in Phase I and the length of time it took graduated participants to complete the program (r = .798, p = .006). This means that the more use events a graduated participant had in Phase I, the longer it took him or her to complete the program. The last significant correlation was the negative relationship between age and the length of time it took graduated participants to complete the program

(r = -.646, p = .044). This analysis means that, on average, a younger participant in the program is more likely to take longer than an older participant to finish the program.

There are several possible explanations for each of these correlations, discussed in the following section.

The last phase of statistical analysis compared the demographic information, as well as data concerning drug use within the program, of participants who had been terminated to those that had graduated (see Appendix E). An independent samples t-test was run to compare the age, age of initial use, gender, race and education of participants who had been terminated from the program and those that graduated. The data for each participant were coded numerically for the purpose of the analysis. The gender data were coded as “1” for female and “2” for male, and the data on the participants’ race were coded as “1” for white and “2” for African American; the data for the education level of the participants were coded as “1” for having completed some middle school, “2” for having completed some high school, “3” for having obtained a high school diploma, “4” for having completed some college and “5” for having obtained a Bachelor’s degree.

Data concerning age were reported in years. The results showed that age, age of initial

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use, gender and race had no statistically significant effect on a participant’s outcome in

the program (see Appendix E). However, the mean level of education between terminated and graduated participants was significant, t(36) = 2.33, p = .025, with

graduated participants (M = 3.57, SD = 1.13) having, on average, a higher level of

education than terminated participants (M = 2.71, SD = 0.82).

A final independent samples t-test was executed to determine if there was a

significant difference in use patterns of participants who had been terminated compared

to those that had graduated. There was no significant difference in the number of uses in

Phase I between terminated and graduated participants, t(34) = -.029, p = 0.77, showing

that terminated participants (M = 0.96, SD = 1.51) do not have significantly more or less

uses in Phase I than graduated participants had (M = 0.80, SD = 1.48). However, the

number of uses differed between groups in Phase II, with terminated participants (M =

1.41, SD = 1.37) having significantly more use events than graduated participants (M =

0.10, SD = 0.32), t(25) = -2.96, p = 0.007. The difference between terminated and

graduated participants in Phase III was not significant at the p < .05 level, but is worth

noting because the difference revealed a significance of t(14) = -2.10, p = .054. This

means that terminated participants (M = 1.67, SD = 1.17) had a marginally larger amount

of uses in Phase III than did graduated participants (M = 0.30, SD = 0.48). There were no

terminated participants that had progressed to Phase IV before termination, so data were

not available for this comparison.

Discussion

The aim of the present study was to provide initial presentation and analysis of

data for future in-depth inquiries. The information presented by the descriptive analysis

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provided data for future demographic analysis. For example, future analysis with more

participants will be able to determine if participants who began drug use with marijuana

are more likely than those who began drug use with cocaine to graduate from the

program; the same comparison can be made between any two drugs of first use or drugs

of choice. Additionally, this information can be analyzed to determine use patterns – for

example, to determine if participants who first used marijuana are more likely to continue

to use marijuana or any other type of drug. The analysis based upon this information,

once more data become available, is limitless.

The results of the correlation analysis provide a more specific starting point for

future research. The negative correlation between use in Phase I and use in Phase II

seems, at first glance, to be counterintuitive. One would tend to predict that a high

number of use events in Phase I would predict a high level of use events in Phase II.

However, this anomaly can be explained a number of ways. First, participants with a

high number of uses in Phase I are often terminated or leave the program. If these were

to be the participants most likely to use in Phase II, their absence would skew the data.

Additionally, participants who have a high number of uses in Phase I are aware that

additional use could cause their termination from the program, and may be more likely to

cease using after that point. A final explanation revolves around the “flight into

recovery” in which many participants do exceedingly well in Phase I due to a renewed

inspiration for recovery, then begin to use again during Phase II once the “high” of their initial success has subdued. This theory is further supported by the significant difference in use in Phase II between graduated and terminated participants, with Phase II use being the factor most strongly associated with a person’s success in the program.

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The second significant correlation, that between drug and/or alcohol use in Phase

I and the length of time for program completion, can most likely be explained by

adherence to program procedure. As participants must have clean drug screens for a set

amount of time in each phase before progressing to the next phase, it is logical that,

among graduated participants, those with a greater number of uses in Phase I took a

longer time to complete the program. This is similar to the Goldkamp et al. (2001)

finding that not receiving sanctions increased the chance of graduation; by definition, not

using during Phase I, thus not receiving sanctions for doing so, causes an individual to

move through the program faster.

There was no evidence present in past research indicating an explanation or

similar finding for the third correlation – the negative relationship between age and time

spent in the program before graduation. However, one explanation could be the life

experience of the older participants as compared to that of the younger participants. For example, a TIES participant entering Phase II in March, 2006 remarked:

What I was doing wasn’t working, obviously… Crack cocaine was my drug of choice, I had been smoking twenty years. I was tired, and I didn’t know how to stop myself, so I needed something more to help me with learning how to help me stop my addiction, and TIES is working. (Appendix F)

Whereas younger participants might not yet be aware of the ramifications of their use, other than their present involvement in the criminal justice system, older participants have more to reflect upon when looking for motivation to stay sober. Another participant, who was just beginning the program in March, 2006 cited similar reasons for wanting to stop using drugs, in saying: “I got tired of doing what I was doing. I just wanted to be able to be there for my kids and grandkids” (Appendix F). Though these anecdotal accounts cannot entirely explain this correlation, the statistical evidence in

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combination with this testimony provides support for the program’s current tendency to

accept individuals with a lengthy criminal history as opposed to first-time offenders.

The evaluation of the factors influencing success indicated similar findings to

previous research. Just as Goldkamp et al. (2001) found that gender and race had no

direct effect on graduation rates, unless considered in conjunction with drug of choice (p.

27), the present study found no effect of gender or race on program status (terminated v. graduated). The finding that graduates had completed a higher level of education than those that were terminated from the program is not surprising. Education is one indicator of socioeconomic status, which is representative of several factors that could affect a person’s success in the program, such as prior healthcare, resources for treatment and ability to focus on recovery rather than employment. The fact that age and age of first use were not significantly related to program status was interesting, considering the correlation between age and length of program completion discussed above. However, this may indicate that, while age does not affect whether they are ultimately terminated, it still affects the length of time it takes people to complete the program.

The final analysis of the relationship between the use events for graduated and

terminated participants showed no difference for Phase I, significantly greater use for

terminated participants in Phase II and marginally greater use for terminated participants

in Phase III. Again, this information must be interpreted with caution, as an excessive

number of use events leads to termination; thus, the use events for terminated participants

should be expected to be higher than those that graduated. However, the fact that this increased use occurs in Phases II and III is interesting because these are the phases in which required court attendance and drug screens are reduced. Similar to the findings of

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Marlowe, Festinger, Dugosh and Lee (2005), this result could show the positive impact of

attending judicial status hearings on recovery (p. 145). Future research should

distinguish the factors that determine which participants are likely to return to use in

Phases II and III, as opposed to those that continue to succeed.

One final factor that may influence success in the TIES Program is the level of

support an individual has to maintain recovery. There was no way to quantify a

participant’s level of support, but the interviews with participants revealed the importance of support in relation to sobriety. For example, the participant beginning the program in

March, 2006 remarked, “[Past treatment] worked, until I got back in with the wrong

group. So now I’m trying to learn to stay away from it all. I’ve been involved with

people that don’t fit my course anymore.” The Phase II participant quoted above

provided support for the usefulness of TIES in achieving this goal in saying, “I have a

good support group. I have a home support group, a church support group and an AA

support group, and TIES especially supports me very well” (Appendix F). Though this

qualitative data in no way indicates that outside support is necessary for success, it is

important to consider when assisting in a person’s recovery.

