Some drug court judges are diverting nonviolent defendants to recovery programs that claim they provide much-needed treatment to people who would otherwise end up in jail. But those sent to the programs say what they really provide is forced, unpaid labor to for-profit companies. (iStock.com/SDI Productions)
Brad McGahey had been suctioning guts out of slaughtered chickens and arranging carcasses on a moving conveyor belt for about three months when his hand got stuck in that belt.
"The machine smashed his hand, breaking several bones and nearly severing a tendon in his wrist," according to court documents. "When he finally yanked his wrist free, his hand was bent completely backward."
It may not seem unusual for someone with a job at a chicken processing plant to suffer a gruesome injury like this. But working at the plant wasn't McGahey's job — it was his sentence.
McGahey had been ordered by a judge to an addiction treatment center called Christian Alcoholics & Addicts in Recovery, or CAAIR, based in Jay, Oklahoma, as "his only alternative to serving prison time" after he violated the terms of his probation for receiving stolen property, according to a lawsuit he and others filed against CAAIR.
But instead of receiving that treatment, McGahey and other residents were forced to work in taxing and dangerous jobs for private, for-profit companies, their complaint says. When they were injured, they were threatened with incarceration if they didn't keep working. And they were "never paid a dime," according to the amended complaint filed in July.
McGahey's case is just one of a spate of recent lawsuits against similar facilities, one of which has already resulted in a more than $1 million judgment in favor of the plaintiffs in April, with a federal judge saying the facilities are violating labor laws for their own financial gain.
But the programs — and the judges sending defendants to them — insist that unpaid labor is an important part of the treatment they provide, teaching residents discipline and work ethic in an effort to keep them out of jail.
That treatment can be called something else, says Dan Smolen of Smolen & Roytman, an attorney leading the class action against CAAIR. It's "also known as human trafficking."
In recent years, many states have adopted a drug court model, sending those accused of usually nonviolent or drug crimes to treatment programs rather than jail, says Timothy A. Steadman of Holleman & Associates PA, one of the lead attorneys in a different class action against Drug and Alcohol Recovery Program, or DARP, which operates two 60-bed facilities in Decatur, Arkansas.
Between 2009 and 2014, the number of drug courts increased in three-quarters of U.S. states, while one-quarter added at least 20 new drug courts, according to a 2016 report from the National Drug Court Institute.
And while the programs these drug courts sentence defendants to often refer to themselves as nonprofit addiction treatment centers, a spate of lawsuits like the ones against DARP and CAAIR insist some of them offer little, if any, treatment.
Rather, they are labor camps, their former residents say, forcing those who enroll to do grueling work for for-profit companies while keeping the residents' pay for themselves. It's a practice Steadman and other lawyers say is pervasive and increasing, particularly in the South.
Steadman's clients, for instance, were sent to DARP by drug courts in Arkansas and Oklahoma. But instead of receiving treatment, they were made to work at a company called Hendren Plastics, where they manufactured boat floats, he says.
"What the witnesses said in our case is that there was very little outside of work," Steadman told Law360. "The focus of the program was really that work was the main component."
His clients sued DARP and Hendren in Arkansas federal court in 2018, accusing them of wage and overtime violations under the Arkansas Minimum Wage Act.
Those sent by drug courts to CAAIR, which has capacity for 200 residents in three dorms, were made to work 40 to 70 hours a week hanging chickens and cleaning chicken guts for a company called Simmons Foods, says Smolen, who filed a class action accusing CAAIR and Simmons of human trafficking and violating the Fair Labor Standards Act, among other claims.
Meanwhile, residents at Texas' Cenikor Foundation, which boasts 13 facilities throughout that state and Louisiana, worked at oil companies and university dining services, says Zachary C. Flowerree of Werman Salas PC, one of the attorneys involved in another class action filed over wage claims in 2019 against Cenikor.
None of the residents at DARP, CAAIR or Cenikor were ever paid for their work, according to their lawyers.
