Rehab versus prison for criminals

Judges will soon send criminals with serious drug and alcohol problems for treatment instead of to prison. Photo / Thinkstock

When Peggy Fulton Hora was a brand new judge in America she did what she thought she was supposed to do.

She sent people to jail.

"And I'd tell them don't drink any more and don't use other drugs and I would literally wag my finger at them."

Wagging her finger didn't work any more than jail did, the 66-year-old now-retired judge told the Weekend Herald before attending a landmark conference in Auckland last week on the establishment of specialist drug and alcohol courts in this country.

Hora recalls how surprised she was when people she had sent to prison soon turned up again.

"I'd say 'my God', what about this didn't you understand?' And I'd double the sentence and they'd come back, and I'd triple the sentence and they'd come back."

Day after day the failures would traipse through her California courtroom.

How depressing this was, she says. The reason people came back was generally the same; they'd got drunk again or had taken drugs again.

So she became involved in a new form of justice which took an interest in actually helping people kick their habits and also addressing the sometimes myriad other issues in their lives.

The grandmother, sometimes referred to as the mother of therapeutic justice, became a founding member of a court system which has crept into cities around the world and is now a global phenomenon across 20 countries.

These courts go by various names - problem-solving courts, issue-focused courts - and New Zealand already has some for youth and the homeless.

By the end of the year, two pilot alcohol and drug courts will be added in Auckland. Following a recommendation by the Law Commission, the Government has agreed to spend $2 million funding the pilots for four to five years to see if they work.

And they will work, says Hora, who in the past has been accused of running "hug a thug" courts but has an answer to suit whatever the political argument, be it from law and order advocates or from the liberal left.

The courts, she says, have been studied more than any other criminal justice initiative in history and the results are inescapable - they reduce crime, unite families, improve lives and increase community safety. "And they're cheaper, hello".

It is not a matter of spending more money - because we're already spending a lot of money - but of reallocating the money we spend.

If you can fix alcohol and drug issues, Hora believes, you can fix a huge amount of what is wrong with society, and she says America is a better place because of the courts.

"Crime has gone down like mad, the incarceration rates of young African American males is down."

She says spin-offs for New Zealand will come in positive ways, such as a reduction in our child abuse statistics. Alcohol and drugs generally underpin 80 per cent of child abuse and neglect.

The remaining 20 per cent is committed by bad people and they do need to be locked up - Hora says she has sent many a bad person off to prison "with glee. I'm not a soft-on-crime person, no one would ever call me that."

The United States now has 2600 specialist alcohol and drug courts plus 1200 types of other problem-solving courts.

There are courts for gamblers and courts for pregnant girls. There are courts for people up on gun charges and courts for veterans returning from service with post-traumatic stress and addictions.

In New Zealand, we've started down the same road. There's a specialist youth treatment court in Auckland for youngsters on a path to destruction and jail. A judge presides but also vital to the process is a team of people, present at each hearing, from a variety of treatment services and other organisations.

Together they design a comprehensive plan for the young person which includes treatment and sanctions, plus the usual requirements for community service and reparation.

Auckland also has a specialist court for the homeless and in Christchurch a specialist drug court for youth has been operating for some years.

Porirua has a community court, which is still a district court but is co-located with a range of agencies from welfare to health.

There are also rangitahi/youth courts where sentencing takes place on marae, as well as Pasifika youth courts.

Hora says New Zealanders need to add alcohol and drug courts because of our incredibly alcohol-permissive society.

The judge has seen it all but even she is shocked by how much we drink.

It's true New Zealand's justice system is awash with alcohol.

Alcohol and drugs are said to be behind 80 to 90 per cent of all cases in our courts, from drink driving to domestic violence, and 80 per cent of our prisoners are said to be behind bars because of drugs and alcohol.

Most murders and assaults occur under the influence and that's often both the perpetrator and the victim.

There are 300 offences a day from alcohol and drugs, $85 million is spent every week on alcohol, and nearly $7 billion is estimated to be spent every year in wider social costs.

The statistics and their implied human misery is the reason a conference venue in Auckland on Thursday and Friday was packed with judges, lawyers, Salvation Army officers, police - and many more who work in treatment and law enforcement.

American experts had been flown in to talk through the American model of drug courts so this country can work out how our pilot courts will operate.

The first speaker, Steve Hanson from New York, was an addiction treatment expert.

