01/22/20 Kerwin Kaye

Century of Lies
Kerwin Kaye

On this edition of Century of Lies, it’s part one of our conversation with Kerwin Kaye, an associate professor of sociology, American studies, and feminist, gender, and sexuality studies at Wesleyan University. Professor Kaye is the author of a new book published by Columbia University Press, entitled Enforcing Freedom: Drug Courts, Therapeutic Communities, and the Intimacies of the State.

Audio file



JANUARY 22, 2020

DEAN BECKER: The failure of the Drug War is glaringly obvious to judges, cops, wardens, prosecutors, and millions more now calling for decriminalization, legalization and the end of prohibition. Let us investigate the Century of Lies.

DOUG MCVAY: Hello and welcome to Century of Lies. I am your host, Doug McVay, Editor of www.drugwarfacts.org.

My guest today is Kerwin Kaye. He is an Associate Professor of Sociology, American Studies, and Feminist Gender and Sexuality Studies at Wesleyan University. Professor Kaye is the author of a new book published by Columbia University Press entitled, Enforcing Freedom: Drug Courts, Therapeutic Communities, and the Intimacies of the State. I had a fascinating conversation with Professor Kaye. We are going to hear the first part of that on today’s show,

On January 15th, 2020 the House Foreign Affairs Committee held a hearing on Afghanistan. The witness was John Sopco, Special Inspector General for Afghanistan Reconstruction (SIGAR). Here is his opening statement.

JOHN SOPCO: Congress created SIGAR in 2008 to combat waste, fraud, and abuse in the U.S. reconstruction efforts in Afghanistan. So far we have published over 600 audits, inspections, and other reports that have saved the American taxpayer over 3 billion dollars while convicting over 130 individuals for misconduct related to that reconstruction effort. Although this is the 22nd time I have presented testimony to Congress since my appointment, today is the first time I have been asked to address SIGARs rather unique lessons learned program and what we have learned from it. I thank you for that opportunity. In light of recent attention that our reports have gotten I am particularly pleased to have the opportunity to clear up any misconceptions about what that program does or does not do. As with everything produced by SIGAR, this lessons learned programs mandate is limited just to reconstruction, not the war fighting. We do not access U.S. diplomatic and military strategies nor our war fighting capabilities. Likewise, we are not producing an oral history of our involvement in Afghanistan nor opining on whether we should or should not be there. Rather, we are the only U.S. government agency focused on conducting research and analysis which meets strict professional standards aimed at providing an independent and objective examination of U.S. reconstruction efforts there and to make practical recommendations to you, the Congress, and executive branch agencies for improving our efforts there and elsewhere.

I would like to mention six overarching lessons that you can draw from these thousands of pages of reports we have issued.

Successful reconstruction is incompatible with continuing insecurity.
Unchecked corruption in Afghanistan has undermined our goals there and unfortunately we helped foster that corruption.
After the Taliban’s initial defeat there was no clear reconstruction strategy and no single military service, agency, or country in charge of reconstruction efforts in Afghanistan.
Politically driven timelines undermined our reconstruction efforts.
The constant turnover of U.S. personnel or what we have euphemistically called the Annual Lobotomy negatively impacted all of our reconstruction efforts there.
To be effective, reconstruction efforts must be based on a better understanding of the historical, social, legal, and political traditions of the host nation.

In addition to these key lessons your staff has asked us to give certain recommendations that you can focus on now. Here are six.

In light of the ongoing peace negotiations Congress should ensure that the current administration has an actionable plan for what happens the day after peace is declared.
To ensure that Congress is made aware of problems in a timely manner it should require agencies to provide regular reports to Congress disclosing risks to major reconstruction projects and programs as they occur. This would be analogous to the requirement we impose upon publicly traded corporations for the SEC.
Congress should condition future on budget assistance on a rigorous assessment of the Afghan Ministries and International Trust Funds to ensure that they have strong accountability measures in place.
Oversight is still mission critical in Afghanistan. Congress must require that this administration continues to ensure adequate oversight, monitoring, and evaluation capabilities continue.
Congress should require U.S. government agencies to rack and stack their programs and projects on at least an annual basis to identify their best and worst performing programs.
Congress should require State DOD, and U.S.A.I.D. to submit the anti-corruption strategy for reconstruction efforts that was mandated to be filed by June of 2018, and still has not been filed. That was mandated by the National Defense Authorization Act.

