Courts, Jails, and Drug Treatment in a California County

Mary Dana Phillips

No understanding of the contemporary drug scene in the United States can be achieved without focusing in part on the role of the criminal justice system. Large numbers of drug users and addicts are processed through various phases of the system at one time or another (Peterson, 1974; Weissman and DuPont, 1983; Bureau of Justice Statistics, 1983), and there is an important body of research on the extent of drug use among arrestees, felons, and misdemeanants convicted on drug law violations and drug-related criminal activity, on jail and prison inmates with histories of drug use, and on the criminal records of drug treatment clients (Allison and Hubbard, 1985; Flanagan and Jamieson, 1988; Hubbard et al., 1989). So intertwined are the treatment and justice systems that the goals of drug treatment often directly include the elimination or reduction of criminal activity.

It is difficult to say with precision what proportion of all drug users are involved with the criminal justice system. Although the numbers of individuals arrested and prosecuted for illicit drug involvement are widely used as indicators of the prevalence and severity of the drug problem (Gandossy et al., 1980; Gropper, 1984), these numbers are equally a measure of law enforcement priorities and resources (Sloan, 1980; Krivanek, 1988). The direction of the relationship between drugs and crime—which comes first and which causes the other—continues to be contested (Watters et al., 1985; Inciardi, 1987).

The developing interface between the criminal justice system and community and institutional treatment programs poses a number of practical and philosophical questions. By most accounts, drug use constitutes an ever-increasing problem for the community and for law enforcement,

Mary Dana Phillips is a research associate with the Alcohol Research Group, Institute of Epidemiological and Behavioral Medicine, Medical Research Institute of San Francisco, Berkeley, California.



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Treating Drug Problems: Volume 2, Commissioned Papers on Historical, Institutional, and Economic Contexts of Drug Treatment Courts, Jails, and Drug Treatment in a California County Mary Dana Phillips No understanding of the contemporary drug scene in the United States can be achieved without focusing in part on the role of the criminal justice system. Large numbers of drug users and addicts are processed through various phases of the system at one time or another (Peterson, 1974; Weissman and DuPont, 1983; Bureau of Justice Statistics, 1983), and there is an important body of research on the extent of drug use among arrestees, felons, and misdemeanants convicted on drug law violations and drug-related criminal activity, on jail and prison inmates with histories of drug use, and on the criminal records of drug treatment clients (Allison and Hubbard, 1985; Flanagan and Jamieson, 1988; Hubbard et al., 1989). So intertwined are the treatment and justice systems that the goals of drug treatment often directly include the elimination or reduction of criminal activity. It is difficult to say with precision what proportion of all drug users are involved with the criminal justice system. Although the numbers of individuals arrested and prosecuted for illicit drug involvement are widely used as indicators of the prevalence and severity of the drug problem (Gandossy et al., 1980; Gropper, 1984), these numbers are equally a measure of law enforcement priorities and resources (Sloan, 1980; Krivanek, 1988). The direction of the relationship between drugs and crime—which comes first and which causes the other—continues to be contested (Watters et al., 1985; Inciardi, 1987). The developing interface between the criminal justice system and community and institutional treatment programs poses a number of practical and philosophical questions. By most accounts, drug use constitutes an ever-increasing problem for the community and for law enforcement, Mary Dana Phillips is a research associate with the Alcohol Research Group, Institute of Epidemiological and Behavioral Medicine, Medical Research Institute of San Francisco, Berkeley, California.

