Govt to decide on future of drug courts

Justice Minister Andrew Little is due this month to receive a report that will help determine the future of the country’s two specialist Alcohol and Other Drug Treatment (AODT) courts.

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These courts, operating under a pilot scheme in Auckland and Waitakere since November 2012, are designed to divert selected high-risk/high-dependency offenders from prison sentences into judicially-supervised treatment programs. It is a pre-sentence initiative requiring strong commitment from offenders and a mix of therapeutic justice, regular and random drug testing, regular court appearances, and a system of sanctions and incentives.

Little says everything he has seen and read about the courts is good, and there has been huge interest from other regions – the Waikato, in particular – in setting up similar courts. He has seen Judge Lisa Tremewan (Waitakere) and Judge Ema Aitken (Auckland) in action and they’re both very impressive, he says.

The drawback, as always, is money. “These courts are more intensive in terms of judge time per offender but that’s what you would expect, given the nature of the problem,” Little says. “You’re getting people off the offending track and dealing with the addiction problem as well.”

The exact cost isn’t clear although an undated cabinet paper from the previous government, signed by then Health Minister Jonathan Coleman and then Justice Minister Amy Adams, estimates a net operating cost of $1.3 million per year, much of the funding coming from alcohol excise revenue. But the paper suggests the actual cost – because the pilot courts have “evolved in pursuit of international best practice” – is much higher. The cabinet paper, prepared by its social policy committee, recommends funding of $4m a year for the AODT courts until the pilot’s scheduled end in 2020.

But while noting the cost, Little acknowledges that locking people up is also expensive – an estimated $100,000 per year per prisoner. With New Zealand’s prison population hitting 10,000 for the first time in 2016, that’s an annual cost of at least $10m a year.

An independent evaluation report done about two years into the AODT pilot indicated reoffending was reduced by 15% when measured against matched offenders going through the standard court process. And according to Judge Tremewan, the seriousness of that reoffending is also reduced, even among participants who fail to graduate. To date, there have been 195 graduates from the scheme.

There are nearly 3000 specialist drug courts in the United States, and in Texas prisons are closing because these courts are so successful. “There is no question that the court works,” says Judge Tremewan.

She believes cost is the reason behind the delay in deciding whether to make AODT courts a permanent fixture.

“It’s resource-intensive. But having said that, these are people who would otherwise be in prison which is also resource-intensive and we know that the outcomes are better,” she says. “The reality is you have to spend the money to make the resources available to support people to walk a different road. There are thousands of these courts overseas. They know what the best practice looks like and we can draw the eyes out of it and apply it and do a better job in this space.

“We have also been able to improve the work very considerably in recent years since the court started as it became clearer what worked best here,” she says. “It has been heartening, too, to receive very favourable feedback from international experts who have seen the way we have been developing the courts here.”

Favourable feedback has also come from the police who, while initially sceptical about the AODT courts’ program, are now referring offenders to the court for consideration.

Not every offender is eligible. To be selected, he or she must plead guilty and be facing a likely prison term of up to three years. The offences must be fueled by alcohol or some other drug addiction. Participants must be high risk and in active addiction, and fully committed to the program for somewhere between 12 and 18 months when they may graduate.

The other way of leaving the program is by forced exit, a likely outcome if they fail to be open, honest and transparent about any relapses, repeatedly breach their bail conditions or reoffend. At that point they’ll be sentenced for the offence/s that brought them before the court in the first place.

Most will be addicted to alcohol or methamphetamine, or both, when they come into the program.

Interactions between participants and the judge and her support team – police prosecutor, case manager, defence counsel and a pou oranga (“healing pillar”) known in the court as “Matua Ra” – are vastly different from any other District Court. This is therapeutic justice with a key ingredient being the high level of dialogue between judge and offender. Maori cultural customs, or tikanga, are an integral part of the hearings.

