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DRCNet Library | Schaffer Library | Major Studies | Legislative Options for Cannabis
This chapter covers the two related fields of diversion and treatment - including compulsory treatment - for drug offenders, particularly where cannabis is involved. Such diversion may simply involve diversion from the criminal justice system for individuals involved in minor cannabis offences; it may also involve diversion to treatment for those who either want, or are judged by others, to need treatment for drug use sufficiently serious to bring them into contact with the criminal justice system.
Diversion is a form of intervention in the lives of offenders primarily based on humanitarian grounds (i.e. to keep them out of prison), but also, more pragmatically, to relieve the burden on the courts and the prisons imposed by the very large numbers of people charged with very minor offences. While diversion from a court appearance is a mild form of intervention receiving broad community support, diversion to treatment, particularly when mandated by the court, raises philosophical issues relating to the degree of intervention the state should be empowered to exercise over people's lives. Compulsory treatment when it takes the form of civil commitment is the most extreme form of intervention, and, where ordered for drug offenders, is morally distasteful to many and the subject of much controversy. Nevertheless, there are legislative provisions for civil commitment of drug offenders in many countries, including Australia.
We begin the chapter with a discussion of the concept of diversion, then review existing diversion programs in Australia and overseas, with particular reference to programs involving treatment. The subject of compulsory treatment, including civil commitment for drug offenders, is dealt with next, with an overview of international legislation and treatment programs, along with such evaluations as exist. The implications of this for offenders whose primary drug is cannabis are discussed and some conclusions are drawn regarding treatment for repeat offenders.
Finally, we present a summary of the major findings for cannabis users resulting from our review of the key Australian and international literature dealing with diversion and treatment for drug offenders. The concept of diversion In the US, according to Tomasic ([1]1977, cited in Dept of Attorney-General 1982, p6), official use of the term 'diversion' occurred for the first time in the US President's Commission on Law Enforcement and Administration of Justice. The following are two definitions of diversion from the US literature: ... the disposition of a criminal complaint without conviction, the non-criminal disposition being conditioned on either the performance of specified obligations by the defendant, or his participation in counselling or treatment, ([2]Nimmer 1974, cited in Dept of Attorney-General 1982, p6). ... those formally acknowledged and organised efforts to utilize alternatives to the initial or continued criminal justice processing of alleged offenders, which are undertaken prior to adjudication but after a prosecutable action has occurred, ([3]Rovner-Pieczenik, cited in Dept of Attorney-General 1982, p6). Due to fears, in the case of non-trial disposition, of unfairness, lack of procedural protection and lack of follow-up treatment to prevent recurrence of the offence, the Commission recommended formalising the procedure and adding extra-legal services such as treatment and preventative education as an integral part of the non-trial disposition. The total package came to be known as 'diversion' ([4]Dept of Attorney-General 1982, p8).
The early justifications for diversion included:
The term 'diversion' when used in relation to the Australian criminal justice system may incorporate a 'range of related but relatively exclusive procedures some of which are seen as potential alternatives to "due process" others as additions to it' ([6]Williams 1981, p3). Those falling into the 'alternatives' classification include:
Those falling into the 'additions' classification include: + pre-sentence diversion: this is essentially remand for assessment and/or treatment; and + post-conviction diversion: in this case offenders are directed to some form of treatment-related supervision as a part of their sentence (presumably in lieu of imprisonment). Prisoners may also be diverted from jail to treatment as a condition of their parole. These additions to due process, therefore, function as increased sentencing options ([7]Williams 1981, p3).
The subject of diversion has been a neglected area in Australia, although there have been 'official' diversionary programs operating at least since 1977 (in NSW). The term diversion is applied to a wide variety of programs, and in Australia can occur pre-court or pre- or post-sentence. Pre-court diversion can vary from a police warning or an expiation notice for a minor drug offence, to referral for drug-treatment as an alternative to a punitive sentence.
Unlike some countries, in Australia cannabis use and possession offences are not regarded as very serious in comparison with offences involving 'harder' drugs, and the subject of treatment for cannabis use has similarly not been considered much of an issue. In fact the legislation in some States does not cover diversion for treatment on the grounds of cannabis use alone. If cannabis users are diverted for treatment it is usually because they are polydrug users, as many of the more serious users are.
The main diversion programs operating in Australia will be briefly described, and an overview presented of diversion in the US and other countries, with reference to their relevance for cannabis users. Key features of treatment programs for drug users are discussed, along with the issue of compulsory treatment and, what is known in the United States as, civil commitment.
