Article
Jorn Dangreau & Annemie Serlippens
Countries all over the world are dealing with criminal acts and nuisance caused by problematic drug users. It is not just a problem for Belgium or any one country in particular. All countries and societies in the world are affected.
It is obvious that these problematic drug users have a negative effect on all aspects of a community, thus increasing social costs. Every legal system tries to deal – in one way or another – with these negative effects caused by problematic drug users.
Over the years, the Belgian Justice Department has realised that a reaction from the police, the Public Prosecutor’s Office and the Courts towards drug users should be the ultimum remedium (last resort). They are, after all, not the appropriate actors to formulate an answer to a social phenomenon like drug use.
Besides, they are no longer capable of doing so due to the increasing overload of the criminal justice system in general and the prisons in particular. Alternative measures must, therefore, be sought and as many problematic drug users as possible referred to (drug) rehabilitation, tackling the root of the problem.
Drug (ab)use is no longer simply a justice issue, rather it has become a social and public health issue.
Regarding drug-related crimes, it became generally believed that tackling the underlying drug problem would reduce recidivism. The question was: How can this be achieved within the justice system?
The justice system benefits from going beyond the classic approach to drug addicted offenders
In Belgium, it became clear that the classic legal approach had failed to find a good way of handling the cases of addicted people who commit criminal offences.
Mere imprisonment is a very temporary and costly measure, one which does not focus on the addicted person’s underlying problem. Rendering judgements that provide a framework for the accused by imposing conditions instead of imprisonment are too rigid and do not consider the complexity of addiction.
When the Public Prosecutor’s Office prosecuted a drug-dependent offender, the judge’s approach would be the same as in any other case, which is to hold a hearing and deliver a sentence on the same day. In this system, the judicial case is based on the written file.
Most likely – when the offender had a drug problem – the judgement would be a suspended sentence. This ruling meant that the offender did not have to go to prison, if they met the judicially imposed conditions during a given period of time.
The offender, however, walked out of the courtroom and had to wait at least three to four months before being notified to appear before the Probation Board to discuss the court-imposed conditions. It took even longer for the convicted person to be sent to a treatment provider.
What if the convicted person failed to meet the suspended sentence conditions? In that case, the Probation Board had to report on the offender’s non-compliance and the file would be transferred again to the Public Prosecutor’s Office. The Public Prosecutor would then pursue the offender for non-compliance and ask the judge to revoke the suspension of imprisonment.
Most judges’ experience is that the conditional suspended imprisonment system cannot get drug-addicted offenders on track again. With such an approach, the judicial system fails to meet its objectives and those of policymakers.
The whole judicial procedure would seem to be a huge investment (prosecutor – judge – probation board – prosecutor – judge) with no nett gain for society. In the end, the convicted offender is still addicted, and their dependence is also the driving force behind their criminal behaviour. The failure of the judicial approach has resulted in high recidivism rates.
Recognising the justice system failure and seeking a better strategy
After the judges behind this article had experienced the failure of the traditional judicial approach for dealing with offenders suffering from drug addiction, they started to search for a better strategy.
In this endeavour, they became aware of the Drug Treatment Courts (DTC) in the United States of America and Canada.
However, the difference between the continental legal culture and that of the United States of America and Canada made the simple importation of the DTC system to Belgium impossible.
They visited four different DTCs in the United States and Canada in 2007 and the experiences they gained there were truly insightful to them. They discovered that implementing a Drug Treatment Court was mostly a matter of changing the way of looking at the legal system.
They learned to concentrate on ‘solution-focused judgments’ and using the criminal justice system in a totally different way. Instead of costly incarceration, they saw that the criminal justice system could be the engine for changing individual behaviour.
A key condition is that there is ongoing court supervision and close cooperation with defence lawyers, the Prosecutor’s Office and treatment providers. They understood that the DTC system obtains better results in tackling underlying drug addiction, ultimately decreasing recidivism.
The uniqueness of the DTCs lies in combining the traditional process within the criminal justice system with the drug treatment approach. DTCs are based on the principle of developing a partnership between the criminal justice system, the health and welfare systems and their related services.
Drug Treatment Courts use the leverage of the criminal justice system to introduce offenders with substance use problems to treatment rather than relying on a traditional criminal justice approach (1). The result has been a blend of treatment and judicial supervision. This combined model is the essence of the DTC concept.
As mentioned, a simple “copy-paste” of the American approach into the Belgian legal system was not viable nor recommended. So, when transferring the model, the authors of this contribution tried to implement the existing international drug treatment courts’ fundamental principles (2) while respecting the Belgian (European) legal system and culture.
These judges worked for nine months to achieve a consensus text that would pave the way for the new Drug Treatment Courts in Belgium. Their project sought to comply with most of the DTCs’ critical principles, as developed in the United States and Canada, and also the precepts of the Belgian legal culture. The process was carried out together with the Bar Association, the Public Prosecutor’s Office, judges and drug treatment providers, focusing on a bottom-up approach. The developers presented the DTC project to the Minister of Justice, who recognised the system’s added value and approved a pilot project in the Ghent courthouse, starting in May 2008.