“What changes did you make since last year’s relapse which helped you get to where you are today?” Judge Tremewan asks Wally*, who has been 177 days sober on the day LawNews was invited to observe the Waitakere AODT court (Te Whare Whakapiki Wairua) in action.

“What do you think it means for this to be a selfish program?” (Unless participants work on themselves first, they can’t help anyone else). “What does that look like in practical terms? What does self-care look like for you?” To Steve*, 133 days sober: “Do you have any uncertainty about the program?” And to Nikki*, who has achieved 99 days of sobriety: “Tell me about something you’ve progressed already and something you’re working on.”

Another offender, Sean*, gets a huge pat on the back. Speaking to him through the judge, and partly in te reo, Sean’s lawyer praises his “huge improvement”, telling him it’s not about how you fall down but how you get up again that counts. Judge Tremewan talks about resilience and courage. Good work is done when people are challenged, she says, “and that’s where the growth is”.

Bruce*, who has been sober for 132 days, has spent most of his adult life in and out of prison. “But you’ve seized this opportunity and the benefits are starting to show,” the judge tells him. “Where would you say your supports are right now? What are the benefits of recovery? What are some of the things you’re looking to work on?” She likes Bruce’s answers: “Nice, nice – this is great.”

But the outcome is not so positive for Helen* whose case has been discussed at length at the pre-court meeting that morning between the judge, prosecutor, case manager and lawyers. Helen has tested positively twice in random drug tests and claims it’s because a cream she has been rubbing on her breasts contains alcohol. Judge Tremewan isn’t having any of it: “It’s a very serious situation and we’ve been down this road before.”

The offence is not so much the relapse as the fact Helen is refusing to be honest and “own the use”. When court convenes in the afternoon, she is the first one called and is remanded in custody with a view to exiting her from the program. Helen later admits she had been drinking, pleads to remain in the program and says she is now willing to undergo residential treatment.

The program requires participants to speak up and be accountable in open court at their fortnightly appearances. “It’s one of the hallmarks of that court – one of the critical success factors,” says Judge Tremewan. “The judge will have a brief face-to-face conversation with the participant, acknowledge their progress and talk to them about areas where they need to do better. This is done in a constructive way.”

Important milestones in their recovery are also publicly acknowledged with badges and other awards. “Many participants have never achieved anything, have had no acknowledgement,” the judge says. “The only thing many of them have completed is a prison sentence.”

On her courtroom style, Judge Tremewan says it’s a matter of getting the balance right.

“On the one hand, it is a court. People have committed offences, there is accountability, there have to be proper processes in place. What we do has to be appropriate and fitting, bearing in mind that although you want to support people with their issues, and get better outcomes for them and the community, it must always be tempered with the accountability side of it,” she says. “But the fact is, it works. We’re in the fortunate position where, because we came to this so late, we have the benefit of extensively reviewing what has gone on before in this space.”

Has being an AODT judge for one day a week affected her standard District Court approach? “Yes,” she says, “to me it feels very logical and, in fact, at the first drug court I visited that was my overwhelming sense – that this was quite obviously the logical way to approach those issues.

“The conversations were honest so instead of there being an obfuscation of what the issues really were, there was a desire by all the players to work collaboratively to support each other for a better outcome. The focus was also on what was actually happening and everybody’s objective was to see if they could get better outcomes. It seemed to me to be common sense – a no-brainer.”

That said, she cautions against any move to cut costs by trying to import aspects of the AODT program into the mainstream court system for the cohort of offenders who fit the AODT court criteria.

“What the Americans have shown very clearly is that ‘drug court lite’ doesn’t work. For that tough cohort, you need all the aspects there. None is dispensable, so although these learnings definitely have application in terms of other work, the message I’m trying to highlight is for those who fit the criteria for an AODT court, you need to have all the components of that court to get the good outcomes.”

