Diversion and criminal justice drug treatment - Wiley Online Library

Drug and Alcohol Review (July 2006), 25, 377 – 385

HARM REDUCTION DIGEST 33

Diversion and criminal justice drug treatment: mechanism of emancipation or social control? GARNER CLANCEY1 & JOHN HOWARD2 1

CHD Partners and Teaching Associate of the Australian Security Research Centre, University of Western Sydney, and Ted Noffs Foundation, Sydney, New South Wales, Australia

2

In Australia, as elsewhere, there has been a rapid growth in programs to divert drug-using offenders from the criminal justice system to assessment and treatment. In this Harm Reduction Digest, which builds on papers presented at the APSAD Conference in Melbourne, November 2005, Clancey and Howard take a reflexive look at the Australian experience since the launch of the National Illicit Drug Diversion Initiative in 1999. In putting diversion within a broader criminological and societal context, they suggest that we may have criminalised drug policy and may ultimately be doing more harm than good. SIMON LENTON Editor, Harm Reduction Digest

A cause for reflection Reflexivity is a hallmark of the ‘caring professions’. Given the faith and trust that clients place in caring professionals, regular scrutiny of interventions and practices can safeguard against harmful outcomes. Analysing consequences of interventions, the impact of labels and the outcomes of treatment systems are essential to reflexive practice. Continuous consideration of the totality of developments in the alcohol and other drug field should be commonplace, given the potential for negative unintended consequences emanating from seemingly benign policies. In recent years there has been an ever-decreasing gap between the alcohol and other drug field and that of crime control. Illicit drug diversion initiatives, drug courts and prisons have grown in number and nature over the last decade. The Council of Australian Governments (COAG) Illicit Drug Diversion Initiative Framework developed in 1999, and the NSW Drug Summit held in the same year, provided considerable impetus to the proliferation of

drug interventions designed to prevent or reduce crime in Australia. The growth of these developments requires analysis and review. Substantial public money has been invested and significant numbers of Australians are directly affected by these programs. Furthermore, once established, programs can be difficult to remove due to the associated apparatus that develops around, or in support of, a program. While numerous evaluations of discrete programs have and are being undertaken, we thought it necessary to stand back from these individual programs and contemplate the wider consequences and the conditions relevant to these developments. We have attempted to consider these developments through social control and criminological lenses, embedding these developments within wider disciplinary movements. In so doing, we revive important questions about unintended consequences, such as net-widening, and contemplate whether these initiatives unnecessarily intrude into the lives of some of the most marginalised and disadvantaged members of our society. We also seek to question whether our fixation on drug use as

Garner Clancey BA, MCrim(Hons), Director, CHD Partners and Commercial Associate of the Australian Security Research Centre, University of Western Sydney, Sydney, Australia, John Howard BA, MA(Couns), MClinPsych, DipCrim, PhD, MAPS, Director Clinical Services, Training and Research at the Ted Noffs Foundation, Sydney, Australia. Correspondence to Dr John Howard, Ted Noffs Foundation, PO Box 120 Randwick, NSW 2031, Australia. Tel: 02 9310 0133; Fax: 02 9310 0020; E-mail: [email protected] Received 6 March 2006; accepted for publication 21 March 2006. ISSN 0959-5236 print/ISSN 1465-3362 online/06/040377–09 ª Australasian Professional Society on Alcohol and Other Drugs DOI: 10.1080/09595230600741388

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a determinant of crime blames individuals at the expense of wider social policy.

demonstrates the potential reach of these schemes into the lives of predominantly very minor drug users.

