EMCDDA PAPERS Alternatives to punishment for drug-using offenders

ISSN 2315-1463 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

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 (2013 20) 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

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 2009 11; 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 (2002 05), ad from the Coucil of Europe Pompidou Group s Crimial Justice Forum, which focused o quasi-coerced treatmet (2007 10), 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

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. 3.108). 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 2009 12 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 1995 99, 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 1997. Alteratives to priso have the featured regularly i the treatmet sectios of EU actio plas 2000 12. 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 2000 04 (Actio 3.4.2), 2005 08 (Objective 13) ad 2009 12 (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 2013 16 (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

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

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 2003. A ew scheme was piloted for adults i 2012. 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

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. 307 308) for ay offece puishable by up to five years imprisomet. I Demark, it is by a sectio of the Crimial Code (ss. 56 57), 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

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.3425-1, 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 1 346 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 2008. 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

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

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 300 400 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 2005 08 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 147 000 ew cliets reported to have etered outpatiet treatmet i 2010 (ad 7.5 % of the early 9 000 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 60 65 % of suspesios are for users cosidered o-addicted, while 15 20 % 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, 13 660 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 10 000 per year before the chage to less tha 300 i 2012. Also i 2012, proceedigs agaist 1 559 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

umber who have beefited has steadily icreased sice 2007; i 2012, some 2 518 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 88 000 idividuals were helped ito drug treatmet (icludig o-structured treatmet) ad recovery services i 2011/12; treatmet data show 8 881 adults eterig structured treatmet from arrest referral or through the Drug itervetios programme. I Wales, there were 3 907 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, 13 283 drug rehabilitatio requiremets were commeced, 9 284 as part of a commuity order ad 3 999 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 2013 8 000 7 000 6 000 5 000 4 000 3 000 2 000 1 000 0 2004 2005 2006 2007 2008 2009 2010 2011 2012 2013 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