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Treating Drug Problems: Volume 2, Commissioned Papers on Historical, Institutional, and Economic Contexts of Drug Treatment adjudication, and corrections. This trend has three corollaries in recent history: (1) more offenses are seen to be ''caused'' by drugs; (2) drug and drug-related offenses, as such, are contributing more and more clients to the justice system; and (3) drug treatment is increasingly being sought as an adjunct or alternative to conventional punishment. Whereas public concern over drug-generated offenses has led to a stiffening of sentencing practices and contributed to the crowding of courts and detention facilities, programs that provide treatment and education for addicts and other users are often substituted for regular detention. This paper offers a preliminary look at the overlap and connections between the criminal justice system and publicly supported drug treatment, assessing at the county level the appropriateness of the relationships between the justice system, drug users, and treatment programs. Although the two systems often work in parallel to handle drug-using persons, choosing from a complex set of alternative responses to particular circumstances, the two systems diverge in orientation and mission: one is designed to render judgment and due punishment according to a moral and legal code, the other to provide diagnostic and therapeutic services for a quasi-medical condition using scientific and clinical principles. The result is tension: political, philosophical, ethical, and instrumental. The recent "drug wars" increase the pressure on both systems to provide winning solutions. There is confusion as to how a person and a problem are to be defined; it is unclear how and when the definition (and thus, solution) changes from a criminal to a therapeutic one. There are different standards applied in different jurisdictions and even within jurisdictions at different administrative levels. Mandates to treatment, like many other judicial mandates, are subject to much local discretion and variability, in terms of selection criteria, sanction patterns, procedures, and the balance between the civil liberties of the individual and the prerogatives of the state (Kittrie, 1971; Wexler, 1973; President's Commission on Mental Health, 1978; Weissman and DuPont, 1982; Brown et al., 1987). This paper seeks to provide a level of historical perspective to set the stage for a detailed case study analysis. It discusses the statutes that guide the criminal justice/drug treatment interface, the typical practices of the personnel within the systems, and the larger criminal justice and drug treatment ecologies in which they operate. There is reference to the drug treatment literature, the criminological literature on the emergence of alternatives to incarceration, discussions in both literatures on the specifics of the involvement of the two systems, and federal policy-setting documents, such as the papers from the Second National Commission on Marihuana and Drug Abuse (1973a,b,c), the task panel reports to the President's Commission on Mental Health (1978), and the report from the White House Conference for a Drug Free America (1988).

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Treating Drug Problems: Volume 2, Commissioned Papers on Historical, Institutional, and Economic Contexts of Drug Treatment Data for the case study were taken from in-depth interviews with representatives of the criminal justice and drug treatment systems and various state and county statistical and substantive reports. The case study provides a detailed view of a particular region, its statutes and processes, and the gaps that tend to exist between theory and practice. State and local governments have substantial autonomy with regard to how they apprehend and behave toward drug-involved offenders. In-depth exploration of a county jurisdiction reveals both the strengths and weaknesses of its response to drug users. The overwhelming crowding of the courts and detention facilities, the lack of suitable or effective treatment for inmates, and the underuse of community programs—which stems in part from the need for more and different levels of treatment and other supportive services to augment these programs—have policy implications for the county. THE NEXUS BETWEEN THE DRUG TREATMENT AND CRIMINAL JUSTICE SYSTEMS Treatment provision has widened into a "two-worlds" model: one system is for those who have private insurance or can otherwise afford to pay; the other system is funded with public money and designed to treat citizens who cannot pay to receive services. Because publicly funded drug treatment capabilities currently fall short of the demand for services, citizens who cannot pay for their own treatment compete in a stream of referrals from the criminal justice, social welfare, and mental health systems. Only a fraction of those seeking such help can find a timely slot in the publicly funded programs that are squeezed for staff, facilities, and support from the communities they are supposed to serve. Client mixes in drug treatment programs have for years been a combination of people experiencing varying degrees of coercion or motivation to avoid criminal sanctions, but there is an argument to be made for paying closer attention to the composition of the client pool in treatment. Pressure from one's doctor, family, or employer to participate in treatment is symbolically and instrumentally different from a judicial motion to enroll in a program. It is not currently known, however, what effect the proportions of criminal justice-referred and noncriminal justice-referred clients have on treatment experience and outcome (Stitzer and McCaul, 1987; Nurco et al., 1988). Formal control is the cornerstone of public policy regarding drug-dependent and drug-using persons, and the judicial system has been relied on in a variety of ways to secure and maintain such control. There is a resurgence of interest now in adapting the justice system to assume the task of channeling persons into drug treatment. The issues raised by this

