EXPERT PLATFORM ON CRIMINAL JUSTICE. Quasi-coerced treatment of adult drug-dependent offenders. Guidelines on the application of QCT

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1 Strasbourg, 30 November 2007 P-PG-CJ(2007)21_en EXPERT PLATFORM ON CRIMINAL JUSTICE Quasi-coerced treatment of adult drug-dependent offenders Guidelines on the application of QCT drawn up by Tim McSweeney (Consultant)

2 P-PG-CJ(2007)21_en 2 This summary presents the main findings to emerge from a conference on the use of quasicompulsory treatment (QCT) and other alternatives to imprisonment for drug-dependent offenders. The conference, held in Bucharest, Romania on the 11 th and 12 th October 2007, involved over 25 presentations from participants of more than 10 European countries. It considered a range of themes and issues including: The rationale for QCT The emerging evidence base for the effectiveness of QCT The availability and use of these measures throughout Europe The role of QCT in promoting recovery from substance misuse and desistance from crime; and Ongoing ethical and practical issues. Rationale for QCT Prison populations have risen exponentially across many European countries during recent years. Data from 28 countries reveals that during September 2005 more than three quarters of them (n=22) had prison systems operating at or above capacity (1). A large proportion of these rises are thought to be attributable to drug-related crime. For example, in England and Wales (which has the highest imprisonment rate in Western Europe) it has been estimated that more than a third of the 327,000 inhabitants who are considered to be problem drug users will be serving a custodial or community sentence at any one time - constituting more than half the correctional services caseload (2). At the same time there is growing recognition of, and frustration with, the relative ineffectiveness of conventional sanctions and responses in deterring drug use and related crime: two-thirds of English and Welsh prisoners were reconvicted within two years of their release in 2004; the rate for young offenders was higher still (3). Even if prison could be made more effective it is unlikely to be cost-effective. England and Wales built 26 new prisons between 1995 and This increased capacity by more than 12,000 prison places, but did so at a cost equivalent to 1.78 billion (4). The average cost of using each prison place built between 2000 and 2004 is estimated to be 139,000 (it costs an additional 28,000 to use each place built since then) (5). Given the high costs of building and using prison places, the use of QCT measures (estimated at 9,500 per unit) is a more cost effective option and has fewer adverse effects (6). There is then a compelling pragmatic, economic and social case for developing and expanding QCT and other alternatives to imprisonment. Evidence for the effectiveness of QCT There is emerging European evidence - which is consistent with findings from the North American research literature to suggest that coerced forms of drug treatment delivered via the criminal justice system as an alternative to imprisonment can be effective in reducing substance use, injecting risk and offending behaviours, and improving social integration. Contributors to the conference referred to the results from recent studies which indicate that coerced drug treatment can be as effective as both voluntary drug treatment - if received in the same treatment services (see results from the QCT Europe study) and regular prison detention (see the Dutch SOV evaluation) (7, 8). In both studies the greatest levels of improvement were observed among QCT groups largely reflecting their poor prognosis at intake to treatment. The overall message from this emerging body of research is not that coercion works, but that appropriately delivered and integrated forms of drug treatment can be an effective and viable alternative to imprisonment.

3 3 P-PG-CJ(2007)20_en Use of QCT measures in Europe The use of QCT measures and other alternatives to imprisonment is proactively endorsed by both the United Nations (9) and the European Union (10). However, while it seems that most countries utilise these options, reliable data about the nature and extent of their use is limited. In addition, it seems that the performance and effectiveness of QCT (as measured by completion rates) varies considerably within and between countries (10). Presentations and discussions throughout the conference appeared to suggest that the way in which QCT is implemented and delivered plays an important role in shaping outcomes. Some of the dynamic and inter-related factors that might explain variations in outcomes include: Differences in the profile and characteristics of those exposed to QCT. Variations in treatment quality, availability and delivery (both within and between countries). Treatment setting (whether delivered in a community-based or residential context). Treatment approach (whether abstinence-based or harm reduction in orientation). The responsiveness of treatment to different user groups (i.e. women, crack cocaine users, migrant populations). Enforcement practices (how different countries respond to non-compliance). Recovery, desistance and the role of QCT There are also important pointers from both the wider criminological desistance and substance misuse literatures that are relevant to any discussions about the uses and limitations of QCT options (11). These were raised throughout the conference and broadly translate into the following principles: Recovery and desistance are processes not events. People s readiness to change varies and interventions need to continually generate and sustain people s motivation. Attitudes and beliefs are important in both promoting and inhibiting behaviour change. Tackling social problems is important too and interventions need to: (i) equip drug-using offenders with new skills and (ii) provide opportunities for these skills to be used. For the sake of brevity, only the first and last points will be considered in any detail here. The implications of the first principle relate to the need for pragmatism in any discussions about substance misuse, drug-related crime and our responses to them. Research suggests that the mechanisms by which people recover from dependent drug use and desist from offending are in fact lengthy processes and not events that can easily be orchestrated. Despite hundreds of millions being invested in recent years to develop and improve drug treatment provision in England, programme completion rates remain stubbornly low: of the 126,000 drug users accessing support in 2003, for example, most (71%) failed to complete treatment (12). At the same time evidence provided by the National Treatment Outcome Research Study (NTORS) has been instrumental in establishing the effectiveness and cost-effectiveness of drug treatment in Britain. Yet 40 per cent of those recruited to the study in 1995 were found to be still using heroin 3-4 years later (13). More recently and despite most aspiring for abstinence when contacting services - less than 10 per cent of Scottish drug users were found to be drug-free almost three years after accessing support (14). However, in both studies the largest reductions in illicit drug use were apparent amongst those receiving residential or inpatient support. In the context of desistance from crime one only need glance at official reconviction rates to get a sense of this, too. As noted above two thirds (65%) of all prisoners are convicted in England and Wales within two years of release compared with half (51%) of those under probation supervision (15). Reconviction rates for those identified as substance misusers while under the supervision of the UK correctional services are also high (74%), but at a rate identical to users