The ACT Drugs of Dependence Act 1989 (as amended in 1992 and 1993) allows as a sentencing option anyone found guilty of a crime to be sent for assessment as to whether they are drug-dependent and therefore suitable to be referred for treatment. Those brought to court usually appear on a combination of charges of different degrees of seriousness. Often a community service order may be the sentence or a conviction on recognisance, which can include a good behaviour bond or a partially or fully suspended sentence. Assessment or treatment orders are rare and are typically given for such offences as unlawful possession, stolen property offences, burglary and motor vehicle theft (where drug dependence is believed to have contributed to the criminal behaviour).11
The DODA (Drugs of Dependence) Referral Program works in the following way: anyone committing an offence requiring a court appearance who seems to defence counsel to have a drug problem (or who claims to have a drug problem) is entitled to have this fact raised before sentencing. If the court issues an assessment order, the client then has to contact the DODA Referral Program where a counsellor takes a case history to be sent to the Treatment Assessment Panel. The panel consists of a legal person (usually a solicitor) and two others with extensive knowledge of drug and alcohol treatment in the ACT, who are appointed for a year. The client is assessed and options for treatment put forward. The client then goes to the chosen treatment centre which reports back to the panel as to whether the client is suitable or not suitable for treatment. The client then goes back to the panel for a second time at which time the panel looks at the information from the treatment centre and listens to what the client has to say, since the client has high input and responsibility throughout the process. If the client fails to come back (or fails to attend at any stage) an arrest warrant may be issued, or the panel may suggest a Breach of Assessment Order. This information goes to the court, where a warrant for arrest may be issued, or the failure to attend may be brought up when the client next comes before the court and the client may lose the right to the alternative to sentencing. This does not happen very often, as the court usually chooses the treatment order when they have the option. The court specifies the length of time at the treatment centre and periodic reviews by the panel, which can be every three months. The program tries to be lenient if the client misses one or two reviews, as the objective is harm minimisation rather than abstinence (unless the client has opted for abstinence). If the client consistently fails to appear for review or is not doing well (this is not the usual outcome) it is possible to breach them. The breach is issued in court but DODA provides the report on behalf of the panel. Then a summons can be issued and the usual court process (arrest warrant issued) is followed.
The magistrate primarily concerned with diversion made the following observations:
It was confirmed by the magistrate and treatment personnel that there have been clients coming to the program who complain of cannabis dependence. Personnel at the DODA Referral Program report that there is very little treatment for cannabis users. It is usually outpatient treatment and 'is not 100 per cent successful'. The treatment they use is adapted from the treatment for tobacco, i.e. a process of slow cessation, while keeping a diary of the situations and times of use, with counselling once a week. Ideally the treatment should be tailored to the individual's needs. Very few cannabis users would be referred to a residential facility such as Karralika, and if so, it would be on the grounds of polydrug use.
The DODA program is the only one of its sort in Australia, and mainly deals with fairly longstanding opiate users with lengthy records. There is a juvenile panel, but this has not been used much. If magistrates send more juveniles in future, the program would be especially relevant for alcohol use. A formal evaluation has not yet been done, but program staff claim the following desirable results: a reduction in criminal activity on the part of its clients; monitoring their progress rather than seeing them go to jail; and reducing their drug use. Very few become drug-free, but there is significant harm reduction from the social, personal and economic viewpoint.
The drug diversion scheme operating in South Australia was established when the Controlled Substances Act 1984 provided for the South Australian Drug Assessment and Aid Panel (the panel) as an alternative to the criminal law for illicit drug users.12 The panel is only one of 13 penalty outcomes for drug offenders in South Australia, ranging from a $50 expiation fee for possession of small amounts of cannabis and cannabis resin to $1 million and life imprisonment for the most serious trafficking offence. The underlying philosophy is to make a clear distinction between the drug dealer and the drug user (Gray, Reynolds & Rumbold 1992).
The new Act came about primarily as a result of the recommendation of the Sackville Commission that drug assessment and aid panels should be established to which all persons charged with simple possession offences involving drugs must be referred before a prosecution may proceed. Juvenile Aid Panels were also established - as an alternative to the juvenile court system - which continue to operate and to provide for the diversion of some, but not all, young offenders out of the criminal justice system ([8]Gray, Reynolds & Rumbold 1992).
The panel provides for absolute diversion in so far as the panel and its clients, not the courts and prosecutors, determine the outcome of proceedings. All persons charged with a 'simple possession' offence (i.e. involving personal use of illicit drugs other than cannabis and cannabis resin and including use or possession of implements for the use of an illicit drug) must be referred to the panel, thus precluding any issue of discretion on the part of courts or prosecutors, and removing the offender from the court system ([9]Gray, Reynolds & Rumbold 1992, p129).
The panel, however, considers only a limited number of offences, and although an amendment to the Act permitted courts to refer matters to the panel for the preparation of pre-sentence reports, this power has rarely been exercised ([10]Gray, Reynolds & Rumbold 1992, p130). The panel consists of a lawyer and two people with extensive knowledge of the problems and/or treatment of illicit drug use. Hearings are private and proceedings confidential in order to create an atmosphere of trust. Clients are referred from either the police or the courts, more often the former. Before being dealt with by the panel, the client must have admitted to the offence and be willing to undertake the assessment and any treatment or counselling which may be required. The client may choose the option of being dealt with by the courts. Those who do not appear willing to change their lives and those who do not respond to the initial letter from the panel or attend their appointment are referred back to court.
Those dealt with by the panel must undertake to comply with the directions of the panel and attend panel sessions as requested over a six-month period.13 At the end of this period the panel instructs the court and the police to withdraw the matter, and no record of any drug offence may be used subsequently against the client ([11]Gray, Reynolds & Rumbold 1992, p129).
The major findings of an evaluation of the panel were that:
Overall 'the justification for the panel as a means of diverting offenders from the criminal justice system and providing intervention opportunities is overwhelming' ([15]Gray, Reynolds & Rumbold 1992, p134). Interviews with criminal justice personnel indicated that the panel is satisfactory from the point of view of cutting down on court congestion and from the point of view that it is treatment-focused rather than punitive. There is also no stigma of a conviction being recorded. However, it seems that within the confines of the Act, the police have the discretion as to what charge to lay, e.g. if the offender is known by the police and has an amount of the drug which could be trafficked, he may instead be charged with trafficking.