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Treating Drug Problems: Volume 2, Commissioned Papers on Historical, Institutional, and Economic Contexts of Drug Treatment linkage were highlighted in the report presented by the Liaison Task Panel on Psychoactive Drug Use/Misuse to the President's Commission on Mental Health (1978:2118): Today, the drug treatment system is caught in a fundamental conflict about "what is being treated". The basic confusion commences with the unwillingness of the formal institutional structures to explore the boundaries between psychoactive drug use and misuse. Even that separation is further confused by the question of who decides what the adverse consequences are: the patient, the physician or counselor, or a variety of agencies affiliated with the criminal justice system. The law enforcement establishment circularly labels all use of illegal psychoactive substances as misuse or "abuse," and the medical establishment labels all nonmedical use of psychoactive substances as misuse. Thus, by definition, psychoactive drug use is seen as demanding legal intervention and medical treatment. The controversy generated by these authors in 1978 remains vigorous (see Anglin [1988] and Leukefeld and Tims [1988] for recent articles covering a range of opinions). Current interest in drug use and drug users is reflected by the regular and frequent discussions of them in the media and by national and local policymakers. HISTORICAL PERSPECTIVES The connection between the drug treatment system and the criminal justice system is longstanding and complicated. A chronological overview of some of the major legislative, judicial, medical, and social developments of the last century helps to set the scene for a more informed discussion of the present. Several pieces by Weissman detail the history of these developments, and an overview may be found in Drug Abuse, the Law and Treatment Alternatives (Weissman, 1978a; see also Duster, 1970; Musto, 1973a,b; Brecher, 1972; and Inciardi and Chambers, 1974). For a history of opiate addiction in America before 1940, see Courtwright (1982) and Terry and Pellens (1928). The Criminalization of Drugs During most of the nineteenth century, all drugs in the United States were licit, including opium, morphine, cocaine, and marijuana, and could be legally sold (Terry and Pellens, 1928; Brecher, 1972); regulation and criminalization occurred in the early decades of the twentieth century (Duster, 1970; Courtwright, 1982). In 1914, largely in response to treaty

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Treating Drug Problems: Volume 2, Commissioned Papers on Historical, Institutional, and Economic Contexts of Drug Treatment obligations derived from ratification of the Hague Convention of 1912, Congress passed the Harrison Narcotic Act (Brecher, 1972; Weissman, 1978a). This act relied on federal customs and excise tax power to require manufacturers, distributors, and dispensers of opiates and coca products to register with the Treasury Department and to keep records of transactions involving these substances (King, 1974). As interpreted in the years after its passage, the Harrison Act in effect criminalized possession, use, and sale of opiates and cocaine for nonmedical purposes; it was the first time in the United States that criminal sanctions were uniformly imposed (Weissman, 1978a). Because doctors were not permitted to administer controlled substances to patients merely to maintain addiction, addicts were cut off entirely from all sources of legal (medical) relief. "Exit the addict-patient; enter the addict-criminal" (King, 1974). The resultant generational change in the identity of a typical American opiate addict over the last century has been documented repeatedly (Musto, 1973a; Courtwright, 1982). The addicted population of the late nineteenth century was mostly middle-aged, middle-class, small-town white women. It became largely lower class urban males by roughly 1940, often of criminal occupations (Fort, 1968; Courtwright, 1982). Courtwright's view is that the transformation of the American addict was also a function of prevailing medical practices over time: addicts were common in the nineteenth century mainly as a result of physicians' wide use of opiate-based medicines. Patterns of nonmedically induced drug use also began in the nineteenth century but did not account for the bulk of the addicted or drug-using population until after the criminalization of drug use had already begun (Fort, 1968; Duster, 1970). Shifting medical therapies reduced reliance on opium derivatives; the concurrent shifts in American policies toward narcotic addiction, addicts, and users "paralleled and were entirely consistent with the independent and underlying transformation of the addict population" for nonlegal reasons (Courtwright, 1982:4). Lindesmith, King, Trebach, Brecher, and others have advanced the view that the transformation of the American addict population was a function of abrupt changes in the legal status of the addict. The Harrison Narcotic Act of 1914 forced those who sought narcotics to turn to nonmedical supplies of opiates and increased the likelihood of association with other criminal activities. "The government's anti-maintenance policy succeeded in making a bad situation worse: criminal activity was at least in part a function of [high] black-market prices" (Courtwright, 1982:147). Supreme Court and Treasury Department decisions between 1919 and 1923 established a policy of virtual prohibition that included strict regulation of prescription drugs and criminal sanctions for use of illegal drugs or for illegal use of medicinal drugs (King, 1974; Weissman, 1978a; Courtwright,

