#depending on how high her alcohol levels were. she might need to go to jail for a little while

[real-life-cloud]

:((

[jess-rewatches-prodigalson]

Bad Manners (S2, E5)

My time-stamped thoughts for this episode. As always I reference Malcolm’s mental health. A lot. So if that’s going to be a trigger for you, don’t keep reading.

SPOILERS AHEAD:

0:35 - Martin totally thought John Watkins abducted and killed Ainsley. Mark my words. 

0:44 - Holy. Shit. Ainsley is FIVE years old (or younger) here right? A five year old with that much determination?!?! She literally stayed silent in that clock for probably hours......and no one was concerned about this kid when Martin was arrested because...?

1:09 - Anyone else impressed with Malcolm’s aim here? Just me?

1:20 - Gil and Malcolm talking about sleep and murder is so freaking sweet. <3 Honestly, they’re acting like friends instead of co-workers and it warms my cold dead heart. 

1:29 - Does Gil become a grumpy old man when he doesn’t get 8 hours sleep? I really want to know now. 

1:39 - OMG. Gil pointing at Ainsley here is hilarious. He’s totally acting like some weird mix of a stern pissed off high-school teacher, and a step-dad trying to discipline an unruly teen. hahaha AND MALCOLM’S FACE. Look how done Malcolm is. He looks so so tired, sad, and exasperated. 

1:44 - Wow. Girl power. Ainsley has those camera guys bending to her will. I honestly would’ve thought they would just read the situation and turn the camera off themselves. 

1:47 - “It’s not a game.” Yikes. I have thoughts about this:

Malcolm is right - it’s not a game. 

Malcolm is a bit of a hypocrite for saying that to Ainsley. Although, to his credit even when Malcolm is excited/inappropriately happy about murder it’s always pretty clear that he thinks murder is wrong, and that he has sympathy for the victims and their families. 

Ainsley does not have that same sympathy for the victims. That much is clear later in this episode. 

Pretty sure the writers are trying to turn Ainsley into a serial killer this season. 

2:13 - “You know I like to share these things with my friends.” .....does this mean Malcolm thinks Dani and JT are his friends now? Last I checked (Ep 1x05) Malcolm didn’t have friends. This absolutely melts my heart. <3 I’m honestly so happy that Malcolm considers someone other than Gil to be his friend.

2:18 - “We lost Dani to vice.” .....What is vice? AND WHAT IS THE REAL LIFE REASON THAT DANI WASN’T IN THIS EPISODE?!? 

2:19 - Edrisa has a medical degree right? She has to know how dangerous consuming that much caffeine is right? Plus aren’t energy drinks super dangerous if you drink a lot of them (or maybe that’s just what adults in my neighbourhood told kids)?

2:30 - Edrisa SHINES in this episode. She’s so funny and awkward and I just love her. 

2:36 - hahaha Gil has adopted the whole team. Look at him throwing the “Dad warning stare” at Edrisa. 

3:31 - Why does Edrisa start bouncing around looking upset when Malcolm says, “rejection is a powerful motivator”?!?! Has she recently been broken up with or something? Is this a reference to how she has a crush on Malcolm (who doesn’t reciprocate)? I WANT MORE INFORMATION.

3:47 - TWIZZLERS!!! <3 Damn I love how this tiny detail about Malcolm’s character keeps coming up. 

3:55 - Ainsley is on a rampage this episode. She’s so determined ...actually she’s acting a lot like Jessica (think girl in the box bracelet). However, unlike Jessica, Ainsley’s motives aren’t about justice or the safety of her loved ones.  Ainsley is chasing personal gain (career) with a side of (a subconscious?) need to be exposed to murder and her father’s twisted world. 

4:05 - This whole interaction between Ainsley and Malcolm is really interesting. Ainsley is knowingly manipulating Malcolm to get the answers she wants. We’ve seen her do it in 2x4 and 1x19. She knows her big brother would do anything for her. It makes sense, they’re five years apart and after the trauma they experienced as children Malcolm felt responsible to protect Ainsley. He never wants to disappoint Ainsley. Not a burden he should’ve had to deal with but I digress. PLUS Malcolm looks weary of Ainsley here. He knows what she’s doing. He’s scared that she’s turning to the dark side. But he still gives her the answers because if he doesn’t - that means something has changed. He thinks that would make Ainsley suspicious and then she might remember what happened to Endicott. He’s scared of and for Ainsley. 

4:32 - OKAY. I’ll say it. The thing that annoys me the most about this episode is that it suggests that Ainsley was a debutant when in 1x6 AINSLEY TELLS MARTIN SHE WAS NEVER A DEBUTANT. She went to etiquette school - I guess that doesn’t strictly mean she also did debutant balls but it sort of suggests it in the context of this episode? Did she actually graduate from the etiquette school (there was bullying, maybe she was expelled/dropped out similar to Malcolm and Remington?)?

4:59 - “No stabbies” OMG. How is this show not classified as a comedy?!? Istg I laugh harder watching this ‘drama’ then I do watching most of the shows that call themselves ‘comedies’.

5:35 - It’s honestly kind of amazing that Ainsley and Malcolm are as ‘sane’ as they are. They were raised by a stubborn predatory psychopath and a stubborn rich meddling socialite. They had no chance of normalcy. Look at the amount of pleasure Martin is currently getting by throwing his son under the bus with regards to Jessica. 

 5:45 - “No actually, I cleaned it up.”.....does this have a dual meaning? Did Martin do something to make Malcolm dispose of the body? We already know that Martin has tried some sort of conditioning on Malcolm (remember ‘C’mon boy!’ from 1x14? The stabbing?). What if Martin said some sort of trigger word to control Malcolm and coerced Malcolm into getting rid of the body? What if this isn’t the first time?

6:05 - Ainsley is a sociopath. I’m calling it again. I called it when I first watched Q&A (1x7) because the way she treated Malcolm was more than just selfish/careless. It was cruel and she didn’t feel any remorse for literally broadcasting her brother’s private health details on television. That is messed up. I honestly won’t be shocked if the writers make Ainsley a full blown serial killers (although I’m not sure I want that because I don’t know how Malcolm would remain the main character if the story goes in that direction?). 

6:12 - Poor Jessica. I honestly feel really bad for her. Sure, she’s a headstrong alcohol dependant crazy rich woman. She also has a good heart. She’s been dealt a pretty shitty hand when it comes to relationships (minus Gil but she ruined that because she’s a MORON) and now she’s terrified that her own children have become monsters and she blames herself. She definitely hasn’t been a perfect mother but I don’t think she’s to blame for Ainsley and Malcolm’s obsession with murder. If these kids had a different bio dad, they would probably just have a low-key drug problem or some other common rich kid baggage. 

6:15 - “You know that’s not how cancer works right?” LOL. hahahaha

6:33 - Martin kind of has a point. There’s no rehab for murder. That’s why he’s been in jail for 20 years and he still wants to kill people. In my opinion, given what we’ve seen of Ainsley’s personality: as soon as she fully remembers that night - she’s gone. She’ll go full serial killer and Jessica and Malcolm will lose her forever. 

6:40 - Jessica’s little jazz hand finger twinkle as she spins on her heel and leaves Martin kills me. It’s so extra. It’s so funny. And it’s sooo Jessica. 

6:47 - Damn. Martin is pissed. I’m worried. That’s murder-level rage. If he escapes ISTG Martin is going to try and kill Gil. For so many reasons 1) because he hates Gil, 2) it’ll hurt Jessica, and 3) killing Gil will eliminate his ‘Dad’ competition. 

6:54 - Edrisa on caffeine is AMAZING.

7:43 - I love Edrisa but her blatant, unreciprocated crush on Malcolm is honestly getting a little creepy. 

7:52 - Gil spent all last season drinking out of a Yankee’s mug. Doesn’t that mean he’s a baseball fan? Why doesn’t he know this pitcher guy?

7:56 - hahahaa “Where is JT?” Because obviously JT is the team sports fan. 

8:22 - Does Gil get nightmares about cases? He always seems really uncomfortable around the dead bodies. 

8:45 - “And suddenly I’m wide awake” SERIOUSLY - is anyone else laughing every 60 seconds when they watch this show? Is my sense of humour just super dark and messed up?

8:54 - YES. The liquorice is BACK.

9:00 - I love Malcolm talking to JT about his obsession with candy. I love how Malcolm doesn’t even hesitate before giving JT an honest answer. Malcolm is acting like JT’s annoying little brother and I am here for it. One thing I did notice though - Malcolm specifically mentions candy+dopamine but doesn’t mention his depression/anxiety. Processed sugar can be a short-term (unhealthy) way to boost your mood. It’s why some people eat their feelings. I really want more backstory about Malcolm with the lollipops and licorice though. 

9:19 - “But you didn’t do anything wrong.” Awwww Malcolm is so soft here. I love how much he genuinely cares about JT. <3 I love how JT is comfortable enough with Malcolm to give him an honest answer. <3 THEIR RELATIONSHIP HAS GONE THROUGH SUCH A GLOW UP. <3 

9:32 - “Like toy dolls?” hahaha the way Malcolm perked up here. All I could think was “SQUIRREL!” hahaha. 

9:41 - Malcolm is doing better than he has been the past few episodes? I mean he’s still suffering and he’s still in a terrible mental state. BUT he also seems happier? IDK maybe he’s just entered the more manic nervous energy stage of his emotions as opposed to the depressed and scared stage. 

9:49 - “Deep childhood trauma”. So we’re looking for a debutant killer with childhood trauma who is chasing perfection? Debutant = rich lady culture. Like Ainsley. AND Ainsley went to the same etiquette school as the first two victims. The writer’s wanted us to assume the killer was Ainsley for the first 15 mins of this episode right? I’m not the only one seeing it?

10:04 - “My sister went there too.” ....why is there something super attractive about the way that line was delivered?

10:08 - I’m so done with this absolute tom foolery. Why does the team keep splitting up into two teams - where one team is JUST MALCOLM. The one who is unarmed and technically a civilian?!? This makes no logical sense to me (except for plot).

10:25 - Was Martin just about to say, “Just like the old days”?!? Is Martin referring to Endicott? OR is Martin referring to something that Malcolm’s repressed from his childhood?

10:30 - “I always root for the bad guys.” .....finally some truth from Martin.

10:40 - Soooooo I guess Mr. David doesn’t know? I promise you Mr. David has suspicions though. How could he not?!?!

11:24 - “It was brutal for Ains.” Look at how sad Malcolm is! Ugh. This hurts so much. He clearly loves his sister so so much and what she’s done is slowly killing him. I honestly think that part of the reason Malcolm helped Ainsley dispose of the body is that Malcolm doesn’t want to loose his sister. His sister is one of the only good things he’s always been able to count on. If word gets around that she’s a killer - Malcolm’s fragile world gets shattered a little more and I don’t know if Malcolm can recover mentally from that. 

11:36 - “Teasing made her capable of...stuff.” C’MON. There’s no way Mr. David doesn’t know. 

11:45 - Sooo is Martin saying that he recognized that Ainsley was a sociopath when she was a small child? Or did she just respond to his (or John Watkins’) grooming much ‘better’ than Malcolm?

11:56 - “Because she’s her mother’s” Okay. So I see the point. I can see that Ainsley is driven and stubborn like Jessica. BUT it feels like Martin is suggesting that Jessica is capable of murder? Which - I honestly don’t think she is. If anything - Malcolm is more like Jessica than Ainsley is.

11:59 - There was a look in Martin’s eyes when he was comparing Ainsley to Jessica that really freaked me out. I can’t figure out why. It makes me wonder if Martin still somehow views Jessica as ‘his possession’ (he refers to her as his wife all the time but I always assumed that was just to get a rise out of people?). Martin’s dream from 2x4 certainly suggests that he still wants Jessica romantically. I honestly think he’s going to try to escape and rekindle the romance with Jess; and it’s going to go very poorly when Jessica rejects him. 

12:06 - Preach JT. Preach. This is creepy af. 

13:00 - Ugh. Of course this creep has a history of indecent exposure. Now I understand why Gil and JT were hostile with the dude right from the start. 

13:12 - Man. People will use the Bible to justify anything. No wonder people hate Christians ( I say this as a practicing Christian).

13:18 - JT is such a good dude. I’m so glad he’s a dad now. <3 He’s going to be such a good one. <3

13:26 - “One phone call and this place will be shut down.” OH SHIT. GIL THAT IS VICIOUS AND I RESPECT THE SHIT OUT OF IT.

13:35 - I soooo thought that dude was going to sprint out of that room. 

14:30 - THIS. YES. This is why I have a problem with Ainsley’s enthusiasm for murder vs. Malcolm’s. Ainsley’s enthusiasm is centred on her nee to ‘get the story’. She’s obsessed with forwarding her career and as a result she’s treating crime like a competitive sport. Malcolm’s obsession (while it can border on creepy and reckless) is always centred on his need to find the killer and stop the murders. Malcolm is seeking justice and his heart is in the right place. I can’t say the same for Ainsley.

14:31 - “We’re brother and sister, everything is a competitive sport”.....whoever wrote this doesn’t have a sibling they experienced trauma with as a kid (and as a result was raised by a single parent). Seriously, my dad was abusive he lived with us until I was 10 and my brother was 7. Then my parents got divorced and my mom was a single parent (he didn’t pay child support or see his kids after the divorce). Are my brother and I competitive? Sure sometimes. But the way we grew up forced us to become partners. Annoyed with Mom? Let’s rant about it together. Is he struggling in math? I’ll tutor him in exchange for a Reese cup. Am I struggling at daycare because I have massive social anxiety? He’ll include me in whatever he’s doing so I’m not sitting alone in a corner. My point: siblings who experience trauma together don’t have the typical sibling relationships that are widely televised in North America. There’s a lot less fighting and competition and a lot more teaming up and commiserating. 

14:39 - “It. It’s terrible.” - Notice how Ainsley didn’t actually say how it made her feel? She gave the standard “TV response” to a murder “a terrible/horrific/tragedy has occurred”. She doesn’t feel bad that these women are dead. She’s too consumed with getting a story to even stop and let herself feel anything. I’ve been saying it since last season - the way Ainsley shows no regard for other people and their feelings when she’s obsessed with her job is concerning. 

14:50 - “Remind me of the people who cut us off after Dad’s arrest.” ...Are you kidding me?!? The whole fandom has been speculating about this since early season one and they’re not going to elaborate on that line?!? I’m going to need some more information about this and it better be in the upcoming episode where Jessica’s younger sister appears. 

15:40 - She thinks of her students as family? Sooo what does she think of Ainsley? Wasn’t Ainsley bullied at this school? Did she do anything about it? 

16:00 - this is like a ‘weekend/evening school’ right? Kids aren’t living in this house like a boarding school/summer camp?

16:01 - “Mr. Whitly” UGH. This bitch preaches etiquette and she doesn’t even have the common courtesy to call Malcolm by the name with which he introduced himself? Nah. I don’t like her. 

16:13 - Ugh. Ainsley, seriously? Why don’t you help your brother solve the case. AND PREVENT MORE MURDERS. Why are you indirectly but purposely obstructing justice?

16:37 - “Of course.” Huh. Do you think Martin might try and manipulate Ainsley into killing Malcolm? Ainsley definitely capable of it. She doesn’t actually seem to care about Malcolm nearly as much as he cares about her. 

17:17 - WTF?!? That’s creepy af. How did no one in this show think this assistant was a suspect? She has a super creepy doll that she ‘forgot’ on the floor the middle of a hallway. AND THE DOLL WAS STANDING UP. Not sitting, not dropped carelessly, STANDING UP.

17:30 - Look at Malcolm’s face. He’s definitely going to be having nightmares about that doll. 

18:25 - OMG. This was amazing. JT just totally bulldozed his way into catching that dude. Very badass. Also kind of funny (maybe that’s just my messed up sense of humour again?).

18:44 - Ugh. This dude has a thing for dolls. I don’t want to kink shame but - no. no. There’s something really gross about that.  

18:48 - I’ve seen some people say that this doll looks like Ainsley and how that’s supposed to be some sort of foreshadowing/symbolism. I kind of see it? I mean the hair colour is similar and if you pause the screen at 18:48 the angle kind of looks like Ainsley? It would be an interesting metaphor though - Ainsley played with dolls as a little girl. John Watkins gave her angel statues. She is Watkins’ and Martin’s doll’ in the sense that she was the object that murders manipulated/groomed. 

18:53 - Then again, pause the screen here and there’s something about the facial structure that looks like Dani to me. 

19:00 - Jessica lets Ainsley work in the murder office?!? No. No she doesn’t. This is garbage. Jessica would’ve forbade it. Jessica would’ve bordered up this room immediately after Watkins.

19:57 - Poor Jessica. She’s clearly terrified that she’s losing Ainsley and terrified of Ainsley. BUT Jess, sweetie, running to Europe won’t fix this. 

20:16 - “She wanted the dolls to look like her students.” AND PEOPLE SEND THEIR CHILDREN TO HER?!? WTF?!? NO. NO. NO. NOT OKAY. 

20:31 - HAHA look at Gil’s face when Trevor tells him he can make the ‘perfect woman’. Gil’s like WTF - can I arrest you for thinking you can fabricate a ‘perfect woman’?!!?

21:06 - Malcolm is having so much fun playing with Trevor’s doll head. Look at how excited he is. It’s kind of adorable but his manic energy is showing which is concerning. 

21:10 - Why is Trevor giving his doll fancy 1940s(ish) names? 

21:31 - Props to LDP. I honestly believed Gil was annoyed with Malcolm for barging in on the interrogation the first time I watched this. 

21:42 - “They got a word for everything.” hahaha OMG. This is so reminiscent of a teenager explaining some new tech to their tech-illiterate parents. 

22:00 - I can’t tell if Gil feels sorry for this creep or if he just thinks the dude is really gross. Probably a mixture. 

23:00 - Oh we’re bringing up the chloroform again. At least Malcolm knows not listen to Martin about this nonsense. 

23:25 - “It doesn’t feel fun.” - THIS. This is why I honestly don’t think Malcolm will ever become a serial killer. His guilt complex is just too big.

23:56 - Are. You. Kidding. Me? This is next level. Ainsley is so out of line here. AND SHE SHOWS NO REMORSE. SHE DOESN’T THINK SHE’S DONE ANYTHING WRONG. THIS GIRL HAS GONE DARK SIDE (she was already halfway there).