Offences relating to alcohol or drug use in New South Wales are covered by the Drug Misuse and Trafficking Act 1985 (NSW). This Act distinguishes between cannabis and other drugs only in the case of commercial trafficking. Possession and administration of cannabis are prosecuted summarily and offenders are liable to a penalty of $2,000 and/or two years' imprisonment. Cultivation, manufacture and production, and supply are prosecuted on indictment, an offender being liable to a fine of $2,000 and/or two years imprisonment if there are less than five plants or less than a quantity of 25g. New South Wales was the first State in Australia to introduce a drug diversion program.
Its current program, the Drug and Alcohol Court Assessment Programme (DACAP) is a post-conviction, pre-sentence program where offenders on drug-related charges (such as possession of an illicit substance) or drug-involved crime (such as property crime to finance drug use) are bailed/remanded to attend a treatment agency and undergo a comprehensive assessment which forms the basis of a pre-sentence report for the magistrate, containing recommendations for sentencing, including treatment options ([16]Desland & Batey 1990, p796).
Successful completion of the treatment program, the length of which is determined by a health worker, finalises the matter ([17]Walters & Coventry 1993). A further objective is to 'provide drug offenders with a comprehensive assessment that may encourage them to consider improving their health and social functioning' ([18]Schlosser 1984, pxi).
DACAP further attempts through these assessments to match the individual's drug-related problems to the most appropriate range of therapeutic interventions within a legal/health framework (Schlosser 1984).'... the diversion from the Criminal Justice System to the health care system provides to the offender in many cases, the initial insight and confrontation that criminal activities are directly related to their health. Often this insight initiates motivation to address the problems of substance abuse' ([19]MSJ Keys Young, 1992, p92).
DACAP statistics between 1990 and 1992 indicate that, while heroin was the main drug of concern (after alcohol) in about one case in five, both in 1990-91 and 1991-92, cannabis was the next ranking drug ([20]MSJ Keys Young, 1992, p96).14 An interview with one of DACAP's clients who had been arrested for possession and supply of a large amount of cannabis revealed that, although he knew that he had 'a big marijuana problem', he had never been prepared to do anything about it and that DACAP provided the opportunity and a reason to 'address the issue'. The magistrate placed this client under supervision, fined him, imposed a sentence of periodic detention, with 20 hours at an Attendance Centre and the requirement to undertake a series of courses on issues such as personal development, money management, drug and alcohol information and education. The client fulfilled these requirements ([21]MSJ Keys Young, 1992, p118).
MSJ Keys Young's recent evaluation of DACAP included the observations that:
Victoria appears not to have any government-implemented pre-court drug diversion programs ([26]Walters & Coventry 1993). The Alcoholics and Drug Dependent Person's Act 1968 (Vic), s13 provides for bonds under which offenders may be ordered to attend treatment as an alternative to a custodial sentence (Skene 1986, cited in [27]Walters 1993, p11). Programs are available for offenders who are detected to be intoxicated at the time of the offence and considered by the court to be 'habitually using intoxicating liquor or drugs of addiction'.
The Court Advice and Assessment Programme precipitates a court report which makes recommendations on the suitability of a community-based order, and provides a management plan based on the offender's level of substance use. Referral to the program is at the discretion of the court, and applies only at the magistrate's jurisdiction, but is not limited to particular offences ([28]Gray, Reynolds & Rumbold 1992, p130). In addition, s67 of the Act allows for a good behaviour bond for first offenders so that the number of drug users ending up in court is not large.
A current study being carried out in Victoria by the National Centre for Socio-Legal Studies ([29]Walters & Coventry 1993) for the Victoria Police, is considering a pilot pre-court drug diversion program for 'all first-time drug offenders apprehended for use and possession offences regardless of the illicit substance'. At the time of detection and arrest these offenders would be considered 'recreational users', and one option for processing such offenders would be a diversion panel. In this case it would be up to the panel to assess the nature and extent of drug use and recommend a course of action ([30]Walters & Coventry 1993, p7).
In Western Australia, the Bail Act 1982 provides for treatment as a condition of bail in the case of a defendant who is suffering from alcohol or drug dependence. Their pre-court diversion system, the Court Diversion Service (CDS) has been operating since 1988 as a cooperative venture between the West Australian Alcohol and Drug Authority (WAADA), the Department of Corrective Services and non-government drug treatment agencies, coordinated by the WAADA. Any person with a drug dependency problem who is charged with a criminal offence is entitled to apply to the court for inclusion in the CDS program. However, it is important to note that persons are disqualified whose primary drug problem is alcohol or cannabis unless there is evidence of other current substance use that is a contributing factor. Informal referral and preassessment does occur and clients may voluntarily engage with a treatment agency prior to a formal referral by the court (CDS 1993). CDS policy requires only that a person admit to substance use, not to an alleged offence, thus the person can be formally engaged in treatment for an admitted drug problem and maintain a not guilty plea throughout the legal proceedings.
If formal referral does not occur, the CDS is not empowered to oversee the defendant's drug treatment and no CDS reports can be provided to the courts on the defendants progress (CDS 1993).