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Treating Drug Problems: Volume 2, Commissioned Papers on Historical, Institutional, and Economic Contexts of Drug Treatment 1982). From this time on, drug users and sellers began to constitute a considerable proportion of all those arrested at the federal level (Klein, 1983). Treatment for addicted persons began as a response to the "choking of federal prisons with addict-criminals" (King, 1974). In 1929, in part to relieve the crowding of federal prisons with drug law violators, the Public Health Service and the Bureau of Prisons received congressional authorization to open two narcotic farms: one in Lexington, which was opened in 1935, and one in Fort Worth, which was opened in 1938 (King, 1974; Weissman, 1978a). Addicted persons convicted in federal courts could be sent to these Public Health Service prison hospitals in lieu of ordinary imprisonment (King, 1974). Although the hospitals also accepted voluntary clients, they were run as medium-security penal institutions and had both rehabilitative and addiction research purposes (King, 1974; Weissman, 1978). The criminal justice system and the drug treatment system have "shared" clients, then, ever since punishment became an option for drug addicts in the United States. Some writers have categorized the criminal justice system as the drug treatment system's ''main casefinding mechanism" (President's Commission on Mental Health, 1978; Klein, 1983). In 1930 Congress replaced the scandal-ridden Narcotic Unit within the Treasury Department's Bureau of Prohibition with the Federal Bureau of Narcotics (King, 1974; Weissman, 1978; Courtwright, 1982). Harry Anslinger was its director until 1962, a period Musto has called "the peak of punitive legislation against drug addiction in the United States" (Musto, 1973a). Mandatory minimum penalties were common for drug offenders; most were not remanded to the farms but to traditional incarcerative settings with other criminals. Except for heroin, the prescription of narcotics remained legal in the United States. After 1914 some addicts were able to obtain drugs from physicians by exhibiting "symptoms" of an illness. Physicians were under pressure to demonstrate the legitimacy of the patient's condition for whom narcotics were prescribed. At the same time a subculture of users and addicts relied on imported heroin or illegally obtained but legally manufactured pharmaceuticals. Many of the drug users and addicts who were arrested and channeled into the criminal justice system until the 1960s were also found to be heavily involved in other forms of criminal activity. Reforming Drug Policy in the 1960s The 1960s were a decade of experimentation, both on the part of drug users and on the part of drug policy administrators. One manifestation of

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Treating Drug Problems: Volume 2, Commissioned Papers on Historical, Institutional, and Economic Contexts of Drug Treatment this prevailing mood was the report, Drug Addiction: Crime or Disease? issued in 1961 by the Joint Committee of the American Bar Association and the American Medical Association on Narcotic Drugs. Heavily indebted to the work of Indiana University sociologist Alfred Lindesmith (1965), it called for an open and, when necessary, critical discussion of the current policies and laws governing the handling of narcotic substances and those who used them. Without attempting to provide solutions, it reflected "a degree of dissatisfaction within the legal and medical professions concerning current policies which tend to emphasize repression and prohibition to the exclusion of other possible methods of dealing with addicts and drug traffic" (Joint Committee of the American Bar Association and the American Medical Association on Narcotic Drugs, 1961:161). Some of the report's conclusions were that medicine and public health could be called on to make greater contributions to the handling of drug-involved offenders, the prevention of problems needed a place in the debate, and outpatient or community-based care ought to be explored. Overall, more research was needed, especially to explore an expansion of treatment services and to establish a basis for more balanced and informed debate. The White House Conference on Narcotics and Drug Abuse was convened in 1962, and rehabilitation rather than punishment emerged as its theme (Weissman, 1978a). Lindesmith's classic contribution to the debate, The Addict and the Law, appeared in 1965. It highlighted the subtle and complex nature of the issues that frame whether drug users are treated as criminals or as individuals with a disease. In addition, it provided further intellectual inspiration to the energies then moving toward reform. In 1961 California authorized the involuntary civil commitment of narcotics addicts in need of treatment. The use of coercion to induce treatment became sanctioned by the judicial system; accordingly, the treatment that was delivered retained a more punitive than therapeutic tint. In California the Civil Addict Program was administered by the Department of Corrections and not by a health or drug and alcohol department. Early California rehabilitation legislation had two main emphases: (1) short-term crisis intervention and detoxification programs in the community for gravely disabled drug-dependent persons, and (2) long-term post-conviction inpatient treatment and closely supervised parole (under the Department of Corrections) for addicts only. Legislation in 1972 encouraged multimodality community-based outpatient and inpatient programs, including methadone maintenance. This legislation (partly reflected in current California statutes—see Appendix A) also provided for diversion into treatment of drug law violators from the criminal justice system; it has since been expanded to allow diversion of people with other types of offenses as well (Second National Commission on Marihuana and Drug Abuse, 1973a).