Diversion, drug treatment and the criminal justice system

Magistrates Early Referral into Treatment

A perfunctory scan reveals growth in diversion and drug treatment interventions within the criminal justice system in New South Wales (and other Australian jurisdictions) [1]. The following provides a very basic overview of some of these developments. While many of these programs have been (or are being) evaluated independently, the purpose here is to engage less with the details and intricacies of these findings than to merely illustrate the growth in these initiatives. Pre-court drug diversion A plethora of pre-court drug diversionary schemes has developed across Australia in recent years, consistent with, supported by or in response to the COAG Illicit Drug Diversion Framework. The COAG Communique signed on 9 April 1999 agreed to the establishment of a new nationally consistent approach to drugs in the community involving diversion of drug offenders by police to compulsory assessment [2]. Consistent with this framework, police cautioning schemes and precourt diversionary schemes now operate across the country. The Western Australian, Victorian and New South Wales (NSW) cannabis cautioning systems, the Drug Diversion Assessment Program in Queensland and the Police Drug Diversion Initiative in South Australia are but a sample of these initiatives that promote diversion from the formal criminal justice system. An evaluation of the first 3 years of the NSW Cannabis Cautioning Scheme revealed that 9235 cautions were issued by police, with 75% of these cautions issued for possession of 5 grams or less of cannabis (the average was 3.4 grams and the median 2.0 grams). While overall the scheme was deemed to have been effective in diverting minor cannabis offenders from court, there was some net-widening with an overall increase of 2556 legal actions (when compared with the legal actions for minor possession of cannabis prior to the introduction of the scheme) in the 3 years since the commencement of the scheme. Furthermore, it was found that Indigenous people were less likely to receive a caution than non-Indigenous people [3]. The cannabis cautions in NSW constitute but a small proportion of the total number of people diverted from court for minor cannabis possession charges across Australia. In a speech by the Governor-General in 2004, he stated that ‘the Illicit Drug Diversion Initiative . . . has ‘‘diverted’’ around 50 000 drug users since it was formulated by COAG in 1999’ [4]. This

Reflecting features of the Victorian CREDIT scheme, the NSW Magistrates Early Referral into Treatment (MERIT) scheme enables defendants appearing at courts, other than the limited number of drug courts, to voluntarily access treatment for (alcohol and other) drug dependence. The primary goal of the NSW MERIT scheme is to ‘break the drug – crime cycle by involving defendants in treatment and rehabilitation programs’ [5]. Those people accepted onto the program are case-managed and matched to treatment options, including withdrawal management, residential rehabilitation, methadone maintenance, out-patient consultation, counselling, urinalysis and other medical and welfare support services [6]. The first NSW MERIT program commenced at the Lismore Local Court in northern NSW in July 2000 [7]. Originally, this program was to be trialled for 12 months, but this was later extended to 24 months. Despite concerns about the absence of controlled evaluation studies of drug diversion programs [8], the scheme was soon expanded due to early ‘promising results’. As at 7 September 2005, MERIT operated in 53 local courts in NSW with over 4000 people accepted on the program since inception [9]. The evaluation of the Lismore ‘trial’ revealed that of the 238 participants referred to MERIT, 72% were accepted, with half of those entering the program successfully completing it. Less severe court sentences were granted to those people successfully completing the scheme. ‘Non-compliers’ were deemed to have received harsher penalties due to reduced prospects of rehabilitation [10]. Drug courts Drug courts have become a feature in the rise of ‘therapeutic jurisprudence’, whereby the law is considered a therapeutic agent [11]. On 8 February 1999 the first Australian drug court commenced in Parramatta (NSW) [12]. Since this time, drug courts have opened in Victoria, South Australia, Western Australia and Queensland (which operates five drug courts). NSW and Western Australia also operate youth drug courts. While the models vary across jurisdictions, the principles upon which these courts operate are somewhat consistent. Ostensibly, treatment is provided as an alternative to a period of incarceration. The NSW drug court operates within a complex array of legislative and procedural requirements. Referrals to the program must comply with various criteria, including demonstrable drug dependence, a guilty plea and

