Drug offending and criminal justice responses: practitioners’ perspectives

Article Outline

• Abstract
• Introduction
• Methodology
• Findings
  • Inequity in sentencing
  • Blaming ‘others’
  • Patterns in drug offending
  • Lack of flexibility for complex problems
  • Gaps in current criminal justice responses
  • Current drug services
  • Economic issues
  • Definition of what is ‘success’
  • Health as the dominant response
  • The problem in context
  • Heroin on prescription
• Conclusion
• Uncited references
• References
• Copyright

Abstract 

This paper describes the perspectives of 35 senior criminal justice professionals from Melbourne, Canberra and Sydney who were interviewed in 1998/99, as part of a much larger study that examined illicit drug issues in the context of a multicultural community. Key informants worked across a range of areas within the criminal justice sector—national intelligence, inter-agency drug task forces, state and federal police, corrections, juvenile justice, judiciary, and academic—each observing illicit drug issues from different perspectives. Despite being from different areas within the criminal justice sector there were many similarities in perceptions about illicit drug use and current policy approaches to the problem. Many had private views that were at variance with the policy position adopted by their agencies. The majority of those interviewed believed that the response to drug users—many of whom also sell drugs—should primarily be one of health, and most were in favour of imaginative and liberal approaches designed to minimise the harms associated with illicit drugs.

Keywords:  Illicit drugs, Harm reduction, Criminal justice, Ethnicity, Race, Youth, Drug policy

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Introduction 

There is considerable debate within Australia—as elsewhere—about how illicit drug offending should be addressed in the context of criminal justice. While a national policy of harm minimisation has been a key principle underpinning Australia's drug strategy since 1985 (Ministerial Council on Drug Strategy, 1998). Harm minimisation does not translate into support for illicit drug use or for fundamental policy reform. It is the middle ground, where people with differing views on drug policy can agree upon practical, immediate ways to reduce drug related harm (Single & Rohl, 1995a). There is still, however, a public expectation of police that they will uphold the law and proceed against drug offenders, although it is widely recognised that street-level policing can actually lead to harm to both the drug users and society (Australian Bureau of Criminal Intelligence, 1997). For example, intensively policed drug markets: cause the price of heroin to increase, which may increase the rate of crime as users seek to pay the higher prices; encourage more risky user practices such as oral and intra-nasal storage, reluctance to carry clean injecting equipment and hasty injecting that increases the likelihood of spread of blood borne viruses; and disperse the drug market making it more difficult to supervise, increasing the likelihood of more sophisticated ways of dealing being developed, and a strengthening of the relationship between seller and buyer (Brown & Sutton, 1997, Maher, Dixon, Lynskey & Hall, 1998, Edmunds, Hough & Uriquia, 2002, Van de Wijngaart, 1997).

The criminal justice sector in Australia is, therefore, faced with the paradox of being expected to adopt a harm minimisation approach while also being expected to pursue the traditional punitive approach which arguably, increases harms. This paper seeks to consider professionals’ experience of working within this policy paradox. This paper is derived from a much larger study, which was commissioned by the Victorian State government to examine illicit drug issues in the context of Victoria's multicultural community. The objective of the main study was to provide a framework in which the cultural attitudes, experience and expectations of Victorians could be understood and taken into account in policy and other decision making (Beyer & Reid, 2000).

Victoria is one of six states and two Territories, that make up Australia. Victoria and New South Wales (NSW) are the most densely populated states. As at June 2001, Victoria has a population of 4.8 million people within 227 420 km² and NSW a population of approximately 6.5 million people, within 800 640 km². Overall Australia's population is approximately 19.4 million, within an area of 7 692 030 km²—an area about the size of Europe (Australian Bureau of Statistics, 2002). About one quarter of the Australian population live in Victoria.

Each state and territory (except the Australian Capital Territory, which is policed by Australian Federal Police) has its own police force and state and territory laws. Within the context of illicit drugs, the Federal law enforcement agencies are responsible for upholding laws to do with the importation of illicit drugs, because these are federal offences, while state police are responsible for upholding laws to do with drug offences that occur within their state or territory boundaries. Where offences involve more than one state or territory, or where there is a mix of federal and state law violations, police may work together in joint task forces or in other ways.

The Victorian population has a diverse mix of cultures, comprising people from 208 countries, speaking 151 languages (Multicultural Affairs Unit, 1997). The majority of the population lives in or near the capital city, Melbourne.

This paper reports on the perspectives of 35 senior professionals working within the criminal justice sector in Melbourne (capital city of Victoria), Canberra (capital city of Australia, located in the Australian Capital Territory) and Sydney (capital city of NSW). Key informants were interviewed as part of the key informant component of the main study. An equal number of health professionals were also interviewed and, although it is not the purpose of this paper to make comparisons, it was clear that many of the health sector workers’ views corresponded with those in the justice sector (Beyer & Reid, 2000).

