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CHAPTER 5: DIVERSION AND COMPULSORY TREATMENT

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Introduction

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:

  • relief of overburdened courts;
  • avoiding the further criminalisation of first offenders;
  • avoiding the disadvantaging of first offenders on
    re-entry to society by their being labelled as criminals;
  • providing a preferable way of dealing with certain
    offenders such as juveniles or drug users, who could be
    better dealt with in the community than in prisons; and
  • providing cost-benefits to the community and a more
    humane way of dealing with certain categories of
    offenders ([5]Dept of Attorney-General 1982, p9).

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:

  • pre-arrest diversion: this amounts to discretionary
    measures taken by police at the point of apprehension of
    an offender; and
  • pre-trial diversion (or ‚pre-court‘, in Australia): in
    this case certain conditions have to be satisfied by the
    offender, following which the alleged offences are struck
    off the record.

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.

Diversion programs in Australia (10)

AUSTRALIAN CAPITAL TERRITORY

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:

  • Most drug-related offences are caused by alcohol, often
    used in conjunction with cannabis, which is particularly
    dangerous if the offender is driving. The DODA Program
    does not cover alcohol.
  • There is concern about the danger posed by offenders
    combining alcohol and cannabis prior to driving (many
    alcohol-dependent people coming before the DODA treatment
    panel are also cannabis-dependent).
  • Clients should not be referred for treatment in the case
    of cannabis use unless assessed as ’seriously dependent
    on cannabis‘, in order to screen out those seeking simply
    to avoid conviction.
  • A distinct preference was expressed for post-court
    diversion, as opposed to pre-court diversion, so that the
    court has the opportunity to assess offenders.
  • Offenders may be diverted more than once. The goal is
    ‚harm reduction‘, and total rehabilitation is not
    expected after the first treatment.

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.

SOUTH AUSTRALIA

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:

  1. Out of the 1,400 clients seen between May 1985 and
    September 1991, most were male and in their 20s, directed
    to the panel for illegal possession of, mostly,
    amphetamines followed by heroin.
  2. The panel did not provide the early intervention hoped
    for. Although most clients were being offered the
    opportunity for assessment for treatment for the first
    time, many already had criminal histories. Intervention
    at an earlier stage is desirable for a more successful
    outcome.
  3. The amount of polydrug use ’should be seen as a matter of
    significance and concern. This includes the dangerous –
    though legal – drugs, alcohol and tobacco, which will
    often prove more of a problem and potentially more
    destructive to clients than the illicit drug problem that
    brought them to the attention of the panel in the first
    place‘ ([12]Gray, Reynolds & Rumbold 1992, p133).
  4. While cannabis and cannabis resin offences were excluded
    from the panel’s jurisdiction, ‚there were indications of
    extensive and potentially harmful levels of cannabis use
    among many clients‘ ([13]Gray, Reynolds & Rumbold
    1992, p132).
  5. The characteristics of most of the clients were such that
    the treatment required was based on coping and lifestyle
    skills ‚rather than strategies influenced by models of
    physiological addiction‘ ([14]Gray, Reynolds &
    Rumbold 1992, p132).
  6. The panel is only as effective as the treatment and other
    social supports which are available.
  7. The statutory barrier allowing only people over 18 to be
    seen by the panel means that many have had drug habits
    for years. Although structured to deal with these cases,
    the Childrens Aid Panel is not sufficiently a specialist
    drug assessment and aid body, nor are drugs its primary
    concern.

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.

NEW SOUTH WALES

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:

  • Magistrates generally agreed that a DACAP report might be
    considered appropriate in cases involving a relatively
    serious and/or repeated offence, where a custodial
    sentence was a realistic possibility (some used it even
    where a custodial sentence was unlikely), and where it
    appeared that drug/alcohol dependency might be a
    significant factor (1992, p113).
  • It was very desirable to use the pre-sentence ‚crisis‘
    period to get the dependency problem acknowledged and, if
    possible, to start treatment, as if left until after
    sentence, the chances of success were much less (1992,
    p105); sometimes it takes a long time for a drug user to
    recognise dependency (e.g. in the case of cannabis) and
    an intervention such as that of DACAP can be very
    beneficial in confronting this.
  • Some magistrates observed that they did not see many
    people who had been through the DACAP process coming
    before the court for repeat offences. Important issues
    were availability of places in treatment and skilled
    counsellors with broad views of dependency. Regarding the
    issue of coercion, several evaluations of DACAP have
    ‚tentatively concluded‘ that the legal coercion into
    treatment as evidenced in the DACAP program was effective
    in acting as an early intervention into drug use,
    generating a younger client less involved with drugs, who
    is more amenable to an abstinent outcome (Desland &
    Batey 1988; [22]Schlosser 1984; [23]Bush & Scagliotti
    1983; [24]Williams 1981; all cited in Desland & Batey
    1988, p51). This is consistent with other studies of
    court-ordered assessment/treatment for substance use
    ([25]Salmon & Salmon 1983, cited in Desland &
    Batey 1987, p51).

