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The drug court : A miracle or the healer's hand? Webb, Suzanne Nicola 1999

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THE DRUG COURT; A MIRACLE OR THE HEALER'S HAND? by SUZANNE NICOLA WEBB L L . B . (Hons.), The University of Newcastle Upon Tyne, 1998 A THESIS SUBMITTED IN PARTIAL FULFILMENT OF THE REQUIREMENTS FOR THE DEGREE OF M A S T E R OF LAWS in THE F A C U L T Y OF G R A D U A T E STUDIES (Faculty of Law) We accept this thesis as conforming to the required standard THE UNIVERSITY OF BRITISH C O L U M B I A August 1999 © Suzanne Nicola Webb, 1999 In presenting this thesis in partial fulfilment of the requirements for an advanced degree at the University of British Columbia, I agree that the Library shall make it freely available for reference and study. I further agree that permission for extensive copying of this thesis for scholarly purposes may be granted by the head of my department or by his or her representatives. It is understood that copying or publication of this thesis for financial gain shall not be allowed without my written permission. Department of The University of British Columbia Vancouver, Canada Date 18th August 1363 DE-6 (2/88) ABSTRACT The subject of this thesis is criminal justice sentencing policy. The thesis examines the role of the Drug Court in diverting drug dependent offenders from the conventional Criminal Justice System. A large percentage of convicted offenders have a drug addiction problem and such offenders impose staggering burdens on an already overwhelmed Criminal Justice System. Diversion programs offer a practicable alternative to the traditional court system, and this thesis will investigate the feasibility of a Drug Court in Vancouver, British Columbia, Canada. In examining the advantages and disadvantages of this method of sentencing, the thesis assesses the value of compulsory treatment and determines whether criminal justice sanctions should incorporate compulsory treatment initiatives. To aid in this analysis, additional diversion programs for drug addicted offenders are examined. The Drug Court is assessed through a comparison of the court with traditional sentencing principles. This thesis analyses the success of the Drug Court in other jurisdictions and looks at how the Drug Court deals with the sociological and environmental factors linked to drug abuse and criminality. In determining whether a Drug Court is a feasible option for Vancouver, the thesis examines these external crimogenic factors and the strategies undertaken by the City to combat drug-related crime. It is argued that the conventional criminal justice system provides little, i f any, progressive and pro-active drug abuse intervention. This thesis concludes that Vancouver should implement a Drug Court to divert offenders from the traditional court system, and argues that the Drug Court diversion program should be available for drug-dependent property offenders. It identifies how the court can operate alongside pre-existing community services to ensure that post-release environmental conditions are conducive to drug abstinence and legitimate activity. i i In recommending adoption of the drug court program, the thesis stresses the importance of making this diversion scheme part of a community-based, long-term, holistic intervention strategy. The thesis ends with practical suggestions for implementation of a Drug Court program in Vancouver. 111 Contents Abstract i i Table of Contents iv List of Tables viii List of Figures ix Preface x CHAPTER 1 INTRODUCTION A N D M E T H O D O L O G Y 1 1 Introduction 1 2 Narrowing of Issues 4 3 Background 5 4 Drug-Related Property Crime 8 5 The Relationship Between Crime and Drugs 10 Drug Abuse Causes Lucrative Criminality 11 Crime Causes Drug Abuse 12 Underlying Causes of both Crime and Drug Abuse 14 6 The Philosophy of Punishment 17 Utilitarianism 17 Retributivism 19 Reformation/Rehabilitation 20 Relational Justice 22 CHAPTER 2 T A K I N G A HOLISTIC L O O K A T D R U G 25 ADDICTION - A CASE STUDY ON V A N C O U V E R 1 Introduction 2 Complexity of Issues Problems Pertaining to Health Accompanying Psychological Disorders Services for Women Employment A High Risk Environment and Social Needs Education and Skills Training 3 Vancouver - A Case Study Demongraphics Housing 25 26 21 30 31 33 34 35 36 37 38 iv Economic Status 40 Services 41 Health 42 Crime 43 4 Vancouver Drug Abuse and Social Initiatives 44 Harm Reduction Initiatives 44 Addressing Wider Issues 46 5 The Role of The Criminal Justice System 53 Is the Criminal Justice System Involved? 53 Satisfaction of a Political Agenda 5 5 Identification of Addicted Offenders 56 Assessment for Treatment and Sanction 58 Bridging the Gap from Detainment to the Community 58 Treatment Coordination 60 Applying Pressure to Complete Treatment 62 6 Summary 63 CHAPTER 3 COMPULSORY TREATMENT A N D COERCION, 65 A ROD FOR BEATING OR A STAFF FOR GUIDANCE? 1 Introduction 65 2 Criminal Justice System Intervention Strategies 66 Decriminalisation of Illicit Substances 66 The Punishment Model 68 The Medical Model 72 3 Background 74 4 Advantages of Compulsory Treatment 75 Cost-Benefit Analysis 75 Providing an Effective Forum for the Criminal 76 Justice System Providing Health Relief 78 Taking a Coordinate Approach 79 5 Essential Elements of a Successful Compulsory 80 Treatment Strategy Implimentation of a Coordinated Strategy 81 Adequate Specification of Responsibility 83 Drug Monitoring 84 Effective Assessments 86 Ensuring Legitimacy of Compulsory Treatment 86 6 The Voluntary Client 88 7 Coercion 90 Offender Participation in Treatment Choice and 93 Referral 8 Putting Compulsory Treatment into Practice 96 Charges 96 Plea Bargaining 96 Conditional/Suspended Sentencing 97 Community Sentenced and Incarceration 98 9 Summary 98 PART II DIVERSION INITIATIVES 101 1 Modes and Methods of Diversion 102 2 Civi l Commitment 103 3 TASC 106 4 The Boot Camp Program 107 CHAPTER 4 THE D R U G COURT 1 Introduction 110 2 The Drug Court Program 111 The Drug court as a Sentencing Body 111 3 The Present Problem 113 4 A Coordinating Body 116 5 Qualification for the Drug Court Program 121 Assessment for Qualification 124 6 The Players in the Drug Court 128 7 Treatment 130 Treatment Provision and Techniques 131 Treatment location; Residential Detainment, 132 Therapeutic Communities/ Alcohol and Drug Free Residences, Day Patient/Outpatient Facilities, Intensive Supervision/Probation 8 Sanctions 138 Automatic Sanction as part of the Program 138 Sanctions for non-compliance and Breach of the 140 Program 9 Is the Drug Court a Success? 142 10 Summary 145 vi CHAPTER 5 BRINGING THE SHEPHERD TO THE SHEEP A N D 147 THE WOLVES; RECOMMENDATIONS FOR A HOLISTIC INTERVENTION STRATEGY 1 Introduction 147 2 Preventative Measures 148 Education 149 Youth Support 151 Environmental Factors 151 Sociological Factors 152 Harm Reduction Strategies 154 3 The Response 155 Combining Treatment and Punishment 155 4 Use of a Drug Court System 156 Publicity 156 Training 157 Offender Interaction 159 Eligibility Criteria 160 Treatment in the Drug Court 161 Enforcing Breaches 162 Punishment 162 Offender Accountability 163 Education, Training and Job Skills 163 Support within the Community 164 Coordination within the Community 165 Clear Jurisdiction for Agencies Involved 167 6 Conclusion 170 BIBLIOGRAPHY 175 APPENDIX 1 185 vii List of Tables T A B L E 1 Estimated Direct Costs to the Government of Illicit Drug Use, 7 B.C., 1997 T A B L E 2 Estimated Prevalence of HIV and Hepatitis C among 43 Injection Drug Users, Vancouver, B.C., 1988 - 1997. T A B L E 3 Ages as a percentage of Drug Court participants. 120 T A B L E 4 Sex as a percentage of Drug Court participants. 120 T A B L E 5 Drug Court Participant and Graduation Rates. 143 T A B L E 6 Employment Rates for Drug Court Graduates. 143 viii List of Figures FIGURE 1 Property Crime as a Function of Addiction Status FIGURE 2 Location of the Downtown Eastside FIGURE 3 Location of the Downtown Eastside PREFACE Who are the drug dependent offenders? x ...the last few years have not been kind to the Downtown Eastside or to its residents. While many residents continue to look after one another, the streets have been taken over by a younger, rougher, meaner crowd attracted by an active drug market. The drug of choice is increasingly injection cocaine, a drug that requires its hyper-active victims to shoot up as many as twenty or even more times a day. To support their constant craving, cocaine addicts steal and steal again. Auto glass from car break-ins litters the area's curbs and gutters. Pawnshops and second-hand car dealers have sprung up to receive stolen merchandise and provide the cash required for the next fix. All-night cafes and convenience stores have become fronts for drug dealers, replacing the retailers that used to serve the neighbourhood and visitors. Now many of the area's visitors are only there for the drugs and related activities. Of those arrested for criminal activity in the area, the majority live outside the neighbourhood.1 ' City of Vancouver, Reports for Public Discussion, Report #1, Downtown Eastside: Building a Common Future at 2. xi Profile number 1 "John was caught in the revolving door syndrome. He would be paroled periodically only to be quickly returned to the reformatory for parole violation. During those years, he progressed from alcohol use to the use of other psychoactive drugs. He experimented with marijuana, but found it unstimulating. He abused pills for a while but tired of their effects. Finally, at the age of eighteen, he began to use heroin. Initially, heroin made John nauseous, but the high which it produced was the most pleasurable feeling John had ever experienced. The euphoria produced by the heroin blocked out the loneliness of his life. Under the influence of the narcotic, he could escape fears about his self-worth and avoid the realities of his everyday life. Within weeks, John was a fully-fledged heroin addict. He required a daily revenue of $100 to $150 to support his drug habit. To raise this money, John tried several different "hustles". Burglary, confidence games, shoplifting, pimping and drug trafficking all proved to be suitable means of raising the necessary funds.... John... was soon arrested for possession of narcotics.... He remained in jail until sentencing and was given a three-year sentence to the State penitentiary. During this prison term, John became even more bitter toward society. He blamed the traditional social institutions of society - family, school, church, and the business world -for his failure and became convinced that his only salvation was heroin. John knew that upon parole release he would immediately return to heroin use. " 2 2 James C. Weissman, Drug Abuse, the Law and Treatment Alternatives, Anderson Publishing Co. 1978. X l l Profile number 2 "An anonymous call was made to the Euphoria Police Department in regard to a residential burglary in progress. Upon arrival, the police observed the defendant, Gary Butler, departing from the rear entrance to the home in question. He was placed under arrest for investigation of burglary and was thoroughly searched. A loaded handgun and jewelry later determined to belong to the owner of the home were discovered.... Since adulthood, the defendant has been under some form of correctional authority for all but seven years. In general, correctional personnel report that Butler has been an exemplary subject. He has demonstrated a pattern of moderate progress while under supervision, but has consistently failed to sustain the pattern after release from confinement or supervision. The correctional personnel who have worked with the defendant attribute his failure to chronic drug addiction. Each of the contacted persons believed that Butler is a reasonable community risk given the proper social and emotional support system.... At times, the defendant displays glimpses of hope, but, on the whole, exhibits relatively poor rehabilitative prospects. His drug involvement is chronic and shows no promise of abatement. He does not exhibit strong family ties and his universe of social acquaintances is limited to the drug culture. His job skills are poor and his past employment record is not advantageous to future opportunities. On the other hand, however, all correctional personnel who have worked with the defendant respect his openness and willingness to attempt self-improvement. "3 3 Ibid. xiii 1 Chapter 1 Introduction and Methodology Introduction The Criminal Justice System assumes a fundamental role in today's society. The system not only promotes a regulatory function, it also has the role of responding to criminal activity and managing the vast numbers of offenders who are convicted every year. This thesis, whilst acknowledging a wide range of crimes, will focus on the response of the Criminal Justice System to the drug dependent offender. Empirical evidence from newly convicted offenders and from habitual offenders suggests that a large percentage of those arrested have some sort of drug addiction problem. The American Centre for Alcohol and Substance Abuse (CASA) reports that: C A S A ' s analysis reveals that at least 81 percent of state inmates, 80 percent of federal inmates and 77 percent of local jail inmates have used an illegal drug regularly (at least weekly for a period of at least one month); been incarcerated for drug selling or possession, driving under the influence of alcohol (DUI) or another alcohol abuse violation; were under the influence of drugs when they committed their crime; committed their offence to get money for drugs; have a history of alcohol abuse, or share some combination of these characteristics.1 1 C A S A Report, Behind Bars: Substance Abuse and America's Prison Population, January 1998. 2 For a breakdown of the evidence supporting such a statement, refer to Appendix 1. Although such investigations have been performed in America, and situational factors may heavily influence empirical research results, the evidence presented by the Centre for Alcohol and Substance Abuse signifies the extent of the drug addiction problems of convicted offenders. Indeed, criminal justice authorities acknowledge that the problem of drug dependent offenders imposes staggering burdens on an already overwhelmed Criminal Justice System. The system is experiencing strain on the limited available resources, and it can be argued that criminal justice authorities suffer a crisis of direction regarding the most appropriate criminal justice response to the problem of drug related crime. The sentencing methods and most effective sanctions of the Criminal Justice System are subject to extensive contemporary debate. This first chapter will introduce the subject area, extensively define the subject of the thesis i.e. the drug dependent offender, and will attempt to establish the extent of the problem. In building this foundation, the theory behind the relationship between crime and drugs will be discussed, and the penal philosophy on which a criminal justice response could be grounded will be delineated. Chapter 2 will 'set the scene' for an examination of drug abuse, criminality and its concomitant problems. The setting will be Vancouver, British Columbia, Canada. This case study will include an examination of the society, environment, and prospects of the 'problem' area. It is hoped that an extensive evaluation of the problems often associated with drug addiction will allow for examination of the issues through a broad perspective. 3 At the end of this chapter, the role of the Criminal Justice System will be discussed in light of the overall problem. After establishing that the Criminal Justice System has a significant role in intervening into cycles of lucrative drug related criminality, Chapter 3 will outline the possible responses of the Criminal Justice System to the problem. Brief mention will be made of decriminalisation, and incarceration sanctions, and the majority of the chapter will be focused on the concept of compulsory treatment. As a second part of this chapter, reference will be made to current strategies for diversion of drug dependent offenders from custody, where possible. Chapter 4 will focus on the concept of a Drug Court. The role and functioning of the Drug Court will be discussed in detail, and the advantages and disadvantages of this particular response will be established in the light of the previous chapters. Chapter 5 will be a concluding chapter. The themes of the previous chapters will be brought together in this chapter, and recommendations will be made for creating an effective solution to the problem as demonstrated by this Vancouver case study. 4 Narrowing of Issues. As the principles adhered to in this thesis are often specific to certain 'types' of offender, it has been necessary to clarify about whom this thesis is written. This thesis will focus on the drug dependant offender who has committed a property crime in order to obtain funds to sustain a drug habit. The issue of decriminalisation and legalisation of illicit substances will not be discussed in great detail,2 and accordingly this thesis will not consider the offender who is solely charged with possession of illegal substances. In limiting the subject to non-violent property offenders, it is recognised that violent offenders often raise different issues in relation to sentencing and punishment. As has been demonstrated by the sentencing of violent offenders, such offenders may pose a danger to the community thus eliminating many of the possible punishment options that will be discussed in this thesis. Due to the non-violent actions of habitual property offenders, alternatives to and diversion from custody punishment options may be appropriate where such possibilities may be entirely unsuitable for violent offenders. For these reasons, a distinction has been drawn between the non-violent property offender and violent offenders. Reference will not specifically be made to offenders who have committed drug-related crimes whilst being under the influence of drugs. Although drug addiction will be recognised as a motivation for the commission of the offence, the intoxication of the offender at the time of the criminal activity is irrelevant to this thesis. It is however recognised that simultaneous intoxication may be an issue pertaining to 5 criminal defences. Although some may attempt to draw an analogy with alcohol dependant offenders, "there are also major differences in the ...burden of treatment imposed upon the two types of offender which makes the two types of case very different." As it has been suggested that alcohol dependency raises different issues to drug dependency, and may require somewhat different treatment, this thesis will not discuss specific sentencing options for the alcohol dependent offender. In relation to the specific classification of offenders, this thesis will be orientated to the adult drug dependant offender. Distinctions may be drawn between sentencing options for young and adult offenders on the basis of distinct young offender theory that separates this class of offenders from adults. In summary, this thesis will analyse the provisions for the punishment or treatment of adult drug-motivated habitual offenders who are convicted of committing property offences in order to sustain a drug habit. Background Drug addiction is a complex phenomenon. The effects of drug abuse are not limited to the addict but are extensive within the community. Drug abuse and related criminality have imposed staggering burdens on the Criminal Justice System, courts, law enforcement, treatment providers, healthcare agencies, families, and the community. 2 It is recognised that this issue would constitute sufficient substance for a thesis, and in entering this contemporary debate, it would detract from the subject of this thesis i.e. effective sentencing of drug dependent offenders. Reference to this subject area will however be made in chapters 2 and 3. 3 Wayne Hall, The role of legal coercion in the treatment of offenders with drug and alcohol problems, National Drug and Alcohol Research Centre, Paper presented to the Second Annual Symposium of Corrections Health Service on 'Drug Related Crime', Sydney, 21-22 September, 1995, University of New South Wales, at 11. 6 Indeed, the costs of illicit drug addiction can be computed in more than social and personal terms; researchers have also attempted to calculate costs in monetary terms. It has been suggested that [hjecause tobacco and alcohol are more commonly used than illicit drugs, their total costs to society are higher. Nonetheless, illicit drugs represent a large burden of illness, tend to involve younger victims, and may be more costly per case. According to the C C S A 4 study, British Columbia had the highest per capita cost for illicit drugs - an estimated $60 per capita...in 1992. These costs are potentially avoidable.5 [Emphasis added.] Even when computing the costs of drug addiction and criminality, the costs associated with reduced job productivity of offenders and victims, lost earnings, and choices of criminal careers, are often secondary to what are perceived as more direct resulting costs. The Canadian Centre on Substance Abuse study estimates that the total cost of health care and law enforcement relating to illicit drug use in British Columbia has been approximately $96 million gross per year (refer to Table 1.) 4 Canadian Centre for Substance Abuse 5 Dr. John S. Millar, Provincial Health Officer, HIV, Hepatitis, and Injection Drug Use in British Columbia - Pay Now or Pay Later, June 1998 7 Table 1 Estimated Direct Costs to the Government of Illicit Drug Use, B.C., 1997 Estimated Costs ($ thousands) Direct Health Care Costs Hospitalization $5172 Co-morbidity $2400 Residential Care $4854 Non-residential treatment $1316 Ambulatory care $1458 Prescription drugs $1500 Other health care costs $321 Total $17021 Law Enforcement Police $37161 Courts $20020 Corrections $20020 Customs and excise $1508 Total $78710 Total direct costs $95731 Direct costs per IDU (estimated 15000 IDU's in B.C. $6382 Co-morbidity costs are based on 200 AIDS/IDU cases @ $12000 per case. Prescription drugs based on 1997 costs for anti-HIV medication for IDU's; data provided by HIV/AIDS Drug Treatment Program, B.C Centre for Excellence in HIV/AIDS. All other costs based on 1992 data for B.C. in Table 13 of The Costs of Substance Abuse in Canada: A Cost Estimation Study by Eric Single, Lynda Robson, Xiaodi Xie, and Jurgen Rehm, Canadian Centre on Substance Abuse. Estimates were adjusted for the B.C. Consumer Price Index (9.7% increase between 1992 and 1997) and estimated increase in number of IDU's (25% increase, from 12000 in 1992 to 15000 in 1997.)6 6 It should be noted that."the estimates in Table 2 do not include *Health care costs for diagnostic services and preventative programs, *Costs of treating hepatitis B and C related to injection drug use. *Costs to society resulting from criminal activity, e.g. theft, property damage. *Costs related to unemployment and lost productivity, which lead to the need for income assistance, unemployment benefits, or other social assistance costs. Income assistance alone may be costing as much as $67 million annually. *Costs and offsetting savings related to premature death. Hence these costs are conservative and provide a very low approximation of direct avoidable costs to government." All statistics have been taken from Dr. John Millar, Ibid, at 11. 8 Although it has been noted that these figures do not allow for costs to society resulting from criminal activity, e.g. theft and property damage, they nevertheless demonstrate the implications of drug addiction/abuse on the resources of the Criminal Justice System. When considering the costs of drug-related crime,7 these costs are even higher. Drug-Related Property Crime. Although the precise nature of the relationship between crime and drugs will be discussed later in this chapter, it is pertinent to examine what appears to be drug-motivated property crime. It is in no way contended that all drug addicts will commit theft offences to support drug habits, yet it appears that for a certain proportion of the criminally active drug addicted population, lucrative property crime is the only way of creating sufficient revenue to maintain a drug habit. For example, in American research undertaken by Deschesne, Anglin and Speckhart, (1991),8 it was reported that [w]hile addicted, Chicanos report over $11 million in property crime income and almost $1.5 million in drug income; whites report $9 million and over $1.5 million, respectively. In comparison, employment income was only $4.6 million for Chicanos and $3.7 million for whites. Although precise figures of drug-motivated property crime are presently undetermined, criminal justice authorities readily accept that drug addiction is a strong motivating factor 7 It should be noted that drug related crime includes crime ranging from shoplifting to murder, and may be performed on an individual basis or as part of an organised crime syndicate. 8 E.P. Deschenes, M . D . Anglin, G. Speckhart, Narcotic Addiction: Related Criminal Careers, Social and Economic Costs, Journal of Drug Issues, 1991, 21(2), 383-411. As cited in Serge Brochu, Estimating Costs for the commission of such theft offences. As property crime is often more profitable in monetary terms, it can be argued that lucrative criminality will be more prevalent where there is a need for revenue to support an addiction. Figure 1 Property Crime Income as a Function of Addiction Status (in 100's of dollars) 120 100 80 Property Crime 60 Income 40 20 0 "as • • M B Not Addicted Addicted Robbery Crime was <0.5 for the not addicted period • Other & Robbery • Forgery B Burglary H Theft The above statistical representation has been used to suggest that during periods of addiction, there is a marked increase in rates of property crime performed by drug addicts.9 Olson, Avery and Marks note that of Drug-related crime, Paper prepared for the 2" International Symposium on the Social and Economic Costs of Substance Abuse, Montebello, October 2-5, 1995, 1-21 at 2. 9 Statistical evidence has been taken from George Speckhart, and M . Douglas Anglin, Narcotic Use and Crime, an overview of recent research advances, Contemporary Drug Problems, Winter 1986, 741-767. 10 the motivation that drives burglary is a factor that has received much attention from researchers. Scar (1973) found that burglars in his study cited in order of importance (a) Need for money to buy drugs (b) Need for money to lead "fast and expensive lives" (c) Social motives (subculture, gangs, peer) (d) Idiosyncratic motives (kicks, thrills) .. .Though virtually every burglar used some of his proceeds to pay for food, clothing, shelter, transport and other licit needs, the greatest percentage of the proceeds went toward the purchase of drugs and alcohol.1 0 Although there is evidence to suggest that there is a causal link between crime and drug abuse, this area remains subject to contemporary debate. The Relationship between Crime and Drugs The relationship between crime and drugs is subject to much controversy. Although a causal link remains to be proven, researchers have produced empirical evidence to demonstrate several relationships between crime and drugs. There are three dominant ideologies of the relationship between crime and drug abuse.11 1 0 Research indicating the above conclusions was performed using a group of 30 (27 males) with a mean age of 25. For a detailed examination of the research see James N . Olson, Paul Cromwell, D'Aunn W. Avary, Alan Marks, "Burglary - The Burglars Perspective; How Drugs Affect Decisions By Burglars" (1999) 35(4) International Journal of Offenders Therapy and Comparative Criminology Guildford Press. 1 1 The following two research groups are among the many who clearly articulate these theories: M.Douglas Anglin, and George Speckhart, supra note 9 and John K. Watters, Craig Reinarman, and Jeffrey Fagan, "Causality, context, and contingency: relationships between drug abuse and delinquency" (1985) Federal Legal Publications, Inc. 11 (1) Drug abuse causes lucrative criminality. This economico-compulsive proposition is founded on the theory that criminal activity is provoked by the need to obtain money or property to sustain a drug addiction.12 It purports that the offender becomes physiologically and psychologically addicted to drugs, and that addiction becomes the motivating factor for the commission of drug-related offences. This ideology assumes that once drawn into the subculture of criminal activity, the offenders' criminal activities become 'normal' and essential to avoid withdrawal. Research based on the observation of heroin and cocaine users (Johnson et al, 1985, Anglin and Speckhart, 1986) was conducted with the intention of demonstrating a correlation between not only crime and drugs, but also between the level of dependency and levels of criminality. The outcome of this research was used to purport that as the level of addiction increases the associated criminality of the addict increases. For example, it is argued that drugs which are highly addictive (i.e. heroin, crack and cocaine) require a greater quantity and frequency of consumption to satisfy the addiction and avoid withdrawal. In instances where an addiction must require revenue of at least $150 per day, the monetary requirements may far exceed that gained through legitimate employment. "Empirically, this explanation outlines a linear relation between expensive illicit drug consumption and the manifestation of lucrative criminal activities (Faupel and Klockars, 1987)."13 Accordingly, if it is accepted that addicts will resort to lucrative criminality to maintain a drug habit, it can be concluded that drug-related crime will increase in response to rising levels of addiction. This ideology is somewhat associated 1 2 The drugs more commonly associated with this theory include barbiturates, cocaine, other stimulants and phenocyclidine, (Miller and Potter Effron, 1989) 1 3 Brochu, supra note 8. 12 with the conceptualisation of drug addiction as an illness, whereby criminality is postulated to be an inevitable outcome of drug addiction. It should be noted that the model, by effectively depicting addiction as an illness does not accredit those who have some degree of control over their addiction. Indeed, "[ajddiction careers are not inevitable. There are, for instance, those who use heroin regularly without getting dependent on it; there are users of hard drugs who are permanently varying types of drugs in order not to get dependent (Kreuzer, 1993;p.87)."14 By only acknowledging this model, hard drug users who are not addicted, are effectively ignored and not considered in research attempting to establish the relationship between crime and drugs. (2) Crime causes drug abuse. Those advocating this stance attempt argue that drug use is secondary to or resulting from criminal activity i.e. that an offender would voluntarily choose to use the proceeds from criminal activity for the purchase of narcotics. Indeed, it has been claimed that "for the past 20 years, researchers have consistently found that individuals who frequently use illegal drugs such as cocaine, heroin or marijuana have engaged in criminal behaviour prior to or concurrent with the initiation of any stable illegal drug use pattern."15 This proposition is somewhat based on the premise that drug abuse and addiction is ancillary to criminal activity. Collins, Hubbard & Rachal's (1985), who analysed participants in a cocaine treatment program conclude that; 1 4 Ibid. 13 income generated from crime provides the individual with the extra money to secure drugs, and places the individual in an environment which is supportive of drug use, rather than a need for cocaine compelling the individual to commit crimes (see also Goldman, 1981; Johnson, et al.;(1985)).16 It is purported that where criminal activity appears to precede drug abuse, there is a higher probability for continued crime, regardless of a newly established drug addiction. Critics of this hypothesis do not accept that the relationship between crime and drugs can solely be attributed to criminality before addiction. ..[Attempts to establish a causal relationship leading from crime to narcotics use during structured, clinical interviews have invariably led the present authors and others to discard this notion for most addicts....Even addicts themselves consistently rejected this conceptualization in favour of the causal scenario in which one simply commits a crime for the instrumental purpose of purchasing narcotics.17 The 'crime causes drug use model' does not appear to offer a comprehensive explanation for all drug dependent offenders, and there is much criticism as to whether lucrative criminality will inevitably lead to drug consumption. It should be noted that the economico-compulsive explanation (as explained above) neither accounts for the criminality of many offenders before becoming addicted, nor for the criminality of ex-drug addicts. Hence, doubts must arise as to the legitimacy of accepting either of these models when they are considered in isolation and where evidence presented appears to be inconclusive. 1 5 D. C. McBride, and C. B. McCoy, Crime and Drug Using Behaviour, Criminology, 19(2), 1981, at 267, and The Drugs-Crime Relationship: An Analytical Framework, The Prison Journal, 73 (3-4), 1993, 257-278. 1 6 Helen Raskin White, The Drug Use-Delinquency Connection in Adolescence, Chapter 9, Edited by Ralph Weisheit, Drugs Crime and the Criminal Justice System, Anderson Publishing Co., Cincinatti. 1 7 M.Douglas Anglin, and George Speckhart, supra note 9 14 (3) Underlying causes of both crime and drug abuse (i.e. narcotic use and crime are spuriously linked due to a common antecedent cause.) This theory is based upon the concept that crime and drugs are not causally linked, but are provoked by the occurrence of all-encompassing factors (both situational and specific) such as a lack of social, economic and health resources and structure. The fact that drug and crime issues are not isolated is becoming increasingly prominent and; in fact, prospective longitudinal studies show that delinquency and drug use are linked to a similar set of social, psychological and demographic variables (Brunelle and Brochu, 1995; Fagan, Weis and Cheng, 1990; Gottfredson and Hirshi, 1990; McBride and McCoy, 1981; U.S. Department of Justice, 1992)... Rather than innocents seduced or propelled into criminal activity by their drug use, existing data and research indicate that drug abuse and criminal activity are a part of a broader set of integrated deviant behaviours involving crime, drug use and, often, high-risk sex (McBride and McCoy, 1993).18 It is also expounded that the level of criminality is related to the extent of the addiction and the amount of daily narcotic consumption. This again would be offender specific, and aggravated or alleviated by external circumstances particular to and often beyond the control of the offender. This hypothesis, (along with the philosophy of drug abuse causes crime) adheres to the suggestion that drug addiction is an illness that should be placed in a 'medical model' of treatment. By focusing on the criminality of the drug dependent offender, or solely on the addiction, it has been suggested that "we ignore and discredit or deny the personal meaning of the act committed, and hereby refuse to take into account the socio-economical origins of the dependant user".19 Proponents of this philosophy Serge Brochu, Supra note 8 at 9 9 Ibid. 15 have consequently argued that criminal justice authorities should address external issues contributing to, or even promoting drug addiction and criminal activity. Despite the prevalence of the above theories in relation to the relationship between crime and drugs, it has been suggested that; [T]he number of hints keeps on growing, allowing us to believe that crime is not linked in a causal way to drugs; many consumers of illicit psychoactive substances are not involved in crimes other than possession of drugs for personal use; many infractors do not consume illicit drugs; although for a sub-group of individuals criminality and illicit drug consumption are all related in the adoption of a deviant life style (Chaiken and Chaiken, 1990; Fagan, 1990; Grapendaal, Leuw and Nelen, 1995;p.l97).20 Although there may be uncertainty as to the extent of drug related crime, it is nevertheless conceded by all parties that for a certain extent of the criminally active population, there is a relationship between crime and drugs. This relationship, although acknowledged, presently remains undetermined. However, research strongly suggests a link between drug addiction, use and crime, as "it has become clear from these data that there is an intimate correspondence between narcotics use and property crime levels, which might at best be described in a temporal sense as 'approximate simultaneity'21 Indeed even within each academic opinion there is little agreement as to the value and results of research performed.22 Although data has been acquired which would primarily 2 1 George Speckhart, and M.Douglas Anglin, supra note 9. 2 2 John K. Watters, Craig Reinarman, and Jeffrey Fagan, supra note 11. In this research the authors state that 16 support the first and third hypotheses, the data is accused of being correlational in nature, and to that extent, inaccurate for the purposes of providing conclusive evidence to support these concepts. There has been little comparison of data between countries and cities, and the limitations of the sample population examined in the research statistics, ensures that data may be society and/or area specific. However, despite these non-comprehensive variables, empirical evidence has suggested that there is at least a probable correlation between crime and drug abuse, either regardless of or stimulated by external factors. Although controversy exists as to the relationship between crime and drugs, it may be argued that the precise nature of that relationship is irrelevant in relation to sentencing the actual offender. This thesis argues that the relationship is integral to the penal philosophy adopted in the sentencing process. If drug addiction is considered as an 'illness,' in relation to sentencing practices, it can be argued that sentencing should be founded on rationales of rehabilitation. When researching sentencing issues and sanctions for drug motivated offenders it is therefore integral to the discussion of sentencing, to examine current theories of sentencing practice and to determine the effect of differing rationales of punishment on the sentence handed down to the offender. there continues to be debate over whether drugs and alcohol are contributing factors, merely correlates, or determinants or causal agents in violent crime and delinquency. Though the drugs-crime relationship is central to much of American Drug Policy (Musto 1973; Epstein 1977; Watters 1983) and crime policy (Inciardi 1981), there is no conclusive evidence that drugs cause crime, that crime causes drugs, or that some underlying "third factor" causes both crime and drug use (Elliot and Huizinga 1984). [Emphasis added.] 