commecemet to completio targets. To put these umbers i perspective, 2012 saw about 70 000 caabis warigs, 15 000 pealty otices for disorder ad 39 000 cautios issued by the police for drug offeces, ad aother 21 000 fies issued by the magistrates courts. I Scotlad, i 2011/12, 158 probatio orders commeced with a coditio of drug treatmet/educatio, ad 557 drug treatmet ad testig orders were made. I Implemetatio issues Although ay particular measure may be made available to the judiciary i the legislatio, there is o guaratee that it will be widely used, or that it will be implemeted ad perform as origially desiged. Moitorig a policy itervetio to assess performace is particularly importat ad challegig. This ca be complicated by the fact that resposibility may lie withi two spheres of public admiistratio, i this case the health ad justice sectors, which have traditioally differig views as to priorities ad solutios. This sectio addresses some of the more commo fidigs ad issues. a extra-judicial body, but at preset eligibility is strictly limited to first offeders with o crimial record. This latter criterio effectively made the provisio of treatmet as a alterative uusable i Polad. Sice 1997, uder Article 72 of the mai drug cotrol law, the prosecutor could susped proceedigs for a offeder with o previous covictios who eters treatmet. No official figures are kept, but a study i 2008, lookig at 300 cases over three years ad iterviewig prosecutors, users ad prisoers, cocluded that this optio was rarely implemeted. While 95 offeders were diagosed as problematic users, ad 47 declared willigess to eter treatmet, oly 9 had o previous covictios, ad ultimately ot oe of the 300 cases was suspeded based o Article 72 (Seredicki, 2009 cited i the 2011 Reitox atioal report). As a result, this requiremet of o previous covictios was abolished i 2011, ad the prosecutor ad judge are ow obliged to collect iformatio o the offeder s drug use, rather tha simply havig the optio to do so as previously. Assessmet of eligibility Support for legislatio A few coutries have had difficulty implemetig their legal provisios o rehabilitative measures, i some cases because of difficulties relatig to perceptios of leiecy to crimials. I Cyprus, the law 57 of 1992 o the care ad treatmet of addicts remaied uimplemeted i 2013, due i part to what have bee referred to as aachroistic ad o-viable stipulatios. I Romaia, the possibility of referral of a drug user to treatmet with evetual suspesio of the proceedigs, established by the drug cotrol law of 2004, was depedet o a ew Crimial Code that was oly passed i 2009, ad a ew Crimial Procedural Code that was ot yet passed i 2012; the ew Crimial Code of February 2014 fially removed the eed for the Crimial Procedural Code. Iitial support i Norway for a similar system to the Portuguese model, proposed by the Stolteberg Commissio, has weakeed as the decrimialisatio aspect has bee cosidered too cotroversial to implemet. I Filad, the Prosecutor Geeral published guidelies i 2006 ecouragig prosecutors to waive charges for drug users who have sought treatmet (otably acceptig that treatmet, ad thus waiver, may be required several times to break a addictio). However, it is reported that drug users usually receive fies rather tha waivers, ad the available statistics show that barely 8 % of those waivers were the result of referral to treatmet. I Malta, a arrest referral scheme was piloted i 2005, but i the first five moths, out of 212 people arrested for possessio, oly 15 were referred to drug agecies by the police ad the scheme fell ito disuse. There is ow a proposal to restart it, takig some cues from the Portuguese model by diversio to The examiatio of coutries legislatios above shows that rehabilitative measures for drug-usig offeders via the crimial justice system exist i a wide rage of formats but with differet criteria for eligibility. As a first step i implemetatio, there is already variatio betwee Europea coutries whe it comes to establishig the diagosis of addictio. A iformal questioig of the ELDD s legal correspodet etwork i 2011 revealed that i eight of the 17 coutries aswerig, such diagosis was made by courtappoited experts or specialist court staff (Czech Republic, Spai, Croatia, Polad, Portugal, Slovakia, Swede, Norway). I cotrast, i five coutries it was made either i a treatmet cetre (Estoia, Latvia, Romaia) or i a hospital (Hugary, Turkey). The offeder could be examied by a pael of three or more experts i five coutries (Estoia, Latvia, Luxembourg, Portugal, Romaia), by a pair of experts i the Czech Republic ad Slovakia, ad by a sigle expert i the remaiig coutries (Belgium, Spai, Hugary, Austria, Polad, Swede, Norway). These experts may be geeral practitioers, psychiatrists, psychologists, social workers or other addictio experts; i Luxembourg ad Portugal a jurist is a member of the pael. Assessmets may be sigle-step or multi-step, with a rapid screeig later followed by a more i-depth examiatio ad tests, ad may last from oe hour to several, with the exceptioal possibility of loger-term moitorig i a medical istitutio for up to two moths (Slovakia). A more detailed assessmet of these processes might determie whether or ot they also iclude elemets of assessmet of motivatio ad treatmet eed. The EU s research project o quasi-compulsory treatmet looked i more detail at the process ad effects of treatmet 12 / 22