The justice sector in Australia, as in most other countries, is diverse. It includes state and federal law enforcement, the judiciary, prison and other correctional institutions, legislation/policy, juvenile justice and national criminal intelligence. Participants in the key informant interviews were selected to cover all parts of the justice sector, with the exception of legislative/policy makers. They included senior magistrates, managers within corrections and the juvenile justice service, senior police from state and federal law enforcement agencies, officers in charge of inter-agency task forces, and senior academics.

The views expressed by the key informants were primarily their own personal views rather than those of their organisations and most spoke on the basis of their first-hand observations and experiences. Many of the opinions expressed are contrary to the position of their organisations and many of the key informants considered themselves to be unusual in holding their ‘liberal’ views—not realising that such views were actually widely (but privately) held by others throughout the justice sector. A number of the key informants expressed pleasure in being able to say what they really thought without having to compromise their jobs or reputations and were keen for their private views to be known. Despite coming from a wide range of different criminal justice areas there were many consistencies in perceptions on many key concerns relating to illicit drug use and related policy responses.

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Methodology 

It was not the aim of the research to select a representative sample from which generalisations could then be made, but rather to select information rich cases for study in depth. That is to choose participants: ‘… from which one can learn a great deal about issues of central importance to the purpose of the research…’ (Paton, 1990). Thus a purposeful sampling technique was used. Participants were interviewed between September 1998 and April 1999. All had been working in the same criminal justice field for 5 years or more and many had done so for two or three decades. Almost all had had practical experience in the field prior to their managerial/executive role. Individuals were chosen on the basis of their high level positions, their experience and their ability to comment on trends and issues within their area of expertise.

Several people were from national criminal intelligence areas, including the National Crime Authority (Canberra), Australian Bureau of Criminal Intelligence (Canberra), Office of Strategic Crime Assessment (Melbourne), Australian Federal Police (Canberra), inter-agency national drug task forces (Sydney) and Australian Customs Service (Canberra). Several police personnel working in key drug law enforcement positions within the NSW, Victoria and Federal police were also interviewed, and a number of people who held key positions within the Victorian state court system, juvenile justice service and adult prison system, also participated. Four academics from the University of Melbourne and the Australian Institute of Criminology (Canberra), who had a special interest in illicit drug issues, were also interviewed.

The interviews consisted of one on one, or sometimes one on two questioning using semi-structured questions. Probing questions were used to elicit more information on issues raised by the interviewees. Interviews were tape recorded in all but one interview (police). A copy of the transcript was sent to each participant for their comments and any additions. All participants agreed the transcripts were a true account of their comments.

The interviews were analysed using cross-case analysis to identify significant patterns and construct a framework for communicating the essence of what the interview data revealed. For reasons of confidentiality, none of the interview extracts are attributed to individuals, and are identified only by the criminal justice area in which the person works.

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Findings 

An area of unanimous agreement among the key informants was how unhelpful it was for the media, the community, politicians and indeed some aspects of the criminal justice system, to ‘demonise’ street level drug selling and using by discussing such behaviours within a context of moral depravity or decay.

Inequity in sentencing 

Sustained media ‘demonisation’ and sensationalism, particularly during the early to mid 1990s in Melbourne, arguably led to the introduction of more severe sentences for drug sellers (Sentencing and Others (Amendment) Act, 1997). As the vast majority of those arrested by police are the most visible, low-level street sellers (Beyer, Reid & Crofts, 2001), the legislation has had greatest impact at this level. The harsher legislation has had a number of negative outcomes, including less flexibility in sentencing for magistrates and incarceration of non-violent young people at comparatively early points in their offending careers. There has also developed an inequity in sentencing—sentences for people choosing to sell drugs to support their habit are often more severe than for those choosing to commit violence and property crime to support their habit (Beyer et al.).

Several key informants mentioned the harshness and inequity of the current sentences given to street level drug sellers. On the scale of harm, selling drugs to willing buyers was seen as less harmful than offences involving violence and trauma to a victim:

Blaming ‘others’ 

The heroin problem has been characterised in Australia as one primarily concerned with people of Asian background (Twitchin, 1993, Elliott, 1996, Soo-Lin Quek, 1997, Rodd & Leber, 1996). In other countries too it has been the pattern for ‘foreigners’ or ‘others’ to be blamed for crime and or drug problems (Martens, 1997, Killias, 1997, Palmer, 1997). Key informants were concerned about the tendency in Australia to blame street level dealers of Asian background for the drug problem:

Patterns in drug offending 

In the view of some of the key informants, street level drug users/dealers of Asian background were considered to be practising a form of harm minimisation. They were tending to consciously choose to sell drugs to support their habit and, in doing so, were considered to be creating less harm than their Anglo background peers who have a greater propensity to commit violence and property offences to support their habits.

