The myth is that 12-step programs and their associated treatment industry thrive simply because Americans love them. In fact, both are substantially built on and maintained by force. This contradiction necessitated the invention of the idea of denial.
In my recent column on the essential similarities between the neurobiological version of the disease theory of addiction and AA’s version, I noted the refusal of distinguished critics of the neurobiological brain disease theory of addiction to sound the alarm on the 12 Steps. One famous anti-neurocentric psychiatrist in particular told me: “Look how many people AA helps!”
Among the problems with this Pollyanna view is that the overwhelming majority of referrals to 12-step treatment and AA are coercive—and as AA’s own 2014 North American membership survey indicates, referrals form the bulk of the fellowship’s membership. Regardless of Americans’ views of AA’s effectiveness, if they believe in freedom and individual agency, these facts ought to trouble them very much indeed.
Coercion into the 12 Steps comes from five main sources: criminal courts, family courts and family services, health care systems, families and employers. After we run through these, we’ll consider the implications for the current political debate.
1. Criminal Courts
Throughout the United States, people are routinely forced to go to AA or 12-step rehab either in order to avoid prison, to get out of prison, or to maintain or to restore their driver’s licenses.
While it is impossible to compare precisely the prevalence of each form of coercion, DUI and other criminal and administrative court orders that people attend AA are ubiquitous and far-reaching.
According to AA’s figures (of course, these don’t include NA and the other 12-step groups), of 1,383,848 US and Canada members in January 2016, 12 percent were introduced by the judicial system, 2 percent were introduced inside a correctional facility, and 32 percent by treatment facilities. But these figures vastly understate the extent to which courts of all descriptions routinely require AA and or treatment attendance—including, along with drug courts, municipal and family courts.
According to SAMHSA’s now quite dated DASIS report*—well before the present heyday of drug courts—the criminal justice system was the principal source of referral for 36 percent of all treatment admissions in 2002 alone (655,000 referrals out of a total of 1.9 million admissions).
So even by dated and conservative estimates, hundreds of thousands of Americans per year are forced into AA and 12-step-oriented treatment. Yet a steady stream of legal decisions confirms that such court-ordered treatment is illegal.
Every Federal Circuit Court (federal appeals court) and state supreme court that has ruled on such coercion has declared that the 12 Steps are religious in nature, and that it violates a parolee’s or probationer’s First Amendment rights for a court to require AA attendance when the 12-step philosophy violates the individual’s belief system. (Here is a detailed list of these cases provided by Claire Saenz, Esq., on behalf of SMART Recovery.)
The Ninth Circuit (federal appeals) Court upped the ante on such government coercion in the case of Ricky Inouye, after the Hawaiian parole board and Inouye’s parole officer required Inouye to attend AA when Inouye, a Buddhist, had objected to participating in AA in prison. Both the Hawaiian Paroling Authority and Inouye’s parole officer were held liable in 2007 for violating Inouye’s civil rights, even though government actors ordinarily have legal immunity.
I have been tracking these cases for some time (I was an attorney) with Archie Brodsky and Charles Bufe, as represented by our 2001 book, Resisting 12-Step Coercion. That year, Archie and I reviewed coerced 12-step treatment for the libertarian magazine Reason, based on the original Southern District of New York Federal Court’s decision in the case of Robert Warner, an atheist who was ”sentenced” to AA for his DUIs.
That court—like every court that has assessed the AA program since—declared that AA and the 12 Steps are essentially religious, no matter how loudly AA advocates proclaim that their “higher power” is a door knob, since “God” or an equivalent pronoun appears in a majority of the Steps.
Given such liability, you might expect parole authorities and agents to stand up and take notice. You would be wrong. Take the case of Barry Hazle in California. Hazle, despite his constant objections as an atheist, was forced to attend AA. (His conviction was for methamphetamine possession, for which he would no longer be imprisoned due to California’s Proposition 47, Reduced Penalties for Some Crimes Initiative, including possession of most illegal drugs, which was passed in 2014.)
California falls within the same Federal Ninth Circuit Court of Appeals jurisdiction as Hawaii. Yet the California Department of Corrections simply ignored the Inouye decision in its treatment of Hazle and other inmates.
Although Hazle won his original lawsuit on this basis, the trial court provided no damages for the department’s violation of his civil rights. However, the Ninth Circuit, just as it had with Inouye, ruled that the lower court must award damages to Hazle, including possibly punitive damages. Ultimately, the State of California and the 12-step treatment program were ordered in 2014 to pay him nearly $2 million.
Nonetheless, there can be no doubt that in states outside the Ninth Circuit, parolees and probationers are regularly sentenced or obligated to attend AA. Even for California, I see no reference to the case or protocols for handling AA referrals at the California Department of Corrections website. When I emailed the department’s director of external affairs about his department’s new rules, he referred me to a colleague who has yet to send me this information. It seems that California’s regulations restricting coercion into 12-step programs, if they really do exist, are extraordinarily difficult to access.