optios stemmig from a judicial respose to a offece i six Europea coutries ( 2 ). The project foud that etry to such programmes could be aalysed i terms of three iteractive processes ( opportuity, eligibility ad diagostic ), which ultimately ifluece the quality of the placemet ad hece the outcomes (Soulet ad Ouveray, 2006). The eligibility process, i terms of how the offeder fits the admiistrative criteria of eligibility (e.g. addict or ot, type of offece committed, severity of offece committed) has bee touched o i the descriptios of the mechaisms above. Oe of the mai criteria for the eligibility of a offeder will be their level of drug depedece or other problematic drug use. It will be for the judiciary, followig specialist advice, to decide the eligibility of each offeder. This decisio could impact o the fial outcome, where offeders directed to more appropriate itervetios are more likely to succeed. The opportuity process lies partly with the offeder ad partly with a professioal, who may each decide whether or ot they cosider the offeder ready to seriously egage with a treatmet process at that time. While this readiess has sometimes bee expressed i terms of motivatio, the Quasi-compulsory treatmet (QCT) Europe project ad the Multi-site adult drug court evaluatio (MADCE) i the Uited States both questioed the cocept of motivatio ; MADCE foud that the costruct of motivatio may ot ecessarily be a good predictor of who will ultimately succeed i drug court (Rossma et al., 2011), while QCT Europe reported that The cocept of motivatio was replaced with what emerged as the more pertiet cocepts of commitmet ad commitmeteablig coditios (Soulet ad Ouveray, 2006). Fially, the diagostic process aims to match treatmet eeds ad treatmet offers, cosiderig ot oly types of treatmet ad implicatios for life situatio, but also costraits o availability of particular optios, such as waitig lists ad fudig restrictios. Matchig offeders ad eeds The 2009 12 EU Actio Pla o Drugs (EUAP) objective of ehacig the effectiveess of treatmet ad rehabilitatio traslated ito a umber of actios, oe of which icluded the further developmet of effective alteratives to priso for drug-usig offeders. This objective of effectiveess ecouraged a better match betwee offeder eed ad the itervetio available, i order to achieve higher success rates. The QCT Europe project foud that the three iteractive processes described above (opportuity, eligibility ad diagostic) ofte reveal problems i coordiatio betwee systems, ad betwee cliet eeds ad treatmet offers. A assessmet of eeds ad the selectio of appropriate services is a focal poit i the collaboratio betwee key actors, but this crucial step is ot always appreciated to a ( 2 ) Eglad, Germay, Switzerlad, Italy, Austria, Netherlads. sufficiet extet. This coordiatio does ot deped solely o collaboratio betwee the treatmet ad justice systems, but is depedet o broader systems, such as welfare ad healthcare fudig, for its success. For a variety of reasos, best fit betwee cliet eeds ad treatmet offers are ot always guarateed (Soulet ad Ouveray, 2006). This was illustrated by the observatio from Swede that some muicipalities categorically deied all forms of treatmet i spite of the fact that the Swedish Prisos ad Probatio Service fiaced the major part of treatmet. Cliics offerig medically assisted treatmet also commoly refused to accept patiets from the prisos ad probatio service, referrig to the fact that they already had log lies of addicts outside the correctioal treatmet system i acute eed of treatmet. This mismatch of cliet eeds ad treatmet offers may also occur whe the rehabilitative optios are limited. For example, i 2002 it was reported that, i Austria, public health officers would prescribe obligatory health-related measures to caabis users, leadig to capacity ad resource problems i the drug help cetres which would hider their core tasks. Moitorig or evaluatio of programmes that iclude such mismatched optios may idicate poorer tha expected results, maskig ay evidece of effectiveess for those groups for which the programme is more suitable; optios eed to be appropriate to those to whom they are beig applied. Some coutries are takig steps to remedy this by offerig a wider rage of resposes. For example, i Frace drugs awareess courses were itroduced for mior caabis offeders, as a more suitable alterative to the therapeutic ijuctio desiged years before for heroi users. Yet this ew measure has also suffered implemetatio issues. A evaluatio carried out by the Frech Moitorig Cetre for Drugs ad Drug Addictio (OFDT) i 2012 foud that the use of the courses had bee modest to date; about 4 500 courses were awarded aually, while over 120 000 people had bee stopped for caabis offeces i 2010 (Obradovic, 2012). There was little cosistet applicatio of these atiowide, both i terms of the umber of courses awarded ad the costs charged to the users. I summary, key factors that appear importat for implemetatio of rehabilitative measures through the crimial justice system are: the framig of the legal provisios, particularly those that affect who will be eligible; support from the crimial justice system, icludig the judiciary, ad the public; the provisio of a rage of alterative rehabilitative provisios that will be appropriate for all the groups of offeders to which they will apply; adequate resourcig so that sufficiet places will be available for all those eligible; 13 / 22

