Addressing Addictions in Court: Rethinking Recovery and Relapse

By: Hon. K. Michael Mayes

Addressing Addictions in Court: Rethinking Recovery and Relapse

Editor’s Note: This is the third of a three-part series on Addiction in Court.

Truth #8: A judge may be the last reliable source of positive intervention. If we are going to succeed at presiding over addicts at the level of their disorder, we must be willing to evaluate them and “consequence” them at that level. So let’s discuss addiction, recovery and relapse at the street level.

By the time an addict hits court they probably have used for awhile, and they probably have tried to stop using on their own more than once. Every now and then, deep down where it still matters and there is still a conscience, the addict knows that using is harmful and they realize their world is spinning out of control. They have tried to quit but couldn’t and they slowly but surely returned to alcohol or their drug of choice. Their family decided to show tough love by giving him “no slack,” often ragging him with repetitive “should have’s” and “don’ts.” When the addict is unable to stop using, he shames himself. As a result, he builds up a tremendous amount of unresolved guilt that cycles him back and forth between abusing and stopping, an addictive thinking merry go round. Add to that the cravings and subconscious triggers that relentlessly bombard the addict’s mind and you have the formula for a never ending addiction cycle that ultimately destroys all involved. The uneducated addict is, in essence, an unarmed warrior. The soldiers opposing his recovery are preexisting personality traits and organic brain changes that incite or exacerbate the effects of his abuse of alcohol and drugs. Addicts have little knowledge to recognize, much less any ability to fight, the addictive hazards that will fruition into the addict’s return to alcohol or drugs. To be certain, the addict must learn what his thinking errors are and how to address them with support from non‐enabling professionals, friends and loved ones. This involves acquiring new thinking skills that come from a studious approach to recognizing his personal triggers and learning how to confront them in a healthy way. Stressors like worry, boredom, being overly sensitive, fear, and others, that non addicts handle daily, are the downfall for an addict. They can only be coped with if the addict is taught to recognize them as precursors to their using and the addict is taught new ways to proficiently address them. This is not an easy task, but a successful recovery depends on it.

Many times, judges are the last reliable source of positive intervention that can encourage or require treatment and ultimately save an addict’s life. Since addiction creates a sense of denial that prevents the addict from acknowledging his disorder, an arrest and/or hearing with a judge may be the only chance such a defendant will ever seek help or be required to obtain treatment. When a defendant refuses treatment or is equivocal about recovery, judges have the ability to persuade or order him to start his recovery journey (1) through jail time that includes treatment and groups in the jail, (2) through inpatient placement or (3) through some other mandated treatment or recovery program.i However the addict’s journey begins, it must include a specific recovery program or it is no journey at all. That is a significant reason why time in jail with nothing more than time to “think about it” may help clear a docket, but it does very little to help the defendant start a successful recovery. Since the changes in an addict’s thinking and the stability of an addict’s sobriety is entirely dependent on the addict’s work in his recovery, simply sleeping off a drunken spree or a drug binge creates little foundation for a sustained recovery that can prevent a future relapse.

A judge has many options when intervening with a defendant who has a substance abuse disorder or an addictive lifestyle. In the 410th District Court, we intervene regularly with substance abusing defendants that are in our three Recovery Court Programs, as well as defendants that are not, by encouraging or ordering them to read and/or write on selective books that discuss addiction and addictive thinking patterns, through substance abuse classes that we started in our jail, by utilizing various outside private and public entities that provide long and short term inpatient treatment and aftercare treatment, and by utilizing professionals who provide outpatient treatment, individual counseling, group counseling, family counseling, anger management, stress management, etc.ii These outside placements and clinicians supplement in a significant way the counseling and support services supplied by our probation department and its overworked and underpaid staff.iii We even encourage the defendant’s family members to read books and attend classes and counseling on such subjects as codependencyiv and unhealthy enabling. All of these interventions provide a framework for the eventual recovery process that we hope a defendant engages.

ADDRESSING ADDICTIONS must make sense in the world of the addict

Because our entire approach to addiction must make sense in the world of the addict, treating “addictive thinking” defendants the same as we treat “criminal thinking” defendants is, quite frankly, wrong. In drug and alcohol cases, application of penal laws must be adapted to exact punishment and enforce treatment in ways that coincide with the addict’s disease. If we do this, we will experience a reduction in the recidivism rates that currently defeat our objectives, waste our money and perpetuate societal problems.v

In this vein, we Judges must distinguish between the “use of drugs” (which is the penal offense) and the “addictive thinking” that leads to the use of drugs (which is the disease or mental disorder). They are not the same. If they were, then an overnight or weekend jail stay (without therapeutic intervention) might be the answer whenever a defendant drinks or uses. In that case, a punitive incarceration can be justified for the breach of the applicable law. But when there is an addictive use of substances that is preceded by a relapse in thinking (or what I have called a “relapse mode”), incarceration alone does little to satisfy the societal expectations of either punishing or rehabilitating the addicted criminal. In such a case, a jail stay without any intervention takes the defendant off the streets but it offers little else in resolving the addiction cycle.