When formal referral to the CDS does occur, defendants are informed of the relevant drug treatment agencies and their philosophies, and must choose. They are then required to remain with that agency unless otherwise instructed by the CDS officer. Court appearances after formal referral are accompanied by interim reports regarding progress, and at the point of plea or of a finding of guilt the defendant is generally remanded for a full pre-sentence report. The coercive nature of the CDS in engaging drug dependent persons in treatment programs during times of legal crisis is acknowledged, and it is emphasised to potential clients that progress in treatment is only one aspect taken into consideration by the sentencing judge or magistrate (CDS 1993).
CDS personnel expressed the view that, whereas in the early days of the program there were mostly self-referrals, now most are court-generated. People have always had the option of treatment but clearly the catalyst is often a legal charge. The more familiar the courts become with the process the more it is used, and it is regarded as being generally well accepted.
Pre-court or pre-sentence diversion? As long as personal cannabis use/possession/cultivation remains illegal, the fundamental problem exists of the involvement of police discretion and variation in enforcement policies from one officer to another and from one jurisdiction to another. Any contact between the cannabis user and the police (at street level) or between the user and the court has the potential for the individual to have continuing involvement with the criminal justice system. Police discretion at street level at the point of arrest (or non-arrest) is inevitable. Police officers have the discretion regarding whether or not to issue an expiation notice (in jurisdictions such as South Australia) or (in jurisdictions such as Victoria) to choose which (if any) of a number of possible charges they will lay, which can vary from possession to trafficking.
While this could work in the interests of the offender, it may also act in a discriminatory fashion, which is why many would make the argument in favour of diversion systems which bring all offenders before the court, thus guaranteeing them due process. Many lawyers tend to support leaving the conventional criminal processing intact 'to ensure that the diversion program does not result in more coercive treatment of offenders through the non-judicial exercise of discretion' (Dept of Attorney General 1982, p78). In the case of expiation fines, it appears that many fines are not being expiated.15 Therefore the objective of relieving the burden on the courts, while achieved to a substantial degree, has not yet been 100 per cent successful, and there is room for improvement in terms of reducing the number of non-expiators and consequently removing more offenders from the criminal justice system.
The most prominent drug diversion programs in the US are the Treatment Alternatives to Street Crime (TASC) programs, established primarily to try to reduce the crime associated with drug use (mainly heroin). This national pre-trial diversion program was expanded to include all drug users (except those dependent on alcohol), including juveniles, recruited at all points of entry to the criminal justice system (e.g. through pre-sentence referral, conditional probation, police diversion and conditional parole). The program varies with the different legal systems and drug problems existing from State to State. For instance, marijuana users and juveniles were excluded in Colorado, whereas in Michigan marijuana users were preferred. Overall, however, most programs concentrated on heroin users ([31]Dept of Attorney-General 1982, pp10-11).
Such programs were not particularly amenable to satisfactory evaluation and usually were restricted to an examination of how well program objectives had been met. The results indicated:
Criticisms of the program also include:
However diversion appears to be more an 'alternative to dismissal of charges or probation than to incarceration' (Gorelick 1975 cited in [33]Dept of Attorney General 1982, p16). This view was also shared by the Canadian Law Reform Commission (Dept of Attorney-General 1982). Further criticisms were:
All of the points made above are also valid for Australian diversion schemes. A very recent form of pre-court intervention (for the purpose of treatment) operating in the US is the Weekend Intervention Program (WIP) which is reported to be 'highly effective in identifying and intervening with persons charged with alcohol- and other drug-related driving offences' (Siegal & Cole 1993).
The underlying philosophy of the program is that the crisis nature of an encounter with the criminal justice system, if successfully managed, provides a valuable opportunity to intervene in an individual's life by identifying the clinical needs of substance users who are not yet receiving treatment, and in a non-punitive way 'gently' confronting participants with the consequences of their own drug and alcohol use. The individual is provided with a diagnostic assessment and treatment program recommendation 'with a specificity unavailable through traditional settings' ([35]Siegal & Cole 1993, p133). The program consists of a three-day residential program to which persons involved in a drug or alcohol offence may be remanded by a court or other supervising agency. It consists of 'Marathon substance abuse counselling sessions using a cognitive-behavioural-oriented approach combined with presentations structured around a modified health belief model'. This participation in the assessment and referral process itself is regarded as being able to help prepare the substance user for any treatment to be received ([36]Siegal & Cole 1993, pp133-4).
New Zealand has an adult pre-trial diversion scheme which commenced operation in 1988. It was developed and is managed by the New Zealand Police as part of a wider program which entails an increasing emphasis on the use of discretion by police in their handling of minor offenders. The scheme is not, at present, statutorily based although the Government is considering this option.
The scheme is widely accepted by police officers, members of the judiciary and practising lawyers, as well as the offenders who are offered pre-trial diversion. The New Zealand Police have described the scheme in the following terms: The key steps in the scheme are that the offender must be a first offender (there are limited exceptions in special cases), there is sufficient evidence to charge the offender, and information is then laid and at that stage the offender is considered for diversion. If the offender meets the criteria [see below] and admits the offence to the diversion coordinator (a police prosecutor) the court is asked to adjourn the case until the offender has completed the requirements of the diversion scheme. Those requirements may consist of paying money to a charity, doing community work, and/or attending specialist counselling depending on what problem they may have, e.g. drugs, alcohol, anger management, etc. Once the requirements have been completed the police ask the court to withdraw the information (personal communication, New Zealand Police, 17 December 1993). If the court agrees to withdraw the information, the offender is not convicted and the police destroy the offender's records, including fingerprints.