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Treating Drug Problems: Volume 2, Commissioned Papers on Historical, Institutional, and Economic Contexts of Drug Treatment New York passed a similar law in 1962. Similar federal legislation, the Narcotic Addict Rehabilitation Act (NARA) of 1966, also set the stage for massive federal funding of treatment programs in the 1970s. This legislation provided more broadly for civil commitment as an alternative to prison. NARA authorized (1) pretrial civil commitment in lieu of prosecution for persons charged with certain nonviolent, nontrafficking federal crimes who could convince a federal district attorney that they were addicted but had a high probability of rehabilitation; (2) voluntary civil commitment for addicts not under criminal charges, a program administered by the National Institute of Mental Health; and (3) sentencing of some addicts convicted of certain federal crimes to commitment for treatment, a program administered by the Bureau of Prisons. The clients of the latter were treated in selected prisons and could then be paroled to outpatient care in the community. NARA also authorized federal grants to communities to fund treatment programs for addicts (Bonnie and Sonnereich, 1973; King, 1974; Maddux, 1988). According to the report and appendices of the Second National Commission on Marihuana and Drug Abuse (1973a,b,c), civil commitment is not a treatment mechanism as such but rather a mechanism for retaining and supervising individuals while they participate in a course of treatment. It is in this enforced and prolonged supervision that it differs chiefly from voluntary programs. Maddux (1988) has recently reviewed 50 years of clinical experience with addicts in treatment, including those being treated voluntarily, those under various criminal law coercions, and those under civil commitment, using data from the U.S. Public Health Service hospitals and from NARA. He concludes that civil commitment brings people into treatment who might not otherwise get there. But it cannot assure their participation, it cannot overcome deficits in services, and it remains restricted by constitutional guarantees of individual liberty (Maddux, 1988). The shift to view addiction as a health issue rather than (only) a criminal or moral issue was well under way by the mid-1960s. The idea that intractable social problems—such as drug problems—undergo periodic redefinition and are turned over to or are shared by different social institutions and occupations has been developed extensively in the literature (Gusfield, 1967; Pitts, 1968; Brüün, 1971; Room, 1978). This change in perspective led to what has been called "the medicalization of deviance" (Gusfield, 1967; Pitts, 1968; President's Commission on Mental Health, 1978; Conrad and Schneider, 1980): the identified "deviant" is committed to a hospital instead of a prison, and the objective becomes curing rather than punishing (Wexler, 1973; Glaser, 1974; see Kittrie, 1971, for a detailed legal and philosophical history of these shifts). This reaction to some but not all types of drug addicts and users accelerated rapidly after 1962, when Robinson v. California was decided by