Addictive use of alcohol or drugs is different than a typical case of, for example, burglary, shoplifting, criminal mischief or assault. In a typical burglary or assault (that is not drug induced) the criminal thinker did not succumb to addictive triggers that subconsciously pushed his actions. He may have been driven by motives like greed and selfishness but he did not experience true addictive triggers like low self‐esteem, denial, narcissism, manipulative thinking, stress, perfectionism, guilt, shame and ultra sensitivity that unwittingly drive the substance abuser’s behavior. Moreover, the criminal thinker generally injures others, while the addict generally only harms

Notice I did not say “addressing addiction must make sense to the addict,” but rather “addressing addiction must make sense in the world of the addict.” There is a significant difference in the two statements. Addicts think addictively, of course, and trying to convince them of the merits of any sentencing or treatment regimen during a time of their actively using is a waste of time. Similarly, asking a defendant who has been arrested or jailed why he took the drug or why he drank is a useless exercise. They don’t know. Such questions often don’t make sense to them when they are in fact clean but obsessed with their addictive thinking. The complexities of addiction, recovery and relapse require much more than a casual question‐answer with the inmate after he has used, when he has been jailed for using, or when he is making decisions that are indicative of a relapse in addictive thinking.

A proper judicial approach to these defendants must make sense in the world to which they have succumbed by addressing in a positive and therapeutic way the underlying thinking that incites and exacerbates their ultimate abuse of alcohol and drugs. If we do not attack the defendant’s relapse at its origination, in the thinking that has deteriorated, then we miss the best opportunity to halt the relapse from escalating into the repeated abuse of substances. By way of example, when I have a defendant before me at the bench, I never ask them “why did you use drugs/alcohol or why did you do it?” But I have asked them to walk me through their thinking relapse mode, minute by minute, step by step, pausing the discussion frequently to discuss or point out the multiple triggers that prompted the addictive thinking errors which gave birth to specific choices that produced and sustained the defendant’s relapse. This is time consuming, yes, but it is vital for the defendant to fully understand these matters so he can comprehend how he ended up where he now is. The defendant probably will never before have engaged in this type of in depth self examination and critical analysis of his addiction.

Simply punishing the abuser every time he relapses or ignoring our ability to intervene in a positive way is a waste of judicial effort since it does not address, much less treat, the addictive thought process that preceded the actual abuse. It offers the addict nothing more than what they had when they attempted to quit on their own: remorse, shame, guilt and the never ending merry go round of unremitting relapse and failed recoveries. If we simply reinforce that process, we are part of the problem and not part of the solution.


Truth #9: An addict’s recovery and ultimate sobriety is never truly free of relapse potential because, as we have said, relapse is nothing more than the mirror reflection of a recovery going bad. It should be painfully obvious how difficult the work of recovery is for an addict. The same life events and stressors that the addict successfully coped with yesterday may trigger the addict’s inability to handle life in a healthy way tomorrow. This may happen because their recovery has lost its passion or has become impaired. Consistently making choices and decisions that result in a lifestyle of sober thinking is a difficult daily challenge for the addict.

Truth #10: This is the challenge of recovery: the addict is never, ever fully recovered. If they ever think that they are, then they are already in relapse mode. As a result of the conundrum of recovery and relapse, the only real question for any addict is this: which way am I traveling on my journey today, up the recovery road or down the relapse slope? The answer is one or the other because an addict cannot stand still on their recovery journey. Standing still in recovery is like walking up a down escalator; the addict either keeps walking upward or they are moving downward. We Judges usually see defendants following their total relapse into abusing drugs or alcohol. Most are willing to dig in and try again, especially if the Judge tells them, “I will not give up on you unless you give up on yourself.”vii Amazingly, a few do not desire to continue the arduous work of recovery but most do.viii Consider Steven, a 45 year old who was in jail and continued to deny his abuse of alcohol even after testing positive in a urinalysis:

He seems to have lost all interest. He claimed that the alcohol was not placed on the food while cooking it but was added on the BBQ sauce while serving it. He recognized that it was still wrong and he should have left the area. He is not angry but now feels that perhaps doing his time is best for him. He is a bit down but knows he has punishment coming. He explained that he has over six months of time built up and perhaps he will not have to serve all that long even if you max him out. He filed for bankruptcy, has no job and does not want to start the program all over again. (notes from pre sentence investigation).