Harm Reduction Digest 33

the exclusion of those persons charged with ‘an offence involving violent conduct’ [13]. If the relevant criteria are met, a preliminary health assessment is conducted and a detoxification period (bail is often refused for this period) is completed. Following detailed assessment, a treatment plan is then developed. The treatment plan can include regular reporting to the court, participation in specific programs, urinalysis three times weekly, counselling twice weekly for the first 6-week period and regular contact with a case manager. Failure to meet these conditions can result in sanctions being imposed. Sanctions can include being reprimanded by the Judge, paying a monetary penalty, complying with a curfew, being demoted to a previous phase of the program, increased urinalysis or short periods of incarceration. For satisfactory completion of particular program objectives, participants might receive rewards, including applause from court staff and material rewards. Successful completion of the program is only likely after 12 months of successfully remaining on the program, including being drug-free for the final 6 months [14]. The NSW drug court has been subjected to numerous evaluations. Analysis of ‘early-phase predictors of program compliance’; cost-effectiveness; health, well-being and participation outcomes and process evaluations have been undertaken to date by the NSW Bureau of Crime Statistics and Research. From these evaluations, it has been estimated that the total costs for 309 participants on the NSW drug court was $13 495 727 [15]. While it has been estimated that 60% of participants were terminated prior to 12 months, numerous positive benefits accrue to participants who do remain on the program. For example, improvements in health, social functioning and drug use were found [16], and while mindful of the challenges of accurately assessing cost-effectiveness, the average daily cost for a drug court participant is estimated as being lower than for conventional punishment [15]. The NSW youth drug court (more recently expanded to be known as the youth drug and alcohol court) commenced on 31 July 2000, with the aim of reducing criminal activity and other problematic behaviour linked to drug misuse among 14 – 18-year-olds initially in the Western and South-Western Sydney catchment areas, which was further expanded to include Sydney and Eastern Sydney [17]. Similar to the adult drug court, this scheme combines intensive judicial supervision, case management, drug treatment and other interventions. Participants are assessed for their suitability and then, while on bail, submit to regular urinalysis, reside as directed, participate in weekly group and individual sessions, attend vocational/educational programs and participate in residential programs as required. Regular report-back sessions ensure that judicial supervision and support is maintained.

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It was originally estimated that the youth drug court would cap referrals at 120 per year for the first 2 years of operation. In this period (i.e. the first 2 years), the youth drug court received 164 referrals, of which 75 young people were accepted on to the program with 29 young people ‘graduating’. This represents approximately an 18% success rate based on total referrals or a 39% success rate, based on those young people accepted onto the program. It has been estimated that the establishment and first 18 months of operation of the NSW youth drug court cost $5 384 546. The evaluation of the scheme suggested that this compares favourably with the costs of keeping a young person in custody [18]. Drug prisons There are currently plans to develop a ‘drug prison’ in NSW. The Compulsory Drug Treatment Correctional Centre was first announced by the Premier in 2003. In the second reading speech of the Compulsory Drug Treatment Correctional Centre Bill 2004 to the Legislative Assembly, the Honourable Graham West described the drug prison in the following way: ‘The Compulsory Drug Treatment Correctional Centre will target a hard-core group of offenders with long-term drug addiction, who have an associated life of crime and constant imprisonment [emphasis added]. It is for offenders who have failed to enter or complete other voluntary or court-based treatment programs’ [19]. The explanatory notes of the Exposure Draft Compulsory Drug Treatment Correction Centre Bill provide an outline of the Compulsory Drug Treatment Correctional Centre program. The Exposure Bill identifies three stages of the program: closed detention, semi-open detention and community custody. The drug court will be responsible for making an ‘order that the drug offender serve his or her sentence of imprisonment by way of compulsory drug treatment detention . . . The offender will be required to comply with a compulsory drug treatment plan . . . the personal plan will contain certain conditions relating to conduct and good behaviour, attendance in counselling or other treatment, . . . periodic drug testing, courses, training or employment’ [20]. To be eligible, a person must have been sentenced for three offences in the previous 5-year period, they must be drug-dependent and they must be sentenced to a custodial period of 18 months, but no more than 3 years. They will be ineligible if they have a serious mental condition or illness that causes violence, and they will be ineligible if they have committed a number of offences, including: murder, attempted murder, manslaughter, sexual assault (or any sexual offence involving a child), any offence involving the use of a firearm, serious violence and manufacture and supply prohibited drug [21].