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Treating Drug Problems: Volume 2, Commissioned Papers on Historical, Institutional, and Economic Contexts of Drug Treatment the Supreme Court. The case involved an appeal from a misdemeanor conviction under a statute that made it unlawful to be "addicted to narcotics." The Supreme Court held that to penalize an addict was a violation of the Eighth Amendment provision against cruel and unusual punishment: the conviction was not based on anything the defendant had done but on his illness (Sloan, 1980); the statute was thus ruled unconstitutional. The ruling also suggested that it would be legitimate to declare addiction a disease justifying civil commitment (Glaser, 1974). During the 1960s the amounts and types of drug use, and the ways people were using drugs, as well as the social class of users, changed as well. Drug users were no longer exclusively associated with patterns of frequent street crime. Experimentation with a variety of substances, including marijuana, LSD, amphetamines, and prescription pharmaceuticals, became widespread. People from middle and upper class backgrounds joined the ranks of those who used a variety of licit and illicit substances for pleasure, or "kicks," as well as for generational symbolism, including displaying disapproval of the mores of society and the policies of government. The criminal justice system itself was in the throes of upheaval and experiencing a period of disenchantment with traditional practices and their underlying philosophies. This was a time of riots in the prisons and exposés in the media of cruel and unusual conditions within them (Packer, 1968; Goldfarb, 1975; Feeley, 1983). High rates of criminal recidivism among drug users and a continuing rise in the cost, frequency, and seriousness of crime linked to drug users frustrated officials and perhaps encouraged them to try something else (Ohlin, 1973; Weissman, 1978). A philosophy that proposed humane rehabilitation and opportunities for treatment in place of deprivation and incarceration for those whose criminality could be linked to drug use found resonance in a criminal justice system looking for alternatives to traditional but unsuccessful methods (Jaffe, 1979). Treatment approaches for drug users, especially heroin addicts, expanded as a part of a "war on heroin" and, more generally, reactions against drugs, crime, and accompanying lifestyles (Second National Commission on Marihuana and Drug Abuse, 1973a; Klein, 1983). Law and order campaigns in the late 1960s and early 1970s drew support from the fears of a voting populace that had been assailed by anti-Vietnam war activities, the civil rights movement, student unrest, and more broadly defined cultural shifts among youth with respect to both drug use and sexual behavior. Treatment provided opportunities for recovery and encorporated more progressive methods of dealing with drug users than imprisoning them. Nonetheless, treatment was also seen as a way of maintaining careful

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Treating Drug Problems: Volume 2, Commissioned Papers on Historical, Institutional, and Economic Contexts of Drug Treatment supervision of drug-involved offenders, only partially extricating them from the traditional criminal justice system. The Nixon administration's "War on Drugs" had weapons to reduce the supply side, including the Drug Enforcement Agency to interdict imported substances, and "get-tough" laws to reduce the ''demand" side through the detection and punishment of users and the deterrence of future consumers. At the same time there was substantial growth in the federally and state-funded social service apparatus. Demarcations between treatment as a part of the social welfare and health care systems and the criminal justice system were becoming less clear. "Community-based" programs were favored over incarcerative models for juvenile delinquency prevention, health (especially mental health) care, and other public services (Fox, 1973; Wexler, 1978). Both political and fiscal considerations were at work here; decarceration was envisioned as more efficient, serving more people per dollar. The local service providers welcomed a chance to provide flexible care at the local level where they had greater authority and discretion. This marriage between community care providers and judicial system referral mechanisms resulted in a vast network of treatment opportunities for people whose original interaction was with the justice system. The marriage was paid for by federal-state cost sharing during the early 1970s. Diversion from the Criminal Justice System to Treatment in the 1970s The demand for policy alternatives offering the penal features of criminal law but the therapeutic features of health care had been building for half a century. The growth of the federally funded system of community-based programs authorized by NARA and later by the National Institute on Drug Abuse (NIDA) made the practice of court referral of addicts to community treatment a commonplace. In 1972, through the efforts of the Special Action Office for Drug Abuse Prevention (located in the Executive Office of then-President Richard Nixon), the routing of addicts to treatment was further increased by the referral of unsentenced defendants to community-based treatment in lieu of prosecution. This move was based on the assumed causal relationship between drug taking and criminal behavior. It was buttressed by a coexisting belief that treatment was beneficial for drug-dependent persons, whether such treatment occurred voluntarily or involuntarily (Smith, 1974). This system interface—and the assumptions underlying it—remains at the heart of the national approach to drug users. Diversion at the pretrial stage of the adjudication process was made possible in the United States by recommendations of the President's

