Addiction to alcohol and other drugs is behind so much of the crime in countries such as New Zealand that a specialist court for addicts could radically change our system of criminal justice. Two such courts will be set up in Auckland this year on an experimental basis for four to five years. The results will be watched with interest.
They will aim to cure addicted offenders rather than simply punish them, which is a fine objective but so is justice. At a conference in Auckland last week our judges, lawyers and drug treatment agencies heard from their counterparts in the United States where specialist drug courts have been operating for 20 years and appear to have produced a decline in repeat offences. A key to their success, the visitors said, was dispensing with the adversarial positions of prosecutor and defender. Both sides would join forces with the judge to arrange a rehabilitation programme.
Adversarial procedure is much maligned in discussion of justice these days but it exists to deal with the inevitable conflict between the interests of the wrongdoer and the wronged.
Courts that bring all parties around a table to focus on the problems of the offender run the risk that victims will have no effective voice, the offence will be diminished and society will not see justice being done.
Specialist problem-solving courts such as youth courts are already well established in this country though they are not well known. How many were aware we have specialist Maori and Pasifika youth courts, and even a special court for the homeless?
Drug courts would absorb much more of the work of general courts. Between 80 and 90 per cent of crime in New Zealand is said to have been committed under the influence of alcohol or other drugs. Obviously not all such cases would be suitable for diversion to a drug court. The offender would have to be genuinely seeking help. A guilty plea would be a promising start. Then it would be the court's task to assess whether guilt was admitted merely to avoid a prison sentence.
One of the American jurists here last week, Peggy Fulton Hora, a founder of specialist criminal courts in the US, estimates that 80 per cent of drug and alcohol offenders want to overcome their addiction and can be rehabilitated. If she is right, and the costs of treatment are within reason, New Zealand would be able to stop building expensive prisons and turn some of the new ones into sanatoriums.
New Zealand's $2 million experiment, recommended by the Law Commission, will need to show that offenders dealt with by drug courts do not reoffend at the 70 per cent rate of recidivism by products of the prison system. But success might depend on much more being spent to provide a sufficient number and quality of treatment centres.
In that event, it would be fair to ask whether the same result could be gained from providing the same quality and capacity for addiction treatment within prisons, which would be preferable from the point of view of justice. Addiction, after all, may be an explanation for a criminal act but it is not an excuse. It is only fair to the victim and to society that an element of punishment is present in the most therapeutic of sentences.
In the US, Judge Hora told the Weekend Herald, there are specialist courts for crimes committed by gamblers, pregnant girls, gun owners and war veterans as well as drug addicts. It threatens to reach a point that every criminal offender can find a court where they will be seen as a victim. Judges in general criminal courts can be sensitive to addiction without losing sight of crime's real victims. Courts are for finding facts and dispensing justice. Sentences that reflect the crime can be therapeutic too.