4 P-PG-CJ(2007)21_en 4 accessing mainstream treatment provision via NTORS (74%) (16,17). The two-year reconviction rate for the more prolific group of drug-dependent offenders sentenced to QCT is higher still (82%) (18). In the context of desistance from crime one only need glance at official reconviction rates to get a sense of this, too. As noted above two thirds (65%) of all prisoners are convicted in England and Wales within two years of release compared with half (51%) of those under probation supervision (15). Reconviction rates for those identified as substance misusers while under the supervision of the UK correctional services are also high (74%), but at a rate identical to users accessing mainstream treatment provision via NTORS (74%) (16,17). The two-year reconviction rate for the more prolific group of drug-dependent offenders sentenced to QCT is higher still (82%) (18). In raising these issues the concern is more about managing expectations than lowering them in the context of ongoing changes to the organisation and delivery of drug treatment and criminal justice supervision in some countries and escalating prison populations in most. The research conducted to date has also tended to highlight the limited capacity of QCT options to tackle the wider social and environmental factors that can facilitate drug use and crime, and perpetuate exposure to other forms of social exclusion (e.g. poor or inadequate housing and often quite chronic education, training and employment needs). With a few notable exceptions (19, 20), QCT systems tend to have limited access to suitable housing stock, inadequate links with employers and lack sufficient understanding of local labour market needs. All too often aftercare seems to be just an afterthought in the context of QCT. Ongoing ethical issues During the course of the conference a number of ethical issues and concerns were raised regarding the development and expansion of QCT options. Questions included: Are principles of distributive justice being observed (e.g. avoiding the displacement of noncriminal justice clients from treatment services; inadvertently damaging the treatment experience for non-criminal justice service users; creating perverse incentives to offend through the offer of rapid access to treatment for criminal justice referrals)? Is the distinction between coercive and compulsory forms of treatment becoming increasingly blurred (the latter involves the removal of constrained choice and consent and is therefore more likely to fall foul of ethical standards for most low-level acquisitive offenders)? Are there adequate opt-outs into conventional punishment as part of QCT? Does involvement in QCT guarantee participation in proven treatment that meets the needs of different user types (e.g. for crack cocaine using offenders)? Are the principles of proportionality being observed (e.g. is QCT considered too intrusive or excessive given the nature of the offence)? Do all QCT systems ensure appropriate/graduated responses to inevitable lapses? Is there sufficient scope for flexibility within QCT to respond constructively to these lapses and relapses? Is there too much emphasis on punishment of non-compliance and not enough on the use of incentives and rewards (drawing on the principles of positive reinforcement or contingency management)? What role could or should victims play in QCT? Ongoing practical issues In addition to these ethical considerations a number of practical issues have arisen in relation to the implementation, development and delivery of QCT options. These include the following questions:

5 5 P-PG-CJ(2007)20_en What are the obstacles to evidence-based policy and practice? Why is QCT under-utilised in some jurisdictions, despite the rationale for using it, the endorsements given by both the UN and EU, and the emerging evidence for its effectiveness? In relation to system capacity: Is QCT feasible in all jurisdictions and settings? Is QCT universally compatible with existing legal/health frameworks? Is the drug treatment infrastructure sufficiently well developed in all European countries to support the expansion of QCT? Can current systems absorb the additional demand QCT would place on them without being to the detriment of mainstream treatment provision? Does QCT offer genuine alternatives to imprisonment or merely serve to widen the criminal justice net? (21) How should criminal justice and health perspectives reconcile potentially conflicting QCT objectives (e.g. whether the approach to treatment is harm reduction or abstinence-based in orientation)? What are the best strategies for targeting and identifying those most likely to benefit from QCT (e.g. through the refinement of referral and assessment processes or ensuring rapid access to treatment)? How should QCT approaches most appropriately respond to crack/cocaine using offenders? What are the best ways of promoting and monitoring compliance with QCT (e.g. the role of drug testing and court reviews; the feasibility of using contingency management and rewards/incentives)? Can QCT approaches sustain effective partnerships between health, criminal justice and social care agencies (e.g. are they knowledgeable about QCT options, do they have capacity to work in a multidisciplinary way and are they committed to the QCT enterprise)? What are the wider impacts - both intended and unintended - on health and/or criminal justice processes (e.g. increasing prison populations because of QCT breaches, increased waiting times for treatment)? Does QCT offer effective forms of integrated support both during and beyond the period of supervision (e.g. through links with housing providers, education, training and employment agencies, and mental health services)? Is there sufficient resources and commitment to monitoring and evaluation of QCT processes and outcomes? In most countries there is an urgent need for: better tracking of throughputs and outcomes; better resources for longer follow-up of participants; more use of comparison groups; more qualitative work; and the cost-effectiveness of QCT still needs to be measured and quantified. A recurring theme throughout the conference was the need to educate both the wider public and relevant stakeholders about the chronic, relapsing nature of drug dependency. Given the various themes outlined above it is important to be pragmatic about what can be achieved through the use of QCT and other alternatives to imprisonment. Educating politicians, the media and public about the nature and challenges of working with such an intractable group, and managing their expectations around this, are likely to be both difficult and ongoing processes. Recommendation A key challenge for any conference is how to disseminate the learning and findings to emerge from it beyond the immediate audience. Important questions include whether there is scope for: A network to develop guidelines describing best practice as it relates to QCT based on the emerging international evidence.