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Treating Drug Problems: Volume 2, Commissioned Papers on Historical, Institutional, and Economic Contexts of Drug Treatment Commission on Law Enforcement. The commission proposed the practice in 1967, claiming that "it is more fruitful to discuss, not who can be tried and convicted as a matter of law, but how the offices of the administration of criminal justice should deal with people who present special needs and problems.. .[the solution being] the early identification and diversion to other community resources of those offenders in need of treatment, for whom full criminal disposition does not appear required" (President's Commission of Law Enforcement and Administration of Justice, 1967:134). Diversion was originally designed for alcohol-involved offenders and people with chronic mental problems, but it quickly became popular for a variety of dispositions. These offenders were seen to be burdensome to the criminal justice system, preventing it from catching and punishing "real" criminals more efficiently. Moreover, in the words of two veterans of the American judicial system, it offered "the promise of the best of both worlds: cost savings, along with rehabilitation and more humane treatment" (Vorenberg and Vorenberg, 1973; see also the Yale Law Journal, [1974]). The classical definition of diversion is therapeutic intervention that takes place following arrest but before either a trial or adjudication. Several of the papers found in the appendices to the report of the Second National Commission on Marihuana and Drug Abuse (1973b,c) include the following procedures as falling under the category of diversion: pre-arrest, formally authorized diversion for purposes of detoxification or withdrawal; postarrest, diversion to detox; treatment as a condition of pretrial release; emergency treatment while awaiting trial; treatment in lieu of prosecution; treatment as a condition of deferred entry of a judgment of guilt and conditional discharge, or as a condition of suspension of sentence or probation; treatment as a condition of probation or parole; and commitment for treatment in lieu of other sentence, or while serving a sentence in a correctional facility or following administrative transfer from a penal institution. Nationwide, procedures at the local court level that may be formally designated or loosely categorized as "diversionary" are many and varied. Diversion programs vary not only with respect to a lack of uniformity of procedures but also in the extent to which the defendant penetrates the criminal justice system, a factor that may vary even within states by county or judicial jurisdictions (Carter, 1972; Agopian, 1977; Weissman, 1978b;

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Treating Drug Problems: Volume 2, Commissioned Papers on Historical, Institutional, and Economic Contexts of Drug Treatment Schneider, 1980; Makela, 1980; Alper and Nichols, 1981; Feeley, 1983; Morgan, 1983; Harrington, 1985; Krivanek, 1988). This shift was begun in part out of a decision that drug addiction was a disease of sorts that could be more effectively managed by the medical profession. Yet the client who is characterized as suffering from the disease is expected to assume some measure of responsibility in order to allow recovery to occur. Decisions are made about a person's fate based on "medical" evidence as to what treatment would facilitate a cure. Doing straight time in prison among other regular offenders is very different from being placed in a drug treatment program and monitored by the court, a probation officer, and treatment staff. Drug treatment regimens generally are not considered to be easy to follow-either when a sincere attempt is made to recover or if one only wants to "do the time" in order to stay out of jail or to get out sooner than would otherwise be possible. The various roles assumed by the government and the actions performed in its name by a range of service provision systems seem also to be conflicted. A constitutional and philosophical responsibility to safeguard a citizen's civil rights and fundamental liberties is considerably challenged by the endorsement or use of direct or indirect coercion to motivate that same individual to enter treatment. Proper measures to assure the safety of the community must be undertaken at the same time. Over the years these issues have not lost their ability to incite controversy, and few to date have found resolution. Treatment was never meant to be offered or forced upon every drug user who came into contact with the criminal justice system. It was viewed as an expensive but cost-effective way to handle certain people who both the treatment and criminal justice systems felt would benefit from it. Extraction from the adjudication process, whether pretrial or post-conviction, is meant to be cumbersome, and perhaps this contributes in part to the ill-defined process that governs diversion to treatment. Clinical evidence reported to date does not conclusively support blanket referrals to compulsory treatment (Toborg, 1981; De Leon, 1988; Leukefeld and Tims, 1988; Maddux, 1988). The efficacy of compulsory treatment is related to the quality of the available programs as well as their implementation, client differences, client motivations, and the multivariate complexity of the recovery process itself (Brown et al., 1987; Stitzer and McCaul, 1987; De Leon, 1988). Evidence of the relative success or failure of treatment or of the retention of clients in treatment without legal coercion is not definitive. Evaluative outcome studies refer largely to heroin-using populations of the past and not to the cocaine-and crack-cocaine-using populations of the present. These data do not justify compulsory treatment participation without reference to the fundamental shortages in resources where services are offered.