Conclusion

The young age of the TIES Program does not allow for much meaningful analysis

concerning recidivism, but the present study provided descriptive, correlational and

qualitative accounts of the program, and identified some factors associated with success

in the program. The findings of the study and the information presented provide a

starting point for future evaluation of the program. When more data become available,

119 future research should compare the recidivism rate of program graduates with those that were terminated from the program, those that were denied admission to the program and national statistics concerning recidivism for similarly situated individuals. Furthermore, success within the drug court should be analyzed with particular emphasis placed upon the success of participants in relation to their drug of choice. This type of analysis would allow the program coordinator to make admission decisions based upon likelihood of success and possibly further alter treatment programs based upon individual needs. A final recommendation for future analysis based upon the present findings is to compare the outcome of participants from this sample, when incentives were limited, to those from a future sample, if more funding to obtain incentives is acquired. As more data accumulate, these types of analyses will allow drug court programs to tailor their programs to the needs of the participants, ultimately resulting in a more just and beneficial outcome for offenders with addiction and society as a whole.

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Conclusion

In defining crime as an infringement on the rights of other members of a society,

or the failure to uphold a duty to others, by the commission of an illegal act, it is evident

that criminal behavior and the courts’ response to the behavior are dependent upon the

changing relations between members of a society. The rights and duties protected in a

society are those valued by people in a position of power – in the United States, most

likely, a position of wealth. Due to the social foundation of the definition of criminal

behavior, however, it is necessary to ensure that justice also is pursued in a manner which

results in the greatest social utility. Solely punishing criminal offenders, especially those

who have committed a crime due to an addiction, is counterproductive. The environment

of prison is more likely to encourage drug use and result in recidivism than deter individuals who have little control over their actions in the first place. The strong

relationship between educational experience (which is related to socioeconomic status)

and success in the TIES Program shows the impact of additional factors beyond an

individual’s immediate control. Furthermore, the medical and psychiatric definitions of

addiction disallow for the possibility that people can control an addiction on their own.

However, for the purposes of maintaining a cohesive social order, some degree of social

agency is assumed for almost every criminal act, including those committed due to

addiction.

The evolution of justice throughout the history of the United States has come a

considerable distance from the “trial by fire” method of religious colonial courts, but

prison reform has been at a moderate standstill for the past three decades. The drug court

movement is one alternative form of justice trying to impact this lack of progress. In

121 attempting to help individuals with an addiction maintain sobriety, gain employment and find housing, drug courts provide a greater social utility for the individual than prison ever could. Furthermore, not only does this approach to justice help individuals who may have felt helpless to stop their addiction on their own, it also results in lessened criminal activity when compared to similar offenders – a benefit to society as a whole. Whereas the goal of retribution as it is carried out via incarceration does not mutually exclude the possibility of justice, the current state of the United States’ penal system does.

Alternative forms of justice, such as drug courts like the TIES Program, are needed, if not to provide a greater form of justice and social utility, then to help reduce the overcrowded prison system. Further research will be able to more accurately identify offenders that would most benefit from this form of justice, thus resulting in a larger societal advantage.

122

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Age Read TIES Current At and Number Status Phase Start Gender Race Marital Status Educational Status Write?

76368 Active Phase I 22 Female White Single 11 Yes High School 76759 Active Phase IV 35 Female White Divorced/Separated Graduate Yes Black or African With 78501 Active Phase IV 35 Female American Single 10 Difficulty Black or African 78134 Active Phase IV 48 Male American Single Some College Yes

77307 Active Phase I 27 Male White Black or African High School 75855 Active Phase IV 42 Male American Single Graduate Yes Black or African High School 69326 Active Phase IV 40 Male American Married Graduate Yes Black or African High School 67760 Active Phase II 25 Male American Single Graduate Yes

71594 Active Phase I 30 Male White Single Bachelors Degree Yes Black or African Living with Partner High School 65949 Active Phase I 46 Male American or Significant Other Graduate Yes Black or African 54060 Active Phase IV 45 Male American Single Yes High School 40980 Active Phase IV 43 Female White Married Graduate Yes

Appendix A132

90 Day CBCF # Uses in Total time CBCF Sentence # Uses In # Uses In # Uses In Continuing in TIES Age at Drug at Drug of Before During Phase 1 if Phase 2 if Phase 3 if Care if program if Number Initiation Initiation Choice TIES? TIES? completed completed completed completed graduated

76368 12 marijuana Crack No Yes 2 - - - -

76759 15 alcohol Opiates No No 2 2 1 - -

78501 17 alcohol Crack No No 3 0 0 - -

78134 16 alcohol Crack Yes No 0 0 0 - -

77307 No ------

75855 13 marijuana Crack No Yes 0 4 1 - -

69326 15 marijuana Crack No Yes 0 1 1 - -

67760 15 alcohol/marijuana marijuana No - 0 - - - -

71594 No ------

65949 No ------

54060 No No 0 0 0 - -

40980 25 vicodin Opiates No No 0 3 1 - -

Appendix A133

Age Read TIES Current At and Number Status Phase Start Gender Race Marital Status Educational Status Write? Living with Black or African Partner or High School 73923 Active Phase IV 35 Male American Significant Other Graduate Yes

81183 Active Phase I 27 Female White Single 9 Yes

79822 Active Phase II 25 Female White Single Some College Yes Black or African 64418 Active Phase IV 32 Female American Black or African 74277 Active Phase III 22 Male American Single 11 Yes Black or African 76031 Active Phase IV 53 Male American Married 11 Yes

62760 Active Phase IV 33 Female White Single 8 No Black or African 40347 Active Phase IV 38 Male American Single 11 Yes Living with Black or African Partner or High School 76630 Active Phase IV 28 Male American Significant Other Graduate Yes Living with Partner or 80256 Active Phase I 25 Male White Significant Other

80004 Active Phase I 26 Male White Married 10 yes

Appendix A134

73923 14 alcohol Crack No Yes 2 0 3 - -

81183 No ------

79822 12 alcohol/marijuana Heroin No - 0 - - - -

64418 No No 1 1 1 - -

74277 17 alcohol Marijuana No Yes 3 0 - - -

76031 17 heroin/marijuana Heroin No No 0 0 0 - -

62760 14 crack Crack No No 0 1 0 - -

40347 17 alcohol Alcohol Yes No 0 0 0 - -

76630 19 marijuana Marijuana No No 3 0 2 - -

80256 Yes ------

80004 31 Heroin Heroin Yes ------

Appendix A135

TIES Age At Number Status Current Phase Start Gender Race Marital Status Educational Status

80634 Active Phase I 40 Male

75250 Active Phase I 48 Female White Married 10 Living with Partner or High School 29800 Active Phase IV 38 Female White Significant Other Graduate Black or African 49021 Active Phase I 30 Male American Black or African 33066 Active Phase IV 45 Female American Married 11 Black or African Living with Partner or 77840 Active Phase I 37 Male American Significant Other Active Black or African 79006 (Capias) Phase III 29 Male American Single 11 Black or African 77232 Graduated Graduated 47 Female American Married Bachelors Degree

35608 Graduated Graduated 34 Male White Single Some College Black or African 74721 Graduated Graduated 47 Male American Divorced/Separated Some College Black or African 68322 Graduated Graduated 24 Male American Single Black or African 35353 Graduated Graduated 39 Male American Married Some College

Appendix A136

Total time 90 Day CBCF # Uses in in CBCF Sentence # Uses In # Uses In # Uses In Continuing program TIES Age at Drug of Before During Phase 1 if Phase 2 if Phase 3 if Care if if Number Initiation Drug at Initiation Choice TIES? TIES? completed completed completed completed graduated

80634 No ------

75250 No ------

29800 9 alcohol Cocaine No No 0 0 0 - -

49021 16 alcohol/marijuana Crack No Yes - - - - -

33066 16 alcohol Crack No Yes 2 1 0 - -

77840 13 alcohol crack No ------

79006 18 marijuana Crack No No 2 0 - - -

77232 24 heroin Crack No No 0 0 1 0 14

35608 16 alcohol Crack Yes No 0 0 1 0 15

74721 19 alcohol Crack No No 0 0 1 0 16

68322 16 marijuana/alcohol Cocaine No Yes 4 0 0 0 18

35353 13 alcohol Crack No No 1 0 0 0 14

Appendix A137

Read TIES Current Age At and Number Status Phase Start Gender Race Marital Status Educational Status Write?