6 P-PG-CJ(2007)21_en 6 A programme of training on QCT issues for stakeholders. The main recommendation to emerge from the conference then is that the Pompidou Group Criminal Justice platform further explores the feasibility and possibility of developing these guidelines and/or training. Acknowledgements I would like to express my gratitude to the Pompidou Group Expert Forum and Secretariat and the Romanian National Anti-Drug Agency for extending an invitation to report on the proceedings from the European conference on QCT and other alternatives to imprisonment. Tim McSweeney Senior Research Fellow Institute for Criminal Policy Research School of Law, King s College London (t) + 44 (0) (e) November 2007

7 7 P-PG-CJ(2007)20_en References 1, 6 and 7) Stevens, A. (2007) Why do we need alternatives to imprisonment? Do we need quasicompulsory treatment? European conference on quasi-coerced treatment and other alternatives to imprisonment. Bucharest, Romania October (2) National Offender Management Service (2005) Strategy for the Management and Treatment of Problematic Drug Users with the Correctional Services. London: Home Office. (3, 15, 18) Cunliffe, J. and Shepherd, A. (2007) Re-offending of Adults: Results from the 2004 Cohort. Home Office Statistical Bulletin 06/07. London: Home Office. (4) Phillips, N. (2006) Alternatives to custody The case for community sentencing. A speech by the Lord Chief Justice of England and Wales to the Centre for Criminology, Oxford University. 10th May (5) Prison Reform Trust (2007) Bromley Briefings: Prison Factfile. May London: PRT. (8) Koeter, M.W.J. (2007) Effect evaluation of SOV. European conference on quasi-coerced treatment and other alternatives to imprisonment. Bucharest, Romania October (9) Bocai, A. (2007) Alternatives to imprisonment and the role of the United Nations. European conference on quasi-coerced treatment and other alternatives to imprisonment. Bucharest, Romania October (10) Hughes, B. (2007) Treatment alternatives to prison/punishment: Overview of existing mechanisms across the EU. European conference on quasi-coerced treatment and other alternatives to imprisonment. Bucharest, Romania October (11) For a discussion see Maguire, M. and Raynor, P. (2006) How the Resettlement of Prisoners Promotes Desistance from Crime: Or Does It?, Criminology and Criminal Justice, 6 (1): (12) National Treatment Agency for Substance Misuse (2005) Statistics from the National Drug Treatment Monitoring System (NDTMS): 1 April March London: National Treatment Agency for Substance Misuse. (13) Gossop, M., Marsden, J. and Stewart, D. (2001) National Treatment Outcome Research Study (NTORS) After Five Years: Changes in Substance Use, Health and Criminal Behaviour during Five Years after Intake. London: National Addiction Centre. (14) McKeganey, N., Bloor, M., Robertson, M., Neale, J. and MacDougall, J. (2006) Abstinence and drug abuse treatment: Results from the Drug Outcome Research in Scotland study, Drugs: education, prevention and policy, 13 (6): (16) Howard, P. (2006) The Offender Assessment System: An evaluation of the second pilot. Home Office Research Findings 278. London: Home Office. (17) Gossop, M., Trakada, K., Stewart, D. and Witton, J. (2006) Levels of Conviction Following Drug Treatment: Linking Data from the National Treatment Outcome Research Study and the Offenders Index. Home Office Research Findings 275. London: Home Office. (19) Pietsch, W. (2007) Aftercare and social reintegration (Germany). European conference on quasi-coerced treatment and other alternatives to imprisonment. Bucharest, Romania October (20) McSweeney, T., Stevens, A., Hunt, N. and Turnbull, P.J. (2007) Twisting arms or a helping hand?: Assessing the impact of coerced and comparable voluntary drug treatment options. British Journal of Criminology, 47 (3): (21) Connolly, J. (2007) Alternatives to custody in Ireland. European conference on quasi-coerced treatment and other alternatives to imprisonment. Bucharest, Romania October 2007.

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