EMCDDA PAPERS Alternatives to punishment for drug-using offenders

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1 ISSN EMCDDA PAPERS Alteratives to puishmet for drug-usig offeders Cotets: Itroductio (p. 2) I Cotext ad defiitios (p. 3) I Overview (p. 6) I Coverage, implemetatio ad commo issues (p. 10) I Evaluatio (p. 14) I Coclusios (p. 16) I Refereces (p. 19) Abstract: Based o the optios provided by the iteratioal drug cotrol legal framework, this paper cosiders the rehabilitative measures of treatig, educatig or reitegratig drug users as alteratives or additios to covictio or puishmet that are established i the laws of may coutries i Europe today. Distiguishig them from alteratives to priso, it outlies the variety of rehabilitative measures i use ad sets out the mai issues i their desig, implemetatio ad evaluatio. The paper fids that alteratives to puishmet are available across Europe to varyig degrees ad with icoclusive evaluatios suggestig positive results. The success of these measures depeds partly o the degree to which they are accurately targeted to specific objectives ad specific users. The policy argumets i favour of them seem to have developed alog two lies: reducig harms to the idividual ad society by problem drug users, ad addressig structural burdes o the justice system by o-problem users. Yet the paper fids that this distictio, or prioritisatio, is ot always clear i the desig or implemetatio of the differet measures, which ca i tur affect the few evaluatios carried out. Compromises betwee the two differet aims of the laws (to treat or to puish these offeders) ca also have uiteded effects o the outcomes. Clarity o these issues should assist developmet ad implemetatio of more successful measures i the future. Keywords drug law offeces decrimialisatio depealisatio alteratives to puishmet alteratives to priso Recommeded citatio: Europea Moitorig Cetre for Drugs ad Drug Addictio (2015), Alteratives to puishmet for drug-usig offeders, EMCDDA Papers, Publicatios Office of the Europea Uio, Luxembourg. 1 / 22

2 I Itroductio I recet years, Europe s policymakers have come uder icreasig pressure to fid effective ad appropriate resposes to maage people who come ito cotact with the crimial justice system for drug law offeces. The umbers reflect the importace of this challege, with over oe millio use-related drug law offeces reported i Europea coutries i 2013 (EMCDDA, 2015). I this cotext, the debate o providig alteratives to puishmet ad priso has retured to the top of the policy ageda. The EU Drugs Strategy ( ) states that I order to prevet crime, avoid recidivism ad ehace the efficiecy ad effectiveess of the crimial justice system while esurig proportioality, the EU shall ecourage, where appropriate, the use, moitorig ad effective implemetatio of drug policies ad programmes icludig arrest referral ad appropriate alteratives to coercive sactios (such as educatio, treatmet, rehabilitatio, aftercare ad social reitegratio) for drugusig offeders (Coucil of the Europea Uio, 2012). It is thus a area that warrats further ivestigatio, ad where there has bee a sigificat accumulatio of ew ad diverse experiece ad evidece at the atioal level. This paper takes a first step at both defiig the cocepts ivolved, ad i settig out the broad rage of measures utilised. The use ad supply of illicit drugs is a global issue, which is govered by a iteratioal drug cotrol system that has developed over may years. This icludes a rage of iteratioal covetios, to which most coutries are sigatories. These seek to restrict access to psychoactive substaces that are cosidered likely to be misused ad result i sigificat harms to users ad society, while still permittig their use for medical ad scietific purposes. This iteratioal legal framework asks for uauthorised drug possessio to be pealised, accordig to the seriousess of the offece, with priso or other crimial pealties (Uited Natios, 1961, 1971, 1988). This was origially iteded to deter or puish those ivolved i the supply chai, but i recet decades has bee visibly ad vigorously applied to deter ad puish drug users also. Yet that same iteratioal framework has for 40 years also made it clear that users of drugs may be give, as a alterative to covictio or puishmet or i additio, measures such as treatmet, educatio, aftercare, rehabilitatio ad social reitegratio, i.e. rehabilitative rather tha deterret or retributive resposes (Uited Natios, 1961, as ameded, Article 36(1)(b)). These alteratives have received more attetio i the last 20 years as the evidece builds to questio the effectiveess of the deterrece model, ad users, particularly problem drug users, are viewed more as sick tha as deviat. These alteratives or additios to puishmet or coercive sactios may be implemeted to solve a variety of problems at differet levels. The first is at the level of the idividual to deliver a proportioate respose to a offece, to treat addictio ad reduce the stigma attached to it. The secod is at the level of society to reduce drug-related crime such as acquisitive crime, as treatmet has bee show to be effective at reducig such crime (Holloway et al., 2008), or to reduce disease trasmissio ad other public health ad societal harms. Ad the third is at the level of state structure to reduce the pressure o the crimial justice system ad the resources used by courts ad prisos. The objectives of the policy ca therefore be maifold. The targets of the policy the drug users may also have varied profiles but, for ease of readig, this report will cosider there to be two broad groups of users. The first group is problem or high-risk drug users. The EMCDDA defies high-risk drug use as recurret drug use that is causig actual harms (egative cosequeces) to the perso (icludig depedece, but also other health, psychological or social problems) or is placig the perso at a high probability/risk of sufferig such harms (EMCDDA, 2013). Across Europe geerally, problem drug users represet a small share of the total umber of drug users, but their use patters ad behaviours are the cause of sigificat social harms, such as drug-related crime ad disease. The mai problems are at the idividual ad societal level ad the ivolvemet of this group of users with the crimial justice system may ofte be a result of acquisitive offedig ad