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Paper 18: Effective Interventions: Judicial Supervision of Offenders’ Drug and Alcohol Treatment

Proposal

  1. This paper responds to Cabinet's direction to the Ministry of Justice (lead), Ministry of Health, Department of Corrections and Police to report to POL by 30 November 2006 with proposals for the expansion of judicial supervision of alcohol and drug (AOD) treatment for offenders, including implications for Maori and Pacific peoples, and for women offenders [CAB Min (06) 27/3A refers].

Executive summary

  1. There is a high incidence of alcohol and drug use and dependence among offenders as compared to the general population. As part of its consideration of the Effective Intervention proposals in July 2006, Cabinet was advised that strengthening judicial oversight of AOD treatment of offenders would provide judges with the confidence to divert drug- and alcohol-dependent offenders into treatment programmes as an alternative to, or a means to minimise, a sentence of imprisonment [POL (06) 177 refers].
  1. A proposed judicial monitoring process (previously called "judicial supervision") is included in the Criminal Justice Reform Bill, which will make those amendments required as part of the Effective Interventions project. Judicial monitoring will be available as a special condition of the new sentences of intensive supervision and home detention. Judges will be able to remain informed of an offender's progress on a sentence and to vary the sentence or substitute another sentence if necessary. Judicial monitoring includes but is not restricted to offenders receiving AOD treatment.
  1. Cabinet has recently agreed to two other pieces of work that are highly relevant to any further development of judicial monitoring as it relates to AOD treatment. This includes further work on the availability of drug and alcohol service and a review of the interface between mental health and/or AOD services and the criminal justice system [CAB Min (06) 37/5 and CBC Min (06) 17/13 refers].
  1. These two pieces of work will provide information that can usefully inform any expansion of judicial monitoring. In particular, the interface review will examine the mental health and/or AOD interventions occurring at all stages of the criminal justice system (from arrest to parole) and in relation to each criminal justice agency. I recommend that that any expansion of judicial monitoring as it relates to AOD treatment be considered further as part of the review, rather than making decisions now about an expansion that may be premature.

Background

  1. Approximately 80% of prisoners in New Zealand, compared to 32% of the general population, have exhibited a substance abuse or dependence disorder at some time in their lives. Between 50% and 60% of offenders are affected by alcohol and/or other drugs at the time of their offending. Maori feature strongly in these statistics, representing 55% of those prisoners currently identified as having alcohol and drug problems that directly link to their offending [POL (06) 177 refers]. An informal analysis of current information by the Ministry of Health indicated that about 50% of AOD clients accessing services have an offending history [CAB (06) 412 refers].
  1. As part of its consideration of the Effective Intervention proposals in July 2006, Cabinet was advised that strengthening judicial oversight of AOD treatment of offenders would provide judges with the confidence to divert drug- and alcohol-dependent offenders into treatment programmes as an alternative to, or a means to minimise, a sentence of imprisonment [POL (06) 177 refers]. Officials were directed to report to the Cabinet Policy Committee by 30 November 2006 with proposals for the expansion of judicial supervision of AOD treatment for offenders, including implications for Maori and Pacific peoples, and for women offenders [CAB Min (06) 27/3A refers].

