Drug Courts and Punitive Populism:An example of policy-based evidence - a paper I delivered in England at British Society of Criminology 2013

1. Drug Courts and Punitive Populism:
An example of policy-based evidence
Julian Buchanan
Institute of Criminology, Victoria University of Wellington
BSC Conference Wolverhampton, 2013
1

2. Stakeholders in the Drug Court System
• Judge – frequent court reviews
• Barrister – represent offender
• Drug Tester – frequent drug testing
• Corrections Officer – management and control
• Treatment Provider – drug treatment
• Court officials – registrar, admin, usher, police, security
Deferred sentence or Court Order
2

3. How they operate
• Parramatta Drug Court (est. 1999)
– W/SW Sydney, Local/District Courts
– Alternative to prison
Three phases (12mth min.): Sanctions and Rewards model
Phase 1. Three Months Initiation and Stabilisation:
3 x Urine Analysis each week, plus weekly Judicial Supervision
Phase 2. Three Months Consolidation:
2 x UA per week, fortnightly JS
Phase 3. Six Months Reintegration:
2 x UA per weeks, monthly JS
http://www.shop.nsw.gov.au/pubdetails.jsp?publication=11069
2011
3

4. • Similar cost to prison
• Return to custody rates high (61%)
• High drop out
• SAU Supervision As Usual
• Intensive Judicial Supervision
4

5. NZ Law Commission p.333
The evidence of drug court
effectiveness, however, seems to be
somewhat mixed. Evaluations tend
to indicate that they can reduce
drug use by participants and have a
positive impact on participants’
general health and wellbeing, but
evidence about their impact on
rates of re-offending is more mixed
In the New South Wales Drug Court
56% of all those offenders placed in
the drug court programme did not
complete it.
5
..or only 44% successfully completed
What percentage of the 56% resulted in
incarceration
What percentage of completers were high
risk PDUs?
.

6. NZ Law Commission p.334
‘We think there is enough evidence from the
international experience with drug courts to
justify further exploration of the approach in
New Zealand, if funding is available for a pilot.
The New South Wales evaluation, in particular,
provides reasonably robust evidence that drug
courts can be more effective at reducing
recidivism than some of the alternative options’
6

7. US to NZ Policy-Transfer:
Drug testing built into to US styled Drug Abstinence
Courts rolled out in New Zealand
7

8. 8

9. Drug users caught up in Drug Court
Non-problematic users –drug defined crime
use drugs but don’t commit any other crime, do not meet
diagnostic criteria for drug dependence – but commit a drug
defined crime - the majority of people who use illicit drugs.
Dependent drug users –drug defined crime
meet diagnostic criteria for dependence. Some may need
treatment to recover from dependence
Offenders
Drug dependent offenders – (non drug defined crime)
commit non drug defined crimes, meet diagnostic criteria for dependence, and some may
need treatment to recover from dependence
Non problematic drug users – (non drug defined crime)
They commit non drug defined crimes, use drugs but do not meet diagnostic criteria for drug
dependence
Adapted from … Stevens (2012) Coerced treatment of people who use drugs, Human Rights and Drugs, vol.2
no.1adapted 9

10. NZ Law Commission p.336
There is a risk that the drug court could result in “net-widening”, by
exposing relatively minor offenders to its resource-intensive, lengthy and
intrusive monitoring. This would be undesirable.
Offenders should not be exposed to a disproportionate response to their
offending, with the inevitable element of coercion that this entails
notwithstanding any requirement for their consent, merely because the
response is perceived to be beneficial to them.
10

11. A Key Component of Drug Court is
Drug Testing
11

12. Drug testing offers….
The seductive attraction of new
technology in an era of reductionist
binary thinking, when organisations
and individuals crave certainty and
fear the ‘other’
12

13. Drug Testing Beneficiaries
Government will stop benefits for repeated
failed drugs tests from beneficiaries
http://www.stuff.co.nz/national/politics/policies/5969312/National-gets-tough-on-benefits
US to NZ Policy-Transfer
13

14. New technologies driving new policies
and practices
….and providing new business
opportunities
14

15. Urine
15

16. Fingerprints
16

17. Saliva
17

18. Hair
18

19. Parent
child
disaster
19

20. Sewage Waste Analysis
Taking the piss
20

21. Drug Testing growth industry
• New Zealand drug test
people on benefits
• School children drug
tested
• Prisoners drug tested
• More employers drug
testing
• Parents are drug testing
• Sewage and waste water drug testing
• Drug test arrestees
• Drug test drivers
• Universities encouraged to consider
drug testing before exams
21

22. The Concern?
DRUGS
22

23. Misguided bifurcation of
substances that doesn’t
reflect harm
NZ Psychoactive
Substances Bill
23

24. An alternative scientific model of drug harm
24

25. New Technologies
New business opportunities
25

26. -----------
Ex-law enforcement officers working for and sometimes owning drug testing companies
26

27. A holiday
home tests it’s
employees
why?
27

28. Issues with Drug Testing
28

29. Drug testing
– a game of cat and mouse
29

30. Spawn new business opportunities for products
to help avoid detection
30

31. New business
opportunities
to avoid
detection
31

32. Pushing people off cannabis?
The detection times of abused drugs are extremely
variable. … In urine the detection time of a single dose
varies between 1.5 and 4 days. In chronic users, drugs of
abuse can be detected in urine for approximately 1 week
after last use, and in extreme cases even longer in
cocaine (22 days) and cannabis users (up to 3 months).
Verstraete, A.G., 2004. Detection times of drugs of abuse in blood,
urine, and oral fluid. Ther Drug Monit 26, 200–205.
32

