Drugs: The Judicial Response

PETER CHARLETON, SC and PAUL ANTHONY MCDERMOTT, Barrister

Introduction1 Criminal Appeal accepted the fact that drop in Ireland would be the subject of the defendant: much speculation but as little informed he tension in relation to a judicial debate as possible. A huge rise in Was a person who, while he traded economic prosperity leading to general response to crimes committed by in misery, was a victim of the drug addicts is increasingly that building works which spread that T system himself in that he was a prosperity into deprived areas may be between moving towards treatment heroin addict and that his activities options or towards an even more one factor. Another factor may be were at least in part directed towards Ireland’s unique laws on the seizure of rigorous imposition of penalties. Public feeding his habit. opinion in Ireland about the evils of criminal assets. Another possible factor drug misuse has probably never been as Irish courts have struggled, as have is the break-up of the gang which made strong as it is at the present time.2 courts everywhere in the western world, the passage of this law easier. More on with the concept of drug addiction as this later. Coupled with strident political calls mitigation. Differences have been drawn The purpose of this article is to incarcerate drug traffickers are pleas between the cold blooded non-user of for more resources to allow dependants therefore to examine the opposing trends drugs and those who commit various of the courts being used as deterrent to leave their habits behind them. Courts crimes in order to finance their needs.5 have traditionally looked into the weapons in the fight against crime and There is a sense, however, of the courts the belief that addiction, or dependency, background of offenders and paid being overwhelmed with pleas of particular attention to circumstances 6 is itself the engine that drives the crime addiction as a mitigating factor. The trend. which mitigate a crime. Votes are following statement of principle, available, however, for politicians who enunciated in Australia by King CJ, Criminogenic Effect decry high crime rates and pretend that appears increasingly dominant: there is a panacea that can be applied to eradicate criminality. There is a wave of There is a limit, and a very strict Crime limit, to the extent to which leniency political thought moving from the Studies from the United States have can be extended to an offender by United States that propounds that by indicated that in comparison to non drug reason of his own addiction.. declaring war on drugs and being using offenders, severe drug users tend however sympathetic one feels to a merciless with offenders, patterns of to commit fifteen times as many person who has allowed himself to behaviour which generate crime can be robberies, twenty times as many get into that predicament, the duty to eradicated. This political movement is burglaries and ten times as many the community, to protect the based upon political self interest. thefts.10 Active drug use accelerates community against the spread of the crime by a factor of between four and It attempts to tie the hands of the drug evil, must predominate...This six, with a crime content that is at least judiciary in their dealing with drug court cannot allow a situation to as violent, or more so, than that of non- offences so that sentences become ever develop in which the contracting of drug using counterparts. These studies larger and incarceration becomes the an expensive habit of drug addiction were of heroin users, but such research only available option. Courts in Ireland, becomes a licence to commit crime.7 in Canada and Australia have as has been done on crack-crime consistently expressed the view that There is a feeling, in reading the law statistics indicate a similarly high or drug traffickers must find out that they reports, of courts everywhere even higher criminogenic effect than responding to the criminogenic effects heroin related crime and a definite operate within a legal environment 11 which is hostile to their trade.3 At the of drugs from the point of view of the increase in violence. Two leading same time there is a growing realisation public, where the personal American experts write: circumstances of the offender play a that warehousing offenders in Empirical studies of the association secondary role.8 Ireland has recently institutions which merely maintain their between drug use and crime provide seen a twenty percent drop in the overall habits, or in some cases reinforces them, an appreciation of the enormous crime rate. In England and Wales the does little against what should be an impact drug abuse has on crime. most recent statistics indicate a nine ultimate aim of attempting to turn Indeed, the extensive research on the percent drop.9 The cause for the offenders away from the disastrous relationship between drug abuse and pattern of addiction to drugs. In The crime provides convincing evidence People (DPP) -v- MacEntee4, for example, the Court of that a relatively few. severe by the Garda Siochana has indicated that than for the rest of the country.’4 The substance abusers are responsible of approximately nineteen thousand result of this is that now one can for an extraordinary proportion of indictable crimes (in our system reasonably estimate that between two crime... Drug-dependent offenders essentially an indication that these are thirds and four fifths of all street level generally lead lifestyles manifested more serious) perpetrated between crime is generated by drug addiction. by hedonistic, self-destructive, and September of 1995 and August of 1996, The statistics show the results. In 1978 antisocial behaviours; they also have twelve thousand were committed by seven hundred and three robberies were problems related to poor drug addicts. recorded. This was an increase from five interpersonal skills, a lack of job hundred and fifty in 1975. By 1983 the skills, dependency on others, and One addict was alleged to be figure had shot to two thousand, one frequent conflict with criminal responsible for one hundred and forty hundred and seventy eight and has only justice authorities... Offenders seven detected crimes with the fallen, by about a fifth, in the last twelve corresponding highest non-drug using involved in the regular use of hard 12 months. drugs or polydrug abuse are offender achieving only thirty three. typically at high risk for recidivating Experience indicates that the vast There were thirteen thousand after release from the criminal preponderance of this problem is due to burglaries committed in Dublin in 1975 justice system... Although a large heroin users or to people who are and they are now running at around proportion of the nation’s offenders predominantly heroin users, but who thirty thousand. Between 1973 and 1991 lead lifestyles associated