17 The Philosophy of Punishment In order for treatment or punishment of the offender to be considered legitimate, the actions of criminal justice authorities should be examined through the different punishment rationales. As the Criminal Justice System consists of several processes, it must be acknowledged that each stage of the conviction and process may have different aims. However, it has been argued in relation to overall sentencing philosophies that [f]our different theories of punishment have been developed in an attempt to justify why the criminal process may be allowed to deliberately harm those who have engaged in prohibited behaviour. Each of these theories -retribution, utilitarianism, restitution and reformation - is based (perhaps unavoidably) on some underlying view of the nature of man, crime and society. Each captures much, but also misses much. Neither provides by itself a fully satisfactory account.23 Utilitarianism Utilitarianism2 4 is a teleological theory expounding principles of benevolence requiring responses that promote the 'greater good of society'. It is a broad concept incorporating Although the authors attempt to determine a relationship between crime and drugs, they simultaneously acknowledge that the.evidence to support relationship suppositions is inconclusive and does not tend to certainty. 2 3 Jonathan Burnside, The Relationship Foundation, Relational Justice, No.3 Punishment, Jubilee Policy Group, August 1993 at vii 2 4 The utilitarian theory was primarily expounded by Jeremy Bentham who purported that moral actions would involve those actions performed for 'the greatest happiness of the greatest number of people'. It has been suggested that in relying purely on principles of utilitarianism, human rights issues in relation to the offender necessarily assume a secondary role rather than taking a dominant role. However, contrarily, it has been argued that in ultimately benefiting the greater population long-term, there would necessarily be provision of effective treatment for drug addicts. For a further discussion of 'offender rights' and the relationship to utilitarianism, see Michael Cavadino and James Dignan, "The Penal System", 2 n d edition, Sage publications, London, 1997. 18 theories of retributivism and reformation whilst holding deterrence as a primary aim. Jeremy Bentham argued that "punishment would be justified if the benefits (in terms of general deterrence) would outweigh the pain inflicted on the offender punished, and if the same benefits could not be achieved by non-punitive methods."25 Consequently the theory pays less regard to the punishment than the benefit accrued from penalising the offender. A criticism of this deterrent theory is that "the theory could justify the punishment of an innocent person if that were certain to deter several others: a simple utilitarian calculus would allow this to happen without any respect for the rights of the innocent person."26 Additionally, sentences may be disproportionate to the crime where the deterrent effect is considered a priority.27 As deterrence is based on the premise of deterring future criminality, it is widely accepted as a legitimate aim of the Criminal Justice System. In relation to drug treatment and sentencing initiatives, the Criminal Justice System must provide effective intervention to deter offenders from further drug abuse and related criminality. This thesis argues that the Criminal Justice System must initiate a comprehensive holistic sentencing strategy. Where criminal justice authorities react with short-term initiatives responding only to the criminal activity of the offender, there will be little long-term fundamental change.28 Where the sentence deters the offender from 2 5 Andrew Ashworth Sentencing and Criminal Justice 2ml Edition, 1995, Butterworths, London, Dublin, Edinburgh at 62. 2 6 Ibid at 64. 2 7 The concept of deterrence may include individual and general deterrence. Individual deterrence includes attempts to deter the convicted offender from committing further offences. General deterrence consists of attempts to dissuade the general population from pursuing the same course of action as the offender. 2 8 As is expounded by many Criminal Justice System scholars, retributive incarceration gives little to solving the crime problem in the community. A purely reactive incarceration sentence will ultimately neither benefit the community nor the offender, and it may be more costly to the community in the long-term, both financially and socially. For a full discussion of the criticisms of the retributive incarceration 19 criminality, the intervention would be deemed legitimate and justified from a utilitarian perspective. This thesis argues that to effectively deter drug dependent offenders, the Criminal Justice System must address the drug addiction and its concomitant problems, and sociological factors that may be conducive to criminality. Retributivism Although incorporated into the utilitarian theory, retributivism includes the additional rationale of 'just deserts.' This concept is considered as an 'end in itself,' rather than.a step in a process of correction and reintegration. It is perceived as a denunciation of crime and a re-addressing of advantages gained by offenders.29 Offenders are considered as responsible moral agents who must be punished because they break the dominant moral/legal code." Although this 'just deserts' theory may deter offenders from future crime, the aim is to look back to the offence and denounce the criminal activity. "Retributivism thus advocates what is known as a tariff; a set of punishments of varying severity which are matched to crimes of differing seriousness."31 Pure retributivism can be described as a form of vengeance upon those who contravene the law - a vengeance that is reactive to the offence rather than progressive for the offender or the community. Consequently, where 'deserts' theory is adopted, prescriptive sentencing guidelines are used to ensure uniformity and proportionality in sentencing. policies, refer to Howard Zehr, Changing Lenses, Herald Press, Scottdale, PA, 1990 at 78, and Michael Cavadino, & James Dignan, supra note 24, Chapter 5. 2 9 This theory is often associated with the idea of a multilateral social contract establishing societal responsibilities and obligations. Accordingly, a breach of such a contract will result in a need for the advantage gained by a breach to be negated. Kant purports that individuals have a "reciprocal obligation to limit their behaviour so as not to interfere with the freedom of others.' 3 0 Herbert Packer, "The Limits of the Criminal Sanction", Stanford University Press, Stanford, 1968, at 9. 20 In applying this model and theory to the drug motivated offender, sanctions focus on denouncing the offender, and the offender may receive little, if any, help for the motivating addiction. Although deterrence rationales associated with utilitarian theory are prevalent in retributive sentences, some argue that prison terms are primarily given to "deter and incapacitate the offender and punish the sinner...not to cure the deviant."32 Retributivist theories consequently allow little opportunity to address the broad problem of drug addiction and crime. Reformation/Rehabilitation According to this theory of punishment, reductivism (i.e. the justification of punishment by expected future consequences) will take a large role in the imposition of penal 33 sanctions." In the last century there was a dramatic change in emphasis from a retributive focus to a rehabilitative focus. More recently penal scholars are purporting that penal institutions must be places of reform and rehabilitation first and institutions of punishment second. Indeed, it has been reported that "intervention in the name of behaviour modification was regarded as a benevolent and proper exercise of authority. Nowhere has this judgment had greater impact of significance than in the field of incarceration."34 The restorative/rehabilitation theory articulates that emphasis should be on the 'reform' of the offender. Such reform focuses on the motivation for the offence, 3 1 Michael Cavadino and James Dignan, supra note 24 at 39. 3 2 David J. Rothman, "Behaviour Modification in Total Institutions" (February 1975) An historical Overview, Hastings Centre, Report 5 3 3 Reformation has been described as a "teleological theory because it sees punishment as a means to an end: that is, the reform of the criminal." Burnside, supra note 23 at 29. 21 how that motivation affects the behaviour of the offender, and determines how to address this criminal motivation. This model is especially pertinent in relation to the drug motivated offenders. Following rehabilitation theory, it is claimed that if the need for obtaining the drugs is removed, i.e. if the offender is 'rehabilitated' and given comprehensive treatment so as to remove the addiction and the consequent purported criminal compulsions, then drug motivated crime will necessarily decrease. Consequently, the rehabilitation theory may be placed under the guise of utilitarianism in that the reformation of the offender will ultimately be for the greater good of society.35 One writer claims that "however benevolent the purpose of reform, however better off we expect its object to be, there is no blinking the fact that what we do to the offender in the name of reform is being done to him by compulsion and for our sake, not for his." 3 6 Such arguments again support the proposition that reformation is closely linked with utilitarianism. Where drug abuse is considered as fundamental to the commission of criminal offences, it is important to determine whether the abuse should be classified as an "illness." If the addiction is determined to be a health disorder, the issue of treatment and rehabilitation becomes relevant. This thesis argues that rehabilitation must play a key role in the disposition of offenders, and will be a necessary part of a holistic criminal justice 3 4 David J. Rothman, supra note 32 3 5 It has been stated that "it is unclear whether it is closer to utilitarianism in the sense that it seeks the interests of the community in doing so or whether it is closer to humanitarianism, in the sense that it looks to the interests the individual offender. Advocates of the reformation tend to play the humanitarian card, stressing the benefits that accrue to the individual...The justification for punishment is that he should be corrected for his own sake and sentences are determined by what is necessary to achieve the reform of those upon whom they are passed." Burnside, supra note 23 at 29. 3 6 Glanville Williams p.24, as cited in Burnside, Ibid at 29. 22 intervention strategy. Although rehabilitation is integral to individual deterrence, this thesis will also argue that denunciation of criminal activity and offender accountability is important to avoid medicalising 'deviance.'37 It is therefore essential in treating the offender, to condemn the acts of deviance. As the 'ideal' of rehabilitation is now being severely questioned, and doubts are arising as to the effectiveness of sole reliance upon this model and theory, the importance and relevance of alternative rationales of punishment becomes more apparent. Relational Justice One of the most recent justice philosophies has been named 'relational justice.' This model has a focus on the relational aspect of the punishment, and strives, as its aim, to repair the relationship between the offender, the community and the state.38 It will be argued that this model and concept is especially pertinent to drug motivated offenders as the problems faced by such offenders are broad and more complex than pure 'deviance'. Offenders have wider needs than medical rehabilitation. This relational justice model may allow for rehabilitation in combination with community-offender restoration and 3 ' The importance of holding offenders accountable for their actions is becoming more accepted and integrated into criminal justice sanctions. Hogarth establishes a model of offender accountability arguing that "all we have the right to ask or expect back from offenders is that they account for their actions." Additionally he articulates the relationship of accountability to retribution and rehabilitation. John Hogarth, The Principles of Sentencing: Ouimet Revisited, in Helene Dumont, ed. Sentencing, 1987. 3 8 This relational justice model purports that "[m]an is seen as a relational being. That is, he is not merely 'an individual centre of consciousness or something like that - although that may be part of the matter - bit one whose being consists in relations of mutual constitution with other persons." C E . Gunton, The Promise of Trinitarian Theology, 1991, Edinburgh, T. & T Clark. By making such an observation, the author is focusing on the 'human personhood' aspect of the individual, i.e. otherness and relation. The author uses the premise of relationships to. argue that the individual exists in relation to others and attention should be 23 reparation. The ideology of relational justice has been succinctly summarised in that it is "simultaneously backward and forward looking. It looks backward to the harm caused to the individual and the web of relationships, and forward to the restoration of the individual and the renewal of damaged and disturbed relationships."39 As this model of justice is considered to be reactive and yet progressive, incorporating retributive, reformative and restorative principles, it is argued that this model of justice allows for a holistic intervention approach. This thesis argues that problems faced by drug motivated offenders are such that a focus on criminality will not allow for long-term benefits. Where court dispositions include aspects'of all punishment rationales in treating and deterring offenders, intervention strategies are likely to be long-term and more successful. This relational aspect and relationship interaction highlighted by this model will be used as a perspective through which to view drug-related criminality and its concomitant problems. Although these models of justice may seem somewhat remote from the problems faced by drug motivated offenders, when considering the rationales and underlying principles of punishment, these models become very pertinent to how the offender will be sentenced. The dichotomy of the punishment and the medical models will be discussed in greater detail in chapter 3 where the issues of compulsion and coercion into treatment will be analysed. It is acknowledged at this stage that even though each justice model may have a different focus and emphasis, each model will have similarities in relation to rationales paid tp both the victims and relationships. For a further interpretation of the role of man, crime and society in relation to relational justice refer to Burnside, supra note 23 at 37-46. 3 9 Supra note 23 at 46. 24 of punishment. For example, when considering a punishment, each model will purport that its focus will deter the offender from committing future crimes. In most sentences, there will be an aim of deterrence, denunciation,40 and reparation 4 1 Despite the obvious advantages of each justice model, it will be argued that all of the rationales as presented above should be incorporated into a holistic approach addressing all of the needs of the offender i.e. including the economic, health and social needs. In the course of this argument, it will be suggested that for successful intervention into drug-related crime, the Criminal Justice System cannot provide 'the solution' in isolation, but must work with other authorities which have the resources to address many of the wider problems associated with drug-motivated crime. E x t e r n a l C r i m o g e n i c F a c t o r s . It is essential to consider the drug abuse and crime in a wider context, not as an issue in isolation. It is therefore relevant to approach the sub-culture of addiction and criminal activity with reference to a broad societal, economic and health foundation. Chapter 2 will aim to delineate how an effective intervention strategy should include cooperation between state authorities, community organisations and the Criminal Justice System to address drug addiction, related crime and aggravating factors. 4 0 Without trying to exhaustively define the role of denunciation within the respective justice model, the words of Lord Denning should be noted. "Punishment is the way in which society expresses its denunciation of wrongdoing and in order to maintain respect for the law it is essential that the punishment inflicted for grave crimes should adequately reflect the revulsion felt by the great majority of citizens for them... In my view, the ultimate justification of any punishment is... that it is the emphatic denunciation by the community of a crime." 4 1 This rationale of punishment is more commonly associated with the restorative model of justice, i.e. encompassing the prospect of reparation to the victim and society more generally. For a more detailed analysis of the restorative justice model, refer to Zehr, supra note 28. 25 Chapter 2 Taking a holistic look at drug addiction -A case study on Vancouver. Introduction When attempting to address the drug and drug-related crime problems that are plaguing many societies today, it is essential to adopt a broad perspective to ascertain the factors which may contribute to drug-related criminality. In forming a holistic intervention strategy, the drugs and crime 'enigma' must be placed in context. This chapter will attempt to set a context for the discussion of drug dependent offenders and will briefly discuss the role of the Criminal Justice System in intervening in cycles of crime and drugs. The chapter will highlight the complex issues and elements essential to the success of an effective penal policy. In order to ascertain how the Criminal Justice System may be most effective at intervening in crime and drugs cycles, the intervention strategies employed by the Vancouver City, provincial and federal governments and other related organisations in Vancouver will be described. However, before any discussion of intervention is 26 employed, it is necessary to examine the situational circumstances of those who are so frequently described as drug-dependent offenders. It is against a background of a changing paradigm of justice (e.g. from retribution to restorative justice - refer to chapter 1) that the complexity of the drug addiction problem is being recognised as an issue relevant to penal policy. Complexity of Issues Although there may be much 'expert opinion' as to the best methods of treatment and criminal justice intervention, the fundamental causes of drug addiction remain elusive: Despite efforts to determine the etiology of these behaviours, scientists have been willing to admit that comparatively little is known about the precursors of addiction other than those people who are described as addicts are said to display poor performance in major life roles (Nurco, 1981; Nelson, Pearson, Sayers and Glynn, 1982; Milkman and Shaffer 1985 and Nathan, 1980) 4 2 Despite this lack of evidence pertaining to the causes of drug addiction, it is suggested that certain factors contributing to the development of an addiction can be identified. Indeed it has been recognised that drug addiction is not merely a health (mental and physical) problem, but is also linked to social, familial, economic, educational and Theodore H . Blau, "Addiction and the Law" (November 1996) 3(2) Psychiatry, Psychology and Law 87-105 at 89. 27 demographic factors. For example, it has been suggested that "drug abusing offenders tend to have a variety of problems and deficits in addition to their problem with drugs."43 In a Review of Alcohol and Drug Services in Vancouver, (May 1997), it was stated that; Alcohol and Drug Issues are multi-faceted and complex. As such, they cannot be dealt with in isolation from the social determinants that influence population health - such as income, social status, housing, social support network, education, employment conditions, physical environments, personal health practices and health services, coping skills and early childhood experiences. Successfully addressing substance abuse issues requires a comprehensive strategy that incorporates a population health and holistic approach. This means considering the entire range of factors that determine health. In sentencing drug dependent offenders, such social determinants and environmental problems must be addressed. Problems pertaining to health. Health disorders experienced by drug addicts can not only be attributed to poor environmental conditions, they also exist as side effects of drug consumption. Such health disorders are frequently transmitted through the sharing of contaminated needles and syringes, and by using contaminated water to clean drug injection equipment. Addicts are known to suffer from many diseases such as endocarditis, sepsis, pneumonia, and Hepatitis B and C, all of which can be attributed to side effects or complications of ' Michael L . Prendergast, M . Douglas Anglin, Jean Wellisch, "Treatment for Drug Abusing Offenders under Community Supervision" (December 1995) 59 Federal Probation 66-75 at 68. 28 injection drug use. However, one of the more common health risks of injection drug use is the transmission of HIV and AIDS. Indeed, Health Canada's July 1995 quarterly surveillance update, AIDS in Canada, states that 11644 cases of AIDS have been reported in Canada as of June 30, 1995. Some 15 percent of female AIDS cases in Canada can be traced directly to injection drug use. Three percent of adult male AIDS cases can be traced directly to injection drug use and 4 percent of adult male cases can be traced to men who inject drugs and have sex with other men. 4 4 Despite the fact that such health disorders are (as indicated above) linked to the practicing of a drug addiction, certain social, legal and environmental factors have been supposedly identified as contributing to the health problem (Oscapella, 1995).45 It has been argued that a) prohibition laws have resulted in high drug prices thus forcing drug users to consume drugs intravenously (as opposed to 'snorting'), to ensure that the most efficient means of consuming the drug is used. b) Prohibition laws have marginalised a subculture of addicts who may share needles and drug injecting resources out of 'solidarity.' c) Prohibition laws have been slow to recognise the importance of safe-shooting rooms and have thus spent few resources educating users about sharing needles. 4 4 Eugene Oscapella, How Canadian Laws and Policies on "illegal" Drugs Contribute to the Spread of HIV Infection and Hepatitis B and C, December 1995, http://www.fox.nstn.ca In relation to the above statistics, it should be noted that these are the recorded cases of AIDS, and as such there may be more unrecorded cases, and many incidences of the precursor to AIDS i.e. HIV. 4 5 It should be noted that Eugene Oscapella is a proponent of decriminalisation, and as such his observations are noted in light of this fact. Whilst this chapter is not expounding the benefits of decriminalisation, it is relevant to note how some authors perceive prohibition laws to be harmful to the health of the addict. 29 d) Prohibition laws have promoted uncertainly about the viability and need for syringe exchange programs. e) High drug prices have forced addicts (particularly women and youths) into the sex trade to earn sufficient money to support drug habits. Such addicts not only face danger of disease transmission through injection drug use, but also through sexual intercourse. Indeed it is common for prostitutes performing unprotected sex to be paid more,4 6 and as a result prostitutes are more likely to be infected with HIV and other sexually transmitted diseases. After having unprotected sex and sharing needles with other injection drug users, transmittable diseases can be spread to a wider section of the community. f) The illegal sub-culture of shooting galleries may ensure that customers are supplied with infected needles and syringes, as opposed to buying new, sterile equipment. g) Drug laws and skepticism concerning needle exchanges (and similar services) in prisons may ensure that the prison turns into a high-risk environment for the transmission of such diseases. h) Society has tended to condemn the drug user rather than the drug addiction. Consequently society has often portrayed a reluctance to understand the importance of providing health care to drug addicts. In such situations it is argued that there is a distinct need to provide non-judgmental, open and approachable health care and health education to drug users. Information gained through first-hand conversations. 30 Once health impairment was recognised as a large part of the multi-faceted drug addiction problem, a need emerged to educate drug addicts (in addition to the wider society) as to the dangers of transmittable diseases and to the alternatives that may be available. Regarding education provision, it has been said that; Reducing the risk of HIV infections among drug users, and among other Canadians with whom they come into contact, will require many changes to current drug laws and policies. Among the most important are changes to laws that treat drug users as criminals, foster unsafe drug use practices, marginalize users from mainstream Canadian society, drive them to commit crimes or high-risk unprotected sex to maintain their habits, and increasingly place them in prisons where there is an extremely high risk of acquiring HIV infection. Failing to take measures to prevent drug-related HTV infections will cause unnecessary death and impose an enormous economic burden on Canada's health care and social security systems.47 Consequently it is recognised that, at present, there is a need for providing health-based relief to drug dependent offenders. Whether this intervention is through legislation48 or through social measures adopted by the community, in a coordinated drug strategy, health issues (such as those pertaining to transmittable diseases) cannot be lightly dismissed. Accompanying mental health/psychological disorders It is suggested that a large proportion of the addicted population suffer from some type of mental health problem, although not necessarily as a result of the addiction.49 Where the 4 / Statement on drug policy and HIV infection, passed at the plenary meeting of the 8 t h Annual B.C. AIDS Conference, Vancouver B.C. November 8, 1994. 4 8 Such a change of legislation may include a change to the interpretation of 'drugs' in the Narcotic Act and Substance Abuse Act to allow for drug injecting equipment to be provided and sold to addicts, and legislation allowing for proactive drug equipment provision within prisons i.e. allowing prison authorities to provide bleach kits and needles to addicted inmates. 4 9 Dr O'Shaughnessy, in his presentation at the 1998 speech to Vancouver's Coalition for Crime Prevention and Drug treatment, stated that "25% of IDU's in Vancouver study have had a diagnosis of mental illness 31 offender perceives it necessary to use illicit substances as a form of self-medication, either for a mental illness or physical disorder, it is improbable that the offender will be able to abstain from taking drugs when alternative support or medication is not provided. In attempting to provide help for the health aspects of the addiction, it is essential that unreasonable demands are not placed on the offender. Thus, if the offender shows sure signs of a physical or mental disorder, as a possible provoking factor for the addiction, such health considerations of the problem must be addressed. It has been suggested that "unless EDU's (injection drug users) are provided with stability in their lives, treatment will not be fully effective. This requires there to be an ongoing commitment to providing adequate mental health services and social housing for IDU's" 5 0 Services for Women Typically, in discussions about Criminal Justice System, women are rarely mentioned. Although this thesis will not give a comprehensive analysis of the role and place of women in the system, it will attempt to briefly allude to the needs of women in relation to sentencing drug dependent offenders. More recently the number of women that have been brought to the attention of the Criminal Justice System has markedly increased. Indeed, it is suggested that "women are more likely than men to be serving sentences for drug offences; they are overwhelmingly convicted of non-violent offences which arise and 31% of the seroconverters have a diagnosis of mental illness." Reported in the Proceedings package for the 1998 International Symposium. 32 from economic motives, such as theft, fraud, prostitution, drug offences and forgery."51 This increase in the number of women associated with drugs and drug-related offences highlights the importance of not only addressing the criminality and 'deviance' of female offenders, but also addressing the specific needs of these women being processed through the system. It has been noted that these women are "overwhelmingly low-income women and disproportionately women of color who are caring for dependent children with little family or social support." Consequently for women, (and not entirely excluding men) there is a need to provide treatment addressing these accompanying needs. For example, for the women who have responsibility for looking after family, effective treatment may require childcare, emotional and peer support, and prenatal/obstetrics care where appropriate. Indeed, women offenders additionally often have to contend with histories of physical and sexual abuse and the need for gynecological health care. It is suggested that penal policy should be at the forefront of advocating for policy priorities and services that increase women's chances of being able to support themselves and keep their families intact. These services include alcohol and drug treatment, housing, educational and vocational training, and access to comprehensive preventive and chronic medical care. It is therefore pertinent to acknowledge the increasing prevalence of female drug dependent offenders and to respond to the direct needs as presented by this category of offender. If policy makers wish to formulate a holistic response to the problem of drug-5 0 Millar, supra note 5 5 1 Brenda V . Smith, "Special Needs of Women in the Criminal Justice System" (Spring 1993) TIE Communique, Center for Substance Abuse Treatment. 33 related crime, it is essential that they consider providing a wide spectrum of services for women. Employment In relation to employment and relapse to drug addiction, it has been stated that "people who cannot find steady employment because they are illiterate or have a lack job skills will likely have difficulty staying away from drugs once they leave treatment."54 Those who lack job skills may have difficulty in obtaining employment and may consequently have to resort to criminal means to support drug habits. It should be noted that even for those addicts who have sufficient job skills to obtain employment, the very nature of drug addiction may ensure that addicts are unable to abstain from drug intake for a sufficient number of hours to maintain their employment. For those offenders who have little, if any chance of obtaining employment, reintegration into society may be difficult, if not impossible. The cost of supporting a drug habit of cocaine has been estimated as at least $100Cdn per day.55 Where financial means are not sufficient to support this type of addiction, it is more probable that the addict will resort to criminal means to obtain the money and enjoy basic subsistence. Consequently, there is often a need to provide education and vocational training that may go some way to breaking the vicious circle of detention release and crime. Michael L . Prendergast, M . Douglas Anglin, Jean Wellisch, supra note 43 at 69 34 A High-risk Environment and Social Needs Juveniles: Without entering a discussion of current literature examining the deviance and causes of criminality for young offenders, it should be noted that some researchers have highlighted the importance of examining the background of these youth to ascertain indicative reasons for criminal deviance. In relation to juveniles a number of relevant factors have been identified: [C]ommon etiological roots for high rates of delinquency and drug use include: early antisocial behaviour in elementary school, inconsistent parenting, lack of communication with parents, school adjustment problems, association with deviant peers, low degree of social bonding to prosocial individuals, positive attitudes towards drug use and delinquency, low self-esteem, high sensation seeking, low attachments to school and family, having alcoholic parents, poor school performance, low IQ and inadequate moral development (e.g., Carpenter et al., 1988; Hawkins, 1989; Hawkins, Lishner &Catalano, 1985; Huba and Bentler, 1984; Kaplan, Martin, & Robbins, 1984; Loeber & Dishion, 1983; Zuckerman, 1979).56 Regarding parental and guardianship influences, it has been suggested that "substance abuse-related crime runs in the family. Children of substance-involved inmates are at high risk of addiction and incarceration. Inmates whose parents abused drugs and alcohol are much more likely to abuse drugs and alcohol themselves."57 If this opinion is correct, it would indicate the importance of positively intervening into cycles of crime and drugs, ' Vancouver Police Department Operational Support Division, Drug Investigations, March 25, 1999, City of Vancouver, www.city.vancouver.bc.ca 5 6 Edited by Ralph Weisheit, supra note 16 at 228 5 7 C A S A report, supra note 1 35 and changing family and social environments. Considering that most addicts start to abuse drugs whilst they are teenagers, prevention may be the 'first line of defence' against drug-related crime. It is more effective to prevent drug abuse than treat drug abuse, and in doing so, this will require combating high-risk environments. Education and skills training. Some writers argue that drug addicts without education should be given the opportunity to obtain vocational and training skills. This education should not be merely limited to the qualities necessary to find employment, but should be extensive enough to provide general life skills training, and social adjustment and competency skills. Indeed the concept of cognitive and social skills development has been purported by some (e.g. Gendreau & Andrews, 1990; Izzo & Ross, 1990) as essential to effective social functioning; [t]he problem-solving approach to treatment starts from the assumption that successful functioning requires the ability to make effective use of various problem-solving skills and that deficiencies in these skills lead to various types of dysfunctional behaviour including crime and drug abuse...While training in problem solving focuses on how to think, social skills training is concerned more with specific or behavioural skills. Again the assumption is that teaching social skills will help the person learn more adaptive ways of functioning and relating to others.58 Michael L . Prendergast, M . Douglas Anglin, Jean Wellisch, supra note 43 at 70 36 As the required adaptive and cognitive skills will be specific to each drug dependent offender and community, it is purported that such skills training should be flexible, and focused on the distinct needs demonstrated by that offender. Indeed such prevention and treatment policies should be developmentally appropriate, age-specific, culturally sensitive and focused on the target population.59 Vancouver - A Case Study For the purposes of obtaining a broad understanding of the problems possibly contributing to drug addiction and crime, the area known as the Downtown Eastside in Vancouver, will be used as a case study. The Downtown Eastside is one of the oldest of the 23 communities in Vancouver, and spans the area of north/south from Burrard Inlet to Hastings Street, and east/west from Clark Drive to Main Street.60 Refer to Figures 2 and 3. ' INFOFAX, Lessons from Prevention Research, National Institute on Drug Abuse, U.S. Department of Health and Social Services, National Institutes of Health, http://www.nida.nih.gov/ 6 0 Information obtained from the City of Vancouver website: www.city.vancouver.bc.ca 37 Figure 2 Figure 3 Demographics At the beginning of the 20 t h Century, the area was mainly populated by immigrants, working class families and single men, and soon became dominated by an influx of Japanese immigrants. However, around World War JJ the area suffered a great loss of this Japanese population and became heavily industrialised. More recently the council 38 have attempted to make the area more residentially based and have attempted to provide community facilities for these residents. In 1996 the population of the area was 16076 (3.1% of the city's population) and had sharp increases in the numbers of people over the age of 45. The residents are culturally diverse (i.e. the area supports a large First Nations population) with a high proportion of Chinese. One particularly noticeable characteristic of the demographic statistics is the very high proportion of males; - 71.7%. This statistic becomes more relevant in the light of the realisation that "such changes in demographic composition affect the demand for housing, health care and community facilities such as recreation centres and parks and services."61 The age and offender type therefore becomes very pertinent to the specific details and provisions of long-term intervention strategies. H o u s i n g In August 1998, after demolition, conversion and closure, the number of single room occupancies (SRO's) was 6677. These accommodation units, usually located in residential hotels or rooming houses, consist of one room, usually about ten by ten feet (with little, if any furniture), and shared common facilities such as kitchens and washing areas if provided. Although residents may pay substantially more than 30% of their income for housing (usually from $329 to $358 per month), the hotels and SRO's are not 39 secure, are of no more than basic quality and are highly conducive to drug consumption and illegal activity (i.e. prostitution). Most residents of this accommodation do not have the socioeconomic means to move to better housing. Where SRO's are low-income housing by nature, the government provides non-market housing with fixed rates of 30% of income. In 1998, non-market housing constituted 39% of the low-income housing, providing 5007 units. The remaining low-income units in the Downtown Eastside are special needs residential facilities (SRNFs), which provide accommodation in combination with services for those with special needs (i.e. those with mental health problems, substance abuse problems, physical problems and those needing emergency shelter). Such housing accounts for only 8% of low-income housing with 1022 units in August 1998.62 Over the last couple of years, the number of low-income housing units has reduced at an average rate of 137 per year. This loss in accommodation raises uncertainties as to how intervention strategies will ensure provision of higher quality, low-income housing whilst simultaneously ensuring that there is sufficient accommodation for residents of the area. Although homelessness is not as big a problem as in Toronto, and other cities in Canada, it has been stated that; "in Vancouver, our 300 shelter beds are nearly always filled and perhaps another 300-600 sleep in the streets, under viaducts and bridges, or in parks."63 6 1 City of Vancouver, Downtown Eastside Community Profde, http://www.city.vancouver.bc.ca 6 2 A l l data is taken from P.Raynor, Administrative Report: Low-income Housing in the Downtown Core -1998 survey, Vancouver City Council, RTS No. 00434, Dept. File No.3308, C C File No.4656 at 2. 