33. Drive people towards more dangerous
new designer drugs
33

34. 34

35. 35

36. Breach human rights
36

37. 37

38. Fails to distinguish
between
USE and MISUSE
38

39. Liberty, Freedom and Human Rights
to take drugs
“The only freedom which deserves the name, is that of
pursuing our own good in our own way, so long as we do not
attempt to deprive others of theirs, or impede their efforts to
obtain it.” John Stuart Mill On Liberty
The individual should be free to do what they wish with their
life so long as it doesn’t harm other citizens
39

40. Presence
or
Impairment?
Little or no distinction
between….
40

41. Colludes with dodgy science
Incident + drugs = causal relationship
• Problem is drugs
• Solution is to make people ‘drug’ free
Here’s an example…………………..
41

42. Causal
relationship?
Causal
relationship?
42

43. 43

44. Need for
evidence-based
harm reduction
approach
44

45. Zero tolerance policy undermining
national harm reduction policy
‘the regulation of drugs should reflect
the principles of harm reduction which
underpin this country’s overarching
drug policy’
p.47
NZ Law Commission (2011)
45

46. Reliability Concerns
false positives &
false negatives
• Human error
• Technology error
• Significant human variation
• Detection avoided by intervention
• Detection triggered by ‘innocent’ means
http://workrights.us/wp-content/uploads/2012/03/NewInformationDrugTesting.pdf
46

47. No evidence to support drug testing
47

48. Claims about saving money in doubt
48

49. ‘we are doing what other good employers are doing’
Cashman C.M., Ruotsalainen J., Greiner B.A. et al.
Cochrane Database of Systematic Reviews: 2009, 2, Art.
No.: CD006566. Exhaustive Systematic Review finds just
two rigorous studies of workplace testing for alcohol
and/or drug use of people employed as drivers.
Testing employees in the workplace for
alcohol and drug use is commonplace
in some countries but its effect in
reducing occupational injuries remains
unclear.
The state of the evidence is insufficient
to be able to advise for or against drug
and alcohol testing of occupational
drivers as the sole long-term solution
to preventing injuries in the context of
workplace culture, peer interaction
and other local factors.
Politically driven populist policy
– which retrospectively seeks
policy based evidence.
Rather than scientific evidence
informing and shaping policy
and practice
49

50. Drug testing reflects a new drive in failed drug
prohibition strategies
Strategic shift or expansion
from war on drug cultivation
and supply, to waging war on
illicit ‘drug’ use through an
ever intrusive drug testing
regimes, yielding new
business opportunities and
justification to exclude large
numbers of unemployed
people who are currently
surplus to capitalist
requirements?
50

51. Drug Testing
1. Unreliable, over simplistic and costly
2. Breach of human rights
3. Unrealistic, intolerant and excludes people
4. Unnecessarily targets ‘use’ (presence) not misuse (intoxication)
5. Promote abstinence undermines national harm reduction policy
6. Perpetuates a misleading drugs apartheid
7. Promotes politically driven policy-based evidence rather than
scientifically informed evidence-based policy
8. Encourages use of more dangerous substitute substances
51

52. When Drug Court might be justified
1. Establish the offender has a drug dependent.
2. Establish there is a causal relationship (or strong association)
between the patient’s drug dependency and offending
behaviour (excluding drug defined crime).
3. The crime committed would have resulted in prison.
4. Aim of treatment (harm reduction)
Is determined by the patient, or negotiated and subject to informed consent
5. Type of treatment
Is determined by the patient, or negotiated and subject to informed consent
6. Pace of change
Is determined by the patient, or negotiated and subject to informed consent
7. Can’t be punished for ‘failing’ treatment
Drug dependency is a chronically relapsing condition
8. Setting and treatment not designed to punish or degrade the
patient
9. Ensure the Judicial intrusion and demands are proportionate
to the crime committed
52

53. Voluntary Treatment Works
• There is clear evidence that treatment can be cost-effective
Babor and others Alcohol: No Ordinary Commodity (Oxford University Press, New York, 2003); A Ritter and N Lintzeris
“Specialist Interventions in Treating Clients with Alcohol and Drug Problems” in M Hamilton, T King and A Ritter (eds)
Drugs in Australia – Preventing Harm (2nd ed, Oxford University Press, Melbourne, 2004) at 225.
• Most reviews consistently find that addiction treatment yields net economic
benefits to society.
National Committee for Addiction Treatment (NCAT) Investing in Addiction Treatment, A Resource for Funders, Planners,
Purchasers and Policy Makers (NCAT, Christchurch, 2008)
• The National Committee for Addiction Treatment has cited studies that estimate
that for every $1 spent on addiction treatment, there is a $4 to $7 reduction in the
cost associated with drug-related crimes, and that for some non-residential
programmes, total savings can exceed costs by a ratio of 12:1.
http://www.rwjf.org/reports/grr/046113.htm
• Similarly, reports prepared by both the Beckley Foundation and the United Nations
Office on Drugs and Crime reviewing the research evidence on drug treatment
have concluded that drug treatment can be cost-effective.
Stevens, Hallam and Trace, above n 904; and United Nations Office on Drugs and Crime Contemporary Drug Abuse
Treatment: A Review of the Evidence Base (United Nations, New York, 2002).
53

54. thank you
Julian Buchanan
Institute of Criminology, Victoria University of Wellington
julian.buchanan@vuw.ac.nz
BSC Conference Wolverhampton, 2013
54