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The Compulsory Drug Treatment Correctional Centre was due to commence at the end of 2005. There has been no further announcement heralding the commencement of this initiative, though the 2005/2006 NSW Budget Estimates identifies that $4 million has been allocated to NSW Corrective Services for refurbishment of a correctional facility to establish this program [22]. This would suggest that the commencement of the first NSW drug prison is imminent. Consequences and impacts Clearly, there has been considerable activity in establishing, expanding and evaluating criminal justice drug treatment and diversion initiatives in recent years. Some of these developments represent quite considerable intrusion into the lives of many. Coerced treatment, urinalysis, official recording of personal information, judicial supervision and intensive case management are but some of the procedures that have been adopted under the banner of criminal justice drug treatment. Given the potential significant consequences for those people subjected to these practices and regimes, it is worth considering the impacts of these criminal justice drug treatment schemes. Net-widening Diversion from court to police cautions and victimoffender mediation/conferencing models and ‘alternatives’ to imprisonment, such as community-based correctional orders (probation, recognizance, community service orders), were developed to reduce and/or diversify the reach of the state. These alternatives to court or custody have been variously justified by concerns about stigmatisation, labelling, secondary deviance, costs and inefficiencies and to reduce deeper penetration into more intrusive processes of the criminal justice system. Diversion of young people away from the clutches of the stigmatising and contaminating courts to a police caution recognises that the vast majority of young people will cease offending, with little or no official intervention [23]. The advent of community-based corrections provided an alternative to the perceived degradation (and expense) of incarceration. It has been shown, however, that diversionary schemes established (in the main) to prevent young people from entering the juvenile justice system actually increased the total number of young people coming into police (state) contact [24]. Minor offences, previously dealt with informally, soon fell within the purview of the state. This process of increasing state contact with young people became known as net-widening [25]. Similarly, community-based sanctions increased, rather than decreased, the number of people in contact with the criminal justice system. Those incarcerated

were soon a minority of the total number of people under supervision of corrective service authorities. The machinery and infrastructure created to support these ‘alternatives’ to custody is now an entrenched part of the system and as Worrall & Hoy note, we are now creating alternatives to our alternatives [26]. Home detention, periodic detention, electronic surveillance of parolees, sex offender registers, drug treatment programs, attendance centres, cognitive – behavioural therapies and bail reporting are just some of the new and/or continued ways that the criminal justice system seeks to control and discipline ‘offenders’ outside prison. Despite the monies invested and creativity of developing new and improved alternatives to custody and diversionary initiatives, we continue to see an upward trend in the use of imprisonment. The rise in incarceration in Australia has been significant over the last decade. As at 1 September 2005, there were 24 296 (full-time) prisoners (sentenced and remanded) in Australian prisons [27]. This represents a 45% increase since 1995, and with current prison building programs in many States and Territories, further increases are likely. Further to those people imprisoned, 54 906 people were serving community-based correctional sentences at the September quarter of 2005. These increases in imprisonment and community-based supervision are despite falls in robbery offences, homicide, unlawful entry with intent and motor vehicle theft in Australia in recent years [28]. In the context of criminal justice drug treatments there is some evidence of net-widening. The evaluation of the NSW Cannabis Cautioning Scheme highlighted the increased number of total interventions after the introduction of the scheme. The reduction in court appearances was exceeded by the numbers issued with a caution. Given the particularly small quantities of cannabis (3.5 grams on average) involved, it could be argued that there is little merit in having police intervene at all. Furthermore, the intensification of treatment regimes is itself a form of net-widening (more accurately known as mesh-thinning). Once in the net of the criminal justice system, people find it harder to escape, as more and more complicated mechanisms are established in the name of treatment. For example, reporting requirements, urinalysis, program participation, bail reporting, restrictions on living arrangements, curfews and electronic monitoring all increase the likelihood of ‘non-compliance’. High ‘failure’ rates associated with drug courts and MERIT schemes are attributable to increasingly demanding program requirements. For some, serving a period of incarceration becomes a more attractive alternative than the ‘alternative’ to prison, as there are less complications and potentially greater chances of disentangling from the net of control upon release [29].


