Murrell, Gay --- "Breaking the Cycle: NSW Drug Court" [2000] ALRCRefJl 24; (2000) 77 Australian Law Reform Commission Reform Journal 20

---

Reform Issue 77 Spring 2000

This article appeared on pages 20 – 24 & 90 of the original journal.

Breaking the cycle: NSW Drug Court

The drug court concept originated in the United States as a judge-lead response to breaking the cycle of drug dependency, the associated commission of crime to finance dependency, consequent imprisonment, and the continuation of drug dependency within prison and upon release from prison.

The Drug Court of New South Wales is constituted by the Drug Court Act 1998 (NSW). The object of the Act is to reduce the level of criminal activity that results from drug dependency. The means of achieving that object is by establishing a scheme under which drug dependent offenders can be placed in programs designed to eliminate, or at least reduce, their dependency on prohibited drugs.

Local Courts and District Courts in greater western Sydney (population approximately 1.4 million) must refer willing and eligible offenders to the Drug Court, which sits at Parramatta, in Sydney’s west. An offender is eligible if he or she intends to plead guilty; is highly likely to receive a sentence of full-time imprisonment; is dependent on prohibited drugs; is not charged with an offence involving violent conduct or sexual assault; and fulfills other criteria. Typically, eligible offenders have a substantial criminal record, are referred for several offences of dishonesty (burglary, receiving stolen property and/or stealing) and have a long history of heroin dependency.

If a suitable Drug Court program can be devised, the Court passes an initial sentence of imprisonment, imposes a Drug Court program, and suspends execution of the sentence for the duration of the offender’s Drug Court program. Every Drug Court program involves treatment for drug dependency (counselling and, if appropriate, methadone or naltrexone treatment), employment assistance and other support through the Probation and Parole Service, regular supervised urinalysis and regular reporting back to the Court.

The progress of offenders is monitored by the judges of the Drug Court and the Drug Court team (prosecution and legal aid solicitors, a police inspector, a health coordinator and a probation and parole coordinator). Initially, participants report back to the Court once a week. Prior to each report back session, the presiding judge and the Drug Court team meet to discuss the progress of participants who are due to report back. Information is shared, opinions are offered and any appropriate sanction or reward is discussed. When participants report back, the Court may administer sanctions for program breaches (up to 14 days’ imprisonment) or confer rewards (applause is the most frequent reward). The Court is not bound by the rules of evidence and may inform itself in any manner it considers appropriate.

A Drug Court program lasts a minimum of 12 months. Unsuccessful participation results in termination of the Drug Court program and the imposition of a final sentence, usually a significant sentence of imprisonment. The final sentence cannot exceed the initial sentence. Successful participation results in graduation from the Drug Court program and the imposition of a final sentence, usually a good behaviour bond.

In this article, Judge Gay Murrell SC* provides an insight into the challenges and rewards on the bench of the Drug Court.

In New South Wales, the role of a Drug Court judge differs dramatically from that of a judge in a conventional court, reflecting the radically different object and structure of the Drug Court. Important issues concerning judicial conduct and legitimacy arise in the Drug Court because the judge’s role is not solely the impartial adjudication of disputes. Most of the time, the judge operates in an environment of consensus between the prosecution, defence lawyers and treatment providers. There is limited scope for dispute when everyone is working to achieve the rehabilitation of offenders. However, there are times when a significant dispute does arise, such as when there is a question of whether a participant’s Drug Court program should be terminated. At these times, the judge must revert to the conventional role of impartial adjudicator.

Diversion schemes

‘Diversion’ schemes, which seek to achieve the rehabilitation of drug dependent offenders by diverting them into treatment, are not new. The so-called ‘Griffith’s remand’ (adjourning a matter to enable treatment to occur) has now been formalised in section 11 of the Crimes (Sentencing Procedure) Act 1999 (NSW). A bail diversion scheme operates through the Local Court at Lismore in NSW. Good behaviour bonds often include a condition that the convicted offender undertake treatment. The relevant court continues to control the sentencing outcome for offenders diverted into treatment through such schemes.

The NSW Drug Court scheme differs from such diversion schemes in that the Court maintains ongoing case management of offenders undergoing rehabilitation and the Drug Court judges and Drug Court team play a direct role in the rehabilitation of offenders.

If one views drug dependency as a treatable disease, then the diversion of drug dependent offenders from the criminal justice system into treatment is the logical means of achieving their rehabilitation. The disease model of drug dependency is embraced by many health professionals. However, the Drug Court views drug dependency as a chronic relapsing condition, which encompasses physiological, psychological and moral components. The moral component is particularly significant because the Court deals with offenders whose drug dependency has led to criminal behaviour. Such behaviour has a social impact and cost extending well beyond the offender’s personal and domestic situation. The requirement that drug dependent offenders accept personal responsibility for their behaviour and its social consequences and maintain accountability to the criminal justice system is at the core of the case management of participants by the Drug Court.