with may, in desperation, reach for a wide indictable crime increased by fifty six problems of drug abuse, only a range of other drugs in substitution. reported acts. Stealing, as an overall category of crime, has doubled over small percentage receive treatment In the 1970’s Dublin began to while in the criminal justice system. eighteen years. From 1973 over a period experience a heroin problem. Only the of eighteen years robbery has increased In Ireland the prosecution rate for most foresighted warned against the in levels of commission by more than drug offences, such as possession of consequences of ignoring it. They were four times and burglary by almost six controlled drugs or possession for the ignored. In 1979 an explosion of street times. There is a direct relationship level crime was the consequence of the purpose of supply, has increased ten fold 13 between these increases and drug abuse. since 1973 to date. The latest research problem becoming an epidemic. With the arrival of heroin in Dublin and Criminal activity in Dublin runs at a its growth into an epidemic the sudden level approximately three times greater

The Courts and Court Officers Act, 1995 The Judicial Appointments Advisory Board ______Appointment of Three Judges of the District Court

Notice is hereby given that one vacancy exists in the Office of Ordinary Judge of the District Court and that a further two vacancies in the said judicial office are due to arise. The Minister for Justice, Equality and Law Reform has requested the Board under Section 16 of the Act to exercise its powers under that section and to make recommendations pursuant to it. Practising Barristers or Solicitors who are eligible for appointment to the Office and who wish to be considered for appointment should apply in writing to the Secretary of the Board, Office of the Chief Justice, Four Courts, Dublin 7 for a copy of the application form. Completed forms should be returned to the Board’s Secretary on or before Friday the 12th of June, 1998. Applications already made in respect of vacancies in the Office of the Ordinary Judge of the District Court will be regarded as applications for this and all subsequent vacancies in the District Court unless and until the Applicant signifies in writing to the Board that the application should be withdrawn. . It should be noted that this advertisement for appointment to the Office of Ordinary Judge of the District Court applies not only to the present vacancy now existing and the two vacancies due to arise but also to any future vacancies that may arise in the said office during the six month period from 21st May, 1998. Applicants may at the discretion of the Board be required to attend for interview. Canvassing is prohibited. Dated the 21st of May, 1998. SECRETARY, JUDICIAL APPOINTMENTS ADVISORY BOARD upward spiral in crime statistics school before they were sixteen years sible, and illegitimate. It is indicates a parallel beyond argument.16 old. ineffectual because it is falling far A typical drug user was male, short of its objectives; it is Poverty addicted to heroin, aged between fifteen irresponsible because it is and twenty five, unemployed, single, contributing directly and indirectly part from a connection between living with his parents and had a to the creation of greater social Adrugs and crime there is also a criminal record. A substantial number of problems than those which it is connection in Irish society, and in participants in the study had not sought directed against; and it is Dublin in particular, between drugs and any form of treatment in respect of their illegitimate because it employs poverty. For the first time setting has problem. One half of the respondents incarceration and other criminal come centre stage in a consideration of admitted to either having sold drugs, sanctions in an improper and the drug problem and Irish drug policy acted as couriers or lookouts, or assisted excessive manner.25 is moving away from regarding drugs as as tasters to check the purity of street being an independent force for evil drugs. All of these are activities in Tom Murphy, a lecturer in criminal operating, more or less, in a social support of trafficking. Most said that and constitutional law in University vacuum.17 In the first report of the they were involved to support their own College Cork, seems to believe that the heavy consumption of drugs arises from Ministerial Task Force on measures to drug habit. The Gardai estimate that a the criminal sanction imposed on it by reduce the demand for drugs18 the typical drug user in Ireland uses half a gram of heroin five days a week and society. No authority is cited for this authors noted that submissions from view. He states that heavy consumption local groups consistently: will spend around ten thousand pounds on drugs during the course of a year. “is by no means an inevitable Underlined the same underlying No one knows the extent to which consequence of initial use”. He claims it causes of problem drug use as had this pattern will continue. It may change is due to the social ‘setting’ and the already been identified by the group, radically. A recent survey in the United individual ‘set’ that will dictate whether initial drug use will lead eventually to i.e. social disadvantage/exclusion, Kingdom entitled Young People On addiction. He claims that heroin and characterised in high levels of Drugs in 1998, produced by the cocaine are not dangerous per se, but unemployment, poor housing con- School’s Health Education Unit, shows that nearly a third of fourteen and fifteen can be consumed as ‘lifestyle choices’. ditions, low educational attainment, It is argued that destructive drug abuse lack of recreational facilities, etc.19 year olds in rural regions have had some experience of trying drugs. The actual is found only where there is prohibition. In Dublin, studies between 1971 and figure for rural regions is twenty five Explicitly, in the text, he states: 1996, indicate that serious drug percent in comparison to twenty one Further, Wilson is referring to a type problems are not randomly distributed in percent for affluent regions and or style of ‘heavy consumption’ geographic or socio-economic terms, but approximately just under eighteen found only under a prohibitionist cluster in neighbourhoods characterised percent for city dwellers. As with so regime, where regular users’ lives by poverty and general disadvantage. many things in relation to drugs one are necessarily governed by their wonders where these trends may lead habit ‘temperance, fidelity, duty, The complex package of personal 23 difficulties including educational us . and sympathy’ are under far greater threat when the law of the State disadvantage and unemployment cannot Legalisation reasonably be attributed to drug abuse criminalises otherwise voluntary 26 alone.20 In previous generations those The Argument For activity. excluded