Indermaur, David; Roberts, Lynne --- "Finding Alternatives to Imprisonment: Drug Courts in Australia" [2005] ALRCRefJl 7; (2005) 86 Australian Law Reform Commission Reform Journal 28

---

Reform Issue 86 Winter 2005

This article appeared on pages 28 – 32 of the original journal.

Finding alternatives to imprisonment: Drug courts in Australia

By David Indermaur and Lynne Roberts*

Drug courts primarily represent a form of diversion of the drug dependent offender from imprisonment to treatment.

The key components of drug courts that differentiate them from traditional courts are the integration of drug treatment with justice system case processing, a non-adversarial team approach and ongoing judicial interaction with each offender.

Drug courts started in the United States in the 1980s and have since proliferated, mainly in the US, but also in other parts of the English-speaking world. By January 2005 there were 1,262 fully operational drug courts in 50 states of the United States with a further 575 in the planning stages.¹ This rapid spread of drug courts should not be seen as proof of their effectiveness. Most drug courts were implemented before any body of evidence on the effectiveness of drug courts had accumulated. Drug courts are politically attractive. They are portrayed as both ‘tough’ and ‘effective’ in terms of saving money, reducing crime and dealing with the underlying ‘causes’ of crime. In addition, they offer hope for a cheaper, more effective method of dealing with drug dependent offenders in a climate of growing awareness of the ineffectiveness of imprisonment for drug dependent offenders. In short, drug courts represent an idea whose time had come—a potential circuit breaker of the drugs–crime nexus.

In this paper we briefly review the implementation of drug courts in Australia, examine their current status and the challenges they face in the future.

Implementation of drug courts

The first Australia drug court was established in New South Wales in 1999, quickly followed by the establishment of drug courts in South Australia, Western Australia and Queensland in 2000 and Victoria in 2002. While US drug courts developed as part of a judicial ‘grass roots’ movement, in Australia their introduction was the result of a push by policy makers and bureaucrats to provide appropriate treatment options in addressing the drug crime problem. Many of the drug courts were also introduced, or at least ‘sold’, as a cost cutting measure aimed at reducing the number of offenders being sent to prison.²

Australia has a less punitive approach to drug dependent offenders than the US, with a three decade history of diversion programs and treatment options and reserving the use of imprisonment to that of ‘last resort’. However, the concept of the drug court brought something quite new: the involvement of the magistrate or judge as the therapeutic manager of the case. In doing this it wedded the role of the judicial officer to the treatment process and signalled the arrival of ‘therapeutic jurisprudence’.

New South Wales

The NSW Drug Court, which commenced in February 1999 as a pilot project, was based on the US drug court model and was specifically supported by legislation—the Drug Court Act 1998 (NSW)—allowing a one-year program with three phases, with reducing attendances required in court. The NSW program was aimed at serious offenders with many participants entering the program from prison and exiting the program (if terminated) back into prison. Retention rates were low (only 10 graduates in the first 17 months) with more than 60% of participants terminated from the program within the first year of treatment.³

The NSW Bureau of Crime Statistics and Research conducted rigorous process⁴ and outcome⁵ evaluations based on a randomised control group design. Drug Court offenders took significantly longer to re-offend (drug and shop stealing offences) and had lower drug offending rates than the control group. Treatment costs were lower than imprisonment costs and positive benefits for participants included improvements in health and wellbeing.

The NSW Youth Drug Court pilot project commenced in July 2001 in western Sydney, operating under the framework of the existing Children’s Court. The program combines intensive judicial supervision and case management for young offenders who are charged with criminal offences that result from alcohol or drug use.⁶ An evaluation review of the Youth Drug Court,⁷ while unable to demonstrate superior outcomes from the program, was generally supportive of its continuation. About three-fifths of participants faced fresh charges while on the program, with nearly two-fifths returning to detention or imprisonment.

