ABSTRACT
The creation and development of drug courts can be understood as a largely practical response to rising levels of incarceration and prison overcrowding, but they are also the result of a growing international consensus that punitive criminal justice sanctions, as a first response to addressing problems associated with drug addiction, are inappropriate and ineffective. Sending drug-addicted offenders to prison often does little to address their drug dependency and is also likely to increase their exposure to and interaction with criminal networks. Evidence suggests that much drug dependency is associated with acquisitive crime and so a failure to address the underlying causes of such criminality will likely be ineffective in reducing levels of recidivism. The economic cost of acquisitive crime linked to drug abuse is high, impacting significantly upon local and national economies, as well as policing and other criminal justice resources. Policy documents often highlight that drug abuse is associated with violence in communities, unemployment and chaotic lifestyles. Therefore drug-related crime, and drugaddicted offenders, raise questions about the administration of the criminal justice system that are of fundamental significance. The issues that they raise reflect and remake the public and political concerns about criminal justice that were outlined at the start of this book. Drug courts are intended to offer an alternative (at least in the first instance) to incarceration. While these courts originated in the US, specialised drug courts are now in operation in a number of countries across the world including Canada, Australia, New Zealand, Ireland, Scotland, the Caribbean, South Africa and Europe. Although there are a range of different drug court models, with varying types of implementation across, and within, jurisdictions, there are common fundamental objectives that are characteristic of all drug courts. A central concern of drug courts is to keep drug dependent offenders out of prison by mandating treatment instead of imprisonment, as well as reducing criminal justice system overload and prison overcrowding (Cooper et al. 2010). Effective drug treatment as a pathway to reduced recidivism is also a shared objective of drug courts. The notion that drug dependence is intrinsically linked to crime is thus a central theme. Although researchers within the field of addiction have sought to highlight the complex nature of the link between drugs, treatment and crime (see for example Sparrow and McIvor 2013; Stevens et al. 2005), there is
nonetheless a significant body of empirical work suggesting the potential for appropriate treatment to lead to reductions in both drug use and crime (Lösel et al. 2011; Holloway et al. 2008). While drug courts are treatment oriented, their mode of operation tends to be judicial in nature. Drug courts are not responsible for determining an offender’s guilt as they must usually already have pleaded guilty in order to meet the eligibility criteria for the drug court. Thus, drug courts are not concerned with determining guilt or innocence, but with the sentencing aspect of proceedings. As outlined in previous chapters, the judge is the central figure in the drug court model but functions as part of a ‘team’ of other criminal justice professionals including lawyers, treatment service providers, social workers and probation. The courts operate using systems of rewards and sanctions to promote compliance. Mandatory urine testing is a feature of drug courts, as well as review hearings to establish the offender’s levels of compliance with their treatment. Offenders who are referred to a drug court do not receive a custodial sentence (or the sentence is suspended) but are instead entered into a court-ordered drug treatment programme. Provided that they comply with the conditions of their sentence, the offender is able to avoid imprisonment. If the offender fails to abide by the terms of their treatment, they will be returned to court where they will face re-sentencing and possible imprisonment (provided that the original offence committed was eligible for a custodial sentence). In the majority of jurisdictions, drug courts deal with offenders who are engaged in committing minor crimes which are a consequence of their drug dependency (Belenko 1998). In England, for example, drug courts are used for drug-misusing offenders who commit low-level acquisitive crime (such as shoplifting) to fund their addiction. Similarly, US drug courts tend to exclude any offenders who have committed violent crimes and/or who have serious mental health issues, and focus on offenders who have committed non-violent crimes such as property crime and who have relatively few prior convictions for serious offences (Kalich and Evans 2006). However, there is some variation in terms of the types of offenders that drug courts in other jurisdictions will target. Most notably, courts vary in terms of whether they will only accept low-level nonrepeat offenders, or whether offenders are permitted to enter into a drug court programme if they have committed violent crimes. In both Canada and Australia, drug courts will accept repeat offenders who have committed relatively serious crimes, although they do not accept offenders who have been accused of violence against the person. Drug courts operate pre or post judicially, and so procedures for referring offenders to drug court vary across jurisdictions. Offenders are either diverted to the drug court before being sentenced, in which case they only return to court for sentencing if they fail to successfully complete the drug court programme; or they enter drug court after sentencing (where guilt has been admitted) and their sentence is suspended pending successful completion of the programme. To what extent abstinence is a requirement of drug courts, also varies again according to jurisdiction. While the majority of drug courts emphasise abstinence-based
treatment, especially in the US, there are also examples of other courts which use methadone maintenance programmes and where a reduction in the drug court participant’s substance misuse will be accepted by the court (McIvor 2006). James Nolan (2009: 58) has identified the distinctive British approach to ‘harm reduction’ in the drug court setting, whereby reduced use as opposed to complete abstinence can be accepted by a court, and which tends to be at odds with the US approach where total abstinence is a common goal and requirement of drug courts and where 20 per cent of American drug courts specifically prohibit any type of pharmacological intervention. However, recently there appears to be increasing distance between the emphasis upon ‘treatment’ and ‘punishment’ in US drug court praxis (Murphy 2012; Hunter et al. 2012; Belenko et al. 2011).