may have turned to alcohol. udges can respond to various kinds of The Argument Against Experience indicates that this was Jcrime by a type of tacit legalisation. probably so. It is a judgment value to If, for example, after a hard fought trial ne is disturbed to find an absence of say that cannabis abuse is one step up in relation to a prostitution offence, Oany studies which lend credence to from this. Again, experience tends to brothel keeping or living off the this view. One tends to wonder how indicate that this may be combined with earnings of prostitutes, an accused is much in touch with the reality of drug alcohol abuse. convicted and then not imprisoned, but abuse or indeed with commonsense its When one comes to heroin and merely fined the equivalent of about one author is. Just look at his argument. cocaine and crack-cocaine one is, hour’s earnings, legalisation has Heroin is unlawful and therefore the price of heroin is high. People will however, dealing with substances which effectively taken place by judicial 24 choose, of their own free will, either to have a capacity to enslave people response. The issue of legalisation consume a lot of heroin or very little. It beyond any other known power.21 In should therefore be openly discussed especially within the context of is up to them, and not a factor of their 1997 the Garda Research Unit carried sentencing responses which depend own personality and the relationship of out a survey of drug abusers in the 22 upon judicial discretion as to the view of physical interdependence which can Dublin area. The profile which the crime and the culpability of the grow up with use of this drug. emerged of the people who come most offender. In Ireland it has recently been If drugs were legal, then heroin frequently before the courts on drug argued that we have been engaged in a might be bought cheaply. This would charges tends to support the Task Force war against drugs that has failed. The induce people who use heroin to use it conclusions. The first offence for the author of a recent polemic writes: in a way so as not to become dependent. majority, sixty five percent, was a Because heroin is illegal it is expensive. stealing offence of some kind. Ninety I am arguing that it is wrong. I Therefore people have to commit crimes one percent of hard drug abusers had left regard prohibition as ineffectual, to gain the money to fund their habit. irrespon- The argument is nonsense because if around 15,000 kilos of cannabis resin The exception is the United States one chooses to commit crimes of imported by this gang alone per annum.. where seventy percent of all offenders violence to fund a drug habit, one If one in thirty three, or thereabouts, convicted of a felony in State court therefore chooses the abuse of the drug of cannabis users go on to the abuse of amounting to around nine hundred over the normal dictates of conscience cocaine and heroin it is perhaps a fair thousand in 1992, are sentenced to son not to abuse other people in society. Yet indication of why we continue to have a form of imprisonment. that abuse by drug users continues to an problem of the dimensions which we do These include four fifths of those extreme level. in this country. Figures gathered over convicted of violent crimes, two third of the last ten .years from unsmoked hand- those convicted of property felonies No one we have come across in rolled cigarettes containing cannabis three quarters of those found guilty of Circuit Court 24 in Dublin, with a resin indicate that approximately . 1 of a drug trafficking and sixty two percent of dependency on these substances has gram is the amount which a marijuana those convicted of drug possession.32 been happy about it. We believe that smoker will normally use. No figures are available for Ireland, but that would be so whether or not they These figures indicate an annual in England and Wales the 1995 figure were being prosecuted for drug pushing consumption from the Greenmount disclose that of approximately three or robbery or whether they were simply Gang alone of well over one hundred hundred thousand people sentenced for engaged legally in destroying their own million cigarettes. Irish society already indictable offences about one fifth were lives and those of family members. has tremendous problems with alcohol sent to prison; about one third were Their unhappiness seems to us to stem abuse. Marijuana abuse on a long term fined; and about twenty eight percent from drug abuse. At the level of basis leads to an amotivational lifestyle were made serve some form of non reportage the memoir of Christine F.27 syndrome which causes particular custodial sentence.33 Both the Cone of and the memoir left by the cocaine damage to the abuser and to his family. Europe” the Canadian and the United addict M. Ageyev entitled Novel with It is very difficult to argue against the Kingdom approaches to sentencing at in Cocaine28 indicates the extraordinary use of any drug where it is of favour of the use of imprisonment only depths to which the abusers of therapeutic benefit. One still awaits where the offence is so serious then it dependency inducing drugs are driven to evidence of an increase in human merits custody or where it necessary, by uphold what Murphy would have us happiness where such drugs are reason of the violent sexual nature of the believe is a ‘Ufestyle choice’. He quotes available. offence, to protect the public.34 As a matter of practice has been the Irish Krivanek as apparently disabusing us of The Imprisonment Binge approach to sentinel and the one the notion that cannabis can act as a The latest available figures (1995) recommended by the Whittaker Report gateway to the use of cocaine and indicate that, per one hundred thousand after anxious consideration and wide heroin: of the population, Ireland has fifty five consultation. ...What the general public and some people in prison. This compares favourably with England and Wales professionals often overlook is the (1997) at one hundred and twenty and Lenient Judges? fact that involvement with one drug remarkably favourably with the United does not necessarily mean here is a close alliance between States at six hundred and fifteen. The media and political interest Surveys progression to the next one. rate for Northern Ireland is one hundred T Virtually all marijuana users had are propounded apparently was a view and six per one hundred thousand to showing that the gene public regards earlier tried alcohol or cigarettes, (1995). Only Russia and Beylarus have usually both; but only a percentage judicial sentencing as too lenient. These higher figures than the United States. are often predicate however, on the basis of alcohol and cigarette users [about Canada, sharing the North American of crude a loaded questions.35 Where forty five percent] go on to use continent, has only one hundred and in-de surveys are