Therapeutic outcomes

The Drug Court endeavours to practice ‘therapeutic jurisprudence’. Therapeutic jurisprudence acknowledges that, regardless of the outcome of litigation, the litigation process itself may be therapeutic or anti-therapeutic. A litigant often comes before a court at a point of crisis and potential change in his or her life. The Court may choose to capitalise on the opportunity for change, or may unwittingly reinforce negative attitudes and anti-social conduct.¹

The role of the judge is pivotal to the achievement of therapeutic outcomes through a drug court. Key component seven of drug courts² provides that ‘ongoing judicial interaction with each drug court participant is essential’. Of course, the drug court judge represents the criminal justice system, demanding accountability for offending behaviour. However, the drug court judge also has a novel second role. The judge attempts to engage each drug court participant in his or her program. The judge has an unprecedented level of judicial involvement with litigants.

At the NSW Drug Court, each participant attends Court on a regular basis (initially weekly) and discusses his or her progress directly with the judge, accepting rewards or sanctions from the judge. The most frequent program breach is a dirty urine drug test. In the NSW Drug Court, the usual sanction for such a breach is one to three days’ imprisonment, which may be suspended and ultimately waived if performance improves. It is well established that behaviour is best shaped by the imposition of penalties that are swift and sure but not necessarily severe. Punishment is not particularly effective unless used together with positive reinforcement.³ Participants who have had a successful week, adhering to the requirements of their Drug Court program, are usually rewarded by applause from the judge, the Drug Court team and other participants present in court for the report back session. The importance of such positive reinforcement cannot be overestimated.

Keeping an emotional distance

The level of judicial interaction with drug court participants has lead to the criticism that a drug court judge is merely a glorified probation officer or an unqualified counsellor. The extent of the direct interaction between participants and the judge, the broad unappellable discretions conferred on the judge and the absence of conventions governing much of the procedure of drug courts may be conducive to idiosyncratic conduct by the judge. Drug courts have been described as fertile ground for the unfolding of psychological drama.⁴ The phenomena of transference (transferring emotional attitudes from one person to another, for example, a participant transferring an emotional attitude held towards a parent on to the judge) and countertransference (for example, the judge unconsciously and inappropriately reacting to an offender’s emotional attitude as though the offender was the judge’s child) are much more likely to occur in a drug court setting than in other judicial contexts.

It is important that drug court judges guard against inappropriate psychological interaction with participants. The judge must also resist the temptation to make a personal emotional investment in the rehabilitation outcome for participants. Rehabilitation should never be seen as a personal success for the judge, just as relapse into dependency and offending behaviour should never be seen as a personal failure.

Judicial impartiality and consistency are assisted by the development of benchmark sanctions and rewards, and by the documentation of processes. The judge has the benefit of the drug court team, which provides guidance in relation to the best manner in which to deal with each participant, the imposition of consistent sanctions and rewards and adherence to the requirements of procedural fairness.

Making decisions in the Drug Court

Most judicial decisions are made by a judge in isolation. In the NSW Drug Court, judicial decisions in relation to participants’ progress and the imposition of sanctions and rewards are strongly influenced by the Drug Court team. The presiding judge functions as team leader. While the Drug Court team is usually of one mind concerning a participant’s progress, on some occasions the views of team members diverge. The judge may take a view which differs from the view of most team members. The judge may be persuaded by a participant’s explanation of an apparent program breach, when most members of the Drug Court team remain unpersuaded. Because of the close professional relationship between the judge and the team, on such occasions the judge may feel under considerable pressure to adopt another view, and must resist that pressure. In the vast majority of cases, the judge’s view coincides with the view of all team members, and the team’s input into decision making results in better and more creative decisions.

Occasionally, differences arise between the Drug Court team and health professionals providing treatment to Drug Court participants. The Court’s approach that rehabilitation from drug dependency and associated criminal conduct is as much an exercise of free will and personal responsibility as it is the application of treatment to a disease has the potential to generate disagreement between the Drug Court team and those providing treatment services. When the NSW Drug Court commenced, there were frequent and significant differences of opinion between health professionals providing treatment to participants and the Drug Court team. It is now appreciated that some disagreement is both inevitable and healthy. The Drug Court team and treatment providers are each endeavouring to ‘parent’ Drug Court offenders towards personal maturity and social responsibility. This process requires the exercise of both care and control. Generally, the treatment provider is cast in the role of caring ‘parent’, while most members of the Drug Court team and the participant’s probation officer take the role of controlling ‘parent’. The roles sometimes clash. The flash point for disagreement may be when a participant has performed poorly on a Drug Court program and the question of termination of his or her program and consequent imprisonment arises.

