A LIBERTARIAN LOOK AT CANADA’S DRUG TREATMENT COURTS
Freedom without responsibility betrays liberty.
There is a long standing debate in Canada about whether substance abuse should be treated as primarily a health or enforcement issue. While is ample evidence that alcohol and other drugs play a significant role in crime, the efficacy of “getting tough” with substance-involved offenders is often called into question by critics who suggest that punitive approaches may not be the best way to respond to these problems. The high rates of re-arrest among offenders who are dependent on alcohol or other drugs certainly add credence to this argument. However, does this mean that there is never a legitimate role for coercion when addressing substance-involved crime?
Classic libertarians like John Stuart Mill believed that coercion is warranted in cases where: (a) others are harmed by an individual’s actions and/or (b) an individual does not have their full decision making faculties. The case of crime committed by alcohol or drug dependent offenders potentially covers both conditions since criminal action often involves harm to others, and addiction can certainly be viewed as detracting from the one’s full decision making capacity. (As an aside, the case of non-harmful substance use is less clear because laws prohibiting the use of certain substances imply harm to society when there may be no actual harm involved. This is brings up the concept of “victimless crime” which has long been problematic for many libertarians).
Questions about the appropriateness of employing coercion in the case of substance-involved crime relate directly to the debate over the use of Drug Treatment Courts (DTCs) in Canada. DTCs are a relatively new form of jurisprudence that diverts substance-involved offenders into a court-supervised treatment regime in lieu of sending them to jail for their crimes. DTCs employ multiple coercive elements including: legal pressure to enter and participate in treatment, random and frequent urinalysis testing, regular appearances before a judge, and the systematic use of various extra legal sanctions.
This essay provides a critical analysis of the use of coercion with substance-involved offenders from a libertarian perspective. Instead of getting caught up in arguments about whether DTC’s work or not, it addresses the question: Under what circumstance is use of coercion with substance abusing offenders justified? Following the libertarian principle that we should organize society to maximize the development of personal autonomy and responsibility, it is suggested that an explicitly developmental approach to offender rehabilitation provides justification for the limited use of coercion if the promotion of personal autonomy and especially positive freedom remain the ultimate goals of the intervention.
THE NEW NATIONAL ANTI-DRUG STRATEGY (NADS)
The election of the Conservative Party in 2005 brought with it significant change to Canada’s drug policies. Since 1987, federal efforts to address problematic substance use were largely administered under the National Drug Strategy with Health Canada as the lead agency. This signified, symbolically at least, that Canada considered harmful substance use to be primarily a health issue rather than an enforcement issue. It is mainly symbolic because federal spending on substance abuse has always heavily favoured enforcement-related activities (police, courts and corrections) over health-related activities (prevention and treatment).
In 2006, however, the Harper government announced the new National Anti-Drug Strategy (NADS) and indicated that the Department of Justice would henceforth be the lead agency on the substance abuse file. In addition, the new Strategy excluded all mention of harm reduction, a controversial approach popular with many health professionals that seeks to reduce the harms of substance abuse without necessarily requiring abstinence from users. Finally, the NADS took as its main themes preventing illicit drug use, treating those with illicit drug dependencies, and combating the production and distribution of illicit drugs by bolstering capacity in the enforcement sector. This exclusive focus on illegal drugs left some observers wondering about the status of licit substances, such as alcohol and prescription drugs, which actually account for more of the total social costs of substance abuse in Canada than illegal drugs. To many knowledgeable observers these policy changes signified a strong shift toward enforcement and away from health in Canada’s federal efforts to deal with problematic substance abuse.
DRUG COURTS IN THE US AND CANADA
Although all DTCs operate somewhat differently, generally speaking they all allow non-violent offenders whose criminality is directly associated with substance use the choice to engage in a system of court supervised treatment rather than being sentenced under normal judicial processes. Drug court participants must comply with the requirements of the court which usually involved actively participating in substance abuse treatment, frequent urinalysis testing to verify abstinence from drug use, and regular (usually weekly) appearances before the DTC judge, among other things. If offenders do not comply with the requirements of the court, they can be returned to the regular criminal justice system for sentencing.