6 3 J Davidson, Prevention of Homelessness, (December 17, 1998) Vancouver City Council RTS No. 00422 at 2 40 Although 400 shelter beds are provided throughout the British Columbia Lower Mainland, 300 of these beds are located in Vancouver City. An extra 130 temporary beds are provided in the city during the Winter months although not all of these beds are located in the Downtown Eastside. Although in a 1997 survey it was found that The Lookout Emergency Shelter served over 2500 people, it had to turn away more than 1200 individuals. In relation to long-term housing provision, "[tjraditionally, the City has taken the approach that shelters are 'doors' to permanent housing, which implies that there is a need for a continuum of housing forms, ranging from institutional care to supportive housing to independent housing."64 Accordingly, accommodation development plans are important in improving the life for residents of the Downtown Eastside, and initiating stability for the homeless and low-income residents. Economic Status The Downtown Eastside is an area of low resident income. Significant numbers (79.7%) of the low-income individuals living in the Downtown Eastside have a median household income of $8748 in 1991, this being approximately one quarter of the city median income of $34174. Such evidence can be used to demonstrate that this is an area of low-income employment. Ibid, at 3 41 Services Many of the services that now exist in the Downtown Eastside were established as a direct response to pressures from residents of the community. The lack of financial institutions in the area65 promoted the establishment of a community-based bank, and specific needs presented by the women (particularly the prostitutes in the area) ensured the creation of the Downtown Eastside Women's Centre. Problems presented by drug addicts have been somewhat alleviated by substance abuse services and specific organisations which have focused on distinct, secular needs e.g. an overnight safe-house is operated for working prostitutes. On October 22, 1997, the number of addicts in Vancouver was estimated as at least 10000 in number for TV users - the largest population of intravenous drug users in any city in Canada.66 Treatment providers argue that the number of detoxification beds available in Vancouver is insufficient (particularly in relation to women) for this large number of addicts. In relation to mental health treatment provision it was stated that the number of places for treatment was reduced from 5000 to less than 800 in the Vancouver area. • "In 1994, the Province introduced legislation to provide banking services for low-income people in the Downtown Eastside. Over the past ten years, nine financial institutions left the area. Residents were left with expensive cheque-cashing agencies, and no other option but to carry (on person) all of their cash." City of Vancouver, supra note 61. 6 6 Dr. Michael O'Shaughnessy, speaker for Vancouver's Coalition for Crime Prevention and Drug Treatment, International Symposium, June 12-13, 1998, Vancouver, Canada 42 Health The health problems pertaining to illicit drug abuse were recently described in September 1997 by the Vancouver/Richmond Health Board, as being of epidemic proportions. The "overdose from injection drug use (IDU) has been the leading cause of death for adults aged 30-49 in this province with more than 300 deaths annually." 6 7 In 1996 surveys noted 307 deaths from overdose, primarily involving drugs such as heroin and cocaine (either individually or mixed together). 6 8 Illicit drug use as also been noted as increasing the likelihood of outbreaks of HIV, and Hepatitis B and C. In relation to HIV, "[ajmong injection drug users, 338 new infections were recorded in 1995, 387 during 1996 and 253 in 1997."69 It was noted that British Columbia is responsible for more than half of the Hepatitis C cases, and a significant proportion of the Hepatitis B cases reported in Canada, both of which are possibly attributed to a higher IDU rate (refer to Table 2). In Vancouver, estimates for this drug use have been focused on the Downtown Eastside where the change of drug choice from heroin to cocaine resulted in a need for more frequent injections of drugs to sustain the drug habit. For example, to sustain a cocaine drug habit, an addict may need to 'shoot-up' around 20 times per day. 6 7 Ibid. 6 8 Ibid.. 6 9 Millar supra note 5. 43 Table 2 Estimated Prevalence of HPV and Hepatitis C among Injection Drug Users, Vancouver B.C., 1988-1997.70 Estimates 1988-1989 1994 1995 1996 1997 Number of Injection Drug Users in B.C. 6000 to 10000 5000 to 15000 15000 Injection Drug Users in Vancouver: Percent who are HIV positive l % - 2 % 2% 7% 10%- 23% Percent who have Hepatitis C 88% Annual incidence of Hepatitis C 26% Figures for earlier dates are based on voluntary testing, while later figures are from prospective cohort studies. Thus, estimates for the different years are not directly comparable. The 23% estimate is from the Vancouver injection Drug User Study (VIDUS) conducted by the B.C. Centre for Disease Control, B.C. Centre for Excellence in HIV/AIDS, and a Community Advisory Board. Over 1000 injection drug users are being followed over time to estimate rates of new infection and to determine factors associated with infection or protection. Crime The Downtown Eastside is considered as an area with a high crime rate: "On a per capita basis, this area has more crime than anywhere else. With only 3.1% of the city's population, in the last half of 1997 it experienced 19.6% of the city's violent crime and 81.3% of its drug arrests."71 Although this area has a high crime rate, from 1997 to mid 1998 there was a reduction of all types of crime. It is claimed that ninety percent of the crime was related to drugs or alcohol. Chief Bruce Chambers of the Vancouver Police City Of Vancouver, Downtown Eastside Community Monitoring Report: Key Findings. 44 Department stated that "the future of crime reduction is in adding drug treatment to law enforcement, thereby reducing the number of addicts dependent on crime."7 2 As has been demonstrated previously, the problems associated with drug addiction are varied and complex. Vancouver's Downtown Eastside has many external crimogenic factors that contribute to making the area high-risk for drug addiction and drug-related criminality. Vancouver City Council is attempting to form an effective drug and crime intervention strategy to improve facilities, services and infra-structures in the area. Vancouver - Drug Abuse and Social Initiatives. Before discussing the strategic actions undertaken by Vancouver City Council, this chapter will consider programs that have made significant impacts on addicts in the Downtown Eastside. Such programs include harm reduction initiatives. Harm reduction initiatives The Canadian Centre on Substance Abuse National Working Group on Policy, 1997, defined harm reduction as "a policy or program directed towards decreasing the adverse City of Vancouver, Crime Prevention Seminar a Partner-Led Action, Vancouver's coalition for crime prevention and drug treatment, Newsletter Vol . 1 No. 1, April 1998. 45 health, social and economic consequences of drug use without acquiring abstinence from drug use." Such harm reduction services may consist of, but are not limited to, safe-shooting rooms, methadone-maintenance and needle-exchange programs. Health officers suggest that harm reduction strategies should be regulated and incorporated into a comprehensive health strategy rather than being isolated and distinct: "Although harm reduction strategies have been expanded considerably in recent years, services remain fragmented and in some cases, inadequate and accessible (Health Officers Council, 1998)." " Although harm reduction strategies may reduce the rate of HIV transmission, not all harm reduction programs have obtained political and public support. For example, regarding safe-shooting rooms, the Attorney General of B.C. said "it is not appropriate for us to argue that if you commit a crime and sell the bounty and then proceed to buy illegal drugs, you need a clean place to shoot that substance."74 Despite such ethical dilemmas, some harm reduction initiatives are effective in weaning addicts from drugs. In British Columbia, methadone maintenance programs (used for heroin addicts) currently provide for 4000 IDU's enrolled in such programs. Treatment providers argue that treatment services within Vancouver should be increased to ensure that sufficient treatment is provided through detoxification, residential care, maintenance on other drugs, and rehabilitative counseling. In 1989, Vancouver initiated needle-exchange programs to reduce the spread of HIV, AIDS and Hepatitis B & C. These programs provide opportunities for health agencies to increase client contact, provide education concerning the dangers of illicit drug abuse and 7 3 Millar, supra note 5 at 16 7 4 Attorney General giving a presentation at the University of British Columbia Faculty of Law, 1999. 7 5 Millar, supra note 5 at 19 46 sharing injection equipment, and promote safer injection use and sex practices. A number of health organisations and volunteer groups fund and support such programs whereby in return for a used needle, free clean needles are issued. These services have been highly utilised. In 1997, the organisation D E Y A S exchanged over 2.5 million needles, and needle return rates for agencies in Vancouver are estimated at 101%. 7 6 Service provision is not limited to daytime health clinics, it also exists through mobile 24-hour clinics. Such service providers intend for these programs to act as a bridge to further treatment and medical care for addicts. Addressing the 'wider issues'77 The City has recognised a need to address the problem of drug-related crime and is currently attempting to take a broad perspective through which to establish an effective intervention strategy. In 1997 the City created the 'Vancouver Coalition for Crime Prevention and Drug Treatment' to prevent drug abuse and drug-related crime, and to improve drug treatment within the area. This coalition actively proposes reform strategies and is attempting to initiate several community revitalisation programs "including a quality educational program, opportunities for business growth, and adequate provision for public health, safety and other needs of its population."78 The coalition is 7 6 For a comprehensive breakdown of the agencies and the health services they provide, see J. Brooks, Information on Needle-Exchange Programs in Vancouver, April 16, 1998, Vancouver City Council, C C File No. 4113, Administrative Report. 7 7 For a descriptive presentation of the strategic actions adopted by Vancouver City Council, refer to City of Vancouver, Program of Strategic Actions for the Downtown Eastside, December 1998, http://www.city.vancouver.bc.ca 7 8 City of Vancouver, Building a Future Together, The Downtown East-side Community Revitalization Program, October 1, 1998. http://www.city.vancouver.bc.ca 47 taking a proactive approach to drug related crime in Vancouver, and in June 1998 sponsored Vancouver's International Symposium for Crime Prevention and Drug Treatment. The coalition reported the problems faced by residents in the Downtown Eastside, and proposed an array of projects and initiatives in response. Whilst simultaneously supporting these projects, the coalition is embarking on a comprehensive Downtown Eastside revitalization program. This program includes: Community Policing: The City supports the opening of a number of community police stations in and around the Downtown Eastside area. On October 22, 1998, Vancouver City Council approved the assignment of a further 40 officers to patrol the Downtown Eastside area. Funding of $7.2 million was allocated to increase the number of police trained in problem-orientated policing methods, and fully dedicated to this area of the city. Alcohol and Drug Initiatives: The coalition is attempting to bring the problem of drug addiction and criminality to the attention to governmental officials and the public. Whilst recognising that additional treatment research is necessary, the coalition is attempting to reduce the incidence of drug addiction and to "break the link between drug addiction arid crime and to develop a full array of detoxification, treatment and ongoing support services."79 Such interventions are not limited to long-term treatment care but also provide for such services as a sobering Report #2, supra note 77 at 9. 48 centre and drug-free housing etc. Coalition members hope that these services will address and confront health issues linked to drug abuse and addiction. Justice System Initiatives; The City proposes that that law enforcement should focus on street criminals and drug traffickers who terrorize the neighbourhood, and suggests that such criminals should be penalised more severely. The City intends that 'streamlining' of the Criminal Justice System will reduce delays between arrest and disposition and where appropriate, criminal justice authorities should use diversion strategies for drug dependent offenders. The City proposes that rehabilitation programs and community restitution should not be restricted to offenders in possession of illicit drugs, but should be extended to encompass addicts who are convicted of property crimes.81 Initiatives to Improve Conditions on the Street; In responding to environmental factors, the city supports the Integrated Service Team's efforts to focus on 'problem premises,' and initiated several programs to address the aesthetic appearance of the area at street level. In conjunction with these community-based initiatives, the aim is to reduce the number of liquor premises, bars and similar establishments within the area - all factors that may contribute to a 'high-risk' environment. Through the Downtown Eastside Integrated Services Team, the City is vigilant of the activities within 2 n d hand stores, 24-hour stores and 'pawn shops.' The City recognises the significance of a large number of 2 n d hand stores and 'pawn shops,' 49 and has identified these stores as brokers, fencers and handlers of stolen goods. As many of these places provide 24hr service they are integral to a 'round the clock' drug trade. Consequently, in 1996 the council adopted a policy to reduce the sale of stolen property through such establishments. Relevant authorities ensure that liquor license allocation is more stringent in light of the 'detrimental effects'82 of these all-night bars and clubs. It is recognised that such actions may only be surfaced based policies (i.e. not addressing all of the fundamental problems of the area), yet one should not underestimate the importance of showing an interest in the maintenance of the area. Economic Development; "City staff in consultation with the Downtown Vancouver Association, Downtown Vancouver Business Improvement Association and the Vancouver Economic Development Commission are developing a strategy to bring business back to the Downtown Eastside."83 The council is currently attempting to ensure that commercial services, job training and employment opportunities are available for low-income residents, although it. is appreciated that this long-term initiative may be developing slowly. s u Ibid at 9 81 Ibid, at 10 8 2 For example, the large amount of violence committed as a result of intoxication ensured that the Downtown Eastside was by far the leading area for number of violent offences committed. "In 1997, there were almost 1400 incidents of crime against persons - over 18% of the city's total, in an area which contains only 3.3% of its population." City of Vancouver, Report #2, supra note 77 at 8. 8 3 City of Vancouver, supra note 78. 50 Housing;84 As homelessness and poor living conditions do not contribute to stability for drug addicts Vancouver City Council, whilst 'appreciating' that funding is primarily the responsibility of the provincial government, is supportive of improving the quality and increasing the quantity of low-income housing. In relation to housing, Vancouver has "taken the approach that the provision of longer-term housing is a priority rather than extensive construction of temporary shelters. Individuals and communities can find greater stability when longer-term affordable housing is available, rather than just overnight o r accommodation." Consequently over the last couple of years, governmental and city authorities increased the number of non-market housing in the Downtown core with plans to continue improving existing facilities. By December 2000 the City expects that housing plans will increase the number of low-income units by 1102. In November 1998, the City approved the contribution of $ 1 million for the purchase and renovation of two hotels. "Together, the Vancouver/Richmond Health Board, B C Housing, the Ministry of Human Resources, Canada Mortgage and Housing, and the City of Vancouver will invest a total of $5.5 million to provide 144 safe and secure rooms. These rooms will be offered to low-income singles living in the Downtown Eastside for $325 per month."86 The city recognises the importance of combining resources to focus on the problems of the area, 8 4 For a full text of the Vancouver housing policy see City of Vancouver Reports for Public Discussion, Supra note 77. 8 5 Director of the Housing Centre in consultation with the Director of Community Services, Social Planning, Policy Report, Social Development and Prevention of Homelessness, Vancouver City Council, December 17, 1998, RTSNo.00422. 8 6 City of Vancouver News Release, Ciry Contributes $1 million to Buy Downtown Eastside Hotels, November 19, 1998, City of Vancouver, http://www.city.vancouver.bc.ca 51 and will attempt to provide essential services to the community through these housing 87 renovations. First Nations Initiatives; As the Downtown Eastside contains a large number of First Nation peoples, the City recognises that it should provide services for the specific needs raised by this section of the community. Such services include First Nations street youth workers, senior groups, provision of land for development, and liaison work between the First Nations community and the police. In developing services for these people, the Council understands that research must be conducted to develop culturally viable and sensitive initiatives. Women's Initiatives; As the Criminal Justice System deals with increasing numbers of women, the City is attempting to provide essential services to address specific problems faced by women. Consequently, the city is providing funding for childcare services and for the Downtown Eastside Women's Centre, and supports the organisations that are currently working with street-involved women. Where additional funding is available, the City hopes to increase the number of drug and alcohol treatment beds available for women. Such services include the provision of medical services within the new housing complexes. 52 Urban Development Agreement and Strategic Joint Actions; The council is currently attempting to promote a coordinated response and action initiative to address the drug and crime problem in the Downtown Eastside. Such joint initiatives hope to secure cross-jurisdictional affirmative action whereby the relevant parties can develop a focused approach to future development. In creating a coordinated enterprise, the Council hopes to address the problems facing residents through community development, labour force development and strategic investment programs. The Council hopes to improve and establish job, education and skills training, job-readiness projects, youth job strategy developments, public service provision, innovative court operation projects, external investment projects through such programs. The city is attempting to ascertain and address the factors contributing to or aggravating a drug-related criminal lifestyle. The City recognises specific problems pertaining to the area and its residents, and the City is taking positive actions to address the large-scale drug abuse and addiction in the Downtown Eastside. The initiatives adopted by the City and coordinated partners demonstrate a recognition that the problem has more than merely medical aspects to it. Vancouver clearly demonstrates the issues and the complexity of the issues raised by drug addiction. This case study briefly highlights the main needs of the Downtown Eastside residents and identifies the initiatives used to address these needs. The city is attempting to take a broad perspective when examining the problem of drug addiction and crime, and is attempting to encapsulate a holistic response. The City is not only providing the resources for medical treatment, but is also attempting to address the wider problems which contribute to 'instability' and lifestyles 53 of drug and crime dependence. Although the City is taking this proactive stance in intervening into the problem of drug addiction, the City may have of a limited mandate in relation to the crime aspect. As the council does not have jurisdiction to make national policies pertaining to crime and sentencing, and although the council may expound the virtues of using diversion sentences for drug dependent offenders,88 it cannot ensure that these policies are adopted. Consequently, the role of the Criminal Justice System must be considered to determine its function in light of the nature and problems of drug dependent offenders. The Role of the Criminal Justice System. Is the Criminal Justice System necessarily involved? When deciding whether the Criminal Justice System should assume a role in drug addiction intervention strategies, one should note that the system is often indirectly and unintentionally involved in such issues. Both legislation and pressure on the judiciary to effectively intervene into crime and drug cycles, ensure that the system is almost overwhelmed with large numbers of addicts charged with drug or drug-related offences. For example, it has been said that; A distinction is being drawn here between violent and non-violent offenders. As has been identified by the Community Revitalization Program and Chapter lthe use of diversion sentences for violent offenders may be deemed highly inappropriate. 54 the extraordinary number of drug arrests has placed tremendous burdens on the already overloaded court systems, leading to severe overcrowding of detention facilities, increased prosecutor and public defender caseloads, case delay and the need for substantial additional court resources.89 Even though the Criminal Justice System does not present itself primarily as a feasible community option for responding to drug addicted offenders, detention facilities are presented with large numbers of drug addicts given sentences of incarceration. Although penitentiaries are not founded on rationales of treatment, they are forced to act as treatment facilities when containing large numbers of drug addicts who have either failed to obtain treatment, or have failed to complete assigned treatment programs. Therefore, although criminal justice authorities may not intend to address issues pertaining to drug addiction, the Criminal Justice System is forced to assume this vital role in relation to drug dependent offenders. Consequently the Criminal Justice System has the "longest history of policy and programs to address the treatment needs of this population."90 As a result of developing penal philosophy (i.e. to more recently restorative principles of justice), the Criminal Justice System is obliged to oversee and employ diversion sentences. For offenders deemed eligible for conditional or suspended sentences, criminal justice agencies must ensure that the conditions placed on the offenders are satisfied. The Criminal Justice System thus has a role in supervising the progress of offenders throughout treatment and performance of their sentence. Criminal justice authorities must therefore liaise and work with community treatment providers and proactively 8 9 Weisheit, supra note 16. 9 0 Jean Wellisch, Michael L . Prendergast, and M . Douglas Anglin, "Toward a Drug Abuse Treatment System" (1995) 25(4) The Journal of Drug Issues 759-782 at 762. 55 support community drug intervention projects. Researchers argue that "[ajlthough most of the problems are related to drug abuse, they are not necessarily caused by drug abuse; thus, they need to be addressed directly, rather than assuming that they will disappear spontaneously as the person enters recovery (McLellan, Luborsky, Woody, O'Brien, & Kron, 1981)."91 As the Criminal Justice System must work closely with community support services, it must ensure that it is aware of existing community programs and drug addiction prevention initiatives. It is therefore committed to liaising with external and criminal justice treatment providers in order to determine the most effective methods of dealing with drug dependent offenders. Satisfaction of Political Agenda In primarily addressing the problems of drug abuse and related crime, the 'war on drugs' approach, as advocated by many governmental administrations,92 holds much political appeal. In relation to drug-related crime, skeptics of drug abuse treatment often argue that the judiciary should 'get tough' on drugs and related crime. Such skeptical members of the political arena thus promote this 'war on drugs policy' and are eager to make 'bold' statements to the public and drug dependent offenders. Although politicians face Michael L . Prendergast, M . Douglas Anglin, Jean Wellisch, supra note 43 at 69. Such as those in America, Canada and the U K 56 criticism, 9 3 the Criminal Justice System is caught between these contemporary political debates, and is under a duty to enforce current political agendas. Consequently, the Criminal Justice System has a role, be it often a subservient role, to bring political policy into practice. In cases where politics control public policy pertaining to drug abuse, criminal justice responses may closely link to community political intervention strategies. Where government policy indicates a desire to strengthen legislation to deal more effectively with property crime, the justice system may be encouraged to 'hand down' stiffer sentences and larger fines. Identification of Offenders As a large number of drug dependent offenders come to the attention of, and are processed through the Criminal Justice System at some point, the system reaches a range of individuals who would not necessarily seek drug treatment of their own volition. Without treatment these addicts would be likely to continue their drug use and criminality after release from criminal justice supervision. The Criminal Justice System is therefore in the privileged position of being able to identify these individuals who have a serious crime and drug dependence problem; "[t]he widespread recognition that the Criminal Justice System provided a useful means of identifying drug-involved persons who might benefit from treatment led to a number of referral and diversion programs beginning in " For an example of the criticism of the political agenda behind the 'war on drugs' initiated in Canada see Ralph Henham, "Criminal Justice Sentencing Policy for Drug Offenders" (1994) 22 International Journal of the Sociology of Law 223-23 8 57 the early 1970's."y4 Where referral to the Criminal Justice System allows for identification of an offender's drug addiction, the opportunity arises for effective intervention into what are often the early stages of an offender's drug use and criminality. Thus, correctional services, often being the sole legal intervention into a cycle of crime and drugs, have the responsibility of providing effective relief in one of the few opportunities to combine legal coercion and pressure with a medical treatment and health care strategy. Indeed, "it is an important opportunity because these persons would unlikely seek treatment on their own, [and] without treatment they are very apt to continue their drug use and criminality after release.. . " 9 5 For convicted offenders with chronic substance abuse problems, the criminal justice system may be the only interface with drug abuse support, and the only opportunity to receive long-term supervision and intervention. In America it has been stated that [T]he revolving door analogy epitomizes the situation with hard drug-using offenders. Since a great proportion of American drug users are processed through some part of the Criminal Justice System during their drug-using careers, it makes a great deal of sense to consider that system as a location for treatment. Most inmates have not been treated in the community and state, when asked, they have no particular interest in entering treatment. Thus the Criminal Justice System is a major opportunity to bring to bear the state of the art in drug abuse treatment for this otherwise elusive population?6 Hence, the Criminal Justice System plays an essential role in identifying offenders who need drug treatment and longer-term supervisory care within the community. Weisheit, supra note 16 9 5 Douglas Lipton, "The Correctional Opportunity; Pathways to Drug Treatment for Offenders" (1994) 24(2) The Journal of Drug Issues 331-348 at 331. 9 6 Ibid ,at 333. 58 Assessment for treatment and sanction. The Criminal Justice System, by nature of its responsibility, must sentence offenders to the dispositions that will be most effective in deterring the offender from future criminality. Where an offender demonstrates a serious drug addiction 'integral' to the criminality, the Criminal Justice System has the responsibility of coordinating and overseeing treatment evaluations. In conjunction with the role of identifying offenders who would not seek treatment of their own volition, the sentencing stage of criminal justice processing provides a good opportunity for offender assessment. Consequently, criminal justice officials may have the role of evaluating the offender, the crime, and mitigating or aggravating factors. Bridging the Gap from Detainment to the Community Where a significant amount of resources are allocated, even inadvertently (i.e. through prison-based drug treatment programs), to drug dependent offenders, it is important that the methods of drug intervention are effective. However, even where treatment is considered 'effective,' the transition stage from detainment to the community has been identified as an important time in which the addict is most likely to relapse to drug use. Despite being of vital importance, this transition stage is often shown the least attention: 59 There are institution pre-release models that work (e.g. TC's ) and there are community models that work (e.g. intensive supervision with treatment). However too little attention has been given to the process of transition from institution to community. Both criminal justice and substance abuse experts have observed that important gains made during incarceration are not being sustained when offenders return to the community because continuity of care is either inadequate or non-98 existent. The Criminal Justice System is a system composed of many independent agencies and entities with separate justice jurisdictions and responsibilities. It is essential for these agencies to work together to promote a highly structured environment to which the offender can return after release: According to University of Florida researcher Roger Peters: Many offenders report feeling overwhelmed by the transition from a highly structured correctional environment to a less structured environment following release. At this time of concentrated stress, an offender enters a culture where little or no support exists - no job, no money, weakened or broken family ties - with immediate needs to plan daily activities, to begin interacting constructively in non-adversarial relationships, and to manage personal or household finances and problems." Effective and successful transition of offenders requires collaboration and cooperation between all of the community and criminal justice authorities, regardless of independent funding and differing missions and priorities. In such cases where the offender lacks the requisite support to maintain a crime free existence, one must recognise the role of the Criminal Justice System must be recognised. Where the offender faces many of the Therapeutic Communities 9 8 Gary Field, From the Institution to the Community, The American Correctional Association Publications, at 1, http://www.correcti.. .cortoday/field.html This article gives a good description of the theoretical underpinnings for continuity of treatment from the institution to the community from the perspectives of the Criminal Justice System and the offender. 60 problems as identified above, there is a distinct need for the Criminal Justice System to support the offender through reintegration and treatment stages within the community. Those who have been incarcerated for extended periods of time may be lacking in many basic life skills and the ability to solve day-to-day problems. The decisions about these new obligations can lead to serious consequences, yet often no individual or system is responsible for helping the offenders prioritize and balance challenges of life in the community.1 0 0 [emphasis added] The Criminal Justice System must thus control the transition stages of offender release to ensure that the offender is continually supervised throughout this period. Where the Criminal Justice System identifies a need for treatment and deems that diversion is a suitable option, criminal justice authorities are in a primary position to assess the needs of the offender and coordinate the necessary community-based treatment and supervision. Treatment coordination Regarding the Criminal Justice System, it has been suggested that; [f]rom the Criminal Justice System perspective, the offender is confronted with and by a system that really isn't a system in the usual sense. Little program coordination exists between arrest, diversion, conviction, probation, revocation, jail, prison and parole or post-prison supervision. While there are examples of excellent coordination to be found between " I b i d . 61 some of these points in the Criminal Justice System, they are exceptions to the more common phenomenon of lack of coordination.101 Although some authors may perceive the coordination within the Criminal Justice System as may 'lacking,' the 'system' is nevertheless has the responsibility of coordinating offender referral, treatment and aftercare. In extinguishing this responsibility and supervising offenders through transition stages, the Criminal Justice System must liaise with treatment providers and community support groups. As treatment organisations often have different goals, values and working practices than those employed in the Criminal Justice System, a body is required to bring treatment providers and justice authorities together to ascribe to one common vision. As many treatment providers have little, if any, experience in adapting substance abuse treatment specifically to individuals with criminal backgrounds, criminal justice authorities will have an appreciation of the problems associated with treating offenders and may significantly strengthen community-based treatment. As the "criminal justice population comprises a major percentage of those in need of substance abuse treatment,"102 the Criminal Justice System should support treatment staff who are dealing with criminally active drug addicts. Such parts of the Criminal Justice System will function alongside the treatment system, organised by common purposes and functioning as an Integrated whole. "These parts working together would offer a synergistic effect."103 Therefore to ensure that a long-term intervention strategy is initiated incorporating both health care and criminal sanctions, the Criminal Justice System must ensure it adopts the role as a coordinating support body. If 62 intervention is to be comprehensive, services and treatment must be exhaustive and diverse. Linkage between courts, criminal justice authorities, public health systems and community-based support organisations is essential. Where the Criminal Justice System identifies offenders with drug treatment needs, and refers these offenders to appropriate treatment programs, the remaining role is one of support for treatment providers and coercion for offenders. Consequently, the Criminal Justice System should maintain the jurisdiction to ensure completion of programs, to monitor and administer sanctions and to provide immediate and intense supervision. Applying pressure to complete treatment. In accord with providing support to offenders at transitions stages of criminal justice processing, the Criminal Justice System is in privileged position of placing legal pressure on the offender to complete treatment and to comply with the terms of the court disposition. Although formal incentives are often applied successfully within an incarceration environment, offenders may have little incentive to attend and complete treatment within a community setting. However, the Criminal Justice System entertains the role of coercing offenders to treatment, arid may maintain a legal pressure on them to complete and comply with the terms of the treatment program. The next chapter will ' Elizabeth A . Downes and Mary Ann Shaening, "Building Systems: Linking State A O D and Justice Systems" (Spring 1993) TIE Communique, Center for substance Abuse Treatment 63 include a more detailed discussion of the concept of compulsory treatment, although its relevance in relation to the role of the Criminal Justice System has been highlighted here. Summary Intervention into the lives of drug dependent offenders is a complex problem. Intervention cannot merely focus on punishment for deviance, nor can it only concentrate on the medical addiction aspect of the crime. Indeed it must pay regard to encompassing factors which may either provoke or contribute to the sustenance of an addiction. Thus [t]o significantly improve the ways this problem is addressed, the problem must be put in a broader, more inclusive context. In other words, the problem needs a "systems perspective." This will allow all the players and their "subsystems" to come together and gain a fresh understanding of how they participate in - and are affected by - the larger system for the substance abusing criminal offender.104 In relation to drug dependent offenders, the system needs to address more than simply health and 'deviance' considerations. Many other factors such as chronic histories of drug abuse, poor previous records of treatment program attendance, low socioeconomic status, unemployment, psychological disorders, inadequate social adaptability, unstable family influences and high risk environments, may all contribute to a revolving lifestyle of drugs and crime. 