47787 Graduated Graduated 32 Male White Single Yes

76189 Graduated Graduated 20 Male White Single Yes With 76220 Graduated Graduated 22 Female White Divorced/Separated 9 Difficulty Black or African 75866 Graduated Graduated 38 Female American Single 11 Yes Living with Partner 70114 Graduated Graduated 49 Male White or Significant Other Some College Yes Living with Partner High School 63582 Terminated Phase III 25 Male White or Significant Other Graduate Yes Black or African 68553 Terminated Phase III 22 Male American Single 9 Yes Black or African High School 73169 Terminated 34 Male American Graduate Yes Living with Partner 72509 Terminated Phase I 40 Female White or Significant Other Some College Yes

76028 Terminated Phase II 32 Female White Single 11 Yes Black or African 54133 Terminated 35 Female American 10 Yes Black or African 68754 Terminated Phase I 33 Male American Yes

Appendix A138

Read TIES Current Age At and Number Status Phase Start Gender Race Marital Status Educational Status Write?

47787 Graduated Graduated 32 Male White Single Yes

76028 Terminated Phase II 32 Female White Single 11 Yes Black or African 54133 Terminated 35 Female American 10 Yes Black or African 68754 Terminated Phase I 33 Male American Yes

Appendix A139

90 Day CBCF # Uses in Total time CBCF Sentence # Uses In # Uses In # Uses In Continuing in program TIES Age at Drug of Before During Phase 1 if Phase 2 if Phase 3 if Care if if Number Initiation Drug at Initiation Choice TIES? TIES? completed completed completed completed graduated

47787 No No 0 0 0 0 15

76189 No No 3 0 0 0 18

76220 19 heroin Heroin No No 0 0 0 0 15

75866 15 alcohol/marijuana Crack No No 0 1 0 0 16

70114 8 alcohol Alcohol No No 0 0 0 0 14

63582 15 alcohol Alcohol No No 1 1 2 - -

68553 17 Marijuana/hashish Marijuana No No 0 2 1 - -

73169 16 marijuana Cocaine

72509 17 alcohol Crack No No 2 - - - -

76028 9 marijuana Crack No No 0 - - - - ccrack cocaine, 54133 25 alcohol, marijuana Crack

68754 No No - - - - -

Appendix A140

Age Read TIES Current At and Number Status Phase Start Gender Race Marital Status Educational Status Write? Living with Black or African Partner or With 51249 Terminated 30 Male American Significant Other Difficulty Black or African 36133 Terminated 37 Male American Black or African High School 77528 Terminated Phase II 43 Male American Single Graduate Yes Black or African 53763 Terminated Phase I 29 Male American Single 10 Yes High School 77598 Terminated Phase I 40 Female White Graduate Yes Black or African 37837 Terminated Phase III 48 Male American Single Black or African 73627 Terminated 21 Male American High School 63501 Terminated Phase I 34 Male White Single Graduate Yes Black or African 75864 Terminated Phase II 28 Male American Married 10 Yes Black or African High School 77991 Terminated Phase II 36 Male American Married Graduate Yes High School 71269 Terminated Phase II 34 Male White Married Graduate Yes Black or African 61393 Terminated Phase III 36 Male American Single 9

Appendix A141

90 Day CBCF # Uses in Total time CBCF Sentence # Uses In # Uses In # Uses In Continuing in program TIES Age at Drug at Drug of Before During Phase 1 if Phase 2 if Phase 3 if Care if if Number Initiation Initiation Choice TIES? TIES? completed completed completed completed graduated

51249

36133

77528 17 alcohol Marijuana No No 4 - - - -

53763 15 alcohol Cocaine Yes No - - - - -

77598 14 marijuana Crack No No - - - - -

37837 Yes No 3 0 - - -

73627

63501 11 alcohol Crack No No 0 - - - -

75864 12 alcohol Marijuana Yes No 0 4 - - -

77991 10 alcohol/marijuana Alcohol Yes No 0 2 - - -

71269 13 marijuana Cocaine No No 0 1 - - -

61393 Yes No 0 0 - - -

Appendix A142

Age Read TIES Current At and Number Status Phase Start Gender Race Marital Status Educational Status Write? Black or African 66280 Terminated 38 Male American Single Some College Yes

59933 Terminated Phase II 25 Male White Black or African 50259 Terminated Phase I 37 Female American Single Some College Yes Black or African High School 57016 Terminated Phase I 44 Male American Divorced/Separated Graduate Yes Black or African 75865 Terminated 41 Male American Black or African 64004 Terminated 24 Male American 7

76330 Terminated 28 Female White Divorced/Separated Some College Black or African 59710 Terminated Phase I 27 Male American Living with Partner High School 61369 Terminated 27 Male White or Significant Other Graduate Living with Partner 76758 Terminated Phase IV 43 Male White or Significant Other 11 Yes Black or African Living with Partner With 76030 Terminated Phase II 42 Male American or Significant Other 11 Difficulty

76486 Terminated 24 Female White Single Yes

Appendix A143

66280 12 marijuna Crack

59933 No No 0 2 - - -

50259 6 alcohol Crack No No - - - - -

57016 12 alcohol/marijuana Cocaine No Yes 4 - - - -

75865

64004 15 marijuana Marijuana

76330 15 alcohol Alcohol

59710 No No 1 - - - -

61369

76758 15 marijuana Marijuana No No 0 0 0 3 -

76030 15 alcohol Crack No No 0 0 - - -

76486

Appendix A144

Age Read TIES Current At and Number Status Phase Start Gender Race Marital Status Educational Status Write?

46245 Terminated Phase I 36 Male White Yes Black or African 76365 Terminated Phase II 53 Male American Single Yes Black or African 72961 Terminated Phase III 24 Female American Single 10 Yes High School 36888 Terminated Phase III 36 Female White Single Graduate Yes Black or African 74803 Terminated Phase II 25 Male American Single 10 Yes Living with Partner or 50779 Terminated Phase I 39 Female White Significant Other 9 Yes Living with Partner or With 76029 Terminated Phase I 42 Male White Significant Other 10 Difficulty

77272 Terminated Phase I 38 Male White Single Some College Yes

58693 Terminated Phase II 25 Male White Married 9 Yes Living with Black or African Partner or High School 48943 Terminated Phase I 29 Male American Significant Other Graduate Yes

76631 Terminated 39 Male White

Appendix A145

46245 No No 2 - - - -

76365 No No 0 1 - - -

72961 13 marijuana Marijuana No No 1 0 3 - - alcohol and 36888 14 marijuana Crack No No 2 0 0 - -

74803 16 marijuana Marijuana No No 0 2 - - -

50779 13 marijuana Crack No No - - - - -

76029 7 alcohol Alcohol No No 0 - - - -

77272 23 cocaine Cocaine No No - - - - - marijuana, IV 58693 15 analgesics No No 0 3 - - - marijuana 48943 16 marijuana & cocaine No No 5 - - - -

76631

Appendix A146

Age Read Current At Marital Educational and TIES Number Status Phase Start Gender Race Status Status Write? Living with Black or Partner or Phase African Significant 69623 Terminated III 30 Male American Other Some College Yes

61380 Terminated 46 Male White Black or African 49054 Terminated Phase I 42 Male American (0EEDD22A 886B086393 Black or 6D847190C African 8687F) Terminated 28 Female American Black or African 33236 Terminated 35 Female American Black or African 47079 Terminated Phase II 39 Male American