The criteria for diversion are not rigid; they include the following:
The use of cannabis and the possession of small quantities for personal use are considered to be minor offences, making an offender eligible for consideration for diversion. (Clearly the criterion relating to the consent of the victim is not relevant in such cases.) Consultants reviewed the scheme for the New Zealand Police in 1991. They reported that approximately 12 per cent of the people dealt with through the diversionary process had been charged with cannabis possession ([38]Young & Cameron 1991, pp41-6). The review indicated that the scheme was generally very well received by all the parties involved and also pointed to existing and potential difficulties and to ways in which it could be strengthened. The police and the Government are currently reviewing the scheme, considering the option of giving it a legislative base and ensuring that it operates in a similar manner throughout the country. This diversionary scheme, combined with an actively implemented policy of cautioning minor offenders whenever possible (rather than charging them), comprises an enlightened approach to the handling of minor offenders such as cannabis users.
An overview of international legislation relating to diversion, in countries covered by the World Health Organization ([39]Porter, Arif & Curran 1986), indicates that many countries provide for diversion to drug- and alcohol-dependence treatment programs both separately and in combination, the covering legislation falling into a variety of categories (e.g. mental health, public health, criminal or specialised treatment laws).16
The legal disposition of drug- or alcohol-dependent persons is frequently covered by the criminal law (e.g. under specified statutory offence) or mental health legislation. In Victoria, for example, treatment programs for drug and alcohol dependence include provision for both voluntary and involuntary admission, while other provisions governing treatment may be found in road traffic laws and the mental health legislation (Porter, Arif & Curran 1986, pp36-37). Porter et al. emphasise the importance of treatment as a service to the public and the individual concerned, which should be available at every stage of the criminal justice system.
Initial contact between the offender and the police can be very important, as it may create the kind of crisis that motivates a person to undergo effective treatment, and the police should be 'both legally entitled and encouraged to refer the person directly to a treatment program, in lieu of arrest, for a short time until the emergency passes'. They claim that there are definite advantages in including treatment provisions in drug control legislation because of the flexibility it gives to the courts in imposing alternatives to penal sanctions ([40]Porter, Arif & Curran 1986, p116).
To summarise some relevant points raised by Porter et al's overview of international diversion legislation: 1.
Among the problems raised are: 1.
Drug diversion schemes of various types operate in overseas countries. In France, for example, an offender who complies with a court-determined treatment order is not liable to prosecution; in Germany, a period of treatment can be credited against a custodial sentence; in Massachusetts, a court-appointed diversion scheme operates to stay court proceedings ([41]Porter 1986, p171). In some countries, e.g. France and Italy, a person voluntarily undergoing treatment, on completion is issued with a certificate as evidence to protect against subsequent prosecution for offences committed prior to treatment ([42]Leroy 1991). Of the 51 jurisdictions surveyed by the WHO, 22 diverted persons for treatment at one or more of these stages in the criminal justice process: (a) instead of arrest; (b) after arrest, pending trial; (c) after trial in lieu of imprisonment (e.g. suspended sentence); and (d) correction with imprisonment (e.g. during confinement or as a condition of parole) (Porter, Arif & Curran 1986, p57).
A major issue for legislators is whether such diversion should be mandatory. If diversion is mandatory prior to or instead of trial, this amounts to decriminalisation of the offending behaviour.17 In Sweden, which allows for compulsory commitment, there is now legislation in place criminalising drug use and widening the powers of the authorities to take adult alcohol and drug-dependent people into care. Sweden is a country with a strong temperance tradition which has led to 'an obsession with substance misuse generally'. Faced with the problem of AIDS and with economic difficulties, a 'new moralism' has developed in this country leading to these harsher drug measures (Gould 1989, p731).
Another approach to the handling of cannabis offenders is that taken in the United Kingdom, where more than half of the police constabulary areas have allowed police officers to take note of drug users found in possession of quantities of drugs consistent with personal use. Police then have the option not to proceed with a legal charge unless the individual has been cautioned on more than two occasions previously ([43]Wodak 1993).
A recent example of a pre-court initiative involving an attempt to bring drug users into contact with treatment is the 'Southwark Arrest Referral Pilot Program', funded by the British Home Office Local Drug Prevention Team. This three-year pilot program, commenced in March 1991, is being carried out to establish the effectiveness of arrest as an intervention for drug users wanting help. Police provide arrestees with information on local drug referral agencies and cards are sent to all charged offenders. Also, drug workers are on call to visit the relevant police stations. Though referrals were not numerous, most of those participating in referral programs reported reduced drug use in the following 12-month period.
The flaw in the program to date is the lack of effort and encouragement on the part of the police. However, it reflects an attempt to bring into a closer working relationship police and local welfare agencies in a harm reduction effort rather than simply to exercise law enforcement against drug users ([44]Walters & Coventry 1993, p12). Although the British Criminal Justice Act was proclaimed in 1991 with specific sections relating to the treatment of drug and alcohol dependent offenders (Criminal Justice Act 1991, s69, schedule 1, cited in Walters and Coventry 1993, p11) and allowing for referral and assessment procedures as components of non-custodial orders, it does not establish diversionary programs for drug offenders.
