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McGlone, Daniel --- "Drug courts- a departure from adversarial justice" [2003] AltLawJl 38; (2003) 28(3) Alternative Law Journal 136

Drug courts – A departure from adversarial justice

Daniel McGlone[*]

Court enforced therapy versus early intervention.

The recent establishment of a trial Drug Court in Dandenong is an important development in the Victorian Government's response to drug-related crime. It seeks to address a perceived failure of current custodial sanctions to adequately address drug use and related offending while retaining the structure and authority of a court. This article which is, in part, a response to Arie Freiberg's article on drug courts that appeared in the Alternative Law Journal in December 2002, examines the efficacy of this approach and considers in particular the appropriateness of using a court as a forum for the rehabilitation of drug users.

What are drug courts?

Contemporary drug courts derive their inspiration from their beginnings in Dale County, Florida where the court's attention shifted from punitive to therapeutic justice.[1] Broadly speaking, drug courts are designed to administer cases referred for judicially supervised drug treatment within a jurisdiction or court-enforced drug treatment program. While they may vary, key components of a drug court are:

• judicial supervision of structured community-based treatments;

• timely identification of defendants in need of treatment and referral to treatment as soon as possible after arrest;

• regular status hearings before a judicial officer to monitor treatment progress and program compliance;

• increasing defendant accountability through a series of graduate sanctions and rewards;

• abstinence monitored by frequent drug testing.

The Victorian experience

The Dandenong Drug Court is the first drug court in Victoria. CREDIT does not constitute a court in itself but a drug treatment program that works as a condition of bail. It commenced in the Melbourne Magistrates' Court as a nine-month pilot program between November 1998 and August 1999. It was developed by a collaborative process involving the Melbourne Magistrates' Court, the Department of Justice, the Department of Human Services and the Victoria Police to provide early drug intervention for people on bail.

Under the current program, defendants who are alleged to have committed drug-related, non-violent indictable offences are assessed. If found suitable, they are released on bail for a period of up to four months or more with the condition that they participate in the CREDIT program. To be eligible an alleged offender must have a drug problem and not already be on a community-based disposition. Both first time offenders and those with significant criminal histories may participate.

A significant feature of CREDIT is that it is a voluntary system. Those placed on CREDIT must have already been placed on bail and then consent to the program proposed. A person's willingness to participate in CREDIT is not to be taken into account by a court in determining whether or not that person is suitable for bail. It is only after a magistrate has determined whether or not a person is suitable for bail that he or she may direct defendants to be assessed by the CREDIT clinicians.

When a charge is eventually heard, a defendant's participation in CREDIT does not affect the issue of their guilt or innocence. CREDIT only affects the nature of the final sentence of the court, in that the defendant receives 'credit' for their participation in the program and the severity of any sentence made on a plea of guilty is ameliorated.

The CREDIT program is chiefly concerned with enabling magistrates to supervise a defendant's drug problem and is one of the therapeutic options available to a court. Treatment is expressly recognised in intensive correction orders, combined custody treatment orders, community-based orders and may be attached to the various adjournment bonds. Like CREDIT, these dispositions require the defendant's consent. Treatment-based measures can also be ordered for offenders appearing to be mentally ill and requiring treatment under hospital orders and hospital security orders. These allow a person found guilty to be transferred to the mental health system as an involuntary patient and do not require the defendant's consent. Such orders may result in the permanent diversion of the offender from the criminal justice to the mental health system or a. temporary one for treatment under security conditions. The distinguishing feature of CREDIT, however, is it does not require a finding of guilty before the offender can enter into treatment. All other therapeutic options such as those available under the Sentencing Act 1991 (Vic), whether requiring consent or not, can only be imposed after a finding of guilt.

The new Dandenong Drug Court

The new Dandenong Drug Court has been established on a trial basis for three years. It is concerned with a new sentencing option, a Drug Treatment Order (DTO). An offender who comes before the Court can only be sentenced to a DTO if he or she pleads guilty. The DTO consists of two parts, namely, a custodial part and a treatment and supervision part. The custodial sentence is suspended to allow for the treatment of the offender. The treatment and supervision of the offender will involve conditions being imposed that are intended to address the offender's drug and or alcohol dependency. A DTO is a last resort before the imposition of a custodial disposition.