Appendix A147

69623 16 alcohol Alcohol No No 0 2 1 - -

61380

49054 No No - - - - - (0EEDD22A 886B086393 6D847190C 8687F)

33236

47079 No No 0 4 - - -

Appendix A148 Appendix B 149

Frequency Table

Status

Cumulative Frequency Percent Valid Percent Percent Valid Active 30 34.1 34.1 34.1 Graduated 10 11.4 11.4 45.5 Terminated 48 54.5 54.5 100.0 Total 88 100.0 100.0

Gender

Cumulative Frequency Percent Valid Percent Percent Valid Female 26 29.5 29.5 29.5 Male 62 70.5 70.5 100.0 Total 88 100.0 100.0

Race

Cumulative Frequency Percent Valid Percent Percent Valid White 36 40.9 41.4 41.4 African-American 51 58.0 58.6 100.0 Total 87 98.9 100.0 Missing System 1 1.1 Total 88 100.0

Education

Cumulative Frequency Percent Valid Percent Percent Valid Middle School 2 2.3 3.3 3.3 Some High School 25 28.4 41.0 44.3 High School Diploma 20 22.7 32.8 77.0 Some College 12 13.6 19.7 96.7 Bachelor's Degree 2 2.3 3.3 100.0 Total 61 69.3 100.0 Missing System 27 30.7 Total 88 100.0

Appendix B 150

Drug of First Use

Cumulative Frequency Percent Valid Percent Percent Valid Marijuana 18 20.5 31.0 31.0 Cocaine 1 1.1 1.7 32.8 Crack 2 2.3 3.4 36.2 Alcohol 24 27.3 41.4 77.6 Heroin 4 4.5 6.9 84.5 Painkillers 1 1.1 1.7 86.2 Alcohol and Marijuana 8 9.1 13.8 100.0 Total 58 65.9 100.0 Missing System 30 34.1 Total 88 100.0

Drug of Choice

Cumulative Frequency Percent Valid Percent Percent Valid Marijuana 10 11.4 17.5 17.5 Cocaine 8 9.1 14.0 31.6 Crack 26 29.5 45.6 77.2 Alcohol 7 8.0 12.3 89.5 Heroin 4 4.5 7.0 96.5 Painkillers 2 2.3 3.5 100.0 Total 57 64.8 100.0 Missing System 31 35.2 Total 88 100.0

Descriptives

Descriptive Statistics

N Minimum Maximum Mean Std. Deviation Age 88 20.00 53.00 34.5909 8.20518 Age of First Use 58 6.00 31.00 15.2586 4.33493 Uses In Phase I 56 .00 5.00 .9464 1.38064 Uses in Phase II 44 .00 4.00 .8636 1.23120 Uses In Phase III 31 .00 3.00 .6452 .87744 Uses in Phase IV 11 .00 3.00 .2727 .90453 Completion of 10 14.00 18.00 15.5000 1.50923 Program (Months) Valid N (listwise) 8

Appendix C 151

Drug of First Use = Marijuana

Age of First Usea

Cumulative Frequency Percent Valid Percent Percent Valid 9.00 1 5.6 5.6 5.6 12.00 2 11.1 11.1 16.7 13.00 4 22.2 22.2 38.9 14.00 1 5.6 5.6 44.4 15.00 4 22.2 22.2 66.7 16.00 3 16.7 16.7 83.3 17.00 1 5.6 5.6 88.9 18.00 1 5.6 5.6 94.4 19.00 1 5.6 5.6 100.0 Total 18 100.0 100.0 a. Drug of First Use = Marijuana

Drug of Choicea

Cumulative Frequency Percent Valid Percent Percent Valid Marijuana 6 33.3 35.3 35.3 Cocaine 3 16.7 17.6 52.9 Crack 8 44.4 47.1 100.0 Total 17 94.4 100.0 Missing System 1 5.6 Total 18 100.0 a. Drug of First Use = Marijuana

Gendera

Cumulative Frequency Percent Valid Percent Percent Valid Female 5 27.8 27.8 27.8 Male 13 72.2 72.2 100.0 Total 18 100.0 100.0 a. Drug of First Use = Marijuana

Racea

Cumulative Frequency Percent Valid Percent Percent Valid White 7 38.9 38.9 38.9 African-American 11 61.1 61.1 100.0 Total 18 100.0 100.0 a. Drug of First Use = Marijuana

Appendix C 152

Educationa

Cumulative Frequency Percent Valid Percent Percent Valid Middle School 1 5.6 5.6 5.6 Some High School 9 50.0 50.0 55.6 High School Diploma 7 38.9 38.9 94.4 Some College 1 5.6 5.6 100.0 Total 18 100.0 100.0 a. Drug of First Use = Marijuana

Uses In Phase Ia

Cumulative Frequency Percent Valid Percent Percent Valid .00 8 44.4 61.5 61.5 1.00 1 5.6 7.7 69.2 2.00 2 11.1 15.4 84.6 3.00 1 5.6 7.7 92.3 5.00 1 5.6 7.7 100.0 Total 13 72.2 100.0 Missing System 5 27.8 Total 18 100.0 a. Drug of First Use = Marijuana

Uses in Phase IIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 4 22.2 40.0 40.0 1.00 2 11.1 20.0 60.0 2.00 2 11.1 20.0 80.0 3.00 1 5.6 10.0 90.0 4.00 1 5.6 10.0 100.0 Total 10 55.6 100.0 Missing System 8 44.4 Total 18 100.0 a. Drug of First Use = Marijuana

Appendix C 153

Uses In Phase IIIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 1 5.6 16.7 16.7 1.00 3 16.7 50.0 66.7 2.00 1 5.6 16.7 83.3 3.00 1 5.6 16.7 100.0 Total 6 33.3 100.0 Missing System 12 66.7 Total 18 100.0 a. Drug of First Use = Marijuana

Uses in Phase IVa

Cumulative Frequency Percent Valid Percent Percent Valid 3.00 1 5.6 100.0 100.0 Missing System 17 94.4 Total 18 100.0 a. Drug of First Use = Marijuana

Drug of First Use = Cocaine

Age of First Usea

Cumulative Frequency Percent Valid Percent Percent Valid 23.00 1 100.0 100.0 100.0 a. Drug of First Use = Cocaine

Drug of Choicea

Cumulative Frequency Percent Valid Percent Percent Valid Cocaine 1 100.0 100.0 100.0 a. Drug of First Use = Cocaine

Gendera

Cumulative Frequency Percent Valid Percent Percent Valid Male 1 100.0 100.0 100.0 a. Drug of First Use = Cocaine

Appendix C 154

Racea

Cumulative Frequency Percent Valid Percent Percent Valid White 1 100.0 100.0 100.0 a. Drug of First Use = Cocaine

Educationa

Cumulative Frequency Percent Valid Percent Percent Valid Some College 1 100.0 100.0 100.0 a. Drug of First Use = Cocaine

Uses In Phase Ia

Frequency Percent Missing System 1 100.0 a. Drug of First Use = Cocaine

Uses in Phase IIa

Frequency Percent Missing System 1 100.0 a. Drug of First Use = Cocaine

Uses In Phase IIIa

Frequency Percent Missing System 1 100.0 a. Drug of First Use = Cocaine

Uses in Phase IVa

Frequency Percent Missing System 1 100.0 a. Drug of First Use = Cocaine

Drug of First Use = Crack

Age of First Usea

Cumulative Frequency Percent Valid Percent Percent Valid 14.00 1 50.0 50.0 50.0 25.00 1 50.0 50.0 100.0 Total 2 100.0 100.0 a. Drug of First Use = Crack

Appendix C 155

Drug of Choicea

Cumulative Frequency Percent Valid Percent Percent Valid Crack 2 100.0 100.0 100.0 a. Drug of First Use = Crack

Gendera

Cumulative Frequency Percent Valid Percent Percent Valid Female 2 100.0 100.0 100.0 a. Drug of First Use = Crack