Here is one example from another state. A woman posted this on my Facebook page last week:
Drug court has taught me to not ask questions, and to shove my opinions and feelings somewhere deep inside—and to smile and do whatever it takes to get through this.I’m halfway through a year-long drug court in Dallas, TX. I’m court-ordered to attend four AA meetings a week, and I am also mandated to actively have a sponsor and “work” the 12 steps. There is an AA meeting close to where I live, hence my attending AA, even though I have a heroin charge.
Stanton Peele, I wish I could take you to court with me! Last week the Judge told us that if the 12-steps didn’t keep us sober, we were “defective.”
Perhaps you didn’t believe that in a major American city in 2016, a court—nay, a drug court—could force people into AA against their belief system, with no sense that this was illegal, inappropriate, or ignorant of other options?
In fact, it remains standard practice.
(I offered to write a letter to this woman’s court and parole officer asking that, if they allowed no alternatives to AA, they state that policy explicitly in a written response. In the past, I have often gained permission for finding alternatives that way.)
2. Family Court and Family Services
Another major source for AA and treatment referrals are state family courts and family service divisions. I worked as a public defender in the Morris County, NJ family court, where the state regularly forced parents into AA to maintain or regain child custody. (Teens also were regularly sent to AA, although that mainly occurred in drug and traffic courts.)
I also represented parents like Eloise in divorce proceedings. Eloise worked in bars as a young woman, where she usually drank all night. She was put in treatment in her early 20s, went to AA and lived in a sober house. She went back to college, then to business school where she excelled—eventually getting a high-powered job in the financial industry.
Meanwhile, she married her older AA boyfriend and they had a child. Eloise eventually quit AA and started going out for drinks with her coworkers. This caused a split in her marriage, with her husband seeking custody of their child.
The Morris County district court family division judge wanted Eloise to have treatment, which her husband demanded involve AA and the county’s intensive 12-step outpatient program. I gained the court’s acceptance for alternative treatment by harm reduction psychotherapist Andrew Tatarsky in New York, where Eloise worked, and she retained joint custody of her son.
No one keeps track of AA referrals like the one Eloise would have received. Why would they? Such referrals are so customary and commonplace that they rarely raise an eyebrow. Although I hesitate to offer a number, the family court where I practiced was an extremely active court agency, and I have no doubt that these referrals substantially inflate the numbers on AA and treatment rolls.
3 & 4. Medical Services and Family
I received this email recently:
I have a sister who has cirrhosis with Hep C and needs a liver transplant. I have another sister who is an AA fanatic. [Sister 1] is a patient at the [—–] Liver Transplant Center. Her team includes an alcohol/drug counselor. This counselor informed [Sis. 1] she must attend 3-5 AA meetings a week as a condition for a liver transplant.
After she got out of the hospital last year, she went to 12-step rehab and outpatient AA meetings. She was never informed of other types of support groups. She stated she did not like the meetings, felt like it was a cult and that it made her want to drink afterwards. She is also an atheist. Since she found out about her liver cirrhosis one year ago, she has never had a drink or an urge to drink. Despite this she is being coerced into AA.
[Sister 2] is an AA fanatic who has a lot of control issues. During [Sis. 1]’s inpatient treatment, [Sis. 2] was calling the counselor telling her what to do. [Sis. 2] contacted the current counselor at —– Liver Transplant Center and told him that since [Sis. 1] is resistant to AA she is a high relapse risk.
This counselor has been telling [Sis. 1] things like “what are you going to do to maintain your sobriety,” and “you need to work at your sobriety.” [Sis. 2] told [Sis. 1] that “you need to change your attitude, if you don’t, they will take you off the transplant list.” She says, “you don’t take your Sobriety seriously.”
I’m afraid that they will put more pressure on [Sis. 1] to do things she doesn’t want to do. Already, [Sis. 1] has to provide the counselor with phone numbers of AA members. What if these members report things like “she’s not working the program enough,” or “she’s in denial because she thinks she quit drinking on her own.” [Sis. 1] WAS able to quit on her own, but AA people don’t want to hear that.
I’m afraid things will spiral out of control if they perceive my sister is “not working on her sobriety” because she really doesn’t buy into the whole AA thing. The counselor could rate her a high relapse risk and take her off the transplant list.
I put the woman in touch with a local harm reduction activist who is involved in hospital programs in her city. But the practices the email writer describes are standard for liver transplants around the country. The belief is: How else could the providers make sure that people stay off alcohol?
The situation around liver transplants is just an extreme example of how both medical providers and families—quite often working together—commonly coerce people into AA membership and 12-step treatment. Refusing to provide medical care is the usual lever for doctors; denial of family residence or acceptance (aka “tough love”) is the typical threat from families.
According to the AA survey, 27 percent of North American members were introduced by family, and 17 percent by medical or mental health professionals. That again would add up to hundreds of thousands. While again it’s impossible to say just how many of them were coerced, it’s clear that the number is significant.
Workplace Employee Assistance Programs are nearly always staffed by “recovering alcoholics“ who direct their fellow employees strictly to AA and 12-step treatment. According to AA”s survey, 4 percent of AA members were referred there by an “employer or fellow worker.” This is surely a gross underestimate.