24:17 - I’m getting papa!Gil vibes when Gil is talking to Ainsley and I want more scenes of them interacting. Seriously, did Gil have a relationship with Ainsley when she was a kid? I MUST KNOW.

24:45 - Ainsley has no conscience. I honestly don’t think Ainsley has a conscience. 

25:00 - “Who is that!?” Malcolm is totally acting like he’s Ainsley’s father-figure right now. I’m here for it. 

25:22 - SORE LOSERS?!? I’m sorry. What? If you weren’t concerned about Ainsley you damn well should be now. That is seriously messed up. People are dead. This is not a game. Do you know who else thought murder was a game? Martin Whitly.

25:31 - Okay. Ainsley has a point. Malcolm lecturing anyone about being reckless is pretty hypocritical. But at least Malcolm cares about her. 

25:54 - Heart. Shattered. Look at how terrified Jessica is. Look at how gentle and reassuring Gil is. UGh. WHY DID SHE BREAK UP WITH HIM??! I mean, I know why I just think she’s a moron for doing it. 

26:00 - Poor Gil. He’s so confused and so concerned. The whole Whitly family is acting crazier then usual and he doesn’t know why. 

26:11 - “Both you and Malcolm are at an 11 and I’ve never seen Ainsley like that.” FIND YOURSELF A MAN WHO CARES LIKE GIL AND NEVER LET HIM GO. <3 <3 <3 <3 <3 Seriously. The love and concern he shows for this family warms my cold dead heart. 

26:16 - “Her father?!” Oh shit. Now Gil knows there’s something BIG happening. Jessica would never run to Martin unless she absolutely had to. 

26:19 - annnnd Gil’s also being a prideful man who’s feeling are hurt. “You went to him?” He’s right to be though - the woman he loves went to a serial killer for advice before going to the guy who practically co-parented with her. 

26:33 - “I’m here. Whatever you need. I’m here.” <3 <3 Gil is the definition of a good man. <3 I’m in love with it. 

26:48 - “You were right on time for me.” ....*snort* subtle Gil (and in front of JT!!)

27:08 - Edrisa is hysterical on caffeine. hahaha. This whole scene is perfect. 

27:20 - You know someone is acting manic when Malcolm Bright is concerned about their eccentric behaviour. 

27:34 - Annnnnd Tom Payne was a split second from breaking character here. I don’t blame him. hahaha

28:05 - EDRISA flipping and dropping that pencil. HAHAHAHAHAHA

29:10 - “Absolutely not.” hahaha this is funny but also really sweet. Malcolm knows that Edrisa hopped up on caffeine isn’t safe to have near an active killer. Who knows what’ll happen. I wish he’d care that much about his own well being. Looks like calling for backup last episode was a one time thing. 

30:37 - I’ll give the writers one thing - Miss Windsor makes a convincing murder suspect.

31:22 - GIL. STANDING. UP. FOR. JT. IS. EVERYTHING. Where is O’Malley’s back up? Oh yeah, they’re not brave enough to defend him.

32:00 - Huh. Bright texted for backup. This is growth. I’m proud of him. 

32:15 - YES. This JT arc was handled right. Sure JT could’ve complained. It would’ve been episodes upon episodes of bureaucratic nightmares and injustice. This show isn’t about racism. They showed enough to portray that the system is broken and they had JT act like a responsible adult. It’s not fair that JT had to go through this or that he’ll likely experience something similar to it again. But the fact that JT is acting like a bigger person is perfect. JT will protect his family. Always. That includes Malcolm. So JT avoids putting through a formal complaint because he knows that will take time away from doing his job, from protecting others, from hanging out with his wife and kid. JT’s taking the higher road, it might not be gratifying or fair but I respect the hell out of him for taking it. 

32:28 - Gil is so so proud of JT. Look at him. <3 <3 

33:40 - Look, Miss Windsor is a bit of a stuck up bitch but she has a good heart. Look at the way she immediately tells Malcolm where Ainsley is when she realizes what’s happening. 

34:14 - This confused me during the first watch - Ainsley obviously didn’t drink any tea - so why is she drugged? (obviously I know now). 

34:17 - Big brother Malcolm frantically looking for Ainsley is so so sweet. <3 

35:42 - The music, the dolls, and Miss Windsor’s speech here. There’s something about this part of the episode that is strangely reminiscent of 5x16 of Criminal Minds.

36:20 - ......does Miss Windsor have some sort of mental illness? She’s talking to herself and ranting erratically. Is this just emotional stress or something deeper?

37:00 - This is why Malcolm’s not a serial killer. Even now- looking at a killer - he’s trying to sympathize with her. He’s trying to understand why. He’s trying to calm her down, diffuse the threat, and get her mental help. 

39:00 - Oh yeah. Ainsley was definitely going to kill without remorse. Again. I’ve seen some theories that Ainsley only ever tries to kill to protect Malcolm. I disagree. I think Ainsley’s trying to protect herself. Ainsley is pissed off that this girl tried to drug her and kill her because she thinks Ainsley is wicked. Ainsley was pissed at Endicott for whatever he did to Ainsley before Malcolm got there. I think Ainsley felt threatened and scared so she reacted. I don’t think this has anything to do with protecting Malcolm.

39:41 - Malcolm isn’t a killer. Look. He smells gas but he takes the time to carry an unconscious murderer (who literally just tried to kill his sister) out of the building. 

40:00 - The drama. Holy hell. What a weird ending to this case.

40:48 - Who gave Ainsley a police jacket and let her keep it?

41:14 - She almost died and she’s still obsessing over ‘winning’. This is seriously unstable behaviour. Way more concerning than anything Malcolm’s done since 2x1. 

41:45 - “My father was a serial killer also.” Anyone else super irritated by that phrasing?!?  Just me?!? Something about the ‘also’ feels super wrong to me.

41:53 - Oh sweetie. I’d argue that you are more messed up than Malcolm. 

42:06 - Jessica went to see Martin twice in one episode. THIS IS BAD.

42:15 - “Maybe even more so than Malcolm if that’s possible.” Jessica knows her kids. I’m on her side here. 

42:20 - Martin is way too happy about Ainsley showing signs of serial killing. 

42:30 - Jessica? You married an act. That man never existed. He’s always been a serial killer. You just didn’t know it. He’s manipulative and you were a victim to it. 

42:50 - “A partner.” OH THIS IS NOT GOING TO END WELL. ESPECIALLY FOR THE GIL/JESSICA ARC.

Okay....so definitely the weakest episode of the season so far. AND the fact that we got no mention of Tally and/or the baby this episode is a crime. 

BUT I’M SO SO SO EXCITED FOR THE NEXT EPISODE. It’s going to be a televised fanfic and I can’t wait. 

[asnakewithwingsisadragon]

Updated list of the bitches in this system because Gods know we needed it, go!

• Fae- Actual owner of the body. Has not been fully “themself” since they were like 6 (when Harl got here). Always co-cons with someone because they can’t stand being out alone.  Doesn’t know or care what we do with their life. Terrified of people. Has left us alone for extended periods of time. If you think you’ve talked to them, there’s a 99% chance it was actually Claire, Amanda, or Becky.  Actually a very sweet kid, but very hurt. Will go to the end of the world for their friends. Can hold a grudge like nobody’s business. Paints themself as a bitch but is a softie. Their mom cannot tell the difference between them and Becky. Diabetic, to Nidia’s displeasure. Closet Gryffindor turned Slytherin in order to survive.

• Amanda – Our system’s “guard dog”/Head Bitch in Charge. Much more complicated than that. The real author of Fae’s thigh scars (barely visible now), and maybe the only reason we made it through high school. The little voice that says “kill everyone and blame it on me”. Zero concern for consequences for herself. Impulse control consists of “Jail is awful and Fae doesn’t deserve it”.  She’s over 30.

• Lisbeth (Sally)- Just…Sally. The other voice that wants to kill everyone but doesn’t because she actually thinks about the consequences of her actions. Max is technically her partner, but we don’t talk about that (you can ask). I think she’s 30-something, but might as well be Fae’s age.

• Claire- Possibly Fae’s projection of herself into different universes. She can be 6, 17, 24 and 35. Last name Constantine. From Liverpool. Awful accent. Please don’t call her Australian. Another closet Gryffindor turned Slytherin.  Most of Fae’s friends are actually hers. Has been Fae for longer than Fae has been Fae. Likes soccer and we’re sorry. Punk. Hella Punk. Also hella broke.

• Mara- Claire’s sister (maybe twin). Approach with caution. (One of the several sexual alters, can be the same ages as Claire) Responsible for most of Fae’s awful dating decisions.

• Valentina- Rarely comes out, but she’s apparently God? We don’t know. Seems like she knows everyone, though. She always looks 20-something, but we know she’s older.

• Nidia- Claire’s daughter and the pure incarnation of Fae’s ADHD. A Jedi. Weirdest kid EVER. Super compassionate. Wears heart on her sleeve.  Can be 5, 9, 16 and 21. Impulse control is 100% artificial, but existent. Can, like Amanda, drink up to 3 cans of Monster Energy Drink in a row without batting a lash. Will eat ALL THE CANDY. The reason we need to carry an extra insulin syringe with us most of the time. Pours fun dip and sweetarts into her drinks. The kind of kid child leashes were invented for.

• Hellena- Mara’s daughter. STAY AWAY. Evil incarnate. Abusive A.F. Can and will destroy you. In her 20’s

• Christine- Hell’s identical twin. Remember that girl in Mean Girls who wants to bake a cake out of sunshine and rainbows and smiles? Christine is that cake. Rarely out. Same age as Hell.

• Evey- Hell and Chris’ big sister. That one kid with the pink hair and lots of tattoos. Zero impulse control.  Always looks like a teenager for some reason (not over 25)

• Vlad- Agender/Genderqueer mystical creature of the forest. Valentina’s child. Awesome person in general. Permanently 17.

• Harley- Yup. THAT Harley. You know the drill. She’s actually the one who makes all the fun plans because she’s the one who has the energy for it. Gets along with everyone until she doesn’t. Can drink us all under the table. Can drink you under the table. Has been Fae for longer than Claire has been Fae. Was the first one here, so she has tattoo privileges. And dating privileges. And everything privileges, basically. If I say how old she is, I may not live to see another day. Fae’s real mum. Will take you to Petco on exam week to pet puppies. Will yell “doge!” out loud.

Pets every dog. Will steal Teddy from Max.

• Edward- Mr. Nigma, sir. Somehow has better makeup skills than all the girls here combined.  If his attitude was as nice as his eyebrows, he’d rule the world by now. EVERYTHING HAS QUESTION MARKS. Knows more than anyone.  Is actually a genius. Wastes his time trying to school the little ones (and trying to get Naya to use proper words).  Smug bastard. Probs 40-something.

• Cass- Also from comics. EVERYTHING IS YELLOW (yiyo). Doesn’t talk much, but is always fun to have around. Will make you watch animated movies and take you to Starbucks. Will also make you work out. Can be 5, 9, 18 and 25. Smol Cass is a fan of pokemon. If it’s yellow, it belongs to her.

• Naya- Cass’ child. Has her own language, featuring words like “kaijukata”, “pakato”, and “omashii” (“Kaiju attack”, an insult of her own invention, and her word for “mother”.) There are no sidewalks, only pedestrian lanes. Biggest Kaiju Enthusiast. Wants to be Mako Mori.

• M.J.- Has been here for as long as Harley has. Isn’t around as much. The difference between her and Claire is that you can actually understand what MJ says when she gets mad. Probs 25 forever.

• Danni- Amanda’s daughter. Will also fuck you up. Has the weirdest kinks.  23

• Miranda- Danni’s daughter. Don’t ask. Also a sexual alter. 21

• Martha- Miranda’s sister. Level-headed.  A psychiatrist. 21. Actually the most mature person in this head, along with Tári.

• Alice- Nidia’s daughter. Also a psychiatrist. Likes psychoanalyzing people. Type 1 bipolar. Thinks all Arkham inmates are humans and wants to help. Will probably end up as an Arkham Inmate herself. Age slides. Toddler Alice is the devil. Can be 5, 9, and 21

• Alyssa- Mara’s best friend. Take Alice out of wonderland and teach her ballet, then add a sprinkle of Luna Lovegood. Permanently 17-ish.

• Robin- Alice’s little sister. Wants to be Carrie Kelly when she grows up. Terrified of squirrels. Can be 5 and 18. Lesbiab. Lesebeb. Girls. Yes.

• Tári- Alice and Robin’s eldest sister. Autistic. Genius extraordinaire. Loves to talk to Eddie. Often one of them leaves the conversation feeling stupid (it isn’t Tári). Loves Legos. REALLY LOVES LEGOS. Forensic Anthropologist/ wants to be Bones when she grows up. Vegetarian. Can be 12/17/21.

• Frances- Harley’s kid. Don’t ask, this was super weird. Frances herself is super weird. She hears voices. The voices tell her to do things. She rarely listens. Actually super polite. Has “opal” hair. 18-20. We don’t really know.  If we’re gonna have a sub-system, it will probably be because of Frankie.

• Shilo- Shilo Wallace. Infected by her genetics. Her nightmares are the worst. Once made Amanda and Sally fight over a pair of combat boots just so she could get to keep them. Probably Becky’s best friend in here.

• Bellatrix- That one got here on her own. Over 50. Still looks great.

• Azula- also got here on her own.

• Cassiopeia- Bella’s biggest mistake. Best teacher ever. Resident hipster chick. Is actually here to keep a little group of alters from causing too much mayhem.  28.

• Ascella- Lesbian extraordinaire. Sees dead people. I’m not even kidding. Permanently 23.

• Jamie Moriarty- Another one who got here on her own. Our self confidence boosts and power trips. Will maybe kill someone. Better than you and is not afraid to let you know.  Fae’s teachers were terrified of her.

Everyone’s terrified of her; I don’t know who we think we’re kidding. 32.

• Lestat- Fae’s gay vampire boyfriend. Is rarely around anymore. Probably for the best. 260-ish years old. Prick.

• Lindsay - THE definitive Sexual alter. From a comic book oneshot. Amanda on steroids, but if Amanda knew how to socialize. Loves horror, movies, photography and monsters. 26. 

• Becky - Called “morbid” for a reason. Disabled as all fuck. Autistic/ADHD, connective tissue disorder. A lawyer. Loves to argue. Jon Crane’s wife (at least here). 30ish. Always cold and always in pain. If we cancel plans, it’s most likely her fault and she’s sorry.

• Liliana - Necromancer. Big Titty Goth GF. We love and cherish her, alcoholism and all. Will never be over Jace and she knows it.

• Chandra - Pyromancer extraordinaire with severe ADHD. A lot like Fae in a lot of ways. Decidedly Pansexual, thank you very much. 25.

• Vraska - Ravnican to the core, but also a fantastic pirate. Great leader, good friend, fun to be around. Has the huskiest voice in the system. Has the worst flashbacks out of all of us. Can be 19 and 29. • Kari - Vraska and Jace’s kid. Hypermelanistic gorgon, telepath like her dad. Fun to be around. Can be 7, 12 and 25.

• Ral - Very very Izzet, and very very gay, and we love him for it. Very intelligent, good at fixing and making things with his hands. Confident, charismatic, and a workaholic. Tomik’s husband. Sometimes with Max. In his 40’s

• Tomik - Ral’s husband. Quiet, but very caring and polite.Also very smart and hard-working, always loves to learn new things and meet new people. 27-ish. Very gay, too. Makeup skills up there with Eddie’s.

• Teysa - Tomik’s boss. A Boss Ass Rich Bitch, and we love her lots for it. Very polite and interesting to be around. Could buy us all and our families ten times. Old, but looks to be in her early 30’s.

• Avacyn - An angel from Innistrad. Here to protect us. Really likes listening to old pop-punk and emo music with Max. Very sweet to be around, although she can be a little literal-minded.

• Olivia - A Vampire and a bitch. Liliana’s...ex? Something. A lot like Teysa, but much more fun-loving and impulsive.

• Nahiri - Doesn’t come out much. Stern but caring, very savvy, doesn’t take anyone’s crap. Can hold on to grudges like her life depends on it. 

[bluewatsons]

Morris Hoffman, Therapeutic Jurisprudence, Neo-Rehabilitationism, and Judicial Collectivism: The Least Dangerous Branch Becomes The Most Dangerous, 29 Fordham Urb L J 2063 (2002)

Introduction

The movement that calls itself "therapeutic jurisprudence"' is both ineffective and dangerous, in almost the same way that its predecessor—the rehabilitative movement that became popular in the 1930s and was abandoned in the 1970s—was both ineffective and dangerous. Drug use, shoplifting, and graffiti are no more treatable today than juvenile delinquency was treatable in the 1930s. The renewed fiction that complex human behaviors can be dealt with as if they are simple diseases gives the judicial branch the same kind of unchecked and ineffective powers that led to the abandonment of the rehabilitative ideal in the 1970s. In fact, this new strain of rehabilitationism has produced a judiciary more intrusive, more institutionally insensitive and therefore more dangerous than the critics of the rehabilitative ideal could ever have imagined.

I. The Real Face of Therapeutic Jurisprudence

In a drug court in Washington, D.C., the judge roams around the courtroom like a daytime TV talk show host, complete with microphone in hand.' Her drug treatment methods include showing movies to the predominantly African-American defendants, including a movie called White Man's Birth.3 She often begins her drug court sessions by talking to the "clients"4 about the movies, and then focusing the discussion on topics like "racism, justice, and equality."5 The judge explains her cinemagraphic approach to jurisprudence this way:

Obviously they need to talk about their own problems and what leads to them, but I also think that it's good to have distractions in life. I've found out that if there are periods of your life when you are unhappy, sometimes going out to see an interesting movie or going out with a friend and talking about something else, or going to the gym to work out, these kinds of things can help you through a bad day.6

After the film discussion, the session begins in earnest. Defendants who are not doing well are scolded and sometimes told stories, often apocryphal, about the fates that have befallen other uncooperative defendants or the drug court judge's own friends and family members.7 Some defendants are jailed for short periods of time and/or regressed to stricter treatment regimens, and eventually some are sentenced to prison.8 The audience applauds defendants who are doing well, and the judge hands out mugs and pens to the compliant. The judge regularly gives motivational speeches that are part mantra and part pep rally. Here is a typical example:

Judge: Where is Mr. Stevens? Mr. Stevens is moving right along too. Right?