1 0 5 ' Refer to Roger H. Peters, "Relapse Prevention Approaches with Drug-Abusing Offenders" (Spring 1993) TIE Communique, Centre for Substance Abuse Treatment. 64 A successful treatment program needs a multi-disciplinary, multi-pronged approach to provide comprehensive services to drug dependent offenders. This approach should not be restricted to healthcare, community care and criminal justice intervention individually; indeed, it must be an approach based on a combination of all of these elements, paying regard to all of the possible factors contributing to a lifestyle of drug abuse and crime. Criminal justice authorities have the role of identifying drug-addicted offenders, making suitable assessments and supervising offenders within the community during conditional/community sentences or after release. As demonstrated earlier, the problems of drug addiction are wide and varied, and for drug abuse intervention and prevention initiatives to be successful, such concomitant problems must be addressed. As diversion programs operate within the community prevention and treatment programs must work at a community level. Where compulsory treatment forms an integral part of criminal justice diversion responses, justice authorities should ensure that the offender is assigned to effective treatment addressing all aspects of the drug addiction and criminality. 65 Chapter 3 Compulsory Treatment and Coercion; A rod for beating or a staff for guidance? Introduction This chapter will briefly discuss the possible criminal justice intervention strategies for drug dependent offenders, paying particular regard to the concept of compulsory treatment. As dealing with drug dependent offenders raises a distinct need for providing some sort of treatment, or at the least detoxification, one must look beyond traditional punishment principles and ideologies, to examine the forms of current treatment initiatives. This chapter will examine the dichotomy between medical intervention and punishment implementation in the light of the success of treatment and court dispositions. This thesis argues that effective intervention into the lives of drug abusing offenders must acknowledge and respond to the motivating factors of the crime, i.e. the drug abuse. The previous chapter established that the Criminal Justice System does have a significant role to play in the sentencing and treatment of drug dependent offenders, and this chapter attempts to demonstrate how the courts have intervened thus far. 66 Criminal Justice Intervention Strategies. Three possible responses exist to the problem of drug abuse and related criminality; the legalisation and decriminalisation of drugs, criminal punishment, and compulsory treatment (diversion, and coercion to treatment). There may be some overlap in facilities and sentencing principles/philosophies of the latter two strategies. Legalisation/decriminalisation of illicit substances In this present political climate, there is little evidence that the government will adopt a motion to legalise or decriminalise drugs. Advocates of decriminalisation, contend that the potential benefits of this movement will far outweigh the present costs of the 'war on drugs'. Such "progressive thinkers" argue strongly that decriminalisation would not only reduce the pressure on law enforcement agents, but would almost certainly have a positive impact on controlling drug supply and consequent drug abuse.106 However, opponents of the decriminalisation movement have argued that eliminating drug supply completely would be more beneficial than 'mere' decriminalisation. For example, in South Asia (Singapore) the authorities succeeded in controlling the drug epidemic and heroin usage through an aggressive policy to cut the supply of drugs into the country.107 1 0 6 For an example of the purported health benefits of decriminalisation, refer to Chapter 2, page 28-29 1 0 7 For an analysis and summary of various compulsory treatment initiatives throughout the world see Christopher D. Webster, "Compulsory Treatment of Narcotic Addiction" (1986) 8 International Journal of Law and Psychiatry 133 to 159. 67 Despite controversy as to the legality of drugs being provided/available, decriminalisation proponents argue that government regulation of illicit substances would necessarily remove profits from organised drug trafficking syndicates, and would thus have an impact on money laundering and other drug network related crime. Advocates of this proposition also purport that the regulation and taxation of the illicit drugs would ensure that drug prices are reasonable. They consequently suggest that where addicts can obtain drugs at a regulated and controlled price, those needing to purchase drugs will do so without resorting to criminal methods to obtain the funds. In ascribing to this philosophy, decriminalisation advocates argue that drug regulation not only impacts money laundering and organised crime, but, in adhering to the 'drugs causes crime' theory, that "decriminalisation would diminish crimes motivated by the need to support an expensive illegal drug addiction."1 0 8 Such advocates also suggest that decriminalisation would significantly effect corruption and crime, and that for ethical reasons, the state should not use the Criminal Justice System to enforce morality within the community: "[T]he State has no ethical foundation for either reforming values, priorities, and self-definitions of its individual members."109 Although advocates argue that decriminalisation legislation may be more conducive to effective health intervention, it is questionable as to whether such legislation will provide 'the answer' to drug-related crime and its concomitant problems. As this is presently a controversial contemporary debate with much wider implications, this chapter is merely identifies its relevance in relation to drug dependent offenders. Gostin (1991) pertinently stated that "the academic debate on the legalisation of drugs, 1 0 8 Peter B.Kraska, The Unmentionable Alternative: The Need for, and the Argument Against, the Decriminalisation of Drug Laws, See Weisheit supra note 16. 68 whilst conceptually useful, has so dominated discourse that it has actually impeded creative ideas for a public health approach within the extant legal system."110 It should be recognised that despite the progression and development of this debate, this option for crime control is not currently accepted politically and may face determined opposition. The Punishment Model: Incarceration as the primary sanction. For those who expound the dominance of the punishment model of justice, rationales of 'punishment' play a primary role in sentencing offenders. The focus of the punishment model is deterrence of the offender through traditional values commonly associated with retributive theories of justice e.g. deterrence, retribution, incarceration, and denunciation.111 For such theorists, the medical aspect to the problem (i.e. the drug addiction) is secondary to the criminal deviance. Although drug addiction may be acknowledged as a valid problem, the punishment model only allows for treatment to be subsidiary to that punishment. Consequently such punishment model advocates promote punishing the offender for the deviance (with the aim of deterring the offender from future criminality), before treating the offender for the addiction. Critics of a purely treatment orientated sanction i.e. Szasz, (1985), argue that treatment should not take a 1 0 9 C. F Abel and F. H . Marsh, "Punishment and Restitution: A Restitutionary Approach to Crime and The Criminal," (1984) London: Greenwood Press, at 79. 1 1 0 Lawrence O. Gostin, Compulsory Treatment for Drug-dependent Persons: Justifications for a Public Health Approach to Drug Dependency, (1991) 69(4) The Millbank Quarterly 561-593 at 576-577, at 562 1 1 1 This brief allusion to this area of penal philosophy is not intended to be comprehensive. A more comprehensive assessment of the rationales of sentencing has been performed in Chapter 1. However for an 69 dominant role in sentencing drug dependent offenders. This opinion exists on the premise that drug use should be regarded as entirely 'voluntary' and thus should not be subsumed under a category of addiction.1 1 2 Such theorists may suggest that offenders should be able to receive relevant treatment on request in penal settings: "Seen this way the addict is a criminal, responsible for his condition and best treated through imprisonment. This contrasts with proponents of medical and social treatment who argue that the addict is a sick individual and cannot realistically be held accountable for his own actions."1 1 3 In light of a progressive move to incorporate restorative justice theory and diversion opportunities, criminal justice authorities may give sentences of incarceration where 'alternative' diversion sentences and conditional sentences are inappropriate. Such circumstances would include severe crimes (i.e. violent or sexual in nature) or where there is evidence that the offender has previously failed to adhere to treatment orders and has resumed a lifestyle of habitual offending. Under this punishment model, conventional punishment (i.e. incarceration for habitual offenders) is considered as a better deterrent from habitual offending than primary medical intervention. However, criminal justice authorities began to recognise the importance of treatment as penal philosophy progressively incorporated the rationale of rehabilitation.114 Indeed, "the rehabilitative principle of diversion from the Criminal Justice System reached its high official summary of the purpose and principles refer to s718, Part XXIII - Sentencing, Canadian Criminal Code, and for a more descriptive analysis to Michael Cavadino and James Dignan, supra note 24. 1 1 2 Refer to Wayne Hall, supra note 3 1 1 3 Christopher D. Webster, supra note 107 at 138-139. 1 1 4 As an example, the Correctional Service of Canada noted the relevance of a dual strategy of reform and control by "actively encouraging and assisting offenders to become law abiding citizens while exercising reasonable, safe, secure and humane control," Mission Statement for the Correctional Service. 70 water mark in the decade beginning in the mid-1960's.""5 Consequently rehabilitation and treatment began to take an increasing role in deterrence-orientated sanctions; the result being prison-based drug treatment programs. Treatment researchers promoted a progressive countervailing theory (to the punishment model) claiming that "drug dependent persons who enter treatment are more likely to show improvements in their health, well-being and social functioning (Gerstein and Harwood, 1990; Hubbard et al, 1989)."116 Thus, the prison based drug treatment programs are commonplace in most, if not all, penitentiaries, despite frequent criticisms that are were under-funded, poorly staffed and only useful as short-term addiction treatment: [Ojne national survey found that only 4% of state prison inmates received any treatment, and almost half of the nation's state prisons were not served by any identifiable drug abuse treatment program (Tims 1986). Some report slightly higher provision of correctional treatment (Bureau of Prisons 1990), but at least two-thirds of prison treatment involves non-intensive periodic group of individual talk sessions. This level of intervention is probably not intensive enough to effect any lasting behavioural changes (institute of Medicine 1990, 119). For many in the Criminal Justice System, routing urine testing is the only treatment provided. [emphasis added] However, despite this rather bleak commentary of prison-based treatment services, the importance of providing drug abuse treatment within a prison context is evident. When an offender is in custody, the Criminal Justice System is presented with a logical and cost-effective point at which to address the drug addiction. Research, conducted into the 1 1 5 Lawrence O. Gostin, "Compulsory Treatment for Drug-dependent Persons: Justifications for a Public Health Approach to Drug Dependency" (1991) 69(4) The Millbank Quarterly 561-593 1 1 6 Ibid, at 8. 1 1 7 Ibid., at 8. 71 effectiveness of such programs, demonstrates a positive effect on the health, criminality and prospects of the offenders who have completed such programs.118 Despite the fact that prison-based correctional programs consider drug addiction treatment to be a high priority, a large proportion of the prison population will still be suffering from some kind of drug addiction upon their release from custody. As incarceration primarily assumes containment role, the aim of containment/punishment is inevitably more dominant than that of treatment e.g. "their budgets reflect that priority: additional prison space takes priority over rehabilitation programs."119 Prison-based drug addiction treatment is focuses more on the short-term medical addiction rather than supporting the offender within the community as part of a long-term economic and sociological intervention. The main disadvantage of relying on prison-based drug addiction treatment programs is that, by nature of the location of treatment, as explained in chapter 2, there is little help for maintaining a drug free lifestyle within the community after release. Consequently although offenders may receive help to overcome their addiction, criminal justice authorities can pay little, if any, attention the wider concomitant problems and to motivational pressures fueling the addiction. Nevertheless, one should not underestimate the impact of prison-based treatment programs. Many of the problems and issues discussed below are pertinent to the maintenance and success of such programs. The problems and benefits of such prison-based programs will not be discussed in this thesis. However a comprehensive analysis of these programs can be found in Brian E. Burtch and Richard V . Ericson, The Control of Treatment: Issues in the Use of Prison Clinical Services, (1979) 29 The University of Toronto Law Journal, University of Toronto Press, and Douglas S. Lipton, The Effectiveness of Treatment for Drug Abusers under Criminal Justice Supervision, National Institute of Justice Research Report, Nov. 1995. 72 The Medical Model: Compulsory Treatment - Coercion, Treatment and Diversion The medical model emerges from a changing paradigm of retribution to rehabilitation. As the value of treatment is now more prominent, the importance of addressing the 'root causes' of crime is apparent. In contradiction to the 'punishment model', medically orientated intervention policies focus more on the drug abuse/addiction aspect of the offence, and primarily address the addiction as opposed to the 'deviance.' The success of treatment. By concentrating on the motivation of the crime, criminal justice intervention is more long-term and proactive, rather than a purely reactive, containment response. Studies conducted (e.g. TOPS, DATOS and D A R P 1 2 0 ) , demonstrate that treatment programs have a significant impacts on reducing recidivism rates; The most comprehensive study (known as TOPS...) of drug treatment effectiveness found that after at least three months of regular treatment: (1) Regular heroin use was significantly reduced from 63.5 percent to 15.5 percent for those in methadone treatment. (2) 47 percent of regular cocaine users who had residential treatment abstained from cocaine for one year. (3) An offender was 30 percent less likely to be involved in predatory criminal behaviour from three to five years after treatment.121 " y Ibid., at 8 120 -pops _ Treatment Outcome Prospects Survey DARP - Drug Abuse Reporting Program D A T O S - Drug Abuse Treatment Outcome Study 1 2 1 Hubbard et al., Drug Abuse Treatment: A national survey in Effectiveness, (Chapel Hill: U of North Carolina Press, 1989), as reported in National Association of State Alcohol and Drug Abuse Directors, Treatment Works: The Tragic Cost of Undervaluing Treatment in the Drug War, N A S A D A D , March 1990 73 Although the TOPS and other pertinent surveys purport that treatment makes a considerable impact on the drug addiction status and criminality of the offenders, treatment may not be effective for every offender. Throughout the 'welfarism' era of penal philosophy, a skepticism emerged concerning the success of treatment initiatives. Welfarism advocates heralded the 'rehabilitation' philosophy was heralded as 'the solution,' despite rehabilitation programs being unable to guarantee effective deterrence for all offenders. However, despite this increasing skepticism of general rehabilitation programs and principles, in an overview of compulsory treatment, Stitzer and McCaul conclude'that incarceration by itself does not appear to have any effect on the future likelihood of returning to substance abuse and related crime. Because reductions in drug and alcohol use are generally accompanied by reduced criminal activities, however, indirect approaches to crime reduction including compulsory treatment make sense when dealing with criminally involved substance abusers.122 Additionally academics comment that "it has become increasingly clear that incarceration in and of itself does little to break the cycle of illegal drug use and that drug abuse treatment is demonstrably effective in reducing both drug abuse and other drug-related crime." 1 2 3 However, those who are more skeptical as to the possible results of treatment state that "the uncertain results of treatment for drug dependence must temper our at 13-22. The above text was cited in William G. Meyer and Jack Lutes, Sentencing the Drug Offender, 21 Colorado Lawyer, April 1992, 657-665 at 658. 1 2 2 Jerome J. Piatt, Gerhard Buhringer, Charles D. Kaplan, Barry S. Brown, Daniel O. Taube, The Prospects and Limitations of Compulsory Treatment for Drug Addiction, Journal of Drug Issues 04, Fall 1988, 5050-525 at 506 1 2 3 Ricardo S. Martinez, Drug Courts: An innovative Approach to Drug-Related Crime, Washington State Bar News, November 1997, v.51, no . l l at 26. 74 enthusiasm for a whole-hearted embrace of treatment under coercion as the solution to problems of recidivism, infectious disease transmission, prison costs and overcrowding."1 2 4 This chapter will later discuss the factors contributing to or hindering the success of drug treatment. Background In America criminal justice authorities initially conceived the concept of treatment for illicit drug use when the public health service created two prison hospitals for drug dependent offenders in Lexington, Kentucky (1935) and Fort Worth, Texas (1938). The concept of compulsory treatment (in accordance with rehabilitation principles and diversion from custody) has greatly influenced the Criminal Justice System, although diversion is by no means a new phenomenon. For example, a significant number of court dispositions include referral to prison-based treatment programs which employ tactics of legal coercion for treatment. As an incentive and effectively a method of legal coercion, these offenders are aware that compliance with and completion of drug abuse programs will be taken into consideration with parole boards and security rating assessments. Consequently even within a 'voluntary' treatment setting (i.e. where the prisoner has the choice whether to enroll in prison-based programs), criminal justice authorities exert subtle legal pressure to coerce and persuade prisoners to participate within these treatment programs. Where the court directly refers the offender to a treatment program, 124 Supra note 3 at 9. 75 the link between legal coercion and compulsory treatment is much more obvious. Indeed where courts divert offenders are diverted into compulsory treatment, the Criminal Justice System coerces the offenders to comply with the terms of the diversion program, knowing that non-compliance may result in the reinstatement of a conventional sentence, or prolonged detainment/readmission into an inpatient treatment facility. As the benefits of treating the offender are more highly regarded, criminal justice authorities are aware of the advantages of using compulsory treatment as a sentence and sanction. Advantages of Compulsory Treatment Cost - Benefit Analysis: One can only perform a cost benefit analysis in regard to the success of the treatment (i.e. in relation to treatment outcome and recidivism rates) and to the actual costs of treatment provision. Cost benefit studies (Hubbard et al. 1989; Tabbush 1986) suggest that every dollar spent in treatment would reap many more dollars. Some treatment advocates attempt to quantify the possible savings and indicate that every dollar spent would result in a $7 saving. With regard to resource allocation such researchers argue that [mjandatory treatment would significantly ease the pressures on the organs of the Criminal Justice System by avoiding the heavy costs of prosecution, trial, and imprisonment. Treatment in lieu of prosecution would also allow government to shift resources currently placed in expanding law enforcement, the judiciary, and corrections into treatment expansion.125 1 2 5 Lawrence O. Gostin, supra note 115 76 With regard to the location of treatment, criminal justice researchers acknowledge that it is less costly to treat offenders in the community than when incarcerated; "[i]n the USA the correctional and public health arguments for drug treatment under coercion have been reinforced by the economic argument that it is less costly to treat drug-dependent offenders in the community than it is to incarcerate them." The economic advantage of a treatment approach can be somewhat attributed to the broader benefits of medical intervention such as reduced social costs stemming from fewer arrests, prosecutions and incarcerations, reduced losses from theft, economic benefits of an improved labour market and reduced medical costs. Providing an effective forum for the Criminal Justice System: Chapter 2 establishes the role of the criminal justice system in intervening into habitual offending of drug dependent offenders and this chapter will explain how criminal justice authorities can provide effective intervention through compulsory treatment. The Criminal Justice System can reach a range of individuals who would not necessarily seek drug treatment of their own volition. Consequently "linking compulsory treatment to the Criminal Justice System provides the best opportunity for identifying cases of individuals who are seriously drug dependent, criminally involved and who could best benefit from D. R. Gerstein and H J . Harwood, Treating Drug Problems Volume 1: A study of the effectiveness and financing of public and private drug treatment systems, Washington, D . C ; Institute of Medicine, National Academy Press, 1990, cited in Hall, supra note 3. 77 treatment."127 The Criminal Justice System has the role of ensuring principles of compulsory treatment are incorporated into feasible sentencing options and "pre-trial diversion strategies for drug involved offenders provides an opportunity for effective intervention in what is often the early stages of an offender's drug usage and criminal activity." 1 2 8 Compulsory treatment initiatives encompass the interface between the criminal justice system and public health authorities. As treatment for the drug abuse/dependency comprises a significant component of a compulsory treatment order, 'in theory' the most immediate motivating factor for the crime (i.e. the addiction) will be addressed. Compulsory treatment "faces the public-health dimensions of drug dependency head on by providing interventions that demonstrably lower drug use and its associated morbidity, mortality and criminality. A public health approach to drug dependency emerges as critically important."129 In relation to drug addiction and associated criminality, " i f it is determined that the criminality of offenders is increasing as a result of their addiction, coercion may affect the likelihood of relapse upon release, and thus re-offending and recidivism.' 1 3 0 Compulsory treatment therefore, by the nature of its focus and medical intervention, is likely to have a greater impact on the recidivism rates of drug dependent offenders than other sanctions. 121 Supra note 115 at 582. 1 2 8 L o r i A . Jenkins, Pre-Trial Diversion Strategies for Drug Involved Offenders: Focus on Social Work Involvement, Journal of Offender Rehabilitation, Vol.22 (3/4), 1995, Pp. 129-140. 1 2 9 Gostin, supra note 115 at 574 1 3 0 The case for treating heroin dependent offenders under coercion is reinforced by evidence such offenders are very likely to relapse to drug use on their release, and hence re-offend and return to prison (Gerstein and Harwood, 1990; Thompson, 1995) - as noted by Wayne Hall, supra note 3. 78 Providing Health Relief: In relation to health intervention, compulsory treatment not only promotes medical treatment for drug addiction, it also creates an opportunity to address the wider health issues pertaining to drug abuse i.e. transmittable diseases and viruses such as Hepatitis and HIV. The importance of providing education and treatment related to such viruses (especially in prison-based settings) was recognised in the light of research (Dolan, 1991; Hammett, 1991; Wodak et al., 1991) which indicates that "[prisoners who have injected heroin are at a higher risk of having contracted HIV and hepatitis by needle-sharing prior to imprisonment."131 Further research suggests that; injecting heroin use is less common in prisons than in the community but the limited access to injecting equipment ensures that injecting in prison is especially likely to transmit infectious diseases because large numbers of users share the same needles and syringes without adequate cleaning. 1 3 2 Consequently sole reliance on incarceration as a means of containing offenders to prevent drug abuse and stemming the transmission of such diseases is ineffective (i.e. due to the extent of drug use within prisons and the lack of resources available to provide an adequate prison-based solution). A focus on incarceration with little initiative for long-term treatment and education may thus have a negative impact, not only on the health of the offender but also on the health of other prisoners. However, through compulsory treatment, criminal justice and health intervention may reach and focus treatment and 1 3 1 Hall, supra note 3 at 4. 79 health education on a wide target population. These elements of compulsory treatment give credence to the supposition that compulsory treatment, as opposed to incarceration and other non-treatment based sanctions, is likely to have substantial impacts on reducing disease transmission rates in prison populations and between drug users in the community. However, before extolling the virtues of the benefits of compulsory treatment in relation to HIV education and reduction, one should acknowledge that it is not the primary aim of compulsory treatment to address such wider health problems. Although this education may play a role in treatment, the main aim is to reduce criminality through addressing and confronting the addiction and criminal activity. Transmittable diseases should be seen as a problem warranting intervention itself, and compulsory treatment should by no means be considered as a sufficient intervention or the 'definitive solution' for this entire medical problem. Taking a Coordinated Approach As indicated in Chapter 2, when formulating a long-term crime prevention and intervention strategy for drug-dependent offenders, it is imperative that one addresses the wider 'root causes' of the crime. For example; [Research demonstrates that drug abusers usually have a host of difficulties or needs accompanying the presenting problem of drug abuse. 132 Ibid. The relevance of introducing harm-reduction programs in prisons should be recognised although this thesis will not discuss this issue. 80 Such needs are identified within social, familial, psychological, vocational, and medical contexts (Cook, Covington, & McGuirk, 1991).133 The authors suggest that only when these wider issues are addressed, will the intervention be successful in the long-term and therefore cost effective. Where the Criminal Justice System provides treatment through a community base (as opposed to in a penal setting), it is more cost-effective to address the drug addiction and related criminality as part of a community focused and coordinated initiative. Although resources must be provided for law enforcement, for an effective and progressive drug/crime intervention strategy, drug treatment, education and life skills training must form an integral part of that initiative. Compulsory treatment intervention should not be perceived as a separate 'sanction' in itself, but more as an opportunity for criminal justice and medical/health treatment responses to combine with community aftercare, supervision and support. Essential elements of a successful compulsory treatment strategy: Certain requirements must be satisfied to ensure the success of criminal diversion strategies. Such requirements include, but are not limited to, ensuring the treatment is performed through a coordinated effort, ensuring treatment providers and criminal justice authorities are aware of their respective responsibilities and effective drug monitoring. Lori A . Jenkins, supra note 128 81 I m p l e m e n t a t i o n o f a c o o r d i n a t e d s t r a t e g y With regard to implementing this ideal, "policy makers should have learned that implementation is important, monitoring must be carefully carried out, and compulsory treatment should utilize existing, appropriately designed treatment programs rather than creating a whole new separate system."134 For the sake of legitimacy and public support, it is essential the Criminal Justice System does not needlessly duplicate resources and that resources are used effectively and efficiently. One of the advantages of using community based treatment resources is that local expertise can combine with criminal justice agencies to provide an intervention strategy, flexible and orientated to the local target population. However, when using such local facilities, the Criminal Justice System must provide sufficient resources to ensure undue pressure is not exerted on existing facilities and treatment providers: The use of existing treatment services to provide treatment under coercion requires funding of additional treatment places for persons being treated under coercion. The failure to do so will place an undue burden on existing community-based treatment services, thereby depriving those who voluntarily seek treatment from receiving it. It also runs the risk of impairing the effectiveness of community-based treatment if treatment staff are demoralised after being overwhelmed by the large numbers of reluctant and resentful clients. However, in observing the other extreme, where there is little, if any, interaction between criminal justice agencies and pre-existing local treatment facilities, the Criminal Justice 1 3 4 Carl G. Leukefeld, Frank M. Tims, "Compulsory Treatment of Drug Abuse" (1990) 25(6) The International Journal of Addictions, 621-640, at 631 1 3 5 Hall, supra note 3 at 25. 82 System may duplicate resources to the detriment of a coordinated, cohesive drug/crime intervention strategy. If the public are to consider compulsory treatment as 'legitimate,' criminal justice officials must ensure that treatment is effective within the community, and not a means of redirecting resources away from community facilities. It has been suggested that; the New York civil commitment program that was introduced in the late 1960's was nowhere near effective as its California counterpart (Inciardi, 1988). This was largely because the program attempted to create a new and separate treatment bureaucracy rather than using existing community-based treatment programs.136 Inciardi also noted that where hospital facilities achieved only minimal improvements, there was a notable lack of post-treatment supervision. Where criminal justice authorities provide oversight through combining compulsory treatment with community-based treatment, they can supervise the offender after discharge/release and provide realistic community-based aftercare and support. As local residential and outpatient clinics accommodate compulsory treatment clients, such facilities can continually supervise the offender and the transition stage between containment and release is not abrupt but continually supervised. At this transition stage, compulsory treatment providers are in the opportune position to liaise with criminal justice authorities and coordinate offender treatment throughout the release process i.e. from hospital or residential drug treatment units to supervision and aftercare within the community. Consequently, where medical 1 3 6 J.A. Inciardi, Some considerations on the clinical efficacy of compulsory treatment: reviewing the New York Experience. In Carl G. Leukefeld, Frank M . Tims, Compulsory Treatment of Drug Abuse: Research and Clinical Practice, NIDA Monograph No.86, NIDA, Rockville, M D , 1988. As noted by Hall, supra note 3 at 20. 83 treatment and aftercare can respond to the problem of unsupervised transition stages and can structure and maintain contact with the offender throughout the process. Constant supervision through release periods and after ensures that offenders are given the adequate external/legal support to encourage them to maintain drug-free lifestyles: "[T]he consensus view of researchers and practitioners convened by the US National Institutes of Drug Abuse (Leukefeld and Timms, 1988) was that long-term client aftercare and monitoring is an essential part of treatment."137 As an integral component of compulsory treatment is consistent monitoring and supervising of offenders, this method of sentencing has the immediate advantage over comparably appropriate sentences for providing long-term, effective supervision after release. Adequate specification of responsibility. Although it is imperative that the Criminal Justice System performs compulsory treatment in conjunction with community-based treatment resources, the very nature of a coordinated community and criminal justice response may result in a certain degree of conflict. In combining local and external resources and expertise, the roles and expectations of treatment providers and authorities are intertwined and linked. As the responsibilities of these organisations overlap, questions are inevitably raised as to the jurisdiction of the relevant parties and their exclusive role in providing and monitoring compulsory treatment. It has been argued that; 1 3 7 Hall, supra note 3 at 20. 84 [t]he effective and ethical use of coerced drug treatment accordingly requires a shared understanding of the likely benefits of treatment, and a clear statement of the roles of correctional staff, including agreement upon their respective responsibilities for monitoring and reporting upon an offender's progress in drug treatment.138 For a coordinated strategy to be effective, authorities and treatment providers must be aware their roles and responsibilities regarding the sanction imposed; "it becomes important therefore to more clearly delineate the responsibilities and provinces of each system while maintaining close cooperation."139 Each authority should also appreciate and ascribe to the vision of providing a long-term, comprehensive intervention strategy for drug motivated crime. A coordinated strategy can only be effective where each authority appreciates and understands the role of the other participants. Drug Monitoring. The compulsory treatment program must provide for constant drug monitoring of offenders to stringently enforce the treatment and requirements of the program. Throughout the treatment program, criminal justice officials should require the offender to submit to frequent drugs tests to determine whether the offender is complying with drug abstinence rules or whether the offender has consumed drugs whilst on the program. In order to provide effective drug testing, the U K Home Office recommends that treatment providers test for 'index drugs' (i.e. those on which the offender is primarily nsIbid. at 11. 85 dependent) with testing for further illicit substances where the relevant authorities have a suspicion of extended drug use. Treatment providers often use screening and immunoassay kits as an efficient, cost-effective method of testing for cannabinoids, opiates, cocaine, benzodiazepines, methadone, barbiturates and amphetamines. It has been recommended that "tests failed at this stage should generally be sent to a laboratory for a confirmatory Gas Chromatography/Mass Spectrometry (GC/MS) test...