good coordiatio ad the cooperatio of all those who will be ivolved i providig the alterative optios; ad moitorig the implemetatio ad outcomes ad makig adjustmets where ecessary. I Evaluatio I Evaluatio: what do we kow about what works? Several rehabilitative optios appear to be better i terms of efficiecy, efficacy, or both, tha puishmet by itself, or at least less harmful, particularly where the puishmet ivolves a priso setece. However, obtaiig clear scietific proof of this ca be challegig ad this is reflected i the comparatively small umber of evaluatios available (with the exceptio of drug courts). The evaluatios themselves may have limitatios that are ot made clear, such as a pre/post evaluatio havig o compariso group, or acceptig selfreported behaviour without objective verificatio. I tur, this makes it difficult for policymakers to assess whether a measure is successful, could be improved, or should be abadoed. With little basis to state with cofidece what works, this sectio cosiders some of the issues that emerge from the studies that have bee udertake ad highlights lessos for evaluatio desig, with the aim to ecourage legislators ad practitioers to work towards producig more robust evaluatio results i future. Challeges i measurig success (McSweeey, 2008). Settig such guidelies is a complex udertakig; for example, at what threshold should the supervisig authority cosider that a positive drug test or a ew crime justifies termiatio of the alterative ad reistatemet of the puitive procedure if progress is beig made i other areas? A evaluatio of pilot drug treatmet ad testig orders i Scotlad cocluded that the icidece of positive drug tests for opiates decreased with time ad reported expediture o drugs decreased from a average of GBP 490 per week pre-setece to a average of GBP 57 per week after six moths o a order (Eley et al., 2002). Is such a outcome to be cosidered a success, give the massive reductio i expediture, or a failure as the offeder is still buyig drugs? If a offeder o loger tests positive for opioids, the disproportioate source of much idividual ad societal harm, but cotiues to test positive for caabis, should they be ecouraged or puished? It has already bee established that there may be hesitace i the use of alteratives to puishmet geerally. However, well-meaig emphasis o high etry rates for treatmet to stimulate greater use of such measures ca ecourage iclusio of those usuitable for the particular itervetio offered. Ufortuately, this i tur lowers the rates of successful outcomes ad thereby damages the reputatio of rehabilitative solutios as a viable respose to offeces. Oe of the most basic ways to evaluate effectiveess is by cosiderig completio rates for programmes. A more advaced criterio for evaluatio, though more challegig to implemet, is to use reoffedig rates ad chages i drug use behaviours. The existece of multiple objectives may provide a challege for evaluators to coclude whether or ot a measure works ad adds to the difficulty of makig comparisos betwee alterative approaches. Evaluatios may use differig criteria to assess a variety of outcomes (drug-free or drug reductio, treatmet completio or social reitegratio, reducig reoffedig or reducig drug use) over differet time periods, ad so ca ed up with ambiguous coclusios, depedig o the priority give to differet outcomes. The potetial for cotradictory assessmets is illustrated i the two perspectives that ca frame reewed drug use by a drug-depedet offeder; the judicial perspective of recidivism (sigifyig failure ad suggestig a puitive respose) ad the medical perspective of relapse (sigifyig chroic disease ad idicative of the eed for more itesive support). I a survey carried out by the Coucil of Europe s Pompidou Group i 2008, the majority of coutries aswerig had treatmet stadards or guidelies specifically drafted to implemet a treatmet programme uder crimial justice supervisio, ad ackowledged the challeges i this field I Measures of effectiveess Completio rates The mid-term evaluatio of the EU Actio Pla o Drugs i 2007, based o the structured questioaires submitted to EMCDDA the previous year, foud that percetage completio rates were available for some of the treatmet alterative to priso optios i Irelad, Spai, Italy, the Netherlads, Austria ad the Uited Kigdom. The majority of the other Europea coutries had o iformatio to aswer this questio, ad few coutries tracked all those who had bee diverted to various treatmet optios. Thus the evaluatio cocluded that A wide variety of alteratives to priso for drug-usig offeders already exists, however it [is] ot yet possible to assess their use ad/or effectiveess (Europea Commissio, 2007). Replies to a secod roud of questioaires i 2009 showed little chage. 14 / 22

