Malave on The Treatment Program Complex

Evelyn Malave (Hofstra University - Maurice A. Deane School of Law) has posted Distorted Narratives in the Treatment Program Complex (Fordham Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Problem-solving courts and alternatives to incarceration have been both celebrated as successful attempts to address the factors that lead to defendants’ involvement in the criminal legal system, and critiqued as ineffective reforms that worsen mass incarceration. Specifically, critiques of the “treatment program complex” have tended to focus on how it harms defendants by exposing them to higher levels of incarceration if they fail to complete court mandates. But these critiques have failed to account for another way the treatment program complex harms defendants: by suppressing their voices regarding what kind of help they need and how they are affected by court policies.

Defendants’ voices are suppressed because, to successfully bargain for and stay in treatment, defendants must conform to a particular narrative of suitability that both reflects and reinforces stereotypes about addiction and recovery. Defendants thus experience epistemic injustice in that they are harmed in their capacity as givers of knowledge. And the treatment program complex is insulated from critique by the very voices that stand to offer the most valuable insights.

This Article’s novel contribution is to build on the epistemic injustice literature by examining the unique setting of the treatment program complex, where defendants are often encouraged to speak to the court, and yet simultaneously subjected to sweeping requirements that are intended to rehabilitate them, and to which their resistance is viewed as suspect. At a time when the movement for abolition has called for reinvestment in social services and for shifting power in criminal courts towards marginalized people, it is also important to imagine what that might mean for the treatment program complex. To avoid simply replicating the pathologies of the current system, this Article ultimately advocates for power shifting that centers impacted people’s voices by emphasizing harm reduction and self-determination.