[and] all samples sent for confirmatory testing must be received and analysed under strict chain of custody to forensic standards."140 As a finding of drug traces in the urine may result in severe penalties for the offender, treatment providers must ensure that test results are accurate and immediate. Where treatment overseers perform concurrent drug tests, they should recognise that drug traces may linger in the body for considerable periods i.e. cannabis may remain detectable in the body for six times as long as opiates. This may account for the fact that offenders may repeatedly fail drug tests over a short period of time, despite only one episode of drug use. Consequently, regarding sample collection, criminal justice authorities should construe a refusal to supply a urine sample as a non-compliance with the terms of the program, unless a reasonable and acceptable alternative explanation is provided. Where the offender has a reasonable explanation, treatment providers should attempt to persuade the offender to admit drug use to the court, as often the courts and treatment providers will be aware of and will take account of occasional lapse of drug abstinence. Where the offender is unable to provide a sample at that time, treatment providers should try to arrange an alternative time for sample collection (e.g. as 139 Supra note 122 at 517. 1 4 0 Home Office, The Crime and Disorder Act: Guidance for practitioners involved in drug treatment and testing order pilots, http://www.homeoffi...cdact/dttguid.htm#3. Crown Copyright 1998 86 soon as possible). Where the offender repeatedly fails to produce a sample, officials should give warnings as to the consequences of not providing a urine sample on request, and undertake consequent enforcement actions/penalisation. Effective assessments. In determining which 'treatment' the offender will respond to most effectively, treatment overseers and criminal justice experts perform assessments to ascertain specific details about the extent and type of drug addiction. These assessments, if undertaken thoroughly and followed, ensure that the offender is referred to the treatment from which he/she will benefit the most. Assessments are not limited to initial treatment appraisals - they are also performed periodically to evaluate offender progress and to determine whether the offender can advance to the next stage of treatment. As these assessments have a great impact on the referral and progress of the offender it is imperative that they are accurate and realistic. Chapter 4 will give a more detailed explanation of offender assessments. Ensuring legitimacy of compulsory treatment through maintaining offenders' rights - what is the role of the judicial oversight? Where an offender is assigned to a compulsory treatment program, it is essential (for the legitimacy of that program) that the offender is not detained in for treatment for longer 87 than is necessary to provide effective drug addiction treatment. Although the supervision within the program may continue over a long period of time (e.g. through provision of aftercare and support within the community), criminal justice treatment intervention should not be more stringent than that of a sentence of incarceration. Even where an offender is not responding successfully to the treatment, in reinstating conventional sentences or ordering that the offender be readmitted to an inpatient facility for more treatment, criminal justice authorities should not impose indeterminate sentences. One must raise questions of legitimacy where the sanction for non-compliance with a program is more severe than a sentence proportionate to the initial crime committed. In some compulsory treatment programs, (e.g. the Drug Court program in Portland), a condition of enrolling on the program is that the offender must forsake certain rights.1 4 1 In such circumstances, the Criminal Justice System must have concern for the rights of the offender particularly where the court has limited accountability. Where intrusive compulsory treatment programs have some element of freedom restriction, and where the program fundamentally affects the offender, the need for judicial oversight is even more prominent. In all situations, the principles of justice (i.e. adherence to court rules and processes) should reconcile with the enthusiasm for treatment success and sanction application. It may be important to demonstrate to the offender that compulsory treatment is not only an opportunity for judicial authorities move beyond their normal sentencing boundaries to force treatment upon offenders. If an offender considers the 1 4 1 In the Sanction-Treatment-Opportunity-Progress (STOP) program, Portland, Oregan, under the direction of Judge Harl Haas, "defendants entering the program waive their grand jury and speedy trial rights. If they fail the program, they then face a stipulated fact trial based only on the police report." Michael L . Prendergast and Thomas H Maugh, "Drug Courts, Diversion that Works" Sum 1995, 34(3) Ralph Henham, 88 treatment system to be abusive, the offender is less likely to build a rapport with treatment providers and is consequently placed at a disadvantage in relation to responding to treatment. The perspective and attitude of the offender towards treatment providers and treatment may determine the success of the program in changing the long-term outlook of the offender towards drug abuse and crime. Criminal justice authorities must therefore recognise that regardless of numerous assessments, the success of treatment is somewhat dependent upon the attitude of the offender, e.g. how the offender responds to legal coercion for treatment. The Voluntary Client. The effectiveness of treatment is somewhat dependent upon offender characteristics, degree of social dysfunction and type of treatment the offender is assigned to. Although an offender may be referred to, diverted to, or encouraged to attend a treatment program, treatment providers cannot force the offender physically or mentally to 'successfully' complete, or 'actively' participate in the program. Where an offender is referred to a residential drug abuse treatment program and yet refuses to acknowledge the harmful effects of the drug addiction, treatment can rarely be successful: "Criminal Justice Sentencing Policy for Drug Offenders" (1994) 22 International Journal of the Sociology of Law 223-238 10-14 at 13-14. < 89 Accordingly eligibility criteria should focus on persons who are seriously dependent upon drugs and are susceptible to treatment...It serves no public purpose whatsoever to compel treatment of all users, at public expense, unless the need for treatment and the probable success of treatment are clearly established.142 [emphasis added] Where offenders recognise and accept that they have a disabling drug abuse problem, there is a greater chance that the treatment will be effective and that they will respond successfully to long-term treatment initiatives. A frequent criticism of the medically orientated model is that only the offender who wants to change, will change. It is thus imperative for offenders to admit and recognise not only their drug addiction, but also the problems associated with it. It has been said that "only when a prisoner sees himself or herself as being responsible for his or her present predicament is there any possibility of gain; only if the patient is willing to submit to the treatment is there any possibility of recovery."143 If the offender does not appreciate the detrimental criminal effects of the drug addiction, treatment providers may conclude that treatment will inevitably fail to have an impact on the offender, and that a conventional 'punishment' sentence may be the only feasible possibility. In such cases, it is necessary to consider whether compulsory treatment is a cost-effective, viable option. Where an offender blatantly refuses to participate within treatment programs, and specifies a preference to be processed by the traditional Criminal Justice System, it is ineffectual to sentence that particular offender to a compulsory treatment program. However in such circumstances it is certainly feasible for the offender to be legally coerced into attending and completing !Gostin, supra note 115 ' Webster, supra note 107 at 155. 90 such programs, contingent upon coercion for treatment ceasing to be the main sanction where the offender is unwilling to commit fully to that program. Coercion. Although program participants may have different motivations for enrolling in a compulsory treatment program, each offender will confront 'external' 1 4 4 and 'internal' 1 4 5 pressures to complete the program. Where participants commit themselves into treatment of their own volition, legal pressure and coercion would obviously not be a motivational factor for such commitment. For such program participants who have sought drug abuse treatment on their own initiative, motivational factors may include pressure from family, friends or employers etc. However, where an offender has not sought drug treatment voluntarily, and where an offender is considered 'susceptible' to treatment, the Criminal Justice System may legally coerce the offender through mandatory treatment referral. Although personal motivation and commitment factors play a large role in the success of treatment, external pressures such as those placed on the offender from the legal community (i.e. compulsory treatment and referral) can be a significant motivational factor for the offender. 1 4 4 External pressures may include any pressure being placed on the offender by a third party i.e. family pressure, legal pressure, employment pressure etc. 1 4 5 Piatt, Buhringer, Kaplan, Brown & O'Taube supra note 122 at 509. The authors give a more comprehensive analysis of internal pressures felt by the participant and highlight pressures such as "early family disruption, lack of role models for successful function through legitimate pursuits, poor educational and vocational skills...and a lack of general social skills." The authors recognise that these factors provide internal pressures which may contribute to the start or maintenance of a drug abuse habit. 91 Compton and Galaway, (1984) suggest that coercion is justified under two conditions: when clients are in need of protection because of their dependency (e.g. children, disabled persons, or the aged); and when there is a need to force rehabilitation on those who have violated the norms of society (e.g. criminals, the chemically dependent or the mentally i l l ) . 1 4 6 The same authors do however recognise that forcing rehabilitation upon a client may raise serious ethical ramifications i.e. on philosophical or constitutional grounds. Although "some researchers (Hartjen, Mitchell & Washburne, 1982; Piatt, Buhringer, Kaplan, Brown & Taube, 1988; Rosenthal, 1988) have argued that little benefit can be derived when a drug user is forced into treatment by the Criminal Justice System," 1 4 7 other research suggests that there is no difference in the completion rates of voluntary clients as opposed to legally coerced clients: "[t]he TOPS study also found that those individuals who were under legal pressure to undergo treatment did as well as or better than those who voluntarily sought treatment."148 The Institute of Medicine observed that "contrary to earlier fears among clinicians, criminal justice pressure does not necessarily vitiate treatment effectiveness and probably improves retention."149 Additionally research indicates that "treatment with legal coercion, when combined with compulsory treatment community aftercare produced better outcomes, but not vastly different outcomes from Vered Slonim-Nevo, "Clinical practice: treating the non-voluntary client" (1996) 39 International Social Work, 117-129 at 118. 1 4 7 David Farabee, Michael Prendergast, M . Douglas Anglin, The Effectiveness of Coerced Treatment for Drug Abusing Offenders, at 3. Paper prepared for the U C L A Drug Abuse Research Center, presented and distributed at the Office of National Drug Control Policy's Conference of Scholars and Policy Makers, Washington, D . C , March 23-25, 1998. 148 Q f f j c e 0 f National Drug Control Policy, Understanding Drug Treatment, White Paper, June 1990, at 9, and Pringle, Impact of the Criminal Justice System on the Substance Abusers Seeking Professional Help, Journal of Drug Issues, Summer 1982 at 275-83 as noted in Meyer & Lutes, supra note 121 at 658. 92 voluntary patients."150 Through similar studies, researchers acknowledge "previous studies which found that clients referred by the criminal justice system often stayed in treatment longer, implying stronger motivation"1 5 1 and suggest that "clients who stay in treatment for longer periods of time have lower subsequent drug use and criminal activity." 1 5 2 Despite the argument expounding the futility of legally compelling offenders to embark on treatment programs, research indicates that the main factor influencing the success of treatment programs is not the willingness of the offender to participate, but the length of time in treatment: One research effort in particular, 'Evaluating Recovery Services: The California Drug and Alcohol Treatment Assessment', clearly demonstrated the benefits of treatment as it relates to criminal activity...the longer the hard-core users stay in treatment, the greater the reduction in their criminal activity and in the costs associated with this activity.1 5 3 Therefore, even where an offender, (initially hostile to the concept of treatment, and having no personal intention to seek help for the addiction), is legally coerced to attend treatment, evidence suggests that the treatment may have a positive effect on that offender. Research not only indicates that there is no difference between success rates for 1 4 9 Gostin, Supra note 115 at 579. 1 5 0 Leukefield & Tims, Supra note 134 at 628 151 Ibid.. 1 5 2 Michael T. French, Gary A . Zafkin, Robert L . Hubbard and J. Valley Rachal, "The Effects of time in Drug Abuse Treatment and Employment on Posttreatment Drug use and Criminal Activity" (1993) 19(1) Journal of Drug and Alcohol Abuse, 19-33, at 20. It should be noted that the authors give a comprehensive introduction to the TOPS studies performed. 1 5 3 USIS Washington File, Fact Sheet: Demonstrating Effectiveness of Drug Treatment, 04 June 1998, http://www.usia.government.. .bal/drugs/treat.htm The results of this study are relevant in recognising the importance of treating hard core users. It is noted that in America 'two-thirds of the Nation's supply of cocaine is consumed by about one-quarter of the total number of cocaine users.' 93 voluntary and legally coerced clients, it demonstrates that legal coercion may be effective in providing a constant motivational pressure. Offender participation in treatment choice and referral. Although coercion and compulsory treatment is termed "an alternative to custody", it often includes some restraint on the liberty and autonomy of the offender. Many of the programs require some type of residential treatment, often over extended periods of time, and at the least, attendance at outpatient methadone maintenance or detoxification treatment clinics. Although many perceive community-based compulsory treatment as a 'soft-option' compared to imprisonment, intense supervision and drug monitoring should demonstrate to offenders, corrections staff and the public, that the scarce treatment resources cannot be exploited by those wishing to avoid punishment for crimes committed. It has been said that the intense form of supervision and residential treatment is often more punitive than traditional punishment options, and as a result offenders may prefer to be sanctioned under the traditional system rather than receiving sentences of indeterminate length: Many of those arrested will prefer to be processed by the criminal justice system rather than through a diversion program. For instance, in New York City, the probability of actually being prosecuted, found guilty and serving sentence was too small to be a motivational factor to those arrested for non-violent drug related crimes. 1 5 4 94 Where an offender adamantly asserts such desire to be sentenced under the conventional system, the Criminal Justice System should recognise that the offender may not be eager to undertake treatment. Consequently treatment resources should be saved for offenders who are willing to confront their addiction and be diverted into compulsory treatment. The Criminal Justice System should allow the offender a right to right to choose whether to undertake diversion treatment, particularly where such treatment is highly intrusive. If the offender uses this right to choose diversion and treatment options, the offender is a 'responsible agent' and should be credited with accountability for his/her decision. Where the offender has specified a preference of sentencing body and type of sentence, the offender is expected to comply with that sentence. Even where the offender may be enthusiastic to embrace the opportunities presented by the treatment, the extent of the offender participation and influence regarding treatment decisions, is yet to be fully determined. For example, should the offender be able to influence the decision on treatment referral? Should the offender be able to choose which program to enroll on, and where to complete the required participation? The Criminal Justice System must determine policies for the extent of offender participation, and the extent of offenders' rights once enrolled on the program. As offenders may loose freedom during compulsory program enrolment, may not choose which program/counselors to be referred to, and have little influence on treatment foci Webster, supra note 107 at 157. 95 and policies, even a 'voluntary'1 5 5 client has little control over the program progression and referral. Where legal pressure and control is dominant: the practitioner is faced with another therapeutic dilemma: using legal power may increase the client's sense of powerlessness rather than bringing about positive changes (Schottenfeld, 1989). The problem in the therapy of non-voluntary clients is thus how to use legal authority in order to facilitate genuine change without at the same time intensifying the client's sense of helplessness.156 The term 'voluntary' is thus limited regarding the influence of offenders over their own 'treatment' and progression. Criminal justice counselors and treatment providers define the problems of the participant whilst simultaneously having the authority to determine type, focus and duration of treatment without necessarily consulting the offender. Offenders may therefore be uniformed and often unaware of the extent of the authorities' jurisdiction to control the treatment. Consequently where an offender agrees to undertake treatment, this choice is not always 'voluntary.' This can be attributed to the fact that the offender has little influence over the control of the program and the alternative is a threat of progression through the traditional Criminal Justice System. "[T]he fact that the alternative to 'agreement' is a potentially severe prison sentence introduces a sure element of coercion into the program."157 1 M By referring to 'voluntary' in this sense, the author is meaning an offender who has agreed to become a client in a treatment program rather than being sentenced under traditional criminal justice sentencing. At this stage the offender has chosen voluntarily to embark on the program, yet would not have chosen of his/her own volition to initially seek out treatment. 1 5 6 Vered Slonim-Nevo, supra note 146 at 125. The author continues on to discuss the elements of a successful relationship between the client and treatment provider, specifically in relation to trust, transference and counter-transference. 1 5 7 Gostin, supra note 115 at 583. 96 Putting Compulsory Treatment into Practice. As the term 'compulsory treatment' is not restricted to one particular type of treatment program, offender diversion may occur at various different stages of the Criminal Justice System. After detection of an offence, but before the charge is laid (charges) Even at the earliest of stages, the police and law enforcement agents may have the discretion not to charge the offender if the offender agrees to enter drug treatment. As the police are not formally recognised sentencing agents, there would be little, if any, judicial oversight of this discretion to divert rather than charge. Although this may hot be considered as formal diversion, police pressure may coerce offenders into treatment even before charges are laid. Where offenders are diverted into treatment at such early stages, the burden placed on the proceeding sections of the Criminal Justice System is significantly eased. Although diversion through these means is possible, police may only practice this discretion where legally allowed. After charge is laid, but before the case is processed by the court (plea bargaining) Where members of the judiciary and prosecution have discretion in matters of sentencing, it is possible for the prosecution to combine with the defence and present a joint treatment 97 sentencing submission to the court. Where the prosecution is satisfied with accepting a lesser charge in exchange for admissions of guilt or for a guaranteed sentence, a plea-bargain is acceptable. The use of plea-bargains for diversion is again limited to where the legislation allows for the discretion. Where the offender has enrolled on a drug abuse treatment program before trial, and has shown commitment and progress within that said program, the court may postpone sentencing adjudication until the completion of the program. The court is then in a better position to give an appropriately relevant sentence. Defence lawyers often ensure that their clients are enrolled in treatment programs before trial, to demonstrate to the court that the offender is committed to the concept of ending drug abuse and criminal activity. Offenders may embark on such programs, not under direct legal coercion, but under the threat of future legal ramifications. After conviction (conditional or suspended sentences) If the offender is participating in treatment before sentencing, the completion of that treatment may be made a condition of a conditional/suspended sentence. In such situations coercion exists as encouragement to abstain from drugs and continue on the present program, rather than mandatory referral to a new program. Where an offender has reached sentencing stage before enrolling on a treatment program, the court may give a conditional sentence whereby the offender will avoid a sentence of incarceration on that premise that he/she complies with the conditions of sentence as determined appropriate by the court. Such conditions usually involve completion and graduation from an 98 assigned approved treatment program. Conditions such as these are not limited to sanctions; they may be attached as conditions of release on bail, probation or parole. As part of a sentence (community sentences and incarceration) Where the court has given a community sentence or a sentence of incarceration, it may attach additional conditions which the offender must satisfy whilst serving the sentence. For example, participation in and completion of a treatment program may be a condition of a community-based sentence in addition to performance of community service. Conditions of parole may also include instructions abstain from taking illicit drugs. As mentioned previously, treatment enrolment and a willingness to change may be effectively compulsory for offenders seeking lower security classifications in penal settings. Summary Although conclusive evidence cannot demonstrate that all compulsory treatment programs are effective for all offenders, treatment outcome studies strongly indicate that compulsory treatment has a positive effect on reducing the addiction of drug dependent offenders and thus related criminality. Despite controversy as to whether offenders should be legally forced to comply with unwanted treatment, the balance between the advantages of treatment and ramifications for the offender must be weighed to determine the best possible outcome. There is little evidence to suggest that legal coercion is 99 detrimental to the offender and an abundance of evidence suggesting that treatment outcomes are not noticeably different for voluntary clients. Although the attitude of the offender is relevant when considering how and whether an offender will respond to treatment, legal coercion is a method of applying external pressure to the offender who may otherwise be lacking the necessary enthusiasm to stay motivated and complete a treatment program. Success of treatment has not only been linked to personal commitment and motivation, researchers argue that the length of time in treatment is a more crucial factor in treatment success rates even where an offender is legally coerced into treatment. The issue of coercing offenders to treatment is a complex issue with many uncontrollable variables. However, the central themes of social policy discussions in 158 America and Germany give basic propositions for the effectiveness of compulsory treatment: • Pressure is inherent and pervasive in the social and personal systems of the drug abuser and should be harnessed for used in treatment. • Some proportion of drug abusers will require pressure to involve themselves in treatment. • Pressure, appropriately applied, can be a useful element in treatment experience. • The judicial system currently permits and provides the procedures for the application of pressure to induce a drug abuser to enter and remain in treatment. • There is a need to assess the pressures that can be applied in order to clarify their application and, if appropriate, to place controls on their use. • The drug abusing client is jointly within the province of both systems -judicial and health. Therefore, coordination between the two systems is essential and must be enlarged. Although the concept of compulsory treatment may seem unclear and in some situations inconsistent, the benefits of pursuing this method of drug addiction intervention make the Piatt, Buhringer, Kaplan, Brown & O'Taube, supra note 122 at 509-517 100 process worthwhile. Research should not be limited to considering the success of current treatment programs, but should be conducted with the aim of understanding how compulsory treatment can be a more effective pressure, and how it can be more extensively developed into a long-term community-based strategy. Part II Diversion Initiatives. 102 Modes and methods of diversion As compulsory treatment is a process through which offenders are referred to treatment, it acts as a comprehensive title for innumerable programs. This 'Part IT will give a few examples of the most prominent compulsory treatment programs, yet it is by no means a fully comprehensive list of all of the named treatment programs which fall into the category of 'compulsory treatment initiatives.' It has been suggested that "the major goal of most of the programs [reviewed] was to break the cycle of drug use and criminal activity, while at the same time decrease the burden of drug-related cases on the Criminal Justice System. (The impact of such a strategy results in the availability of court resources for more serious cases.)"159 Such diversion programs exist to treat drug addiction, and to provide extensive support for the participant, not only during the program, but also after the program completion. Treatment providers and criminal justice agencies attempt to go beyond the medical needs of the offender and take a holistic, broader approach recognising that systemic causes of the addiction need to be addressed. Most treatment programs discharge their services through day care, and outpatient and residential facilities. Methods used include 'Twelve step' and self-help support groups, individual, family and group therapy, life skills training, seminars and lectures, health drug abuse and ADDS education, educational/vocational training, acupuncture, relapse prevention, and drug testing.1 6 0 Generally most of the programs exist on a case management structure with emphasis on 1 5 9 Jenkins, supra note 128. 103 counseling and training, and with attention to concepts of self-help, responsibility and accountability. In most, if not all, of the types of diversion, the Criminal Justice System maintains the role of coordinator between the offender and the treatment providers. The various relevant organs of the Criminal Justice System refer offenders to diversion programs, monitor the progress and status of the offender throughout the treatment, and hence maintain contact with the offender and treatment providers through the duration of the program. Although the court will maintain consistent contact with the offender during the course of the program, the extent of the treatment providers' contact with the offender will vary according to the treatment program prescribed i.e. contact will range from outpatient contact to long-term residential treatment. Thus the role of the Criminal Justice System and treatment providers may vary significantly according to the nature of the treatment. As an indication of how the Criminal Justice System has attempted to utilise compulsory treatment, a few examples of mandatory treatment implementation will be given below. Civil commitment: (i.e. compulsory court ordered treatment as an alternative to incarceration.) This type of commitment was promoted by America and involves committing drug dependent offenders to a secure institution (often named a secure hospital) for long, often indeterminate periods of time, with the aim of ensuring a complete abstinence from drugs. Not only are the participants detained for detoxification, the commitment periods 104 are often extended beyond residential drug abuse treatment and included community aftercare and supervision. The program is neither considered to be punitive nor a penal sanction. It is a broad-based program encompassing a wide range of treatment techniques. Due to its acclaimed success, it was extended and consequently incorporated as an appropriate program through which mandatory treatment is conducted: 1. pure civil commitment, where the person was detained for mandatory treatment not connected with any current arrest or charge for a criminal offence. 2. Civil commitment in lieu of a criminal trial, where eligible persons were detained for mandatory treatment after being arrested and charged with a criminal Offence, and the treatment took place lieu of continued prosecution of the offence, that is, mandatory treatment while a criminal charge was held in abeyance. 3. Civil commitment following a criminal conviction, where the person convicted received mandatory treatment in lieu of a prison sentence or other criminal disposition... The maximum detention ranged from 3 to 10 years, and was determined according to medical, not judicial, proceedings. These mandatory treatment statutes applied to persons who, by reason of repeated use of illicit drugs, were addicted or in 'imminent danger of becoming addicted.' The statutes appeared, even then, to limit the confinement to persons who were not merely casual users, but who were emotionally or physically dependent on drugs.161 As a function of the Criminal Justice System, compulsory treatment is a mechanism which reduces the amount of drug abuse whilst dealing with the often associated criminal consequences of that abuse. Retention of the substance dependent offender provides opportunity for drug addiction treatment, and for training and socialization of the offender for release. The purpose of this diversion program was "to control and rehabilitate the 105 compulsive drug abuser by providing drug abuse treatment, monitoring drug use, and providing reasonable sanctions for program infractions."162 In order for the offender to fall within the ambit of the civil commitment program, the offender must satisfy certain conditions e.g. the offence committed must not have been violent in nature. The eligibility of the criminal offender to be enrolled in the civil commitment program is dependent upon offender assessments in criminal proceedings. Drug dependent individuals who are not criminally active are assessed in civil hearings. On completion of a civil commitment program, the offender is released into the community on the condition that the offender continues to participate in community based drug treatment i.e. as an outpatient client. 1 6 3 If the offenders fail to comply with the terms of the community-based treatment, or the civil commitment programs, they will return the original hospital from which they received initial treatment, or will be assigned to conventional correctional institutions. Although the USA initially strongly supported the concept of civil commitment, the enthusiasm for this type of mandatory treatment has waned. Reasons for such a reticence in using the mandatory treatment facilities may include pressure to promote a 'war on drugs,' and the fact that treatment is widely available within the community. Criticisms arose concerning the success of the program i.e. concerning the viability of a program whose main flaw was that it could ensure the offender was committed to treatment, yet could not guarantee effective participation. 1 6 1 Gostin, supra note 115 at 565. 1 6 2 Leukefield & Tims, supra note 134. 106 Additionally, the principles on which the civil commitment program was based, and the legitimacy of 'forced cooperation' was questioned along with the legitimacy of the program in relation to civil liberties and constitutional guarantees.164 During the 'war on drugs,' the Criminal Justice System diverted emphasis from treatment and drug education, to wage war on drug users, dealers and addicts. The new focus was on the criminality of the offender rather than treatment. TASC (Treatment Alternatives to Street Crime) In 1972, the Special Action Office for Drug Abuse Prevention (SAODAP) established the TASC program which was modeled on a court referral program. The main purposes of this program is to identify drug dependent users who are caught in the cycle of drug abuse and related criminality and to give the courts the power and authority to retain drug abusers for compulsory treatment. The programs allow for intervention and provision of some drug treatment relief within the community (as opposed to creating additional burdens for the already overwhelmed Criminal Justice System). "More specifically, TASC identifies, assesses, and refers drug-involved 163 Ibid. It should be noted that such intense supervision has been likened to the individual being under parole, and may include specified living arrangements, periodic visits from supervisors, and drug testing. 1 6 4 Gary G. Leukefeld, Opportunities for Enhancing Drug Abuse Treatment With Criminal Justice Authority, source unknown 107 offenders to community treatment services as an alternative or supplement to existing judicial system sanctions and procedures."165 Indeed, TASC employs creative strategies, including deferred prosecution, community sentencing, diversion to the voluntary treatment system, and pretrial intervention to help funnel drug users into treatment. TASC also utilizes traditional strategies such as probation and parole supervision, for probable and proven crimes. 1 6 6 The program refers the drug dependent offenders to community treatment where the requirements such as progress, attendance, employment, and social interaction are monitored. Where the offender fails to comply with the treatment or violates the requirements established by the judicial agencies (i.e. their TASC contract), the offender may be referred to the conventional Criminal Justice System for more intensive and punitive sanctions. For a discussion of the results of TASC programs note the research discussed above. The Boot Camp Program167 As a result of 'war on drugs' policies, this more military style initiative moved towards rehabilitation whilst simultaneously addressing what is considered as a breakdown in social values and social cohesion. The military style of this correctional program 1 6 5 James A . Inciardi, and Steve S. Martin, "Drug Abuse Treatment in Criminal Justice Settings" (1993) 23 (1) The Journal of Drug Issues 001-006 1 6 6 Gostin, supra note 115 1 6 7 A l l information taken from Rudolph E. S. Mathlas, James W. Mathers, "The Boot Camp Program for Offenders: Does the shoe fit?" (1991) 35(4) International journal of Offender Therapy and Comparative Criminology 108 resembles incarceration as the Boot Camp presents an immediate option of containment for drug dependent offenders in a strictly disciplined, regimented, command hierarchy manner. Thus far the program indicates "some success in separating the young, nonviolent first time offender from the heterogeneous population of medium or maximum security prisons". The methods used to effect changes are highly varied depending on the particular if not idiosyncratic view of correctional administration, as well as the level of expertise and training of staff. Frequently used methods include behaviour modification techniques, sustained psychological pressures through intimidation, and "encounter sessions" aimed frequently at verbal degradation of a particular individual. One program makes references to 'ventilation therapy', 're-educative therapy' though no explanation is given as to the rationale of this therapy, or what qualifications and training is required for the so called 'therapist' (MacKenzie & Shaw, 1990). However, such an intensive military style initiative raises doubts as to whether it is appropriate to try and implement the policies and the correctional methods used in a military setting into the 'civilian' correctional program policies. Indeed doubts as to the effectiveness of programs have been raised: Program administrators of state correctional systems face entirely different problems in providing a program for first offenders who had been involved in the abuse of drugs and alcohol. These problems include a broad range of offenders, both male and female, a wide diversity of sociological vectors, such as educational and vocational training, physical and mental health. Finally, state administrators of prisons cannot provide the released offender with a job placement and a structured life environment. 