VICTORIA

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).

WESTERN AUSTRALIA

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.

Diversion programs in other countries

UNITED STATES

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:

  • Dissatisfaction among law enforcement officials because
    of reduced opportunities for information from defendants
    regarding drug supplies (an example of the clash of
    philosophies between health authorities and law
    enforcement, which can be a factor contributing to
    failure in many diversion programs; this also indicates
    the emphasis on the supply reduction approach in the US,
    which is greater than that in Australia).
  • Most of those diverted did not totally abstain from
    marijuana use although they reported reduced use (again
    this was not acceptable from the US total prohibition
    point of view, but a reduction in use can be seen as a
    successful program outcome in many treatment programs in
    Australia).
  • There were fewer arrests and convictions (though
    marginally) among those diverted.
  • There was some reduction in workload in the case of the
    prosecutor and the court but greatly increased workloads
    for the probation service.
  • Purely from the treatment outcome point of view for the
    individual, the results were encouraging (though lack of
    adequate data precluded assessment of recidivism over the
    long term). Individuals‘ characteristics prior to program
    entry are an important determinant to successful program
    outcome (Rovner-Pieczenik cited in [32]Dept of
    Attorney-General 1982, p14).

Criticisms of the program also include:

  • The argument that the workloads of courts and prisons are
    not really reduced because people are being brought into
    the criminal justice process who would not have been
    processed at all, since they would have been handled in
    the community.
  • Diversion programs are sometimes utilised by prosecutors
    and courts when less official procedures might accomplish
    the same objective with less intervention and use of
    court time.
  • The court is saved time only if the accused would have
    gone to trial and then to jail.

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:

  • That diversion might also come to carry with it a social
    stigma if it is an ‚institutionalised element of the
    criminal justice system‘.
  • Unsuccessful participants may be disadvantaged when
    returned to the court system.
  • Legal analysts are concerned about the exercise of
    judicial discretion by non-judicial bodies.
  • Diversion could be seen as an expansion of social
    control, and the concept of ’need for treatment‘ has no
    inherent limitation ([34]Dept of Attorney-General 1982,
    pp16-17).

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

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:

  1. The offender should be a first offender.
  2. There should be special circumstances which make the
    offender suitable for diversion.
  3. The offence must be non-serious.
  4. The offender must admit guilt, show remorse, and be
    prepared to pay full reparation to the victim.
  5. The victim must agree to diversion.
  6. The officer in charge of the case [generally the
    arresting officer] must agree to diversion.
  7. The offender must agree to diversion ([37]Young &
    Cameron 1991, pp9-10).

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.

OTHER COUNTRIES

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.

  1. Cannabis is rarely named specifically in legislation
    relating to diversion for drug users who commit offences.
    Usually the legislation refers to ’narcotics‘, ‚opiates‘,
    ‚alcohol‘ or ‚other drugs‘. Although cannabis is usually
    not specifically singled out (as distinct from alcohol,
    for example, which is mostly treated in a special class
    of its own with specialised treatment), it falls within
    the general class of substances for which many countries
    legislate compulsory reporting and/or registration
    followed by referral into a treatment program. 2.
  2. There are many precedents among overseas countries for
    diversion and voluntary or non-voluntary commitment to
    treatment. There are also examples of such diversion
    occurring at every stage of the criminal justice process.
    3.
  3. There is a clear lack of evaluation of programs, which
    means results cannot be quantified, but the general
    impression is one of diversion to treatment being more
    acceptable all round than imprisonment without
    rehabilitation, which would otherwise be the situation in
    countries with a total prohibition policy. 4.
  4. Civil commitment appears to be common internationally,
    but in Australia legislative provisions for civil
    commitment exist only in certain States, e.g. NSW and
    Victoria. (This is discussed further under the heading
    Compulsory Treatment for Drug Offenders: Criminal Justice
    System-Initiated Treatment and Civil Commitment.) 5.
  5. There are a wide variety of legislative approaches to
    treatment and many different routes.

Among the problems raised are: 1.