In conclusion, our work at SIGAR is far from done. For all of the lives and treasure the United States and its partners has expended in Afghanistan, the very least we can do is learn from our successes and failures there to improve future operations. I thank you very much for the opportunity to appear today and I look forward to your questions.

DOUG MCVAY: That was John Sopco, the SIGAR or Special Inspector General for Afghanistan Reconstruction. He was testifying before the House Foreign Affairs Committee on January 15th, 2020. Now let’s get on with the rest of the show.

His new book published by Columbia University Press entitled, Enforcing Freedom: Drug Courts, Therapeutic Communities, and the Intimacies of the State. I happen to have the author on the phone with me now and that is Professor Kerwin Kaye. Professor Kaye is an Associate Professor of Sociology, American Studies, and Feminist Gender and Sexuality Studies at Wesleyan University in Connecticut.

From the news release, ‘In 1989, the first drug-treatment court was established in Florida, inaugurating an era of state-supervised rehabilitation. Such courts have frequently been seen as a humane alternative to incarceration and the war on drugs. Enforcing Freedom offers an ethnographic account of drug courts and mandatory treatment centers as a system of coercion, demonstrating how the state uses notions of rehabilitation as a means of social regulation.

Situating drug courts in a long line of state projects of race and class control, Kerwin Kaye details the ways in which the violence of the state is framed as beneficial for those subjected to it. He explores how courts decide whether to release or incarcerate participants using nominally colorblind criteria that draw on racialized imagery. Rehabilitation is defined as preparation for low-wage labor and the destruction of community ties with “bad influences,” a process that turns participants against one another. At the same time, Kaye points toward the complex ways in which participants negotiate state control in relation to other forms of constraint in their lives, sometimes embracing the state’s salutary violence as a means of countering their impoverishment. Simultaneously sensitive to ethnographic detail and theoretical implications, Enforcing Freedom offers a critical perspective on the punitive side of criminal-justice reform and points toward alternative paths forward’.

It is all that and more and it is really quite a pleasure and an honor to have you on the line with me, Sir.

PROF. KERWIN KAYE: Thank you very much.

DOUG MCVAY: I was reading through and I made some notes. If I could ask you to unpack for the audience. You started out talking about therapeutic jurisprudence and the stratification of punishment and you talk about how drug courts act as a structure of stratified penalization significantly intensifying the war on drugs on the nonwhite poor. One of the things about drug courts is the idea that it is for rehabilitation, therapy, punishment, and treatment alternative to punishment yet that is not exactly how it turns out.

PROF. KERWIN KAYE: No. Not at all. Drug courts do work out for some people. It really does two things that I think are positive and the first one is this vision of social inclusion that is offering people services in order to have some sort of return to society but the vision that relies upon is that drug users are outside of society somehow and that they are already criminal and that there is a war that can be waged against drug users. What that means is that the drug courts are just coercing people in to receiving treatment in a particular way and a particular type of treatment. What that also means then is that you can fail at treatment somehow. I would always think that treatment would fail you but within the vision of the drug court, treatment can fail you because you are not meeting the goals of the court. About half the people going through the drug court system fail at treatment. With a drug court you have already had to agree to a charge and you have already had to plead guilty, and they charge you with the most serious charge that they could bring to bear. So you have lost your ability to plea bargain and if you now fail at treatment you are sentenced to prison for a much longer time than if you hadn’t even tried to do the rehabilitative process in the first place. You are actually punished for going through the rehabilitative process. The half that fails are disproportionately black, and poor, so the people that most need relief in the war on drugs are the people who actually get punished through the drug court system whereas people in the white, working class become more of a target within the criminal justice system around the war on drugs with the opioid epidemic and so on. Those people typically get a very good deal. They make use of the services and are able to get their lives together in whatever way and often feel that the drug court has helped them and sometimes enormously so. This other half that typically doesn’t get a lot of press are actually punished. Again, this is the part of the population that most needs relief from the war on drugs and it actually intensifies the war on drugs on that half. Drug courts are really the devil’s bargain in terms of offering the services and vision of rehabilitation instead of punishment; but the reality is for half of the people it actually intensifies that punishment. There are problems with the nature of the treatment itself as well but just at the level of punishment it can be quite devastating for the consequences.