used, and questions marijuana. A tiny fraction of nineteen persons per one hundred open-ended, the results differ. The more [marijuana users], some three thousand of the population in 29 31 knowledgeable people are in relation the percent, then go on to try heroin. imprisonment (1994). exact circumstances of the offer and the There is no room for complacency background of the offender the The Scale of the Problem in Ireland. One major new prison is due possibility of reform, the more like they igures which have been produced at to come on stream by the millennium. are to agree with the sense passed by the F the trial of three gang members so The pattern has been for such prison court. In 1991 sentencing exercise was far sentenced, in relation to what has space as we have to remain full. Judges carried out Delaware using a become known as the Greenmount must not allow themselves to be representative san of four hundred and Gang, indicate how enormous is the pressurised into engaging in what would thirty two persons within the abuse of cannabis resin within Irish amount to merely a war of attrition community. They were given twenty against persons convicted of crime. society.30 Over a period from April, three hypothetical cases rang from theft, Crime has become a political vote 1994 to October, 1996 the Greenmount to rape, to armed robbery. catcher. On an initial view seventeen out of gang imported approximately 41,000 With that phenomenon has come a kilos of elicit goods. Attempting, as best twenty three would have been indicated responsibility among the judiciary in by the group with probation to the one can, to take away the weight of the discussing it and in promoting armaments imported and the small remaining six. After consider responses: information on prison overcrowding quantity of cocaine included in the designed to combat it. Most people shipments, and the weight of the convicted of a criminal offence in most packing itself, one comes to a minimum Western countries do not go to prison. figure of five alternative sentences (intensive The range of offences and the type mandatory sentence for possession probation, restitution, community of offender chosen is problematic. of less than a pound and a half of service, house arrest and boot camp) Commercial or medium grade pushers cocaine with intent to distribute, they met in small groups to discuss the have no place in such a programme. even for a non-violent first offender, sentence. Only five out of twenty three Addicts driven to crime by disadvantage is life without parole... In 1993 it offenders were then sent to prison, the and dependency are their target. Instead was reported to the U.S. Congress other eighteen being given alternative of pleading guilty or not guilty, the that judges of every federal circuit sentencing options. Those sent to prison offender is given the option of a had adopted Resolutions against the were four violent offenders and a drug potential non-custodial disposal if they mandatory minimum sentences for dealer with prior convictions.36 co-operate with probation, a drug drug offenders ... Recent develop- treatment programme and remain free ments in the United States penal Other Options from other offences. Families are policy suggests that the trend is not involved in the process. Court going to be reversed in the near ptions available in this country, as appearances are frequent with a judge future. The ‘three strikes and you’re Oalternatives to imprisonment, positively congratulating the subject as, out’ policy means that anyone include a community service order during the progress of their appearances, convicted of three serious or violent involving people engaging in public urine analysis shows them to remain felonies will be sentenced to life works on behalf of the community drug free. A relapse into taking the non- imprisonment on the third. The (which usually benefits them as well as prescribed drugs leading to the expression comes from baseball. commission of offences, operates as an The law was first introduced in bringing them into contact with at least automatic exclusion from the Washington State in 1993. In 1994 it the fact of other people’s lack of programme. Exclusion means that the became federal law and to date there privilege) and worthwhile supervision case then progresses in the ordinary are such laws in twenty four from a probation officer. In addition, adversarial way with the consequence of States.41 probation is an option, though a softer a custodial sentence waiting at its one. culmination. The Criminal Justice Bill, 1997, During the time when Mr. Justice Intensive probation, drug courts, currently making its way through the Moriarty was the main sentencing judge community service and probation all Oireachtas, provides that where a person in the Circuit Court intensive probation require funds. Far less funds, however, is found guilty of controlled drugs with modules were developed which than imprisonment. In Ireland the staff the market value of ten thousand pounds involved close supervision and the to prisoner ratio is extremely high and, or more with intent to supply these, he requirement to attend work and including administration, tends almost should be sentenced to a minimum educational courses. Statistics from towards a one to one basis.38 In Russia period of ten years imprisonment. England and Wales indicate that three and Beylarus imprisonment traditionally Judicial discretion is, however, retained quarters of community service orders has made money for the authorities as by allowing for a sentence less than this are carried out successfully without a prisoners have been used as a source of period where the mandatory minimum further conviction during the time of the would be unjust in all the circum- labour. In the United States the costs of 42 order. Recidivism rates are certainly no imprisonment are estimated at forty stances, including an early indication worse than in the case of imprisonment 39 of an intention to plead guilty and 37 billion dollars a year , but staff to and some are better. Fining and prison ratios are far less than in Western material assistance in the investigation restitution orders, based more on ability Europe.40 by the accused. One wonders at a to pay and willingness to admit fault, Drugs have been central to the provision such as this. It makes a great than on the civil standard of enormous growth in the United States deal of noise, but essentially changes compensation, are also options. prison population. During the period nothing by allowing the court to ‘have 1985-1995 the number of sentenced regard to any matters it considers A Wave of the Future? prisoners in State prisons more than appropriate’ to reduce the sentence doubled. The increase attributable to below the mandatory minimum. n the United States the prison offences against drug laws was four Valuations are notoriously