  1. The different objectives (sometimes conflicting) of
    health professionals and legal practitioners, when
    diversion for treatment is involved. 2.
  2. The clear need for evaluation programs and for planning
    for these when the program is established. The importance
    is stressed of evaluating treatment programs in terms of
    the objectives stated in the legislation. It is important
    to establish realistic and concrete objectives for
    treatment in addition to the overriding goal of reducing
    morbidity and mortality. 3.
  3. With regard to compulsory treatment, it is acknowledged
    that it is in conflict with individual liberty and
    freedom of decision, and it is emphasised that the
    legislation should lay down the conditions governing
    participation in voluntary treatment programs, e.g.
    should the ‚voluntary‘ status be ended if the client is
    not cooperating? 4.
  4. On occasions there may be legislation that is not used or
    does not work because of lack of suitable treatment
    facilities and resources.

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.

Compulsory treatment for drug users

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:

  • there needs to be the appearance of risk to the larger
    society through the subgroup’s (i.e. drug users‘)
    inappropriate behaviours;
  • there needs to be the capacity to marshal public support
    for such action;
  • there must be a capacity to identify and isolate the
    subgroup demonstrating the offending behaviour;
  • the subgroup must be without sufficient political support
    to withstand the competing political pressure;
  • there must be the machinery to process, detain and
    confine those whose behaviour is inappropriate or
    threatening; and
  • there should be a belief in the ability of the community
    to put in place initiatives that will humanely change
    individuals‘ behaviour for their own and for the larger
    society’s well-being ([51]Brown 1988, p676).

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.

CIVIL COMMITMENT IN THE US

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).

TASC PROGRAMS IN THE US

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.

Summary of findings

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:

  • While the vast majority of cannabis users do not report
    any problems, there are increasing reports of individuals
    both in Australia and in other countries (e.g. the United
    States and New Zealand) who are seeking treatment for
    cannabis dependence.
  • It is generally accepted that a prison sentence is
    unsatisfactory for offenders with drug problems, and
    diversion with the purpose of treatment is a widely used
    alternative, welcomed by judges and magistrates. Usually
    the illegal drug involved is heroin but occasionally
    cannabis is the offender’s primary drug.
  • Criminal justice involvement is seen as providing an
    opportunity to intervene in drug users‘ lives in order to
    confront the users with their drug problems and to bring
    them into contact with treatment agencies, often for the
    first time.
  • The earlier the intervention in the users‘ lives the
    better, and the longer (or more frequent) the periods of
    treatment, the more successful the treatment outcome.
  • In some cases merely attending for assessment is
    sufficient to bring about a change in attitude since the
    users are often confronted with their drug problem for
    the first time.
  • While some dispute the value of coercion in getting drug
    users into treatment, it is often the only way, and there
    is more evidence to indicate successful treatment results
    for involuntary than for voluntary clients. This is
    primarily due to the length of time spent in treatment.
    Frequently the attitude of an unwilling client will
    change quite quickly once treatment has begun.
  • The success of diversion to treatment programs depends on
    the skill and experience of the drug counsellor, the
    availability of sufficient places in suitable treatment
    facilities, and close cooperation between health and
    criminal justice agencies.
  • It would be more cost effective to provide additional
    funds for the training of counsellors and the provision
    of suitable facilities than to continue to send repeat
    drug offenders to prison.
  • Conclusions regarding treatment for cannabis offenders,
    particularly repeat offenders, are as follows:
  • There are reports from most diversion programs/treatment
    agencies of individuals being referred for other drug use
    who also have serious problems in reducing or ceasing
    their cannabis use. Some of these may also be
    alcohol-dependent. There appears then to be some demand
    for cannabis treatment in this country.
  • Interpreting treatment in its broadest and most ideal
    sense (i.e. as a program personally selected by the
    client in consultation with a counsellor, tailored to the
    needs and characteristics of the particular individual),
    for a repeat offender facing a prison sentence, treatment
    is a preferable alternative. Treatment appears to have
    the potential to help offenders restructure their lives
    in such a way as to avoid breaches of the law which bring
    them continually into contact with the criminal justice
    system. In the sense that treatment may be ‚compulsory‘
    (i.e. court mandated), while the client must be assessed
    as suitable for treatment (genuinely motivated to
    participate, although there may be some initial
    resistance), the advantage of the compulsory nature of
    the treatment is that it provides the ‚crisis‘ generally
    acknowledged as necessary to get most drug users into
    treatment and to keep them there long enough for a
    successful outcome. In the case of cannabis use, the
    earlier the intervention the better, since there is
    likely to be less criminal involvement and therefore more
    likelihood of a successful outcome for the client. Young
    users, particularly juveniles, should receive more
    attention than they appear to be getting at present in
    Australia from, for instance, juvenile ‚panels‘ (such as
    those in South Australia) for whom this is not a major
    focus.
  • A final consideration regarding the treatment option for
    cannabis users is the availability of treatment programs
    and facilities and counsellors of sufficient quality and
    in sufficient numbers to accommodate those referred from
    the court system, since this is vital for successful
    treatment outcomes.

Conclusion

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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