"If these folks were actually incarcerated, if they were in prison, there's a federal law that would prevent them going to work for for-profit companies manufacturing boat floats," Steadman says. "But because these folks aren't really in prison, they just kind of have what I would call a quasi-status, they're in this gray area, and that's a situation that's rampant for abuse."
'Rehabilitation' vs. 'Recovery'
DARP insists it's not abusing its residents by making them work without pay.
DARP is a court-approved, private recovery program that receives no government funds or grant money and is "solely financed by the labor of the people who participate," says William B. Putman, an attorney who represents DARP. The residents' wages are assigned to DARP to pay for overhead like staff, meals and transportation.
In return, residents are treated through a combination of faith-based and 12-step addiction approaches with a concentration on developing work ethic and responsibility that will help them remain sober when they leave the program, Putman says.
That arrangement means those who participate in addiction treatment programs like DARP are not employees, according to Putman, and do not need to be paid. He adds that DARP residents sign a waiver of employment relationship when they enter the program.
"There are a lot of very significant material differences between employees as envisioned by the Fair Labor Standards Act and participants in a court-ordered drug and alcohol recovery program," he says.
But the issue isn't so clear-cut, according to Noah Zatz, a professor specializing in labor law at UCLA School of Law. As long as the programs are farming out participants to businesses where they perform tasks comparable to other employees and the facility is getting paid in exchange, that creates an employment relationship, he says.
In addition to potentially violating conventional wage and hour statutes, these arrangements "raise serious questions about involuntary servitude" under the 13th Amendment, he says.
"The only thing that muddies the water is the idea that the workers are supposedly getting a therapeutic benefit from the work or any associated programming," Zatz says. "That's questionable in many of these programs."
What counseling the centers provide takes place only in occasional, 12-step group sessions led by the residents themselves, lawyers for those residents say. DARP can't offer drug treatment because it is not licensed to do so by the state of Arkansas, according to Steadman.
CAAIR is also not certified by Oklahoma and has no certified addiction counselors on its staff, Smolen says. And while Cenikor does employ addiction counselors, those counselors are usually on duty during the day, when the facility's residents are busy working, Flowerree points out.
"Cenikor, of course, claims that, 'Well, you're getting addiction treatment in exchange for your work.' But you know, they work so much, the residents, they have very little time for any treatment," Flowerree says. So there isn't treatment, "unless you just think working a lot of hours is addiction treatment."
It's not, according to William R. Miller, an emeritus distinguished professor at the University of New Mexico who researches behavioral treatments for substance use disorders. Requiring patients to work is not an evidence-based component of addiction treatment, he says, and there is no proof programs that require their residents to work have any success.
"Imagine a similar requirement in treating other chronic illnesses," he says.
Not all treatment centers defendants are sentenced to by drug courts operate this way. In the National Association of Drug Court Professionals' best practice standards, the organization says participants should meet individually with clinical case managers, facilities should use treatments that are documented in manuals, and treatment providers should be "licensed or certified to deliver substance use disorder treatment."
But DARP, CAAIR and Cenikor all seem to be falling far short of those standards, lawyers say.
Cenikor declined to comment for this story, and its attorneys as well as CAAIR and CAAIR's attorneys did not respond to requests for comment.
But the work DARP residents are made to do is the treatment, Putman insists.
By requiring its residents to work, DARP is helping them develop self-discipline and allowing them to "learn basic life skills that some of the people in the program may be a little deficient in," he says. And some of them will have the opportunity to remain in those jobs when they complete DARP's program, aiding their recovery.
"There may be a place for that, but it's certainly not what a lot of my clients needed," says Flowerree of his clients who attended Cenikor. "They needed some one-on-one counseling and they needed it regularly."
Threatened With Incarceration
Residents sent to these programs may or may not be getting treatment, but what many of them are getting is injured, their attorneys say.
Michael Spears fractured his wrist and Corby Shumate was burned by molten plastic while the two worked at Hendren Plastics, according to the complaint against DARP. Arthur Copeland suffered a fall and a metal door fell on Brandon Spurgin while they both worked at Simmons Foods, according to the complaint against CAAIR.