Asian background street sellers were considered to be less likely to commit violence or property crimes to finance their drug habit and often had no previous history of offending, other than the drug offending. It was considered rare for them to have charges related to assaults or property crime. They tended to be detected by police directly as a result of their drug offending, rather than as connected with any other crime. This perception was supported by subsequent analysis of prison and offence data that showed that concurrent violence and property offending was rare for prisoners of Vietnamese birth place and that the more acquisitive and violent drug offenders were those born in Australia (Beyer et al., 2001).

A number of young people of Asian appearance sell drugs in the same geographic areas and in public places in Australia and thus tend to be much more visible than other groups who may be involved in illicit drugs. The street selling drug offender has a greater chance of being detected by police and thus have become a prominent group within the criminal justice statistics—from police to courts to prisons. Their visibility in the statistics is further highlighted by use of ‘country of birth’ as a variable to denote ethnic background. Whether drug offending by youth of Asian background is any more frequent than is the case for other segments of the population is impossible to know, although the key informants did not believe this to be the case. Illicit drug use appears to be associated with age group rather than ethnic background. Since the young people of older migrant groups are more usually born in Australia, they become invisible in the statistics (Beyer & Reid, 2000). Unfortunately, community perception on this issue has had a significant stigmatising affect on some sectors of the Australian community.

Mainstream media are biased in their reporting. This has caused enormous distress and problems for Vietnamese people. People feel really stigmatised. People feel embarrassed and labelled… Vietnamese people are now very sensitive to what is said about the drug problem. (Vietnamese consultation participant cited in Beyer & Reid, 2000).

Lack of flexibility for complex problems 

There was general agreement among the key informants that people who are dealing drugs at street level to fund their own drug use, and who have committed no other crime, should be subject to lesser sentences than a person selling for commercial purposes. However, even commercial selling was pointed out by some to be not as straightforward as it might first appear. In the case of Asian background youth, the explanation for drug offending often relates to disintegrated family. Commonly there is no traditional male at the head of the home and the eldest son is endeavouring to fulfil the role of bringing money into the house. Drug dealing is one way of doing it. Others are selling drugs to pay their parent's gambling debts or to get money to buy drugs for their parent's drug addiction—which often originated in the refugee camps. Young people of Asian background are also sometimes coerced into selling drugs:

For the judiciary to sentence these young people to a period of incarceration was considered most unjust, although often difficult to avoid. Key informants considered the whole criminal justice to be extremely restricted in its ability to respond appropriately to the complexities of drug offending. This was considered to be primarily due to the pressure and expectations of a perhaps well meaning, but misinformed community and political sector, which tends to view drug offending as one homogenous ‘evil’:

Gaps in current criminal justice responses 

A number of gaps within the criminal justice system were identified by the key informants. Many mentioned the need for legislation/sentencing to reflect degrees of seriousness in drug offending. For example, the mode of drug use should be taken into account and graded according to its harmful affects on health and public safety:

A most serious gap in criminal justice in Victoria was considered to be the lack of suitable remand facilities for the non violent young men who were increasingly being incarcerated for drug offences. The unsuitability of current remand centres was considered to place professionals in Victoria in a serious dilemma, particularly in light of a ‘harm minimisation’ philosophy. Currently young, non-violent men are being incarcerated with older adults who commonly have long histories of violent offending. Indeed, Victoria has the highest proportion of secure custody offenders in prison in Australia, 82%, twice the rate of demographically similar New South Wales (Australian Bureau of Statistics, 1999). One of the reasons Victorian juvenile justice custody centres have had a rise in number of sentenced young people being referred to them—which dates from the amendments to the Victorian Sentencing Act—is that many magistrates are loath to send the slightly built, non-violent young men to adult prison.

The feeling was that most offenders have problems which have led to their drug offending and that to additionally traumatise and brutalise them by the remand experience was extremely unjust and, from a pragmatic point of view, unproductive to rehabilitation.