disorder, rather tha drug offeces. By cotrast, while there are far more of the secod group, i.e. o-problem drug users, their patters of use are geerally associated with lower levels of harm. Large umbers of drug law offeders are registered for caabis offeces ad may make up the majority of drug users eterig the justice system; i some coutries, these umbers cause problems at the structural level. Iterest has grow i the use of alteratives or additios to puishmet for drug users, as cocers about the costeffectiveess of more puitive approaches have icreased. I the curret cotext of fiacial austerity, reducig levels of crimial justice expediture ad achievig value for moey will be icreasigly importat. However, although there have bee a umber of high-profile descriptios of certai alterative approaches for dealig with drug-usig offeders for example drug courts ad the Portuguese model a more geeral overview of the wide variety of alteratives that have bee used withi Europe has bee lackig. This report aims to provide such a overview of the alteratives, their target groups, ad what is kow about their effectiveess to assist those policymakers cosiderig such approaches to choose a more appropriate respose to their specific issue. It may also assist those practitioers i the justice ad health fields who are ivolved i desigig, implemetig ad evaluatig these systems i the differet coutries, ad help to clarify their role ad the roles of their couterparts i these multidiscipliary measures. This paper primarily draws o the 2 / 22

3 mai EMCDDA data collectios i this area carried out sice 2006 (see the box o methods), but does ot costitute a exhaustive review of the literature. The report begis with a brief review of the history of the topic ad clarifies the defiitio of alteratives to puishmet discretely from the commo term alteratives to priso. It the illustrates some of the various legal mechaisms associated with the rage of approaches used i Europe today, with a brief commet o drug courts i the Uited States, ad discusses the extet of their use, where kow. Next, the report looks at whether these measures might be cosidered successful or ot. Fially, the report provides a framework for cosiderig the various differet measures ad the type of drug users at whom each measure should be aimed, with guidace to assist more robust evaluatios i the future. The report does ot go ito details of the desig of successful treatmet programmes, iformatio o which ca be foud olie i the EMCDDA Best practice portal. The term alteratives to puishmet is used throughout the report as shorthad to describe the wide rage of measures with a rehabilitative or prevetative focus that are used istead of or alogside more traditioal crimial justice measures for drug-usig offeders. The extet to which they replace such measures, or are simply additioal to them, will vary from place to place ad over time, ad is ofte difficult to idetify i practice. I Cotext ad defiitios I History ad shiftig focus A summary of historical developmets i the cocept of alteratives to puishmet i drug cotrol policy ca cotextualise some of the curret issues i this area. Early iteratioal covetios focused more o cotrollig the trade i drugs tha o the drug users. For example, the Iteratioal Opium Covetio of 1912 established a system of iteratioal cotrol of trade, with puishmets for ocompliace, ad coutries were simply asked to examie the possibility of eactig laws or regulatios makig it a peal offece to be i illegal possessio of opium products (Article 20). The first sigificat covetio to show cocer for protectig or improvig the health of drug users was the Uited Natios Sigle Covetio o Narcotic Drugs of 1961, which established the moder iteratioal legal framework for drug cotrol. It opes with the Parties declarig themselves to be Cocered with the health ad welfare of makid, ad Article 38 clearly istructed Parties to give special attetio to the provisio of facilities for the medical treatmet, care ad rehabilitatio of drug addicts. Nevertheless, Article 36 (1), much as its predecessors did, requested that drug possessio ad distributio be a puishable offece, with serious offeces liable to adequate puishmet such as Methods This paper is based o reports made to the EMCDDA by the Reitox etwork of atioal focal poits ad iformatio submitted by the legal correspodets etwork, supplemeted by other iformatio where available. Sources iclude: aual Reitox reports, with a particular focus o those for ; the special chapter of those reports o setecig statistics i 2008; structured questioaires o alteratives to priso completed by atioal focal poits i 2006 ad 2010; ad the ELDD Topic overview o treatmet alteratives to priso. The study also draws o other sources, such as the Europea Commissio s research project o quasicompulsory treatmet ( ), ad from the Coucil of Europe Pompidou Group s Crimial Justice Forum, which focused o quasi-coerced treatmet ( ), as well as other published sources. The measures discussed i these sources may iclude treatmet alogside puishmet ad alteratives to priso, reflectig the uclear boudaries of the topic. While this study has the advatage of drawig o iformatio that may ot be readily available i the academic literature, particularly cocerig the types of itervetios available, it is ot a systematic review, ad may have gaps. It is also importat to ote that a particular challege i this area is that the icreasig iterest i the potetial of such alteratives to puishmet meas the situatio i may coutries is chagig quite rapidly, so some of the iformatio reported may o loger be accurate. 3 / 22