Few of the injured residents received adequate medical treatment, their lawyers say. And they were all threatened with incarceration if they didn't continue working despite their injuries.
"If a resident was refusing to go and work their job because they hurt their back or something, well, they could hang that over the resident," says Flowerree about Cenikor. "'Well, then I'm going to tell your probation officer you're not following the terms of this program.' So they always felt kind of strong-armed into working regardless of being sick or injured."
CAAIR, for instance, ordered McGahey to return to work — against a doctor's orders — after his hand was smashed by the conveyor belt. "'You can either work or you can go to prison,' a CAAIR administrator told him," according to the complaint.
Threats like that give the programs "tremendous control" over the residents, Zatz says.
In fact, several of Smolen's clients did get kicked out of CAAIR and ended up going to jail because of their injuries, he says. And at least one of Steadman's clients was similarly expelled from DARP and wound up incarcerated as a result.
Other residents who were injured had extra days added to the length of their stay at DARP, Steadman says. "If you're supposed to be there for six months, they're getting six months of work out of you. So if you get hurt and can't work for a week, they're just gonna tack on another week."
A Lack of Oversight
The programs can control their residents like this because they tightly oversee the residents' interactions with the court system, Steadman and Flowerree say, taking residents back and forth to court appearances and monitoring their communications with probation officers.
The attorneys insist they've seen no evidence that the drug courts are providing any oversight of the recovery programs.
"I don't think the courts have a lot of awareness about" what's happening at DARP, Steadman says.
He adds that there needs to be more regulation of these programs, but there seems to be little increased oversight on the horizon.
Licensing requirements vary from state to state, and, at least in some states, only addiction "rehabilitation" or "treatment" centers must be licensed. But DARP and facilities like it don't claim to be "rehabilitation" or "treatment" programs, Putman points out. They are "recovery" programs — something both CAAIR and DARP acknowledge in court documents — and subject to minimal oversight.
The Oklahoma Department of Mental Health and Substance Abuse Services told Law360 in a statement: "Only certified treatment providers may deliver treatment services for department-funded drug court participants." No department funds are spent on noncertified providers, the statement added. "The courts are very aware of our position on ... what is and is not treatment."
But the department could not say if any drug courts in the state are currently sending participants to noncertified providers.
The Arkansas Department of Corrections declined to comment.
But the drug courts do oversee these programs and understand how they operate, Putman says, pointing out that a judge made it clear in a deposition in his case that DARP is a valuable option for certain people and he would like to see it continue.
"One of the drug court judges described them this way," Putman says. "They're kind of at the end of the line. By the time they get to the point where DARP ... is an option, they're basically facing either DARP or prison. They don't have a lot of alternatives."
A transcript of McGahey's sentencing does seem to show that judges are aware of the type of programs to which they're sentencing defendants. The judge in McGahey's case warned McGahey that CAAIR "is a lot of work. They work six days a week and they go to AA meetings and things like that at night ... they'll treat you fair and work you hard, but it will give you an opportunity to make some changes in your life."
And everyone who comes to DARP knows in advance what they're signing up for, Putman insists. Each resident must fill out a packet of forms that explains that they have to work as a condition of admission and that their wages will be paid to DARP.
"Nobody comes into DARP and shows up the first day for work and thinks, 'Hey, at the end of the week, I'm gonna get a paycheck.' And that's made abundantly clear that that's not how the program works," Putman says.
At least one federal judge disagrees with that assessment, however.
In April, U.S. District Judge Timothy L. Brooks ordered DARP and Hendren Plastics to pay the former DARP residents more than $1.1 million in damages, plus fees and costs, after writing that DARP and Hendren "were not operating as charities. They were businesses that manipulated the labor market and skirted compliance with the labor laws for their own private ends."
That ruling is currently on appeal to the Eighth Circuit. The cases against Cenikor and CAAIR are still in earlier stages, lawyers say.
As a result, DARP will now have to pay the residents it puts to work, according to Steadman.
"These programs need to have more to them than simply generating profits for for-profit companies and reducing labor costs," he says.
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--Editing by Katherine Rautenberg.