Queensland

In Queensland, a pilot Drug Court was introduced in January 2000. The Queensland statute governing the operation of the Drug Court, the Drug Rehabilitation (Court Diversion) Act 2000 (Qld), authorised the Drug Court to operate at three Magistrates Courts in the Brisbane area: Beenleigh, Ipswich, and Southport. The Queensland legislation provides for a sentencing disposition (the Intensive Drug Rehabilitation Order (IDRO)) as a form of suspended sentence aimed at offenders who are likely to be otherwise imprisoned.⁸ The evaluation of the South East Queensland Drug Court reported no significant differences in recidivism rates (as measured by convictions) between the treatment and comparison groups as a whole, although program graduates had lower recidivism rates and longer times to re-offend.⁹

South Australia

The South Australian Drug Court began as a two-year pilot program based in the Adelaide Magistrate’s Court in May 2000. It was aimed at adults with significant drug problems who had committed offences that would probably attract a term of imprisonment.¹⁰ The Court builds on the remand provisions available in South Australia, which allow a deferral of sentence for a period of up to 12 months. The evaluation of the South Australia Drug Court has not yet been released but early indications suggested a low graduation rate (15% of all referrals).¹¹

Western Australia

In December 2000 the Western Australian Department of Justice established the Perth Drug Court as a pilot project within the Court of Petty Sessions. The WA Drug Court was designed to provide a comprehensive diversion service with three programs aimed at different types of drug abusing offenders: a ‘Brief Intervention Regime’ for those facing minor cannabis charges; a ‘Supervised Treatment Intervention Regime’ (STIR) for minor offenders with substance abuse problems and the ‘Drug Court Regime’ (DCR) for serious drug dependent offenders requiring intensive supervision. Juveniles with substance abuse problems can access DCR via a special sitting of the Children’s Court.

The Court was established without specific legislation, limiting the length of the program to a maximum of six months from the time of first appearance, under the deferred provision of section 16(2) of the Sentencing Act 1995 (WA). Almost three years later the enactment of the Sentencing Legislation (Amendment and Repeal) Act 2003 has provided for pre-sentence orders of up to two years’ duration upon a finding of guilt with the condition that offending behaviour is addressed.¹²

The evaluation of the Perth Drug Court pilot program found no significant differences between the recidivism rates of offenders placed on the Drug Court program and comparison groups.¹³ While the recidivism rates of offenders who had completed DCR and STIR were lower than those who were not accepted or terminated on these programs, the graduates already had a lower risk of re-arrest before they entered the Drug Court program. The costs of the Drug Court and traditional sentencing were estimated to be roughly equivalent, with ‘new’ costs associated with the Drug Court largely offset by reductions in prison and detention costs for offenders. There was widespread enthusiasm for the Drug Court among treatment staff, parents of drug abusers, stakeholders and service providers. Thus, failure to find a distinct crime reduction effect did not prove to be a fatal blow.

Victoria

The Victorian Drug Court was established as a three-year trial at the Dandenong Magistrate’s Court in May 2002. This Court was established with its own enabling legislation, the Sentencing (Amendment) Act 2002 (Vic), which created a new division of the Magistrate’s Court and a new sentencing order—the Drug Treatment Order (DTO). The DTO establishes the terms for treatment and supervision and also for a suspended term of imprisonment.¹⁴ The treatment and supervision parts of DTO remain active for a period of two years. Unlike other Australian drug courts, the Victorian Court targets both drug and alcohol dependent offenders sentenced in the Magistrate’s Court. This Drug Court was evaluated by Turning Point Drug and Alcohol Centre but the evaluation has not yet been publicly released.

Australian drug courts vary in the location of courts (upper or lower); the offenders (juvenile and adult, minor and serious offenders); and the substances targeted (illicit drugs and alcohol). Despite this diversity, Australian drug courts have shared a range of implementation problems: difficulty in developing the required databases to allow for proper management and evaluation; difficulties associated with the provision for random urine testing (including information sharing of results and determining appropriate sanctions for ‘dirty’ urines); and the intense level of engagement required with offenders reducing the number of offenders that can be catered for by the program.¹⁵

In addition to these shared implementation problems, individual courts have faced a range of unique implementation problems. In Western Australia, the lack of appropriate legislation reduced the effective program length. This was combined with large waiting lists; a shortage of rehabilitation services; an absence of secure detoxification facilities with access to psychiatric services; and an absence of culturally appropriate detoxification facilities for Aboriginal people. In South Australia, a moratorium was placed on receiving new referrals for a six-month period and referrals dropped following the moratorium.¹⁶ In NSW, there were potential conflicts of interest for legal aid lawyers; an absence of social workers on the team; no training for the team in drug and alcohol issues; conflicts between treatment and legal issues; lower than expected referral rates; and the problem of drug court clients getting access to treatment services before non-offenders.¹⁷ The juvenile Drug Court in NSW was hampered by delays in establishing a dedicated stabilisation facility, high staff turnover and poor interagency cooperation.¹⁸