Racea

Cumulative Frequency Percent Valid Percent Percent Valid White 1 50.0 50.0 50.0 African-American 1 50.0 50.0 100.0 Total 2 100.0 100.0 a. Drug of First Use = Crack

Educationa

Cumulative Frequency Percent Valid Percent Percent Valid Middle School 1 50.0 50.0 50.0 Some High School 1 50.0 50.0 100.0 Total 2 100.0 100.0 a. Drug of First Use = Crack

Uses In Phase Ia

Cumulative Frequency Percent Valid Percent Percent Valid .00 1 50.0 100.0 100.0 Missing System 1 50.0 Total 2 100.0 a. Drug of First Use = Crack

Uses in Phase IIa

Cumulative Frequency Percent Valid Percent Percent Valid 1.00 1 50.0 100.0 100.0 Missing System 1 50.0 Total 2 100.0 a. Drug of First Use = Crack

Appendix C 156

Uses In Phase IIIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 1 50.0 100.0 100.0 Missing System 1 50.0 Total 2 100.0 a. Drug of First Use = Crack

Uses in Phase IVa

Frequency Percent Missing System 2 100.0 a. Drug of First Use = Crack

Drug of First Use = Alcohol

Age of First Usea

Cumulative Frequency Percent Valid Percent Percent Valid 6.00 1 4.2 4.2 4.2 7.00 1 4.2 4.2 8.3 8.00 1 4.2 4.2 12.5 9.00 1 4.2 4.2 16.7 11.00 1 4.2 4.2 20.8 12.00 1 4.2 4.2 25.0 13.00 2 8.3 8.3 33.3 14.00 1 4.2 4.2 37.5 15.00 5 20.8 20.8 58.3 16.00 4 16.7 16.7 75.0 17.00 5 20.8 20.8 95.8 19.00 1 4.2 4.2 100.0 Total 24 100.0 100.0 a. Drug of First Use = Alcohol

Drug of Choicea

Cumulative Frequency Percent Valid Percent Percent Valid Marijuana 3 12.5 12.5 12.5 Cocaine 2 8.3 8.3 20.8 Crack 12 50.0 50.0 70.8 Alcohol 6 25.0 25.0 95.8 Painkillers 1 4.2 4.2 100.0 Total 24 100.0 100.0 a. Drug of First Use = Alcohol

Appendix C 157

Gendera

Cumulative Frequency Percent Valid Percent Percent Valid Female 7 29.2 29.2 29.2 Male 17 70.8 70.8 100.0 Total 24 100.0 100.0 a. Drug of First Use = Alcohol

Racea

Cumulative Frequency Percent Valid Percent Percent Valid White 9 37.5 37.5 37.5 African-American 15 62.5 62.5 100.0 Total 24 100.0 100.0 a. Drug of First Use = Alcohol

Educationa

Cumulative Frequency Percent Valid Percent Percent Valid Some High School 8 33.3 34.8 34.8 High School Diploma 6 25.0 26.1 60.9 Some College 9 37.5 39.1 100.0 Total 23 95.8 100.0 Missing System 1 4.2 Total 24 100.0 a. Drug of First Use = Alcohol

Uses In Phase Ia

Cumulative Frequency Percent Valid Percent Percent Valid .00 11 45.8 55.0 55.0 1.00 2 8.3 10.0 65.0 2.00 4 16.7 20.0 85.0 3.00 2 8.3 10.0 95.0 4.00 1 4.2 5.0 100.0 Total 20 83.3 100.0 Missing System 4 16.7 Total 24 100.0 a. Drug of First Use = Alcohol

Appendix C 158

Uses in Phase IIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 11 45.8 68.8 68.8 1.00 2 8.3 12.5 81.3 2.00 2 8.3 12.5 93.8 4.00 1 4.2 6.3 100.0 Total 16 66.7 100.0 Missing System 8 33.3 Total 24 100.0 a. Drug of First Use = Alcohol

Uses In Phase IIIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 7 29.2 53.8 53.8 1.00 4 16.7 30.8 84.6 2.00 1 4.2 7.7 92.3 3.00 1 4.2 7.7 100.0 Total 13 54.2 100.0 Missing System 11 45.8 Total 24 100.0 a. Drug of First Use = Alcohol

Uses in Phase IVa

Cumulative Frequency Percent Valid Percent Percent Valid .00 4 16.7 100.0 100.0 Missing System 20 83.3 Total 24 100.0 a. Drug of First Use = Alcohol

Drug of First Use = Heroin

Age of First Usea

Cumulative Frequency Percent Valid Percent Percent Valid 17.00 1 25.0 25.0 25.0 19.00 1 25.0 25.0 50.0 24.00 1 25.0 25.0 75.0 31.00 1 25.0 25.0 100.0 Total 4 100.0 100.0 a. Drug of First Use = Heroin

Appendix C 159

Drug of Choicea

Cumulative Frequency Percent Valid Percent Percent Valid Crack 1 25.0 25.0 25.0 Heroin 3 75.0 75.0 100.0 Total 4 100.0 100.0 a. Drug of First Use = Heroin

Gendera

Cumulative Frequency Percent Valid Percent Percent Valid Female 2 50.0 50.0 50.0 Male 2 50.0 50.0 100.0 Total 4 100.0 100.0 a. Drug of First Use = Heroin

Racea

Cumulative Frequency Percent Valid Percent Percent Valid White 2 50.0 50.0 50.0 African-American 2 50.0 50.0 100.0 Total 4 100.0 100.0 a. Drug of First Use = Heroin

Educationa

Cumulative Frequency Percent Valid Percent Percent Valid Some High School 3 75.0 75.0 75.0 Bachelor's Degree 1 25.0 25.0 100.0 Total 4 100.0 100.0 a. Drug of First Use = Heroin

Uses In Phase Ia

Cumulative Frequency Percent Valid Percent Percent Valid .00 3 75.0 100.0 100.0 Missing System 1 25.0 Total 4 100.0 a. Drug of First Use = Heroin

Appendix C 160

Uses in Phase IIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 3 75.0 100.0 100.0 Missing System 1 25.0 Total 4 100.0 a. Drug of First Use = Heroin

Uses In Phase IIIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 2 50.0 66.7 66.7 1.00 1 25.0 33.3 100.0 Total 3 75.0 100.0 Missing System 1 25.0 Total 4 100.0 a. Drug of First Use = Heroin

Uses in Phase IVa

Cumulative Frequency Percent Valid Percent Percent Valid .00 2 50.0 100.0 100.0 Missing System 2 50.0 Total 4 100.0 a. Drug of First Use = Heroin

Drug of First Use = Painkillers

Age of First Usea

Cumulative Frequency Percent Valid Percent Percent Valid 25.00 1 100.0 100.0 100.0 a. Drug of First Use = Painkillers

Drug of Choicea

Cumulative Frequency Percent Valid Percent Percent Valid Painkillers 1 100.0 100.0 100.0 a. Drug of First Use = Painkillers

Appendix C 161

Gendera

Cumulative Frequency Percent Valid Percent Percent Valid Female 1 100.0 100.0 100.0 a. Drug of First Use = Painkillers

Racea

Cumulative Frequency Percent Valid Percent Percent Valid White 1 100.0 100.0 100.0 a. Drug of First Use = Painkillers

Educationa

Cumulative Frequency Percent Valid Percent Percent Valid High School Diploma 1 100.0 100.0 100.0 a. Drug of First Use = Painkillers

Uses In Phase Ia

Cumulative Frequency Percent Valid Percent Percent Valid .00 1 100.0 100.0 100.0 a. Drug of First Use = Painkillers

Uses in Phase IIa

Cumulative Frequency Percent Valid Percent Percent Valid 3.00 1 100.0 100.0 100.0 a. Drug of First Use = Painkillers

Uses In Phase IIIa

Cumulative Frequency Percent Valid Percent Percent Valid 1.00 1 100.0 100.0 100.0 a. Drug of First Use = Painkillers