Comment

Proposed Judicial Monitoring Process

  1. As part of its July 2006 decisions, Cabinet agreed in principle to a proposed judicial supervision process, to be available as a special condition of the new sentences of intensive supervision and home detention [CAB Min (06) 27/3A refers]. Cabinet confirmed this decision in October 2006 [POL Min (06) 21/6 refers]. However, the term "judicial supervision" was replaced with "judicial monitoring" to avoid confusion with the community-based sentences of supervision and intensive supervision.
  1. The key components of judicial monitoring are:
  • A probation officer will be required to prepare a written progress report for the original sentencing judge on the offender's progress and compliance with their sentence. This report must be provided within 3 months of the start of the sentence or after the offender has served ⅓ of the sentence, whichever is sooner.
  • If the judge considers it desirable for the administration of the sentence or for the rehabilitation/reintegration of the offender, the judge may require the offender to attend court for a review of the progress of the sentence.
  • It will be possible for the judge to vary or cancel the sentence on the basis of further submissions from the probation officer and offender (this will require a formal hearing at a later date to enable the submissions to be prepared and to ensure the offender has an appropriate opportunity to seek legal advice).
  1. The legislative provisions to implement judicial monitoring are included in the Criminal Justice Reform Bill, which will make those amendments required as part of the Effective Interventions project. Subject to the Bill's passage through the House, it is anticipated that the judicial monitoring provisions will come into force by 1 October 2007 along with the new community-based sentences and the new home detention sentence.
  1. Judicial monitoring is particularly aimed at "borderline" cases - that is, cases where the decision to impose either a community-based option or a sentence of imprisonment is finely balanced. In those cases, the ability for judges to remain informed of an offender's progress on a sentence (and to vary the sentence or substitute another sentence if necessary) may increase the judge's confidence in a community-based option and their willingness to impose a sentence other than imprisonment.
  1. Judicial monitoring includes but is not restricted to offenders receiving AOD treatment. Offenders subject to other conditions (for example, a special condition requiring attendance at an anger management programme) may also benefit from additional oversight of their sentence. Judicial monitoring is a new process in New Zealand's criminal justice system and is at an early stage of development. The impact and uptake of the process for particular groups or types of offenders is uncertain.
  1. Cabinet has recently agreed to two other pieces of work that are highly relevant to any further development of judicial monitoring as it relates to AOD treatment. This other work, related to AOD services and the interface between the criminal justice and mental health systems, is described in further detail below.

Related Work

Alcohol and Drug Services

  1. Appropriate community-based drug and alcohol treatment programmes are required for a judicial monitoring initiative targeted at AOD treatment of offenders to be effective. There are currently not enough AOD treatment programmes to meet the full range of needs [CAB (06) 412 refers]. A lack of programmes to support court referrals is likely to undermine judicial confidence in any judicial monitoring initiative targeted at AOD offenders. It is therefore not workable to extend judicial monitoring to more specifically target AOD offenders when sufficient programmes are not available.
  1. In October 2006, Cabinet agreed to officials undertaking further work on the availability of drug and alcohol services as follows:

a) An investigation of investment in intensive AOD treatment services for offenders in the community, including an increase in further residential service capacity; and

b) Advice on the gap between need and availability of services and feasible options for expanding selected aspects of AOD treatment services for male and female offenders in the community. These aspects are assessment and referral; non-residential AOD services, including case management; and withdrawal management (medical and social) [CAB Min (06) 37/5 refers].

  1. Both pieces of work are the subject of report-backs to relevant Ministers by 30 March 2007. xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx s9(2)(f)(iv) xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

Review of Mental Health and/or AOD Services and the Criminal Justice System

  1. In October 2006, Cabinet also agreed to a review, jointly led by the Ministry of Justice and the Ministry of Health, of the interface between addiction/mental health treatment and criminal justice systems, including implications for Maori and Pacific peoples, women and young people within the criminal justice system [CBC Min (06) 17/13 refers]. The objective of the review is to develop options to improve the way in which the mental health and/or AOD treatment needs of people within the criminal justice system are met, in order to:
  • Enhance the social functioning and mental health of this population;
  • Assist in reducing their rate of addiction and addiction related harm; and
  • Assist in reducing their re-offending.
  1. The review will examine the mental health and/or AOD interventions occurring at all stages of the criminal justice system (from arrest to parole) and in relation to each criminal justice agency. It is proposed that the review give specific consideration to the intersection between the court process and AOD treatment of offenders, with reference to judicial monitoring and other like approaches. This aspect of the review will be informed by a review of relevant literature of international experience and discussion with key informants within the judiciary.
  1. The Ministers of Health, Justice and Corrections will be provided with an update on progress of the review before Christmas 2006. The results of the literature review and key informant discussion will be provided to the Ministers of Health and Justice by 28 February 2006. Officials are to provide a final report on the outcome of the project to Cabinet's Social Development Committee by 30 August 2007. The report will include options to address issues at the interface of mental health and/or AOD treatment and the criminal justice system, including costs.