Discriminatory application Australian criminal justice interventions have been shown consistently to be applied inequitably. Indigenous people are massively over-represented in the criminal justice system. National figures show that Indigenous adults are 15 times more likely to be imprisoned than non-Indigenous adults, and that the proportion of the total number of prisoners in Australia that are Indigenous has increased over the last decade [30]. Moreover, Indigenous people are invariably under-represented in diversionary schemes [31]. Despite the seemingly minor decisions regarding diversion, the ongoing consequences of not being diverted can be significant, particularly for those Indigenous people who have further contact with the criminal justice system. One study into juvenile diversion found that ‘young Aboriginal people have a 10 – 15% greater chance of going to court rather than receiving a formal police caution. While the difference is not large, the compounding effect over time may be very significant, particularly in relation to decisions concerning first offenders where the acquisition of a criminal record is likely to influence later discretionary decisions’ [32]. Evaluations of the NSW Cannabis Cautioning Scheme and the Lismore MERIT trial point to what could be seen as worse outcomes for Indigenous people. Fewer Indigenous people (11%) received cannabis cautions than non-Indigenous people (31%). The exact reasons for this disparity are not known, although failure to meet the eligibility criteria was a critical factor highlighted in explaining these differences. Previous criminal records and failure to admit guilt were two key criteria that appeared to be barriers to accessing this form of diversion [33]. The Lismore MERIT trial found that Indigenous participants were less likely to complete the program than nonIndigenous participants. Little explanation was provided for this important difference, though comments from program stakeholders suggested limited dialogue between local Indigenous service providers and MERIT personnel, and the need for greater program flexibility to accommodate the needs of Indigenous participants [10]. Drug courts are not immune to these difficulties. Of the 313 participants who commenced on the drug court program in the first 17 months of operation, only 7% were Indigenous [34]. Slightly more promising were the rates of Indigenous young people referred to the youth drug court. Discrepancies in data sources were highlighted in the evaluation report, with suggestions that young Indigenous people constituted between 23% and one-third of program referrals. However, young Indigenous people had a slightly lower acceptance rate onto the program (42% compared with 48%) when compared to non-Indigenous people [18].

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Given the intractable over-representation of Indigenous people in the criminal justice system in Australia (and NSW), and more particularly in custody, it is vital that programs designed to divert and prevent further penetration into the criminal justice system work for Indigenous people. Justice by geography Justice by geography is a term devised in response to the significant geographic disparity in rates of diversion [35]. Analysis of diversionary patterns across a jurisdiction such as NSW might highlight different rates across police local area commands or court catchment areas. Patterns of offending, previous offending histories and admissions of offences are just some of the reasons that could naturally contribute to disparate diversionary rates, although extra-legal characteristics (demeanour, contrition) have also been shown to influence diversionary schemes [36]. The NSW drug court and the NSW youth drug and alcohol court are both based in metropolitan Sydney. The MERIT scheme has expanded dramatically since its inception in 2000, although only one court west of Dubbo operates MERIT (Broken Hill). While the Cannabis Cautioning Scheme operates state-wide, the evaluation revealed that the Western Police Region (this region encompasses towns with significant Indigenous communities) had the lowest cautioning rate in NSW. Given the high rates of disadvantage experienced by Indigenous people in remote and very remote areas [37], it seems that those of greatest risk of contact with the criminal justice system are poorly serviced by these criminal justice drug treatment initiatives. Institutionalisation and function creep The manner in which programs and initiatives become part of the treatment or punishment fabric is worthy of consideration. Despite being labelled as ‘trials’ or ‘pilots’, schemes have a way becoming an entrenched element of the ‘system’. Referral systems, operating structures, personnel and the time required for participants to ‘graduate’ build up around a new program, making it difficult to dismantle, irrespective of the outcomes achieved. Take, for example, the NSW MERIT ‘trial’. The trial commenced in June 2000, originally for 1 year, but was then extended for a further year. The evaluation was released in 2003, yet in 2002 a conference paper from Flaherty & Jousif (NSW Attorney General’s Department) heralded the expansion of the program, due to the ‘promising early results’ [38]. Statements regarding the importance of evaluation findings in determining the ongoing viability of the scheme became little more than forgotten sound-bites.

