Side event: Drug courts in the Americas

Coletta Youngers, WOLA. Please check out our report on drug courts available on the SSRC website. There has been an expansion of drug courts beyond the USA but there are key issues related to the extension of the model in the Americas.

Rebecca Schleifer, UNDP consultant. There is an emerging international consensus that drug use should be treated as a public health issue, not crime. We see this in the UNAGSS outcome document, in CND resolutions focusing on health, and on member states’ commitments. But there is a growing concern about the increasing prison population around the world, and this is driven by harsh drug laws. Most have committed minor drug offences, generally simple possession.

There are more than 3000 drug courts in the USA. The USA has promoted drug courts in Latin America, the Caribbean and at CND. I would like to describe drug courts here. Drug courts seem to refer to a homogenous entity, but in reality there are a variety of models to divert people away from criminal courts towards supervised treatment. Judges in drug courts conduct a medical role, often with support from a health team. Some courts admin people convicted of a violent offence, bu most focus on minor offences. This excludes many people from drug courts. In the USA most drug courts require people to plead guilty and the sentence is expanded if the person doesn’t hold with their programme. In other cases, the person doesn’t have to plead guilty. In Latin America, it’s a conditional suspension of the process, where the person does not have a criminal record if they complete the programme. Failure to complete leads to reopening court proceedings, or imposing sanctions.

In terms of lessons learned, we found drug courts are not an alternative to incarceration in the USA. People risk incarceration as a sanction within the programme and for failure to complete the programme. As a result they spend more time behind bars than if they had not gone through drug courts. Many people choose to risk prison or plea to go to prison instead of going to the drug courts. There are also requirements which include pleading guilty. Police might also not have processed these crimes if drug courts hadn’t existed. Drug courts also have social and economic consequences. In the USA, people in drug courts cannot get welfare, sometimes cannot have the right to vote. Finally, drug courts are not rights based health interventions. People might have greater access to health systems through the criminal justice system than in the community!

Governments should provide financial and technical assistance in treatment, but not through criminal justice. There needs to be more resources into the systemic issues related to over incarceration, not into drug courts. Any effort for alternatives to incarceration should provide an alternative to criminal justice proceedings, and this includes decriminalisation and removal of fear of arrest.

Christine Mehta, Physicians for Human Rights. I will focus more on the USA here. But I also want to mention the change in rhetoric. We have seen more and more language orienting us towards a public health approach. This means something different to a lot of people in the USA. At state level, we see cities and states trying to implement health and harm reduction measures, including safe injection facilities in Seattle, NSPs in NYC. But this flies in the face of the federal rhetoric. There, the primary paradigm is a law enforcement approach.

What we wanted to do was look at the quality of healthcare and treatment through drug courts, looking at the right to health, to privacy, to informed consent, confidentiality, to the independence of healthcare providers. In 2016 I travelled throughout the USA and visited 15 drug courts and talked to many staff members of other drug courts.

Drug courts prohibit evidence based treatment. They are not homogenous throughout the USA depending on the state you’re in. New Hampshire are the hardest hit with the opioid crisis, and have expanded medical care for people who use drugs. Florida has not done so. There is a persistent stigma about treatment. In 2015 the federal government passed a law asking drug courts to provide evidence-based treatment, including OST. But there is no accountability mechanism to ensure this is done there.

Secondly, many times drug courts can’t access evidence-based treatment. There is a big lack of access to treatment in the USA, especially in rural areas. In New Hampshire there are only six OST centres. There is also a lack of medical insurance throughout the USA and lack of funding and case management for drug dependence treatment via drug courts. This is particularly problematic for homeless people.

Drug courts do not target the right people – it excludes those poorest, most vulnerable, offenders, who have a higher potential for ‘reoffending’. Drug courts are more concerned about whether you will reoffend than whether you will need treatment. If you use heroin, you also face more stigma, you are considered as with a higher need, so you get sent to a residential centre, which is not always warranted. There is a need to start reviewing assessment criteria to ensure we target the right people.

Finally, drug courts often only promote abstinence at all times. In many cases, problem drug use is a symptom of trauma, other mental illness, and not a problem in and of itself. So if you are only addressing problem drug use, you are not treating this person adequately. There is a key need to decriminalise people who use drugs. We must provide alternatives to the criminal justice system. Decriminalisation should be accompanied by funding to health and social services.

Cleia Noia, SSRC Drug Security and Democracy Program. Our report looks at what has been happening in terms of drug courts in the USA and what are the implications in Latin America. Drug courts have expanded rapidly in the region and there is no adequate evaluation of the practice. From 2012 we have 12 Latin American and 6 Caribbean countries having drug courts. But the expansion is not based on proper evaluation. This is a main concern for us. A country having a different legal, political, economic situation would just adopt a mechanism that may not be adapted. For those which have not established drug courts, we recommend that they look into it as it may not be the best way to tackle drug use and dependence. But we also have some recommendations for those who have established them already.

Some countries in Latin America have more established models such as Mexico. Others are pilot projects: Barbados, Trinidad and Tobago and Belize. Ecuador and Peru have expressed interest in those policies.

If we are talking about mandatory treatment for people who use drugs, many drug courts do not address the right people. If possession is a crime, many people who go through the drug courts will not need treatment – while those who need it will not necessarily be able to access treatment. Some countries contract private treatment centres too, which are solely abstinence based, focused on religion.

Please have a look at the report to learn more and please read our recommendations, in particular consider decriminalisation as the best approach to decouple criminal justice and drug use.