The Drug Treatment Court is a specialised chamber within the Court of First Instance, offering the accused the possibility to work on their (drug) issues under the supervision of that chamber.
Within the Drug Treatment Court, the public prosecutor and the judge are specialised in drug issues and a liaison attends each hearing. That liaison is usually a social worker who establishes a link between the justice department and the (drug) rehabilitation services. This person assists the defendant in finding the most appropriate type of rehabilitation and supports them with their referral to the drug treatment domain.
Each case is monitored through multiple hearings: a preliminary hearing, an orientation hearing, follow-up hearings and a closing hearing. The accused person is summoned to a preliminary hearing, where the judge examines whether the defendant is willing to take on their drug addiction problem. If the indicted person refuses to acknowledge the drug problem, the case will be judged under the traditional scheme. If the accused is willing to take an alternative route, an appointment is immediately set up with the liaison person attending the preliminary hearing.
The defendant and the liaison must develop a treatment programme focusing on the drug issue and all relevant life circumstances (such as work, housing, debts, etc.). The liaison offers drug treatment options (e.g. ambulatory or residential) and together they design a treatment plan adjusted to the specific needs of the defendant. This treatment plan can also count on additional support from a probation officer.
The accused person attends an orientation hearing two weeks after the preliminary one. In this session, they present and clarify the treatment programme. All actors involved will discuss and evaluate this programme. If the Court accepts the programme, it will monitor its execution with the liaison continuing to assist the accused/client during the course of the programme.
Then, the defendant is required to make court appearances at least every 4 weeks for follow-up hearings. These sessions allow the DTC actors (namely the judge, the Public Prosecutor’s Office and the lawyer) to closely monitor the accused during a six to ten-month period.
There is room for adjustments and adaptations to the treatment programme to meet the offender’s needs or improve the process and results. The sentence, and any conditions to eventually be imposed, are determined during the final hearing.
The advantages of the DTC proceedings are numerous, namely:
– treatment first then the penal judgment, allowing time to internalise the external motivation;
– development of an appropriate treatment plan;
– consideration of the reality of the drug addiction (a chronic relapsing disease);
– positive incentives in case of compliance, sanctions in case of non-compliance;
– each participant in the process has the same goal, using different means to motivate and stimulate the defendant.
Recidivism reduction and other promising results
The University of Ghent conducted a scientific evaluation on the implementation of the Ghent DTC. The process evaluation found that all DTC stakeholders, including the accused persons, had an overall positive experience with the Ghent DTC.
The outcome evaluation (based on DTC cases during 2008 and 2009) found beneficial outcomes regarding recidivism, compliance with opioid substitution (maintenance) treatment, receiving drug treatment and/or financial counselling and employment (4). Since this first evaluation, there has been no further scientific research.
An evolving and expanding approach
Since the implementation of the Ghent DTC in 2008, several Courts of First Instance in Flanders have been implementing similar drug treatment court initiatives, namely, Bruges in 2014, Antwerp in 2016, Mechelen in 2017 and Turnhout in 2021.
Instead of working with liaisons, these courts rely on the assistance of the probation officers from the outset. This difference was due to the unavailability of funds to hire liaison practitioners from the drug treatment providers.
The Ghent DTC discontinued the liaisons’ funding from October 2021. Following this decision, it also started cooperating with the probation officers from the Houses of Justice (the probation authority in the Flemish community). Instead of liaisons from the drug treatment providers present at every hearing, there are now probation officers.
They arrange the first appointment with the accused/client at the preliminary hearing and set up a treatment plan with them before the orientation hearing. They follow up with the different DTC defendants throughout the entire process.
Recently, the Federal Minister of Justice announced the deployment of drug courts within each Court of First Instance in Belgium (totalling 13). So, the legal framework for Drug Treatment Courts in Belgium is under construction – including the specific mandate of the Houses of Justice in relation to the drug courts.
The Ghent DTC wrote a manual to help other DTCs start up. That resource is now being adapted so that different Courts can use it. It will also be essential to provide training for DTC professionals to ensure an underlying solution-oriented philosophy and multidisciplinary cooperation. It is a work in progress.
It is worth noting that during the project’s pilot phase, many interested judges and prosecutors from other European countries (including the Netherlands, France and Germany) came to visit the Ghent DTC. They are currently trying to implement the system in their jurisdictions.
References:
(2) National Association of Drug Court Professionals, Defining drug courts: the key components, Washington, D.C., Office of Justice Programs, Drug Courts program Office, 1997.
(3) European Monitoring Centre for Drugs and Drug Addiction, «Best practice portal, drug court programmes to reduce recidivism – evidence summary».
(4) C. COLMAN et al., De drugbehandelingskamer: Een andere manier van afhandelen: het proefproject geëvalueerd, Antwerpen, Maklu, 2011, p. 21-23
Jorn Dangreau