4 imprisomet. This focus o deterrece ad puishmet was stregtheed by the UN Covetio agaist Illicit Traffic 1988, which (with safeguard clauses) specifically asks Parties to establish possessio for persoal use as a crimial offece. I 2009, the UNODC reported that Drug possessio ad sale are illegal i most coutries of the world, ad, as a result, the drug problem was log see as primarily a crimial justice issue (UNODC, 2009). By compariso, little attetio has bee paid to the Article 36.1(b), iserted by the 1972 protocol to the 1961 covetio (ad echoed i the 1971 UN Covetio o Psychotropic Substaces), which states that whe abusers of drugs have committed such offeces, the Parties may provide either as a alterative to covictio or puishmet or i additio that such abusers shall udergo measures of treatmet, educatio, after-care, rehabilitatio ad social reitegratio. It is oteworthy that this uses the word abusers, as distict from addicts i Article 38, above. Moreover, while much focus has bee o the 1988 covetio s requiremet to establish persoal possessio as a crimial offece, it simultaeously wideed the scope of applicatio of rehabilitative alteratives or additios to covictio or puishmet (i Article 3.4 (b d)). This permitted the same measures of treatmet, educatio, aftercare, rehabilitatio ad social reitegratio to be a optio for drug offeders i geeral, whether drug abusers or ot, icludig for those who have committed mior supply offeces. It also recogises that these eed ot be exclusively delivered by courts, suggestig bridges betwee the crimial justice system ad the treatmet system might also be evisaged at other stages of the crimial process, icludig the prosecutio stage (Uited Natios, 1998a, para ). However, betwee 1988 ad 1992, the policy discussio o alteratives to covictio or puishmet, which were rehabilitative resposes, largely metamorphosed ito oe o alteratives to priso, at least i Europe, where the latter term was still used i the EU Drugs Actio Pla ( 1 ). Both ( 1 ) The Report o atioal programmes for drug demad reductio i the Europea Commuity of 8 November 1990 summarised legal resposes to users as therapeutic ad a alterative to priso, eve while the aexed summaries of atioal reports oly referred to alteratives to puishmet. The first Europea Pla to Combat Drugs, of 10 December 1990, referred i sectio III, A, 2 (D) to the eed to promote the treatmet ad rehabilitatio of drug addicts servig seteces for crimial offeces by meas of medical ad social support i priso or i alterative systems to detetio where they exist, though its Aex 1 did refer to applyig measures alterative to puishmet as recommeded by the 1988 covetio. The subsequet Resolutio of the Coucil ad the Miisters for Health, meetig withi the Coucil of 11 November 1991 o the treatmet ad rehabilitatio of drug addicts servig seteces for crimial offeces requested a systematic ivetory of alteratives to priso but did ot metio alteratives to puishmet. The secod Europea Pla to Combat Drugs, i 1992, oly commeted that Most Member States have implemeted measures to support drug misusers i priso, ad the offerig of i-patiet addictio cliic treatmet as a alterative to imprisomet. There was o metio i the Europea Actio Pla , but followig a coferece o drug policy i 1995, the EMCDDA lauched a study o alteratives to priso for persos covicted of drug offeces i Alteratives to priso have the featured regularly i the treatmet sectios of EU actio plas terms appear to have bee used iterchageably i importat policy documets. The 1998 UN Declaratio o the Guidig Priciples of Drug Demad Reductio remided coutries to cosider alteratives to puishmet (Uited Natios, 1998b). I 2004, whe discussig how to respod to drug users coerced ito traffickig, the INCB supported treatmet as a alterative to priso (Uited Natios, 2005, para. 27), highlightig specific cocers about the potetial damagig impact of time i priso o youg offeders. Nevertheless, i its focus o proportioality i its 2007 report, it emphasised that the measures listed i the covetios could be applied as complete alteratives to covictio ad puishmet i mior persoal possessio cases (Uited Natios, 2008, para. 18). I March 2012, the represetatives at the Commissio o Narcotic Drugs (CND) draftig Resolutio 55/12, whose preamble recalled that the covetios provide for alteratives to covictio or puishmet, wet o to agree the mai text which discussed alteratives to prosecutio or priso, icludig commuity service ad electroic taggig (Commissio o Narcotic Drugs, 2012). I Europe, the EU Actio Plas o Drugs (Actio 3.4.2), (Objective 13) ad (Objective 7 ad Actio 16) all focused o the developmet ad use of alteratives to imprisomet as compoets of treatmet objectives, while i the Americas, a 2013 proposal from the govermet of Colombia to the Iter-America Drug Abuse Cotrol Commissio (CICAD) led to the draftig of a Techical report o alteratives to icarceratio for drug-related offeces (Iter-America Drug Abuse Cotrol Commissio, 2015). The latest EU Actio Pla o Drugs (Actio 21) better reflects the origial wordig of the covetios, ecouragig provisio of alteratives to coercive sactios (such as educatio, treatmet, rehabilitatio, aftercare ad social reitegratio) for drug-usig offeders. At the most recet sessio of the Commissio o Narcotic Drugs (2015), a draft resolutio proposed by the Uited States referred to alteratives to icarceratio but the text was fially agreed with the emphasis o alteratives to covictio or puishmet. I What is a alterative to puishmet? While alteratives to covictio or puishmet emphasises the aim of the policy respose, alteratives to priso emphasises the settig. Despite the two terms appearig to be used almost iterchageably, they are quite distict. The term puishmet has bee defied for the purposes of this paper as the itetioal iflictio of pai or of somethig upleasat (by a authority, for breakig rules) (Peters, 1966) a measure with a retributive aim. Imprisomet has retributio as a key purpose but there are may lesser pealties, such as fies, electroic taggig, or commuity 4 / 22

5 service that are also puitive. The Hadbook of basic priciples ad promisig practices o alteratives to imprisomet (UNODC, 2007) observes that the caseload of the crimial justice system may be reduced by policies of alteratives to covictio (decrimialisatio) ad alteratives to puishmet (diversio). A coutry may establish alteratives to covictio through a process of decrimialisatio, but decrimialisatio is uderstood as maitaiig the puishmet though outside the crimial law. The Uited Natios Stadard Miimum Rules for Nocustodial Measures (the Tokyo Rules) establish what such puishmets (sactios) may be: verbal sactios, such as admoitio, reprimad ad warig; coditioal discharge; status pealties; ecoomic sactios ad moetary pealties, such as fies ad day-fies; suspeded or deferred setece; ad commuity service order (Uited Natios, 1990). While these pealties may be give as alteratives to covictio or priso ad are frequetly give to drug law offeders i Europe (EMCDDA, 2009) this report cosiders