When a termination question arises or there is no consensus on another issue, the matter in dispute should be resolved by the judge sitting in open court, receiving information and adjudicating the dispute in a relatively conventional manner.

Report back sessions

One way in which the Court practices therapeutic jurisprudence is by shaping report back sessions to convey important messages to the audience of Drug Court participants. The judge wears a gown to convey authority, but no wig. The judge is not an anonymous authority figure, but someone well known to participants. Participants who are to face significant sanctions or receive significant rewards (for example, progress to the next phase of their Drug Court program) may be dealt with at the beginning of the list in order to illustrate an important lesson to the audience of other participants. Discussion between the judge and an individual participant may be broadened from the particular to the general in an effort to convey a message of general application to the audience. The judge repeatedly reinforces the need for honesty about drug use, the need to become engaged in counselling, and the desirability of undertaking study or employment. The judge acknowledges the difficulties faced by all recovering addicts. Effort is rewarded by encouragement and lack of effort is firmly challenged. The judge may call upon members of the Drug Court team (all of whom are seated at the bar table) to raise a matter of concern directly with a participant. Interested persons (such as counsellors, rehabilitation centre managers or probation officers) who are present in court may signal a desire to comment on a participant’s progress by standing up in court at the appropriate time.

When speaking directly to a non-compliant participant in court, the judge confronts the participant about the non-compliant behaviour. A confrontational approach is necessary because any other approach would tolerate dishonesty. Such judicial confrontation has little if any legitimate place in other courts. It is an approach that requires practice, guidance and the exercise of care.

While most participants have or rapidly acquire the ability to speak for themselves and, if necessary, defend themselves in report back sessions, some do not. These participants need to be identified and referred to a legal aid solicitor. If a participant is experiencing difficulty with the large general report back sessions, he or she may be allocated a report back time when other participants are not present.

Credibility of witnesses

Many trial judges find that the most difficult aspect of judging is deciding whether a witness should be believed when there is conflicting evidence. In many judicial contexts the truth lies somewhere between the conflicting evidence of witnesses. One or more witnesses may be exaggerating or mistaken rather than consciously lying.

My experience on the Drug Court reinforces the difficulty of determining the credibility of witnesses. Despite the wealth of information available to a drug court judge and the judge’s personal knowledge of each participant, it can be difficult to determine whether a participant is telling the truth. The fact in dispute is often whether the participant has used prohibited drugs. During each report back session there are many times when a drug court judge must make a quick decision about whether a participant has used prohibited drugs. There is relatively little scope for exaggeration or mistake on this subject. Most drug court participants are highly practiced in deception, having honed their skills on family and friends over many years. To determine whether a participant has breached his or her program by using prohibited drugs, the judge relies on urinalysis results, the participant’s appearance, the opinions of the participant’s treatment provider and probation officer, the opinion of the health coordinator on the Drug Court team, what the participant says in court and whether the participant gives direct and specific responses when confronted by the judge. This information is considered in light of the judge’s personal knowledge of the participant acquired through weeks or months of interaction.

I would like to think that the repetition of this decision making process would always could result in an experienced drug court judge making quick but accurate decisions about drug usage and other alleged program breaches. Regrettably, decisions are not always accurate. After a breach has been found and a sanction served, a participant may continue to protest innocence in a credible way. It is critical that participants maintain confidence in the judge and the drug court process. Consequently, when a finding of program breach is queried by a participant, it is important that the judge explain that the decision was made on the balance of probabilities, concede the possibility that it may be wrong but confirm that the decision will nevertheless stand. Most participants are quite capable of grasping and accepting these concepts.

Conclusion

Not surprisingly, there is a high ‘burnout’ among drug court judges. Not only must a drug court judge master the novel functions of team leader, consensus broker and program motivator. The judge must also maintain judicial impartiality and ensure that participants receive procedural fairness, despite a lack of protective conventions. However, the judge is rewarded by knowing that he or she is not part of a criminal justice merry-go-round. Drug court participants are given the best possible opportunity to break the cycle of doing drugs, doing crime and doing time. If a participant fails to grasp that opportunity, then he or she knows that imprisonment is probably the only alternative.

*Her Honor Judge Gay Murrell SC is the Senior Judge of the NSW Drug Court.

Endnotes

1. PF Hora & WG Schma, ‘Therapeutic Jurisprudence’ (1998) 82 (1) Judicature.

2. As adopted by the UN International Drug Control Program Expert Working Group on Improving Inter-sectoral Impact in Drug Abuse Offender Casework Report Vienna December 1999.

3. DB Marlowe and KC Kirby ‘Effective Use of Sanctions in Drug Courts: Lessons in Behavioral Research’ (1999) 2 (1) US National Drug Court Institute.

4. SL Satel, ‘Observational Study of Courtroom Dynamics in Selected Drug Courts’ (1998) 1 (1) US National Drug Court Institute Review.