flexible and have led in England to a nation- Ipopulation has increased about four hundred and seventy eight percent. The 43 fold since 1980 but, despite this level of crime continued to creep wide table of values. Furthermore, politicians should be made to wake up to incarceration binge, there has been no upwards. Vivien Stern writes: the fact that a person in possession of resultant diminution in crime figures. In This has led to mandatory minimum sentence for drug offenders, millions of pounds worth of drugs may 1980 the USA had around 0.4 million be a pathetic donkey figure two or three prisoners, now it is around 1.7 million however minor the offence. When federally prosecuted, a sentence of steps removed from the criminal with a further 3.5 million on some form godfathers. An analysis based on of probation. The fact that crime has at least five years is required for possession of more than five grams realism is central to the judgment of only dropped by 5% in the last five McGuinness J. in Gilligan -v- Ireland years has led to a re-think of of crack cocaine with intent to 44 distribute. One year in prison and the Attorney General in relation to incarceration in some states. Offenders without parole is the sentence for the facts. Of course, the fact that the law who have Gommitted less serious drug anyone convicted of selling drugs upheld there, of which more later, seems offences or Property offences motivated within one thousand feet of a school. to be a good idea, does not by any by a drug addiction are given the option In Michigan the means mean that it is constitutional. early on ‘n their appearances before the There is at least a judicial wariness of courts to attend before a Drug Court. copying the mistakes made by other countries. We must problem, he would otherwise enjoy good remaining under the supervision of be wary in Europe of copying the mistakes of health. institutions or bodies which, the Act other countries. The probation reports went into contemplated somewhat optimistically, considerable detail on the prisoner’s might be available to persons in a home Is It Always A Sentencing background and suggested alternatives to setting to assist in their cure and Matter? incarceration. The true statutory basis for rehabilitation. Within section 28 was the these reports, however, was that the medical Good Intentions possibility as well of sentencing a report should have been a consideration of person to a custodial treatment centre he sentencing scheme of the 1977 Misuse what treatment was appropriate for the for up to a maximum of one year. These Tof Drugs Act was completely different to individual convict’s drug dependency. The that of any other criminal statute. People probation report was designed to consider sections remain in force, but over the often wondered why probation and medical vocational and educational needs whereby period of the twenty one years that the reports were necessary in respect of drug rehabilitation might commence. On receipt of 1977 Act has remained in force only two offenders. They were not called for in these reports the Legislature clearly persons have been sentenced to legislation dealing with any other criminal contemplated that some form of treatment custodial treatment by an Irish court. wrong. These reports were ordered was to be considered as an alternative to By statutory instrument no. 30 of 1980 automatically, and by statutory compulsion simple incarceration. It is inherent in the the Central Mental Hospital in Dundrum was up to the implementation of the Misuse of scheme of the Act that there was abroad at designated the custodial treatment centre. In Drugs Act, 1984. The reports then became an this time a philosophy that drug dependency 1989 a judicial review forced Dundrum to could be cured by appropriate treatment and declare that it was able to receive convicts for option for the trial judge. All of the medical 45 reports given in practice between 1977 and that a prison setting for drug offenders was custodial treatment. The lady applicant had 1984 were in short form, apparently prepared not necessarily the correct answer. been convicted of drug pushing by reason of drug dependency, was suffering from the by a prison doctor, and simply stated that the An order under section 28 of the Act AIDS Virus and therefore only had two years prisoner did not suffer from a psychiatric could involve the court releasing the to live. Having spent a year in the Central illness and that apart from an addiction offender subject to conditions, including Mental Hospital she then died. In 1990 Roe J. attending at a treatment centre or sentenced one other offender to

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S 4 Upper Ormond Quay, Dublin 7, Ireland Tel. (01) 873 0101 Fax. (01) 872 0078 DX 1054 Pour Courts

Dundrum. There now follows a slightly in custody in a designated custodial sending the offender for a short time to the edited version of section 28 which makes treatment centre for a period not institution which would then report back the policy of providing treatment as an exceeding the maximum period of on his or her suitability. option in addition to simple imprisonment imprisonment which the court may The statutory emphasis seems to have apparent: impose in respect of the offence to been on commitment to the programme which the conviction relates, or one and a lack of disruption. In the United 28(l)(a) Where a person is convicted year, whichever is the shorter. States Professor Robert Martinson of an offence under section 3 of this published a famous/infamous (depending Act ... or an offence under section 15 on your point of view) paper in Public or 16 of this Act, or of attempting to Therapy Outside Prison Interest entitled: What Works? Questions commit any such offence [Amd. s.l4] and Answers About Prison Reform. The [if, having regard to the circumstances he idea of a therapeutic community as conclusion of the author, on review of the of the case, the court considers it Ta means of rehabilitation and as an literature of the hundreds of custodial appropriate so to do, the court may] alternative to simple imprisonment is, at treatment attempts in the United States was remand the person for such period as it least within the criminal justice system in that, with few and isolated exceptions, considers necessary for the purposes Europe and America, an entirely twentieth nothing worked. For ten years this led to of this section (being a period not century one. The Boys’ Republic set up by the down-grading and undermining of exceeding eight days in the case of a Homer Lane in 1907 seems to have been custodial treatment efforts. remand in custody), and request a the first of these. This was a juvenile It seems to have been the pressure of health board [Amd. s.l4] [probation offenders institution where close numbers of addict^ coming into the prison and welfare] officer or other