them as coceptually distict from measures such as educatio, rehabilitatio or social reitegratio as well as treatmet ad aftercare, ad for this reaso they will ot be addressed here. Priso ad may of the other puishmets imposed through the crimial justice system may also have a rehabilitative elemet. Focussig o the term alteratives, this paper does ot address measures that take place iside priso or followig early release from priso. However, there remai other measures, difficult to classify, which have compoets of treatmet or rehabilitatio that may or may ot be combied with puitive compoets such as probatio orders, accordig to the judge s istructios i each case. I may of the measures, some puitive elemet, such as the acquisitio of a crimial record, some moitorig of behaviour or a fie, will be retaied, while i some coutries, the setece is the order for treatmet itself. Similarly, i may coutries it is stated that the offeder may receive a warig, ad it is ofte ot kow how much these warigs are iteded as a deterret, remidig the offeder ot to break the law as he or she risks puishmet, or as a early itervetio, remidig the offeder of the dagers of drug use preset or future or ay combiatio of the two. Thus the extet to which the rehabilitative elemet is, strictly speakig, a alterative to puishmet or a additio to it will vary. There is essetially a cotiuum of practice from a mai focus o puishmet, such as icarceratio with or without some provisio of rehabilitative services, to a emphasis o rehabilitatio which may be supported by some degree of coercio. For simplicity we talk of alteratives to puishmet ad focus o that part of the spectrum that gives greater emphasis to rehabilitative measures; this was described by UNODC (2010) as a health-orieted approach i cotrast to a sactio-orieted approach. Alteratives to puishmet are most commoly uderstood to be programmes of treatmet targeted at problem drug users who eter the crimial justice system, usig the threat of (more severe) crimial sactio if the treatmet is ot udertake to the satisfactio of the authorities; a Europea Commissio-fuded project called this quasi-compulsory treatmet (Schaub et al., 2010). Such treatmet programmes have had a cosistetly high political profile i Europe durig the last decade, uder the EU actio plas described previously ad as a special focus of the Crimial Justice Forum of the Coucil of Europe s Pompidou Group from 2007 to 2010 (where the approach was called quasi-coerced treatmet ). Measures of aftercare, rehabilitatio ad social reitegratio would also be targeted at problem drug users, but there seems to be cosiderably less iformatio o these. The EMCDDA recetly published a detailed review of social reitegratio programmes, defied as ay social itervetio with the aim of itegratig former or curret problem drug users ito the commuity ad cosistig primarily of housig, educatio ad employmet (EMCDDA, 2012). Yet drug-usig offeders also icludes those who are ot depedet or problem drug users, ad these are usually the most umerous. I various coutries i Europe, this group of offeders has bee addressed through de facto or de jure decrimialisatio (puishmet without crimial covictio) or depealisatio (closure of mior cases) (EMCDDA, 2011a). Nevertheless, i some coutries, there are some systems implemeted where such offeders are give forms of educatio, ad these are icluded i this report. Therefore, this paper addresses rehabilitative measures applied by the crimial justice systems i Europe that are usually orieted towards treatmet or post-treatmet itervetios for problem drug users, or towards educatio for o-problem users. This is a artificial divisio of a cotiuum of drug-use behaviours, used here for ease of descriptio, ad it will be apparet at some poits that certai resposes do ot easily fit uder either headig. Similarly, whe reportig o the differet laws ad papers, there are icosistecies i vocabulary, such as drug user, abuser, problem user ad addict, ad the balace betwee harmoisatio for ease of readig ad accurate reportig of the origial is a challege. Geerally, the paper tries to categorise the rehabilitative optios i a flexible way proportioate to the level of problems measured i each user. The various treatmet alteratives to puishmet that are specified i the atioal laws of the differet Member States may be foud olie i the EMCDDA Legal database o drugs (ELDD). The measure may be give at ay stage i the crimial justice system, whether by the court, the prosecutio, or the police. The term crimial justice system is used for simplicity, but refers also to o-crimial (civil, admiistrative) systems for sactioig mior drug use or possessio that are used i 5 / 22

6 Termiology Discussios o the topic of alteratives to puishmet may use the followig terms, ad it is importat that they are used cosistetly. EMCDDA preferred usage, as adhered to i this report, is as follows: Decrimialisatio a alterative to covictio that is usually a puishmet. Depealisatio closure of mior crimial cases without puishmet. Alteratives to priso measures that take place outside priso, which may be retributive or rehabilitative. Alteratives to puishmet measures that are rehabilitative, such as treatmet, educatio, aftercare, rehabilitatio ad social reitegratio. some coutries. Alteratives or additios to puishmet are usually give as a optio for the judicial authorities, but they may also be obligatory; for example, i Portugal, for a first offece it is obligatory to susped proceedigs. This paper addresses alteratives for adults oly, as very few Europea coutries choose to puish miors for drug userelated offeces (EMCDDA, 2003). I Overview I Legal mechaisms i Europe today This sectio presets a brief overview of the alteratives or additios to puishmet available i Europe today, examiig the rage ad diversity of the various factors such as eligibility criteria, the types of offeder ivolved, the aim ad type of measure available (e.g. treatmet, educatio) ad settig, ad the stages of the crimial justice system at which they may be ivoked. Rehabilitative mechaisms used for problem drug users are discussed first, before movig o to those desiged for other users. I Rehabilitative optios for problem drug users Alteratives or additios to puishmet for problem drug users may be applied to idividuals beig dealt with