As can be expected, competition for places on the AODT program is fierce. High risk/high needs are the top criteria, along with admitting the offending. “High risk” means a history of non-compliance (such as cycling and recycling through the justice system); “high needs” means active addiction – ie, the offender can’t just choose to stop.

“There should also be a freshness about the case; ideally they come into court within 50 days of arrest or offending,” Judge Tremewan says. “It’s all about ‘teachable moments’ and striking while the iron’s hot.”

The program cannot take people with other complex other issues – for example, serious mental health problems. “If they’re issues you’d expect with someone in active addiction, that’s fine, but if they have other additional complex issues, we can’t be all things to all people. We’re not a mental health court,” she says. Normally, participants need to live in the court’s catchment area. “If we didn’t have that, we’d have cases transferring in from up and down the country and be overwhelmed.

Because there are many more applicants than places (only 100 between the two AODT courts), there are further weighting criteria – eg, those with dependents (children) might get extra consideration; public safety issues (unmitigated risk on the roads because they’re a chronic, repeat drink driver), would get extra consideration, as would victims/offenders in family violence situations. If an applicant is Maori, that would get consideration “because of our obviously adverse statistics and the need to respond in a more meaningful way than has been experienced to date”.

As things stand, the overwhelming majority of participants are Maori, male and between the ages of 25 and 44.

The Maori community has been vocal in its support of these courts and it is suggested the use of tikanga in the court has been instrumental in its success. The pou oranga plays a key part because, as the judge puts it, “he is a role model in long-term recovery who’s very well-versed in terms of his cultural background and with a lot of treatment knowledge. Having him there to assist the court is very powerful.”

But how would the judge respond to those who might claim the AODT courts is a cop-out, letting offenders off the hook?

“While you might have expected a bit of a backlash, we’ve never really had that,” she says. “We’ve tried to advocate that this is not an easy option. It’s very hard to be under the court’s scrutiny for such an extended period and so much Continued from page 2, “Govt to decide on future of drug courts” is expected of these people. To get to graduation, they really have to show they’ve turned everything around.

“Often our people who’re in the court tell us prison is no disincentive. As one person said to me once, ‘I can do that standing on my head’. Having said that, they can see it’s a depressing sort of existence where they have no sense of hope. Coming into the court gives them a sense of purpose and potential.”

International research has demonstrated there are fewer future victims as the result of these courts – another reason for supporting them, Judge Tremewan says.

To make the system work, the two AODT judges have considerably more information than a court would normally be given about offenders. “So, we can see what’s going on for them far more readily than you ordinarily would. Plus, we get information from the participants themselves. We teach them it’s not a dobbing-in mentality – it’s helping your peers deal with their issues.”

Another ground-breaking aspect of the court is the use of peer support workers who have experienced recovery and who walk the journey with the participants. It’s practical help but also inspiring for participants to see what is possible, the judge says.

“Some of our graduates have been training to become peer support workers themselves or clinicians working in the addiction field.” Treatment doesn’t have to be expensive, she points out. It’s all about being smarter and more effective.

The other magic ingredient is time.

“People are off the rails when they come in and it takes time to get the train back on the tracks,” Judge Tremewan says.

“It’s not a magic wand where suddenly they’re off and suddenly they’re on. It’s a process and it takes commitment and ongoing effort. They’re in active addiction when they come in. Their thinking has been hijacked by their substance-use disorder so you have to be realistic as to how you approach those issues.

“We teach people it’s about being open and honest and transparent, and if you’ve made a call that wasn’t a good call, it’s about owning your behaviour, being upfront, being accountable and making the next right decision and seeing it as an opportunity to learn from what’s happened and do better.

“Not being honest is worse than falling off the wagon. If someone said ‘I’ve had a use and this is what happened and I want to own that’ there would typically be a sanction but also a treatment response. But if someone is caught out and they haven’t owned their behaviour, depending on whether they’re new or have been there for some time, it can be that the sanction for the dishonesty is more than for the use, even resulting in an exit.

* names have been changed

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