CHAPTER 5: DIVERSION AND COMPULSORY TREATMENT

CIVIL COMMITMENT IN THE US

Compulsory treatment of drug users has been a controversial issue worldwide for decades. In response to two forces, one aimed at more effective treatment of problem drug users and the other at social control of the problem user, civil commitment legislation was enacted in the US in the 1960s and 1970s ([58]Rosenthal 1988).

Following this, three major treatment programs were established: the California Civil Addict Program, the New York Civil Commitment Program and programs under the federal Narcotic Addict Rehabilitation Act (NARA) ([59]Anglin & Hser 1990, p425), enabling large-scale commitment of drug-dependent people. However, relatively few persons were committed under the Massachusetts law, one of the earliest in the country, and despite civil commitment laws in many other jurisdictions they remained only statutes on the books (Rosenthal 1988).

Since involuntary civil commitment involves a substantial deprivation of liberty, various aspects of the California and New York programs were challenged quite early - the federal program for involuntary civil commitment of drug users not charged with a crime was not challenged in this way, presumably because the federal program permitted only relatives to initiate commitment, and few relatives did. Despite challenges to the constitutionality of involuntary treatment, the Californian and New York courts held in its favour. They were, however, influenced by the Supreme Court case of Robinson v. California which did not really involve the constitutionality of involuntary commitment at all but rather the question of whether it was constitutional for a State to make 'addiction' a crime: 'Nevertheless, the Supreme Court declared (in a dictum) that a State might establish a program of compulsory treatment for opiate addicts either to discourage violation of its criminal laws against narcotic trafficking or to safeguard the general health or welfare of its inhabitants' ([60]Rosenthal 1988, p641).

It has been suggested that because this case did not involve the constitutionality of involuntary treatment of opiate users, the Supreme Court did not go into that question as deeply as it might have and, in turn, the California and New York courts relied too much on the Supreme Court dictum without delving deeply enough into the question. The Supreme Court decision therefore meant almost inevitably that in future cases the substantive validity of involuntary civil commitment would be upheld (Rosenthal 1988, p643).

Under the legislation discussed here anyone found in a medical examination to be dependent on drugs (usually heroin) could be committed. Mostly those committed had been arrested for property crimes or drug trafficking and were diverted from the usual criminal processing. Usually there were two phases of treatment, initially one of imprisonment, plus a period of parole or monitored community release. During both phases the goal was reduced drug use and criminal behaviour; vocational training was sometimes added.

The California Civil Addict Program was more successful than the New York State program, primarily due to better management. The main results of evaluations were that program participants reduced 'narcotic use and associated property crime' to one-third compared with those not in the program ([61]Lindblad 1988). Overall, studies of the California CAP concluded that civil commitment and other drug treatment programs, particularly methadone maintenance, were effective in reducing narcotics dependence and minimising the associated adverse social effects, the important issue being that the dependence should be brought into an environment where intervention can occur over time.

In this respect, civil commitment and other legally coercive measures were found to be useful where the dependent person would not enter treatment voluntarily ([62]Anglin 1988a). A vital issue is the implementation strategy employed, which can 'ensure or sabotage success' (Anglin 1988a, p539). Although NARA was a comparatively short-lived program superseded by other legislation, it provided a national network of treatment providers and was regarded as an effective way of bringing narcotic dependent people into treatment. NARA allowed treatment for offenders as a pre-trial civil commitment, rather than prosecution for drug-dependent people convicted of a specific crime and for voluntary applicants. Those admitted to the program did as well or better than those in other programs (Lindblad 1988).