for drug offeces or i respose to other types of offeces that may be associated with drug use, such as acquisitive offeces committed to obtai moey for drugs, or offeces committed uder the ifluece of drugs. The mai focus of these itervetios is to ecourage egagemet i treatmet. Here we cosider the mai alteratives that are utilised at the differet stages of the justice process from arrest to setecig. Measures available to police Arrest referral is a partership iitiative betwee police ad local drug services that uses the poit of arrest withi custody suites at police statios as a opportuity for a idepedet drugs worker to assess drug users ad refer them to drug treatmet services if appropriate (Huter, 2005). It has bee established i the Uited Kigdom (Eglad ad Wales) at a atioal level sice 2002, where it is ot a alterative to prosecutio or due process but a techique for egagig with users. A report o the UK system observed that arrest referral could be delivered usig three models, based o iformatio (providig leaflets), proactivity (ivolvig specialist workers i the police statios), ad coercio (cautioig a arrestee to seek advice from a drugs worker) (Sodhi et al., 2002). I the Uited Kigdom, arrest referral was later icorporated ito the Drug itervetios programme, which ivolved crimial justice ad drug treatmet providers workig together with other services to provide a tailored solutio for adults particularly those who misuse Class A drugs who commit crime to fud their drug misuse. Its pricipal focus was to reduce drug-related crime by egagig with problematic drug users ad movig them ito appropriate treatmet ad support (Home Office, 2011). The Drug itervetios programme was itroduced i high crime areas ad ivolved combiig arrest referral with drug testig o charge ad sice 2005, drug testig o arrest. Uder the programme, offeders over 18 i police custody could be tested for heroi or cocaie/crack if they were arrested for a trigger offece (offeces such as burglary ad theft that have bee show to be associated with problem drug use) or for a offece where a police officer of ispector rak or above suspects that use of drugs was a causal or cotributory factor. There is a sactio for failure to be tested or to atted assessmets. While atioal fudig for the Drug itervetios programme has bee discotiued sice April 2013, may police force areas still operate a drug itervetio iitiative followig drug testig o arrest. Most areas also cotiue to fud crimial justice itervetio teams to proactively egage drug-misusig offeders followig arrest (icludig areas without drug-testig iitiatives). I Irelad, arrest referral for juveiles was piloted i Dubli i A ew scheme was piloted for adults i Arrest referral was also piloted i Malta i 2005, though this had a low take-up. The scheme has recetly bee redrafted as 6 / 22

7 Arrest referral scheme ad extra-judicial body for the processig of first time offeders for drug offeces possessio for persoal use. As this is for first offeders with o previous covictios, it will be discussed i the sectio below for o-problem users. Police i Portugal refer drug users, problematic or ot, to the atioal etwork of commissios for the dissuasio of drug abuse (see Miistry of Health i charge: the Portuguese model ). Measures available to prosecutors Suspesio of proceedigs by the prosecutor may occur prior to a decisio to deliver a puishmet or to pass the case to the court for trial. I some coutries, the mechaisms of suspedig proceedigs agaist problem drug users ca be applied oly for offeces of use or possessio of drugs for persoal use. This is the case i Frace (Public Health Code, Article L3423-1), Luxembourg (Law of 19 February 1973, Article 23), ad Romaia (Law 143/2000, Article 19). This would probably also describe the o-crimial procedures i Italy, where someoe committig the admiistrative offece of drug use will be iterviewed by the drug addictio operatig uit of the local prefecture ad may be set to treatmet, ad i Spai, where the admiistrative sactio for drug use ca be suspeded if the offeder applies to a treatmet service as agreed (Ley Orgaica 1/92, Article 25). By cotrast, other coutries offer alteratives to problem drug users eve if they have committed other offeces that might be coected with drug use. They are established i the mai drug cotrol laws i Belgium (AR 1930, Article 26), Greece (Law 3459/2006, Article 31) ad Austria (SMG, s. 35). They are established i more geeral crimial laws i Latvia (Crimial Code, Article 58.1) ad the Netherlads (Code of Crimial Procedure, Article 80). There is a variatio of this approach i Polad, where the iitiative to seek treatmet is with the offeder, rather tha by istructio of the prosecutor. Article 72 of the mai drug cotrol law i Polad gives prosecutors the right to susped proceedigs agaist a problem drug user for ay offece puishable by up to five years i priso, if the offeder eters a relevat treatmet or prevetio programme i a healthcare cetre. Measures available to courts Suspesio of proceedigs by the court before passig judgemet (ad, usually, covictio) is a mechaism available i may Europea coutries. Normally with the coset of the offeder, the court may require attedace at treatmet (Belgium, Czech Republic, Demark, Frace, Luxembourg, Austria), or the offeder may opt for treatmet (Hugary, Polad). I the Czech Republic, this is accordig to a sectio of the Code of Crimial Procedure (s ) for ay offece puishable by up to five years imprisomet. I Demark, it is by a sectio of the Crimial Code (ss ), ad there is o limit to eligibility i terms of offeces. The mechaisms i Belgium, Frace, Luxembourg ad Austria (ss. 35 ad 37 SMG) have bee outlied above ad are applicable to the court as well as the prosecutor. I Hugary, sectio 180 of the Crimial Code, amog those defiig drug offeces, states that o puishmet shall be applied for drug addicts possessig a small quatity for persoal use, provided the offeder ca produce before setecig a documet certifyig participatio i treatmet or a prevetativecosultig service. A comparable mechaism, described above for prosecutors, is also available to the court i Polad uder Article 73 of the mai drug cotrol law. Suspesio of puitive seteces by court is possible oly after the covictio has bee declared; a puishmet may be declared but the it will ot be carried out provided