CRIMINAL JUSTICE SYSTEM-INITIATED DRUG TREATMENT AND CIVIL COMMITMENT
A number of literature reviews have concluded that treatment can effectively reduce drug use as well as the criminal activity which often accompanies it ([45]Anglin & Hser 1990; Gerstein 1990; Office of Technology Assessment 1990 in Anglin & Hser 1991, p244). There is also increasing evidence that those coerced into treatment by way of the criminal justice system achieve the same success as those entering voluntarily (Anglin & Hser 1991, p244).
The issue for makers of social policy is how to increase the number entering treatment, since 'the nature of drug use, especially at abusive and addictive levels, often inhibits or precludes self-motivation in the user toward voluntarily seeking treatment' (Anglin & Hser 1991, p247).
Many would say that 'when offenders, such as arrestees, probationers, inmates or parolees, are identified as substance abusers by the criminal justice system, remanding to treatment is a necessary and logical action ... One of the most successful of coercive efforts has been civil commitment' (Anglin & Hser 1991, p247; see also discussion below of countries which employ civil commitment). Carney, in his Drug Users and the Law in Australia (1987), points out that, in Australia, civil commitment policies for drug-dependent people date back to the 19th century, and were based on the early view of drug use as a 'disease' for which in-patient therapy should be compulsory (1987, p1).
As early as 1867, Victoria copied Scotland's move to amend its lunacy laws to allow inebriates to be admitted to 'lunatic asylums', and in 1872 passed the Victorian Inebriates Act, which was the first comprehensive Inebriates Act to be enacted outside America. The other Australian States followed, with legislation in Tasmania in 1873, in South Australia in 1874, in Queensland in 1898, in New South Wales in 1900 and in Western Australia in 1903 (1987, p3). Much of the Australian State legislation has survived to the present time. When Queensland was debating its legislation in 1896, the subject of drugs other than alcohol, i.e. 'opium, chloral and other drugs', came up for the first time (1987, p13). Legislation providing for voluntary or compulsory civil admission to treatment facilities of alcohol or drug-dependent people is in force in most of the major Australian jurisdictions - but is not much utilised. Carney (1987, pp52-53) outlines four approaches to the regulation of entry to civil treatment schemes for dependent drug users - the fourth 'applies the classic justifications for the enactment of criminal law, namely that the actions of the prospective patient constitutes an intolerable degree of harm to other members of the community. Judicial commitment of offenders, and some third party proceedings initiated by police officers, fit this model' (1987, p53).
Moving to the United States, the origins of 'civil commitment' for opiate-dependent (and also alcohol-dependent) people date back to the second half of the 19th century when some of the laws enacted to provide for the civil commitment of the mentally ill also permitted civil commitment of people dependent on narcotics ([46]Rosenthal 1988). In the United States civil commitment generally takes the form, described by [47]Brown (1988, p664), of the direct remanding of the individual to the health care system in which civil procedures alone are brought into play ... This administrative/judicial action need not involve provision of legal counsel, the potential for judgment by one's peers, access to witnesses for one's defense, etc.
With some exceptions (see Newman 1986, cited in [48]Brown 1988), diversion from the criminal justice system for drug treatment seems to be acceptable to both health and criminal justice authorities. However, in democratic countries, civil commitment of the drug user conflicts with many people's views regarding civil rights, the proper relationship of the individual to the State and the use of the health care system for social control. Regardless, legislation in a number of countries provides for such civil commitment for drug use. [49]Porter et al. (1986) point out that in 27 (comprising 32 separate jurisdictions) of the countries they surveyed, there was provision for civil commitment under certain conditions, as there are in 35 American States.
It has been argued (Bejerot 1983 & Webster 1986, cited in Brown 1988) that such extreme measures to deal with drug use must have wide public support. Generally the rationale for such action is that drug use is a threat to the country's stability (as in Singapore in the case of heroin dependence among young males) or a threat to the country achieving its economic goals, e.g. Malaysia, where the Government decided that the drug problem was a threat to national security as the country was 'losing its manpower to drugs' ([50]Rysavy 1990).18
In 1983, due to an increasing heroin problem in Malaysia, the powers of police and drug rehabilitation officers were extended, allowing them to arrest and detain persons suspected of using illegal substances. A positive urine sample resulted in mandatory drug treatment. Ten per cent of those in treatment in 1989 were undertaking rehabilitation for cannabis use only. All programs were the same, lasting a maximum of two years with two years' compulsory aftercare, an important part of which was the assignment of a drug-free 'guardian' to act as a role model and to provide positive support. Any infringement of rules during treatment resulted in severe punishment, and any drug use after release from treatment resulted in incarceration (Rysavy 1990). Needless to say the program has a high success rate, but is unlikely to fit other countries with cultures differing from that of Malaysia.
Brown summarises the conditions that 'on the basis of other societies' actions, have been described as necessary to the implementation of civil commitment procedures:
Brown goes on to say that it is likely that jurisdictions will retain the option to call upon civil commitment in the event of a situation arising which has the capacity to 'disrupt the normal course of society and for which criminal prosecution may be seen as either inappropriate, unwarranted or infeasible'. At the same time, only with the greatest conservatism will civil commitment be likely to be employed, due to a general distaste for such emergency measures ([52]Brown 1988). The contribution to the spread of AIDS of intravenous drug use, and its repercussions for individual drug users and the wider society, is potentially one such situation.