body or supervision was replaced by an emphasis system, uncontrolled recidivism and a person, considered by the court to be on individual responsibility, accomplishing basic belief that simply warehousing appropriate, to - tasks, with free choice and self expression persons and ignoring the difficult (i) cause to be furnished to the court a developing the capabilities of the residents. challenge of rehabilitation was short- medical report ... with such In 1910, small group therapy as part of sighted, that has led to a resurgence of recommendations (if any) as to psychiatry was developed and promoted attempts to re-think treatment as a medical treatment ... appropriate to the by the psychiatrist J.L. Moreno. sentencing strategy in the United States.47 needs [Amd. s.l4] [arising because of The model for many narcotics In Ireland the Ministerial Task Force has his being dependent on drugs] of the programmes. Alcoholics Anonymous, was made recommendations which include the convicted person, and started in 1935 by two alcoholics who development of state-run treatment (ii) furnish to the court a report in started a three year process of self- facilities in institutions such as hospitals; writing as to the vocational and recovery. In the same year the first of the the provision of additional state funding to educational circumstances and social narcotics farms was set up at Lexington, voluntary agencies; and the involvement of background of the convicted person Kentucky, with another introduced at Fort local communities in the provision of together with such recommendations Worth in Texas in 1938. In 1940 treatment services. While the Task Force, (if any) as to care ... therapeutic community methods were optimistically, puts forward the view that a (2) Having considered the reports introduced into institutional psychiatry and large proportion of drug misusing furnished pursuant to subsection (1) of in 1958 the Califomian Therapeutic offenders would be likely to avail of this section, the court shall, if in its Community, which led the way in the treatment, if it was offered, this clashes opinion the welfare of the convicted treatment of substance abusers, was begun. directly with the finding of the Task Force person warrants its so doing, instead of Its founder, Charles Dedrick, was an AA that approximately half of drug takers in imposing a penalty under section 27 of graduate who had discovered and Mountjoy Prison are believed to have no this Act, but subject to subsection (8) developed techniques of therapy in desire to receive treatment for their of this section either - discussion groups with both alcoholics and addiction. (a) permit the person concerned to heroin addicts46. enter into a recognisance containing The Lexington and Fort Worth models such of the following conditions as the experienced poor results with many Does It Work? court considers appropriate having voluntary patients failing to remain, high he authors of this article cannot claim regard to the circumstances of the case relapse rates (due perhaps in large part to either the expertise or knowledge of and the welfare of the person, ... T an absence of transition programmes in the relevant literature which would enable (involving) (i) supervision of a health moving from a custodial setting into anything other than tentative discussion board ... [(ia) to receive visits and freedom). The model for our Act seems to material to be advanced. Within the expert permit visits by ... the supervision of a have been the Narcotic Addict literature there is a groping towards the body, an officer of that body ... Rehabilitation Act enacted by the identification of criteria which distin- (ii) medical treatment or other Congress of the United States in 1966. guishes a successful therapeutic commu- treatment recommended in the report, This made Court treatment orders a nity from one which can only show poor (iii) ... to attend or ‘remain in a specific alternative to incarceration. results. There is a call for a more solid hospital clinic or other place specified Screening was required in order to theoretical grounding than is now available ... for a period so specified, (iv) ... determine if the treatment could be of to explain successes and attend a specified course of education, benefit. Similarly, under our 1977 Act, instruction, or training,... when a judge was minded to sentence an

(b) order that the person be detained offender to custodial treatment a further

report was required, this time from

failures and guidance as to the application shown that it has been extraordinary grapple with factors which seem to of therapeutic communities in differing individuals, overcoming extraordinary influence success the authors of this study contexts, including voluntary admission problems, and who may have repented of offer the following conclusions as to what and judicial incarceration.48 past wrongs, who have founded and can make for a successful in prison Most treatment programmes tend to directed movements that have been of treatment programme: follow certain broad outlines. There is an enormous benefit in alleviating one of the initial programme of induction which great curses of the modern world: Among the most important conditions assesses the genuineness of the addict’s are: desire to participate in rehabilitation. If a If charismatic leaders are an integral (i) An isolated treatment unit, (ii) sufficient commitment is shown the addict part of the TC structure, the replication motivated participants, (iii) a is admitted to the residential programmes. of effective TC’s would be extremely committed and competent staff, (iv) There is no uniformity as to the length of difficult to achieve, since charisma is adequate treatment duration, (v) an time that is needed for an optimum result. unique and idiosyncratic. If, however, array of treatment options, (vi) It seems to vary between six and fifteen particular TC structures generate cooperative and supportive months. charismatic leaders as an unavoidable relationships with correctional staff Within that time group therapy, feature of the TC experience, the and administration, and (vii) unexpurgated confrontation with the addict objective would shift to copying those continuity of care that extends into the and his behaviour, rewards and deficits structures with charismatic leaders... community. The guidelines above for based upon clear cut rules, and a transition these are significant issues, yet successful correctional treatment, with more individual responsibility discussions that explicitly address however, are merely suggestive coupled with screening programmes and them are scarce. The lack of because few studies have linked the theoretical grounding also leads to nature of the treatmerfl thatr clients an absolute prohibition on the 49 53 consumption of narcotics, seem to be sharply divergent perceptions... receive to treatment