THE PROBLEM WITH DRUG COURTS

All is not as rosy as athe advocates of drug courts would suggest. There is
little compelling evidence that drug courts will reduce violent crime
related to the drug trade.

In late November of last year Vancouver Mayor Philip Owen announced
Vancouver's controversial drug strategy and harm reduction plan. Modelled
on the approaches of many European cities, the plan aims to embrace a four
pillar approach, emphasizing prevention, treatment, enforcement and harm
reduction.

Much of what the city is suggesting is not especially novel or
controversial: increased enforcement of upper-level dealers, a redeployment
of police officers, a school curriculum on drugs and drug abuse, and the
expansion of medical treatment for those who have difficulties with illegal
drugs.

But there are also a number of recommendations that are more novel and
controversial: the expansion of methadone maintenance and needle exchange
programs, a research trial of prescriptions for hard-core heroin addicts,
and the possibility of safe injection sites for injectable drug users.

These latter recommendations are, reasonably enough, designed to reduce the
crime that flows from illegal drug use: if we expand methadone services and
consider a program of heroin prescription, users will not have to turn to
crime in order to obtain their drugs of choice.

The recommendations are also designed to prevent the possibility of HIV
infection and overdose death: by expanding needle exchange and establishing
safe injection sites, we can reduce both the spread of disease and the
possibility of overdose. These are the lessons of Frankfurt, Zurich, and
other European cities.

But I want to focus on the recommendation that all commentators seem most
inclined to embrace - the creation of drug courts, for it may also be the
most problematic. Justice minister Anne McLellan has announced that by 2004
there will be drug courts in every major Canadian city. Politicians of all
persuasions are enthusiastically supporting the initiative, tripping over
themselves to herald the plan as cost-effective and compassionate,
substituting the hope of treatment for the pain of imprisonment.

There is a good deal to be pleased about. Municipal, provincial and federal
governments have all realized that drug addiction itself is less helpfully
viewed as a crime and more usefully viewed as a public health problem.
Thirty years ago our answer to the problem of injectable drug use was to
grab "the hypes" by the throat and cart them off to jail. In suggesting
that those who have such substance abuse problems can be best assisted by
public health and social services, our society has accomplished a major
transition in our paradigm for responding to illegal drugs.

Further, there is little doubt that helping injectable drug abusers will be
much less expensive than jailing them, and that providing assistance with
housing and life skills can be critical to withdrawal from patterns of
self-destructive behaviour.

But all is not as rosy as the advocates of drug courts would suggest.
First, there is little compelling evidence that drug courts will reduce
violent crime related to the drug trade. Drug offenders who have committed
violent crime and drug offenders who are commercial traffickers have
typically been rejected for admission to these programs.

Those who are accepted into the programs are the most hopeful cases, and
even then, studies of recidivism rates reveal something less than
unqualified success. In a recent law review article Colorado judge Morris
Hoffman wrote of the U.S. experience, "Reductions in recidivism are so
small that if they exist at all they are statistically meaningless."

Further, a U.S. Department of Justice publication from May of last year
points to inevitable future perils, "As less tractable groups participate,
rates of compliance and graduation will decline and recidivism will rise."

Second, drug courts remove the traditional protections of the adversary
system. As Toronto drug court judge Ted Bentley puts it, "They lose their
Charter rights, they lose their right to speedy sentencing, speedy trial;
they basically give up all their legal rights as we know it." It is
important to realize that the health-care provider in the drug court scheme
is not a physician, but the court. The alcoholic and the tobacco addict can
be treated by physicians, but cocaine and heroin abusers are subject to a
court-patient relationship.We cannot ignore this double standard,
especially when we know that there are more overdose deaths related to
alcohol than to illegal drugs; we must similarly acknowledge that tobacco
continues to kill 10 times as many Canadians as all illegal drugs combined.

The sense of the legal-illegal drugs distinction has its roots in
economics, politics and culture, not in the mandate of public health. And
until we begin to place all mind-active drugs on the same page of analysis,
we will continue to misunderstand the drug problem.

Perhaps most fundamental, we must recognize that treatment is simply not a
magic wand that can be imposed by professionals on those who are abusing
drugs. In fact, the idea that treatment is responsible for positive changes
in reducing patterns of self-destructive behaviour has little sound
empirical support.

European surveys of users who have quit reveal that they stopped not
because of medical or professional intervention, but because they found
something in life that was better than using drugs on a regular basis. In
many instances this something was another person -- a recognition that
someone else, often a love interest, cared enough to make change worth
accomplishing. In some cases religious belief provided a way out, and in
others the ability to find meaningful employment -- a better way of living
-- was responsible for the change.

Simply put, placing users in treatment regimes with routine urine testing
and regularly scheduled court appearances is not the key to changing
behaviour. If users are to find a different route in life, most will
usually do so through more practical kinds of change: better housing,
lifeskills support and the caring of family and close friends.

And in some cases, nothing that anyone can do will be of assistance: taking
drugs will always seem to be a better way of life than not taking drugs.
For those with few social and intellectual skills, legacies of physical
abuse, and significant mental and emotional disabilities, drugs may be
virtually impossible to leave behind.

In sum, while much of the spirit that motivates drug courts is to be
applauded, we should not be so naive as to applaud the practice itself:
there is little good evidence that these institutions will dramatically
reduce rates of crime. More troubling, drug courts will no longer allow us
to view illegal drug use as either a crime or a public health problem. The
message from the bench will be a confused amalgam of two perspectives: the
illegal drug abuser is now to be seen as both a criminal and as a person
who is deserving of medical attention.

Neil Boyd

Neil Boyd is a professor in the school of criminology.