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Moreover, once a program or initiative takes hold in one jurisdiction, it is often used as the basis for an extension of the program or as justification for a new initiative. The proliferation of criminal justice drug treatment schemes across Australia (and through many western societies) is testimony to this phenomenon. The globalisation of social policy might well provide beneficial insights, but it might also result in homogenous policy transfer with little consideration of local conditions and populations. Making sense of these developments It does not seem too long ago that we guarded vigorously against the incursion of the state or rejected coerced treatment as dangerous. Routine urinalysis, electronic monitoring and home detention were the stuff of science fiction or socially apocalyptic narrative. What has changed for us to embrace so readily treatment regimes that have such far-reaching consequences for people who are drug-dependent? The answers are inevitably contentious, and in the remaining space, incomplete. None the less, we thought it relevant to consider some of the influences that have supported and enabled the growth in criminal justice drug treatment. Illicit drug use and offending It is unsurprising that there has been considerable focus on criminal justice drug treatment and diversion. The costs of both illicit drug use and crime are substantial and a plethora of reports demonstrate the association between illicit drug use and crime. Illicit drug use has significant costs for the individual user and to the wider community. Collins & Lapsley estimated that the total social costs of illicit drug use in Australia in 1998/1999 were $6.1 billion [39]. While this figure was lower than that for alcohol ($7.6 billion) and substantially lower than that for tobacco ($21.2 billion), it still represents a significant cost. Estimates of the costs of crime in Australia suggest that approximately $32 billion annually is spent on direct and indirect costs of crime. Specific offences constitute differing amounts to the overall costs, with fraud topping the list at $5.88 billion, burglary the next most costly at $2.4 billion and drug offences the third most costly at $1.9 billion [40]. Numerous reports confirm an association between drugs and crime [41]. The Drug Use Monitoring in Australia (DUMA) study undertaken by the Australian Institute of Criminology reveals that almost half (47% in 2004) of detainees brought into those police custody suites participating in the research report drug use prior to their arrest [42]. A smaller percentage (37%) of the 3834 detainees interviewed as part of this study in 2004