DOUG MCVAY: Indeed. Well that is one of the big concerns about drug courts and the idea of cherry picking the cases with the people put in to the drug courts who have the highest probability of what we would call treatment success. Maybe they didn’t actually have a drug problem in the first place, they just got caught with some controlled substance. That is one of the things with the cherry picking, you either have people who don’t have a real problem and are going to breeze through treatment because they already have the resources.

PROF. KERWIN KAYE: If I could just step in on that.

DOUG MCVAY: Yes. Please.

PROF. KERWIN KAYE: One of the things that was most surprising for me as I investigated the drug court and the treatment system is the number of people who are going through the drug courts who really do not have significant drug use and so what you have is a lot of people who are dealers who maybe smoke marijuana on a regular basis going in to treatment through the drug court. In the court that I studied, it was approximately half of the people going through the drug court were dealers whose drug of choice was marijuana. In other areas it might be a little lower down to 30%, but you still have a high percentage of people going through these drug courts who really don’t necessarily have a lot of involvement in drugs. Because the attorneys have a disproportionate say in how treatment works, most drug courts offer inpatient treatment and outpatient treatment but because of public safety concerns the district attorneys often insist that dealers go to residential treatment which is the most intensive type of treatment available such that the treatment centers become like mini jails and are used for different purposes than they were intended. Often the dealers that I spoke with who are going through treatment are able to make use of these services and find it a less onerous way of doing their time than spending their time in jail. From that perspective it is not necessarily the worst option for them but this is really something dramatically different and it does alter the numbers in terms of “success rates” of what treatment is. We can talk a bit about what success means in terms of treatment for these programs. It is really a very different population than I think people think of going through drug treatment initially. It is really often a large percentage of people who really don’t have significant involvement as well as people who do, of course.

DOUG MCVAY: We will have more of my conversation with Professor Kerwin Kaye, author of Enforcing Freedom in just a moment.

You are listening to Century of Lies. I am your host, Doug McVay.

FEMALE VOICE: Our young people are helping us lead the way.


PART OF MARIO SAVIO SPEECH AT SPROUL HALL: There's a time when the operation of the machine becomes so odious, makes you so sick at heart that you can't take part! You can't even passively take part! And you've got to put your bodies upon the gears and upon the wheels, upon the levers, upon all the apparatus -- and you've got to make it stop! And you've got to indicate to the people who run it, to the people who own it -- that unless you're free the machine will be prevented from working at all!!

DOUG MCVAY: Let’s return to my conversation with Professor Kerwin Kaye, Associate Professor of Sociology at Wesleyan University, and the author of Enforcing Freedom: Drug Courts, Therapeutic Communities, and the Intimacies of the State.

What are the things that we can do to look out for? What should the drug courts be doing to do better?

PROF. KERWIN KAYE: A lot of the problem with drug courts really happens in the fine print and it is really tricky to evaluate. With most drug courts you are pleading guilty ahead of time so that if you “fail” at treatment you have lost your ability to plea bargain and you are going to prison with no credit for the time that you have put in to the treatment process. Some things that a small percentage of drug courts do is have the plea bargaining still be an option after a person has already gone through the drug court process without the need to plead guilty ahead of time. They could allow people to receive credit for the time that they put in to treatment as part of any sentence that they might receive. Basically making sure that people are not punished for any time that they put in to participating in a rehabilitation program and that is the simplest thing.