109 One can severely criticise this military-style incarceration initiative for drug dependent offenders, regardless of proclamations of success from advocates of the Boot Camp system. The Drug Court. One of the more recent sentencing options to be adopted in the United States is the Drug Court. The Drug Court is intended to work alongside current intervention strategies, not exist as a separate sentencing infrastructure. Chapter 4 gives a more detailed analysis of the Drug Court. 110 Chapter 4 The Drug Court Introduction In light of the apparent success of compulsory treatment in treating and deterring the offender from continued criminality, the importance of combining treatment with legal coercion and criminal justice oversight is now niore prominent: In fact, drug treatment in criminal justice settings is now a major part of the National Drug Strategy, not only as an alternative to incarceration, as with TASC, but also as an adjunct and an aftermath to incarceration. (Office of National Drug Control Policy 1989, 1992; Jonas 1989; Leukefield and Tims 1992) The current strategy clearly states that drug treatment and criminal justice are allies in the fight against drug use and appropriate actions by the Criminal Justice System can foster treatment effectiveness. Researchers have found that the threat of criminal justice sanctions motivates the offenders to enter treatment and perhaps more important, to stay in treatment for a period of time sufficient for behaviour change... The strategy supports the expansion and improvement of treatment for drug-dependent offenders, and the increased capability of the Criminal Justice System to identify, refer and monitor offenders in treatment.168 1 6 8 James A . Inciardi and Steve S. Martin, "Drug Abuse Treatment in Criminal Justice Settings" (1993) 23(1) Journal of Drug Issues 001-006 I l l Despite advocating a 'war on drugs' approach the drugs/crime problem, America is quick to expound the benefits of using treatment as a 'diversion' option. 1 6 9 This chapter will examine the dichotomy between medical intervention and punishment in light of the concept of the Drug Court. This chapter will add to the previous chapters by describing and assessing the contribution of the Drug Court to sentencing of drug dependent offenders. The evaluation will be performed in light of a broad perspective (building on chapter 2) and the success of treatment and punishment initiatives (as established in chapter 3). The Drug Court Program The Drug Court as a Sentencing Body Chapter 3 delineates how diversion may occur at various stages of criminal justice processing (e.g. charging, plea-bargaining and conditional sentencing). The need for a coordinating body is increasingly apparent where there is possible inconsistent application of discretion, little, if any, consistent documentation of diversion agreements and a lack of resources to ensure that conditions of diversion are being complied with. 1 7 0 1 6 9 Refer to chapter 3, Part II for examples of diversion programs combining criminal justice supervision with long-term treatment initiatives. 1 7 0 It has been noted that the case load for some probation officers is so extensive that they are often incapable of supervising and regularly meeting their assigned clients. 112 Presently Drug Courts in America are using two types of system of offender processing; slow-track and fast-track. Slow-track courts such as the Miami Drug Court involves placing the offender under the jurisdiction of the court, usually for up to 12 months...Other Drug Courts such as those in Chicago offer fast-track programs. They are aimed at transferring all drug offenders to special courts to move them more speedily through the system. They do not, as in Miami, have direct control over treatment. Yet it is that direct control which separates Miami Drug Courts from all others.171 Where the courts focus on processing offenders through the system as fast as possible, it is easy to speculate that the same problems facing the traditional system will soon overwhelm this Drug Court system. This fast-track processing of offenders raises concern about the rights of the offender, more so in the light of the suggestion that fast-track courts have seem to have little, if any, impact on recidivism. 1 7 2 It is common for the Criminal Justice System to 'set aside' courts with the jurisdiction to deal only with drug dependent offenders. Nevertheless, such courts often only act as referral agents and have a limited role in the treatment, motivation and encouragement of the offender. However, with regards to the Drug Court program, it is the proactive involvement of the courts and criminal justice officials which seemingly separates the Drug Court system from a 1 7 1 Philip Bean, "America's Drug Courts: a New Development in Criminal Justice" (1996) Criminal Law Review 718-721 at 719. 1 7 2 For a more comprehensive analysis of the fast-track Drug Court system see Barry Mahoney, "Drug Courts: What have we learned so far?" (1994) 17(1) The Justice System Journal 127-133. The author suggests at 129 that "faster case processing not only has no effect on recidivism but produces serious concerns about sentence proportionality, opportunity to raise a defence, and pressure to enter inappropriate pleas (Belenko, Fagan and Dumanovsky). The research on the New York Program and on Chicago's night Drug Court raises fears that the focus on expeditious resolution of drug cases may produce an 'assembly line' mentality that discounts unique aspects of a case of defendant." For a detailed description of the difference between 'Dedicated Drug courts' and 'Speedy-Trial Drug Courts' refer to Steven Belenko and Tamara Dumanovsky, Program Brief: Special Drug Courts, (November 1993) Bureau of Justice Assistance, Office of Justice Programs, 1-33 113 conventional criminal justice court merely dedicated to sentencing drug dependent offenders. In Vancouver, a court is effectively dedicated to the sentencing of drug dependent offenders although this court at 222 Main St., cannot claim to be a Drug Court. Although most of the offenders being referred to this court do have a drug addiction problem, the judges within this court do not have the responsibility of coordinating detoxification, treatment and aftercare within the community. The court, whilst possibly taking aggravating environmental factors into account, does not address these wide environmental factors and is reactive rather than proactive. Thus, although the court may be dedicated to sentence drug dependent offenders, the structure of the court and lack of coordination with treatment providers, ensures that it retains the status of a conventional court rather than being classified as a specialised Drug Court. The Present Problem At present court systems are struggling to meet the demand on their resources, and it is suggested that the courts cannot successfully and efficiently deal with the number of drug possession cases presented to them. In America; [t]he two most important problems have been the lack of speed in criminal justice processing and lack of intensity of the services provided. Usually a period of three to six months elapses between the time an arrestee is arraigned and the time that he or she enters a diversion program. During that period, the person has the opportunity to commit more crimes to 114 support drug use and the pressure from the court to succeed in diversion becomes more remote.173 Increasing numbers of drug dependent offenders create a pressure on the courts to respond effectively and swiftly to the problem. This is a pressure that unfortunately cannot be relieved by maintaining the current court regime and the present number of treatment vacancies. It has been said that "[w]ith the crack cocaine epidemic taking hold in the mid-1980's, the Criminal Justice System found itself in crisis, choked with cases that consumed increasing resources in a seemingly endless revolving door of drugs and drug-related crime." 1 7 4 Consequently in such instances, it is not uncommon for the courts and prosecutors, in areas of high drug consumption, to refuse to prosecute cases of personal drug possession.175 As this has direct impact on the role of the law enforcement, the police are no longer under a duty to 'maintain the law' by arresting individuals in possession of illegal substances where there is no obvious intent to supply. It is suggested that; [t]he organs of the criminal justice system (law enforcement, the courts and corrections) designed to provide a swift, sure punishment, have become so clogged by the weight of cases that they cease to function, and require increasing resources to provide an effective deterrence and minimally humane conditions the result is that courts cannot manage the drug caseload, which results in inordinate delays in the prosecution of other criminal offences. u i Prendergast and Maugh, supra note 141 at 10. 1 7 4 Martinez, supra note 123 at 26. 1 7 5 Although empirical research is needed to determine the full extent of the numbers caught but not prosecuted for drug possession, it appears from first hand observation that in some areas of high drug consumption, the police do not charge those offenders possessing drugs for personal consumption. It was implied that charging such offenders would be irrational in the light of lack of resources with which to prosecute these individuals. 1 7 6 Gostin, supra note 110 115 Even where the Criminal Justice System does not prosecute for drug possession, there are still numerous cases before the court which have an element of drug addiction or possession e.g. property offences committed by habitual drug dependent offenders. The individuals who are identified as habitual offenders demonstrate a failure on behalf of the traditional system to effectively intervene into a lifestyle of crime and drugs. Where the system is plagued by habitual drug dependent offenders, a convincing argument exists for the implementation of a new long-term intervention strategy which succeeds in halting patterns of habitual offending. Some writers perceive the failure' of the traditional system to be attributed to a lack of a clearly defined purpose, target population and understanding of the sentencing process, a lack of communication between key players and little, if any, understanding of how treatment may help each individual. 1 7 7 It was asserted that "it became increasingly clear that our traditional adversarial system of justice, designed to resolve legal disputes, was not particularly effective at addressing the major underlying issues of alcohol and other drug abuse."178 The concept of the Drug Court arises in the context of a deluged conventional court system. Reference should be made to Peggy McGarry, "Benefits of the Intermediate Sanction Approach" (Spring 1993) TIC Communique, Center for Substance Abuse Treatment. 1 7 8 Martinez, supra note 123 at 26. 116 A coordinating body The Drug Court concept emerged from "an experiment by the Dade County Circuit Court to call upon the authority of a sitting judge to devise - and pro-actively oversee - an intensive, community-based, treatment, rehabilitation, and supervision program for felony drug defendants in an effort to halt rapidly increasing recidivism rate...."1 7 9 This experiment was deemed successful, and at present Drug Courts are operational in 48 states in America, and have been expanded to and implemented in other jurisdictions e.g. Toronto, Canada. The Drug Court is not in itself a punishment sanction or a treatment alternative. The Drug Court is described as "one branch in the evolution in community-based court programs"180 and is perceived as a coordinating body with the duty of overseeing offender suitability assessments, treatment providers and community supervision organs, and which will interact with the offender. The Drug Court does not exist as an adversarial court in the traditional sense, but exists for the purpose of providing and coordinating intervention strategies for the offender who is caught in a crime and drug cycle. The Robert A.Pugsley, Drug Courts in the United States: A report card on their first ten years of operation, Southwestern University School of Law, Los Angeles at 3. In this paper, the author gives a detailed report of one specific Drug Court program; Dade County, (Miami) Florida. Additionally the author refers to a specific type of Drug Court that will not be discussed in this thesis. Such types include juvenile and family drug courts. Regarding the role of the juvenile Drug Court the author believes that "[w]hile the juvenile court traditionally has been considered an institution specifically established to address the juvenile's needs holistically, many juvenile court practitioners have found the conventional approach, in practice, to be lacking in effectiveness when applied to the problems of juvenile substance abusing offenders." Criminal Justice authorities have used the adult Drug Court model as a basis for adaptation to juvenile offenders. The author notes (at 13-15) that the adaptation and formation of a juvenile and family Drug Court is inherently more complex than creating an adult Drug Court and identifies certain key characteristics pertinent to this type of Drug Court. 117 court is a law enforcement and treatment overseer agent, which acts as a pivotal point for coordinating the punishment and treatment of drug dependent offenders. In this vital role as a coordinator, the court is in a privileged position to liaise with community and criminal justice organisations, and treatment providers, which have a positive influence, not only on the overall sentence of the offender, but on the community supervision of and support for the offender. As the court is perceived as a community based court, it is predicted that "along with community policy, community prosecution, and community corrections, these programs are evolving fast , gaining momentum, and spreading across the country. As the community justice field evolves into the 21 s t Century, so too will 181 drug courts." In examining the functioning of the Criminal Justice System some researchers suggest that it often appears not to be working as a system at all: [L]ittle program coordination exists between arrest, diversion, conviction, . probation, revocation, jail, prison, and parole or post-prison supervision. While there are examples of excellent coordination to be found between some of these points in the Criminal Justice System, they are exceptions to the more common phenomenon of lack of coordination.182 In light of such problems facing the criminal justice system, where community justice programs are gaining impetus, the Drug Court is placed in the privileged position of leading and coordinating community-based justice for habitual drug dependent offenders. In presenting the court as a community based response, the Drug Court organises and oversees the charging, sanction, treatment and community support for each offender. Consequently the Drug Court does not only give sentence but also ensures that the offender completes the program, and works with community-based post-release 1 8 0 Ibid, at 5. 1 8 1 Ibid, at 6. 118 supporters to ensure support and stability is given to the offender after program graduation. The Drug Court ensures that adequate support is provided, and coordinates a varied professionals and authorities. As an example, the new Drug Court in Toronto acts as a coordinated effort between the Centre for Addiction and Mental Health, the Criminal Justice System in Toronto, the Toronto Police Service, the City of Toronto Public Health and Healthy City Office, and various community-based services.183 In commenting on the new Toronto Drug Court, Patrick Smith, (Vice President Addictions Program, Centre for Addiction and mental health) said; "we expect that by providing treatment and support services to drug addicted individuals as an alternative to incarceration, we can help them to become stable and healthy citizens thereby contributing to community safety."184 Where community-based organisations provide drug treatment services, there is often a lack of co-ordination and common united goals between treatment providers. Where funding is limited and resources scarce, political maneuvering exists as a means to obtain finances, and the result is a non-cohesive approach to the problem. A coordinating body is needed to oversee community-based care for offenders and to solve problems of 'political disunity.' This alternative court therefore attempts to reduce the pressure on the traditional system, reduce duplication of resources and aims to make the whole court intervention more effective and efficient. Although each charity and community-based 1 8 2 Field, supra note 98 at 3 1 8 3 For a more detailed analysis of the Toronto Drug Court, see the Canada justice web-site: http ://www.canada.j ustice.gc .ca 119 treatment provider may have legitimate and genuine aims of successful drug treatment intervention, their services are often limited to those who voluntarily admit themselves to treatment. For offenders who are legally coerced into treatment there is a greater need for a united community response giving support and treatment in a non-political, united environment. Therefore in addition to its judicial function, the Drug Court has the unique role of coordinating a holistic response to the problem of effectively sentencing drug dependent offenders. As Drug Courts use local resources, community treatment facilities and community-based aftercare organisations, each Drug Court has a local focus. For this reason, each Drug Court may have similar foundations yet different, locally targeted and designed programs. "These courts are designed to reflect community concerns and priorities, access community resources, include community organisations in policy-making decisions, and seek general community participation and support."185 Where a particular characteristic of Drug Court participants is prevalent, the Criminal Justice System must target resources to that particular need. Research indicates that there are several dominant characteristics of Drug Court participants - a fact possibly requiring resources to be focused in specific areas. An American Drug Court Activity sample survey, performed under the National Centre for Justice Studies, provides information as to the age and sex of most participants; refer to Tables 3 and 4 Pierre Gratton and Patricia Begin, Government of Canada to award more than $1.5 million under the National Strategy on Community Safety and Crime Prevention to combat drug related crime, ( 9 December 1998) Solicitor General Canada, http://www.canada.jiistice.gc.ca/news/index en.html 120 Table 3 Age Range Percent of Drug (Years) Court Participants 18-19 3 20-25 21 26-35 40 36-45 27 46-55 6 Over 55 3 Table 4 Gender Percent of Drug Court participants Male 77 Female 23 As there are obvious trends in Drug Court participant characteristics, criminal justice authorities need focus resources on these higher percentage categories. Consequently, although each Drug Court may have the same ethos, the individual courts may vary slightly as to treatment type, location and nature of support, under the premise of reflecting local priorities and needs. The success of the drug court program can be attributed to the fact that the drug court system, whilst promoting sobriety and accountability, encapsulates a holistic approach to the problem of drug abuse/addiction, and related criminality. As part of the holistic intervention strategy, the court not only condemns the criminal activity, it also provides a pro-active, long-term, treatment and restoration strategy. Although the resources of the Pugsley, supra note 170 at 5-6 121 Criminal Justice System may not be directed towards providing a holistic solution, the Drug Court nevertheless recognises the importance of responding to environmental, social and individual factors aggravating addictions. Progressive thinkers within the court argue that the court responds to the factors identified in Chapter 2, by arranging the necessary treatment and services, and by reconciling such extra services with criminal justice supervision. The term 'holistic strategy' refers to a course of action initiating treatment and services for the immediate needs of the offender whilst aiming to deter future criminality through promoting sanctions for criminal conduct. The courts ensure that the role of the Criminal Justice System is fulfilled in providing sufficient transition stage support, stability and supervision for the offender after release: "Drug Courts combine intensive judicial supervision, mandatory drug testing, escalating sanctions, and treatment to help substance-abusing offenders break the cycle of addiction and the crime that often accompanies i t ." 1 8 6 Despite these comprehensive aims of the Drug Court, not all offenders are eligible to enroll on the Drug Court program. Qualification for the Drug Court Program. For the offender to be accepted onto the Drug Court program, certain qualifications must be fulfilled. The qualifications for obtaining a place on the program may vary depending on each individual Drug Court. However, most drug courts usually require evidence that 1 8 6 The National Association of Drug Court Professionals Drug Court Standards Committee, Defining Drug Courts: The Key Components, NCRJS 122 the offender has either an alcohol or drug problem/addiction, and assurances by parole committees, probation officers, and previous treatment providers, that the offender does not pose a threat to society. Typically the Criminal Justice System has restricted the use of the Drug Court to only those offenders charged with possession of illicit substances. Traditionally, as a matter of policy, entrance to the Drug Court program is denied to drug dealers, violent offenders, and long-term habitual offenders. Criminal justice agencies have noted that in Canada; it is usually the low-risk offender who is seen as 'needing a break'. First time offenders and those who were convicted of minor offences represented the majority of offenders in diversion programs...There are few programs however, that have targeted higher risk offenders and have managed them safely in the community. These programs offer some promise in providing a 187 true alternative to incarceration. Although property crime is often perceived as a more serious crime than drug possession (which some describe as a victimless crime), the habitual drug dependent offender also needs effective treatment intervention. In such circumstances the Drug Court program provides the opportunity to fill the lacuna of diversion programs for repeat offenders, and can create feasible alternatives for diverting such offenders where previous traditional sentencing methods have failed. This thesis argues that the Drug Court program should not be limited to cases of drug possession where it may have a significant impact on a wider category of offenders. Offenders with long histories of habitual offending, clearly demonstrate a need for treatment and socialisation. In such cases, one should question the wisdom of restraining the jurisdiction of the Drug Court to cases of drug possession. 123 Treatment skeptics may argues that habitual offenders, who have been thus far unsuccessful at complying with treatment requirements of a conditional sentence, should be denied a further opportunity of being diverted from custody and should be contained for the purpose of limiting harm to the community. However when considering that containment does not primarily address the addiction and that the offenders will return to that same community at the end of their sentence, is it not more prudent to ensure that they have a chance to obtain long-term treatment, support and community supervision? In theory the Drug Court program provides support and stability throughout the program where other programs and sanctions may be unable to ensure such close supervision. Where intervention for habitual offenders is to be successful, the offenders who have previously been caught in the revolving door of the traditional system should be given the opportunity to break out of that cycle. Although, initially, many drug courts focused on first offenders, increasingly, jurisdictions are targeting more serious offenders for several reasons: (1) a recognition of that apparent futility of traditional probation and/or incarceration sentences which have already been imposed on many of these defendants and have failed to prevent continued drug use and criminal activity; and (2) a policy decision to use the limited resources available to the Drug Court for persons with serious substance addiction problems, rather than those with less severe problems who might be served through other programs.188 The Drug Court Clearing House and Technical Assistance Project demonstrates the importance of not limiting Drug Court involvement to possession cases and extending J Nuffield, Diversion Programs for Adults, User Report No. 1997-05, Vol . 3, N o . l , January 1998, Ottawa: Solicitor General Canada. 124 resources to habitual offenders. In allowing the Drug Court to sentence drug dependent property offenders, sentencing will address the addiction, stimuli for the crime as well as the deviance. The Drug Court presents itself as a different and novel option for the drug dependent offenders who would usually be sentenced by conventional courts. Thus offenders who are particularly susceptible to relapse and recidivism may be much more appreciative of this innovative approach of coordinating healthcare initiatives with long-term educational services, social and economic support and supervision. Assessment for qualification Even where an offender is eligible for the Drug Court program, treatment providers may not deem the offender suitable for all of the available treatment programs. The treatment assigned to each offender is determined by variable factors specific to that particular type of addiction. Such variable factors include the addictive drug used and offender characteristics. As the effect of each drug differs, treatment must differ accordingly. For example, while the simultaneous or sequential use of certain substances will only have an addictive effect, the mix of other agents will generate a synergy leading to a reaction exceeding largely the expectations linked to the consumption of each one of the drugs taken separately.... The dosage and method consumption also constitute factors of great importance, that need to be taken into consideration Drug Court Clearing House and Technical Assistance Project, Summary Assessment of the Drug Court Experience, Drug Courts Program Office, Office of Justice Programs, U.S. Department of Justice, 1996, http://www.ojp.usdo.. .cpo/1996/assess.html 125 since the effect of the drug could vary according to these two factors (Blum, 1981; Tinklenberg and Murphy, 1972).189 In addition to the drug choice and method of absorption, the characteristics of the drug consumer may also affect the way the addict responds to a particular type of treatment. Addiction and detoxification speed and success may be dependent upon "the sex, weight, age, metabolic capacities as well as hormonal responses on the user's part (Gottheil et al, 1983)"1 9 0 Offender assessments are therefore necessary to determine what type of treatment the offender would be best suited to, and whether the offender can progress to the next stage of treatment: The evaluation of sentencing alternatives is based primarily on the offence committed, the offender's criminal record and a 'risk-needs' analysis. The probation department measures the 'risk' that the offender will reoffend with the medical, educational, vocational and psychological 'needs' or deficiencies of the offender. The greater the 'risk' of re-offending, the greater the 'need' for a more supervised or structured setting.191 Consequently, as the history, degree of social dysfunction and status and characteristics of each offender differs, uniformity in treatment and program sentencing may be lacking. Clinical assessments are effective methods of allocating appropriate treatment resources to those offenders who would possibly benefit the most from that particular type of treatment. As such clinical assessments now assume a larger role in assessing the status of the offender, they are continually conducted throughout the course of the program, occurring at all transition stages i.e. treatment 'needs assessment,' 'readiness for 1 8 9 Brochu, supra note 8 at 10 126 treatment,' comprehensive, treatment planning,, treatment progress assessments and 192 treatment outcome assessments. After being deemed 'suitable'1 9 3 for Drug Court sentencing, typically the offender is not automatically enrolled within the program. Due to the nature of the intervention, i.e. the period of intensive, often liberty constricting treatment, some writers argue that it is unethical to force an offender into a treatment focused and orientated program.1 9 4 The Drug Court therefore gives the offender a choice whether to enroll in the program or whether to be sentenced by a conventional adversarial court. Where an offender has a choice of sentencing body, judges within the Drug Court expect offenders to be accountable for their progress with treatment and within the program. Some speculate that where offenders have a marked input into sentencing and are given responsibility for their progress and commitment, they are more likely to have respect for the court system. In accord with promoting offender accountability, the Drug Court requires that offenders sign a Drug Court treatment contract. This contract signing signifies that program participants agree to abide by the terms and rules of the Drug Court and acknowledge that failure to comply on their behalf will result in reinstatement of a traditional sentence or referral to the conventional system. 1 9 1 Meyer & Lutes, supra note 121 at 657. 1 9 2 For a more comprehensive analysis of clinical assessment, reference should be made to James A. Inciardi, "Classification, Assessment and Treatment Planning for Alcohol and Drug-Involved Offenders" (Spring 1993) TIE Communique, Center for Substance Abuse Treatment 1 9 3 By using the term suitable, the author is referring to whether the courts will allow the offender to be considered for a Drug Court program. As has been mentioned earlier, at present most Drug Courts are presently restricted to drug possession offenders. By commenting on the term 'suitable' the author is recognising that the Drug Court and community based care program may not be appropriate for all offenders e.g. it may neither be possible, nor wise to allow a habitual violent offender to remain within the community. It may also be recognition that the Drug Court participation is generally focused on adult offenders. 127 In a similar system adopted in Australia, offenders expressed discontent that their original sentence would be reinstated for drug testing failure or non-attendance at treatment. "What seemed to them, at first, a 'soft-option', to escape a prison sentence was in reality a longer and more restrictive period of coercive treatment and reporting."195 Despite such indications that not all offenders will choose to enroll in treatment-based programs in the place of incarceration, some experts suggest that "the offender may have ulterior motives for consenting ... without seriously wanting to change."196 Where there is a possibility of offenders exploiting resources to avoid incarceration under the guise of accepting a treatment alternative, treatment providers and probation officers must make objective assessments of an individual's motivation for treatment: "[T]he Advisory Council on the Misuse of Drugs noted in 1991 that the normal problems of assessment of drug misusers were intensified in the Criminal Justice System, where offenders are confronted with a number of perceived disincentives to honesty." Additionally the Council recommends that treatment sanctions should not be ordered until treatment providers and overseeing organs agree and are sure that the offender is suitably motivated to complete the 197 programs. It is at this stage in the proceedings, the relevance and importance of accurate and realistic assessments is apparent. If treatment assessors determine that the offender is eligible to enroll on the program and the offender chooses to be sentenced in the Drug Court, the offender is required to join the program immediately. 1 9 4 Refer to Chapter 3 for a discussion of the issue of 'voluntary clients' and the ethics of diverting non-voluntary addicts into treatment. 1 9 5 Loane Skene, An Evaluation of a Victorian Scheme for Diversion of Alcoholic and Drug-dependent Offenders, Aust. & N Z Journal of Criminology, December 1987, 20, 247-268 at 254. 1 9 6 Home Office, The Crime and Disorder Act: Guidance for practitioners involved in drug treatment and testing order pilots, http://www.homeoffi.. ,cdact/dttguid.htm#3. Crown Copyright 1998, 1 9 7 For a more detailed analysis of treatment orders and the problems associated with such orders, refer to Home Office, Ibid. 128 The 'Players' in the Drug Court. Regarding the authorities active in the Drug Court, the role of the judge is a novel distinction between the Drug Court and the traditional system. In the conventional adversarial system, the judge will adjudicate on the case, give sentence and refer the offender to treatment. The judges themselves typically give little encouragement or pressure to complete assigned programs. The Drug Court program intends for the judge to assume the role of interactive coordinator throughout the offender processing. It appears that the judge undertakes a large, central role in the Drug Court, and results of all treatment, program compliance (or non-compliance as the case may be), urinalysis and community service participation should be relayed to the judge. In theory "[t]he participant's performance is immediately and directly communicated to the judge who rewards progress or penalizes non-compliance."198 The more 'progressive thinkers' in the Drug Court system assert that frequent and extended judge/offender interactions combined with recurrent court hearings all contribute to ensuring that the. judge is a forceful motivator for offenders' rehabilitation and reintegration. As the judge is the main encourager and will has the authority to determine the future of the offender on the program, the judge must be educated as to the needs, addictive behaviours, and weaknesses of participants whilst they are in the program. Despite the fact that the judge assumes a central role in the system, that role is not isolated. The judge works with other court and treatment experts i.e. defence and prosecution lawyers, treatment providers, community support bodies, social workers and other significant authorities/bodies: 129 Commonly used criminal justice personnel such as probation or corrections officers may or may not have the specialized training needed to provide effective drug abuse treatment related services. Although social workers are not the only human services professionals qualified to provide such services, they generally receive specialized training in these areas (US department of labour, 1992-1993.)... Only one program relied heavily on social work involvement. The Drug Courts project in Connecticut employed 6 social workers in an initiative to expedite drug cases as well as combat drug use. The social workers screen, assess, and refer drug-offenders to treatment services. They are also responsible for following up on positive drug test results, developing treatment plans, and providing support services. A team approach involving attorneys and social workers is emphasized in an attempt to ensure the best representation of drug-offenders. The other program that gave a limited emphasis to the use of social workers in providing treatment was the TASC program.1 9 9 The Drug Court intends that the judge, as coordinator, will adhere to the expertise of the other professionals in the system, whilst maintaining the role of central decision-maker. "The judge leads a team in which the prosecutor and the defence shed their usual adversarial roles and, once a defendant is accepted into the Drug Court program, the focus is on recovery and reinstatement of the law abiding community."2 0 0 The defence and prosecution each have a role in determining suitability for the program and in advising the offender of the purposes and rules of the program, and of the consequences should those rules be breached. As the judge takes the role of coordinator to whom all progress reports are made, treatment providers should be able to concentrate on their role of providing physical and mental support for those receiving treatment. Treatment providers, who are necessarily aware of the weaknesses and problems of addicts, are consequently not placed in the difficult position of deciding whether the participant should remain on the program. Pugsley, supra note 170 Lori A . Jenkins, supra note 128. 130 Despite requiring treatment providers to report breaches of treatment, the Drug Court program relieves treatment providers and counselors of the responsibility of imposing sanctions. They are thus free to develop trusting relationships with their clients. Treatment providers can however influence the decision whether to move the participant to the next stage of the program as such decisions are contingent upon the progress of the offender through detoxification and treatment stages. Within each group of treatment providers, the participant is assigned a personal counselor with whom daily contact is made. This counselor will provide treatment and support, and will periodically report to the judge. As the counselor does not have the authority to remove the participant from the program, counselors are expected to build a rapport with program participants. After program graduation, ex-addicts still maintain contact with the counselor to report medical and personal progress. 201 Treatment As the drug court intervention strategy is based on the provision of treatment (medical, physiological and otherwise), the participant must be willing to comply with the terms of that treatment: "In exchange for successful completion of the treatment program, the 2 0 0 Sir Denys Williams, Drugs, Criminal Justice and Social Policy: New Alternatives for an Old Problem, The International Society for the Reform of Criminal Law, 12 t h International Conference, Sherbourne Conference Centre, 9 t h August 1998, [unpublished]. 