Steven had relapsed and drank alcohol. His story had been all over the map as to how his urine had tested positive. I knew he had drunk, he knew he had drunk, and the probation officer and counselor knew he had drunk. He had relapsed before, had admitted the truth and had restarted his recovery. But admitting his relapse this time was something he wouldn’t do because he had decided that he was through with treatment. Steve had a wife and family; they wanted him to continue working the program and said so in open court. He declined and was sentenced to prison. It is very unlikely that Steven will ever succeed at a recovery or will ever sustain a sober lifestyle. He was sliding rapidly down a steep relapse slope because he gave up on himself.

Compare Tracy (a previous graduate from one of our Recovery Courts) who was in jail following a very dangerous relapse with cocaine:

He looked awful (he is depressed probably brought upon by the drug abuse) but expressed great relief to be in jail and "being safe". Things spiraled down badly when he met up with his brother. I gave him a good chewing, gave him two books to read and some additional writing assignments. Then I allowed him some time to talk and cry and he did! He needs an extended period of time in jail. He needs to detoxify and return to his senses. I will see him in a couple of weeks and will be sending you and the PO his writing assignments. This was a close call! (notes of counselor)
Tracy wanted help again. Once jailed, Tracy recognized his need to restart his recovery and grow from his relapse.9 We gave him that new opportunity with a reentry into our Recovery Court Program. Although he had relapsed, Tracy succeeded in returning to a recovery and sobriety, if for no other reason than he believed in the process of recovery and that he was worth it. He returned to his climb up the recovery road, slowly for sure, but consistently building strength that fed upon itself in a positive way.


Truth #11: Understanding addiction, recovery and relapse gives judges the ability to save lives, but it also places on us a responsibility that is greater than many of us expected or desire. This knowledge and responsibility challenge us to answer several questions. Why would we as judges ever ignore an opportunity to intervene in a defendant’s life at a time when he or she is prone to seek and accept positive help? Why would we as judges ever refuse to order or support the teaching of healthy thinking skills? Why would we as judges ever refuse to order or support the teaching of strong recovery tools?10

Yes, our profession is underpaid and overworked. We are attacked by media and others as too liberal, too conservative, too much of whatever the complaint of the day seems to be. Except for adoptions, marriages and swearing in of new attorneys, our daily dockets are filled with never ending disputes, arguments and battles. Despite this, and in fact because of this, we have opportunities to change lives and save lives. Is there any reason why we should not do so whenever we can and as soon as we can?

Addicts do not deserve to avoid consequences for their actions, but they do need help. They need our help. Yes, there are some defendants that have worn out their welcome and thrown our generosity back at us, and others would rather die than face their addiction honestly. And while some may choose prison over the hard work of recovery, I propose that we intervene when we are able to provide them an opportunity for recovery. Truth #12: If we encourage, or yes even force, defendants to face their addiction head on at a time when they otherwise would not do so, we have done something very good for them, our profession and our society as a whole.

i Mayes, Recovery Courts and Character Changes (July 2006), characterchanges.pdf ii I preside over two Adult and one Juvenile Recovery Court Programs (we do not call them “Drug Courts”). Only one of the Recovery Court Programs is funded by federal or state money so our regular probation staffs handle the other two caseloads with me. We generally employ these treatment modalities during a defendant’s probation, but they also have been considered while a defendant is on conditions of bond. iii We have located many providers over the years simply by putting out the word that we needed help. Many of these outside programs and professionals provide services free to the defendant, or at reduced cost, as they are sustained through their own public or private funding. Some of the inpatient programs even allow a mother to bring her child with her. iv E.g., Beattie, Codependent No More: How to Stop Controlling Others and Start Caring for Yourself, (1992). v In our adult SAP Recovery Court Program (not funded by state or federal money), our recidivism rate for graduates is 1.5%. cle2.pdf vi We know this is not always true, as when a drunk driver injures another in a wreck. Those cases deserve their own consequences in sentencing, but for purposes of understanding Aaddictive thinking@ this dichotomy is very true. vii I often use this comment in discussions with defendants facing revocation for relapsing on drugs or alcohol. I even tell defendants: “You make the call: prison or more treatment.” If they are willing to keep working I invariably continue working with them. If they have had enough because “it is too hard being on probation,” and they ask me to sentence them to prison (yes, this happens) I will, though not always, give them their wish. When defendants request prison over the hard work of recovery, a Judge must decide which ones are simply in denial and need to be forced into treatment and which should be incarcerated. viii We also know some will lie to us just to be released from jail, or simply to be left alone so they can continue their abuse. This is the most difficult challenge facing a Judge, deciding when a defendant really is ready to start a recovery and when he is simply manipulating. IX It is important that an addict not believe his relapse means he must start over at the beginning. Relapse should be viewed as a misstep that allows the addict to pick himself up, dust off, and continue forward with all the knowledge and skills he has learned throughout his recovery. Compare Twerski, Addictive Thinking, Chapter 21. XAs I have mentioned, we have substance abuse classes in our jail that are taught by counselors. I always provide a relapsed Defendant the opportunity to take these classes to begin or restart a recovery while in jail.