I would like to move away from the entire criminal justice system as part of the way that we adjudicate any sort of drug crimes. I would like to move toward a public health model that emphasizes harm reduction and I would like to see a lot of the services that the drug court offers as they are very good such as recovery on demand, as well as job training available as well as educational assistance. These are all things that could be offered without forcing people to go through these programs. The advocates of drug courts argue that people will not go through treatment unless they are forced to and that could be true in some cases, but when you force people to go through treatment there are a lot of downsides and negatives that start to add up so that all the people that are going in to treatment that “fail” because they were forced in to treatment and are not responding the way that you want them to. Those people are ending up in prison for long periods of time and where do you put that on the ledger sheet. Overall, I think that the ledger sheet is much more in favor of a public health approach focused on harm reduction, offering services, restructuring the economy, and rather than continuing to use the criminal justice system as part of this plan of racialized poverty management, moving away from that entire model. I would like to see no need for drug courts because we should not be punishing drug crimes in the first place. Nevertheless, I could see some places where even in an abolitionists’ model it is hard for me to figure out exactly how we would get around not having some sort of adjudicatory procedure around DUIs, or if somebody wants to continue driving and they have a history of driving drunk I would rather see a court model that offered services as part of what they are doing than not. In that sense I could see a drug court model that could work in some limited situations, even if we were able to change things more dramatically. Generally I think we need to move away from relying on the criminal justice system as a whole. Part of what the drug court does is reinforce the idea that we need to keep arresting people and that arresting people is a good thing. This is how we get to offer them treatment and help – and that turns arrest and the threat of imprisonment in to a benefit. We started this conversation talking about therapeutic jurisprudence and the therapeutic part sort of medicalizes punishment and it medicalizes the criminal justice system. It doesn’t mean that doctors or addiction specialists are really in charge of handling people’s cases but what it does is it turns punishment in to a form of medicine. The main problem is that people are not being held accountable and the way that we hold people accountable is by using these very basic criminal justice system tools like arrest and imprisonment and turn it in to something that is actually beneficial for people in dealing with their drug problems and I think that is entirely wrong. In terms of what we can do – I think we need to continue to push towards a public health model and harm reduction models and turn away from drug courts in general.

In New York State in 2009 they significantly modified the Rockefeller Drug Laws in favor of judicial diversion which is basically in favor of a drug court model. You have to ask if that was an improvement and a step in the right direction or are we actually intensifying the war on drugs for the half of the people that fail. I think the answer is that it is actually very complicated and it is hard to assess. Then answer a lot of times is in the fine print. I think of drug courts as a deal with the devil and when you deal with the devil you really better pay attention to the fine print about what is going on. The prosecutors offer plea bargains very differently. They don’t want people to have the opportunity to be diverted in to a drug program and so they are actually hueing toward harsher penalties that keep people out of the track where they might be diverted in to drug treatment. There can be some unintended effects that happen as part of these processes. There have been a lot of positives in New York in terms of the fact that a lot of people have been diverted from criminal justice entirely and while it is complicated, I think overall it has probably been a good change.

Drug courts have become a model for other types of courts such as mental health, prostitution, and truancy courts where they are threatening children with short term incarceration if they don’t show up to school, or threatening their parents with the same. Truancy court is just a bad idea but mental health courts, while being really complicated, the effects of each of these courts and how the play out is in the fine details and ultimately the good model of what we’d like to move for but in terms of assessing if this is a move forward or a move backward is really complicated and you have to get in to the weeds to figure out if this particular court is going to be a benefit in this city.

DOUG MCVAY: That was part of my conversation with Professor Kerwin Kaye. He is an Associate Professor of Sociology, American Studies, and Feminist Gender and Sexuality Studies at Wesleyan University. Professor Kaye is the author of a new book published by Columbia University Press entitled, Enforcing Freedom: Drug Courts, Therapeutic Communities, and the Intimacies of the State. We will have more from that conversation on next week’s show. That is it for now. I want to thank you for joining us.

You have been listening to Century of Lies, we are a production of the Drug Truth Network for the Pacifica Foundation Radio Network. You can find us on the web at: www.drugtruth.net. I am your host, Doug McVay, editor of www.drugwarfacts.org.

The Executive Producer of the Drug Truth Network is Dean Becker. Drug Truth Network programs, including Century of Lies and the flagship show of the Drug Truth Network, Cultural Baggage and our daily 420 Drug War News segments are all available by podcast. The URLs to subscribe are on the network homepage at www.drugtruth.net. We will be back in a week with 30 more minutes of news and information about drug policy reform and the failed war on drugs. For the Drug Truth Network this is Doug McVay saying so long.

For the Drug Truth Network this is Doug McVay asking you to examine our policy of drug prohibition, the Century of Lies. Drug Truth Network programs are archived at the James A. Baker, III Institute for Public Policy.