As Arie Freiberg concedes, the sentencing structure of a DTO is complex.[2] It comprises of a number of core conditions. These are:

• not to commit, whether in or outside Victoria, another offence punishable on conviction by imprisonment during the time that the order is in force;

• to attend the Drug Court when required by the Drug Court to do so;

• to report to a specified Community Corrections Centre or other specified place within two clear working days after the order is made;

• to report to and accept visits from a member of the Drug Court team or a specified Community Corrections Officer;

• to undergo treatment for drug or alcohol dependency as specified in the order, by the Drug Court or by a specified Community Corrections Officer;

• to give notice of any change of address at least two clear working days before the change to a member of the Drug Court team;

• not to leave Victoria without the permission of the Drug

Court or a specified Community Corrections Officer; and

• to obey all lawful instructions from the Drug Court and the specified Community Corrections Officer.

In addition to the core conditions, the program must include one or more of the following conditions, namely, that the offender must:

• submit to drug or alcohol testing as specified in the order;

• submit to detoxification or other treatment as specified in the order;

• attend vocational, educational, employment or other programs as specified in the order;

• submit to medical, psychiatric or psychological treatment as specified in the order;

• not associate with specified persons;

• reside at a specified place for a specified period; and/or

• do or not do anything else that the Drug Court considers necessary or appropriate concerning:

- the offender's drug or alcohol dependency; or

- the personal factors that the Drug Court considers con- tributed to the offender's criminal behaviour.

The number and complexity of these conditions make a DTO one of the more involved of the sentencing options available. This in itself raises the question of whether offenders whose capacity to deal with even simple tasks is significantly impaired by their drug habit, are able to comply with the order. Those offenders who fail to comply with all program conditions face the prospect of going to gaol for non-compliance.

However, an offender must undergo a number of pre-hearing procedures before being sentenced to a DTO. The initial screening is a preliminary screening that takes around 45 minutes. The screening:

• identifies whether the offender falls within the demographic criteria of the Drug Court;

• assesses whether they are eligible based on prior and current offences;

• confirms whether their drug or alcohol abuse is a significant causal factor in those offences; and,

• seeks to identify any immediate intervention needs.

Following the initial screening, the matter is adjourned for 21 days to allow for the completion of a detailed assessment, conducted by the Drug Court clinician and the Drug Court case manager. The purpose of this assessment is to examine the drug and alcohol and medical and psychiatric needs of the offender, as well as environmental issues that impact on the offender's ability to address their drug usage.

The next step in the process is a case conference attended by the magistrate, the Drug Court registrar, the police prosecutor, the legal aid officer, the Drug Court clinician and the Drug Court case manager. Other parties may attend the case conference. However, the offender is not permitted to attend. They are only entitled to attend the Review Hearing where a final decision is made after the offender is given an opportunity to be heard.

Review Hearings can be held weekly, fortnightly or monthly. They involve the Drug Court 'team' consisting of the police prosecutor, a representative from legal aid, the Drug Court case manager and the Drug Court clinician. The presiding magistrate speaks directly to the offender and then determines whether the DTO be varied or a reward or sanction be imposed. There is a hierarchy of various rewards and sanctions ranging from verbal warnings or variation in supervision to community work or cancellation of the order.

The offender, the informant, the police prosecutor or a prescribed person can initiate a Breach Hearing. Once this is done the prosecutor and the offender's legal representative are expected to resume their traditional roles. The DTO is cancelled and the offender is re-sentenced.

The benefits associated with drug courts

The three areas of benefit generally associated with drug courts are recidivism, cost savings and wider societal benefits.