Throughout the wide variety of countries providing for civil commitment for drug use, there have been few studies of the efficacy of such treatment ([53]Brown 1988). However, some studies have been produced by the US and these are discussed below. Generally, in the majority of countries, grounds for commitment are provided either in mental health legislation or specific drug legislation. Countries using mental health legislation usually include provision for commitment for threats both to others and to self. Germany, Japan and Somalia, for example, provide for civil commitment if the drug-related disorder 'constitutes an imminent threat to public safety, or when individuals pose a danger to their own life and health' ([54]Brown 1988, p666). Bangladesh, on the other hand, specifies only the existence of psychiatric disturbance without elaboration of threat, and Trinidad and Tobago emphasise the individual's inability to provide for himself (Brown 1988). Fifteen out of 43 countries surveyed by [55]Porter et al (1986) provide for civil commitment under legislation specific to drug use, where the criteria may be limited to evidence of dependence (as in Mexico, Columbia, Peru, Thailand and Malaysia). Some (i.e. Argentina, Italy, Australia and Sweden) also include reference to the threat posed to others and/or to the need for treatment. In Victoria (Australia) under the Alcoholics and Drug Dependent Persons Act of 18 December 1968, an alcohol- or drug-dependent person 'suitable for treatment' (i.e. 'who habitually uses drugs of addiction to such an extent that he has lost the power of self-control with respect to the use of drugs of addiction' (Porter et al 1986, p126), may be committed for seven days and, at the discretion of the medical officer in charge of the assessment centre (the decision-making authority), for another seven days.
A consensus statement issued by the participants at a meeting in the US to examine research findings relating to civil commitment and mandatory treatment, particularly in relation to hindering the spread of AIDS, found that 'treatment is effective in reducing intravenous drug abuse and that the length of time in treatment is positively related to treatment success, the criminal justice system is important for identification and retention of drug abusers in treatment' ([56]Leukefeld & Tims 1988). It was further recommended at this meeting that 'the term "compulsory treatment" be used rather than "civil commitment" to capture a wider range of possible interventions, since civil commitment is only one type of compulsory treatment. Further, it is essential that candidates for compulsory treatment receive appropriate legal protections.' In the US, despite interest in the early 1970s due to 'high rates of recidivism and criminal justice system over-crowding and the shift away from a rehabilitative philosophy in corrections, programs for drug-abusing offenders have languished in the 1980s until fairly recently' ([57]Anglin and Hser 1990, p424).
However, the 1960s saw the beginning of civil commitment for drug-abusing offenders in some States of the US. These were based on the therapeutic community philosophy. There are few evaluations of treatment for offenders except for these civil commitment programs, and such programs as have been developed are so recent that they have not been evaluated.
Compulsory treatment of drug users has been a controversial issue worldwide for decades. In response to two forces, one aimed at more effective treatment of problem drug users and the other at social control of the problem user, civil commitment legislation was enacted in the US in the 1960s and 1970s ([58]Rosenthal 1988).
Following this, three major treatment programs were established: the California Civil Addict Program, the New York Civil Commitment Program and programs under the federal Narcotic Addict Rehabilitation Act (NARA) ([59]Anglin & Hser 1990, p425), enabling large-scale commitment of drug-dependent people. However, relatively few persons were committed under the Massachusetts law, one of the earliest in the country, and despite civil commitment laws in many other jurisdictions they remained only statutes on the books (Rosenthal 1988).
Since involuntary civil commitment involves a substantial deprivation of liberty, various aspects of the California and New York programs were challenged quite early - the federal program for involuntary civil commitment of drug users not charged with a crime was not challenged in this way, presumably because the federal program permitted only relatives to initiate commitment, and few relatives did. Despite challenges to the constitutionality of involuntary treatment, the Californian and New York courts held in its favour. They were, however, influenced by the Supreme Court case of Robinson v. California which did not really involve the constitutionality of involuntary commitment at all but rather the question of whether it was constitutional for a State to make 'addiction' a crime: 'Nevertheless, the Supreme Court declared (in a dictum) that a State might establish a program of compulsory treatment for opiate addicts either to discourage violation of its criminal laws against narcotic trafficking or to safeguard the general health or welfare of its inhabitants' ([60]Rosenthal 1988, p641).
It has been suggested that because this case did not involve the constitutionality of involuntary treatment of opiate users, the Supreme Court did not go into that question as deeply as it might have and, in turn, the California and New York courts relied too much on the Supreme Court dictum without delving deeply enough into the question. The Supreme Court decision therefore meant almost inevitably that in future cases the substantive validity of involuntary civil commitment would be upheld (Rosenthal 1988, p643).
Under the legislation discussed here anyone found in a medical examination to be dependent on drugs (usually heroin) could be committed. Mostly those committed had been arrested for property crimes or drug trafficking and were diverted from the usual criminal processing. Usually there were two phases of treatment, initially one of imprisonment, plus a period of parole or monitored community release. During both phases the goal was reduced drug use and criminal behaviour; vocational training was sometimes added.
The California Civil Addict Program was more successful than the New York State program, primarily due to better management. The main results of evaluations were that program participants reduced 'narcotic use and associated property crime' to one-third compared with those not in the program ([61]Lindblad 1988). Overall, studies of the California CAP concluded that civil commitment and other drug treatment programs, particularly methadone maintenance, were effective in reducing narcotics dependence and minimising the associated adverse social effects, the important issue being that the dependence should be brought into an environment where intervention can occur over time.