Stevens: Yep.

Judge: How come? How come it is going so great?

Stevens: I made a choice.

Judge: You made a choice. Why did you do that? Why did you make that choice? What helped you to make up your mind to do it?

Stevens: There had to be a better way than the way I was doing it.

Judge: What was wrong with the way you were living? What didn't you like about it?

Stevens: It was wild.

Judge: It was wild, like too dangerous? Is that what you mean by wild?

Stevens: Dangerous.

Judge: Too dangerous, for you personally, like a bad roller coaster ride. So, what do you think? Is this new life boring?

Stevens: No, not at all.

Judge: Not at all. What do you like about the new life? Stevens: I like it better than the old.

Judge: Even though the old one was wild, the wild was kind of not a good wild. You like this way.

Stevens: I love it.

Judge: You love it. Well, we're glad that you love it. We're very proud of you. In addition to your certificate, you're getting a pen which says, "I made it to level four, almost out the door."9

This is the real face of therapeutic jurisprudence. It is not a caricature. Except for the movie reviews, this Washington, D.C. drug court is typical of the manner in which this particular kind of therapeutic court is operating all over the country. Defendants are "clients"; judges are a bizarre amalgam of untrained psychiatrists, parental figures, storytellers, and confessors; sentencing decisions are made off-the-record by a therapeutic team10 or by "community leaders";11 and court proceedings are unabashed theater.12 Successful defendants-that is, defendants who demonstrate that they can navigate the re-education process and speak the therapeutic language13—are "graduated" from the system in festive ceremonies that typically include graduation cake, balloons, the distribution of mementos like pens, mugs, or T-shirts, parting speeches by the graduates and the judge, and often the piece de resistance—a big hug from the judge.14

Drug courts are the most visible, but by no means the only, judicial expression of the therapeutic jurisprudence movement. The idea that judges should be in the business of treating the psyches of the people who appear before them is taking hold not only in drug courts but in a host of other criminal and even civil settings. Some therapeutic jurists see bad parenting, domestic violence, petty theft, and prostitution as curable diseases, akin to drug addiction, and argue that divorcing parents, wife-beaters, thieves, and prostitutes should therefore be handled in specialized treatment-based courts.15 The objects of the treatment efforts include not only the litigants in civil cases, and the criminals and victims in criminal cases, but also the "community" that is "injured" by the miscreant. Petty criminals in many so-called "community-based courts" are in effect sentenced by panels of community members, typically to perform various community services as deemed necessary by the panels, in order to "heal" the damage done to the "community.”16

It is curious that the existing scope of the therapeutic jurisprudence movement, with the exception of drug offenses, is limited to relatively minor petty and misdemeanor criminal offenses.17 We might ask ourselves why the movement ignores the entire spectrum of violent felonies, so many of which have an apparent psychiatric component. We don't have specialized child molester courts in which "clients" are hugged and pampered and cajoled into right-thinking. Why not? My suspicion, as discussed in more detail below,18 is that what much of therapeutic jurisprudence is really about, at least in the criminal arena, is a de facto decriminalization of certain minor offenses which the mavens of the movement do not think should be punished, but which our Puritan ethos commands cannot be ignored. Supporters of the movement recognize that as a political matter they cannot go too far blurring the distinction between acts and excuses.19

True to their New Age pedigree, therapeutic courts are remarkably anti-intellectual and often proudly so. For example, the drug court variant is grounded on a wholly uncritical acceptance of the disease model of addiction, a model that is extremely controversial in the medical, psychiatric, and biological communities.20 All of the therapeutic jurisprudence variants presume that the underlying problem in virtually all kinds of cases—drug abuse, domestic violence, delinquency, dependency, divorce, petty crimes—is low self esteem, despite the fact that many psychological studies have shown that violent criminals tend to have high self esteem.21

The question asked in these new therapeutic courts is not whether the state has proved that a crime has been committed, or whether the social contract has otherwise been breached in a fashion that requires state intervention, but rather how the state can heal the psyches of criminals, victims, families, dysfunctional civil litigants, and the community. The goal is state-sponsored treatment, not adjudication, and the adjudicative process is often seen as an unnecessary and disruptive impediment to treatment.22 Because the very object is treatment, rehabilitated criminals deserve no punishment beyond what is necessary to restore them, their victims, and the community to their prior state.23

The therapeutic jurisprudence movement is not only anti-intellectual, it is wholly ineffective. The treatment is a strange combination of Freud, Alcoholics Anonymous, and Amway, whose apparent object is not really to change behaviors so much as to change feelings.24 Drug courts are a perfect example. The success of drug-court treatment programs is measured more by a defendant's professed attitude adjustment than by the sort of concrete measures one might expect of such programs, such as whether the defendant stops using drugs. As long as defendants are compliant with treatment ("buying into the program," as addiction counselors say), they are moved from treatment phase to treatment phase, often irrespective of whether the treatment is actually working. As James Nolan puts it, drug court success "is evaluated in large mea- sure by whether or not clients adopt a particular perspective.25

The particular perspective required is the disease model of addiction. Compliance is almost always measured by a defendant's willingness to admit that his or her drug use is a disease. Any resistance to the disease model is reported as "denial," a crime apparently much worse than continued drug use.26

The therapeutic jurisprudence literature is almost completely devoid of any empirical discussion of whether litigants, defendants, and victims, let alone "communities," are actually being helped by all this perspective-changing treatment, and understandably so. The imprecise words common to the therapeutic language—words like "healed," "restored," and "cured"—are simply incapable of being subjected to rigorous testing.

When investigators have looked at less imprecise measures of success-like recidivism rates-the therapeutic promise has proved wholly ineffective.27 For example, the very first effectiveness study performed on the very first modern drug court—in Dade County, Florida—showed that drug defendants treated in the drug court and drug defendants processed in the traditional courts suffered statistically identical rearrest rates.28 Virtually every serious study of drug court effectiveness has reached similarly sobering results,29 leading the General Accounting Office to declare in 1997 that there is simply no firm evidence that drug courts are effective in reducing either recidivism or relapse.30

Drug courts not only do not reduce recidivism or relapse, they have the unintended consequence of dramatically increasing the number of drug defendants sent to prison. The reason is massive net-widening, that is, the phenomenon whereby new programs targeted for a limited population end up serving much wider populations and thereby losing their effectiveness. In Denver, Colorado, for example, the number of drug cases nearly tripled two years after the implementation of its drug court.31 That fact, coupled with typically dismal recidivism rates, led to the entirely predictable result that Denver judges sent more than twice the number of drug defendants to prison in 1997, two years after the implementation of the drug court, than they did in 1993, the last year before the implementation of the drug court.32

If therapeutic jurisprudence were just a trendy idea that did not work, we could let it die a natural death. But it is not just trendy and ineffective, it is profoundly dangerous. Its very axioms depend on the rejection of fundamental constitutional principles that have protected us for 200 years. Those constitutional principles, based on our founders' profound mistrust of government, and including the commands that judges must be fiercely independent, and that the three branches of government remain scrupulously separate, are being jettisoned for what we are led to believe is an entirely new approach to punishment. In fact, this new approach-state mandated treatment-turns out to be a strangely out-of-touch return to rehabilitative ideals that gained popularity in the 1930s, but were abandoned in the 1970s because they not only did not work but, in the bargain, armed the state with therapeutic powers inimical to a free society.

There are four main reasons why the new therapeutic judges are most dangerous: 1) they are amateur therapists but have the powers of real judges; 2) they act in concert with each other, their communities, prosecutors, defense lawyers, and the self-interested therapeutic cottage industry, contrary to the fundamental principle of judicial independence; 3) they impinge on the executive branch's prosecutorial and correctional functions; and 4) they impinge on the legislative function by making drug policy.

Before I address these four dangers, let me briefly review the history of punishment and the scant theoretical underpinnings of the therapeutic jurisprudence movement in the context of this history.

II. A Brief History of Punishment

The idea of punishment as moral retribution may have its roots in what some anthropologists have called "defilement," the process by which primitive societies interpreted and explained human suffering as punishment by the gods.33 Such an explanation for otherwise inexplicable suffering can be deeply comforting. It means that our suffering is not meaningless and, more practically, that if we abide by the laws of the gods we will be protected from their wrath.34

As humans began to imitate the laws of gods with the laws of men, we also imitated defilement. Punishment became one of the methods by which we not only enforced our common codes of conduct but also comforted one another with the idea that no one would have to endure man-inflicted suffering so long as the codes of conduct were honored. Indeed, in its most profound sense, the rule of law necessarily requires the tyranny of gods over man, or of the many over the few, and that tyranny in turn requires some form of theocratic or group disapproval when norms are violated.

Interestingly, imprisonment as a form of punishment is a relatively recent invention, in contrast to custodial detention pending trial. In the ancient world, most crimes were punished either by banishment, various forms of corporal punishment such as beating or mutilation, or, most often, death.36 Imprisonment was reserved as punishment only for disobedient slaves, whose execution was uneconomic; political criminals, whose execution risked martyrdom; and petty criminals, whose execution was unwarranted.37 Even as late as the 1780s, in a society as fully touched by the Enlightenment as England, death was the sanction for virtually every crime, including crimes that we would today deem misdemeanors.38

There were many precursors to the modern prison: jails for pretrial detention and short sentences; workhouses for debtors; almshouses for the poor; reformatories for minors; convict ships for banishment; and the gallows for most other crimes.39

In fact, the prison-that is, a jail for serving long sentences after conviction—is a uniquely American invention. Prisons were first used by Pennsylvania Quakers in the late 1700s, primarily as a humane alternative to corporal punishment and execution.40 The first prison was Philadelphia's Walnut Street Jail, which the Quakers opened in 1790 as a "penitentiary" for criminals convicted in the Commonwealth of Pennsylvania.41 The Quaker notion of a penitentiary was the product of the fortuitous confluence of the Quakers' theological beliefs and their knowledge of Cesare Beccaria's retributionist monograph On Crimes and Punishment.42 The Quakers hoped that long periods of isolation, which provided an opportunity for reflection and solitary Bible study, would ultimately lead to repentance.43 New York adopted this system in 1796, and prisons soon flourished across America and Europe.44

The modern debate about punishment revolves around the primacy of four components: retribution, deterrence, incapacitation, and rehabilitation.45 In the late 1700s-precisely at the time when the Quakers were experimenting with prisons and, more importantly, when our founders were debating our form of government—the German philosopher Immanuel Kant constructed a philosophy of retribution, giving a rational foundation to what had been the retributional basis of all punishment since the dawn of civilization.46 He argued that the preeminent goal of criminal law must be retribution, and that punishment should be an end in itself.47 Kant's view was that to punish the criminal defendant as a means to any other utilitarian goal-deterrence or rehabilitation, for example—was to de-humanize him by reducing him to an object.48 Moreover, Kant viewed punishment as a purely retributive reaction to the crime itself, therefore, the punishment had to be proportionate to the crime.49

Georg Hegel concurred with Kant's retributionist ideal, adding the notion that punishment annulled the crime.50 In Hegel's construct, crime is the negation of moral law, and punishment is necessary to negate that negation to restore the moral right.51 Hegel continued the Kantian view that criminals themselves are moral beings, entitled to have their crimes negated by proportionate punishment. As Hegel stated:

[P]unishment is regarded as containing the criminal's right and hence by being punished he is honoured as a rational being. He does not receive this due of honour unless the concept and measure of his punishment are derived from his own act. Still less does he receive it if he is treated either as a harmful animal who has to be made harmless, or with a view to deterring and reforming him.52

Cesare Beccaria is generally credited with the first systematic exposition of proportionality.53 His version, much heralded in Western Europe and the American colonies, took a decidedly political view. Beccaria believed that requiring criminal sentences to be proportionate to the crime was an important limitation on the powers of government.54

Thus, retribution not only survived the Enlightenment, it achieved an important philosophical structure, both in its own right and as the basis for proportionality. It continued to flourish in both Europe and America and was consistent with the spread of the Quaker penitentiaries. People were sentenced to penitentiaries to be punished; there was nothing "rehabilitative" about them, except the repentance that was expected to come from enduring the punishment.

The retributionist paradigm lasted thousands of years and did not come under serious philosophical attack until the early 1800s, when a group of English utilitarians led by Jeremy Bentham began to challenge it.55 For the utilitarians, the only purpose of punishment was to prevent crime, that is, to be a deterrent.56 Bentham, and in America, Justice Oliver Wendell Holmes, Jr., saw the prospective criminal as a rational bad man, who weighed the benefits of his crime against the risks of detection and the costs of punishment.57 The purpose of punishment under the deterrence model was simply to make the costs of crime so high that they outweighed the benefits.58

The utilitarians believed that morality has nothing to with punishment. Bentham argued that if he could be assured that a particular criminal would never commit another crime, any punishment of him would be unjust.59 Richard Posner has argued that aside from the problem of judgment-proof criminals, all criminal sanctions could be replaced with a system of fines.60

Naturally, if punishment is viewed as a utilitarian tool to deter future illegal behavior of potential criminals, then it can also be used, though less efficiently, to shape the behavior of the particular defendant being punished. Not only would punishment deter him from engaging in future crimes, but it could also change him. The early beginnings of what became known as the "rehabilitative ideal" thus started, on their face, as a rather simple extension of the deterrence model.

But it was hardly a simple extension. It represented a profound change in the way human behavior was viewed. Criminals were no longer ordinary people, cursed like all of us with original sin, whose own humanity demanded that their crimes against moral consensus be purged with proportionate punishment.61 Rather, they were morally diseased, quite different from us, and they needed to be cured.

By the end of World War I, this rehabilitative perspective was becoming dominant in American penology, and it remained dominant until after World War II. It is probably no coincidence that the rise and fall of the rehabilitative ideal coincided roughly with the rise and fall of the welfare state.62 Among the state's increasing New Deal responsibilities toward its citizens was the responsibility to cure all the social ills that were believed to lead to crime, and to treat criminals whose as-yet unreformed social circumstances led them to crime. There was a distinct moral fervor in the early rehabilitationists, as there is in its current devotees, similar to the tenor of the temperance movement: There is a right way and a wrong way to live, and lost souls who choose the path of crime, whether as a result of social circumstance or not, must be shown the right way.

The attacks on the rehabilitative ideal came primarily from the political left, beginning with the jewel of the rehabilitative ideal—the American juvenile court system. With its progressive origins in Chicago in 1899, the juvenile court movement was based on the belief that young offenders were not only ripe for rehabilitation, and needed a more individualized and sensitive justice system in order to maximize rehabilitative efforts, but also that, unlike adult criminals, they suffered from the curable sociological disease of "delinquency.”63 The function of juvenile courts was not to punish or to deter, but to cure delinquency. The juvenile court movement took the nation by storm, not at all unlike today's drug court movement.64 By 1920—just twenty years after their invention—juvenile courts were in place in all but three states.

But the sensitive paternalism of the juvenile court movement had an ugly statist face. Commentators began to write about a system in which gentle persuasion was giving way to unchecked judicial powers, and where an abject lack of basic due process "helped to create a system that subjected more and more juveniles to arbitrary and degrading punishments.66 Even the Supreme Court entered the fray, ruling in 1967 that juvenile defendants are entitled to the protections of the Sixth Amendment's guaranty of counsel.67

Critics of both the juvenile and adult rehabilitative ideal also began to express concerns about a governmental regime in which defendants are simultaneously treated and punished. In 1971, the American Friends Service Committee published a scathing attack on rehabilitative penology, and included in their criticisms a fundamental objection to coerced treatment: "When we punish the person and simultaneously try to treat him, we hurt the individual more profoundly and more permanently than if we merely imprison him for a specific length of time."68 The Quakers' recantation of the rehabilitative ideal was particularly influential, given their seminal role in the invention of the American penitentiary.

By 1970, forty years after its ascension, the rehabilitative ideal was in theoretical and empirical shambles.69 Uncoupled to any concept of proportionality, its primary theoretical failure was that it gave the state unchecked powers to "cure" that were unrelated to any notions of criminal responsibility and fundamental justice. If it takes ten years of prison, or any other form of state-imposed therapy or re-education, to cure Jean Valjean of shoplifting, then ten years is what must be imposed. This threat to individual liberty, acceptable to pro-government progressives of the 1930s, was decidedly unacceptable to a post-World War II, post-Nazi, cold war generation becoming increasingly wary of state power. As Norval Morris put it: "[T]he concept of just desert remains an essential link between crime and punishment. Punishment in excess of what is seen by that society at that time as a deserved punishment is tyranny.”70 He further stated: "We cage criminals for what they have done; it is an injustice to cage them also for what they are in order to change them, to attempt to cure them coercively."71

The real death knell to the rehabilitative ideal, both in general and in its juvenile incarnation, came not from the theoreticians but from the empiricists. Rehabilitation simply did not work. Crime was mysteriously immune to the entire liberal regimen, from anti-poverty programs to prison reform.72 After four decades of experimentation, the studies rather dramatically illustrated that all of our idealistic efforts to rehabilitate had virtually no effect on the propensity of juveniles or adults to commit crime.73

The fiction that imprisonment, even in its most rehabilitation- friendly form, has ever been successful in rehabilitating inmates has come to be called "the noble lie" by some critics.74 David Rothman, who coined the term, argued in 1973 that it was long past time to abandon the noble lie:

The most serious problem is that the concept of rehabilitation simply legitimates too much. The dangerous uses to which it can be put are already apparent in several court opinions, particularly those in which the judiciary has approved of indeterminate sentences . . . . Moreover, it is the rehabilitation concept that provides a backdrop for the unusual problems we are about to confront on the issues of chemotherapy and psychosurgery .... This is not the right time to expand the sanctioning power of rehabilitation.75

With a swiftness rarely seen in complex institutions, the American penal system dropped rehabilitation almost overnight. What had, as late as 1972, been described in the criminal law treatises as the central justification for punishment,76 was by 1986, being described in the past tense.77 This was much more than a theoretical rejection by academics and textbook writers. Correctional officials across America were also abandoning rehabilitation in their day-to-day operations.78

The extraordinarily sudden abandonment of the rehabilitative ideal gave way to a kind of fusion of retribution and incapacitation, dubbed by some as "neo-retributionism.”79 The modest goals of punishment as a just dessert, and prevention as the simple act of taking criminals out of society, replaced rehabilitation as the dominant penal theory.80 These ideas ultimately resulted in the abandonment of indeterminate sentencing schemes and eventually to the controversial Federal Sentencing Guidelines.81

Almost all modern criminologists acknowledge that each of the four traditional justifications for punishment—retribution, deterrence, rehabilitation, and incapacitation—must continue to play some role in the criminal justice system.82 However, integrating them into a coherent and sensible system has not been easy, in no small part because they represent incompatible goals.83 If deterrence and incapacitation were the only considerations, then perhaps all crimes should be punishable by life sentences or death.84 If rehabilitation were the only consideration, then all crime could be considered forms of social disease, treatable in hospital-like settings, never in prisons.