outcomes... characteristic. The studies in the United States In the United States the National Family and support groups are closely indicate that the longer a person stays Development and Research Institutes involved. A final phase avoids sudden re- within a therapeutic community the higher have evolved a set of guiding admission to the community in favour of a becomes their chances of avoiding re- principles as to how to rehabilitate offending.50 The Cool-mine Therapeutic drug abusing offenders within a transition which seeks out residence 54 (changing address can be very important) Community claim a success rate of around custodial setting. In Ireland progress and work opportunities and which tries to forty five percent of those who have in this area was held back by what put into place skills of coping learned completed their induction programme and seems to have been a determination to up to seventy percent of those who have ignore the problem of drug abuse within the community. If one is again, 51 tentatively, to seek out factors which tend completed the full two year programme. within prisons. Our approach is now to towards the success of a therapeutic In this context, success is measured by confront this problem. Approximately community, one might offer the following. freedom from drug abuse for life. seventy percent of inmates in Mountjoy Prison, at any given time, Indispensable to success is a desire for 55 change in the addict. A realisation of the Treatment Within Prison have a history of drug abuse. Most^ destructive nature of substance abuse, the prisoners enter the system with a harm done to others and an he movement of offenders who have developed habit. The number of those acknowledgement of the reality of current Tbeen incarcerated into a prison-based who commence taking drugs in prison and past wrongs seems to clean the slate treatment regime is, in this country, is believed to be quite small. entirely a matter for the Executive. The and prepare for a way forward. A rule of A large amount of drugs are therefore pursuit of stringent rehabilitative measures life based solely upon the truth seems smuggled into Mountjoy Prison to feed the and apparent success in following that central. habits of its inmates. Responses include course could, however, be a strong Many addicts appear to have moved increased screening of visits and the use of influencing factor for a sentencing review away from reality based perceptions and surveillance equipment and dogs. The or could be a condition imposed on into beliefs based upon their internally 1997 Ministerial Task Force Report on sentence upon which a review is created self-justification. In the treatment Drugs rightly stated that a prerequisite to predicated. In the United States .a five year modes, the role of former addicts seems to any successful treatment programme is for study of the ‘Stay’n Out’ Prison be a feature of the more successful drug abusers to move into a drug free Therapeutic Community indicated that community. Perhaps they bring a convert environment.36. these can be effective in reducing zeal while at the same time providing a There is a move towards dealing with recidivism rates for persons who stayed concrete role model, the benefit of genuine this problem. Current treatment arrange- within a prison programme for the full experiences and what Carl Jung regarded ments in Mountjoy for prisoners who nine to twelve months and were then as central to any form of psychotherapy: misuse drugs include: ; what you are is far more important than released on parole. A figure of almost what you teach. Real leadership within the eighty percent for males and ninety two (a) A fourteen day detoxification community provides the basis for the percent for females was achieved for no programme, offered on all resolution of quarrels and a reference point parole violations.52 Again, attempting to committals to prison. for decision making. (b) An eight week intensive therapy The limited historical survey has programme which can deal with

twelve offenders at a time, and which cannot be delivered. Moving slowly 83 A Crim R 272. In R -v- Gervais 75 is a follow on to the detoxification. forward with modest and realistic CCC (3d) the Court of Appeal of (c) A new drug free unit opened in proposals and attempting to copy the best Quebec noted that a drug trafficker Mountjoy in 1996 which can of the experiences of the models which may disguise himself as a legitimate accommodate ninety six prisoners, at have worked in other countries, business operator and so abuse the fact any one time. Proposals not yet particularly the United States is the way that he has no previous convictions. introduced include a graduation forward. Judges can perhaps respond by 9. See the Guardian, April 8th, 1998. system for prisoners who come off considering, in appropriate cases, the 10. Chaiken and Chaiken - Crime Rates drugs, who might thereby go to a more foreshortening of deservedly lengthy and the Active Offender in J.Q. Wilson sentences based upon genuine open form of imprisonment with the - Crime and Public Policy pages 11- rehabilitation. potential for earlier release as long as 29, cited in Inciardi. The key without which nothing works 11. The relevant papers are cited in they stay drug free. Regrettably, there is the willingness of the offender to admit are no structures in place to ensure that Inciardi at page 211. that they have a problem, to confront 12. The authors are grateful to Morris P. drug treatment services inside and themselves and their behaviour and above outside the prison are properly co- for drawing these statistics to our all to desire to change for the benefit of attention. The source is Keogh - Illicit ordinated. A prisoner, on release, is no themselves and their families. One cannot Drug Use and Related Criminal longer the responsibility of prison speak of substance abuse as a disease. A Activity In The Dublin Metropolitan authorities, as regards his welfare. disease will respond to antibiotics no Area - (Garda Research Unit, 1977). matter what the state of mind of the There must be a formal mechanism to 13. See O’Mahony - Crime and patient. A substance abuse arises from the Punishment - in Ireland (Dublin 1993) ensure that persons who are released on entire nature of the person, their 70 and Yates and Flynn - Smack; The extremely short term programmes have the involvement with others and their Criminal Drugs Racket in Ireland follow up which is shown by all studies to relationship to society as well as the nature (Duolin 1985) Chapter 1. be necessary. Drug abusers drift in and out of the substance being abused.