He told the delegates that if they were going to operate drug courts they needed to understand the basics of why people do drugs.

The basic reason is because people like them - even the delegates.

A smattering of hands went up when Hanson asked how many were completely drug-free.

The hands came back down when he queried "no caffeine?", "no aspirin?".

Hanson explained that drugs interacted with the brain's neurochemistry to produce two changes. The first was to feel good and the second was to ease pain and emotion. Some drugs, especially opiates like heroin, produced such a tremendous high that when they wore off they produced a negative experience of withdrawal. So users took more heroin to take the edge off the withdrawal, but this gave them a high again, and the cycle continued.

Nobody started out in life wanting to be an addict, he said, but once people started using substances, at some point a change occurred. A switch in the brain was thrown and the drug use went from voluntary to compulsive.

He showed slides of brain scans where the frontal lobe, which should be lit up, was dark in cocaine users. The frontal lobe is responsible for judgement and decision-making.

Similarly dark was the limbic system, the centre of the brain, which is a person's emotional thermostat.

Addiction was not a matter of choice, he said, it was a brain disease.

"We have to understand that the changes in the brain are the marks of this disease and when you have a participant in your court, you have to remember they have an addiction disease."

In the morning tea break, the information was sinking in to delegates.

High profile criminal defence lawyer Greg King was up from Wellington and said Hanson's session was a big education.

"You see these clients making these decisions and doing these things and you think they're just bad or stupid and you realise, in fact, these parts of the brain that make these decisions are just so impaired."

These specialist courts were critical, they were the future, he said.

"Anyone who works in the criminal justice system knows alcohol is at the root of so many problems and other forms of drugs are at the root of many other problems, and often it's a combination of both.

"To address crime in any serious and meaningful way, to reduce recidivism, rehabilitation has got to focus on drug and alcohol issues."

The conference heard there are key components to running successful drug courts.

One is random drug testing of participants - they can never know when they are going to be tested because if they do they will use around the tests.

Key to success is the multi-disciplinary approach. Speaker David Marlowe from the National Association of Drug Court Professionals said when this approach was first suggested it was considered absurd that a prosecutor and a defence lawyer could be on the same team, but research showed there ought to be teams because the enemy was too powerful.

"Ain't nobody in this room... has enough power, knowledge, skill, ability to make the slightest dent in the drug problem. You're too weak, it's too strong. So unless you get everyone together, the judge, prosecution, defence, you will fail."

For those who have been lobbying for treatment-based approaches, two pilot alcohol and other drug courts is a start, though a small one. One is Auckland-based Gerald Waters who plunged himself into researching the problem after a family friend, young mum Katherine Kennedy, was killed by one of the country's worst recidivist drink drivers.

Warren Jenkins, who is behind bars again, had only been 10 days out of jail when he hit Kennedy's car. He already had 17 drink drive convictions, and when Waters dug into his file he found offending which spanned 25 years. If there had been a regimented, multi-disciplinary, effective intervention years ago Kennedy may not have died.

But even this was foretold. Waters found judges had said "you are definitely going to kill somebody, I can't do anything about it".

It's easy to get angry and want to lock people up forever, Waters says, but that doesn't solve anything.

Hora says if Jenkins had been in her drug court, he would have been clinically assessed to find his level of addiction then would have had the power of the court and the wrap-around services to try to get him to sobriety. That is a long and hard process and is no soft option.

"The soft option is going on with your miserable life. Really, these people don't want to act like that. People on drugs don't want to steal from their mothers and violate every moral code they've ever been raised with. People who drink don't want to kill somebody with their car."

She urges New Zealand to not go down the road of building more and more prisons, where America was 20 years ago. "I just want to say we've done that, it's too expensive, it doesn't work. Don't use all your resources and go down that road.

"You know, I hear the law and order talk here, it sounds like the law and order talk I heard 20 years ago and when the Department of Corrections budget exceeded the Department of Education budget in my state I said 'what the hell is going on here, what are we doing?"'

New Zealand spends $90,000 a year to incarcerate someone but what do you get when they come out, she asks. "A 70 per cent chance of them coming back. Nothing has been solved."

When Hora presided over her drug court she began because it was a pragmatic solution but it then became a compassionate one.

She didn't much like the people who came at first but as she heard their back-stories, often of abuse and exploitation, of rape and violence, and started to see them turning their lives around "it's like, wow."