CHAPTER 5: DIVERSION AND COMPULSORY TREATMENT

Introduction

This chapter covers the two related fields of diversion and treatment - including compulsory treatment - for drug offenders, particularly where cannabis is involved. Such diversion may simply involve diversion from the criminal justice system for individuals involved in minor cannabis offences; it may also involve diversion to treatment for those who either want, or are judged by others, to need treatment for drug use sufficiently serious to bring them into contact with the criminal justice system.

Diversion is a form of intervention in the lives of offenders primarily based on humanitarian grounds (i.e. to keep them out of prison), but also, more pragmatically, to relieve the burden on the courts and the prisons imposed by the very large numbers of people charged with very minor offences. While diversion from a court appearance is a mild form of intervention receiving broad community support, diversion to treatment, particularly when mandated by the court, raises philosophical issues relating to the degree of intervention the state should be empowered to exercise over people's lives. Compulsory treatment when it takes the form of civil commitment is the most extreme form of intervention, and, where ordered for drug offenders, is morally distasteful to many and the subject of much controversy. Nevertheless, there are legislative provisions for civil commitment of drug offenders in many countries, including Australia.

We begin the chapter with a discussion of the concept of diversion, then review existing diversion programs in Australia and overseas, with particular reference to programs involving treatment. The subject of compulsory treatment, including civil commitment for drug offenders, is dealt with next, with an overview of international legislation and treatment programs, along with such evaluations as exist. The implications of this for offenders whose primary drug is cannabis are discussed and some conclusions are drawn regarding treatment for repeat offenders.

Finally, we present a summary of the major findings for cannabis users resulting from our review of the key Australian and international literature dealing with diversion and treatment for drug offenders. The concept of diversion In the US, according to Tomasic ([1]1977, cited in Dept of Attorney-General 1982, p6), official use of the term 'diversion' occurred for the first time in the US President's Commission on Law Enforcement and Administration of Justice. The following are two definitions of diversion from the US literature: ... the disposition of a criminal complaint without conviction, the non-criminal disposition being conditioned on either the performance of specified obligations by the defendant, or his participation in counselling or treatment, ([2]Nimmer 1974, cited in Dept of Attorney-General 1982, p6). ... those formally acknowledged and organised efforts to utilize alternatives to the initial or continued criminal justice processing of alleged offenders, which are undertaken prior to adjudication but after a prosecutable action has occurred, ([3]Rovner-Pieczenik, cited in Dept of Attorney-General 1982, p6). Due to fears, in the case of non-trial disposition, of unfairness, lack of procedural protection and lack of follow-up treatment to prevent recurrence of the offence, the Commission recommended formalising the procedure and adding extra-legal services such as treatment and preventative education as an integral part of the non-trial disposition. The total package came to be known as 'diversion' ([4]Dept of Attorney-General 1982, p8).

The early justifications for diversion included:

• relief of overburdened courts;
• avoiding the further criminalisation of first offenders;
• avoiding the disadvantaging of first offenders on re-entry to society by their being labelled as criminals;
• providing a preferable way of dealing with certain offenders such as juveniles or drug users, who could be better dealt with in the community than in prisons; and
• providing cost-benefits to the community and a more humane way of dealing with certain categories of offenders ([5]Dept of Attorney-General 1982, p9).

The term 'diversion' when used in relation to the Australian criminal justice system may incorporate a 'range of related but relatively exclusive procedures some of which are seen as potential alternatives to "due process" others as additions to it' ([6]Williams 1981, p3). Those falling into the 'alternatives' classification include:

• pre-arrest diversion: this amounts to discretionary measures taken by police at the point of apprehension of an offender; and
• pre-trial diversion (or 'pre-court', in Australia): in this case certain conditions have to be satisfied by the offender, following which the alleged offences are struck off the record.

Those falling into the 'additions' classification include: + pre-sentence diversion: this is essentially remand for assessment and/or treatment; and + post-conviction diversion: in this case offenders are directed to some form of treatment-related supervision as a part of their sentence (presumably in lieu of imprisonment). Prisoners may also be diverted from jail to treatment as a condition of their parole. These additions to due process, therefore, function as increased sentencing options ([7]Williams 1981, p3).

The subject of diversion has been a neglected area in Australia, although there have been 'official' diversionary programs operating at least since 1977 (in NSW). The term diversion is applied to a wide variety of programs, and in Australia can occur pre-court or pre- or post-sentence. Pre-court diversion can vary from a police warning or an expiation notice for a minor drug offence, to referral for drug-treatment as an alternative to a punitive sentence.

Unlike some countries, in Australia cannabis use and possession offences are not regarded as very serious in comparison with offences involving 'harder' drugs, and the subject of treatment for cannabis use has similarly not been considered much of an issue. In fact the legislation in some States does not cover diversion for treatment on the grounds of cannabis use alone. If cannabis users are diverted for treatment it is usually because they are polydrug users, as many of the more serious users are.

The main diversion programs operating in Australia will be briefly described, and an overview presented of diversion in the US and other countries, with reference to their relevance for cannabis users. Key features of treatment programs for drug users are discussed, along with the issue of compulsory treatment and, what is known in the United States as, civil commitment.