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Treating Drug Problems: Volume 2, Commissioned Papers on Historical, Institutional, and Economic Contexts of Drug Treatment Drug treatment has not been given high priority for funding since the mid-1970s. Now that the drug issue has regained political prominence and the specter of human immunodeficiency virus infection looms large, interest in treatment has been resparked. Yet known methods of treatment and their efficacy—especially for users of crack-cocaine—may still be regarded as uncertain and varying in quality (Brown et al., 1987; Stitzer and McCaul, 1987; Nurco et al., 1988). If treatment is advisable for a criminal justice-involved drug user, its best use is as a disposition regulated by a judicial proceeding that is separate from the legal determination of guilt or innocence. To date, neither diversion nor probation proceedings function in this way. The mandate to treatment as a sentence for drug-involved offenders is neither orthodox treatment nor a traditional punitive sanction. Further efforts to clarify the distinction between the two, while at the same time improving treatment modalities that accommodate this type of client, are needed. The criminal justice system has long been used for providing services, however inadequate, for those who cannot afford them. Thus, the problem of reducing the scope of criminal and legal justice is complicated by the critical need for concurrent development of nonjudicial health care service delivery systems in the interest of social justice (Klapmuts, 1974). Currently, alternatives to incarceration seem to be conceived of—or at least function best as—escape valves of the criminal justice system rather than as carefully planned therapeutic interventions. Perhaps gains made in treatment program availability and effectiveness will soon match the reductions in courtroom caseflow that have already been realized. The causes of drug abuse are complex, but they may be explored and faced directly. The analogy between drug addiction and contagious disease is often made. Within that context, even when a readily defined illness exists and even when that illness can be effectively treated with appropriate measures, the elimination of the problem from a community typically requires broad measures that extend beyond supervision, quarantine, and imprisonment at the level of the individual. The rate of tuberculosis was reduced by medicine and treatment regimens but only finally controlled when living conditions were substantially improved. The disease remains strong in areas where such improvement has not occurred despite the fact that individual patients are readily identified and treated. Similarly, drug use, abuse, and addiction are, to some extent, a social problem. They will never be eliminated by measures levied solely at individuals that are not also designed to consider and address broader social issues (Newman, 1973). Good public health practice dictates that the target of interventions should include the ecology of drug use and drug users. The complex social, political, and economic issues underlying drug use, especially on

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Treating Drug Problems: Volume 2, Commissioned Papers on Historical, Institutional, and Economic Contexts of Drug Treatment the part of those who are criminally involved and incarcerated, require more substantial responses than treatment alone. Although treatment can help some people some of the time and should be available, concepts of medicalization, disease, and pathology at the level of individual cannot override the need for structural changes. The social and environmental causes of—and solutions to—criminally involved illicit drug use must be emphasized in addition to constructing a public order response. The report of the White House Conference for a Drug Free America (1988:71) correctly identifies treatment as ''simply the clinical event which initiates the ongoing and more complex cultural process of recovery." In viewing the drug problem as both a socially and criminally generated problem, the public health response appears to be more comprehensive. It extends the focus to education, jobs, and other quality of life issues involved in the continued use of drugs. Thus, the treatment episode may be complemented rather than undermined by placing it in a broader context that highlights additional opportunities for improvement. FOOTNOTE 1   The reports cited in this section are not included in the reference list in order to protect the identity of the case study county. ACKNOWLEDGMENT I wish to thank Craig Reinarman, Ron Roizen, Robin Room, and Raul Caetano for their comments on earlier versions of this paper, and Adrienne M. Radkoff for her assistance with graphics. REFERENCES AND BIBLIOGRAPHY Agopian, M.W. (1977) Evaluation of adult diversion programs: the California experience. Federal Probation 41(3):15-18. Allison, M., and R.L Hubbard (1985) Drug abuse treatment process: a review of the literature. International Journal of Addictions 20:1321-1345. Alper, B.S., and L.T. Nichols (1981) Beyond the Courtroom. Lexington, Mass.: Lexington Books, D.C. Heath and Company. Ancel, M. (1971) Suspended Sentence. New York: Humanities Press. Anglin, D., ed. (1988) A social policy analysis of compulsory treatment

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