Only retribution connects the crime with the punishment, treats criminals as moral beings rather than diseased subjects in a utilitarian social experiment, and imposes proportionality limitations on the government's right to punish. As a result, despite all their machinations about a synthesis, most modern criminologists have found their way back to retribution as the pole star of punishment.85

In 1979, Francis Allen delivered the Storrs Lecture at Yale Law School on the topic of the demise of the rehabilitative ideal. That lecture was published in 1981, and it has become a kind of obituary for rehabilitation.86 Allen impressively documented both the theoretical and empirical failings of rehabilitation. He concluded his lectures with this prediction:

[A]ttitudes toward [the rehabilitative ideal] are likely to be wary in the closing years of this century. A statement made by Lionel Trilling over a generation ago still possesses acute relevance to the present: "Some paradox of our nature leads us, when once we have made our fellow men the object of our enlightened interest, to go on to make them the objects of our pity, then our wisdom, ultimately our coercion. ... " Given the history through which American society has recently passed, it is hardly possible that the total benevolence of governmental interventions into persons' lives will be unthinkingly assumed .... It is just as well. For modern citizens of the world have learned that the interests of individuals and society are frequently adverse and that the assumption of their identity supplies the predicate for despotism.87

Sadly, Professor Allen's prediction could not have been more wrong. Less than ten years after rehabilitation's obituary, the gurus of rehabilitation were back, this time with a vengeance, fueled by a zeal to treat the psychiatrically less fortunate, and in particular to win the war on drugs. These neo-rehabilitationists are pushing judges into unprecedented extremes that Professor Allen could not have imagined. In the flash of an eye judges have become intrusive, coercive, and unqualified state psychiatrists and behavioral policemen, charged with curing all manner of social and quasi-social diseases, from truancy to domestic violence to drug use. By forgetting the most profound lesson of the twentieth century—that the state can be a dangerous repository of collective evil—therapeutic jurisprudence poses a serious risk to the kind of individualism and libertarianism upon which our republic was founded.

III. The Theory Behind Therapeutic Jurisprudence

Although therapeutic jurisprudence descends directly from the long-rejected rehabilitative ideal, its proponents rarely talk about its theoretical heritage. The movement is almost devoid of anything resembling serious theoretical self-examination. The questions that have plagued philosophers and criminologists for a thousand years, and whose answers have come to define all major schools of criminology, are questions therapeutic jurisprudence devotees seldom ask.88 But the movement does have a short history, if not a terribly satisfying theoretical one.

It owes its beginnings to mental health law, where, by definition, the current and prospective mental states of the participants are the primary inquiry. Its initial insights were neither terribly profound nor particularly original: in a system whose very function is to judge the mental state of its subjects, we should think about the mental health effects of the actions we as judges take. Thus, for example, when we remand a criminal defendant for a competency evaluation, we should think about the effects the remand and evaluation might have on the defendant's competence.

These initial formulations about a therapeutic judicial perspective were limited in several important respects. First, they were focused on empirical questions: what effects are our rulings having on the mental health of the chronically mentally ill, insane or in- competent? Proponents, at least initially, never suggested that we should begin to change our rulings or the way we make them in anticipation of effects before we measure what those effects might actually be.

More importantly, these therapeutic ideas were originally proposed exclusively for application to mental health law, where the state has already crossed that thorny boundary of paternalism and already has its hands uncomfortably inside the heads of the unfortunate participants. Of course, many aspects of mental health law involve the judiciary's positive obligation to ensure treatment of the mental conditions of the people appearing in court as a precondition to moving into its more traditional truth-finding role. By expanding the therapeutic model into nonmental health areas, the therapeutic jurisprudence movement not only intrudes without any basis for intrusion, it profoundly changes the judicial function. Trials are no longer processes to investigate factual guilt and discover truth, they are mere opportunities to treat.

This therapeutic perspective is completely inimical to the judicial function. We should conduct trials guided by the rules of procedure and evidence that have been crafted over centuries to maximize the reliability of the result, not to ensure that the litigants have a meaningful mental health experience. We should impose sentences and assess damages guided by well-settled principles of responsibility, not by fretting about whose feelings will be hurt or how the community can be healed.

The profound and dangerous expansion of the judicial role represented by the therapeutic jurisprudence movement is just a small part of a broad therapeutic trend in all aspects of government and indeed across the entire spectrum of our culture. James Nolan has labeled this trend "the therapeutic ethos."89 Government's new role is to treat, not to enforce norms. Its success is measured by how it makes us feel, not by what it actually does. And because the couch of State needs patients, citizens are no longer individual participants in a free republic, but sets of victims with complicated diseases in dire need of state-sponsored treatment.

In this "postmodern moral order," as Nolan calls it, suffering is no longer viewed as a part of the human condition, but rather as the inevitable consequence of some disease or injury. Almost all of human behavior has become pathologized. We speak of "addictions" to all manner of behaviors that we would have called "choices" just thirty years ago.90 Today, cancer and alcoholism are both "diseases"; heroin use now shares an addictive moral equivalence with things like gambling and eating chocolate. Of course, this externalization of behavior is just a new version of our old friend defilement: once we blamed phantom gods for our suffering;91 now we blame phantom diseases.92

In the particular context of drug courts, James Nolan has called this process of pathologization the "eradication of guilt":

The drug court's eradication of guilt has been a subtle and insidious process. Guilt is not so much challenged as ignored. It is not so much disputed as it is made irrelevant. But it is the making irrelevant of something that has long been regarded as the crux of criminal justice.... The jettisoning of guilt may well represent the most important, albeit rarely reflected upon, consequence of the drug court. If, as Philip Rieff argued, culture is not possible without guilt, one wonders what will become of a criminal justice system bereft of what was once its defining quality.93

Blaming the pathogens has become the raison d'etre for the judicial system, both in criminal and civil cases. An African man who murders his wife blames his anti-divorce culture;94 a fired employee blames "chronic lateness syndrome."95 Of course, the judiciary takes its cases as it finds them, and judges cannot be blamed entirely for acting like psychiatrists when the parties insist on it. But the therapeutic jurisprudence movement requires us to act like psychiatrists even when no litigant is insisting on it, and indeed even when all the litigants object (that is, they are in "denial"). It is this aspect of mandated judicial intrusion that makes therapeutic jurisprudence so dangerous and so utterly unacceptable in our constitutional scheme.

IV. The Most Dangerous Branch

The judicial branch was specifically designed to be the least dangerous of the three branches. Hamilton coined that famous phrase in this classic description of the circumscribed powers of the federal judiciary:

[T]he judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.... The judiciary ...has no influence over either the sword or the purse; no direction either of the strength or wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE NOR WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.96

Federal judges are not elected, but appointed for life, helping to decrease the chances they will be influenced either by corrupt forces or, often more subtly, the vagaries of popular will.97 The case or controversy requirement helps decrease the chances that judges will make abstract law (that is, policy) in the guise of deciding a case.98 The very architecture of the federal and state systems leaves the judicial branches without the power either to make or enforce laws and further dissipates federal judicial power by imbedding it in a system in which individual states continue to operate in their own spheres of sovereignty.

One might ask why the founders were so keen on such a comprehensive institutional clipping of the judiciary's powers. The answer is that they appreciated, from their own English history, that unchecked judicial power is an evil to avoid at almost any cost. Both the Federalists and the anti-Federalists were acutely aware of the failings of the English system, in which all judges were appointed by the Crown and served at the Crown's pleasure, and in which Parliament was invested with supreme appellate jurisdiction in all cases.99

The founders were even more acutely aware of the failings of the Confederation, under which there was no federal judiciary at all.100 Hamilton wrote extensively about the need for an independent judiciary to house judges capable of defending the new federal Constitution against incursions by the other two branches.101 Madison's expositions on the separation of powers doctrine were designed to allay the fears of the anti-Federalists that the existing constitutional plan did not do enough to separate the three branches.102

Our commitment to judicial restraint is not limited to the constitutional design. The mootness103 and ripeness104 doctrines give meaning to the case or controversy requirement, and help insure that decisions by judges will be a recourse of last resort. Indeed, the whole paradigm of the common law is built around the notion that precisely because judges have extraordinary powers in single cases—the power to incarcerate and the power to bankrupt—those powers must be limited to single cases and will operate beyond single cases only after surviving the judgment of judicial history.105

Along with these structural limitations, judges have developed a powerful ethos of restraint. Although some might say the ring of that ethos has become rather hollow in the years following the New Deal and Warren Courts, the restraining rules have for the most part remained quite vigorous, especially in trial courts. Deference to appellate court precedent effectively constrains even the most independent-minded trial judge, as it does the appellate courts themselves, though of course to a lesser degree. At all levels, we are loath to decide issues we need not decide, are generally committed to deciding cases on the narrowest grounds, and will almost always follow controlling precedent.

All of these constitutional, common law, and normative principles have blended together to create a profound commitment to restraint in responsible judges. We are unrepresentative, mostly unelected, independent magistrates whose function is to decide no more than the necessary issues in the single cases thrust upon us, in accordance with laws and established rules of evidence and procedure with which we may or may not agree. Juries tell us the facts, appellate courts may tell us we were wrong on the law, and legislatures may avoid most effects of our decisions by changing the laws. We have no more valid insight into public policy than the members of any other particular occupation.106

Yet it seems to be an occupational hazard for judges and other members of the public to confuse our simple role as gatekeepers of the truth-finding function with anything at all having to do with the will of the governed. We do not make public policy; we do not even enforce it. We are, as Madison put it, only the "remote choice of the people.”107 That very remoteness is what both prevents us from becoming, and tempts us to become, the most dangerous of the three branches.

The therapeutic jurisprudence movement requires us to become the kind of involved, hands-on, right-thinking, sure-footed activists that the judicial branch was specifically designed to exclude. It requires us to accept, in a collective fashion entirely inconsistent with the fierce independence of the judiciary, a therapeutic paradigm that is not only a matter of public policy, but about which reasonable public policy makers differ. It is forcing us to collaborate with prosecutors, defense lawyers, and therapists in a fashion that is entirely inconsistent with our adjudicative role. In its most virulent drug court form it requires us to send people to prison not because they violated the law (since the real engine of drug courts is the unstated belief that possession should not be a crime), but rather because they resisted our enlightened treatment efforts. In short, therapeutic jurisprudence is a code phrase for a kind of one-stop shopping system populated by judges who believe that they have such powerful insights into public policy (insights that have apparently escaped mere legislators) that they cheerfully act as parents, best friends, doctors, psychotherapists, prosecutors, defense lawyers, legislators and then, only if all of that fails, judges. I cannot imagine a more dangerous, or sanctimonious, branch.

A. Real Judges as Amateur Psychiatrists: Acts Versus Excuses and the Paradox of Reverse Moral Screening

One the most disturbing consequences of the therapeutic jurisprudence movement is that while therapeutic judges get to play amateur psychiatrist, in the end the command of the law requires them to punish the patients they cannot cure. Imagine going to see a doctor about a disease, knowing that the doctor might not only be unable to cure you, but will be required to send you to prison if you are not cured. Now imagine a whole system of justice based on that notion, and you will have captured the essence of therapeutic jurisprudence.

State-coerced treatment does not work,108 and even if it did, it is simply immoral for the state to treat and then punish acts it claims have a disease component, as the critics of the rehabilitative ideal demonstrated thirty years ago.109 The "diseases" to be treated are not diseases at all, but rather complex behaviors that fall within a broad continuum between "voluntary" and "involuntary" behaviors. If we really believed that all human behavior is the product of the relentless and involuntary spasm of genes and experience, and that free will is a quaint mirage, then the state would have no moral right to punish anyone for any crime. The disease of "chronic armed robbery syndrome" would merit no more punishment than cancer. But of course we don't believe that.

The very existence of law is a reflection of deep-seated and shared notions of free will and individual responsibility. That is not to say, of course, that the retribution demanded of crimes cannot take into consideration all of the specific circumstances of the crime, including the criminal's complete background. Indeed, we must take all those circumstances into consideration to fulfill the requirement that retribution be proportional, and therefore just. But it is one thing to say we will consider an armed robber's I.Q. and childhood in crafting the amount of retribution, and quite another thing to say that the disease of chronic armed robbery syndrome should be treated rather than punished. Therapeutic jurisprudence blurs, and is intended to blur, this fundamental moral distinction between act and excuse.

Even if treatment worked, and could be justly combined with punishment, the therapeutic paradigm punishes the wrong people. For example, if drug addiction really is a disease, then the most diseased addicts are precisely the ones most likely to fail many, if not all, attempts at treatment. Drug courts are thus performing a kind of "reverse moral screening."110 Truly diseased addicts end up going to prison, while those who respond well to treatment, and whose use of drugs may thus have been purely voluntary, escape punishment.

B. Judicial Collectivism

Therapeutic judges not only act ineffectively and immorally as amateur psychiatrists, they also act in a dangerous collective, wholly inconsistent with fundamental axioms of judicial independence. They act in concert with, and therefore abrogate their independence to, each other, their "communities," prosecutors, defense lawyers, and therapists.

One of the starkest examples of the kind of group action that dominates the therapeutic model can be found in the intense political machinations undertaken to create and sustain drug courts. Unlike other legal reform movements, that began with a handful of individual decisions, commentaries, or experiments, and then spread through the power of their own persuasion, the drug court movement has a decidedly top-down pedigree. Though they began as a single experiment in Miami, drug courts spread because of centralized federal funding, not because they were effective. Drug courts exhibit a remarkable uniformity because they must now meet a host of specific federal criteria in order to qualify for federal funds."' What once was an opportunity for state and local governments to experiment with drug court reforms has, to a great extent, turned into a lockstep ersatz federal program.

Drug court workshops across the country are "heavily scripted and staged events," designed to give drug court officials an opportunity to "strategize with each other and educate those new to the scene about how best to present the program to sometimes skeptical audiences for the purpose of garnering public support and financial resources to further the movement."112 There is a five-part liturgy to the drug court movement's rigid political doctrine: 1) convince prosecutors that drug courts are not soft on crime; 2) start off with only low-level drug offenses while building public support; 3) cultivate relationships with the media; 4) hold graduation ceremonies in open court as public relations events; and 5) constantly perform evaluation studies to justify continued funding.113 This is mindless public relations mantra, not creative judicial reform by independent-minded judges.

When the federal funds run out, as they inevitably seem to do, drug court judges then participate in lobbying legislatures, city councils, and even the private sector for funding. Their partisan enthusiasm crosses even the most forgiving boundaries of judicial propriety. A Las Vegas, Nevada drug court judge set up his own tax-exempt nonprofit organization through which to solicit private funds for his drug court.114 A Rochester, New York drug court judge used the local United Way to dispense the private funds he raised for his drug court."115 A 1997 Justice Department survey showed that nine drug courts had solicited a total of nearly half a million dollars from private sources.116 Therapeutic jurisprudence is turning some of us into embarrassing hucksters.

The development of so-called "community-based courts" is another example of judicial collectivism at its worst. Modeled after New York City's Midtown Community Court, these courts have been started in many urban areas to deal with what proponents call "quality of life crimes. '117 Generally, defendants convicted of crimes such as shoplifting, prostitution, and some low-level drug offenses are "treated" by being put on probation or given deferred sentences and by performing certain community service obligations. Typically, the precise community service obligations are determined in each individual case not by the judge but by a "community advisory board" consisting of various community leaders.118 This way, the criminals are not only cured of their rude behaviors by having to do the penance of community service, but the criminal tear in the fabric of the community is also healed. Two therapies for the price of one.

The community service options can be rather interesting. They include not only what one might expect from traditional community service, such as clean-up activities like graffiti removal and trash pickup, but also "stuffing envelopes for non-profit organizations."119 Through community courts, judges abdicate their sentencing authority to self-described community leaders and their pet projects, including their favorite charities.

In addition to the usual therapeutic misanthropy inherent in all therapeutic courts, community-based courts raise particularly disturbing problems about the role of judges and their place in the political firmament. Why are some crimes labeled "quality of life crimes" and others not? Surely a murder effects the "quality of life" of the victim, witnesses, and other members of the community more than shoplifting does. Why does the torn fabric of the community need to be repaired after a shoplifting, but not after a murder? The answer, of course, is not that the former is any more damaging than the latter, but rather that the former is more widespread than the latter. It is this widespread nature of "quality of life crimes" that makes community-based courts so politically attractive. They generate an army of involuntary servants to do free work pleasing to a maximum of community voters. Fundamentally, community-based courts are machines of political payoff, dressed in the garb of the judiciary.120

The most widespread, and in many ways, most disturbing, form of judicial collectivism occurs in all therapeutic courts, and is embodied in the very term "therapeutic jurisprudence"—the unholy and wholly unconstitutional washing out of the judge's role in an adversary system. All therapeutic courts presume factual guilt. What is called "the presumption of innocence" in traditional courts is called "denial" in therapeutic courts. The judge, prosecutor, therapist, and to a great extent, even the defense lawyer,121 join together to "help" the patient over his or her denial in order to concentrate on treatment.122 As a result, the judge, prosecutor, therapist, and defense lawyer thus form a kind of "treatment team," designed to do what is best for the reluctant patient, not to discover truth in the fires of advocacy.

This joining together is so critical that it is common advice to anyone contemplating the development of a drug court that it will not work without the "cooperation" of judges, prosecutors, police, sheriffs, and public defenders. When judges "cooperate" in the formation of drug courts, what is really happening is that they are agreeing to abandon their roles as neutral gatekeepers of the truth- finding process, and instead to join the therapeutic team for the good of the diseased defendants.