Uses in Phase IVa

Frequency Percent Missing System 1 100.0 a. Drug of First Use = Painkillers

Appendix C 162

Drug of First Use = Alcohol and Marijuana

Age of First Usea

Cumulative Frequency Percent Valid Percent Percent Valid 10.00 1 12.5 12.5 12.5 12.00 2 25.0 25.0 37.5 14.00 1 12.5 12.5 50.0 15.00 2 25.0 25.0 75.0 16.00 2 25.0 25.0 100.0 Total 8 100.0 100.0 a. Drug of First Use = Alcohol and Marijuana

Drug of Choicea

Cumulative Frequency Percent Valid Percent Percent Valid Marijuana 1 12.5 12.5 12.5 Cocaine 2 25.0 25.0 37.5 Crack 3 37.5 37.5 75.0 Alcohol 1 12.5 12.5 87.5 Heroin 1 12.5 12.5 100.0 Total 8 100.0 100.0 a. Drug of First Use = Alcohol and Marijuana

Gendera

Cumulative Frequency Percent Valid Percent Percent Valid Female 3 37.5 37.5 37.5 Male 5 62.5 62.5 100.0 Total 8 100.0 100.0 a. Drug of First Use = Alcohol and Marijuana

Racea

Cumulative Frequency Percent Valid Percent Percent Valid White 2 25.0 25.0 25.0 African-American 6 75.0 75.0 100.0 Total 8 100.0 100.0 a. Drug of First Use = Alcohol and Marijuana

Appendix C 163

Educationa

Cumulative Frequency Percent Valid Percent Percent Valid Some High School 1 12.5 16.7 16.7 High School Diploma 4 50.0 66.7 83.3 Some College 1 12.5 16.7 100.0 Total 6 75.0 100.0 Missing System 2 25.0 Total 8 100.0 a. Drug of First Use = Alcohol and Marijuana

Uses In Phase Ia

Cumulative Frequency Percent Valid Percent Percent Valid .00 4 50.0 57.1 57.1 2.00 1 12.5 14.3 71.4 4.00 2 25.0 28.6 100.0 Total 7 87.5 100.0 Missing System 1 12.5 Total 8 100.0 a. Drug of First Use = Alcohol and Marijuana

Uses in Phase IIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 2 25.0 50.0 50.0 1.00 1 12.5 25.0 75.0 2.00 1 12.5 25.0 100.0 Total 4 50.0 100.0 Missing System 4 50.0 Total 8 100.0 a. Drug of First Use = Alcohol and Marijuana

Uses In Phase IIIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 3 37.5 100.0 100.0 Missing System 5 62.5 Total 8 100.0 a. Drug of First Use = Alcohol and Marijuana

Appendix C 164

Uses in Phase IVa

Cumulative Frequency Percent Valid Percent Percent Valid .00 2 25.0 100.0 100.0 Missing System 6 75.0 Total 8 100.0 a. Drug of First Use = Alcohol and Marijuana

======

Drug of Choice = Marijuana

Age of First Usea

Cumulative Frequency Percent Valid Percent Percent Valid 12.00 1 10.0 10.0 10.0 13.00 1 10.0 10.0 20.0 15.00 3 30.0 30.0 50.0 16.00 1 10.0 10.0 60.0 17.00 3 30.0 30.0 90.0 19.00 1 10.0 10.0 100.0 Total 10 100.0 100.0 a. Drug of Choice = Marijuana

Gendera

Cumulative Frequency Percent Valid Percent Percent Valid Female 1 10.0 10.0 10.0 Male 9 90.0 90.0 100.0 Total 10 100.0 100.0 a. Drug of Choice = Marijuana

Racea

Cumulative Frequency Percent Valid Percent Percent Valid White 1 10.0 10.0 10.0 African-American 9 90.0 90.0 100.0 Total 10 100.0 100.0 a. Drug of Choice = Marijuana

Appendix C 165

Educationa

Cumulative Frequency Percent Valid Percent Percent Valid Middle School 1 10.0 10.0 10.0 Some High School 6 60.0 60.0 70.0 High School Diploma 3 30.0 30.0 100.0 Total 10 100.0 100.0 a. Drug of Choice = Marijuana

Uses In Phase Ia

Cumulative Frequency Percent Valid Percent Percent Valid .00 5 50.0 55.6 55.6 1.00 1 10.0 11.1 66.7 3.00 2 20.0 22.2 88.9 4.00 1 10.0 11.1 100.0 Total 9 90.0 100.0 Missing System 1 10.0 Total 10 100.0 a. Drug of Choice = Marijuana

Uses in Phase IIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 4 40.0 57.1 57.1 2.00 2 20.0 28.6 85.7 4.00 1 10.0 14.3 100.0 Total 7 70.0 100.0 Missing System 3 30.0 Total 10 100.0 a. Drug of Choice = Marijuana

Uses In Phase IIIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 1 10.0 25.0 25.0 1.00 1 10.0 25.0 50.0 2.00 1 10.0 25.0 75.0 3.00 1 10.0 25.0 100.0 Total 4 40.0 100.0 Missing System 6 60.0 Total 10 100.0 a. Drug of Choice = Marijuana

Appendix C 166

Uses in Phase IVa

Cumulative Frequency Percent Valid Percent Percent Valid 3.00 1 10.0 100.0 100.0 Missing System 9 90.0 Total 10 100.0 a. Drug of Choice = Marijuana

Drug of Choice = Cocaine

Age of First Usea

Cumulative Frequency Percent Valid Percent Percent Valid 9.00 1 12.5 12.5 12.5 12.00 1 12.5 12.5 25.0 13.00 1 12.5 12.5 37.5 15.00 1 12.5 12.5 50.0 16.00 3 37.5 37.5 87.5 23.00 1 12.5 12.5 100.0 Total 8 100.0 100.0 a. Drug of Choice = Cocaine

Gendera

Cumulative Frequency Percent Valid Percent Percent Valid Female 1 12.5 12.5 12.5 Male 7 87.5 87.5 100.0 Total 8 100.0 100.0 a. Drug of Choice = Cocaine

Racea

Cumulative Frequency Percent Valid Percent Percent Valid White 3 37.5 37.5 37.5 African-American 5 62.5 62.5 100.0 Total 8 100.0 100.0 a. Drug of Choice = Cocaine

Appendix C 167

Educationa

Cumulative Frequency Percent Valid Percent Percent Valid Some High School 1 12.5 14.3 14.3 High School Diploma 5 62.5 71.4 85.7 Some College 1 12.5 14.3 100.0 Total 7 87.5 100.0 Missing System 1 12.5 Total 8 100.0 a. Drug of Choice = Cocaine

Uses In Phase Ia

Cumulative Frequency Percent Valid Percent Percent Valid .00 2 25.0 40.0 40.0 4.00 2 25.0 40.0 80.0 5.00 1 12.5 20.0 100.0 Total 5 62.5 100.0 Missing System 3 37.5 Total 8 100.0 a. Drug of Choice = Cocaine

Uses in Phase IIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 2 25.0 66.7 66.7 1.00 1 12.5 33.3 100.0 Total 3 37.5 100.0 Missing System 5 62.5 Total 8 100.0 a. Drug of Choice = Cocaine

Uses In Phase IIIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 2 25.0 100.0 100.0 Missing System 6 75.0 Total 8 100.0 a. Drug of Choice = Cocaine

Appendix C 168

Uses in Phase IVa

Cumulative Frequency Percent Valid Percent Percent Valid .00 1 12.5 100.0 100.0 Missing System 7 87.5 Total 8 100.0 a. Drug of Choice = Cocaine