the offeder successfully udergoes a rehabilitative course. This optio is available i the Czech Republic, Estoia, Spai, Frace, Germay, Latvia, Luxembourg, the Netherlads, Austria, Slovakia ad i some coutries drug courts (see Drug courts i Europe ). A geeral article of the Peal Code provides coditioal waiver of puishmet for less serious offeces if the offeder cosets to certai coditios icludig addictio treatmet, psychological cousellig or abstetio from drug or alcohol use i the Czech Republic (s. 48), ad abstetio from drugs i the Netherlads (Article 14). I Estoia, the Peal Code allows substitutio of a priso setece of six moths to two years by treatmet if the origial offece was caused by addictio (s. 692), while i Latvia, the Peal Code offers suspesio of setece (s. 55) ad release from setece (s. 59). I Spai, a Peitetiary Regulatio of 1996 allows for volutary treatmet i istitutios outside prisos (Article 182), which i practice ofte results i the offeder agreeig to be set to a therapeutic commuity, with freedom restricted accordigly. I Germay, the mai drug cotrol law (BtMG s. 35) allows the judge to defer executio of a setece of up to two years imprisomet for addicts who udergo addictio treatmet. I Luxembourg, agai uder the mai drug law, the court may order treatmet or rehabilitatio as a protective measure ad susped the puitive setece. I Austria, uder s. 39 of the mai drug law, it is madatory (sice 2008) for the court to susped executio of the setece for a addict who has bee give a setece of up to three years imprisomet for mior supply offeces, if the offeder is addicted ad the treatmet appears to have a chace of success. I Slovakia, protective treatmet ca be imposed by a court i a case of coditioal suspesio of setece of imprisomet with a probatio supervisio, followig s. 51 of the Crimial Code. 7 / 22

8 Specialised drug courts may be used as a mechaism for admiisterig this sort of approach (see Drug courts i Europe ). Setecig to rehabilitative measures is possible followig court covictio i Frace, Croatia, Swede, the Uited Kigdom ad Norway. I Frace, the mechaism described above for the prosecutor i the Public Health Code, Article L , is also available as a setece, ad i the Uited Kigdom the court may setece a depedet offeder, or oe with a propesity to misuse drugs, to a drug rehabilitatio requiremet (usually additioal to a commuity order). I Croatia, uder the Law o Combatig Drugs Abuse (Article 10), a offeder who is addicted to drugs or is a experimetal drug user will be give a measure of obligatory treatmet i a medical or social care istitutio, lastig from three moths up to oe year, while the Crimial Code urges the court to use treatmet measures for appropriate cases whe a priso setece of up to six moths is prescribed. I Swede ad Norway, offeders may be seteced to probatio accordig to the Peal Code, ad some requiremets of the probatio order may be to atted a drug treatmet course. Treatmet without coset is ofte a judicial optio for offeces committed uder itoxicatio, ad may be used to impose protective measures, protectig either the idividual or the geeral populatio. These mechaisms are available i may coutries i Europe (Bulgaria, Czech Republic, Demark, Germay, Spai, Croatia, Lithuaia, Netherlads, Slovakia, Swede). They may have a historical perspective, comig from a viewpoit of addictio as a metal illess that would lead to istitutioalisatio; though i Spai for example it is regulated i the Civil Code ad applies to ay perso whose physical coditio could be a risk to the geeral populatio. While outside the priso system ad staffed predomiatly by health professioals with a rehabilitative aim, they will ormally be i closed treatmet structures ad thus subject to applicatio of the right to liberty i the Europea Covetio of Huma Rights. Such systems remai cotroversial; i less developed coutries they may effectively be compulsory detetio systems, with little efficacy i treatig addictio ad scat regard for huma rights (Hall et al., 2012). I at least some of the EU coutries listed above, they seem to be used very rarely: i the Czech Republic, 3 % of drug law offeders i 2010; Lithuaia, five of offeders i 2010; i the Netherlads, the Istitutio for Prolific Offeders has about 400 addicted offeders attedig each moth. The UNODC has clarified that treatmet without coset should be used to treat a acute medical or security Drug courts i Europe A drug court is a specialised court that deals with crimial offeders who have drug addictio ad depedecy problems (USGAO, 2011), a cocept first developed i the Uited States i the late 1980s. Uderlyig the model is the belief that problems associated with drug-related offedig behaviour may require social or therapeutic rather tha legal solutios (Kerr et al., 2011). The courts are distict from ormal courts i that they ted to icorporate multiagecy parterships, with the crimial law judiciary aimig to play more of a health maagemet tha deterret or retributive role, i partership with a team of correctioal, health ad welfare professioals. The courts geerally do ot carry out trials to determie guilt or iocece; may drug courts require the offeder to plead guilty to the drug-related offece before he or she is allowed to eter the drug court programme, so offeders eter at the setecig stage (though the Glasgow Drug Court i Scotlad ca accept cases referred from police custody). The court the supervises the offeder goig through a treatmet programme; give the guilty plea, the court uses the threat of custodial setecig to ecourage participatio i ad completio of the treatmet programme. I Europe, drug courts have bee established as local pilot projects i Dubli, Irelad i 2001; i Glasgow ad Fife, Scotlad i 2001/2; i Leeds ad West Lodo, Eglad i 2005, followed by Barsley, Bristol, Salford i 2009, together with Cardiff, Wales; i Oslo ad Berge, Norway; ad i Ghet, Belgium i Aside from the parterships, shared features of these iclude cotiuity of the judiciary throughout the programme (oe of five judges i Norway), limitatios o the seriousess of the offeder eligible (o-violet i Irelad ad Scotlad), ad the aim to avoid priso. Drug courts i Europe are ot for first-time offeders, but will require the offeder to have some form of serious drug misuse ad related crimial behaviour. As pilots, the courts are limited to offeders residig i a certai catchmet area. I the Norwegia model, for legal reasos, there is less ivolvemet of the court i the programme (the judge is ot part of the team ad there will be o pre-court meetigs), though it is the court that takes the decisios regardig offeder progress or sactioig. All these projects have bee subject to evaluatio, followig which the decisio has bee take to cotiue the pilots. 8 / 22