Until recently Australia has not collected much statistical data about the effects of drug courts. Most studies have been conducted in the United States with varying results. Generally, the studies reveal that rates of offending continue to be significantly reduced for those who have had some participation in drug courts even if they have not successfully completed or 'graduated' from a given treatment program. These rates range between 2% and 20% depending on the characteristics of the population targeted,[3] and are consistent with recent statistics collected in relation to the NSW Drug Court. Of the offenders dealt with by the NSW Drug Court, 19.5% had successfully completed the program and those who received treatment had a lower re-offending rate than those who had not received treatment.[4]

It is generally accepted that drug courts are cheaper than gaol. A NSW Government report entitled 'The Illicit Drug Problem: Drug Courts and Other Alternative Approaches', argues that a number of jurisdictions in which drug courts operate have also reported a reduction in, or more efficient use of gaol space and probationary services. This in turn has freed up resources, which can then be directed towards other offenders who present a greater public safety risk. The report goes further to claim that savings were reported in prosecution and law enforcement functions, particularly in regard to court appearance costs. Generally, it maintained that '[a]ll sectors of the justice system have ... noted "cost avoidance" results from the reduced recidivism of drug court participants and graduates'.[5]

More general societal benefits that have been identified with Drug Courts include a reduction in drug use and long term sobriety, a consequent increase in employment, further education or both, the reunification of families and drug free babies.

A changing court culture

The emergence of drug courts has been attributed to the failure of the traditional court system to cope with or respond effectively to the problem of drug-related crime. It is my contention, however, that drug courts can be seen as evidence of broader changes in the administration of criminal justice. There has been an increased interest in the rehabilitation of offenders, a search for alternative forms of justice, an acceptance by judges and magistrates of their managerial role and the development of a 'problem solving' orientation by police, courts and other agencies.[6]This raises a number of issues.

Freiberg has noted that in the United States, drug courts were very much a product of judicial activism. He points out that the early generations of drug courts tended to be staffed by committed judges with a passionate concern and interest in the establishment and success of the courts.[7] It is not surprising then that judges and magistrates occupy a pivotal role in the operation of any given drug court.[8] It is the personality of a particular judge or magistrate and the depth of their involvement that are significant issues in any given case before the court. It is they who continually supervise and directly engage with the defendant, rather than legal counsel. As Jeffrey Tauber has described it ' ... the judge assumes the role of confessor, task master, cheerleader, and mentor, in turn exhorting, threatening, encouraging and congratulating the participant of his or he progress, or lack thereof'.[9]

The direct involvement of the bench in drug court procedure has in turn, altered the role of prosecution and defence. Counsel on either end of the bar table are required to work together so that the judge or magistrate presiding is fully briefed as to the situation of a given defendant and may work towards their wellbeing. Defence counsel steps back, rarely getting between the judge and the offender. The prosecution adopts a conciliatory position. The court becomes less adversarial. [10]

Drug courts, therefore, constitute a radical departure from the traditional court system. They represent a paradigm shift towards what might be described as a therapeutic jurisprudence, which recognises that the law itself can facilitate the rehabilitative treatment of defendants who are drug users. This does not necessarily change the outward form of the courts but it does alter the way they operate.

This change has its difficulties. The contact between defendant and judge or magistrate is frequent and intense and may establish a close bond between the two. This level of interaction with the defendant can place a considerable burden on judges and magistrates and can lead to a form of 'burn out'. More generally, it can lead to forum shopping by defendants. The choice of the 'right judge' in order to get the 'right result' is, of course, not unknown in conventional courts but can become acute in drug courts. As Freiberg concedes, justice in drug courts is built on charisma, on the individuals sitting on the bench and their particular view of each individual who comes before them rather than the bureaucratic application of the law.[11]

Studies show that representation by defence counsel in conventional courts has a significant impact on the outcome of criminal prosecutions both in terms of lower conviction rates and less severe penalties.[12] It is also the aim of defence counsel to convince the court to exercise its discretion to grant the least punitive order. Drug courts, however, encourage defence counsel to relinquish their traditional role in order to be supportive of treatment programs that may be more onerous to their clients but 'beneficial' in the long term. Given defence counsel's traditional role this is an extraordinary development.[13] In effect defence counsel are being encouraged to relinquish representing the client according to the client's stated wishes in order to operate according to the court's perception of what is in the best interest of the client.