2 0 1 An extensive analysis of the individual components of the Drug Court program can be found in The National Association of Drug Court professionals Drug Court standards committee, supra note 177 131 court may dismiss the original charge, reduce or set aside a sentence, offer some lesser penalty, or offer a combination of these."202 Treatment provision and techniques. Within the Drug Court program, treatment initiatives are broad and comprehensive. By taking a health initiative, compulsory treatment will directly address public health dimensions by intervening in cycles drug abuse and its related morbidity, mortality and criminality. However, for treatment to be effective, treatment should not be conducted through sporadic and occasional treatment sessions. Advocates of the Drug Court program suggest that support and encouragement must exist beyond the confines of the program and in the community after the offender has graduated. Although treatment addresses drug dependence, as addiction is a recurring problem, the addiction must be continually resisted; "seen as a continuum, this process begins with problem identification and gradually diminishes to community-based aftercare support and services."203 As drug addiction is linked to wider issues2 0 4 than those relating to health, the Drug Court expounds a policy that takes a holistic approach to the problem. Thus treatment for the physical and mental health aspect of drug addiction and criminality may include, but is not limited to; 2 0 2 Pugsley, supra note 170 at 6 2 0 3 Harvey A. Seigal and Phyllis A. Cole, "Enhancing Criminal Justice based treatment through application of the Intervention Approach" (1993) 23(1) The Journal of Drug Issues 131-142 at 133. 2 0 4 Such wider issues include those delineated in Chapter 2. For additional information refer to D . R. Gerstein and H.J. Harwood, Treating Drug Problems Volume 1: A study of the effectiveness and financing of public and private drug treatment systems, Washington, D . C ; Institute of Medicine, National Academy Press, 1990. As cited in Wayne Hall, supra note 3 132 group counseling, individual and family counseling; relapse prevention; 12-step self-help groups; preventive and primary medical care; general health education; medical detoxification; acupuncture for detoxification, for control of craving and to make people more amenable to treatment; domestic violence programs; batterers' treatment; and treatment for the long-term effects of childhood physical and sexual abuse. Under the classification of 'other treatment,' the Drug Court provides support including education, skills-based training, practical living training, and vocational skills training. As integral to the program, the judge and treatment providers encourage vocational and skills training in order to provide offenders with sufficient skills to improve/change their home and personal environment after program graduation. Drug Courts usually have three treatment phases: stabilisation, intensive treatment and an aftercare/transition stage.206 Treatment Location The location of treatment depends upon the assigned treatment program. Not all treatment is residential, although this is certainly a viable option for those who have previously demonstrated a lack of commitment to such treatment programs and who do not have a stable, supportive home environment.207 Treatment may be provided through: 2 0 5 The National Association of Drug Court Professionals Drug Court Standards Committee, supra note 177 2 0 6 For a more description of the elements of these stages refer to The National Association of Drug Court Professionals Drug Court Standards Committee, Ibid. 2 0 7 For a description and preliminary findings of the F O D program which delineates a classification system to provide the courts with a reasonable criteria for deciding treatment see Duane C. McBride and James A . Inciardi, "The Focused Offender Disposition Program: Philosophy, Procedures and Preliminary Findings" (1993) 23(1) Journal of Drug Issues 143-160 133 1) Residential detainment. The most severe form of this treatment provision is where the offender is detained in a hospital-inpatient institution/facility. Traditionally drug abuse clinics were limited to those with socioeconomic means, although for drug addicted offenders, residential detainment, despite being somewhat akin to incarceration, is used for a larger percentage of the addicted population to provide stability whilst the offender is undergoing detoxification. Although under the Drug Court program, detoxification plays an integral role in the program, it is unnecessary to detain all offenders in inpatient facilities during the detoxification period. In relation to detainment through withdrawal periods, it is only essential to detain the most severely addicted offenders through this detoxification. In some programs where an offender is struggling with drug withdrawal and cravings, he/she can request to be excused from the program and incarcerated for a few weeks to make use of detoxification treatment beds which are often available in county jails (see for example the Miami Program). However as a part of long-term strategy, residential detainment provides an opportunity to introduce treatment whilst concurrently imposing a more structured lifestyle. The length of residential detainment, being dependent upon results of detoxification and treatment progression, is usually no longer than nine months. In the Miami Drug Court program, "the primary goal of phase 1, detoxification, is expected to last 12 to 14 days but frequently continues longer if a client has trouble getting off drugs."208 Although residential detainment is the most restrictive of locations in which to receive treatment, the response and Pugsley, supra note 170 at 11 134 progress of the offender determines the location and duration of the detainment period. 2) T h e r a p e u t i c C o m m u n i t i e s / A l c o h o l a n d D r u g F r e e res idences. Within therapeutic communities the offender is introduced into a very structured lifestyle where drug abuse and offender behaviour is addressed. Each therapeutic community attempts to closely supervise offenders, whilst emphasising that offenders should take responsibility for their dysfunctional behaviour. This form of residential detainment is often highly constrictive of the liberty of offenders, yet the detainment allows for offenders to earn privileges through compliance and evidence of personal progression. In such treatment locations, treatment providers and criminal justice officials hold offenders accountable for their actions, although expert staff, often former addicts, provide constant encouragement in a structured environment. During residence in such communities, the offender is strongly, encouraged to abstain from drugs and will receive counseling individually, and in groups, to give support during this 'dry period.' Detainment in a therapeutic community is, on average, longer than that of detoxification centres and residential detainment facilities, and can be up to two years. Supervision is highly recommended after the offender leaves the community.2 0 9 Belenko and Dumanovsky write that "Drug Court clients may require substantial resources and efforts in order to maximize the chances of successful participation." They recognise that treatment must be on-going 135 3) Day patient clinics/outpatient facilities. Where criminal justice authorities assign offenders to methadone maintenance and the addict does not need to be detained, such authorities will provide methadone on an outpatient basis. As treatment providers supervise the provision of methadone, the offender may be required to provide frequent urine samples to demonstrate abstinence from illicit drug use. Where methadone maintenance is used for an extensive period of time, and when the offender demonstrates complete compliance with the program, methadone may be provided in small amounts for the offender to use outside the outpatient clinic i.e. at home. Where the drug of addiction is heroin, detoxification processes may also include the use of methadone maintenance. Although methadone has a significant impact on aiding heroin withdrawal,2 1 0 it is not always the best substitute to use for all drugs: A variety of drugs may be used, including methadone, for controlling drug usage. These include antidipsotrophics (such as Antabuse for alcohol), and antagonists (such as naltrexone), which block the 'high' obtained from opiates. Work has also been done with desipramine, an antidepressant used for controlling cocaine cravings. and criminal justice agencies must provide long-term supervision after the offender leaves the place of detainment. Belenko, supra note 172 at 13. 2 1 0 Wayne Hall notes that "[g]iven the strong evidence for effectiveness of community-based methadone maintenance treatment in reducing illicit opioid use and crime (Ward et al, 1992), and the evidence that coercion does not impair the effectiveness of other forms of drug treatment, one would expect that offenders who enter methadone maintenance under legal coercion would benefit from it... The strongest evidence comes from the results of one of the few studies in which illicit drug offenders were randomly assigned to parole with and without community-based methadone maintenance treatment (Dole et al, 1969). This showed a much greater reduction in heroin use and substantially lower rates of reincarceration among those enrolled in methadone maintenance in the year after release from prison." Supra note 3 at 19. 2 1 1 Office of National Drug Control Policy, Understanding Drug Treatment, White Paper, (June 1990), at 17, as noted in Meyer and Lutes, supra note 121at 662 136 Despite the advantages of using methadone maintenance traditional courts are often reluctant to give sentences of drug maintenance preferring to expound treatment based on principles. of abstinence.212 The Drug Court program, having the discretion to refer to all different types of treatment, and can heed suggestions from treatment providers and assign methadone maintenance more frequently. This may be attributed to 'informed, progressive judges' are more likely to refer offenders to methadone maintenance than conventional judges who may perceive this form of treatment as supporting continued addiction. 4) Intensive supervision/Probation. Where it is deemed unnecessary to detain an offender, the Drug Court ensures that the offender is subject to intensive supervision whereby attendance at group counseling sessions, meetings, and aftercare facilities is required. In complying with the conditions of treatment as determined by day care centres and intensive supervision, an offender may be required to report to a day centre for a certain number of hours each day for monitoring, drug testing and supervision. This is the least intensive form of treatment although as with the therapeutic community, attendance and supervision will occur for extended periods of time. The Drug Court intends to provide supervision, through aftercare in the community, for all offenders discharged from the above detainment facilities. 2 1 2 Wayne Hall reports that "researchers and practitioners convened by the US National Institutes of Drug Abuse in 1987 .. .agreed that methadone maintenance treatment provided an effective way of ensuring clients remained in treatment, a fact that needed 'to be more clearly presented to personnel in the Criminal Justice System, since there seems to be a bias against methadone as a treatment approach.'" Supra note 3 at 21. 2 1 3 Such a situation would be where the offender has demonstrated previous commitment to a treatment program, the offender is a relatively new addict, and where the offender is not recognised as a habitual offender. 137 Drug Court ordered treatment intervention is not limited to medical treatment. After addressing medical problems, treatment providers and criminal justice players begin to take a more comprehensive holistic approach to the problem of drug motivated offending. The program appears to consider the situation of the offender as a whole, with assessment being made of the education, housing, financial management, social and economic integration and behavioural responses of the offender whilst in the community. Where the offender faces a housing, education or social need, treatment providers and supervising agents within the community aim to provide help and support for these factors which may contribute to future drug relapse. In such instances the Drug Court program is unique in providing access to a full range of welfare and community-based facilities through a court orientated intervention scheme. Through observations of offender interaction progress, and assessment of the offenders' needs and treatment responses, judges and treatment providers are in a better position to determine what is the most effective type of intervention. The program not only considers drug abuse and criminal deviance, but also addresses the wider issues pertaining to the initial addiction. Drug Court officials intend that attention is paid to the factors that could detrimentally influence the behaviour of the participant after completion of the program. This allows the Drug Court to make a more long-term, informed input effecting a more substantial holistic intervention into a continual cycle of crime and drugs. 138 Drug Testing and Monitoring The Drug Court closely monitors participants throughout the treatment stage, using drug-testing techniques such as urinalysis. It should be noted that a lack of resources, both financial and personnel, will preclude attainment of this objective. To remain on the program the participant must regularly provide urine sample to ensure that drugs are not being consumed. If the participant fails to adhere to the rules of the Drug Court, e.g. by taking illicit substances whilst on the program, the judge, once informed, has the discretion to remove the offender from the program, and refer the offender to the traditional Criminal Justice System. For minimal requirements and processes in drug monitoring and testing, refer to Chapter 3, page 84-86. Sanctions Automatic sanctions as part of the program. In order for the Drug Court to be effective, treatment should include strict expectations and consequences for non-compliance within the program. Many community-based Drug Court programs require that the offender not only completes the treatment program successfully, but also makes restoration to the community for the harm committed by the crime. Consequently in addition to being held 139 accountable and making restoration to the community, the offender may be expected to repay the Drug Court for help received and treatment costs. Drug courts may therefore add conditions and extra responsibilities to the treatment orders and as a part of the treatment program the Drug Court may require the participant to undertake community service and victim restoration/compensation where appropriate. The use of such community service orders not only ensures that the offender is held accountable for the crime committed, but also gives legitimacy to the Drug Court project. Where the Drug Court program condemns the criminal offence whilst simultaneously addressing the medical problem, there is little danger of the courts 'medicalising' deviance. With treatment based initiatives, a crisis of legitimacy occurs where the public and offenders consider the treatment programs as 'soft options.' By including an element of crime condemnation, typically in the form restoration to the community via community sentences and financial repayment of court and treatment costs, the program not only presents itself as a viable, hard alternative to incarceration, but also gains a degree of legitimacy from the public. With alternatives to incarceration, it is important for the public to deem the alternative as legitimate and to support such community-based programs. External condemnation of the crime, and positive motions on behalf of the offender to make restoration, not only holds offenders accountable, but also publicly demonstrates that the courts are still condemning the crime and not promoting a 'soft option.' Throughout the program, Drug Court officials encourage offenders to take responsibility for their actions, and may require the offender to seek and obtain employment, repay the court expenses and fulfill any family maintenance responsibilities. 140 Such a stipulation of financial responsibility by the court ensures that the offender maintains accountability after Drug Court graduation. Sanctions for non-compliance and breach of the Program. Where offenders fail to comply with the terms of the Drug Court program, Drug Court judges refer offenders back to the conventional system. After referral to the traditional courts, the Criminal Justice System may reinstate previous sentences or sentence offenders to a period of incarceration. This thesis argues that judges within the Drug Court program should rigorously enforce sanctions for program breaches to ensure that the program maintains legitimacy in the eyes of the public, law enforcement and offender, and all contract breaches should be immediately referred to the judge for consideration. Some treatment providers note that they do not report occasional lapses and uses of alcohol and drug use, as they are aware that "some recidivism is to be expected and not seen as a failure on the part of the patient."214 As one of the distinguishing features of the Drug Court is the exemplary communication and coordination, this thesis argues that all progress and failures should be consistently reported to the judge. The judge, then assuming the role of main contact through which all services are linked, is under a duty to consult treatment providers and experts and to put recommendation into practice. Although communication of progress relieves treatment providers of burdens of decision-making and responsibility, one should recognise the dangers of giving unrestricted power 141 to the judge. A policy of honesty and constant communication will be more effective in ensuring that the Drug Court program is successful where the judge is educated as to the weaknesses of addicts whilst undertaking detoxification and drug treatment. As addiction requires continual denial, it is not uncommon for addicts to lapse at least once whilst undertaking withdrawal and subsequent treatment. It is suggested that; [t]he process of moving an addict from the condition of addiction to that of complete abstinence necessarily entails a lengthy procedure which requires a tolerance on the part of the rehabilitative agency for repeated relapses to drug use. 2 1 5 The judge must thus be aware of the process of addiction withdrawal and the lapses that may accompany it. Due to the differing levels of experience in treating drug addicts, treatment providers may have different expectations for the offender than the judiciary/referral body. Consequently the position could arise where an inexperienced, uniformed judge may penalise the offender for a lapse in abstinence when treatment providers have otherwise been impressed with the progress made: Treatment staff also expect that their clients will have relapses to drug use and believe that they should be dealt with therapeutically rather than punitively. Correctional and judicial personnel, by contrast, often expect treatment to produce immediate and enduring abstinence. They see treatment as something directed by the court, and hence regard any instances of drug use in treatment as breaches that treatment staff should report. When these expectations of treatment effectiveness are not met, and there is little communication between courts and treatment services, judges and magistrates may become skeptical about the value of coerced treatment and reduce their use of it... Skene, supra note 195 at 253. 2 1 5 Research of Bril l and Lieberman, Authority and Addiction, (1969), Boston: Little, Brown as noted in Christopher D.Webster, supra note 107at 141. 2 1 5 Prendergast & Maugh, supra note 141 at 11. -142 Where the judiciary have certain expectations for offenders, and experienced treatment providers disagree with the proposed treatment allocation/order, the judiciary ought to liaise with the experts to make a realistic, informed referral as to the best consequent course of action. In some circumstances, where the judiciary has unwarranted prejudices about certain types of treatment, they must be willing to acquiesce to the recommendations of treatment providers and assessment personnel who may indicate that the offender will make a better response under that particular type of treatment.217 Where treatment providers have effectively communicated with the Drug Court judge and where the offender remains unrepentant and refuses to abstain from drugs, the judge will sanction the offender by referring him/her to the traditional system. If however, after a lapse, the offender wishes to return to treatment, and treatment providers are otherwise impressed by the progress made, the judge should have the authority to allow the offender to remain on the program. In this case, the sanction imposed may be as little as a fine or an admonishment by the court. Is the Drug Court a success? The success of the Drug Court can only be described in terms of its graduates. Summary information for a Drug Court survey in America provides evidence suggesting that the 2 1 7 The example of the judiciary being unwilling to refer offenders to methadone maintenance is relevant again. Where the judiciary prefers to expound and promote compulsory treatment that is reliant upon principles of complete drug abstinence, these 'less progressive thinkers' may disregard a methadone maintenance option on grounds of principle. In such cases, the judge should draw on the expertise of the treatment providers to decide the best consequent course of action. 143 Drug Court program is successful in terms of intervening in the lives of the offenders. A 'successful intervention' is where the offender has graduated from the program (see Table 5) and is fully reintegrated into society (see Table 6).218 Table 5 Estimate number of individuals who have enrolled in Drug Court programs 90,000 Estimated number of graduates and current participants 63,900 Participation and retention rates: (based on number of graduates and active participants compared with total number of participants enrolled) Over 70% Average positive urinalyses of participants while in Drug Court: 5% (compared with significantly higher positive urinalyses reported for non-drug participant, with fewer urinalyses conducted.) Table 6 Employment: Retained/obtained employment: 75% (graduates) Obtained GED/high school degree 35% (graduates) With regards to recidivism, Drug Courts notice a significant reduction in recidivism amongst graduates of the program. Researchers estimate that at least 45% of offenders released from the traditional system will re-offend through committing a similar offence within 2-3 years. However, with the Drug Court, "depending on the characteristics of the Information is extracted from the Drug Court Clearinghouse and Technical Assistance Project, supra note 188, 1-7, 144 population targeted and the degree of social dysfunction (e.g. employment status, family situation, medical condition, etc.) they reflect, recidivism among all Drug Court participants has ranged between 5% to 28% and less than 4% for all graduates."219 However, from the perspective of the Criminal Justice System, the Drug Court program is not only successful in terms of graduation and program participant retention rates, it is also a cost-effective option. Daily program maintenance costs are much smaller for the Drug Court program than the alternative of incarceration.220 Such costs estimates do not include estimates of criminal justice costs saved by using a court based on a non-adversarial foundation. Taking an even wider economic perspective, a substantial proportion of offenders enter the program with little, if any, prospect of employment, and yet after training, education and job seeking support, manage to find and maintain employment (refer to Table 6). Indeed, benefits of the program are not limited to the program, but may affect wider agencies and organisations. As a large number of offenders are diverted through the Drug Court program, there is less pressure and strain on the resources of the Criminal Justice System and associated bodies such as the police, correctional services and prosecution agencies. 2 1 9 Drug Court Clearinghouse and Technical Assistance Project, Ibid. 2 2 0 In America, the costs of the program have generally ranged from $900 to $2200 per participant although the estimated jail bed savings alone has been at least $5000 per defendant. Ibid, at 5. Summary 145 The Drag Court operates at the interface of criminal justice supervision, health intervention and community support. It is founded on traditional ideologies of punishment whilst simultaneously incorporating treatment principles. The main function of the Drug Court is to coordinate treatment and supervision within the community, and it has the advantage of identifying offenders who are caught in the revolving door of crime and drag abuse. Although the effectiveness of the Drag Court depends upon a wide range of variables, preliminary evidence suggests that the legal coercion tactics employed by the court are successful in coercing offenders to participate in, and to complete the Drug Court program. The program is distinct in ensuring that treatment and supervision is of a sufficient length to ensure that the offender is not only supported and guided through initial treatment stages, but also after program graduation. As the Drug Court exists on the basis of coordination with other community treatment authorities, it is likely to be a more pro-active intervention into not only the addiction of the offender, but also the environmental factors which may stimulate lucrative drag-related criminality. Although the Drag Court program cannot be described as the 'definitive answer', it certainly moves towards breaking the 'revolving door' syndrome that is plaguing the traditional Criminal Justice System. Surveys of Drag Court activity information provide some evidence that at present, the Drug Court program is making a significant intervention into the lives of drug dependent offenders. The graduate and retention rates of the program, combined with evidence that significant numbers of graduates find employment, demonstrates that even though the Drug Court may fail with a small proportion of offenders, it is providing 146 some effective relief at present. The Drug Court is a step forward in drawing health, political and justice agencies together to present a holistic approach to the problem. 147 Chapter 5 Bringing the Shepherd to the Sheep and the Wolves; recommendations for a holistic intervention strategy Introduction This thesis argues that the Criminal Justice System must adopt a broad perspective through which it can model a long-term strategy drug and crime intervention strategy. Chapter 2 demonstrates the extent of the problems associated with drug addiction, and suggests that the social and economic environment surrounding the drug dependent offenders is not conducive to legitimate and pro-social behaviour. In discussing intervention strategies this thesis emphasises the need to promote a coordinated strategy between criminal justice agencies and community-based treatment providers. Even where the role of the Criminal Justice System is dominant in managing drug dependent offenders, the importance of compulsory treatment and community care is recognised. In realising the need for treatment combined with strict criminal justice supervision, the Drug Court attempts to intervene into the 'phenomenon' between crime and drugs, whilst simultaneously approaching the wider problems often associated with drug addiction and criminality. As the advantages of combining treatment with supervision are recognised, the importance and role of diversion sentences is increasing. The President's Commission on Law Enforcement and Administration of Justice (1997) observed that; 148 [i]n this century we have built our drug control policies around the twin judgments that drug abuse was an evil to be suppressed and that this could most effectively be done by the application of criminal enforcement and penal sanctions It recommended explicit policies for early identification of drug users and diversion to community resources for treatment. This could be accomplished through clearly stated criteria and procedures for diversion, greater prosecutorial and judicial discretion to opt for treatment, and a greatly expanded network of rehabilitative 221 services. As an ideal, this statement seems encompassing. However, when looking behind the rhetoric, one must question whether there is a decisive move to implement this in reality. Although the Criminal Justice System attempts to divert offenders from custody, this thesis argues that a long-term community and criminal justice intervention strategy is often lacking. This chapter will attempt to formulate a framework for creating an effective strategy based on the treatment and punishment research, and the extensive 'needs' and problems of the offender, as described in previous chapters. Preventative Measures Where drug abuse and addiction is associated with criminality, it is essential to prevent initiation into this destructive cycle. Consequently, one of the most effective, long-term 'remedies' is prevention. The National Institute of Drug Abuse released evidence The President's Commission on Law Enforcement and Administration of Justice (1997), The Challenge of Crime in a Free Society, Washington, 134 at 222, as noted in Gostin, supra note 110 149 suggesting that "for every $1 spent on drug use prevention, communities can save $4 to $5 in costs for drug abuse treatment."222 Education As Chapter 2 indicates, youth, as a result of their surrounding environment, are often susceptible to the destructive influences of drug abuse. Where children are particularly at risk of being influenced by a drug-dominated lifestyle, criminal justice authorities must target this age group of the community: To truly address the root causes of addiction and particularly I D U , 2 2 3 there must be greater commitment to providing quality care and education for young children. Early childhood care is important for all children as a primary prevention measure for preventing addiction later in life, and for at-risk children whose parent(s) are addicted."224 The Criminal Justice System in coordination with community drug abuse prevention groups should not however only focus on susceptible youth, but should target the general public, including recreational drug users. Some researchers argue that prevention programs should "work at the community level with civic, religious, law enforcement, and governmental organizations and enhance anti-drug norms and pro-social behavior through changes in policy or regulation, mass media efforts, and community-wide awareness programs."225 Where the public is aware of the extent and precise nature of the problem, it is more likely that the public will support and be included in such forms of 2 2 2 M . A . Pentz, Costs, benefits and cost effectiveness of comprehensive drug abuse prevention, In W. J. Bukowski, ed., Cost Effectiveness and Cost Benefit Research of Drug Abuse Prevention: Implications for Programming and Policy, National Institute on Drug Abuse Research Monograph, in press. As cited in Infofax, National Institute on Drug Abuse supra note 59 2 2 3 Injection Drug Use 2 2 4 Millar, supra note 5 at 14 150 drug abuse intervention. Community members are often reluctant to welcome addicted offenders into the neighborhood, and such difficulties in overcoming this resistance can be reduced through education awareness programs. The Criminal Justice System should automatically provide drug abuse education to convicted offenders. After the recipient of prevention programs is identified, the nature of the prevention program should be determined. The National Institute on Drug Abuse determines key principles for effective prevention education programs:226 (the main points are identified below.) • Prevention programs should enhance 'protective factors,' and reduce or reverse 'risk factors.'2 2 7 • Prevention programs should be general and broad whilst simultaneously focusing on a particular drug problem where it can be identified. • Programs should include life skill training and should pay regard to cognitive and personal skill development. • Methods of communication should be flexible, culturally appropriate and diverse so as to be effective for all age groups and communities. Infofax, National Institute on Drug Abuse, supra note 59 at 3 2 2 6 Ibid., 1-3. 2 2 7 "Protective factors are those associated with reduced potential for drug use. Risk factors are those that make the potential for drug use more likely." Protective factors have included "strong and positive bonds within a pro-social family; parental monitoring; clear rules of conduct that are consistently enforced within the family; involvement of parents in the lives of their children; success in school performance; strong bonds with other pro-social institutions, such as school and religious organisations; and adoption of conventional norms about drug use." "Risk factors include chaotic home environments; particularly in which parents abuse substances of suffer from mental illnesses; ineffective parenting, especially with children with difficult temperaments or conduct disorders; lack of mutual attachments and nurturing; failure in school performance; poor social coping skills; affiliations with deviant peers or peers displaying deviant 151 • Prevention programs should be long-term and should be adapted to particular problems in each community. • When designing appropriate prevention programs, family and peer relationships, and school and community environments should be taken into consideration. Youth Support As youth have been identified as age group susceptible to drug abuse, the community, in coordination with criminal justice agencies must provide necessary services and support agencies. Despite focusing on the adult offender, this thesis is not dismissing the importance of supporting youth. Research should be conducted into the most effective methods of youth intervention, support and education, and the Vancouver City should continue to support and fund youth initiatives in attempting to help the 'street youth.' In working with community agencies, the City can encourage the community to strengthen its relationship with these young persons. In light of the impact of the Drug Court, the city should undertake research to determine the feasibility of establishing a Juvenile Drug Court. Environmental Factors The city is currently undertaking measures to stabilise the environment of the Downtown Eastside. The Criminal Justice System should encourage such measures although it must behaviours; and perceptions of approval of drug-using behaviours in family, work, school, peer and 152 attempt to move beyond the changing the aesthetic appearances of the area. When making changes to the area, the city should continue to use and increase the use of residents for consultations, and include residents in community renovation projects. Where the aim of the City is to promote a sense of pride in the area, the City must motivate the community to make changes and support renovation projects that increase the quality of living. Existing and future renovation projects should be reviewed to determine whether they improve the quality of life for residents in the area. In continuing housing projects, the City should continue to increase the number of low-cost housing whilst not tolerating the illegal activity which is often associated with it. Where stability is relevant successful drug rehabilitation and offender reintegration the City should consider prosecuting the owners of low-cost hotels who encourage or ignore illegal drug and prostitution activity. Where prosecution is not possible, the City should strongly encourage such property owners not to tolerate this destructive activity. Sociological Factors In accordance with promoting and improving the appearances of the drug-dominated area, the City should provide opportunities for improving the standard of living and quality of life of the residents. Social services should be encouraged and where necessary, specific services should be funded and established; for example, the City should support and provide services for prostitutes in an attempt to reduce the number of women working on the street. As prostitution is often linked with drug abuse and illegal activity, such support services may make significant progress in aiding this very visible form of social community environments." Ibid, at 1. 153 malfunction. Community centres often enjoy great success as a place of service provision and as a location for alcohol or drug treatment and counseling. Consequently in Vancouver, such social services should be maintained and expanded where possible. The Criminal Justice System, working in collaboration with community-based service providers, should promote enhanced social services, education, training skills and vocational skills. Where drug abuse encourages criminal activity, and where encompassing factors 'promote' drug-related criminality, criminal justice authorities, by promoting legitimate employment and the importance of job and vocational skills, can increase the probability that revenue will be earned legitimately. In responding to all of the offender's needs, treatment providers and criminal justice agencies should attempt to address sociological problems in addition to medical needs. Such needs include those identified in chapter 2, i.e. housing deficiencies, lack of employment possibilities, and insufficient job training etc. The Criminal Justice System should make a concerted effort to promote either individual, or group education and counseling sessions through community services and support mechanisms. In advertising, promoting and organising such programs, the use of former addicts may be particularly useful and effective. In addition to improving the education and skills of low and unskilled individuals, the low-income nature of the area indicates that there is great need for increased employment opportunities. With regards to employment in Downtown Eastside, renovation projects should give preference to inhabitants of the area. The city should attempt to improve and expand employment agencies, facilities and opportunities within the area. 154 Harm Reduction Strategies. Although harm reduction strategies should not be considered as the foundation for an initiative combating drug addiction and its concomitant problems, such strategies are nevertheless important for short-term relief. A long-term intervention strategy must be more progressive and proactive rather than merely 'limiting' the damage caused by drug abuse, although one should not underestimate the effectiveness of such harm reduction initiatives. As prevention programs limit/reduce the harms of drug addiction, they may fall into the category of harm reduction strategies. As the problem of HIV and AIDS is increasing, the City should continue to support needle-exchange programs, and should attempt to take a proactive stance with the agencies providing this facility. As this harm reduction initiative is successful, in addition to supporting such initiatives, the city should consider undertaking research to validate the claims of other such programs e.g. research could be conducted into the claims of the Swiss Heroin prescription program.228 Additionally despite dismissal by government members, one of the most controversial reduction initiatives; the 'safe-shooting room project,' has considerable support from residents of the area and members of Health Canada. Even if the City is unlikely to adopt this initiative, the City should undertake research to demonstrate a willingness to consider contemporary harm reduction initiatives. If the City can make informed arguments it will obtain more credibility, and if the city is able to present active research for its policy decisions, it will attain legitimacy. 