9 Miistry of Health i charge: the Portuguese model The Portuguese Drug Strategy of 1999 proposed a chage i directio to a approach based o humaism ad pragmatism, removig the threat of crimial puishmet to ecourage the most problematic addicts ito treatmet. This ivolved decrimialisatio of userelated offeces, makig them admiistrative offeces, ad establishig commissios for the dissuasio of drug abuse (CDT) i each of Portugal s 18 districts to deal with the offeders. Distict from drug courts, the CDTs are uder the auspices of the Miistry of Health, ad are multidiscipliary paels composed of a lawyer, a doctor ad a social worker who meet the offeder aroud a table, rather tha a judge i a courtroom. All drug users stopped by the police will be set to a CDT, whether they appear to be experimetal users or depedet oes. No guilty plea is required ad there is o threat of priso; sactioig by fie, the maximum possible puishmet, is a available optio for o-addicts but the istitutioal philosophy meas it is ot the mai objective i this phase. Based o the case assessmet by a small team of practitioers who will have similar professioal backgrouds to the members, the CDT hears the offeder ad rules o the offece, aimig to treat ay addictio ad rehabilitate the perso usig the most appropriate itervetios. The CDT is authorised to susped the proceedigs or the executio of a puitive setece as it cosiders appropriate. emergecy, ad should cease oce the acute emergecy has bee avoided; log-term residetial treatmet without coset is a form of icarceratio (UNODC, 2010). Rehabilitative optios for other (o-problem) I drug users Some coutries have optios for alteratives to puishmet available to o-problem users (though the majority appear to opt for policies of decrimialisatio or depealisatio, either with o-crimial puishmets or simply closig the case as mior). Accordig to the legal frameworks, users without ay diagosis of addictio, who commit mior drugs possessio offeces, may be eligible for diversio to some form of cousellig or rehabilitatio course (Frace, Croatia, Italy, Latvia, Luxembourg, Portugal). These are sometimes cosidered as idicated prevetio measures. As metioed earlier, it is ot kow to what extet a warig by a police officer or prosecutor may be cosidered a deterret or as cousellig. Users i Italy will be iterviewed by the prefecture ad the may be set to a local public drug addictio services uit to complete a rehabilitatio programme. I Croatia, Latvia ad Luxembourg, the mechaisms described above for problematic users also apply to users. I Frace, a drugs awareess course was established as a optio i 2007 to esure that the crimial justice system, most commoly the prosecutor, has a costructive ad proportioate respose to occasioal, o-problem users, whe the previous respose may have bee to simply dismiss mior cases or give a crimial covictio. The offeder has to pay the cost of the course, which is usually aroud EUR 250 euros but caot be more tha EUR 450. This may thus be iterpreted as a combiatio of measures, with both rehabilitative ad puitive effects. Variatios of the Portuguese model (see Miistry of Health i charge; the Portuguese model ) for o-problem users are uder discussio i Scadiavia ad Malta. I Jue 2011, the Stolteberg Commissio i Norway recommeded that persos arrested for mior drug offeces be offered motivatioal iterviews or a more log-term itervetio programme with the aim of rehabilitatio, as a special coditio i a coditioal waiver of prosecutio or covictio, based partly o the Portuguese model. I Malta, the ewlyredrafted arrest referral scheme is to work i partership with a extra-judicial body, cosistig of a chair ad two experts i the field of drug use. First offeders (with o crimial record) arrested for possessio of a small amout of drugs for persoal use are to be offered the optio to atted the extra-judicial body ad follow its directios; while this is doe, the prosecutio is suspeded. I July 2014, a white paper was published o this (Times of Malta, 2014), resultig i the Drug Depedece (Treatmet ot Imprisomet) Bill. Motivatioal iterviewig has also bee implemeted for youg offeders i Filad; a multi-professioal reprimad ivolvig the guardia, a represetative of the social welfare authorities ad the police, i which the offeder s life situatio is examied, is cosidered a more effective sactio tha a fie. I other coutries, prevetio ad educatio resposes primarily desiged for juveiles may also be used for youg adults. I Germay, the programme Early itervetio i first-offece drug cosumers FreD is maily aimed at 14- to 18-year-olds, but idividuals up to age 25 are eligible. Such local prevetio measures are used as a possibility to itervee without startig crimial proceedigs right away. This programme has bee promoted i several Europea coutries uder the title FreD goes Net, with results regularly reported by Cyprus. I Luxembourg, miors ad youg adults who have come ito coflict with the law for drug-related offeces may be referred to a youth solidarity team (Project 9 / 22

