Professor Evelyn Malavé’s article, “Treatment Sentences“, was just published in the BYU Law Review. The Article uses a critical disability framework to analyze treatment-based sentences in the criminal legal system. Here is an abstract:

One of the most common mandates of a non-incarceratory sentence is to submit to treatment. Across the criminal legal system, from problem-solving courts to probation, millions of defendants sentenced to non-incarceratory sentences—including people not diagnosed with a substance abuse disorder—are required to attend drug treatment programs. After decades of policies that criminalized drug use, non-incarceratory sentences that match people with treatment may appear to be a step forward—or at least not the most pressing problem.

But criminal law scholarship has not fully reckoned with the harms of treatment sentences, including the harms of mandated treatment itself. Analysis of treatment sentences has also been fragmented, as scholars have separately focused on problem-solving courts, which mete out a minority of treatment sentences, and criminal supervision.

This Article is the first to analyze treatment sentences as a coherent category that demands scrutiny. Weaving together social science studies and critical disability scholarship, the Article argues that treatment sentences do not function to distribute health care services as much as they function to enforce the boundaries of normalcy.

In court-mandated treatment programs, staff evaluate participants not on their ability to achieve sobriety but rather on their ability to comply with certain norms of productivity and respectability. Similarly, in the criminal courtroom, criminal court actors refer defendants to treatment who may lack a diagnosis for substance use disorder but who they perceive as needing the structure and control treatment programs offer. Through these layers of unchecked discretion, treatment sentences police the boundaries of normalcy—deeming those who fall outside as in the throes of addiction—thus reproducing both racism and ableism.

These systemic harms reverberate because criminal court actors rely on treatment sentence outcomes to sort defendants for greater or lesser punishment. Defendants with negative treatment outcomes are sorted for resentencing and marked for exclusion from treatment sentences in their future interactions with the criminal legal system. At the other end, defendants with positive outcomes are sorted for less punishment. Ultimately, this Article argues that a full understanding of the harms of treatment sentences is necessary for policymakers and scholars who seek to use treatment as a foundation for reform.