Relationship with Drug Court Models

  1. The key elements of the judicial supervision process that was initially proposed in July 2006 were:
  • Judicial oversight of the treatment process combined with rewards and sanctions to encourage participation;
  • Expedited processing of referrals;
  • The availability of appropriate treatment programmes; and
  • Monitoring by an inter-disciplinary team of professionals to address the multiple non-treatment needs of dependent offenders, such as housing, employment and family problems [POL (06) 177 refers].
  1. The above proposal has similarities with various drug court models that are operating in the United States, Australia and the United Kingdom. Drug courts aim to encourage drug-dependent offenders to address their drug dependence and reduce further offending. Overseas experience with drug courts has found they have potential to reduce re-offending, particularly for higher risk participants with prior records of offending. Drug courts can also provide a bridge between the justice and wider health and social services by mobilising and bringing together agencies to address the multiple needs of drug abusers.
  1. New Zealand has experience with a drug court model through the Youth Drug Court (YDC) that has been operating in Christchurch Youth Court as a pilot since March 2002. A process evaluation found the pilot was successful in facilitating more efficient identification of young people with drug and alcohol problems, ensuring greater timeliness of certain processes compared to the Youth Court, improving inter-agency consultation, and providing intense monitoring of the young people concerned.[1]
  1. A second evaluation of the pilot followed up the 30 young people who entered the YDC in the first year of operation.[2] The sample size (30 young people) limits the statistical validity of the evaluation results. Nevertheless, this evaluation found high levels of offending among participants both during and after their involvement in the YDC. Re-offending levels were of a very similar level to those young people dealt with under normal Youth Court processes.
  1. The Minister for Courts and I have recently decided not to proceed with a proposal to establish an Auckland Youth Drug Court. Instead, we have asked officials to develop alternative options to address the needs of young people that contribute to their offending. Our decision not to proceed with the Auckland YDC was based on the equivocal research results of the Christchurch YDC, which make it difficult to justify the investment which would be required. In addition, officials advised on the difficulties posed in establishing a YDC in Auckland. These difficulties include problems accessing treatment services and other youth justice priorities, both of which have parallels in the adult criminal justice system.

Conclusion

  1. Judicial monitoring contains elements of a drug court, without requiring the investment of resources that would be required to implement a full drug court model. For example, the original sentencing judge will undertake the judicial monitoring process for a particular offender wherever possible. As the process is not specifically linked to AOD treatment, it does not require the investment in AOD programmes that would be needed before a drug court could be established. In addition, as the process is paper-based in the first instance and does not require additional court hearings in all cases, it does not have the resource implications for the court process of a full drug court model. However, it should be noted that the availability of the proposed judicial monitoring process is limited to those offenders sentenced to the new sentences of home detention and community detention.
  1. The AOD treatment needs of offenders is an important issue that the criminal justice system must address. As noted above, there is a high incidence of alcohol and drug use and dependence among offenders as compared to the general population. Through the Effective Interventions project, work is now underway as outlined above to improve the response of the criminal justice system to these offenders. I am confident that work will go a significant way towards recognising and addressing the needs of AOD offenders.
  1. Work arising from recent Cabinet decisions on the availability of alcohol and drug services and the review of mental health and/or AOD treatment and the criminal justice system will provide information that can usefully inform any expansion of judicial monitoring. In particular, the review will provide a greater understanding of potential problems arising from offenders' interaction with mental health and/or AOD services and their experience of the criminal justice and health systems. I recommend that that any expansion of judicial monitoring as it relates to AOD treatment be considered further as part of the review, rather than making decisions now about an expansion that may be premature.

Consultation

  1. The Department of Corrections, Ministry of Health, New Zealand Police, Te Puni Kokiri, Ministry of Pacific Island Affairs, Ministry of Women's Affairs, Department of Prime Minister and Cabinet, The Treasury, and the Law Commission have been consulted on this paper.