attributed at least some of their offending to drugs (excluding alcohol). While rigorous studies of the links between drugs and crime continue to highlight the complexity of the relationship, it is possible that public policy and commentators assume a causal link too easily. Teece & Makkai’s (2000) study of reporting of drug use and crime in a sample of Australian newspapers revealed that 20% of articles mentioning drugs and crime inferred an economic – compulsion link between drugs and crime. Between 1995 and 1998, reference to this link as an explanation for crime increased from 20% to 46%, reflecting, they believed, the increased reporting of heroin use [43]. It appeared that drugs and their use had replaced ‘broken homes’ and ‘working mothers’ as the cause of crime. Developmental psychologists and criminologists have shown that criminality results from the cumulative interaction of numerous risk and protective factors [44]. No one single risk factor is associated with crime, and many of the risk factors identified are common to various forms of ‘risk-taking’ behaviour, such as drug use, offending behaviour, self-harm and unsafe sex. For example, the 2003 NSW Young People in Custody Health Survey showed young detainees suffered a spectrum of poor health, educational and psychological outcomes. Nearly half (43%) had had one or more parents imprisoned; three-quarters had left school before finishing year 9; 36% reported high or very high psychological distress; and 84% reported mild, moderate or severe symptoms consistent with a clinical disorder [45]. These data point to multiple disadvantage, requiring more than individualised drug treatment and/or diversion. A popular punitive agenda Irrespective of jurisdiction, the political rhetoric is clear and consistent: governments (irrespective of persuasion) must be tough on crime and tough on the causes of crime (which in part means tough on drugs [46]). Election campaigns are now routinely fought on ‘law and order’ issues. More police, more prisons, longer prison terms and new crime control techniques are espoused to demonstrate credentials on ‘law and order’. The current NSW Minister for Justice and Juvenile Justice, Tony Kelly, provides a recent example of this popular punitive agenda. Mr Kelly, in an article titled, ‘Kelly happy to get tough on young offenders’ [47] was quoted as saying, ‘I haven’t got a reputation for being soft, in fact I’ve got the opposite reputation. If they want to get tough on these kids [i.e. young people detained in a NSW detention centre] then I’m quite happy to do that’. The burgeoning ‘mixed economy of policing’ in Australia does little to quench this desire to be tough on


crime. There were 45 201 full-time sworn police in Australia in 2004/2005 [48], an estimated 72 000 private security personnel [49] and untold numbers of transit officers, special constables, rangers, RSPCA inspectors, Environmental Protection Authority (EPA) inspectors, Protective Services personnel, customs and the Australian Crime Commission (and State and Territory-based equivalents) in Australia. Not only are the number of policing agents and agencies expanding, but so too are their powers [50]. Quick perusal of legislative reform in each Australian State and Territory reveals considerable growth and/or planned extension of policing powers [51]. Powers associated with move-on, stop-and-search, place and non-association restriction orders, bail ‘reforms’, curfews, alcohol-free zones, drug houses, child protection, listening devices, drug-detection dogs, anti-social behaviour orders and parenting orders all extend the reach of police (and courts) into the lives of many. It is not only those within the criminal justice system who are being watched. There is a quiet surveillance revolution occurring in Australia (as with other western democratic nations). Disparate techniques are routinely used to observe, categorise, monitor, control and discipline. CCTV, drug testing in the work-place, biometric access control, identity and smart cards and consumption slavery (i.e. mortgages, credit cards, store cards) are but some of the techniques supporting policing regimes. These developments prompted Anna Johnston, Chair of the Australian Privacy Foundation, to say recently that ‘there’s a danger we’re sleepwalking into a situation where more and more of our lives can be logged, tracked, profiled and matched’ [52]. Fear and anxiety percolates beneath these trends. Media reporting of crime and ‘law and order’ auctions de-sensitise and de-humanise. Research findings repeatedly confirm that Australians believe that crime has increased irrespective of current crime statistics. Depending on age, the Australian Social Attitudes survey found that between 60 and 81% of respondents agreed that crime had gone up. Moreover, 20 – 41% of the respondents agreed that immigrants increase crime [53]. The political punitive agenda gives expression to community fears which fuel demands for more and new ways of achieving security. In this climate of control, personal security of the ‘deserving’ has the potential to be preferred over the rights of the ‘undeserving’. The ‘what works’ doctrine In these (supposedly) fiscally constrained times, governments want to better know what investments will bring the greatest outcomes. The relatively recently