• (continued of the criminal justice system and 14. O’Mahony - Crime and Punishment in in next issue) Ireland (Dublin) (1993) 70. treatment rogrammes without being forced ______15. Mr. Justice Moriarity, Personal into a situation where monitoring, with 1. A version of this paper was delivered Communications. See the report of the effective sanctions for failure, and by the first author to a recent 57 Lord Mayor’s Commission on Crime, treatment backups continue. conference held in Dublin Castle and Chaired by the Judge (December, involved judges from ten European countries, however, the views 1994) 28. A Way Forward expressed are entirely and completely 16. Superintendent John McGroarty - Paper Presented to the Forensic f there is a consensus in relation to the those of the author and were not in any way adopted or approved of by the Science Symposium on Drugs and I Lidea of reform of addicts within a Crime, 14 June, 1986, cited in P prison setting it seems to emerge from the conference or any element of it. 2. Definitions are taken from the Health Charleton - Criminal Law Cases and realisation that temporary warehousing of Research Board. See O’Higgins and Materials (Dublin 1992) 225. serious offenders with a drug problem O’Brien - Treated Drug Misuse in the 17. Butler - The War on Drugs: Reports leads inevitably to reffending on release. Greater Dublin Area, HRB, 1995. from the Irish Front, The Economic The availability of therapeutic community 3. R -v- Brisson 47 CCC (3d) 474; The and Social Review, Volume 28 No. 2, within a prison lat has a motivation-based, People (DPP) -v- Cannon CCA, April, 1997 165. as opposed a control-based system of Unreported, 15 December, 1997; The 18. Department of the Taoiseach, 1996 reform, of willingness to confront one’s People (DPP) -v- Finlay CCA, 19. Page 33. own wrong, true leadership and adequate Unreported, 24 November, 1997; 20. Butler op cit 162 wherein the relevant to complete a worthwhile rogramme (six Choon Sien Tee, A Crim R 181 at 183 papers are cited. months seems to be a minimum) do offer a (1994). 21. McGroarty op cit. realistic possibility of reform. 4. CCA, Unreported, 10 November, 22. Illicit Drug Use and Related Criminal Experienced practitioners have 1997. Activity in the Dublin Metropolitan cautioned, however, that rapidly landing 5. R -v- Smith 34 CCC (3d) 97 at 124. Area 1997. an existing programme can lead to See also Fortson - Misuse of Drugs 23. For an interesting review with an undermining the quality of treatment. and Drug Trafficking Offences (3rd interview, see The Guardian, March Throwing money at this problem and Edition, 1996) 8-21; and Rinaldi - 11, 1998. demanding that large numbers of offenders Drug Offences in Australia (1986), 24. Obviously such response would need be admitted to treatment programmes is a Vol 1, p 20, who concludes that the to be consistent throughout the recipe for failure. Too much is expected main relevance of addiction in the judiciary to operate as a kind of tacit sentencing process is in understanding and it legalisation. the offender’s prior convictions. 25. Tom Murphy - Re-Thinking the War 6. R -v- Lawrence, The limes Law on Drugs in Ireland (Cork 1996) 33. Report, 1 December, 1988; Drug 26. Murphy op cit. 42. Addiction as Mitigation 147 Scolag 27. London, 1980 published as H: The 189; R -v- Gould Autobiography of a Child Prostitute (1983)5CrAppR(S)72. and Heroin Addict. 7. Watson (1981)3ACrimR254at255. 28. London 1985, first published in Paris 8. See in general Bellissimo (1996) 84 A in Numbers in the 1930’s. Crim R 465 at 469; Mangelsdorf 29. The relevant sources are noted in (1995) Murphy - Drugs, Drug Prohibition and

Crime: A Response to Peter Charleton op cit 320. Lipton Inciardi Drug Treatment and - 6 (1996) Irish Criminal Law Journal 38. Source of this statistic is the media, Criminal Justice, 1993 209-215. 1 at 8. The article leading to this and it therefore should be treated with 48. Pan Scarpitti Inciardi and Lockwood response is Drugs and Crime - Making enormous care. - op cit 39. the Connection: A Discussion Paper - 39. Stern op cit 22 and 287. Interestingly 49. Pan Scarpitti Inciardi and Lockwood 5 (1995) Irish Criminal Law Journal drug courts in Texas and Oregon op cit 40. 220. 30’. We are grateful to Detective receive funding for treatment 50. Wexler and Lipton - From Reform to Inspector Tom O’Loughlin for giving programmes from assets seized by the Recovery, Inciardi op cit. 213. us access to these figures which have State from criminals. 51. Jim Comberton, Personal Commu- not been fully or accurately reported in 40. Stem op. cit, chapter 3. nication. The figures have not been the media. 41. Stern op cit 61-63. subject to an independent academic 31. Figures are taken from Vivien Stem - 42. In Canada a seven year sentence was review; Shane Butler, Personal A Sin Against the Future: Imprison- recently introduced for importing Communication ment in the World (London, 1998) 31- narcotics. On appeal the Canadian 52. The figures are stated in Wexler and 32. Supreme Court held the legislation to Lipton op cit 213. 32. Maguire and Pastore - Source Book of be unconstitutional as it constituted a 53. Wexler and Lipton op cit Citing Criminal Justice: Statistics (1995) 166 cruel and unusual punishment; R -v- Hubbard, Marsden, Racal et al – Drug quoted in Steam op cit. 319. Smith 34 CCC (3d) 97. A different Abuse Treatment - A National Study of 33. Nacro - Criminal Justice Digest, 90, view had previously been taken by the Effectiveness (Carolina, 1989). October, 1996 page 7 quoted in Stem British Columbia Court of Appeal; R - 54. These are set out in Wexler and Lipton op cit319. v- Smith 8 DLR(4th)565. op cit 217-224. 34. The relevant sources are quoted in 43. Fortson at 232; Afzal - The Times, 55. In a recent study of Mountjoy prisoner Stem op cit 310. See also R -v- Brown June 25th 1991; Bucknell - Misuse of O’Mahony found that within a 119 CCC(3d) 147 at 161 (1997) where Drugs (1996) para 9.007. In Ireland selective sample sixty six percent of the Newfoundland Court of Appeal attempts to appeal alleged over- six hundred and fifty inmates were observed that, ‘deterrence does not valuation of drugs by the police have heroin users O’Mahony - Mountjoy always have to be equated with not proved successful; see e.g. The Prisoners; Sociological and incarceration, and those who struggle People (DPP) -v- Cannon, CCA, Criminological Profit (Department of with addiction are unlikely to be Unreported, 15 December, 1997. Justice, 1997). deterred by imprisonment however 44. Unreported, High Court, 26 June, 56. Second Report of the Ministerial Task long the sentence’. 1997. Force on Measures to Reduce the 35. See in general Stem op cit, chapter 14. 45. ER -v- Ireland and the Attorney Demand for Drugs (May, 1997) 63. 36. See Stem op cit 315-317. General. 57. As to the usefulness of this, which 37. The relevant studies are quoted in 46. Pan Scarpitti Inciardi and Lockwood difficult to assess, see Illicit Drug Use Stem Inciardi 30-35. and Related Criminal Activity in the 47. From Reform to Recovery - Wexler Dublin Metropolitan Area, 1997, page and 29.

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