In many drug courts, the team participates in daily rituals euphemistically called "staffing sessions."123 At these staffing sessions, the judge, prosecutor, public defender, and some representative of the therapeutic community, but typically not private defense counsel, meet together in chambers to discuss that day's upcoming matters. The judge, after hearing from everyone, reaches presumptive decisions. Defendants are not present and the staffing sessions are not on the record. Apart from the obvious constitutional concerns,124 these staffing sessions symbolize what is wrong with having judges join with prosecutors, defense lawyers, and therapists: substantive decisions are being made about a felony defendant by some inter-branch committee acting more like a support group than a court of law.

Judges are not psychiatrists, and psychiatrists are not judges. Whenever judges enter the therapeutic arena we must choose be- tween two unpalatable options: either act beyond our expertise or abdicate our judging to therapeutic experts. Most therapeutic courts are designed to do the latter. Although therapeutic judges typically put on a counseling show in open court,25 the real therapeutic decisions are often made out of court by members of the therapeutic community.126 This unelected and unaccountable "new priestly class," as James Nolan describes it,127 has destroyed what small vestige of independence therapeutic judges may have left after already doling out large chunks of it to one another, to prosecutors, and to defense lawyers. Judges may be comforted by pretending to function as a therapeutic team acting in the best interests of defendants, but what is really happening is that they have abdicated the judging role to the new therapeutic priests.

There may be an argument for sacrificing some judicial independence in minor cases to achieve significant therapeutic results, and indeed judges have been trying to do just that for a long time with things like safe driving classes and anger management programs.128 It may not be terribly troubling to expand these ideas to misdemeanor shoplifting, graffiti offenses, littering, and other kinds of minor offenses with which most community-based courts deal. But applying them to felony drug charges that can result in a defendant going to prison for decades should be wholly unacceptable. If we are going to continue to treat drug use as a crime, and some drug use as a felony, then we must treat felony drug cases seriously, not like parking tickets in a mill in which the judge, prosecutor, defense lawyer, and therapist spend their days trying to push as many people through as possible.

C. Impinging on the Executive Function

Besides violating the doctrine of the separation of powers by forcing judges and prosecutors to work on treatment teams together, the therapeutic jurisprudence movement impinges on the executive function in two more direct and discrete ways-by demolishing prosecutorial discretion and by interfering with corrections.

It is the long-established privilege of prosecutors to decide what crimes to charge and what plea bargains to offer.129 Therapeutic courts, especially drug courts, substantially eliminate both of these jealously-guarded areas of prosecutorial discretion.

Before drug courts, prosecutors retained their broad discretion to charge or not charge small possession drug cases, and indeed the realities of our system drove many prosecutors, and even police, to ignore some low-level drug possession and even some drug dealing. But in the postmodern therapeutic world, drug offenders are not wrongdoers whose transgressions might be overlooked if they are sufficiently minor, but rather diseased citizens in need of treatment. Thus, we see massive increases in drug filings after the institution of drug courts,130 and those explosions correspond directly to police and prosecutors agreeing at the front end to arrest and prosecute every drug offender, regardless of circumstance, in order to meet the therapeutic demand for reluctant patients.

At the plea-bargaining end, prosecutors have likewise abdicated their traditional discretion. Most drug courts recognize only a few different kinds of cookie cutter plea bargains, and the decision to offer a particular plea bargain is driven entirely by a few objective criteria, and not by the exercise of any meaningful prosecutorial discretion.131 After all, this is treatment, not adjudication; triage, not prosecutorial discretion.

Therapeutic courts also impinge on the executive's corrections functions. Providing medical treatment to persons convicted of crimes, and even to persons in custody awaiting trial, is an executive function, not a judicial one. When therapeutic courts mechanically impose treatment conditions on all defendants, both before and after conviction, they blur the fundamental distinction between the accused and the convicted, and therefore between the judicial function of determining guilt and the executive function of carrying out sentences and treating prisoners.

It is entirely inappropriate and inimical to our adjudicative role for judges to be deciding whether defendants have been cured of their diseases and whether for that reason no punishment should be imposed. Criminal courts exist to determine whether the state has met its burden of proving that the defendant has committed a crime, and if so, to mete out appropriate and just punishment. The product of a criminal case should be a verdict and a sentence, not a decision whether John Smith should be treated at Acme House or Metropolis Hospital, or whether he truly suffers from borderline personality disorder or is just a jerk.

If we are really serious about treatment, we should direct our treatment resources to the executive branch's corrections facilities, both pre-conviction (jails) and post-conviction (jails and prisons). That is where the push for treatment, voluntary and semi-voluntary, belongs if it belongs anywhere. If we continue to believe that possession of some drugs is serious enough to warrant incarceration, then we should impose that incarceration without further therapeutic hand-wringing. Prisoners can then take advantage, or not take advantage, of intense in-custody drug treatment programs tied to parole eligibility.

D. Judges as Legislators

The therapeutic jurisprudence movement not only forces judges to act in concert with each other, with their "communities," with prosecutors, with defense lawyers, and with therapists, but it also profoundly subsumes the legislative function. By assuming all manner of human behavior is the product of some set of sociological pathogens, therapeutic courts ignore the principles of free will and individual responsibility upon which the criminal law rests. That is, it is for legislatures, and not self-described therapeutic judges, to decide not only whether certain behavior is a crime or a disease, but also in many circumstances to set a range of punishment. On these matters, the legislatures have spoken. We no longer punish adultery, but we do punish the possession of certain drugs. We no longer execute petty thieves, but shoplifting is still a crime.

In many respects, the therapeutic jurisprudence movement, especially its embodiment in drug courts, is simply a judicial reaction to laws some judges do not like. Some judges do not believe certain crimes should be punished by incarceration, and in fact do not think certain crimes should be considered crimes at all. Thus, crimes become diseases, defendants become patients, judges be- come therapists, and laws are repealed by therapeutic judicial fiat. There may be good arguments for and against decriminalizing some existing crimes, including some drug crimes, but in the end that debate must be settled by elected legislatures and not by judges who think they have some special insight into either medicine or public policy.

Conclusion

The therapeutic jurisprudence movement is not being driven by evil judges thrilled at the prospect of exerting unwarranted and unprecedented control over the private lives of fellow citizens, or even entirely by naive judges suckered into the therapeutic newspeak. Instead, the therapeutic road we are running down has been paved with the good intentions of judges reacting to the flood of dysfunction we see every day in our courtrooms, hardened with a dash of the kind of judicial hubris that positions us to think that because we control our courtrooms we can control the lives of everyone who appears in them. The unprecedented and unwarranted powers assumed by judges in the name of doing psychological good will make us both profoundly dangerous in our own right and hopelessly incapable of protecting citizens from the therapeutic excesses of the other two branches, just as it did when we tried the more general rehabilitative experiment in the 1930s.

The next time a group of "problem solving" activists tries to set up one of these intrusive courts in your community, remember what the Quakers tried to teach us about the dangers of mixing well-intentioned rehabilitation with well-deserved punishment. Remember that we have met failure in a similar fashion in the past. When we tried to treat crime as if it were a disease, and criminals as if they were moral in-patients, the only thing we accomplished was to create a dangerous judiciary that felt authorized to exert power over these diseased patients for as long as it took to cure them. If we repeat these rehabilitative failures, we will continue to de-humanize the objects of our humanitarianism, to fill our penal system with our therapeutic failures, to short-circuit what should be the real legislative debate, and to devalue punishment as its own clear social object.

Footnotes

The term "therapeutic jurisprudence" is generally credited to David Wexler, a law professor at the University of Arizona, who, as discussed in the text accompanying notes 88-89 infra, originally defined the term in a paper first delivered in 1987, but not published until 1992, to mean the study of the therapeutic impacts of mental health law. David B. Wexler, Putting Mental Health into Mental Health Law: Therapeutic Jurisprudence,16 L. & HUM. BEHAV. 27 (1992). He and others subsequently expanded the idea beyond the mental health realm, arguing not only that virtually all court proceedings can have important therapeutic impacts on the participants, but that judges should craft their decisions with an eye toward those impacts. See, e.g., ESSAYS IN THERAPEUTIC JURISPRUDENCE (D. Wexler & B. Winnick eds., 1991); PRACTICING THERAPEUTIC JURISPRUDENCE: LAW AS A HELPING PROFESSION (D. Stolle, D. Wexler & B. Winnick eds., 2000); THERAPEUTIC JURISPRUDENCE: THE LAW As THERAPEUTIC AGENT (D. Wexler ed., 1990); David A. Wexler, New Directionsin Therapeutic Jurisprudence: Breaking the Bounds of Conventional Mental Health Law Scholarship,10 N.Y.L. SCH. J. HUM. RTS. 915 (1993). The phrase "restorative justice" is also sometimes used to connote what appears to be a similar constellation of ideas, though it tends to be used only in the criminal justice arena. See, e.g., John Braithewaite, Restorative Justice: Assessing Optimistic and Pessimistic Accounts, 25 CRIME & JUST. 1 (1999); Robert F. Schopp, Therapeutic JurisprudenceForum: Integrating Restorative Justice and Therapeutic Jurisprudence,67 REV. JUR. U.P.R. 665 (1998); Comment, Repairing the Breach and Reconciling the Discordant: Mediation in Criminal Justice Systems, 72 N.C. L. REV. 1479 (1994). The phrase "collaborative law" is also used to describe the therapeutic approach in law, especially in divorce law. See generally Pauline H. Tesler, Collaborative Law: A New Paradigm for Divorce Lawyers, 5 PSYCHOL. PUB. POL. & L. 967 (1999). Finally, the phrase "problem-solving courts" seems to be the most recent way to describe various therapeutic courts, especially so-called "community-based courts." See infra notes 117-120 and accompanying text. One cannot help but chuckle, and think of George Orwell's insights into the politicization of language, at a movement that describes intrusive judicial state action of an unprecedented magnitude as "problem solving."

JAMES L. NOLAN, JR., REINVENTING JUSTICE: THE AMERICAN DRUG COURT MOVEMENT 7 (2001).

Id.

It is de rigueur for judges and their staff in therapeutic jurisprudence courts to call parties "clients," even criminal defendants. This is not only consistent with the whole approach of therapeutic jurisprudence—to treat rather than to adjudicate-but is also a linguistic expression of the stunning mixing of roles between judge, prosecutor, and defense lawyer. See infra notes 110-31 and accompanying text.

NOLAN, JR., supra note 2, at 7.

Id.

For a summary of the astonishing storytelling aspects of drug courts, see NOLAN, JR., supra note 2, at 111-36.

For a general description of the organization, implementation, operation and sentencing models used in drug courts, see Morris B. Hoffman, The Drug Court Scandal, 78 N.C. L. REV. 1437, 1462-63 (2000). As discussed in the text accompanying notes 31 to 32 infra, drug courts are probably sending considerably more people to prison than traditional courts, because of a combination of net-widening and ineffective treatment.

NOLAN, JR., supra note 2, at 8-9.

See infra notes 123-24 and accompanying text; see also Hoffman, supra note 8, at 1524, discussing the off-the-record "staffing" ritual, at which neither the defendant nor private defense counsel is present, yet at which presumptive sentencing decisions are made.

See infra notes 117-120 and accompanying text (discussing community-based courts).

Drug court proponents themselves acknowledge that drug courts are a kind of theater, whose audience includes not only the clients to be re-educated but also skeptical prosecutors, media, politicians, and other influential members of the non therapeutic community. "Drug courts, it has been said many times, are theater. And the judge is the stage director and one of the primary actors." NOLAN, JR., supra note 2, at 73 (quoting Baltimore drug court judge Jamey Weitzman). Indeed, the theatrical aspects of drug court—both as a therapeutic tool and as tightly scripted propaganda—are a focal point of national drug court training conferences. The titles of some of these conferences are telling: "Damage Control: Dealing with the Media," "Getting Local Government and the Community to 'Buy In' to a Drug Court," "Dealing with the Press/Politics." Id. at 62. See infra notes 112-113 and accompanying text (discussing particular points of propaganda spread at national conferences).

See infra note 25 (discussing the fact that therapeutic defendants are well aware that their "treatment" is an attitudinal game they must pretend to play in order to escape the clutches of the criminal justice system).

14. A Compton, California drug court judge's explanation is typical of the parent- child model by which many therapeutic judges see their relationship to their "clients": I let [the defendant] come into my chambers. . . . All she wanted was a hug.... So, I just gave her a hug. I mean, what would you do if your child came up to you, and said, "May I have a hug?" You wouldn't say, "Well, let me think about this now. You have been bad fifteen times." You would just do it. So, that is what I did. And yes, you should [give hugs]. You get a whole lot back. You really do. NOLAN, JR., supra note 2, at 102.

Id. at 149.

See infra notes 117-120 and accompanying text.

But see infra note 120 (discussing proposed extensions of community-based courts).

See infra Part IV.D.

See infra notes 107-09 and accompanying text.

See generally Hoffman, supra note 8, at 1469-73. Many drug court proponents express a certain ironic pride in the fact that they believe they are much more enlightened on the disease model of addiction than medical professionals: It's amazing listening to physicians say, "It's not a disease." It's almost done a reverse. We have people who are normally not trained in the medical field calling it a disease and those who are trained in the medical field saying, "It's not a disease," that it's just a lack of guts or lack of intestinal fortitude of the individual. It's a scary thought. NOLAN, JR., supra note 2, at 137 (quoting unnamed director of treatment at one of the drug courts Professor Nolan visited). It is, indeed, a "scary thought," but not for the reasons this treatment director thinks.

See, e.g., ANDREW MECCA ET AL., THE SOCIAL IMPORTANCE OF SELF-ESTEEM (1989); Roy F. Baumeister et al., Relation of Threatened Egotism to Violence and Aggression: The Dark Side of Self-Esteem, 5 PSYCHOL. REV. 101 (1995). See generally JOHN P. HEWITT, THE MYTH OF SELF-ESTEEM: FINDING HAPPINESS AND SOLVING PROBLEMS IN AMERICA (1998).

See, e.g., NOLAN, JR., supra note 2, at 141 (quoting Syracuse, New York drug court judge Langston McKinney): By volunteering in the drug court program the defendant has circumvented [the adjudicative] part of the judicial process. . . . "(W]e literally leave all that [judicial impartiality, presumption of innocence, etc.] at the doorstep." In the drug court context, "this issue of guilt/innocence is not of concern." See also infra notes 92-95 and accompanying text (discussing the drug court's eradication of the concept of guilt).

In one of the most telling expositions of the therapeutic paradigm, the appellate lawyer for Karla Faye Tucker argued that the state of Texas had no right to execute her because she was no longer the same person who had committed the multiple murders for which the prior Ms. Tucker had been convicted. The lawyer's argument, flush with therapeutic newspeak, was actually published in a law review after his client's execution. Walter C. Long, Karla Faye Tucker: A Case for RestorativeJustice,27 AM. J. CRIM. L. 117 (1999). Of course, that argument is precisely the same argument made by Bentham and the other utilitarians in the 1800s: if the only purpose of punishment is to deter the punished criminal, then no criminal may morally be punished beyond what it takes to rehabilitate him. See infra notes 55-60 and accompanying text. At least Bentham had the courage of his convictions, which is more than can be said for the current devotees of therapeutic jurisprudence, who are so worried that they will be seen as soft on crime that they would never apply their strange principles to serious crime. See supra notes 17-19 and accompanying text.

In fact, I suspect that it is the improved feelings of the treaters, and not of the treated, that is really driving judges' infatuation with therapeutic courts. The therapeutic jurisprudence movement in general, and the drug court movement in particular, is strewn with discussions of the positive effects therapeutic programs have on the treaters. See supra note 14 (reporting emotional benefits the drug court judge realizes from hugging a defendant).

Id. Nolan reports a stunning example of the extent to which compliance in therapeutic courts is measured more by what a defendant says than by what a defendant does. The Oakland probation department commended a drug court defendant for his compliance in treatment, and recommended that he be graduated from phase 2 to phase 3, even though the defendant had not had a single negative urinalysis in all of phase 2. JAMES L. NOLAN, JR., THE THERAPEUTIC STATE: JUSTIFYING GOVERNMENT AT CENTURY'S END 296 (1998). Defendants understand that they have to play the treatment game to pass through the criminal hoops. Nolan reports on a particularly embarrassing unraveling of a Washington, D.C. drug court session that was being televised live to a large convention of treatment providers. The session began in stock theatrical form, but at one point an uncooperative defendant began to depart from the script. When asked why his treatment program had been so difficult for him, he said "'Cause I had to come and sit here and listen to this crap." NOLAN, JR., supra note 2, at 69. The dam broke, and other defendants started to complain about the therapeutic game. At one point, laughter began to break out amongst the conventioneers. "When it became clear the judge was not going to be able to regain control of the performance, conference officials just cut the video feed. 'We have to stay on schedule,' an organizer deadpanned."' Id. at 70.

Id.; see also infra note 110 and accompanying text (discussing reverse moral screening). Dade County Drug Court officials report that they have had particular difficulty with the willingness of Hispanic clients to admit they have a disease and suggest that the difficulty may somehow be attributable to a cultural resistance to the disease model. NOLAN, JR., supra note 25, at 296.

The ineffectiveness of involuntary court-based therapy comes as no surprise to people familiar with the ineffectiveness of voluntary psychotherapy in general, especially in an addiction context. Peer-reviewed controlled studies—which are scandalously rare—are virtually unanimous in their conclusion that there is no evidence that twelve-step programs produce better results than clinical treatment or even better results than no treatment at all. See William R. Miller & Reid K. Hester, The Effectiveness of Alcoholism Treatment: What Research Reveals, in TREATING ADDICTIVE BEHAVIORS: PROCESSES OF CHANGE 121, 135-36 (W. Miller & N. Heather eds., 1986) (reviewing all controlled studies of alcohol treatment programs, finding only two on AA programs, and noting that both of those AA studies showed that members of AA got arrested more often and relapsed more frequently than the control group of untreated problem drinkers). Even clinical treatment seems ineffective. In a famous 1983 study of the effectiveness of inpatient alcohol treatment, the ability of treated patients to stop drinking and stay sober two years and eight years post-discharge was no better than that of the untreated control group. GEORGE VALLIANT, THE NATU- RAL HISTORY OF ALCOHOLISM 284-94 (1983). The data on the effectiveness of drug treatment is no more encouraging. See, e.g., Stanton Peele, How People'sValues Determine Whether They Become and Remain Addicts, in VISIONS OF ADDICTION 219-20 (S. Peele ed., 1988).