The effect of drug courts on the sentencing process poses further difficulties. In drug courts, sentences cease being measures imposed on a defendant such as fines or imprisonment but turn on the issue of 'consent'. As Richard Fox points out, no one is asked to consent to prison but the denial of consent can prevent a non-custodial option being used.[14] The question is: How genuine is this consent? Fox suggests that the freedom of a defendant to participate in the sort of programs drug courts offer, as well as their motivation to do so, may be less real than apparent. When faced by an interventionist judge or magistrate leaning over the bench with the offer of a drug treatment program, a defendant may feel compelled to accept. One only has to consider the disparity in the power relationship here; a disparity that can only be exacerbated in situations where the defendant is in custody and the offer involves a promise of release. [15]

In relation to the sentence itself, the availability of the option to voluntarily participate in a program that is viewed as humane, therapeutic and rehabilitative may appear to be more a privilege than a punishment. According to Fox, this has the potential to compromise the restraints designed to curb unjustified punishment. [16] For example, drug rehabilitation treatment needs to be sustained over a lengthy period and intense to be effective. [17]Accordingly, it is not inconceivable that a judge or magistrate could be attracted to a more severe sentence for the 'good' of the defendant. That is, a court may order a defendant to undergo a treatment program disproportionate to the gravity of the offence.

This weakness is compounded by the fact that drug courts are serviced by experts in the field of health care and drug rehabilitation, such as counsellors and doctors. Fox observes that these professionals engender in the legal profession attitudes of trust and reliance that erode the procedures of accountability that come with more openly punitive measures.[18] One wonders at the position of the defendant in this process and questions whether the defendant's position is adequately represented when it runs contrary to professional assessments, particularly in circumstances where the defendant that 'fails' to take 'advantage' of this 'opportunity'.

Is court an appropriate forum to stage drug rehabilitation?

In its submission to the New South Wales State Government during the preliminary investigation into the viability of a drug court in that state, the Redfern Legal Centre raised a number of concerns. These were as follows:

• the potential for interference in the therapeutic alliance between treating practitioner and patient;

• the incentive for non-dependent drug users to plead dependence or to 'get a habit' in order to gain access to what some may believe to be a more enlightened review of their case by the Drug Court;

• the increased demand on an already existing shortage of services for people with drug and alcohol problems which may have the effect of encouraging people who are not criminals to commit crimes to seek therapeutic assistance;

• the judiciary requires extensive education in the area of drug use, dependency, treatment and harm reduction but a new court is not necessary to enable them to separate out illicit drug dependence issues from the other areas of their social and community responsibility;

• the proposal runs the risk of increasing the amount of coercion and compulsion in the health system rather than increasing the number of health considerations in the criminal justice system.[19]

What these concerns suggest is that drug courts may not be the best venue for drug treatment.

However, there is an argument that courts afford a unique opportunity to intervene in a drug user's life and assist them to wrestle with addiction. Courts are one of the few places where agencies, such as police and those involved in drug treatment, have significant contact. The higher courts, however, have been strong in their opposition to this view. Indeed there is considerable authority for the position that it is not the proper function of the courts to supplement what has been traditionally the role of social services. Of particular note is the judgment of the Court of Appeal in the case of Clarke(1975) 61 Cr AppR320. That case concerned a violent woman who could not be controlled in an open hospital. When placed before the courts for a number of minor criminal offences, she received a lengthy gaol term. The justification for this decision seems to be that the lower courts were of the opinion that it was their duty to protect both the public and the woman from herself by passing this sentence. This Court of Appeal rejected this approach. Lawton LJ in his judgment stated at 323:

The first thing to be said, and said very firmly indeed, is that Her Majesty's Courts are not a dustbin into which the social services can sweep difficult members of the public. Still less should Her Majesty's judges use their sentencing powers to dispose of those who are socially inconvenient. If the Courts became disposers of those who are socially inconvenient the road ahead would lead to the destruction ofliberty.It should be clearly understood · that Her Majesty's judges stand on the road barring the way.

According to the Court of Appeal the courts have a role independent to therapeutic concerns. The courts are there to dispense justice and to give the defendant an opportunity to be heard, a role which, according to Clarke, is compromised when muddied with concerns of acting in the 'best' interests of the defendant. The decision in Clarke has been followed in the Victorian Criminal Appeal Court Case of Roadley (1990) 51 A Crim R 336.

Drugs are a critical problem in society generally. Drug courts are one strategy designed to deal with this problem. As such they work toward a social good that is hard to dispute - reduction in drug abuse and as a necessary consequence a reduction in drug-related crime. In this context, an insistence on adherence to procedure would seem to miss the point and to jeopardise the ultimate goal of drug rehabilitation.