Drug of Choice = Crack

Age of First Usea

Cumulative Frequency Percent Valid Percent Percent Valid 6.00 1 3.8 3.8 3.8 9.00 1 3.8 3.8 7.7 11.00 1 3.8 3.8 11.5 12.00 2 7.7 7.7 19.2 13.00 4 15.4 15.4 34.6 14.00 4 15.4 15.4 50.0 15.00 3 11.5 11.5 61.5 16.00 4 15.4 15.4 76.9 17.00 2 7.7 7.7 84.6 18.00 1 3.8 3.8 88.5 19.00 1 3.8 3.8 92.3 24.00 1 3.8 3.8 96.2 25.00 1 3.8 3.8 100.0 Total 26 100.0 100.0 a. Drug of Choice = Crack

Gendera

Cumulative Frequency Percent Valid Percent Percent Valid Female 13 50.0 50.0 50.0 Male 13 50.0 50.0 100.0 Total 26 100.0 100.0 a. Drug of Choice = Crack

Appendix C 169

Racea

Cumulative Frequency Percent Valid Percent Percent Valid White 9 34.6 34.6 34.6 African-American 17 65.4 65.4 100.0 Total 26 100.0 100.0 a. Drug of Choice = Crack

Educationa

Cumulative Frequency Percent Valid Percent Percent Valid Middle School 1 3.8 4.2 4.2 Some High School 9 34.6 37.5 41.7 High School Diploma 6 23.1 25.0 66.7 Some College 7 26.9 29.2 95.8 Bachelor's Degree 1 3.8 4.2 100.0 Total 24 92.3 100.0 Missing System 2 7.7 Total 26 100.0 a. Drug of Choice = Crack

Uses In Phase Ia

Cumulative Frequency Percent Valid Percent Percent Valid .00 11 42.3 57.9 57.9 1.00 1 3.8 5.3 63.2 2.00 6 23.1 31.6 94.7 3.00 1 3.8 5.3 100.0 Total 19 73.1 100.0 Missing System 7 26.9 Total 26 100.0 a. Drug of Choice = Crack

Uses in Phase IIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 10 38.5 66.7 66.7 1.00 4 15.4 26.7 93.3 4.00 1 3.8 6.7 100.0 Total 15 57.7 100.0 Missing System 11 42.3 Total 26 100.0 a. Drug of Choice = Crack

Appendix C 170

Uses In Phase IIIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 7 26.9 53.8 53.8 1.00 5 19.2 38.5 92.3 3.00 1 3.8 7.7 100.0 Total 13 50.0 100.0 Missing System 13 50.0 Total 26 100.0 a. Drug of Choice = Crack

Uses in Phase IVa

Cumulative Frequency Percent Valid Percent Percent Valid .00 5 19.2 100.0 100.0 Missing System 21 80.8 Total 26 100.0 a. Drug of Choice = Crack

Drug of Choice = Alcohol

Age of First Usea

Cumulative Frequency Percent Valid Percent Percent Valid 7.00 1 14.3 14.3 14.3 8.00 1 14.3 14.3 28.6 10.00 1 14.3 14.3 42.9 15.00 2 28.6 28.6 71.4 16.00 1 14.3 14.3 85.7 17.00 1 14.3 14.3 100.0 Total 7 100.0 100.0 a. Drug of Choice = Alcohol

Gendera

Cumulative Frequency Percent Valid Percent Percent Valid Female 1 14.3 14.3 14.3 Male 6 85.7 85.7 100.0 Total 7 100.0 100.0 a. Drug of Choice = Alcohol

Appendix C 171

Racea

Cumulative Frequency Percent Valid Percent Percent Valid White 4 57.1 57.1 57.1 African-American 3 42.9 42.9 100.0 Total 7 100.0 100.0 a. Drug of Choice = Alcohol

Educationa

Cumulative Frequency Percent Valid Percent Percent Valid Some High School 2 28.6 28.6 28.6 High School Diploma 2 28.6 28.6 57.1 Some College 3 42.9 42.9 100.0 Total 7 100.0 100.0 a. Drug of Choice = Alcohol

Uses In Phase Ia

Cumulative Frequency Percent Valid Percent Percent Valid .00 5 71.4 83.3 83.3 1.00 1 14.3 16.7 100.0 Total 6 85.7 100.0 Missing System 1 14.3 Total 7 100.0 a. Drug of Choice = Alcohol

Uses in Phase IIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 2 28.6 40.0 40.0 1.00 1 14.3 20.0 60.0 2.00 2 28.6 40.0 100.0 Total 5 71.4 100.0 Missing System 2 28.6 Total 7 100.0 a. Drug of Choice = Alcohol

Appendix C 172

Uses In Phase IIIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 2 28.6 50.0 50.0 1.00 1 14.3 25.0 75.0 2.00 1 14.3 25.0 100.0 Total 4 57.1 100.0 Missing System 3 42.9 Total 7 100.0 a. Drug of Choice = Alcohol

Uses in Phase IVa

Cumulative Frequency Percent Valid Percent Percent Valid .00 1 14.3 100.0 100.0 Missing System 6 85.7 Total 7 100.0 a. Drug of Choice = Alcohol

Drug of Choice = Heroin

Age of First Usea

Cumulative Frequency Percent Valid Percent Percent Valid 12.00 1 25.0 25.0 25.0 17.00 1 25.0 25.0 50.0 19.00 1 25.0 25.0 75.0 31.00 1 25.0 25.0 100.0 Total 4 100.0 100.0 a. Drug of Choice = Heroin

Gendera

Cumulative Frequency Percent Valid Percent Percent Valid Female 2 50.0 50.0 50.0 Male 2 50.0 50.0 100.0 Total 4 100.0 100.0 a. Drug of Choice = Heroin

Appendix C 173

Racea

Cumulative Frequency Percent Valid Percent Percent Valid White 3 75.0 75.0 75.0 African-American 1 25.0 25.0 100.0 Total 4 100.0 100.0 a. Drug of Choice = Heroin

Educationa

Cumulative Frequency Percent Valid Percent Percent Valid Some High School 3 75.0 75.0 75.0 Some College 1 25.0 25.0 100.0 Total 4 100.0 100.0 a. Drug of Choice = Heroin

Uses In Phase Ia

Cumulative Frequency Percent Valid Percent Percent Valid .00 3 75.0 100.0 100.0 Missing System 1 25.0 Total 4 100.0 a. Drug of Choice = Heroin

Uses in Phase IIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 2 50.0 100.0 100.0 Missing System 2 50.0 Total 4 100.0 a. Drug of Choice = Heroin

Uses In Phase IIIa

Cumulative Frequency Percent Valid Percent Percent Valid .00 2 50.0 100.0 100.0 Missing System 2 50.0 Total 4 100.0 a. Drug of Choice = Heroin

Appendix C 174

Uses in Phase IVa

Cumulative Frequency Percent Valid Percent Percent Valid .00 1 25.0 100.0 100.0 Missing System 3 75.0 Total 4 100.0 a. Drug of Choice = Heroin

Drug of Choice = Painkillers

Age of First Usea

Cumulative Frequency Percent Valid Percent Percent Valid 15.00 1 50.0 50.0 50.0 25.00 1 50.0 50.0 100.0 Total 2 100.0 100.0 a. Drug of Choice = Painkillers

Gendera

Cumulative Frequency Percent Valid Percent Percent Valid Female 2 100.0 100.0 100.0 a. Drug of Choice = Painkillers

Racea

Cumulative Frequency Percent Valid Percent Percent Valid White 2 100.0 100.0 100.0 a. Drug of Choice = Painkillers

Educationa

Cumulative Frequency Percent Valid Percent Percent Valid High School Diploma 2 100.0 100.0 100.0 a. Drug of Choice = Painkillers

Appendix C 175

Uses In Phase Ia

Cumulative Frequency Percent Valid Percent Percent Valid .00 1 50.0 50.0 50.0 2.00 1 50.0 50.0 100.0 Total 2 100.0 100.0 a. Drug of Choice = Painkillers

Uses in Phase IIa

Cumulative Frequency Percent Valid Percent Percent Valid 2.00 1 50.0 50.0 50.0 3.00 1 50.0 50.0 100.0 Total 2 100.0 100.0 a. Drug of Choice = Painkillers