155 The Response Aside from the illegality of. drug consumption, evidence, as presented in chapter 1, indicates that drug motivated crime is significant enough to warrant intervention. Combining treatment and punishment: Chapter 3 and 4 argue that treatment is important and should be combined with strict expectations and enforcement to avoid medicalising deviance. Treatment is necessary to address the fundamental cause of the crime, and yet it must be stringently enforced to ensure that this diversion option is not exploited: [P]unishing substance abusing offenders has not by itself been shown to be effective in changing behaviour... [T]he tendency to distinguish between "punishment" and "treatment" misses the point. Punishment alone is of questionable effectiveness, but treatment without strict expectations and consequences is also likely to be ineffective. Punishment and treatment should not been seen as alternatives, but as complementary.229 This statement reflects of a move towards the integration of a punishment and medical model that considers and addresses both the addiction and deviance. Where principles of restorative justice direct criminal justice responses away from a traditional court and prison-based structure, there is significant opportunity to effectively intervene into drug-related criminality. The Drug Court is an effective vehicle through which to initiate a comprehensive strategy. Millar reports that "the Swiss study found that controlled heroin administration had a net economic benefit of 30 US dollars per patient, per day, largely due to reduced criminal justice and healthcare costs (Nadelman, 1998)" Millar, supra note 5 at 18. 156 Use of the Drug Court system The Drug Court is a court-orientated diversion scheme whereby treatment is combined with criminal justice oversight. Although each Drug Court may differ in nature and focus, when establishing a new Drug Court one must consider certain principles. Publ icity When forming a new Drug Court, the Criminal Justice System and City government should widely publicise the scheme to educate the community and concerned individuals of the role and responsibilities of the court. It has been noted that [m]any special drug courts, including treatment orientated courts have found suprisingly strong support from local media and community groups. Positive media coverage and public acceptance of the use of drug treatment as an alternative to prosecution or incarceration have encouraged Drug Court judges in Portland, Broward County, Miami, Milwaukee and elsewhere.230 . Such publicity should go beyond mere indications of the existence of the court, and should educate offenders, the public and professionals of the objectives and practices of the court. The Criminal Justice System should organise publicity through schools, community centres, youth centres and community conferences.231 The City should Intervening with Substance Abusing Offenders: A framework of Action. U.S. Dept. of Justice, Nat'l. Institute of Corrections, Nat'l. Task Force on Correctional Substance Abuse Statistics, June 1991 at 28. 2 3 0 Dumanovsky and Belenko, supra note 172 at 12-13. 2 3 1 In 1998, Vancouver community members hosted the community conference "Out of Harm's Way." This community conference, held in the Downtown Eastside, brought attention to the plight of addicts whilst 157 support media publicity and should provide Drug Court educational literature and publicity to such public institutions as schools, community centres. Training As the Drug Court judges only sentence drug dependent offenders, all parties involved in the Drug Court system must be aware of the problems associated with treatment for drug addicts. The Criminal Justice System must provide training for judges 2 3 2 and must educate treatment providers as to the problems and pressures of legal and sentencing systems. Police agencies should attend seminars delineating the precise role of the Drug Court and what implications such courts may have on policing. It is argued that "[e]ducation and training of personnel in both treatment and judicial systems to increase knowledge about each other's system is needed. Ultimately this can permit greater cooperation and program efficiency. Specifically training is needed regarding goals, strategies, and ethics of cooperative efforts."233 Training and education should be available and necessary for government officials and legislators who may have control over funding, program approval and program development. The Criminal Justice System should ensure that training is not a 'one-time occurrence' and must provide it periodically as the Drug Court adapts, and Its influences increase. informing the community of harm reduction and criminal justice strategies around the world (e.g. in the U K , Germany, and America.) Such community conferences reach the target addict population, community members and criminal justice professionals and should consequently be supported. 2 3 2 For a discussion of the need to inform judges as to the weakness of offenders whilst on the program, refer to chapter 4, pages 140-142 2 3 3 Piatt, Buhringer, Kaplan, Brown, & O'Taube, supra note 122 at 518. 158 Some criminal justice agencies recognise that former addicts may be effective in providing support to offenders within the program. The National Institute of Justice in America suggests that "former addict-offenders who have shown clear evidence of pro-social change should have training and employment opportunities, for example, as monitors and treatment team members."234 The author for this drug treatment policy argues that; [t]he employment of ex-addict-offenders in a variety of progressively more responsible paraprofessional and professional roles will help new monitoring and drug treatment system function effectively. They will also serve as role models to offender they supervise. The ex-addict offenders are the role models (as in Stay N ' Out ) whose presence demonstrates the realistic possibility of achieving successful rehabilitation. Graduation from a drug treatment program, evidence of successful integration into community life, and additional training are prerequisites for the employment of ex-addicts-offenders as Monitors and Treatment Team Members. 2 3 6 Where ex-addicts may have difficulty finding employment upon release or treatment graduation, the Criminal Justice System should use this source of informed experience for the above purposes. Ex-addicts are invaluable resources for treatment, support, motivation and communication particularly where offenders feel resentful of criminal justice intervention, and may not appreciate treatment referral. " James K. Stewart, A Criminal Justice Strategy for Treating Cocaine-Heroin Abusing Offenders in Custody, National Institute of Justice, Schaffer Library of Drug Policy 1-29 at 12. 2 3 5 The Stay N ' Out project is a therapeutic community which exists as part of the New York State Prison System. "The data participants who remained in the program more than nine months were more likely to have a positive parole discharge (80 percent positive) than those who remained in the program less than three months (50 percent positive). Ibid., at 13. 159 Offender Interaction If the Drug Court is to be effective in changing the behaviour of criminally active addicts, the addict must be included in court interactions rather than merely being a 'subject' to be processed by the court. The offender should know what to expect, and lawyers and judges must ensure that the offender understands the aim and the rules of the Drug Court before embarking on the program. If the offender chooses whether to be processed by the Drug Court, the Criminal Justice System can legitimately hold the offender accountable for his/her progress within the program. The concept of a client responsibility contract is pertinent at this stage of the proceedings. A client responsibility contract, to be signed by the treatment providers, criminal justice officials and the offender, should specify the terms of detainment (where relevant), the terms of the treatment, and aspirations for the offender.237 In signing the contract offenders make clear indications that they understand the terms and rules of the program, and breaches of the contract can be clearly recognised. In accordance with advice from treatment providers, the Criminal Justice System should maintain the authority to change the terms of the contract where this course of action is most beneficial for the offender. Z j b Ibid., at 12. 2 3 7 The alternative name for a client responsibility contract is a 'social contract.' It has been argued that when the offender consents to compulsory treatment in a coercive criminal justice context "[i]n effect, a social contract is formed, which requires the client, the treatment program and criminal justice authorities to fulfill their respective obligations. (Institute of Medicine 1990, 184-185) Client agreement to enter the program should be a requirement." Lawrence O Gostin, Compulsory Treatment for Drug-Dependent Persons: Justifications for a Public Health Approach to Drug Dependency, The Milbank Quarterly, V o l . 69, No. 4, 1991, 561-589 at 583, Refer also to Institute of Medicine, Treating Drug Problems, Vol. J, 1990, Washington, National Academy Press. 160 Eligibility Criteria The Drug Court must clearly define eligible participants. In America each Drug Court has established different priorities and criteria for eligible offenders. It appears that; [wjhile many courts handle only drug possession cases, some courts also accept low-level drug sale cases and others process any drug felony, regardless of the type of offense. Generally treatment-orientated courts tend to exclude defendants charges with drug sale, delivery, or trafficking unless they had a relatively minor role in the transaction or an underlying drug addiction is clearly driving their participation n drug selling. 2 3 8 This thesis argues that the Drug Court should also assume jurisdiction for sentencing drug dependent offenders charged with committing drug-related property offences. As this thesis demonstrates that the Drug Court enjoys success, and is able, through its extensive programs, to address motivational causes of crime, it is advisable that the Drug Court program is available for habitual drug motivated property offenders. "Expert estimates of crimes committed by the average drug addict range from 89 to 191 a year. At the conservative end, successfully treating and training just 5000 addicts would eliminate 500000 crimes a year." Where drug treatment is this cost-effective, it is advisable to focus it on habitual offenders who commit a significant proportion of drug-related crime. 2 3 9 Although not all addicts are criminally active, as Vancouver has an extensive addict population (which is currently not prosecuted for mere drug possession) the City should focus the Drug Court program on those who are prosecuted through the conventional system. Where the Criminal Justice System is presently prosecuting such criminally active addicts, the need for effective diversion is more clearly presented. 2 3 8 Belenko & Dumanovsky, supra note 172 at 5. 161 Treatment in the Drug Court In order for treatment to be effective, the Drug Court must tailor treatment to the specific needs of each offender. As the drug of addiction may vary, the type of treatment may also need to vary. 2 4 0 Consequently the Drug Court program must incorporate a wide range of treatment techniques and must provide the 'correct' environment for that treatment (i.e. all of those identified in chapter 4). The Criminal Justice System must allocate resources to residential treatment units and must also provide funding for criminal justice agents to supervise offenders receiving treatment within the community. As treatment is offender specific, it is important that accurate and realistic assessments are performed at time of arrest and throughout processing to determine levels of drug addiction and the most effective form of treatment. Assessments should include not only medical determinations, but also more social and environmental features. Where the Drug Court determines an offender's history, it will order educational and vocational training for that offender. In all cases, the responsibilities and aims placed on each offender must be realistic so that the offender can comply with the terms of the program. Refer to City of Vancouver, Background Paper on Drug Treatment Needs in Vancouver, (July 1998) at 2 2 4 0 It should be noted that where the drug of addiction is heroin, an effective method of treatment is methadone maintenance to 'wean' the offender from heroin. This treatment type has not however been proven effective where the drug of addiction is cocaine. Consequently from this example it is clear to see that treatment may need to be flexible and suited specifically to each offender. 162 Enforcing breaches As chapter 4 indicates, breaches of the terms of the Drug Court program should be strictly enforced. Diversion programs must not be considered as 'soft-options,' and the court must maintain legitimacy, not only with the public, but also with offenders. The Drug Court is not a soft-option; it is a means of diverting the offender from custody and an attempt to combine treatment with long-term supervision. The court must not tolerate those who would exploit scarce resources to avoid a harsher sentence. In maintaining such strict enforcement rules, the actions of the court will be justified. Punishment Criminal justice authorities and treatment providers must not tolerate and should condemn crimes associated with the drug addiction whilst attempting to deter offenders from future criminality. The Drug Court must make provision for punishing the offender for that prior criminality i.e. via community service. Although the Drug Court focuses on treating the addiction of the offender and increasing life and educational skills, punishment should form an integral part of the program and offenders should expect to be held accountable for their illegal activities. 163 Offender Accountability For the sake of legitimacy and public accountability, the Drug Court must ensure that the offender is held accountable for criminal activities undertaken before enrolling in the program, and should consequently promote schemes of victim restoration within the program. Restorative principles of justice are relevant to this form and mode of punishment, and relational principles of justice are pertinent offenders seek to repair relationships with the victim and community. Where crime is perceived as a breakdown of relationships, it is important that the offender attempts to repair relationships in the society in which he/she is to return. The Drug Court should use opportunities through the program to ensure the offender makes amends for prior criminal behaviour. Such restoration should continue after release into the community. Additionally, as is required by other Drug Courts, the offender where possible, should be encouraged to repay court and minimal treatment fees. Again, after obtaining employment, the offender is assuming accountability for his/her actions and by paying such costs, the offender is again making positive motions to repay the community for the damage created. Education, training and job skills As part of the treatment, the program should ensure that education and vocational skills training are provided. In making a holistic response to a problem, the Drug Court must ensure that the offender does not return to an unstable, unskilled background which is conducive to drug abuse and criminality. Therefore, the Drug Court program should actively encourage offenders to undertake job skills training and to find legitimate 164 employment upon completion of the program. In providing this motivation and encouragement, Drug Court officials should work with external agencies and employers in the community to attempt to secure employment for program graduates. The court must take a proactive position in trying to positively change the environments and prospects of offenders. Support within the community The beneficial effects of providing detoxification and treatment are limited where the offender returns to the same unstable environment upon graduation from the program. Chapter 2 indicates the necessity of providing continual support through transition stages of release into the community, and the role of constant long-term supervision within the community should not be underestimated. Where the offender moves from a highly structured, supportive environment to an unstable, non-supportive environment, criminal justice officials must provide more support and even more importantly, additional long-term supervision. This supportive role must not be solely assumed by the Criminal Justice System; the community must also be involved in the restoration process. Consequently members of the community who, as a result of their work or family, may be forced to care for addicts struggling with drug withdrawal and abstinence problems, must also receive criminal justice and sociological support. Where individuals must care for addicted members of their families, it is very important that the Criminal Justice System provides relief and constant support for such persons. If the families feel supported and 165 are included in a care network, they are to ensure that the addicted offender has greater opportunity to use criminal justice and treatment resources. Where the Criminal Justice System can include such families in a coordinated intervention strategy, the community has a better opportunity to supervise addicts whilst they are cared for in the community. Coordination within the Community As the Drug Court is a community-based court, the community must be aware and supportive of this diversion process. The community presently provides many of the essential services to residents of the Downtown Eastside and these community services can be used to great effect within the Drug Court system. As chapter 3 indicates, resources must not be duplicated, and community resources are often already focused on the needs of the specific residents of the community. Consequently, the Criminal Justice System should make use of community resources although they must not be exploited and placed under further financial and criminal justice pressure. It is argued that [f]or the many communities that do not have adequate treatment resources, drug courts provider leadership to increase treatment options and enrich the availability of support services. Some drug courts have found creative ways to access services, such as implementing treatment readiness programs for participants who are on waiting lists for comprehensive treatment programs. In some jurisdictions, drug courts have established their own treatment programs where none existed.241 National Association of Drug Court Professionals, supra note 177at 9. 166 Typically it is the voluntary clients seeking help of their own volition who use community resources services. Consequently, such treatment providers may not have the experience, nor resources to address the problems raised by criminally active addicts. Therefore criminal justice officials must work with community-based agencies to ensure that effective criminal justice coordination and oversight is obtained. Ideally, funding permitting, it would be advisable for each offender on the program to be assigned a probation officer and a treatment/healthcare worker to ensure that the offender receives adequate support for the addiction and sufficient supervision to ensure that there is no further criminal activity. The Criminal Justice System should attempt to coordinate the present treatment and support organisations to ensure that they are working together and not merely competing for scarce resources. It has been suggested that "[bjecause of its unique position in the criminal justice system, a Drug Court is especially well suited to develop coalitions among private community-based organisation, public criminal justice agencies, and A O D delivery systems."242 Vancouver City recognises that regarding implementation of a Drug Court, "[a] great deal of coordination, cooperation and support will be required in reaching agreements finding partners, and developing the business case and funding model." 2 4 3 Although the state may provide criminal justice expertise, it should encourage community members, private businesses, schools and residents of the area to support and join the project where applicable. The city presently has an existing coalition and strategic actions plans for the area, and by including residents and former addicts, these coalition boards may be essential in overseeing community restoration programs, and may be invaluable to the Drug Court. As coordination is difficult and a 2 4 2 Ibid., at 19 167 new comprehensive scheme must be incorporated, it would be advisable to utilise existing coordinating infrastructures and bodies for facilitating Drug Court broader initiatives. Where the entire community is united by the vision of the Drug Court, the treatment and community supervision is likely to be more effective. As has been discerned by First Nations communities, the role of the collective community is essential to maintaining order and discipline, all combined with acceptance and support. Where habitual drug motivated property offending has 'obvious' victims, restorative justice programs, performed in the community, may include the victim in the restoration and rehabilitation process. Additionally, where the community is able to observe the progress of each offender, members of the public are likely to see the effects of the system and are in a better, more-informed position to aid in intervening into cycles of crime and drug abuse. Clear jurisdiction for agencies involved. This thesis suggests that where criminal justice agencies are working with treatment providers a liaison body, working closely with the Drug Court judge, should exists to coordinated interactions between the and community service providers. The Drug Court should ensure that the roles and responsibilities of the agents are clearly defined, and that each agent appreciates the role and the importance of the other. It has been suggested that; City of Vancouver, supra note 78 at 20 168 given the confusion of roles that seems to arise from some forms of coerced or quasi-coerced treatment, it is important for both the legal system and the health system not to deny their respective responsibilities. It is all too easy for the addict to be shuttled back and forth between these two systems, the result being that neither justice nor health is served.2 4 4 The Drug Court must ensure that each organisation fully discharges its duty towards the offender, before the offender is moved to the next stage of the program. As different types of expertise may overlap, treatment providers and criminal justice officials must work towards the same vision, and to work together to attain it. The Federal government should liaise with the Provincial government to develop a focused, specialised criminal justice response to the problem. It is suggested that although the initiatives should be locally formed,2 4 5 they should receive federal funding and oversight so that successful intervention initiatives can be additionally developed and funded. In order to obtain the most effective form of treatment supervision and service provision, each body must adhere to the expertise of others, and must effectively communicate. Wellisch, Prendergast and Anglin argue that such coordination between agencies is hard to achieve although they readily admit that the precept is 'fully reasonable': Coordination and cooperation between agencies have historically been difficult to achieve, even where agencies have similar goals and agency personnel have similar backgrounds. The reason for this difficulty include differences across agencies in funding sources, departmental budget accountability, admission criteria, and treatment philosophy, as well as the i V i Prospects and limitations of comp. Trt. At 517. 2 4 5 Some academics have argued that "at least for the foreseeable future, a solely top-down federal system would be logistically and bureaucratically cumbersome, inefficient in operation, and poorly responsive to local needs and changing circumstances. The role of federal government, and the states as well, should be to establish standards, set guidelines, provide technical aid, contribute financial support to local systems, and aggressively support research to improve the organizational structure of local systems and enhance the development of effective treatment strategies." Wellish, Prendergast and Anglin, supra note 90 at 773. 169 tendency of agencies to protect their own turf and to maintain clear jurisdictional boundaries.246 Despite these identifiable issues, where a vision is presented and the Drug Court coordination body is aware of these possible problems, progress is made in limiting boundaries that are retarding a coordinated intervention response. One of the major difficulties, in aiming for coordination between agencies, is the identification of possible problems. As Vancouver has already formed bodies for effecting revitalization to the Downtown Eastside, the problems as identified above may be significantly reduced. Where criminal justice agencies are willing to work with these organisations, (rather than in the place of them), there is greater opportunity for community agencies to maintain their own identity whilst working with criminal justice professionals. Federal funding and support may demonstrate the city is working towards a united response, and should be focused towards the community-based organisations that are willing to become part of this coordinated intervention response. As this area is considered very 'political,' the Drug Court should receive the complete support of the government, both provincial and federal. Political support aids in obtaining unity, and is essential if this form of offender diversion and restoration is to be effective. If the Drug Court is to make a significant difference to levels of addiction and criminality, governmental backing and funding is imperative, and local legislators must be aware of the role of the Drug Court in drug and crime intervention. Ibid., at 771. 170 In accordance with political support and community and criminal justice unity, the Drug Court must have clear aims, objectives and guidelines. Even as offenders should be held accountable for their actions before enrolling on the Drug Court program, the Drug Court itself should be held accountable to its aims and guidelines. It is therefore important the Drug Court is realistic as to its proposed and estimated achievements. Although judges may assume the role of sentencer, encourager and motivator, it is important that the judges themselves are held accountable (by treatment and criminal justice experts) for their decisions and organisation of the court. In providing a court-community liaison body, the City can ensure objective oversight of court interactions with offenders and can ensure that the Drug Court is striving to meet its holistic aims. This City should consider drawing such an oversight body from community members, treatment providers, lawyers, police and criminal justice officials. Although this 'accountability' body will be separate from community organisations/coalitions, it should work closely with such revitalization groups. Conclusion Although establishing a Drug Court may seem a challenging task, the benefits are definitely worthwhile. An effective Drug Court will make a positive difference in treating and supervising offenders, and few other diversion schemes have offered such a comprehensive attempt at alleviating problems of drug motivated crime. The Drug Court is a progression from traditional methods of sentencing and sanctions as it takes a holistic 171 approach to what is very broad problem. The Drug Court incorporates treatment with punishment and attempts to address not only the criminality of offenders but also the addiction and concomitant problems. The ethos of the Drug Court can be described as attempting to address the causes of the drug abuse and criminality, and it is consequently focused on long-term changes and intervention. It has been argued that "[u]nless attention is paid to the underlying cause of the problem and all the needs of the community, anything the police are able to do is seen at best as a band aid solution." 2 4 7 Where Drug Courts are effectively coordinated with community-based service and support providers, there is a greater probability that intervention will be successful. This thesis attempts to stress the importance of ensuring community participation and unity in intervening into cycles of drug abuse and criminality. It is suggested that: Drugs of addiction are taken because, initially at least, they make possible an escape from reality. Those most vulnerable are people whose personalities bring them conflicts and anxieties, but little solace, from contacts with the real world. Given access to the drugs, they are enabled to escape to a less harsh world, a world more removed from reality and nearer to dreams. Where community and criminal justice agencies are committed to changing the surrounding social and environmental factors to make reality 'more attractive' and 'bearable,' a move may be made towards breaking the detrimental cycle. Consequently as significant changes are required to ensure that each addict has a chance to change their home, job and personal life, it is essential for a united effort between state services and the community. The Drug Court is a move forward to unite these organisations. 2 4 7 City of Vancouver, supra note 78. 172 This thesis highlights the advantages and disadvantages of pursuing a sanction of compulsory treatment, and draws attention to the main issues and areas of the Drug Court that must be addressed when establishing a new court of this type. Although this chapter brings attention to the main elements of the Drug Court and makes suggestions for successful implementation, further research is still necessary. Such further research may include, but is not limited to; • Ascertaining the precise nature of the drug addiction and societal problems in Vancouver and determining which type of treatment may be most appropriate. This analysis should be performed for all cultures in the Downtown Eastside recognising that culture may affect how the offender responds to treatment. • Forming specific community service activities and researching into the most effective restoration programs that are classified as restorative and relational justice. • Working with businesses in Vancouver to determine the feasibility of offering employment to graduates of the program. • Ascertaining the number of families who are caring for or support drug addicted family members, and establishing methods of helping such families in this caring role. • Establishing the precise nature of all of the care organisations working in the Downtown Eastside, and determining how Drug Court liaison body can help with the court to bring community agencies together to unite them in a coordinated initiative. • Determining the feasibility of mediation programs for offenders, victims and comity residents. Consider the use of 'alternative dispute resolution' (ADR) where appropriate. Piatt, Buhringer, Kaplan, Brown & O'Taube, supra 122at 509. 173 • Establishing a clear and easy process for community members and offenders to raise legitimate concerns and give suggestions. A l l concerns and participation efforts should be noted and ideally the overseeing body liaising with the Drug Court should be made aware of through an effective notification process. • Ascertaining the terms of a coalition body formed of community members, treatment providers, defence and prosecution lawyers, community services representatives, and criminal justice officials. The precise role of this body should be clearly specified although its aim will be to oversee Drug Court referral and community aftercare, and to ensure that the program allows for means to address all of the offenders' needs. • Creating a funding plan. Note should be made that the Toronto Drug Court has received considerable funding from the Government,249 to be administrated by the National Crime Prevention Centre. Proposals should be formulated immediately for funding requests. This thesis strongly advises that a Drug Court be considered for the area of Vancouver, pursuant to long-term community participation, and social and environmental development occurring. If the court is to be effective, criminal justice agencies, community-based treatment providers, the community and the government must embrace 2 4 9 $1615616 (over a 4 year period) from the Crime Prevention Investment Fund which was "launched in June 1998 as part of the government of Canada's National Strategy on Community Safety and Crime Prevention. The Fund has been established to identify and support innovative crime-prevention projects with Canada-side significance. 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Cavadino, Michael, Dignan, James, The Penal System 2nd Edition, London, Thousand Oaks, New Delhi, Sage Publications, 1997. Correctional Service of Canada, Mission of the Correctional Service of Canada, Canada: Correctional Service of Canada, 1991 Hudson, B . A. , Penal Policy and Social Justice London: Macmillan Press, 1993 Packer, Herbert, The Limits of the Criminal Sanction, Stanford, Stanford University Press, 1968 Walters, Glenn D., Changing Lives of Crime and Drugs; Intervening with Substance Abusing Offenders, New York, Wiley, 1998 Weisheit, Ralph, (Edited) Drugs Crime and the Criminal Justice System, Anderson Publishing Co., Criminal Justice Division, Cincinnati. Weissman, James C , Drug Abuse; the Law and Treatment Alternatives, Anderson Publishing Co., 1978. 183 Zehr, H. , Changing Lenses: A New Focus for Crime and Justice, Scottdale, PA: Herald Books, 1990. Miscellaneous City of Vancouver, "Downtown Eastside http://www.city.vancouver.bc.ca City of Vancouver, "Downtown Eastside findings" http://www.city.vancouver.bc.ca - A Community Profile" City Report, - Community Monitoring Report: Key City of Vancouver, "Federal Government Announces $5million Grant for Downtown Eastside Crime Prevention Programs" News release, February 25, 1999 City of Vancouver, "Funding of Community Crime Prevention Programs Through Community Safety Offices" July 9, 1998, Dept. File No.VPD. City of Vancouver, "Program of Strategic Actions for the Downtown Eastside" December 1998, http://www.city.vancouver.bc.ca City of Vancouver, Reports #1-6 for Public Discussion, July 1998, City of Vancouver, "Working for a Safer City; Vancouver's Coalition for Crime Prevention and Drug Treatment" http://www.city.vancouver.bc.ca City of Vancouver, "Working for a Safer City; Vancouver's Coalition for Crime Prevention and Drug Treatment" (April 1998) 1(1) Newsletter Correctional Research and Development, Research Report "The Offender Substance Abuse Pre-Release Program: Analysis of Intermediate and Post-release Outcomes" (1995) No. R-40 Correctional Service of Canada Inciardi, James A. , " A Corrections Based Continuum of Effective Drug Abuse Treatment" Presentation at University of Delaware, [undated] Millar, John S., "HIV Hepatitis, and Injection Drug Use in British Columbia - Pay now or Pay later?" June 1998, Provincial Health Report. Rogers, Judy, "Urban Safety Commission: Vancouver's Coalition for Crime Prevention and Drug Treatment - A Plan for 1999" (January 26, 1999) City of Vancouver Administrative Report, RTS No. 00388, CC File No. 3144. 184 The International Society for the Reform of the Criminal Law, News Release "The Reformer" Malta Conference (8-12 July 1999) U.S. Department of Justice, Evaluation of Drug Treatment in Local Corrections, Office of Justice Programs, National Institute of Justice, May 1996 185 Appendix 1 Percent of Inmates Who Are Substance-Involved Offenders. State Federal Jail Ever used illegal drugs regularly (a) 64 43 59 Convicted of drug law violation 19 55 21 Convicted of driving whilst under the influence 2 0.3 8 Under the influence of drugs and/or alcohol at the time of the crime 48 23 55 (b) Committed crime to get money to buy drugs 17 10 13(b) Has a history of alcohol abuse © 29 14 15 Substance involved offenders: (percent who fit into at least one of the above categories) (d) 81 80 77 (a) Regular drug use is using a drug at least weekly for a period of at least a month. (b) Convicted jail inmates only (c) Ever treated for alcohol abuse (d) These percentages cannot be added because of overlap. Source: C A S A analysis of the U.S. Department of Justice Bureau of Justice Statistics (BJS) 1991 prison inmate survey data and 1989 jail inmate survey. 


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