Yet drug courts do involve significant changes to the way courts run and those changes will impact on the majority of criminal law cases -those involving summary offences. Approximately 250,000 sentences for summary offences are imposed on some 92,000 defendants in the Magistrates' Court each year, compared with 6200 sentences imposed on 1500 people accused of indictable offences in the County and the Supreme Courts.[20] The established procedures are designed to ensure the representation of competing interests, the defendant and the prosecution. An impartial arbitrator has proven essential for the just resolution of disputes.


By combining a concern for drug rehabilitation with a concern for equal representation before an impartial arbitrator, drug courts have an in-built tension that is not easily resolved. This must raise the question of whether or not courts can operate as a social fulcrum that will shift the stubborn problem of drug abuse. Perhaps the better approach would be less reactive. Rather than wait until the drug-affected person comes into conflict with the state, the state could provide the opportunity for the drug-user to grapple with their problem. No longer therapeutic jurisprudence but just plain therapy. This would require government initiatives that do not presently exist, are not currently proposed and a discussion of which is certainly beyond the scope of this article. It is interesting to note, however, that no genuinely comparative study of the two approaches has been undertaken in Australia or elsewhere. When the culture of the courts is to be altered to the extent that it is in contemporary drug courts, these issues clearly need greater investigation.

[*] David McGlone is a Melbourne lawyer.

© 2003 Daniel McGlone (text)

© 2003 Kim Davies (cartoon)

[1] Freiberg, Arie, 'Australian Drug Courts' (2000) 24 Criminal Law Journal 213, p.219.

[2] Freiberg, Arie, 'Drug courts: Sentencing responses to drug use and drug-related crime' (2002) 7 Alternative Law Journal 284.

[3] Belenko, Steven, Research on Drug Courts: A Critical Review, The Center on Addiction and Substance Abuse at Columbia University, June 1998, p.l3; Swain, Marie, The Illicit Drug Problem: Drug Courts and Other Alternative Approaches, Briefing Paper No 4/99, NSW Parliamentary Library Research Service, p.35.

[4] Freiberg, above, ref 2, p.285.

[5] Swain, above, ref 3, p.35.

[6] Freiberg, above, ref 1, pp.220-21.

[7] Freiberg, above, ref 1, p.221.

[8] See Freiberg, above, ref 1, p.231, and Popovic, J. and McLachlan, S., Court Referral Evaluation and Drug Intervention and Treatment (CREDIT), paper presented at the Australian Drug Court Workshop, Department of Criminology, the University of Melbourne, February 2000.

[9] Tauber, Jeffery, American Drug Courts: A Common Sense Approach to the Drug-using Offender, paper given at the Australasian Conference on Drug Strategy in Adelaide on the 27th of April l999. Tauber is an American drug court judge and a member of the American National Association of Drug Court Professionals.

[10] Makkai, Toni, 'Drug Courts: Issues and Prospects', Trends and Issues in Crime and Criminal Justice, No. 95, Australian Institute of Criminology, Canberra, 1998, pp.3 and 7.

[11] See Freiberg, above, ref I, p.231. Freiberg also makes the point that this can bring a drug court into disfavour when replacement appointments eliminate an earlier trend towards leniency.

[12] Fox, Richard and Freiberg, Arie, Sentencing, State and Federal Law in Victoria,2nd edn, 1999,p.91; see also Vinson, T. and Homer, R., 'Legal Representation and Outcome' (1973) 47 ALJ 132.

[13] This is all the more so given, as Fox and Freiberg point out (at p.92) that the failure to allow counsel or indeed the defendant to be heard constitutes a reviewable denial of natural justice see Ex parte Kelly; Re Teece [1966] 2 NSWR 674.

[14] Fox, Richard, 'The Compulsion of Voluntary Treatment in Sentencing' (1996) 16 Crim LJ 37, at 38.

[15] Fox, Richard, above, ref 14, pp.44-7.

[16] Fox, Richard, above, ref 14, p.39.

[17] Makkai, above, ref I 0, p.4.

[18] Fox, above, ref 14, p.39.

[19] Swain, above, ref 3, p.42.

[20] Fox, Richard, Victorian Criminal Procedure, State and Federal Law, Monash Law Book Co-op Ltd, Melbourne 2000, p.79.

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