In particular, Dade County drug defendants entering the drug court program suffered a one-year re-arrest rate of 32%, compared to Dade County drug defendants in traditional courts, who suffered a re-arrest rate over the same period of 33%. BAR- BARA E. SMITH ET AL., STRATEGIES FOR COURTS TO COPE WITH THE CASELOAD PRESSURES OF DRUG CASES 7 (1991).

Here, for example, are the results from five major effectiveness studies done by independent outsiders in the mid- and late-1990s: See generally STEVEN BELENKO & TAMARA DUMANOVSKY, BUREAU OF JUSTICE ASSISTANCE, U.S. DEP'T OF JUSTICE, SPECIAL DRUG COURTS: PROGRAM BRIEF 2 (1993); Steven Belenko, Research on Drug Courts: A Critical Review, 1 NAT'L DRUG CT. INST. REV. 1 (1998).

See U.S. GEN. ACCOUNTING OFFICE, DRUG COURTS: OVERVIEW OF GROWTH, CHARACTERISTICS, AND RESULTS 7-8 (1997).

Hoffman, supra note 8, at 1501-02.

Id. at 1510-11. These exploding prison populations were not the result of a general increase in criminal cases. On the contrary, since the Denver Drug Court began its operations, the percentage of drug cases filed in the court has exploded. Here are the complete figures for criminal cases with the Denver District Court from 1991 through 1998 (the drug court became operational in July 1994): Hoffman, supra note 8, at 1502 n.260.

See, e.g., PAUL RICOEUR, THE SYMBOLISM OF EVIL 26-27 (1967).

The God of the Old Testament was, of course, very much a retributionist. One of the central issues in virtually every religion is how to explain man's discovery that God's retribution does not always appear just.

A few commentators contend that the roots of punishment were in fact restorative, rather than retributive, at least until the Norman Conquest. See, e.g., Braithewaite, supra note 1, at 2. This view stems from an overbroad, noncriminological use of the word "punishment." It goes without saying that humans have always recognized that some wrongdoers can change their ways, hoped that all wrongdoers could, and suspected that some wrongdoers cannot. Naturally, these views found their way into many human institutions, from families to churches. These views do not shed any real light on the question of criminological punishment-that is, what the state should do to a particular wrongdoer in response to a particular crime. Is the wrong-doer one of us, who must be punished to restore his moral standing? See infra notes 50-52 and accompanying text. Or is he diseased, and in need of some kind of treatment? In this sense, it is clear that civilization has always been retributive and not rehabilitative, at least until the 1920s and 1930s, when the confluence of Freud and the Progressives led us to a rehabilitative norm where all people are seen as the diseased products of their past, and therefore fundamentally not responsible for their actions. See infra notes 61-62 and accompanying text.

36. NORVAL MORRIS, THE FUTURE OF IMPRISONMENT 4 (1974).

Id.

4 WILLIAM A. BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND *98 (W.L. Dean ed., 1846). In a famous passage in A Tale of Two Cities, Dickens laments that, as late as the French Revolution, English law imposed the death sentence for all manner of criminal offenses, including forgery, bad checks, unlawfully opening a letter addressed to another, stealing as little as forty shillings, and horse theft. CHARLES DICKENS, A TALE OF Two CITIES 50 (Oxford Univ. Press 1953) (1859).

MORRIS, supra note 36, at 4.

Id. at 5.

Id. at 5. Some historians contend that the first true penitentiary was the so-called "People Pen" constructed by the Massachusetts Pilgrims in Boston in 1632. See, e.g., PHILIP D. JORDAN, FRONTIER LAW AND ORDER: TEN ESSAYS 140 (1970). In any event, it is clear that it was the Quaker's Walnut Street Jail, and not the Pilgrims' Boston People Pen, that became the model for the early American penitentiary. MORRIS, supra note 36, at 4-5.

MORRIS, supra note 36, at 5. See the discussion of Baccaria in the text accompanying infra notes 53-55.

MORRIS, supra note 36, at 4.

Id. at 5.

Id. at 58.

IMMANUEL KANT, THE METAPHYSICAL ELEMENTS OF JUSTICE 101 (Ladd trans., Bobbs-Merrill 1965) (1797).

Id.

Id.

Id.

GEORG WILHELM FRIEDRICH HEGEL, PHILOSOPHY OF RIGHT 71 (T.M. Knox trans., Oxford Univ. Press 1942) (1821).

Id.

Id.

Id.

Id.

JEREMY BENTHAM, THE RATIONALE OF PUNISHMENT (R. Heward & R. Smith et al. eds. and trans., 1830).

Id.

Bentham and Holmes were very much the progenitors of the University of Chicago-based law and economics movement, which extended these utilitarian principles to other areas of the law. Ironically, Holmes also spawned the left-wing "critical legal studies" movement, which is equally devoid of moral principles. See generally ALBERT W. ALSCHULER, LAW WITHOUT VALUES: THE LIFE, WORK AND LEGACY OF JUSTICE HOLMES (2000); Morris B. Hoffman, Book Review, 54 STAN. L. REV. 597 (2001). Holmes rejected not only the retributionists but also those utilitarians whose view of "prevention" included rehabilitation. Holmes's logic, as usual, was compel- ling: the criminal law will lose all of its deterrent purpose if bad men know they will be treated rather than punished. Indeed, Holmes's notion of the "bad man" was itself a rejection of the rehabilitative ideal. At the very least, Holmes argued that rehabilitation could never be the only purpose of punishment: ("If it were, every prisoner should be released as soon as it appears clear that he will never repeat his offence, and if he is incurable he should not be punished at all.") OLIVER WENDELL HOLMES, JR., THE COMMON LAW 42 (Little, Brown & Co. 1923) (1881). These observations take on an eerily modern significance when we talk about drug courts as devices for reverse moral screening. See infra note 110 and accompanying text.

HOLMES, supra note 57, at 42-43.

BENTHAM, supra note 55, at 41. "If we could consider an offense which has been committed as an isolated fact, the like of which would never recur, punishment would be useless. It would only be adding one evil to another." It seems to me that this conclusion follows only if one takes an unduly narrow view of deterrence. Deterrence is not only about discouraging the particular wrongdoer from committing additional wrongs in the future, but also discouraging other people by example. And, of course, this second kind of deterrence has the potential to be substantially more effective, because it acts on the population as a whole, rather than on a single criminal. For the very same reason, assuming equal rates of success, deterrence is far more efficient than rehabilitation.

Richard A. Posner, An Economic Theory of the Criminal Law, 85 COLUM. L. REV. 1193, 1203-04 (1985).

See supra notes 50-52 and accompanying text.

See, e.g., R.A. Duff & David Garland, Introduction: Thinking About Punishment, in A READER ON PUNISHMENT 1, 2-3 (R.A. Duff & D. Garland eds., 1994).

See generally ANTHONY M. PLATT, THE CHILD SAVERS: THE INVENTION OF DELINQUENCY (2d ed. 1977).

There are other striking similarities between the juvenile court movement and the drug court movement: both were initially led by charismatic judges; both are based on a fundamental therapeutic paternalism; both have liberal political origins but are quick to deny they are "soft" on crime; both rely heavily on pseudo-scientific social principles; both rely on informal proceedings; and both are designed to decrease the role of the defense lawyer and increase the activism and discretion of the judge. NOLAN, JR., supra note 2, at 174 ("[S]o similar are the two forms of therapeutic jurisprudence that one is tempted to view the juvenile courts as the direct historical antecedent to drug courts."). Nolan also points out significant differences between the two movements, however, including the fact that juvenile courts relied much less on the therapeutic community and that juvenile judges were much less active in defendants' day-to-day treatment. Id. at 174-75; See generally Richard C. Boldt, Rehabilitative Punishment and the Drug Treatment Court Movement, 76 WASH. U. L. Q. 1206, 1269-77 (1998).

NOLAN, JR., supra note 2, at 171.

PLATT, supra note 63, at 162; see also Janet E. Ainsworth, Re-Imagining Childhood and Reconstructing the Legal Order: The Case for Abolishing the Juvenile Court, 69 N.C. L. REV. 1083, 1120 (1991).

In re Gault, 387 U.S. 1, 61 (1967).

AM. FRIENDS SERVI. COMM., STRUGGLE FOR JUSTICE: A REPORT ON CRIME AND PUNISHMENT IN AMERICA 147-48 (1971).

See generally FRANCIS A. ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL: PENAL POLICY AND SOCIAL PURPOSE (1981).

MORRIS, supra note 36, at 76.

NOLAN, JR., supra note 2, at 163 (quoting Norval Morris and Gordon Hawkins, Letter to the President on Crime Control).

72. Ainsworth, supra note 66, at 1104 ("Despite several decades of experience with rehabilitative penology in the adult and juvenile systems, however, criminal recidivism stubbornly refused to whither away.")

Id. at 1105.

E.g., MORRIS, supra note 36, at 20-22 (discussing the "abandonment" of the reform of criminals as justification for imprisonment).

David J. Rothman, Deincarcerating Prisoners and Patients, 1973 C. L. REV. 8, 24 (1973).

See, e.g., WAYNE LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 23 (1972) (noting that "there has been more of a commitment to the 'rehabilitative ideal' in recent years than to other theories of punishment").

See, e.g., WAYNE LAFAVE & AUSTIN W. SCOTT, CRIMINAL LAW 28-29 (2d ed. 1986) (discussing the dearth of criticism of rehabilitative theories beginning in the 1960s).

See, e.g., Michael Vitiello, Reconsidering Rehabilitation,65 TUL. L. REV. 1011, 1012-13 (1991) (discussing the abrupt rejection of the rehabilitative ideal of punishment).

See, Elizabeth Rapaport, Retribution and Redemption in the Operation of Executive Clemency, 74 CHI.-KENT L. REV. 1501, 1502 (2000).

See generally MARVIN FRANKEL, CRIMINAL SENTENCES: LAW WITHOUT ORDER (1973); ANDREW VON HIRSCH, DOING JUSTICE: THE CHOICE OF PUNISHMENTS (1976); RICHARD G. SINGER, JUST DESERTS: SENTENCING BASED ON EQUALITY AND DESERT (1979) .

81. The Guidelines began with Congress's 1984 enactment of the Sentencing Reform Act, Pub. L. 98-473, 98 Stat. 1837, 1976 (1984) ("the SRA"). The SRA changed the century-old federal indeterminate sentencing scheme to a determinate one and created the U.S. Sentencing Commission, which ultimately created the Guidelines. WEST GROUP, FEDERAL SENTENCING GUIDELINES MANUAL 1-2 (1999). One can be a neo-retributionist without necessarily being a fan of the Guidelines. The SRA and its Guidelines triggered a whole host of controversies, including constitutional questions about the separation of powers and institutional questions about the role of judicial discretion, the resolution of which do not necessarily depend on one's views on retribution. See, e.g., Charles L. Ogeltree, Jr., The Death of Discretion?: Reflections on the Federal Sentencing Guidelines, 101 HARV. L. REV. 1938 (1988) (criticizing the Guidelines for failing to address the complex issues involved in sentencing, such as individual characteristics of the defendant and racial disparity in sentencing); Note, The Federal Sentencing Guidelines and Confrontation Rights, 42 DUKE L.J. 382 (1992) (advocating that confrontation rights should apply to sentencing under the Guidelines in order to adequately protect defendants); Note, The Standard of Proof at Sentencing Hearings Under the FederalSentencingGuidelines:Why the Preponderance of the Evidence Standard is Constitutionally Inadequate, 1997 U. ILL.L. REV. 583 (1997). In 1989, the Supreme Court rejected constitutional attacks on the SRA and Guidelines based on arguments that they were a delegation of excess legislative authority and a violation of the separation of powers. United States v. Mistretta, 488 U.S. 361 (1989). Commentators have disagreed about whether the Guidelines allow appropriate rehabilitative consideration, especially in drug cases. Compare Note, Sentencing the Reformed Addict: Departure Under the Federal Sentencing Guidelines and the Problem of Drug Rehabilitation,91 COLUM. L. REV. 2051 (1991) (describing the disagreement over the interpretation of the Guidelines as allowing downward departures for rehabilitated defendants) with Comment, Downward Departures from the Federal Sentencing Guidelines Based on the Defendant's Drug Rehabilitative Efforts, 59 U. CHI. L. REV. 837 (1992) (arguing that defendant's genuine efforts at rehabilitation can be a valid reason to justify departure from the Guidelines).

NOLAN, JR., supra note 2, at 159-64.

Id. at 159-64.

A situation which, as described in the text accompanying note 38 supra, comes close to describing most European criminal systems from the Middle Ages through the Enlightenment.

'For example, the utilitarian J.J.C. Smart argues that although deterrence should be the prime consideration of legislators (what he calls "second order" questions), judges should be concerned primarily with retribution (what he calls "first order" questions). J.J.C. Smart, Comment: The Humanitarian Theory of Punishment 6 RES JUDICATAE 368 (June 1953). Even Norval Morris, who is associated more with incapacitation than retribution, acknowledges that retribution must play a central role in linking the punishment with the crime. NOLAN, JR., supra note 2, at 163.

ALLEN, supra note 69.

Id. at 86-87.

The one exception I found was an article about restorative justice written by an Australian social scientist, John Braithewaite. Braithewaite, supra note 1. Professor Braithewaite not only tackles the difficult traditional philosophical and criminological issues underlying punishment, he also attempts to summarize the data behind the claims and criticisms of the model.

NOLAN, JR., supra note 25, at 17-21.

See, e.g., STANTON PEELE, THE DISEASING OF AMERICA: ADDICTION TREATMENT OUT OF CONTROL (1989).

See generally supra notes 33-35 and accompanying text.

See generally supra notes 33-35 and accompanying text.

NOLAN, JR., supra note 2, at 142-43.

Margot Slade, At the Bar, N. Y. TIMES, May 20, 1994, at B20.

Sch. Dist. of Phila. v. Friedman, 96 PA. COMMW. 267, 270 (1986).

THE FEDERALIST No. 78, at 490 (Alexander Hamilton) (B. Wright ed., 1996).

U.S. CONST. art. III, § 1.

U.S. CONST. art. III, § 2.

In The Federalist No. 47, which was Madison's first exposition on the separation of powers, he discusses at length the entangled failings of the British judiciary, and even quotes Montesquieu's criticisms: "Were the power of the judging joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control, for the judge would then be the legislator. Were it joined to the executive power, the judge might behave with all the violence of an oppressor." THE FEDERALIST No. 47, at 338 (James Madison) (B. Wright ed, 1996).

"A circumstance which crowns the defects of the Confederation remains yet to be mentioned-the want of a judiciary power. Laws are a dead letter without courts to expound and define their true meaning and operation." Id. at 187.

THE FEDERALIST No. 22, at 489-96 (Alexander Hamilton) (B. Wright ed., 1996).

THE FEDERALIST No. 47, at 84 (James Madison) (B. Wright ed., 1996).

See, e.g., Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Eng'g, 467 U.S. 138, 157 (1984) ("It is a fundamental rule of judicial restraint ... that this Court will not reach constitutional questions in advance of the necessity of deciding them.").

Id.

See generally OLIVER WENDELL HOLMES, JR., THE COMMON LAW 33-37 (Harvard Univ. Press 1923) (1881).

Holmes is perhaps more responsible than anyone for breathing life back into the founders' commitment to judicial restraint. He wrote powerfully and elegantly about the need for judges to judge rather than legislate, and his commitment to that principle was all the more impressive because he personally disagreed with so much of what the progressive Congress was trying to do in the 1920s and 1930s. In fact, he suggested that his epitaph be "Here lies the supple tool of power." ALSCHULER, supra note 57, at 82. He also wrote that "[I]f my fellow citizens want to go to Hell I will help them. It's my job." Id. (quoting Letter from Holmes to Harold Laski (March 4, 1920)).

THE FEDERALIST No. 39, at 281 (James Madison) (B. Wright ed., 1996).

See supra notes 24-30, 72-73 and accompanying text.

See supra notes 64-66, 69 and accompanying text.

Hoffman, supra note 8, at 1476.

Id. at 1528-29.

NOLAN, JR., supra note 2, at 62.

Id. at 62-65.

Id. at 97.

Id. The judge explains his funding activities this way: Whether you like it or not you as the judge are considered a leader of your drug court team. Your team looks to you for inspiration and guidance. So as a leader of that team you must take a very active part in the raising of funds. For the Rochester court, I went out and raised all the money from local foundations.

CAROLINE COOPER ET AL., DRUG COURT RES. CTR., DRUG COURTS: 1997 OVERVIEW OF OPERATIONAL CHARACTERISTICS AND IMPLEMENTATION ISSUES 120- 27 (1997).

See, e.g., Judith S. Kaye, Rethinking TraditionalApproaches,62 ALB. L. REV. 1491, 1494 (1999).

Id.

Id.

Perhaps the most troubling thing about community-based courts is that their proponents are seriously proposing that they be extended from petty crimes to the entire justice system. Chief Judge Judith S. Kaye of the New York Court of Appeals has suggested just such an unbounded extension. "What about a community court for civil cases? For commercial cases? For family cases? For youth crime? .... [T]hese are very very good questions, well worth considering." Id. at 1494. With all due respect to Chief Judge Kaye, what is a community-based commercial court? Would Chief Judge Kaye have panels of community activists decide whether defaulting borrowers should clean subways instead of repay their bank loans? Should negligent surgeons have to lick and stuff envelopes for the American Trial Lawyers Association instead of paying damages to their victims? In the end, if the rights that flow to individuals-from their contracts, from common law, from statute or from the constitution-are nothing but the shadows of communal judgment, and if individuals' opportunities to enforce those rights in courts of law are replaced entirely by a system in which those rights mean nothing but a certain level of symbolic community opprobrium, then we might as well disband the judiciary. Indeed, our modern world has already experienced a most advanced form of such unbounded community courts-the People's Courts in China during the cultural revolution.

For a discussion of the ethical dilemmas drug courts impose on criminal defense lawyers, see Richard C. Boldt, Rehabilitative Punishment and the Drug Treatment Court Movement, 76 WASH. U. L. Q. 1205 (1999); Developments in the Law—Alternatives to Incarceration for Drug-Abusing Offenders, 111 HARV. L. REV. 1863 (1998). Professor Boldt summarized the problem this way: [D]efense counsel [in the drug court] is no longer primarily responsible for giving voice to the distinct perspective of the defendant's experience in what remains a coercive setting. Rather, defense counsel becomes part of a treatment team working with others to insure that outcomes, viewed from the perspective of the institutional players and not the individual defendant, are in the defendant's best interests. Boldt, supra, at 1245.