In this respect, civil commitment and other legally coercive measures were found to be useful where the dependent person would not enter treatment voluntarily ([62]Anglin 1988a). A vital issue is the implementation strategy employed, which can 'ensure or sabotage success' (Anglin 1988a, p539). Although NARA was a comparatively short-lived program superseded by other legislation, it provided a national network of treatment providers and was regarded as an effective way of bringing narcotic dependent people into treatment. NARA allowed treatment for offenders as a pre-trial civil commitment, rather than prosecution for drug-dependent people convicted of a specific crime and for voluntary applicants. Those admitted to the program did as well or better than those in other programs (Lindblad 1988).
More recently in the US, coordinated programs have been developed in a number of States to refer 'drug-abusing offenders to community-based treatment in lieu of prosecution or probation revocation', e.g. the Treatment Alternatives to Street Crime (TASC) program ([63]Anglin & Hser 1990, p428), begun in 1972 and by 1988 operating in 18 States (Cook et al. 1988 in Anglin & Hser 1990, p428). This provides community-based treatment for drug-dependent offenders who 'otherwise might become progressively more involved with the criminal justice system' (p428). Diversionary dispositions such as deferred prosecution, creative community sentencing, and pretrial intervention are used to motivate offenders to enter and remain in treatment. Evaluation Such limited evaluation as has taken place (through the Treatment Outcomes Prospective Study) indicates that criminal justice referred clients, because they were monitored, tended to stay in treatment longer than voluntary clients, which is usually associated with more successful treatment outcomes ([64]Anglin & Hser 1990, p429).
Although evaluations of treatment are positive, it remains a question as to whether improvements would have occurred over time anyway due to maturation or other outside influences. In terms of client characteristics and treatment effectiveness, it was found that 'addicts who have a more stable family background, an intact marriage, a job, a history of minimal criminality, less evidence of alcohol or polydrug abuse, and less severe psychiatric disorders are more likely to achieve a better outcome in most programs' (Anglin & Hser 1990, p429).
Many studies have shown that, while older clients, mostly opiate users, tend to stay in treatment longer and therefore benefit most (possibly due to the 'maturing out' effect noted by Winick (1962 in Anglin & Hser 1990, p435), those under 25 tend to leave treatment prematurely, thus limiting their prospects for effective results. In terms of program factors which appeared to be most beneficial, the significant ones were: psychotherapy, urine testing, and legal coercion. 'Clients referred from the criminal justice system have been shown to stay in treatment longer than other clients' (Collins et al., cited in [65]Leukefeld & Timms 1988, p57) and longer retention suggests better treatment outcomes than with other clients (but see above).
Some argue that treatment cannot be effective if the client is coerced, and the findings are not consistent on this issue. However, the best-designed studies 'generally support the proposition that a collaborative relationship between the criminal justice system and community-treatment delivery systems produces, at an aggregate level, enhanced treatment outcomes' ([66]Anglin & Hser 1990, p439). While length of retention in treatment is an important predictor of success it appears that 'for many drug abusers, repeated exposure to treatment is more effective than one episode' (McLellan & Druley 1977 in Anglin & Hser 1990, p441).
Total time in treatment may be more important, when accrued across treatment episodes, than retention in a single program (p441). In a number of other countries, any illegal drug use including that of cannabis is sufficient grounds for recommending or ordering treatment, implying that some other countries regard cannabis use more seriously than Australia does, and deserving of treatment. The mode of treatment depends on the profile of the individual user and on such factors as are mentioned elsewhere in this report, e.g. whether the person is a polydrug user, length of time of use, degree of psychopathology and so forth. Outpatient non-methadone programs which involve clients with all types of drug use who tend not to have serious criminal histories, are the most obvious option for treatment of cannabis dependence. Therapeutic communities are not necessarily specific to any class of drug and could also therefore potentially be of benefit to certain cannabis-dependent persons.
Since the numbers of cannabis users who have problems is still small and very few are likely to be seriously enough dependent to be referred by the court, it is unlikely that treatment facilities could not incorporate them.
A summary of findings from Australian and international literature concerned with diversion and treatment for drug offenders suggests the following conclusions with relation to cannabis users:
In this chapter we have discussed the two related fields of diversion and treatment for drug offenders. We believe that few people would disagree with the wisdom of diversion from the criminal justice system for minor cannabis offenders. Further, though some would object that treatment of drug offenders is a form of social control and that the concept of the 'need for treatment' has no inherent limitation, the evidence suggests that, although methodological problems exist in the evaluation of treatment programs, most of the programs outlined here have achieved a certain level of success in terms of meeting their objectives - which generally means, in the Australian context, reducing the drug use, and associated involvement with the criminal justice system, of the individual undergoing treatment.
Disagreement arises regarding the degree of intervention which should be exercised by the criminal justice system, as an agent of the State, in coercing drug offenders into treatment - in its most extreme form, through civil commitment. While the United States, for example, indicates considerable support for civil commitment, in Australia, although commitment exists as a legislative option, there has been reluctance to use it. This decision with respect to the balance between protecting society and infringing the rights of individuals is a matter for the particular society involved and the prevailing mores at the time.
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