Some other completio rates have bee reported i the atioal focal poit reports or the structured questioaires. I Austria, i the cotext of the QCT Europe project i 2005, about 57 % of cliets referred to treatmet from the justice system completed the therapy. I Swede, data from the crimial register show that about 75 % of those startig probatio combied with treatmet cotracts follow through. I the Uited Kigdom, various alteratives are moitored. I Eglad ad Wales, 55 % of drug rehabilitatio requiremets (early 7 000 i umber) were successfully completed i 2012/13. The completio rate has doubled sice 2003. I Wales i 2009/10, 3 144 Drug itervetios programme cases were closed; of these, 28 % of closures were due to treatmet completio, 44 % due to cliet disegagemet ad 18 % were trasferred to priso (10 % ot reported). I Scotlad, the proportio successfully completig drug treatmet ad testig orders icreased from 40 % i 2008/09 to 54 % i 2011/12. I Italy ad Filad, some more limited figures were available. I Italy, durig 2012, admiistrative proceedigs agaist 1 559 persos were dismissed as a result of their havig completed their prescribed treatmet programmes. I Filad, i 2009 there were 137 cases of commuity service setecig (a broad label that icludes various itervetios) for which the mai crime was drug-related. The commuity service was successfully cocluded i 114 cases ad reseteced as ucoditioal i 23 cases. The atioal focal poit reported that resetecig was as commo i drug-related cases as with other crime types. Recidivism Research ito drug treatmet ad testig orders i Eglad ad Wales ( 3 ) suggested that offeders who completed orders had much lower recovictio rates (53 %) tha those who did ot (91 %), though it was ot possible to attribute the differece etirely to the effect of the order (Hough et al., 2003). Oe study used data from the Home Office s Offeders Idex to assess outcomes of those subject to drug treatmet ad testig orders i oe area i Eglad betwee 2000 ad 2002 (Powell, 2011). Data showed that the mea umber of covictios per offeder decreased from 12.0 i the two years before the start of the order to 9.4 i the two years after the start of the order. Overall, 61 % of the offeders had fewer covictios i the two years after startig treatmet compared with the same period before, 7 % showed o chage ad 33 % had more covictios i the two years after startig treatmet (total 101 % due to roudig). I lie with this, research ito the subsequet Drug itervetios programme, followig a cohort of 7 727 offeders who tested ( 3 ) I Eglad ad Wales, the drug treatmet ad testig order was replaced by the drug rehabilitatio requiremet for offeces committed after April 2005. positive for drugs whe charged, foud that the volume of offedig was 26 % lower overall i the six moths postitervetio tha the same period pre-itervetio. Reoffedig had falle by 79 % for aroud half the cohort, but offedig levels actually icreased for about oe quarter (Skodbo et al., 2007). Other impacts o recidivism are discussed i the drug court evaluatios, below. Impact o drug use Oly Frace has reported a study evaluatig the outcome of the measure o drug use behaviour. The 2012 evaluatio of drugs awareess courses, questioig 4 000 participats, foud that the courses had a limited impact o caabis use behaviours, partly as they were ot sufficietly persoalised. Oe-fifth of users stated they would ot chage their behaviour (except to avoid beig caught agai), ad although two-thirds said they would stop or reduce cosumptio, the majority of those had started to recosider their behaviour immediately followig arrest, before the course started (Obradovic, 2012). I Evaluatios of drug courts Drug courts are cosidered separately here as these have bee the subject of a umber of evaluatio studies. The completio rates for drug courts i Europe, give below, appear quite low, with cosequet high-level criticisms of their value for moey. A example of this is the statemet i 2009 by the Secretary Geeral of the Departmet of Justice to the Public Accouts Committee of the Irish parliamet: I am disappoited with its low output the productio level of the court does ot justify extedig the model elsewhere. It is ot workig ad we must go back to the drawig board (Rabbitte, 2009). Yet recet detailed process evaluatios of the drug courts i Belgium, Irelad ad the Uited Kigdom suggest that completio rates may ot be the best outcome idicators. I Irelad, the drug treatmet court was evaluated i May 2010 (Departmet of Justice, Equality ad Law Reform, 2010). Over eight years, 374 offeders were referred to the drug treatmet court, of whom 174 (47 %) were foud to be usuitable for the programme durig the assessmet phase, ad oly 29 participats (14 %) graduated from the programme. Nevertheless, participatio was see to have had a positive effect o participats behaviour, sigificatly reducig offedig, eve if they ultimately failed to complete the programme (Ward, 2011). Key statistics ad stakeholder views of the two drug courts i Scotlad were collected i 2009 (Commuity Justice Services Divisio of the Scottish Govermet, 2010). I the period 2004 08, aroud 50 % (Glasgow) ad 75 % (Fife) of 15 / 22

