CHAPTER 5: DIVERSION AND COMPULSORY TREATMENT

Diversion programs in other countries

UNITED STATES

The most prominent drug diversion programs in the US are the Treatment Alternatives to Street Crime (TASC) programs, established primarily to try to reduce the crime associated with drug use (mainly heroin). This national pre-trial diversion program was expanded to include all drug users (except those dependent on alcohol), including juveniles, recruited at all points of entry to the criminal justice system (e.g. through pre-sentence referral, conditional probation, police diversion and conditional parole). The program varies with the different legal systems and drug problems existing from State to State. For instance, marijuana users and juveniles were excluded in Colorado, whereas in Michigan marijuana users were preferred. Overall, however, most programs concentrated on heroin users ([31]Dept of Attorney-General 1982, pp10-11).

Such programs were not particularly amenable to satisfactory evaluation and usually were restricted to an examination of how well program objectives had been met. The results indicated:

• Dissatisfaction among law enforcement officials because of reduced opportunities for information from defendants regarding drug supplies (an example of the clash of philosophies between health authorities and law enforcement, which can be a factor contributing to failure in many diversion programs; this also indicates the emphasis on the supply reduction approach in the US, which is greater than that in Australia).
• Most of those diverted did not totally abstain from marijuana use although they reported reduced use (again this was not acceptable from the US total prohibition point of view, but a reduction in use can be seen as a successful program outcome in many treatment programs in Australia).
• There were fewer arrests and convictions (though marginally) among those diverted.
• There was some reduction in workload in the case of the prosecutor and the court but greatly increased workloads for the probation service.
• Purely from the treatment outcome point of view for the individual, the results were encouraging (though lack of adequate data precluded assessment of recidivism over the long term). Individuals' characteristics prior to program entry are an important determinant to successful program outcome (Rovner-Pieczenik cited in [32]Dept of Attorney-General 1982, p14).

Criticisms of the program also include:

• The argument that the workloads of courts and prisons are not really reduced because people are being brought into the criminal justice process who would not have been processed at all, since they would have been handled in the community.
• Diversion programs are sometimes utilised by prosecutors and courts when less official procedures might accomplish the same objective with less intervention and use of court time.
• The court is saved time only if the accused would have gone to trial and then to jail.

However diversion appears to be more an 'alternative to dismissal of charges or probation than to incarceration' (Gorelick 1975 cited in [33]Dept of Attorney General 1982, p16). This view was also shared by the Canadian Law Reform Commission (Dept of Attorney-General 1982). Further criticisms were:

• That diversion might also come to carry with it a social stigma if it is an 'institutionalised element of the criminal justice system'.
• Unsuccessful participants may be disadvantaged when returned to the court system.
• Legal analysts are concerned about the exercise of judicial discretion by non-judicial bodies.
• Diversion could be seen as an expansion of social control, and the concept of 'need for treatment' has no inherent limitation ([34]Dept of Attorney-General 1982, pp16-17).

All of the points made above are also valid for Australian diversion schemes. A very recent form of pre-court intervention (for the purpose of treatment) operating in the US is the Weekend Intervention Program (WIP) which is reported to be 'highly effective in identifying and intervening with persons charged with alcohol- and other drug-related driving offences' (Siegal & Cole 1993).

The underlying philosophy of the program is that the crisis nature of an encounter with the criminal justice system, if successfully managed, provides a valuable opportunity to intervene in an individual's life by identifying the clinical needs of substance users who are not yet receiving treatment, and in a non-punitive way 'gently' confronting participants with the consequences of their own drug and alcohol use. The individual is provided with a diagnostic assessment and treatment program recommendation 'with a specificity unavailable through traditional settings' ([35]Siegal & Cole 1993, p133). The program consists of a three-day residential program to which persons involved in a drug or alcohol offence may be remanded by a court or other supervising agency. It consists of 'Marathon substance abuse counselling sessions using a cognitive-behavioural-oriented approach combined with presentations structured around a modified health belief model'. This participation in the assessment and referral process itself is regarded as being able to help prepare the substance user for any treatment to be received ([36]Siegal & Cole 1993, pp133-4).