Indeed, treatment is imposed as a blanket condition of bail in many drug courts, despite the potential constitutional problems with such a non-particularized approach. See Hoffman, supra note 8, at 1462 n.7; cf United States v. Salerno, 481 U.S. 739, 751-52 (1987) (upholding the constitutionality of the Bail Reform Act of 1984 because it required a particularized showing of governmental need); see also Richard B. Abell, Pretrial Drug Testing: Expanding Rights and Protecting Public Safety, 57 GEO. WASH. L. REV. 943, 956 (1989) (arguing that pre-trial drug testing is constitutional).

See Hoffman, supra note 8, at 1524.

Criminal defendants, even those labeled as the system's "clients," have a Sixth Amendment right to counsel and to be present at all critical stages of a criminal prosecution. E.g. Powell v. Alabama, 287 U.S. 45, 68-72 (1932).

See supra notes 2-14 and accompanying text.

See supra notes 121-123 and accompanying text.

NOLAN, JR., supra note 25, at 7-9.

Even for these kinds of long-established programs, there is virtually no evidence of their efficacy.

Prosecutorial charging and bargaining discretion is a fundamental principle inherent in the doctrine of separation of powers. See, e.g., Wayte v. United States, 470 U.S. 598, 607 (1985). This broad discretion [afforded the prosecution] rests largely on the recognition that the decision to prosecute is particularly ill-suited to judicial review. Such factors as the strength of the case, the prosecution's general deterrence value, the Government's enforcement priorities, and the case's relationship to the Government's overall enforcement plan are not readily susceptible to the kind of analysis the courts are competent to undertake. Id.

See supra notes 31-32 and accompanying text.

In Denver, for example, the dispositional algorithm for defendants charged with simple possession is fairly rigid: (1) if the defendant has two or more prior felonies, he or she is ineligible for drug court; (2) if the defendant is arrested with a small, so-called "personal use," amount of drugs, he or she is offered a deferred judgment; (3) if the defendant is arrested with more than a personal use amount, he or she gets probation. See also Hoffman, supra note 8, at 1513 nn. 297-98.

[projectmedusarp]

Welcome Zuna! We’re pleased to announce your audition for Charlotte Netter / Electrokinesis has been accepted! Please send your account into the main within the next 24 hours. We can’t wait to have you join us!

** A note from the applicant before reading the audition: DRUG ABUSE TW, this application contains references to alcoholism. There are also aspects of mental/emotional abuse, and while it’s not in the list, I know it can make people uncomfortable and wanted to warn you.

{{ PLAYER INFORMATION }}

NAME: Zuna

AGE: 22

TIMEZONE: PST (GMT-8)

PRONOUNS: She/They

ACTIVITY LEVEL: While I’ll be able to check in every day and hopefully do short replies during the day, more lengthy responses will have to wait until evenings or weekends. This is largely because I’m stuck on mobile during the day.

PREVIOUS ROLEPLAY EXPERIENCE: None, so I am very hopeful that this could be a wonderful new experience! Most of my writing experience has been solo.

PERSONAL TUMBLR CONTACT: Link Removed

TRIGGERS: None again, thankfully.

{{ CHARACTER INFORMATION }}

CHARACTER: Charlotte Netter (Nickname: Charlie)

PRONOUNS: She / Her

AGE: 32

FACE CLAIM: Constance Wu

POWER: Electrokinesis

QUOTE: “There is always a catch. Life is a catch. I suggest you catch it while you can.”

PERSONALITY:

Determined: Charlie’s father is the first person who would tell you that she’d been a headstrong, capable child. She still believes there’s nothing she can’t do if she puts her mind to it, and has yet to prove herself wrong. Whatever it takes to get the job done, she’ll do- within reasonable limits of course, she’s not going to jail because someone challenged her. She’s also very reliable because of this and relishes finishing a well done job. 

Generous: Charlie is never one to hold onto things for herself. She’ll leave the largest tip she can manage, make a point to provide for others when she knows they’re struggling, or reach out to local charities to see if something she no longer needs can be given to someone who does. Her generosity is usually directed towards strangers, but that doesn’t mean she won’t reach out to help a friend in need.

Disorganized: The phrase “I’d lose my head if it wasn’t attached” usually refers to people who are forgetful, but Charlie has the terrible habit of putting things in “safe” places- so safe even she can’t find them again. She’s able to function in the material chaos of her life and apartment, but only because her roommates somehow always remember where she put her keys or that file her boss asked her to archive two days ago.

Judgmental: First impressions are everything to Charlie, and she’s used to making snapshot evaluations of people. While she knows it’s impossible to really know someone in a first meeting, she’s very cautious about trusting or becoming close with people with whom she finds fault. Of course, it’s entirely possible to overcome her assumptions, but it might take a bit of effort to force her to believe she’s wrong.

Gossip: Charlie has the unfortunate habit of picking up stories and spreading them around. It’s occasionally in an attempt to get someone help in a stressful situation, but even more rarely works out that way. She takes particular satisfaction in telling stories to others that confirm her previous thoughts about the topic at hand.

Perfect Mask: Due to her judgments and general distrust of strangers, Charlie usually hides behind a mask to create the facade of a perfectly content and well-adjusted individual. There are very few people to whom she shows true emotion, unless she’s under an unusual amount of stress. Most who know her would describe her as confident, prepared for anything, or simply professional.

Social Butterfly: There are few people who’ve come into her orbit that she hasn’t made a point to meet in person. In Charlie’s opinion, it’s better to know and interact with as many people as possible even if she never becomes close with them. She is content with simply flitting in and out among various groups to check in and see what everyone’s up to without settling into any one of them.

BIOGRAPHY:

While the first few years of Charlotte Netter’s life were peaceful and untroubled, her mother died unexpectedly from an asthma attack, leaving both a four-year old Charlie and her father, Jeremy, devastated. As her father scrambled to juggle both his job and loss of a co-parent, he fell into the destructive spiral of trying to find a “replacement mother”. His relationships failed as he put more and more pressure on his girlfriends to be the perfect mother for his stubborn, slightly troublesome daughter. After many years of this pattern repeating itself, Jeremy began to shut down outside of work. As a middle school student, Charlie often found her father had gone drinking before coming home. 

As his dependence grew, so did his need for validation and the assurance that his daughter wouldn’t leave him. Charlie was saddled with taking care of her still grieving father as he lost himself, even as he restricted her activities to keep her close to him. She was forced more and more to take care of him emotionally and physically as her school years continued, practically running all non-financial aspects of her home, becoming isolated from her peers. Her need to get away from her father’s control lead her away from higher education and towards the workforce, permanently moving out mere weeks after graduation. The separation caused a rift between the two, and they went without speaking for nearly a year before Jeremy was able to convince Charlie to reconnect. His drinking has gone through periods of both moderation and excess since then, but she can’t seem to tear herself away as completely as before.

At the time, however, her newfound freedom lead her to expand her interests, meeting people with every new activity she tried, from concerts to morning runs to bookstores. She became determined to be as likeable as possible and found herself in the middle of a network of people who all needed something done or knew someone who did. Simply having these connections opened doors Charlie hadn’t even been completely aware of as people she had only met recently reached out to offer her work or ask if she still needed a copy of that book she had mentioned. With newfound vigor, Charlie threw herself into her new life with a joy she couldn’t remember ever having.

Years passed as she bounced between jobs, apartments, and roommates, focusing less on trying everything and settling into things she truly loved doing. She made friends wherever she went, but had few strong connections until she met her current roommates Sasha and Em. After a crime movie marathon three years ago, they joked about setting up a heist and each applied for a position at places similar to locations found in the movies they had just finished. Em tried for a casino, Sasha emailed a jeweler, and Charlie submitted her resume to a bank, and all three promptly forgot about the entire thing until she got a call to come interview for a teller position. By this time, she was disenchanted by the never-ending job changes and decided it was worth a shot. The other two found the whole incident hilarious, but agreed to never speak of it to her coworkers. She never expected to enjoy the work or the people she met so much, and still finds herself enchanted with her stable employment, though she’s risen to a mid-level management position.

As time went on, she settled into a routine that was only broken by occasional drunken calls from her father when he needed her to pick her up from one bar or another. It was this tenuous variation that lead to her exposure to the tonic water. One night while walking him to her car to go home, he insisted she find the young man who’d been selling waters outside the bar, promising that they could cure a hangover. No matter how she tried to convince him to let it go, he refused to go a step further until she’d bought in to the- in her opinion- expensive scam. Once she’d gotten the water though, it was all she could do to get him home, let alone drink the stuff. So the bottle sat in her car for a couple days until she was thirsty enough to drink it herself.

The next few weeks were frustrating. Every day was a bad hair day, she just couldn’t manage to get it to stop flying around or sticking up at random angles. She went to take the train to meet a friend in Central Park, only to find that all the cards in her wallet were demagnetized. She was constantly slapping at metal surfaces to get rid of the static cling that never really went away, jumping when it finally built up enough to actually shock her. The buildup had been slow, but annoying, and when her frustrations finally came to a head, she could only stare at the charging screen of her dead phone as the tiniest spark connected its port to the fingertip. She shook it off as a weird fluke, or even a dream, until she heard about the missing people who had been hallucinating what the news referred to as “daydreams of superpowers”. Since then, she’s been testing this weird charge thing and keeping an eye out for weird people, though her work at the bank makes her less sensitive to strangers in suits than she needs to be.

HEADCANONS:

All The Single Ladies: Charlie’s never had a long term romantic relationship, and she doesn’t particularly feel the need for one. That’s not to say that she has never wanted one or never will, but given her father’s many failed relationships and the drama she constantly hears about other couples, she’s unlikely to take the plunge to commit to someone anytime soon.

Fit as a Fiddle: Charlie frequently participates in triathlons, both within the boundaries of the city and further out. She isn’t a particularly high ranking athlete, but enjoys the physical exertion. On top of that, these races are how she met and became friends with her roommates!

Miss Muffet: If someone comes anywhere near her with something resembling a spider, especially a large hairy one, she might actively run away from them. She doesn’t get full blown panic attacks over it, but will definitely leave the room until someone collects the little critter. One time her roommates were gone overnight, so she slept on the couch to avoid the spider sitting over her bed!

ADDITIONAL INFORMATION: N/A

[theboywiththepinkfloralpurse]

134 questions

1: Name - Joel 2: Age - 18 (19 in June) 3: 3 Fears - being alone, not making anything of myself, and bugs lol 4: 3 things I love - My Sweet and Wonderful Boyfriend, music and making music, chocolate 5: 4 turns on - the back of my neck, it's really sensitive… when the other person takes control… that's all you get for now ;) 6: 4 turns off - biting, roughness lol, uncomfortable positions, boobs (lol) 7: My best friend - Sterling 8: Sexual orientation - Gay (duh XD) 9: My best first date - pizza place with my current boyfriend 10: How tall am I - 5’6” 11: What do I miss - my boyfriend. And music camp tbh 12: What time was I born - not sure… the afternoon maybe? 13: Favorite color - Teal 14: Do I have a crush - very much so 15: Favorite quote - not my favorite but I love it cuz it's hilarious “...the people that put the chemicals in the water that turned the friggin frogs gay!” - Alex Jones 16: Favorite place - Sterling's house (and now anywhere with my boyfriend :) 17: Favorite food - Mac n’ cheese. Also chicken 18: Do I use sarcasm - nooooooo I neeeeever eeeeeeever use sarcasm (lol) 19: What am I listening to right now - my Mom has some cringey Christian radio station on... 20: First thing I notice in a new person - kindness 21: Shoe size - 10 (12 women's XD) 22: Eye color - blue 23: Hair color - dirty blonde 24: Favorite style of clothing - sweaters with or without buttons, clothes with buttons in general. Fall clothes 25: Ever done a prank call? - once… it was so cringey but he actually fell for it

27: Meaning behind my URL - theboywiththepinkfloralpurse was my first blog where I really needed someplace to make venting emotional posts and I'd just gotten a tacky pink purse with flowers lol. a-random-gay-bunny is pretty self explanatory lol 28: Favorite movie - ahhhhhh I'm so bad at picking favorites for most things…. I do really like V for Vendetta tho. Seen it many times, and the entire X-Men series. 29: Favorite song - too many to pick… 30: Favorite band - except this… I can say for sure it's Pentatonix. I've seen them in concert twice, I love them so much 31: How I feel right now - happy, but I wanna hold my boyfriend and kiss him 32: Someone I love - My boyfriend John 33: My current relationship status - very taken <3 34: My relationship with my parents - much better than a couple years ago, still a little rocky but pretty good 35: Favorite holiday - probably Christmas 36: Tattoos and piercing I have - none 37: Tattoos and piercing I want - I'm not sure, but I would like a tattoo or a few one day 38: The reason I joined Tumblr - to vent my feelings to the void lol 39: Do I and my last ex hate each other? - don't have one 40: Do I ever get “good morning” or “good night ” texts? - everyday :) <3 41: Have you ever kissed the last person you texted? - this question is weird lol, but John's the last person I texted and the only person I've kissed :) 42: When did I last hold hands? - yesterday 43: How long does it take me to get ready in the morning? - depends, I can get ready really quickly if need be though 44: Have You shaved your legs in the past three days? - nope. Last I shaved was a week ago I think 45: Where am I right now? - at home on my couch 46: If I were drunk & can’t stand, who’s taking care of me? - either Sterling, John or both, but I don't plan on getting drunk ever. I guess it could happen but probably won't be drinking in the future 47: Do I like my music loud or at a reasonable level? - both, usually slightly loud though 48: Do I live with my Mom and Dad? - yeah… hopefully not for too much longer 49: Am I excited for anything? - seeing my boyfriend on Saturday, and going to camp in 52 days, and hopefully passing my driver's test in 107 days. 50: Do I have someone of the opposite sex I can tell everything to? - sort of? I feel like I can tell Tabby everything 51: How often do I wear a fake smile? - not too often, only in situations where I feel uncomfortable but feel I need to smile. 52: When was the last time I hugged someone? - couple of hours ago 53: What if the last person I kissed was kissing someone else right in front of me? - I'd be vereh sad and I'd want to know why. But he wouldn't do that :) 54: Is there anyone I trust even though I should not? - I'm a really trusting person so probably 55: What is something I disliked about today? - I couldn't see my boyfriend and kiss his cute face 56: If I could meet anyone on this earth, who would it be? - uhhh… I dunno… maybe Tyler Oakley cuz I bet that would be really fun 57: What do I think about most? - heehee, my boyfriend. And also getting a job and figuring out plans for things, always running through plans in my head. 58: What’s my strangest talent? - I'm not sure, but the fact I can sing so low and so high is a pretty strange talent I guess 59: Do I have any strange phobias? - I'm very afraid of getting water in my eyes 60: Do I prefer to be behind the camera or in front of it? - behind it 61: What was the last lie I told? - I told my Mom I understood when she told me that my having a boyfriend is very difficult and awkward for her. I really don't understand 62: Do I prefer talking on the phone or video chatting online? - definitely on the phone, but before my boyfriend I would've said neither 63: Do I believe in ghosts? How about aliens? - I'd like to believe in aliens, but I dunno. As for ghosts I don't believe in them at all really. 64: Do I believe in magic? - kind of? I think people can and have been able to connect with demons and been controlled by them. I don't think it really happens today much anymore. I think it might tho? 65: Do I believe in luck? - not really, sort of in a cutesy way tho 66: What's the weather like right now? - slightly cloudy, but the sun has mostly set anyway 67: What was the last book I've read? - all the way through? Animal Farm. The last book I opened and read from was a book Sterling gave me. 68: Do I like the smell of gasoline? - Oh god no, do some people like that smell? 69: Do I have any nicknames? Dork, pianoman (from this strange sports camp where everyone had a nickname) 70: What was the worst injury I've ever had? - had a car hood slam on a couple fingers, they didn't break tho surprisingly. Never had a broken bone 71: Do I spend money or save it? - spend… I shouldn't, I need to make money so I can start saving 72: Can I touch my nose with a tongue? - just barely the bottom of my nose 73: Is there anything pink in 10 feet from me? - yes, my old pink purse and probably some other stuff 74: Favorite animal? - besides cats and bunnies, red pandas 75: What was I doing last night at 12 AM? - talking to bae 76: What do I think is Satan’s last name is? - I don't think he has one? Strange question lol 77: What’s a song that always makes me happy when I hear it? - you'll be in my heart by Phil Collins 78: How can you win my heart? - genuinely caring about me :) 79: What would I want to be written on my tombstone? - Here lies the gayest gay to ever gay 80: What is my favorite word? - maybe bitch lol 81: My top 5 blogs on tumblr - a bunch of furry blogs lol 82: If the whole world were listening to me right now, what would I say? - …..hi?... anybody wanna give me free money and help me see my boyfriend more?.... 83: Do I have any relatives in jail? - no. Unless I have distant relatives in jail 84: I accidentally eat some radioactive vegetables. They were good, and what’s even cooler is that they endow me with the super-power of my choice! What is that power? - teleportation 85: What would be a question I’d be afraid to tell the truth on? - not many, but one is “have you cheated on school assignments” 86: What is my current desktop picture? - my cat Loki 87: Had sex? - nope 88: Bought condoms? - nope 89: Gotten pregnant? - NOPE XD 90: Failed a class? - no 91: Kissed a boy? - yee 92: Kissed a girl? - nononono 93: Have I ever kissed somebody in the rain? - not yet ;) 94: Had job? - not yet :( 95: Left the house without my wallet? - plenty of times lol 96: Bullied someone on the internet? - maybe? When I was like 13/14 I might've, but not really, I made cringey YouTube comments. 97: Had sex in public? - nope lol 98: Played on a sports team? - nope 99: Smoked weed? - nope 100: Did drugs? - nope 101: Smoked cigarettes? - nope 102: Drank alcohol? - nope 103: Am I a vegetarian/vegan? - nope 104: Been overweight? - nope 105: Been underweight? - ...yeah 106: Been to a wedding? - many… many 107: Been on the computer for 5 hours straight? - HA plenty of times XD 108: Watched TV for 5 hours straight? - probably 109: Been outside my home country? - no 110: Gotten my heart broken? - yeah 111: Been to a professional sports game? - actually yeah… it was boring 112: Broken a bone? - nope 113: Cut myself? - no, I considered once but immediately decided against it because I know someone close to me who did 114: Been to prom? - nope 115: Been in airplane? - a few times 116: Fly by helicopter? - nope 117: What concerts have I been to? - Oh lots, a bunch of em were when I had a scholarship that allowed me to see concerts for free 118: Had a crush on someone of the same sex? - plenty lol, better question would be had a crush on the opposite sex. Which the answer would be… once 119: Learned another language? - sorta? Not fluently no lol 120: Wore make up? - nope, I don't like stuff on my face like face paints and makeup and stuff 121: Lost my virginity before I was 18? - nope 122: Had oral sex? - nope 123: Dyed my hair? - no, but I want to someday. Like a fun color 124: Voted in a presidential election? - yeah 125: Rode in an ambulance? - nope 126: Had a surgery? - nope 127: Met someone famous? - kinda! 128: Stalked someone on a social network? - a few times... 129: Peed outside? - yeah, hasn't everybody at least once? Right? 130: Been fishing? - once… super boring 131: Helped with charity? - not yet, can't afford to yet lol 132: Been rejected by a crush? - once 133: Broken a mirror? - don't think so 134: What do I want for birthday? - always a difficult question. But definitely want to see my boyfriend :)

[rolandfontana]

Minnesota’s ‘Hybrid Court’ Offers Addicts an Alternative to Jail

Jason Drift’s drug use seemed to increase every time he suffered a death in the family.