assessmets resulted i drug court orders, of which 53 % (Glasgow) ad 38 % (Fife) were successfully completed. Costs were higher tha drug treatmet ad testig orders, while recovictio rates were similar. Yet the sample size (470) was far smaller tha that required to show a statistically sigificat differece, ad the review cocluded that the target group of offeders was extremely challegig, with may livig chaotic lives, ad the success of the drug court order should be judged accordigly. There was overwhelmig support for the courts amog the stakeholders. Despite this, the Scottish Govermet aouced that the Fife court was ot viable ad fudig would stop i March 2014, with the Sheriff Pricipal preferrig drug treatmet ad testig orders for efficiecy (Robertso, 2013). I 2010, a fial process evaluatio of the six pilot dedicated drug court sites i Eglad ad Wales foud that staff ad offeders viewed the courts as a useful iitiative aimed at reducig re-offedig ad drug use (Kerr et al., 2011). The evaluatio was maily qualitative; while it cosidered the data of 1 501 offeders over two years, there were cocers that the data quality limited the robustess of the quatitative fidigs. The cotiuity of the judiciary betwee setecig ad review was see as a key elemet, as was the existece of a dedicated coordiator. Nevertheless, the ability of the dedicated drug court to reduce recidivism was heavily depedet o treatmet quality ad other issues i offeders lives. courts, observed that more frequet drug users showed a more marked reductio i use, ad offeders with violet histories showed a greater reductio i crime (Rossma et al., 2011). The et impact of cost savigs was drive by a reductio i the most serious offedig by relatively few idividuals, ot by a widespread reductio of serious offedig. It therefore recommeded cosideratio of icludig violet offeders with substace use issues the same offeders who would ormally receive puitive rather tha rehabilitative setecig. Nevertheless, a review by the US Govermet Accoutability Office (GAO) foud that the Bureau of Justice Assistace had still ot documeted stadard or comparable methods to determie that the drug court measures were successful (USGAO, 2011). Fially, a 2011 study of those eterig state priso i 2004 or jail i 2002 foud that very few would have bee eligible for diversio through state drug courts, questioig their value as a measure to reduce icarceratio (Pollack et al., 2011). I summary, evaluatio studies highlight that clarity about the objectives of the itervetio is importat, as is esurig that itervetios are targeted to the appropriate groups of offeders. Measures of recidivism ad behavioural chage will deliver importat quatitative results, while parallel qualitative evaluatio ca be istrumetal i highlightig the key areas to focus o for policy improvemet. I Belgium, a quatitative aalysis of 280 cases evaluated the drug court i Ghet positively (De Keuleaer ad Thomaes, 2010, cited i the 2011 Reitox atioal report). Of the 280 cases, 148 (53 %) started treatmet. At the time of the project evaluatio, 91 persos had fiished treatmet (of which 41 cases were closed successfully) ad 57 persos were still i treatmet. Commitmet to the treatmet programme resulted i less severe seteces at court. A qualitative evaluatio showed that those ivolved were geerally positive about the project, though there was still room for improvemet (De Ruyver et al., 2010, cited i the 2011 Reitox atioal report). Most drug courts are i the Uited States, ad four otable evaluatios of them were published i 2011 12 with differet headlie assessmets as to success or failure, but sharig some similar coclusios. A systematic review of 154 studies (146 from the Uited States) published by the Campbell Collaboratio cocluded that adult, but ot juveile, drug courts have a substatial effect o recidivism (mea 12 % fall) (Mitchell et al., 2012). I cotrast, a Drug Policy Alliace paper (2011) foud that drug courts were a expesive way of dealig with low-level offeders, but they excluded those who would be more likely to beefit from the process. The importace of cosiderig the ature of the offeders targeted also comes through i other studies; the five-year Multi-site adult drug court evaluatio, fuded by the US Departmet of Justice which gives grat assistace to drug I Coclusios Forty years ago, the iteratioal drug cotrol legal framework established the rehabilitative optios of treatig, educatig or reitegratig drug users as alteratives or additios to covictio or puishmet; i cotrast, the commoly used expressio alteratives to priso has o basis i the UN drug covetios ad more arrowly focuses o the settig rather tha the aim of the respose. Returig the focus to the origial policy, which is echoed i the EU Drugs Strategy (2013 20), this paper has tried to outlie the mai rehabilitative measures i use across Europe today ad to set out the mai issues i their desig, implemetatio ad evaluatio, to assist policymakers ad practitioers i the future. Alteratives or additios to puishmet are established i the laws of may coutries i Europe, with a particular focus o problem drug users. These measures, however, are available to varyig degrees ad although evaluatios may suggest positive results, they are ot coclusive. Such success 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 16 / 22