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established productivity and audit commissions across the country report frequently on the effectiveness of government spending. Inputs, outputs, outcomes, performance measures and key performance indicators are the language of this managerialist epoch. Increasing sophistication of research methods, databases, data analysis, statistical modelling and cost – benefit and cost – effectiveness techniques have enabled more rigorous interrogation of various social policies. Longitudinal research is now providing clearer evidence of the long-term outcomes of particular initiatives. The Campbell and Cochrane collaborations provide results of meta-analytical evaluations of specific treatment programs. Armed with a knowledge of ‘what works’, policy elites are now able to more readily leave aside questions of unintended consequences and personal harms that might arise for the ‘non-compliers’ or those stubbornly resistant to apparently effective treatment. Under the guise and protections of science, those policies and programs showing ‘promise’ or positive results flourish. In this way, exclusionary agendas have the potential to be legitimised. The emergence and ubiquity of risk [54] is a salutary reminder of the potential application and consequences of the ‘what works’ science. ‘At-risk’ individuals and populations are targets for intervention; risk assessments determine ‘dosage’ of intervention; risk principles guide programmatic interventions and risk profiles operate to exclude ‘dangerous’ clients. Then the remaining ‘clients’ are ‘matched’ to ‘evidence-based treatment’ where, at times, the ‘evidence’ was developed from studies with somewhat different populations or in very controlled research trials. It should, however, be remembered, that the policies mounted to tackle these risk factors are far from ‘detached, value-free and neutral’ [55]. Individualism Whether it is the enticing rewards of consumerism or the individual freedoms of neo-liberalism, there is an increasing focus on individual wealth, success, security and achievement in Australia. Shared responsibilities give way to mutual obligations, collective bargaining is replaced by individual contracts and public goods become privately owned. In this competitive environment, there are new breeds of winners and losers. The ‘winners’ are afforded all manner of luxuries and privileges. They enjoy the freedoms born from purchasing security. Private residential complexes are patrolled by private security utilising the latest technological access control measures; vehicle security can include GPS tracking, immobilisers and alarm systems; city office blocks provide private parking and private security concierge; biometrically controlled access to offices protect the workplace and private sporting facilities

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enable the winners of an expanding global knowledge economy to enjoy the freedoms of success, while the ‘losers’ gradually disappear (literally) from sight. Due to homes built on the fringes of sprawling cities, extended trading hours and work-place reforms, it means that an army of workers drift in and out of the city centres in the dead of night; transit officers patrol trains and train stations for miscreants; private security exclude those failing to meet dress standards in the newly privatised public spaces; behaviour in public hospitals is monitored in the interests of occupational health and safety; dangerous students are expelled or suspended from public schools; and inappropriate behaviour in public housing results in an anti-social behaviour order or termination of the ‘luxury’ of public housing tenure. Despite overwhelming evidence that drug dependence and crime are disproportionately associated with disadvantage, reasons for and solutions to these predicaments increasingly reside in individual action. The ‘rational choice offender’ is as capable of choosing to commit a crime as they are of getting a job or abstaining from drugs. Treatment of these ‘wicked’ individuals is preferential to policies that re-distribute wealth, provide housing or create meaningful employment. The consequence of not being ‘responsibilised’ is state intrusion, the harms of which are justified by the reduction in risks to the wider populus. Conclusion This paper has sought to be far-reaching in its scope, linking trends in drug treatment to surveillance and control techniques of the penal system to security regimes. Ambitious and necessarily flawed, we have attempted to locate drug treatment initiatives within wider control and discipline techniques. In so doing, it has been our intention to raise some fundamental questions about the efficacy of emerging drug treatment initiatives which pose as ‘alternatives’ to prison, court or other penalties. In creating this labyrinth of drug treatment and diversionary schemes within the reaches of the criminal justice system, one asks if we have criminalised drug policy and whether we are ultimately doing more harm than good. Cohen, Foucault, Blomberg and other commentators questioned the extension of state control with the emergence of prisons, community corrections and diversionary options. Concerns about net-widening, unequal access and entrenchment within disciplinary systems created a willingness to openly question and consider the unintended consequences of state practices. It is perhaps timely to question the growth industry of drug treatment in the interests of protecting those who have most to lose in their dealings with the state and its attendant private apparatus.

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