Uses In Phase IIIa

Cumulative Frequency Percent Valid Percent Percent Valid 1.00 2 100.0 100.0 100.0 a. Drug of Choice = Painkillers

Uses in Phase IVa

Frequency Percent Missing System 2 100.0 a. Drug of Choice = Painkillers

Appendix D 176

Correlations

Completion Age of Uses In Uses in Uses In Uses in of Program Age First Use Phase I Phase II Phase III Phase IV (Months) Age Pearson Correlation 1 -.055 -.160 -.135 -.294 .225 -.646* Sig. (2-tailed) .680 .238 .382 .109 .505 .044 N 88 58 56 44 31 11 10 Age of First Use Pearson Correlation -.055 1 .138 -.067 .101 -.094 .098 Sig. (2-tailed) .680 .365 .702 .618 .810 .817 N 58 58 45 35 27 9 8 Uses In Phase I Pearson Correlation -.160 .138 1 -.327* .123 -.170 .798** Sig. (2-tailed) .238 .365 .030 .510 .618 .006 N 56 45 56 44 31 11 10 Uses in Phase II Pearson Correlation -.135 -.067 -.327* 1 .176 -.100 .116 Sig. (2-tailed) .382 .702 .030 .343 .770 .749 N 44 35 44 44 31 11 10 Uses In Phase III Pearson Correlation -.294 .101 .123 .176 1 -.194 -.229 Sig. (2-tailed) .109 .618 .510 .343 .568 .525 N 31 27 31 31 31 11 10 Uses in Phase IV Pearson Correlation .225 -.094 -.170 -.100 -.194 1 .a Sig. (2-tailed) .505 .810 .618 .770 .568 .000 N 11 9 11 11 11 11 10 Completion of Pearson Correlation -.646* .098 .798** .116 -.229 .a 1 Program (Months) Sig. (2-tailed) .044 .817 .006 .749 .525 .000 N 10 8 10 10 10 10 10 *. Correlation is significant at the 0.05 level (2-tailed). **. Correlation is significant at the 0.01 level (2-tailed). a. Cannot be computed because at least one of the variables is constant.

Graph

Appendix D 177

Graph

T-Test

Group Statistics

Std. Error Status N Mean Std. Deviation Mean Gender Graduated 10 1.7000 .48305 .15275 Terminated 48 1.7500 .43759 .06316 Race Graduated 10 1.5000 .52705 .16667 Terminated 48 1.6042 .49420 .07133 Education Graduated 7 3.5714 1.13389 .42857 Terminated 31 2.7097 .82436 .14806

Independent Samples Test

Appendix E178

T-Test

Group Statistics

Std. Error Status N Mean Std. Deviation Mean Age Graduated 10 35.2000 10.71655 3.38887 Terminated 48 34.2292 7.50387 1.08309 Age of First Use Graduated 8 16.2500 4.71320 1.66637 Terminated 29 14.2759 3.90875 .72584 Uses In Phase I Graduated 10 .8000 1.47573 .46667 Terminated 26 .9615 1.50946 .29603 Uses in Phase II Graduated 10 .1000 .31623 .10000 Terminated 17 1.4118 1.37199 .33276 Uses In Phase III Graduated 10 .3000 .48305 .15275 Terminated 6 1.1667 1.16905 .47726 Uses in Phase IV Graduated 10 .0000 .00000 .00000 Terminated 1 3.0000 . .

Appendix E179

Independent Samples Test

Levene's Test for Equality of Variances t-test for Equality of Means 95% Confidence Interval of the Mean Std. Error Difference F Sig. t df Sig. (2-tailed) Difference Difference Lower Upper Age Equal variances 2.942 .092 .345 56 .732 .97083 2.81792 -4.67413 6.61580 assumed Equal variances .273 10.911 .790 .97083 3.55774 -6.86753 8.80920 not assumed Age of First Use Equal variances .266 .609 1.211 35 .234 1.97414 1.63030 -1.33554 5.28381 assumed Equal variances 1.086 9.820 .303 1.97414 1.81759 -2.08579 6.03407 not assumed Uses In Phase I Equal variances .036 .851 -.289 34 .774 -.16154 .55838 -1.29630 .97323 assumed Equal variances -.292 16.725 .774 -.16154 .55264 -1.32897 1.00589 not assumed Uses in Phase II Equal variances 17.077 .000 -2.955 25 .007 -1.31176 .44391 -2.22601 -.39752 assumed Equal variances -3.775 18.749 .001 -1.31176 .34746 -2.03966 -.58387 not assumed Uses In Phase III Equal variances 4.753 .047 -2.101 14 .054 -.86667 .41250 -1.75140 .01806 assumed Equal variances -1.729 6.042 .134 -.86667 .50111 -2.09079 .35746 not assumed Uses in Phase IV Equal variances . . . 9 . -3.00000 .00000 -3.00000 -3.00000 assumed Equal variances . . . -3.00000 . . . not assumed

Appendix E180 Appendix F 181

Interview Transcripts – March 15, 2006

Participant started the TIES Program January 11, beginning Phase II today

Interviewer: How did you enter into the TIES Program?

Participant: I was in CBCF, but I got in trouble there. Judge Connor saw the progress I was making in CBCF, and he thought that prison wasn’t right for me, so he entered me in the TIES Program.

Interviewer: Why did you get in trouble at CBCF?

Participant: I got terminated from CBCF for doing something that I thought was right. I understand that it was wrong, technically, but I thought it was the right thing to do.

Interviewer: Since you’ve been in CBCF and tried treatment there, why is it that you wanted to join the TIES Program? Why do you think this will work for you?

Participant: What I was doing wasn’t working, obviously… Crack cocaine was my drug of choice, I had been smoking twenty years. I was tired, and I didn’t know how to stop myself, so I needed something more to help me with learning how to help me stop my addiction, and TIES is working.

Interviewer: Had you ever tried to quit in the past?

Participant: I had the willingness to quit, but I didn’t know how far my willingness would take me without some circumstances making me… I know I want to quit bad. It’s beside the circumstances now. I don’t care if I didn’t have any consequences behind me getting a dirty urine sample. I’d still want to stop.

Interviewer: Why is this time different?

Participant: I have a good support group. I have a home support group, a church support group and an AA support group, and TIES especially supports me very well.

Interviewer: What advice do you have for participants starting the program?

Participant: The program is beautiful for me. If you’re not intending to quit, I suggest you don’t participate in the TIES Program… there’s a lot of consequences if you’re going to break the rules, so you might as well let somebody else in that wants the help. Like me, I wanted help.

Interviewer: Is there anything you wish you could change about the program?

Participant: I wish they had the incentives back. The movie passes and rewards – that would be nice.

Appendix F 182

Participant is attending first Phase I hearing today

Interviewer: Why did you decide to join the TIES Program?

Participant: I got tired of doing what I was doing. I just wanted to be able to be there for my kids and grandkids.

Interviewer: Had you tried treatment in the past? Did it work?

Participant: Yeah, it worked, until I got back in with the wrong group. So now I’m trying to learn to stay away from it all. I’ve been involved with people that don’t fit my course anymore.

Interviewer: How do you think that TIES will help you stay away from the people you used to be involved with?

Participant: It will teach me how to stay away from the environment that I used to be in… Being in this program, I’ll be busy and I won’t have time to sit and get bored, I’ll always have something to do. I’ll be in a meeting or with my kids. Whatever it takes, I’m willing to go through it.

Interviewer: What do you think the hardest part of treatment will be?

Participant: The hardest part is not working. I’m getting used to house arrest. I’m working out and getting work done around the house.

Interviewer: What will you do to stay clean after the requirements of the earlier phases wear off?

Participant: I’ll continue to go to the meetings, continue to come in. Just drop in, to see how I’m doing or talk to the judge to let him know how I’m doing and let him see that I’m doing what I need to do.