Ana Pecova, Equis Justicia para las Mujeres. In Mexico, there are drug courts in various states but the plan is that all states should have drug courts by the end of the year, and we have not been impressed with the practice. Equis has been conducting a gender analysis of drug courts, but there is not much to analyse. Mexican policy includes gender but it is not being implemented adequately. Throughout the research, we confirmed that gender has not been well incorporated in the drug courts system. We conducted interviews with participants, family members, staff of drug courts, and we identified the following. Women who use drugs and go through the programme, women accompanying somebody in the programme, women who are victims of somebody in the programme.

First women who use drugs in the programme. Out of 121 people, only 5 are women in drug courts. Some states have no women at all. Although drug use among women is lower than among men, but women are much more likely to be stigmatised and receive less support from families and communities. When they come in touch with the justice system, they are punished for their crime but also not fulfilling their roles as mothers and wives. The programme is not eligible to everyone and is directed mostly at heterosexual men or those who have a woman who can help them go through the programme. Women who use drugs are often estranged from their families, this includes migrants, trans women, sex workers. Family networks are key for drug court programmes eligibility in Mexico. Other issues faced by women includes loss of custody of their kids. The programme criminalises consumption, and in many cases it only focuses on women caught in possession of small amounts of marijuana.

Once a judge approves entrance in the programme, you have to go through constant medical programmes, keep your employment or take trainings, attend all your hearings, and you cannot drive. So you need somebody who will take care of you, your children and everything else. We documented that the main burden of this falls on women: mothers, wives, etc. They often have to take up an additional job to take care of their families. Nothing is done to support the families of those who enter the programme.

Victims of domestic violence of people who go through the programme: this is one of the main reasons why people go through the programme. In Mexico, there are many cases of gender based violence, and this creates a climate of impunity. It reflects a limited understanding of how gender based violence occurs, and the fact that drug use might be the main reason why violence happens – which is not true. And finally, women who are victims of violence should receive adequate support. Here, they don’t, they become responsible for the person undergoing their treatment.

To conclude, drug courts in Mexico are seen as a collaboration between health and criminal justice systems, but most often than not, most people do not need to come at all in contact with the criminal justice system. Mexico has to reform its drug policy. The main objective here is to buy time, and now we are stuck in a system that does not work.

Coletta. I want to make one comment: we have a lot of recommendations, especially for countries that do implement drug courts:

  • treatment should be in place before drug courts are established
  • drug courts could be useful for those who commit violent crimes
  • criminal records should not exclude people from entering the programme.

Association for Drug Courts Professionals. I appreciate the stuff being discussed and the last presentation and recommendations. Usually we talk about different things: what that leaves out is the people who are violent offenders and dependent users. So how do we move forward to avoid that they are going to prison. A lot of the drug court evaluations show that the model is good. We know what’s out there and what works. I appreciate the research you’re doing and your presentations, but you are only looking at a couple of drug courts and there is no evidence included on what’s out there.

Daniel Wolfe, OSF. I am curious about Becca and Cleia’s points on decriminalisation. The narcomenudeo reform seemed to try to address this. What has been the impact of that law? Also, has there been support from CICAD on drug courts? Finally, on the previous comments, pre-arrest diversion can be helpful here and a useful alternatives to drug courts.

Coletta. There is a lack of available information and evaluation in Latin America. I believe that Antonio here is preparing a report on this issue that the OAS is working on.

Cleia. The whole USA chapter is a literature review and this by itself is a standalone study. It is not the same case in Latin America, we don’t have the same level of research there. Countries that do have drug courts are lagging behind in terms of data collection. So there it is more of an overview of how drug courts are implemented on the ground. But how are these being expanded if there is no proper evaluation? Perhaps we should look more into the interactions with CICAD. But CICAD is playing an important role in promoting the model.

Becca. We did find evidence of how drug courts reduce time in prison and recidivism. But there is an issue with what kind of treatment is provided, and other human rights problems. Participants are required to sign wavers of confidentiality, etc., and these are issues even with the best drug courts. The issue here is that people should be kept out of the criminal justice system in the first place. We agree that for serious offenders drug courts could be a good idea. But some diversion programmes before entering the criminal justice system would be more helpful.

Christine. In a lot of ways I agree. A lot of the recommendations are about changing eligibility criteria to ensure we target those who are violent offenders. What we need to ensure is that we focus on reducing mass incarceration. This takes us further upstream to ensure the system makes us more in line with the human rights system.

Ana. The people going to the programme in Mexico are males, young, who use marijuana. This is contradictory since the law passed was about marijuana. There is a space there to litigate and raise those issues in court. Drug courts are only for minor offenders. For some people, it works, marginalised people entering a treatment that fits their needs. But he issue is the economic cost of this, the burden being borne by the people. This all falls on families and on women.

Tania. We took into account the cost-effective argument and this was very difficult to assess. If you compare cost of drug courts in comparison to incarceration, it might be cost-effective, but if you compare to no incarceration or treatment, then it is not cost-effective.

Antonio, CICAD, OAS. At CICAD we promote various alternatives to incarceration. One of the things we have is the whole issue of the name of drug courts. Outside of the USA it is a friend or not a friend. The way countries implement it is very different. We are trying to conduct an evaluation to find out how the process is implemented in all member states. Costa Rica has a restorative justice system, in Panama this is different, etc. What we are trying to follow is how the process is being implemented. There is a timing issue here as you need to look at the long term evaluation of the practice, and for Latin America the institutionalisation of the process is still very new. The process of putting these together is one of the most challenging issues. So before going into impact evaluations, we need to focus on implementation of the process.

Cleia. You should not have to go to jail to access the treatment you need. It is important to decouple this.

Coletta. Please continue the discussion in the hall.

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