As a private attorney, I was actively involved in a series of such cases with impaired physician programs, where doctors were sent for a variety of reasons (DUIs, self-medication, complaints by a divorcing spouse of heavy drinking), after which they were sent to an approved rehab (which in my experience was always 12-step-based), and then forced to sign a contract with their medical board to abstain from alcohol and drugs and to attend AA and work with a sponsor for a number of years—all in order to continue to practice medicine.
I worked with other employers and federal licensing groups including New York’s Metropolitan Transportation Authority (MTA) and the Federal Aviation Association (FAA). My goal was usually to allow the doctor or federally licensed or transportation worker to seek alternative treatments. I generally succeeded with the medical boards; the FAA, however, was completely intransigent and never negotiated with me or with my clients.
As to the MTA, I worked with one woman who displayed a .2 BAL at a random test after drinking a beer at lunch (she was a small woman). This is well short of intoxication, but is a prohibited level for transportation workers. (At Rutgers Law School, I wrote an article with Professor Doug Husak about how the Supreme Court relied on hysteria in order to justify random testing of transportation workers.)
My client was sent to 12-step treatment, then required to report to the MTA’s EAP program to be tested weekly and where, since she refused to declare she was an alcoholic, the recovering EAP supervisors never certified her successful completion of the program. She thus operated under their regime for six-years, until she maxed out her “sentence.”
I argued her case before a three-judge panel in the Federal Second Circuit Court of Appeals in New York. I couldn’t make the judges, who were laughing, understand that the woman wasn’t an alcoholic.
When they asked the MTA attorney how long the woman had been out of work, the attorney said she had been working all along as a train router, the most safety-sensitive job in the system, and had never tested anything but .0 BAL at work for six years.
No one considered her an “alcoholic” but the EAP recovery nuts, who unfortunately controlled her life.
The Real Treatment Gap
We must realize that the American 12-step-treatment monolith, thought to be so facilitative and appealing to millions of people—and I have often lamented its cultural dominance—couldn’t operate to anything like its current extent without constant threats of denial or withdrawal of legal freedom, of custody of children, of licensure or employment, of medical care, of family support.
Admittedly, AA and the 12-step rehab industry also have many voluntary participants. But the 12-step monolith could not exist as a fundamental institution in American society in a truly voluntary environment.
Am I exaggerating? On the contrary. Consider the SAMHSA data and AA survey figures, extrapolate them over years and include criminal and civil courts, family agencies, medical boards and other employee assistance programs, medical providers, disgruntled families, et al. Saying that hundreds of thousands of Americans have lost autonomy over their identities and lives in this way is wildly insufficient. The true figure is in the millions.
Finally, this discussion leads us to the current virulent political debate over health care. Republicans want to repeal Obamacare. One of the major arguments against repeal is the loss of its mandate for mental health and substance misuse coverage. In this view, there is a tremendous current unmet need—the addiction “treatment gap”—that will be exacerbated by repeal.
I oppose repeal of the Affordable Care Act. But not because I want to force insurers to provide more of the traditional 12-step addiction care for which an inflated, artificial marketplace already exists.
The real treatment gap is something different: The US needs to address the gap in the usefulness and appeal of available addiction services for people who could be helped by effective public health measures—a gap I have shown that the Surgeon General et al. don’t begin to comprehend.
* The DASIS Report: Substance Abuse Treatment Admissions Referred by the Criminal Justice System: 2002. Washington, DC: Office of Applied Studies, SAMHSA, July 30, 2004.
So much for ‘originalism’ — Trump’s impeachment defense is a constitutional dumpster fire
In the absence of any exculpatory evidence, Donald Trump's defense against impeachment increasingly relies on arguments that fly directly in the face of the Constitution. Trump himself set the standard last July with his grandiose claim that "Article II says I can do anything I want," which encountered no serious pushback from his fellow Republicans.
This article first appeared in Salon.
Any normal president could find some defense attorneys who aren’t clowns and grifters
Welcome to another edition of What Fresh Hell?, Raw Story’s roundup of news items that might have become controversies under another regime, but got buried – or were at least under-appreciated – due to the daily firehose of political pratfalls, unhinged tweet storms and other sundry embarrassments coming out of the current White House.
Donald Trump's penchant for telling reporters about his crimes doesn't leave his legal defense team a lot to work with. In the first week of his Senate trial, they've pounded the desk and rended their garments over how mean their Democrats opponents are toward their client. But the worst is yet to come--WaPo reports that during the next phase of the proceedings, Trump's legal team will offer "a scorched-earth defense of President Trump in the impeachment trial, mounting a politically charged case aimed more at swaying American voters than GOP senators — and damaging Trump’s possible 2020 opponent, Joe Biden."
White House attorneys’ defense of Trump debunked and discredited by nearly everyone with readily available facts
After three days of House impeachment managers’ brilliant prosecution of President Donald Trump – and “prebuttal” of the arguments the president’s team was expected to make – White House attorneys Saturday morning began their defense of President Trump.
It’s not going well.
Deputy White House Counsel Mike Purpura (photo) has been making the majority of today’s arguments – they have decided that not enough people will be watching on TV so Saturday’s defense will last not eight but just two hours.