Current and future status of drug courts

Evaluations of this ‘first generation’ of drug courts in Australia have identified a number of key issues concerning the targeting and treatment of offenders that need to be addressed to further the continuation and development of drug courts in Australia.¹⁹ Clearly more time is required before a clearer picture of the effectiveness (or otherwise) of Australian drug courts can be established. However, there is a growing body of review literature in the US that has examined whether drug courts ‘work’.²⁰ Generally, these reviews attempt to summarise a large number of individual evaluation studies and find varying levels of support for reduced recidivism rates, cost-benefit savings and increased treatment retention rates (at least for program completers). However, these summaries frequently mask substantial differences between evaluation studies and suffer from major methodological flaws such as not including control or comparison groups and insufficient follow-up times.²¹ A more recent systematic review of drug court program research based on 27 out of 117 evaluations selected for their ‘methodological soundness’ and the use of control or matched comparison groups provides promising indications of reduced recidivism by offenders both for the duration of drug court programs and following completion of the program.²²

While most drug courts in Australia aim to target offenders facing imprisonment, all drug courts except NSW are located at a magistrate’s court—a level of court that more often than not produces non-custodial sentences. The location of the court is likely to influence the type of offenders referred. A key challenge associated with the referral of offenders to drug courts is to minimise the number of ineligible referrals.²³ The screening of referrals to determine program placement is crucial. There is a need to develop empirically derived screening instruments for drug courts²⁴ to avoid the typically very large non-completion rates and increase graduation rates.²⁵ Further research is required to determine which groups of offenders under which circumstances are best served by the drug court approach. A further issue in the targeting of offender is whether drug courts should be restricted to offenders with illicit drug dependence or be expanded to include alcohol and/or other substance abuse problems.

It is imperative that the legal rights of offenders are protected and that drug court participants are not disadvantaged through their involvement with the drug court. Principles of best practice need to be observed to ensure that rights of offenders such as procedural fairness, right to appeal and protection for self-incrimination are not compromised.²⁶

Further research is required to determine the causal component(s) of drug courts that reduce recidivism. The identification of causal components will enable the re-configuration of drug court operations to achieve the same effect in terms of crime reduction using fewer resources and at less cost.

To conclude, the development of drug courts over the past five years in most states of the Commonwealth has clearly established an Australian ‘out-post’ of the large and expanding American drug court movement. As in the US, firm evidence of the crime reducing effects of the drug court has been hard to find but the courts have met a distinct need and have proven popular with all the key stakeholders. Many distinct challenges still remain for drug courts to achieve their aim of providing a cost effective, disciplined and meaningful alternative to imprisonment. However, it should be remembered that hard evidence in the field of offender rehabilitation is often difficult to find and when it is found the effects of the most well regarded programs are rather modest. With this in mind it would be wrong to judge the drug courts too quickly or too harshly. For many involved in the nightmare of drug abuse and offending they have indeed provided a much needed circuit breaker and firm encouragement to break away from a bleak cycle of prisons, drugs and crime associated with a devastating habit. Drug courts have also inspired enthusiasm for many involved in working with these offenders, including the magistrates. If carefully used and maintained, drug courts can help ensure that the courts become more relevant in our attempts to reduce drug related crime.

* Dr David Indermaur is a Senior Research Fellow at the Crime Research Centre, University of Western Australia.

Lynne Roberts is a Research Fellow at the Crime Research Centre, University of Western Australia.

Endnotes

1. American University, OJP Drug Court Clearinghouse and Technical Assistance Project: Drug Court Activity Update (2005).

2. T Makkai, ‘The Emergence of Drug Treatment Courts in Australia’ in L Harrison et al (eds), Drug Courts: Current Issues and Future Perspectives (vol 3, 2002).

3. K Freeman, ‘Evaluating Australia’s first drug court: research challenges’ (Paper presented at Evaluation in Crime & Justice: Trends and Methods Conference convened by the Australian Institute of Criminology in conjunction with the Australian Bureau of Statistics, Canberra, 24-25 March 2003).