justice system by o-problem users ad it is importat to keep the distictio betwee these i mid to avoid cofusio. Ufortuately, it is ot always clear that this distictio, or prioritisatio, has bee made i the desig ad implemetatio of the differet measures. A umber of challeges were ecoutered i coductig this work. Most fudametally, the search questio asked at the time of the differet EMCDDA ad other trasatioal data collectios usually referred to treatmet-orieted alteratives to priso, as that was the expressio commoly used, ad so some mechaisms may ot have bee icluded. Secodly, it is a costatly chagig area, with coutries itroducig ew ad ameded provisios o a regular basis. Thirdly, most of these provisios have ot bee the subject of formal evaluatios ad certaily ot radomised cotrolled trials, so assessmets of effectiveess are difficult. Fially, the opportuities for diversio ito alteratives to puishmet differ betwee judicial systems, ad so programmes are ulikely to be directly trasferable. However, it is still possible to idetify broad coclusios ad ideas that may be helpful to those cosiderig itroducig these approaches. Whe cosiderig the desig of these measures, examiatio of the differet optios aroud Europe reveals a rage of factors that may be useful to aalyse the idividual measures ad to idicate the stregth of policy priority i a coutry as a whole. Take idividually, each factor (see Table 1) broadly affects the umber, ad sometimes the type, of offeder who may eter a programme. Yet the factors are also iterdepedet; certai combiatios of factors will affect the umber who may complete a programme successfully, for example whe the offeder is matched with the most appropriate type of measure. Therefore, for each measure, combiatios of factors should be checked for coherece. Fially, i desigig a package of measures for ay particular coutry, oe may also cosider the comprehesiveess of the differet types of measures i addressig the differet profiles of offeders foud i that coutry ad this may agai be the product of some of the factors listed. Take together, the coherece of idividual measures, ad the comprehesiveess of coverage by differet measures, may be idicative of the stregth of a coutry s geeral policy orietatio towards rehabilitative resposes to drug-usig offeders. Oe problem idetified i this paper is that large umbers of drug users are beig diverted from the crimial justice system without ay systematic follow-up or review of the effectiveess of the measures. I additio, where evaluatios have occurred i Europea coutries, such as with the drug courts, they have produced ambivalet results. Some problems may stem from a lack of clarity regardig the primary objective for may measures (whether it is to reduce icarceratio while maitaiig puishmet, to address addictio, to reduce drug-related crime, or to reduce pressure o the justice system by o-problem users). Cosequetly there is a risk of loss of credibility for such rehabilitative measures, which may result i loss of political support ad fudig. There remais a eed for moitorig ad evaluatio to better assess the effectiveess of such approaches as well as a eed for improved documetatio ad recordig practices i order to fid out how ofte the measure was used. If may schemes are either moitored or evaluated, opportuities to lear lessos ad make future improvemets are beig lost. While it is widely agreed that the geeral deterret of puishmet has little effect o cosumptio levels of illicit drugs, drug use, together with its associated problems, cotiues to be cosidered by may as a crimial justice issue with a cocer about movig too far away from puitive TABLE 1 Desig factors for rehabilitative resposes to offeders Factor Legal system Directio to judiciary Geographical availability Stage of legal procedure Offeder diagosis Offece Exclusio criteria Respose available Treatmet settig Number of places available Cost Rage or optios to cosider Limited to judges withi the crimial law system; or outside it, such as i the civil or admiistrative systems Optioal or obligatory for the judiciary Availability ragig from few locatios to atiowide Ragig from prior to arrest to time of setecig Availability ragig from a limited group of offeders (e.g. addicts, occasioal caabis users) to a very broad group of drug users Applicability ragig from oly for drug use/persoal possessio offeces to ay offece liked with drug use or mior traffickig Desig may provide for multiple exclusios (e.g. possessio of more tha a small quatity, prior crimial record, recidivists) or may exclude oly those accused of very serious offeces Rages from addictio treatmet aloe, to choices of treatmet, educatio, aftercare ad rehabilitatio Rages from a secure facility to ay appropriate settig, icludig outpatiet facilities Rages from very few to ulimited May be bore by the offeder or by the state 17 / 22