10 FIGURE 1 Rehabilitative or educative alteratives at differet stages of the crimial justice process, with coutry examples Offece Police Prosecutio Court Puishmet IMPULS), fiaced by the Miistry of Health; aual statistics show that about 18 % of the referrals each year are aged 18 or over. The team may be cosidered a crisis situatio maager who report progress back to the requestig authority. These mechaisms may be represeted schematically i Figure 1. I summary, outliig the various factors set out i the legal stipulatios ad accompayig guidelies reveals a wide variety of o-puitive measures aroud Europe. I part, these differeces i desig may stem from differeces i the legal ad judicial cotexts ad also i the drug situatios betwee coutries, which may ifluece the legislators objectives. I Coverage, implemetatio ad commo issues I Coverage Arrest referral (e.g. Irelad, Malta, Uited Kigdom) Commissio for dissuasio of drug abuse (Portugal) Suspesio of proceedigs Drugs awareess course (Frace) Motivatioal iterviewig (Norway) Extra-judicial body (Malta) Suspesio of proceedigs Suspesio of puitive setece Setecig to rehabilitative measures Drug court (e.g. Belgium, Irelad, Uited Kigdom, Norway) While the previous sectio showed that may coutries have legal provisio for alteratives or additios to puishmet, the extet to which they are used is uclear. A 2007 progress review of the EU Drugs Actio Pla stated quatitative data o the use ad effectiveess of alteratives to priso are geerally ot available, ad a 2009 report o setecig ad other outcome statistics observed it is strage that referrals to treatmet through the legal system are barely visible i the data provided (EMCDDA, 2009). However, some data sources idicate that the alteratives are beig used: EMCDDA treatmet demad data showed that, across Europe, 20 % of the ew cliets reported to have etered outpatiet treatmet i 2010 (ad 7.5 % of the early ew cliets eterig ipatiet treatmet) were referred from courts, probatio services or police. These umbers will ot always be matched by those i judicially supervised treatmet, as it is kow that some (but usually a ukow proportio) are referred less formally, without ay judicial itetio to moitor the outcome. Thus it appears that, across Europe, a cosiderable umber of offeders are diverted from the crimial justice system, with little moitorig of this approach. I the absece of a comprehesive picture of coverage across Europe, this report will provide istead some illustratios of the extet to which alteratives to puishmet are beig used i some coutries, before describig some of the issues that impact o their implemetatio. I Portugal, i 2012, 82 % of CDT ruligs suspeded the process temporarily, 15 % were puitive ruligs ad 3 % foud the defedat iocet. These primarily ivolved caabis offeces, though cocaie is becomig more visible i the statistics. The umbers of offeces ivolvig heroi were lower tha i previous years. I recet years, aroud % of suspesios are for users cosidered o-addicted, while % are suspeded due to the user agreeig to udergo treatmet. Puitive ruligs are usually o-moetary, orderig the offeder to report periodically to a chose locatio. I Italy, i 2012, offeders were iterviewed by drug addictio operatig uits after committig the admiistrative offece of possessig drugs for persoal use. However, legal chages i 2006 appear to have had sigificat effects o how they are dealt with. Before the chage, the offeder could start a rehabilitatio programme as a alterative to the admiistrative pealty, but uder Law 49/2006 the admiistrative pealty is applied ad completed before ay offer of a rehabilitatio programme, reducig the icetive to take this optio. For this reaso, the umbers optig for rehabilitatio have falle from over per year before the chage to less tha 300 i Also i 2012, proceedigs agaist offeders were closed followig successful completio of prescribed treatmet programmes. I cotrast, a differet law, also itroduced i 2006 (Law 241, the Collective Clemecy Bill), applied to the crimial justice system. This law reduced setecig ad accelerated the possibility of beefitig from alterative measures. The 10 / 22

11 umber who have beefited has steadily icreased sice 2007; i 2012, some drug addicts were put o probatio or released ito the care of social services. I Austria, most prosecutor ad court decisios regardig drug possessio offeces are clearly recorded, allowig for the aalysis of treds i the use of the alteratives to puishmet (see Figure 2). Betwee 2004 ad 2013, there has bee a cosiderable icrease i temporary discotiuatios of peal actio by the public prosecutors i cases ivolvig exclusively persoal use of caabis, halluciogeic mushrooms, or substaces classed as psychotropic, ad where there were o similar reports agaist the offeder i the last five years (SMG Sectio 35 para. 4). There are ow more of these tha other cases of temporary discotiuatio of peal actio uder SMG Sectio 35 (excl. para. 4) sice 2012, possibly iflueced by the rise i caabis-related reports to the police. Overall, i 2013, 86 % of diversio offers were iitiated by the public prosecutors. The same period has also see a geeral rise i suspesio of setece uder the priciple of treatmet istead of puishmet (SMG Sectio 39), which is usually for opioid problems. I the Uited Kigdom, itervetios vary by costituet coutries. The Drug itervetios programme (util 2013) was the mai method of egagig drug-usig offeders with treatmet services i Eglad ad Wales outside the priso system, deliverig tailored combiatios of rehabilitative ad puitive measures; similar local iitiatives still exist but it is ow dow to local areas to take decisios o the approach best suited to meet their local eed. I Eglad, aroud idividuals were helped ito drug treatmet (icludig o-structured treatmet) ad recovery services i 2011/12; treatmet data show adults eterig structured treatmet from arrest referral or through the Drug itervetios programme. I Wales, there were referrals to the Drug itervetios programme. The drug rehabilitatio requiremet withi a commuity order or suspeded setece of imprisomet ivolves treatmet, regular testig ad court reviews of progress, ad is subject to rigorous eforcemet. I 2012, drug rehabilitatio requiremets were commeced, as part of a commuity order ad as part of a suspeded setece order. The umber of drug rehabilitatio requiremet commecemets has falle aroud 20 % from 2009, partly due to police iitiatives which divert offeders at charge ad partly due to a chage i focus from FIGURE 2 Developmet of statutory alteratives to puishmet applied i Austria from 2004 to SMG Sectio 35 (excl. para. 4): temporary discotiuatio of peal actio by the public prosecutors SMG Sectio 35 para. 4: report, for the first time i at least 5 years, relatig to exclusively persoal use of caabis, halluciogeic mushrooms, or psychotropic substaces SMG Sectio 37: temporary dismissal of proceedigs by the court SMG Sectio 39: suspesio of setece NB: Util 2007, SMG (Narcotic Substaces Act) Sectio 35 data refer to temporary waivig of reports by the public prosecutors. The data o Sectios 35 ad 37 were obtaied from the public prosecutors ad the courts. Source: Austria Federal Miistry of Health. 11 / 22