Financial implications

  1. As part of its final decisions on the reform of community-based sentences, Cabinet provided additional funding in Vote Courts to make the necessary IT changes to implement the new community-based sentences and judicial monitoring. Officials were also directed to confirm the non-IT related costs of judicial monitoring for Vote Courts in this paper [POL Min (06) 21/6 refers].
  1. It is not possible to estimate with any accuracy the impact of judicial monitoring on Vote Courts. The impact will be determined largely by judicial behaviour and there is not yet sufficient information about the likely uptake of the process across the judiciary. Therefore, there is no basis for determining any additional costs for judicial monitoring other than those already agreed. Any additional impact on Vote Courts of judicial monitoring will be monitored as the process is implemented. If necessary, the Ministry of Justice will report to the Minister for Courts on any related operational impacts and resourcing pressures.

Human rights

  1. There are no human rights implications as a result of this paper.

Legislative implications

  1. There are no legislative implications as a result of this paper. Cabinet has previously agreed to make the necessary amendments to the Sentencing Act 2002 to implement judicial monitoring [POL Min (06) 21/6 refers]. The amendments will be made via the Criminal Justice Reform Bill, which will make those legislative amendments required as part of the Effective Interventions project.

Implications for Maori and Pacific Peoples

  1. Maori feature strongly in statistics of offenders who are affected by AOD at the time of their offending, and represent 55% of those prisoners currently identified as having alcohol and drug problems that directly link to their offending. All AOD services are expected to be culturally appropriate and meet the needs of Maori service users. It has previously been proposed that the development of any further residential AOD initiatives would include at least one initiative that focuses specifically on the needs of Maori offenders [POL (06) 177 refers]. The systematic review of the mental health/addiction and criminal justice system interface will specifically address the needs of Maori and Pacific peoples.

Gender implications

  1. The 1999 National Study of Psychiatric Morbidity in New Zealand Prisons showed that 69% of female inmates had a lifetime prevalence of alcohol abuse and dependence (compared to 74.7% of male prisoners), 43.3% of female prisoners had a lifetime prevalence of cannabis abuse and dependence, and 46.2% of female prisoners had lifetime abuse and prevalence upon agents other than alcohol or cannabis.  The needs of female offenders will be specifically considered in the work to be undertaken on extensions to AOD services and the systematic review of the mental health/addiction and criminal justice system interface.

Recommendations

  1. The Minister of Justice recommends that the Committee:
  1. note that Cabinet has agreed to a proposed judicial monitoring process (previously called "judicial supervision") that will be available as a special condition of the new sentences of intensive supervision and home detention [CAB Min (06) 27/3A and POL Min (06) 21/6 refers]
  1. note that judicial monitoring includes but is not restricted to offenders receiving AOD treatment
  1. note that the legislative provisions to implement judicial monitoring are included in the Criminal Justice Reform Bill and have an anticipated commencement date of 1 October 2007
  1. note that two other pieces of work that are highly relevant to any further development of judicial monitoring have recently been the subject of Cabinet decision as follows:

4.1 The Ministry of Health/Department of Corrections are to further investigate and consider residential and non-residential alcohol and drug services for offenders, with report backs to relevant Ministers due by the end of March 2007 [CAB Min (06) 37/5 refers]

4.2 The Ministry of Health/Ministry of Justice are to review the interface between mental health and/or AOD services and the criminal justice system with a report to SDC due by the end of August 2007 [CBC Min (06) 17/13 refers]

  1. agree that any expansion of judicial monitoring as it relates to AOD treatment be considered further as part of the review referred to in recommendation 4.2 above.

Hon Mark Burton
Minister of Justice

Footnotes

1 Dr Sue Carswell, Process Evaluation of the Christchurch Youth Drug Court Pilot, Ministry of Justice (2004).

2 Wendy Searle and Philip Spier, Christchurch Youth Drug Court Pilot: One year follow-up study, Ministry of Justice (2006).