Another gap identified in the justice system was the lack of ability to keep drug affected individuals safe. Some thought there should be legislation in place to assist in the protection of people found under the influence of drugs—particularly in the case of young people:

Current drug services 

A shortage of appropriate drug services and the procedural issues surrounding their funding were issues brought up by several key informants. Long waiting lists to get into drug treatment were mentioned, as was the observation that drug treatment services were designed for adults and not targeted to adolescents, who form a large proportion of those with drug issues. This was considered a more serious flaw than the fact that services were often not sensitive to different cultural needs. Key informants observed that there was a one-dimensional approach to treatment which focused on the addiction, rather than on the myriad problems that lead to the addiction. They lamented the fact that follow-up support services for people who had undergone detoxification treatment—that would assist them in establishing a life away from the drug scene-were extremely rare:

Another frustrating aspect to drug services was the method of funding. Drug service agencies are commonly contracted by the state government to provide services for short, finite periods of time, making the working climate uncertain and the services temporary in nature. Funding is also often tied to specific programs which limit the ability of service providers to be flexible in the services they offer and to change focus if other more urgent needs arise, or new priorities and problems become visible.

Economic issues 

It was considered there was a need to introduce strategies to better control the vast amounts of untaxed money being made, and lack of control, that international and national drug traders currently enjoy. It was considered that, at the very least, the industry could be made more beneficial to society if heroin was legalised in a controlled way:

Definition of what is ‘success’ 

The criminal justice system aims to have someone charged, brought before the courts and given a sentence that is going to stop them re-offending. According to many in the criminal justice system this does not happen with drug users, even though the sentences are quite severe. To maximise the possibility for harm minimisation for people presenting before court on use and possession offences, some magistrates are changing their definition of success from abstinence to reduction in use:

Health as the dominant response 

Police can, through their activities, disrupt street level markets. However, apart from the questionable cost effectiveness of this approach, it is suspected that there may indeed be harmful consequences to such police activity. For example, displacement and diffusion of the problem, making it more difficult to control, development of more sophisticated ways to avoid detection and unsafe user practices which increase the chances of spreading infectious disease (Maher et al., 1998).

Police and intelligence key informants believed street level selling of illicit drugs by people with drug habits and those detected for possess and use offences, should be treated as a health problem. They considered criminal justice responses to be too ineffective for drug users. If the health sector were to take responsibility for street level drug problems then it was believed law enforcement could more productively redirect their resources to the drug dealers higher up the chain, who are doing the greater harm:

The problem in context 

Many key informants expressed the view that drug taking per se, was normal human behaviour and as such there should not be the current level of fear, moral outrage and criminal sanctions against young people using illicit drugs. There was a general feeling of irony too about the contrast in attitude to legal drugs such as alcohol and tobacco by the community, politicians and the media—despite the considerably higher social and health costs associated with them. It has been calculated that substance abuse accounts for 7% of global disease with tobacco 2.6%, alcohol 3.5% and illicit drug use 0.06% (Ball, 1998, World Drug Report, 1997):

Heroin on prescription 

The majority of key informants were in favour of prescription heroin and were in favour of safe injecting places for addicts. These solutions were put forward in response to the question: ‘Given the apparent failure of methods to control or reduce the illicit drug trade, what, in your view (thinking more laterally) might work in reducing the damage being done by the illicit drug trade?’ Some people in the intelligence area were particularly strong in their support of safe injecting places and prescription heroin. While state police tended to take the official line during the interview, off the record (for example during escort out of their building), they expressed support for safe injecting places and prescription heroin.

A selection of comments are as follows:

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Conclusion 

The personal views of people in key positions across the criminal justice sector are rarely heard. Fear of repercussion has understandably prevented professionals from articulating views contrary to the status quo and the policies their various agencies. This paper has revealed the perspectives of senior, experienced people working across various areas within the criminal justice system, each of whom has had a ‘ring side seat’ on the drug problem for many years. Their experience and their senior positions must make their views particularly legitimate and useful. The consistency of their private views indicate that much of the policy and procedures currently in place to respond to illicit drugs are at variance with the views and judgement of many senior practitioners whose task it is to operationalising them.

The current approach to illicit drugs in Victoria, and Australia, may be based more on habit and tradition than on evidence-based practice. While a law enforcement approach is certainly important and essential, it should not preclude introduction of strategies designed to minimise the harm of drugs, particularly if they are supported by Australia's leading practitioners in the criminal justice sector—and possibly also supported by experts in the health and academic sectors? Further, representative research among practitioners would be extremely valuable in providing the evidence base necessary to underpin development of more effective policy and practice.

Senior professionals have indicated a willingness for the health sector to take a lead role in responding to people who use illicit drugs and they have identified a number of flaws and gaps in current responses to illicit drugs. They are also aware that while the criminal justice sector is required to focus so much of its resources on repeat offenders at the lower, more visible end of the drug chain, resources that focus on offenders higher up the chain must necessarily be less. The key informant component of the larger study (Beyer & Reid, 2000)—and on which this paper has been based—has indicated that there is still much more that can be done to counteract the damaging affects of illicit drugs in our community.

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Uncited references 

Single & Rohl, 1995b, Victoria Police, 1999.

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