setecig. This is visible, for example, i the prologed discussios prior to implemetig the law i Cyprus, the relatively high cost charged to offeders participatig i the drugs awareess course i Frace, ad the move i Italy to oly offer a rehabilitatio programme after the sactio has bee completed. It is ofte assumed that greater deviatio from geeral deterret approaches will sed the wrog message : that drug use is acceptable. To protect agaist this, rehabilitative measures may be accompaied by strict eligibility ad procedural coditios (such as the Polish law that required drug addicts to have o previous covictios) ad a cut-off level where oly those diagosed as sufficietly sick are treated, while those who are ot sick should be puished. The frustratio at official cautio towards movig away from puishmet was expressed succictly by Judge Jo A Ferdiad, Presidig Judge of the Brookly Treatmet Court, New York, who stated This drug court is oly allowed to cotiue because we costatly collect ad submit statistics o recidivism rates, drug use rates, ad cost-beefit calculatios. Yet whe I was just lockig offeders up, obody asked me for ay of those (persoal commuicatio, Jue 2015). Some difficulties i implemetig the measures appear to stem from the attempt at compromise betwee the two aims of treatmet ad puishmet, which ca pervade the etire policy cycle, from desig, through implemetatio, to evaluatio. As stated by the QCT Europe project, success would thus deped i beig able to [cofrot] the essetial cotradictios that the care cotrol dichotomy presets. Oe solutio to this dichotomy may be to slide the focus firmly across to treatmet ad educatio, miimisig puishmet a optio suggested i the wordig to the UN covetios sice 1971, ad recetly reiterated by the INCB (Uited Natios, 2008) ad UNODC (2009). It is i this vei that the model implemeted i Portugal, where the whole admiistratio addressig drug users is uder the healthcare sphere, with several rehabilitative measures available, has bee described as a cosistet ad coheret policy (EMCDDA, 2011b). This approach has bee fuctioig sice 2001. There has bee o major icrease i drug problems that ca be attributed to the ew system (Hughes ad Steves, 2010), ad there is o political will to retur to the previous system. I 2013, the former Executive Director of UNODC, Atoio Maria Costa, said whe iterviewed about the Portuguese system, I applaud the fact that fially we recogise that drug addicts are ot crimials I see drug policy, o the use side, as a health problem, period (Costa, 2013). I additio, as described earlier, a umber of other coutries appear to be movig towards the gradual implemetatio of similar systems, recogisig that first cotact with the o-problem user is a opportuity for (idicated) prevetio i order to address future levels of problem drug use. I summary, few coutries i Europe have chose to adopt widespread rehabilitative approaches, with most optig for simpler policies of decrimialisatio or depealisatio alteratives to priso, but ot alteratives to puishmet. The policies that are adopted are ofte carried out without robust moitorig or evaluatio, despite the fact that ivestmet i these could show divideds i the log ru by providig iformatio that ca be used to improve the efficiecy ad effectiveess of the programme. But eve if the resultig evidece is ot strog, the key to success seems to be havig a rage of itervetios available that ca be matched appropriately to the eeds of idividuals with differet types ad levels of drug problems. 18 / 22

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