A 44-year-old environmental services worker on the Bois Forte Indian Reservation in northern Minnesota, he had begun taking prescription pain pills for knee problems in the early 2000s.

Hydrocodone, Oxycotins and Percocets eased his physical pain.

But then his sister died and he found himself snorting 20-plus of them per day. Pills became hard to come by when users got flagged at pharmacies. So he started spending half his paychecks buying them from low-level dealers in the area.

A blurry two years later, he had turned to snorting meth. In the fall of 2017, after a police officer found marijuana and a gram of meth in his car, he found himself facing imprisonment if convicted of a felony crime of fifth-degree possession of methamphetamine.

But there was an alternative.

He could avoid prison if he were accepted into the 13-month Range Hybrid court program, operated by the Sixth Judicial district in northern Minnesota. The program is designed to provide people accused or convicted of non-violent, felony drug and alcohol related crimes an alternative to traditional probation supervision.

Participants who complete the program successfully can have their charges dropped from the record.

Drift, an enrolled member of the Bois Forte Band of Chippewa in northeastern Minnesota, was accepted as a candidate.

But over a year ago, when he first found himself face to face with Judge Michelle Anderson, who presides over the court in the St. Louis County Courthouse in Virginia, Mn.,—and the team of assistant attorneys, public defenders, probation officers and chemical dependency and mental health experts who told him they were there to help him—he was wary.

“It sounded sketchy,” he remembered. “I didn’t want to be there.”

The Choice: Incarceration or Treatment Court

Judge Anderson has garnered praise from prosecutors and defense attorneys who say it is a proven system that gets adults charged with drug possession and driving under the influence of alcohol out of jails and prisons and into rehabilitation.

The state court administrator for Minnesota Treatment Courts reported last year that 54 percent of statewide participants graduate, while 94 percent receive treatment and 80 percent complete at least one phase of the five-phased program.

New charges and convictions are lower for participants who spend half as much time in prison and two-thirds as much time in jail compared to non-participants.

Since its creation in 2006, the Range Hybrid court served 292 people, of which 67 percent graduated from the program, according to the area court’s recent studies. Eighty-three percent entered the program with a drug felony and 17 percent for a DUI. Fifty-five percent of them were men and 45 percent women. Ages ranged from 19 to 54.

Between 2017 and 2018, the court estimated that 45 percent of the participants were white, 26.21 percent Native American or Alaskan Native; 6.80 percent Latino; 4.85 percent black and 16.5 percent other.

About 91 percent had co-occurring mental health and substance abuse disorders, 70 percent experienced trauma or violence and 65 percent did not have money to meet basic needs.

The program handles a maximum of 50 pre-and post-adjudication cases at a time from Minnesota’s “Iron Range” region, and uses therapeutic principles of addiction programs that have become popular in similar courts across the state of Minnesota and the U.S.

Participants like Drift must agree to weekly treatments with the team.

When asked later about the court proceedings, Drift recalled feeling “a little bit leery” when standing before the judge and hearing her ask him, “How are you today?”

But his feelings have since changed after nearly one year of meeting with her as well as members of the Treatment Court Team, some of whom are open to participants and the HDT about their own experiences in recovery programs.

“When I entered the program, I was still feeling fidgety with meth in my system and the judge could see me because I couldn’t wear my glasses. My pupils looked like two piss holes in snow banks,” Drift said.

“I’d seen a lot of people fail their UAs or have to go to treatment again, but she gives them chances. I think she’s a good judge for the program. She’s fair. She’s honest. She gives you a chance to turn your life around.”

Keep Your Guard Up

Anderson depends upon her legal experience and the Treatment Court Team to uphold the rules of the program and help navigate somewhat contentious issues, such as monitoring the use of medication-assisted treatment, including Suboxone, the most common form of buprenorphine.

Three months ago, the Minnesota Department of Corrections approved a new policy to allow people on parole or supervised release to use medical marijuana. The move has been a hot topic for the judge and her team.

Anderson also depends largely on the court’s two probation officers — Gary Flannigan and Jeff Oja— who increased their typical caseloads to include up to 50 more cases from the treatment court program.

Reflecting on the services, David Holmbeck, a supervisor of Arrowhead Regional Corrections said that the St. Louis County territory covered by his officers, at 6,860 square miles, represents one of the largest counties in the nation.

Because of its vastness, the county is the only one in the state that has chambered judges working in separate courthouses in three cities: Duluth, Hibbing and Virginia.

“Staffing alone is also an issue,” Holmbeck said. “And the caseload numbers are relatively the same, but the involvement with clients has dramatically increased. The level of needs for our clients has increased because of the increase in opioid addiction, meth and mental illness.

“About 25 years ago, it was a DUI offender. Now, we’re running into more people with psychological distress.”

But officers have improved to meet demands.

“We’re better at what we do because we’re incorporating more cognitive-based programming to help reduce recidivism and changing criminal thinking and behaviors,” Holmback explained.

Fifteen years with Arrowhead Regional Corrections has shaped Flannigan into a seasoned officer with enough experience to believe that the “difference between parolees from prison and clients on probation is that instead of being hardened, a lot of the treatment courts participants are desiring to change in life.

“Really it’s an addiction that’s bringing them into the criminal justice system.”

He maintains his outlook despite the Range Hybrid court evolving from taking on low-risk offender to high-risk, high need individuals that might carry longer criminal histories.

“We want people who have serious chemical dependency addictions and are struggling with the disease,” he said. “Some people might opt out and choose jail, but that’s very rare. People are talkers until they’re sitting in jail. In the beginning, a lot of people fight the system. But most of them are thankful down the road.”

During their scheduled and random visits, Flannigan and Oja are seldom paired up together.

Neither of them are permitted to carry firearms. Instead, they arm themselves with bullet-proof vests, pepper spray, radios and handcuffs. Most importantly, they are trained in de-escalation tactics and use of force; yet they are comforted knowing that law enforcement can be called upon when needed.

“We’re mindful and we know we’re not a force like law enforcement is when they kick in doors and make extractions,” Flannigan said. “If we find violations, we make arrests. If someone is extremely violent or belligerent, we are trained to get out of the situation. Our safety is paramount.”

He added: “Do bad things happen? Yes. We’ve had close calls and scary situations. But it’s amazing how rare we run into violent situations.”

Flannigan’s focus in the beginning stages of the program is to establish a rapport with his clients. But trust is difficult when it comes to people often suffering from co-occurring chemical dependency and mental health issues.

“Addicts are some of the most manipulative, tricky, savvy people that I work with,” he said.

“They’re addicted to very powerful drugs and you don’t expect complete 100 percent sobriety. We take a therapeutic approach to relapses and then sanction them if they’re lying or we might put them in jail for a weekend.

“Absconding is common. And when we’ve exhausted every avenue, then they are labeled ‘Not Amenable to Probation’ and are kicked out of the program.”

Why does Flannigan work a job where he always has his guard up?

“People change. We see the transformation in front of our eyes.”

Fatherhood Revisited

During the second phase of the Range Hybrid court program, Drift began Moral Reconation Therapy in addition to attending weekly recovery meetings, bi-weekly court hearings and complying with treatment and supervision.

“I realized then that it’s for the best that I turn my life around and get my kids back in my life,” he said.

After his decision, he was able to secure another job from a supportive group at Fortune Bay Resort and Casino, and worked with a county social worker who helped him figure out the maze of paperwork needed to retain his driver’s license and pay child support again.

She also helped him move out of his brother’s house and into a 12-step house and then into his co-worker’s sober house in Virginia, which is half a block from the courthouse.

“Alex pointed me in the right direction,” he said. “This program is making me more responsible.”

For Drift, the month of July marks nearly one year clean and sober. He owes the court $100 to move into the final phase of the program and sometimes struggles to afford the $1,200 program cost, child support, rent and other bills. But he counts himself lucky to have dodged transportation troubles.

Plus, it beats doing time. If all goes well, he expects to graduate in September.

It was about one year ago when Drift first saw his two youngest daughters again. It had been several years.

“They didn’t barely know me,” he said. “The older one called me Dad. But the younger one didn’t know me well. Now they will call me up to chat with me.”

Drift is now gearing up to celebrate his birthday later this month.

“I reserved a pontoon boat for my two girls on Lake Vermilion so we can have some fun.”

Looking forward, he prays that he can reconnect with his oldest daughter.

Eric Killelea, assistant editor of the Hibbing (Minn.) Daily Tribune, is a 2018-2019 John Jay/Rural Justice Reporting Fellow. This is a condensed and slightly edited version of a story prfoduced for his fellowship reporting project, part of a series examining the state of rural justice in Minnesota. The full story, and other parts of the series, are available here.

Minnesota’s ‘Hybrid Court’ Offers Addicts an Alternative to Jail syndicated from https://immigrationattorneyto.wordpress.com/

[jonboudposts]

What We Never Talk About When We Talk About Race

On 17 August 2017, Communities Secretary Sajid Javid said we need to have a talk in this country about sexual abuse, in the wake of Rotherham Labour MP Sarah Champion standing down from the Shadow Cabinet after her comments that Pakistani men only rape and abuse white girls.

This was in reference to the criminal case in which a group of eighteen men and one woman were jailed for grooming and sexually assaulting young girls in Newcastle.  The routine follows a well-worn structure; vulnerable young ladies not fully on the radar of social services or police, often coming from homes with problems that prevent the functioning of everyday life proceeding easily, are targeted by sexual offenders.

The response has, as ever, been extraordinary for the wrong reasons and equally followed a structure. The routine was to forget any action or circumstance carried out by anyone who is not one of the South Asian men who committed the crimes.  Almost like we were trying to promote racial intolerance and hide the terrible extent that child abuse runs in British society.

Sarah Champion does not to want to discuss all this though.  During an interview on BBC Radio 4 Today programme on 10 August, she merely wanted to use this opportunity to bash the left and scream that we have a ‘problem with Pakistani men raping and abusing white girls’ in this country - apparently she is also concerned about increases in Islamophobia when she discusses this issue.  She went on to whine about a politically-correct conspiracy by management in social services to deny the ethnicity of perpetrators.

Here we go again.

Champion later went on to publish an article saying the same thing in the national hate rag The Sun; all while she was SC Minister for Women and Equalities.

Today the press are trying to make a big thing of her departure but frankly she got off lightly. The only criticism I have for the Labour leadership in this case is they did not fire Champion; instead letting her resign from her Shadow Cabinet position.  She is no better than a hate preacher and has no place in public life.

On the same edition of the Today programme, Lord Ken MacDonald made his now-oft-quoted point that this was ‘a profoundly racist crime’.  This is wrong from the off (prejudiced it might be but not racist) but also plays into the narrative.

Later on in the day we got some sense and balance, courtesy of Woman’s Hour, where Jenny Murray interviewed Laura Seebohm from an organisation called Changing Lives; plus Detective Inspector Claire Wheatley who worked on the Operation Sanctuary. Changing Lives has been involved in helping out women with traumatic and abusive lives for ten years

Laura spoke of the victims sharing treats like previous abuse, poor mental health and sexual violence in their lives; being groomed sometimes from childhood.  Girls and women in these situations often fail to come forward for fear they will not be believed.

DI Wheatley spoke of concerns that had existed over the victim’s behaviour and ‘certain lifestyle characteristics, helping to create for many the feeling they were not victims and making it difficult to identify where abuse was taking place.  It was ‘absolutely the case’ some victims thought these criminals were their boyfriends according to Laura.

So by engaging with victims and support groups, a better understanding for all is achieved, sex offenders stopped and jailed and vulnerable people better empowered. Meanwhile, the media shouts about the criminal’s ethnicity and achieves nothing.

One result of this is to make victim services stronger and more bespoke; including knocking the police into line to take this shit seriously.  DI Wheatley talked of the ‘massive cultural change’ taken place within the police force in understanding sexual exploitation and moves to improve prevention. Funding cuts also made the job more difficult.

Both speakers agreed the case in Newcastle was extreme, not any kind of norm. Ongoing investigations involving white offenders have so far failed to catch media attention in the same way (though no doubt of some perpetrators turn out to be Eastern European they will be all over it).

Woman’s Hour made an effort along with their guests to look at the complex narrative going on, the details of the victim’s lives and what put them in harms way, the ‘reality of life’ as Laura put it of girls and young women known to social services for some time, perhaps through the criminal justice system or homelessness, with the sadly common drug and alcohol dependency thrown in too. In partnership with the police, Changing Lives were able to engage with the girls directly and help bring this case against their abusers, gaining a full understanding of the level of grooming.

It is a terrible judgement of the supposedly flagship news programme Today that they spit out their venomous shite; while Jenny Murray and co show them how it is done an hour later, but that is for another article.

But still, we need to talk about race.  Not avoid it and duck the important questions right?

The biggest problem with any discussion about race in Britain is we never talk about white people. White people are not a race it seems; we are just ‘normal’, average (well most of you are certainly that) and when we commit any crime, our race goes unmentioned.  In the case of child abuse, this is a particularly problematic oversight.

White people have fucked kids for years.  They like fucking their own kids; pre-teens in particular.  Within the institutions: the family; the scouts, sports clubs and public schools. The Catholic Church have fucked many unwanted, vulnerable children, they have taken away children birthed by vulnerable young girls who suffered moral judgement and then for many years taken into a form of slavery.

None of us talk about these crimes in the same way.  The Catholic Church is not seen as some humanity-hating outside force that has come into ‘our’ society from outside to pollute and destroy it.  Nobody tries to pull the crosses from around the necks of any woman walking down the street (thankfully).

Here’s another thing to discuss; the girls who were victimised here had something in common. ‘They were all white’ I hear you cry. They were all vulnerable too.  Why were they vulnerable?  

Lord MacDonald repeatedly referred to the idea of how these girls are seen as ‘trash’ who can be exploited easily. As other abuse scandals have shown, social services and the police were often directly involved in letting down the victims of these terrible crimes, either through lack of resources or on purpose.  We know police were often informed about inappropriate relationships between grown men and teenage girls and just as often this was dismissed.  Parents of victims were told their daughter had made a lifestyle choice; no investigation necessary.  Some were even suggested to be actively working as prostitutes (another group of people treated like worthless shit in Britain).  One officer in Newcastle was eventually fired because he refused to investigate one of the now-jailed perpetrators.  

Then the terrible news breaks and we hear from many quarters (such as known far right extremists) that we ‘knew’ this was happening all along.  Really?  Then why didn’t you do something about it big man?  Where have been the patrols of concerned white men and women in these towns and cities looking out for vulnerable white girls being pulled off the streets and into the clutches of Muslim sex beasts?  

British society sees these victims as trash.  Infamous polls have been taken where alarmingly high amounts of people respond that the way a woman dresses in public can lead to rape.  We pass groups of youths in the streets every day and do not give a rusty fuck what they are doing and who with.  The police are too busy to care.  The social services are fighting for dear life on skeletal budgets cut for political reasons.

I have heard it said that Muslim girls are never treated like this.  Well, some of them are and they suffer as much as anyone, but they also get ignored because they are not politically useful.  ‘Ah but what about the cultural aspect’ I hear some cry.

Let us talk about a cultural aspect here.  Young Muslim girls, as part of cultural practices, can be subjected to scrutiny in ways many (myself included) find invasive, with parents making decisions for them, etc. Again they are not the only group who live like this but it does happen.  One perhaps positive aspect though is parents have more potential to know where their kids are, certainly in the evening or later.

Young people are often vulnerable and like other groups, they are often this way because wider society and it’s institutions do not care about them or fail them in some way. There is no judgment from me towards parents or social workers or anyone else that does a job so hard it makes my head ache thinking about it; but where these failures take place, it produces vulnerability and it is not like the rest of society take up the slack on protection and care.

No doubt the perpetrators of all this vileness look down on their victims, but which sexual predators do not? In fact if you go to many places in the world including countries closer to home, there is often an assumption that English women and girls are ‘easy’.

Most of the people who claim to be worried about this are not.  It does not matter to them, just like everything else they complain about. Most live very materially-easy lives. You only really care about yourselves and the suffering of others is immaterial.  In order to justify this, certain narratives must be told, invented and firmly believed in to make you feel less horrible.

There is no South Asian Muslim sex conspiracy at work here; there are no councils who do not want to face the issue of ‘Muslim rape’ in their local areas and there is no concern for the victims among the far right scum who look to make political capital from thee terrible situations.

So, another group of young girls were subjected to systematic sexual abuse at the hands of an organised gang of sexual predators, able to do so in part due to the low status the victims had in British society; a society where some of the most well known people and highest institutions have been directly involved in terrible acts of sexual abuse too and never been punished.  

Yes Mr Javid, let’s have a good, long talk about sexual abuse in Britain.

‘How long will this go on?’ screams the ever calm and balanced Daily Mail.  As long as Britain does not give a fuck about it’s most vulnerable.