4. K Freeman, ‘New South Wales Drug Court Evaluation: Interim Report on Health and Well-being of Participants’ (2001) Crime and Justice Bulletin 53, NSW Bureau of Crime Statistics and Research; K Freeman, The New South Wales Drug Court Evaluation: Health, Well-Being and Participant Satisfaction (2002) NSW Bureau of Crime Statistics and Research; S Taplin, The New South Wales Drug Court Evaluation: A Process Evaluation (2002) New South Wales Bureau of Crime Statistics and Research.

5. B Lind et al, New South Wales Drug Court Evaluation: Cost-effectiveness (2002).

6. K Graham, ‘Piloting a Youth Drug Court’ [2000] AltLawJl 67; (2000) 25 (4) Alternative Law Journal 185.

7. T Eardley et al, Evaluation of the New South Wales Youth Drug Court Pilot Program: Final Report (2004).

8. A Freiberg, ‘Australian Drug Courts: A Progress Report’ (Paper presented at the 2nd Australasian Conference on Drug Strategy, Perth, 2002).

9. T Makkai & K Veraar, Final report on the South East Queensland Drug Court (2003).

10. A Harrison & H McRostie, Evaluation of the Drug Court Pilot Program Interim Report (2002).

11. Ibid.

12. A Freiberg & N Morgan, ‘Between bail and sentence: the conflation of dispositional options’ (2004) 15 (3) Current Issues in Criminal Justice 220.

13. Crime Research Centre, Evaluation of the Perth Drug Court Pilot Program (2003).

14. D McGlone, ‘Drug courts: a departure from adversarial justice’ [2003] AltLawJl 38; (2003) 28 (3) Alternative Law Journal 136.

15. T Makkai, ‘The Emergence of Drug Treatment Courts in Australia’, in L D Harrison et al, (eds) Drug Courts: Current Issues and Future Perspectives (vol 3, 2002).

16. A Harrison & H McRostie, Evaluation of the Drug Court Pilot Program Interim Report (2002).

17. R Lawrence & K Freeman, ‘Design and Implementation of Australia’s First Drug Court’ (2002) 35 (1) The Australian and New Zealand Journal of Criminology 63.

18. T Eardley et al, Evaluation of the New South Wales Youth Drug Court Pilot Program: Final Report (2004).

19. D Indermaur & L Roberts, ‘Drug courts in Australia: the first generation’ (2003) 15 (2) Current Issues in Criminal Justice 136.

20. S Belenko, ‘Research on Drug Courts: A Critical Review’ (1998) 1 (1) National Drug Court Institute Review 1; S Belenko, Research on Drug Courts: A Critical Review 2001 Update (2001). C Huddleston, K Freeman-Wilson & D Boone, Painting the current picture: A national report card on drug courts and other problem solving court programs in the United States (2004); J Goldkamp, M White & J Robinson, ‘Do Drug Courts Work? Getting Inside the Drug Court Black Box’ (2001) 31 (1) Journal of Drug Issues 27; R Peters & M Murrin, ‘Effectiveness of Treatment-based Drug Courts in Reducing Criminal Recidivism’ (2000) 27 (1) Criminal Justice and Behavior 72.

21. B Lind et al, New South Wales Drug Court Evaluation: Cost-effectiveness (2002).

22. United States Government Accountability Office, Adult drug courts: Evidence indicates recidivism reductions and mixed results for other outcomes (2005).

23. T Makkai & J Payne, ‘Drug courts: current issues and future prospects’ (Paper presented at ‘Drug court: the Queensland experience’ satellite conference, 17th Annual Australian Winter School on Alcohol and Other Drugs, Brisbane, 2004).

24. J Miller & J Shutt, ‘Considering the Need for Empirically Grounded Drug Court Screening Mechanisms’

(2001) 31 (1) Journal of Drug Issues 91.

25. T Makkai & J Payne, ‘Drug courts: current issues and future prospects’ (Paper presented at ‘Drug court: the Queensland experience’ satellite conference, 17th Annual Australian Winter School on Alcohol and Other Drugs, Brisbane, 2004.

26. D Indermaur & L Roberts, ‘Drug courts in Australia: the first generation’ (2003) 15 (2) Current Issues in Criminal Justice 136.