DTCs first emerged in the US in the late 1980’s as an attempt to deal with skyrocketing incarceration rates and the “revolving door justice” experienced by many offenders dependent on alcohol and/or other drugs. DTCs represented a paradigm shift for the criminal justice system from “…court practices designed for speed and efficiency in dispensing penalties, to court practices designed to prevent future crime by addressing underlying conditions that increase the risk of criminal activity.” Over the past twenty years, the number of DTCs in the US has grown exponentially such that there are now approximately 2300 courts operating throughout all 50 states employing more than 19,000 people.
The effectiveness of drug courts is contested in the scientific literature., The best meta-analyses suggest that re-offending and drug use is marginally reduced in DTCs participants when compared to matched controls processed under standard criminal justice procedures. However, the effectiveness of DTCs in comparison to non-coerced (voluntary) treatment has never been directed assessed. In addition, drug courts are very expensive to operate and offenders can be under supervision for extended periods of time (two years or more). As a result, some critics suggest that drug courts may be less cost effective than other, less coercive approaches to dealing with addiction.
DTCs first appeared in Canada in late 1998 when the Toronto Drug Treatment Court accepted its first offenders. Subsequently, DTCs opened in Vancouver in 2001, Edmonton in 2005, and Winnipeg, Ottawa and Regina in 2006. Only the Toronto and Vancouver courts have undergone long-term outcome evaluations, and the scientific validity of both of these studies has again been questioned in the published literature. In terms of program outcomes, only 15.6 percent of DTC participants in Toronto and 13.1 percent of participants in Vancouver successfully “graduated” from court supervision over the course of the multiple year evaluation studies. These rates are significantly lower than those found in studies of US DTC’s where an average of 47 percent of participants graduated in one meta-analysis.
 However, there is evidence that Canada’s DTCs tend to admit more offenders with serious dependency on drugs like heroin and cocaine, and this likely accounts for some of the differences in program completion rates between the two countries.
In terms of their current political status, recent media reports suggest that federal support for Canada’s six DTCs is under review by the Harper Government and may not be extended beyond 2010 when their interim operational funding expires.
CONSERVATIVE AND LIBERAL CRITIQUES OF DTCs
Opposition to DTCs come from both ends of the political spectrum in Canada. Some social conservatives who support punitive “get tough” approaches to crime control oppose DTC’s because they believe that providing offenders with the choice to participate in court supervised treatment instead of going to jail is being “soft on crime.” Some social liberals, on the other hand, object to DTCs because they believe that coercing offenders into treatment basically sets them up for failure due to the fact that the majority are unable to comply with the court’s overly strict requirements. Further, given the long standing imbalance favouring enforcement over health in this issue area, it is not surprising that many social liberals are leery of DTCs because they serve to direct even more resources toward the criminal justice system and enforcement-based responses to the problem of addiction.
It is interesting to observe that social conservatives and social liberals both oppose DTCs for different reasons involving coercion. In essence, conservatives believe that DTC’s use too little and liberals believe that they use too much. This is not surprising, I suppose, given that DTCs are at their core a pragmatic attempt to introduce therapeutic elements into a punitive criminal justice system which has been shown to be rather ineffective in dealing with substance-involved crime. But who is correct? Do we need to increase the amount of coercion we use with substance involved offenders or decrease it? Should we stop using DTCs in Canada or expand them further?
To answer these questions it is necessary to take a much deeper look into this matter. The shift toward the greater use of coercive, enforcement-based methods under the NADS is troubling, some social liberals would say, because years of funding “get tough” approaches have not reduced the prevalence of substance involved crime in society. Many observers from the health field believe this is the case because the roots of criminal addiction are actually found in neglect, trauma, disconnection and disenfranchisement, conditions which overly punitive approaches probably make worse rather than better. Indeed, a growing body of research into what are now known as “the social determinants of addiction” tend to support this more nuanced view of substance-involved offending.
Classic libertarians like John Stuart Mill argued for limitations on the use of coercion because they believed that the inappropriate use of external control could seriously compromise the development of mature beings capable of responsibly exercising personal freedom in the pursuit of their full human potential. The quote from Thomas Jefferson at the beginning of this essay expresses this wisdom succinctly. And when the distinction between “negative freedom” (the absence of coercion) and “positive freedom” (the autonomy to responsibly express one’s full creative potential) is brought into the picture, the significance of Jefferson’s quote becomes even more apparent.
Unfortunately, it is possible that the worst fears of the libertarians have been borne out in modern society. Although most of us like to think of ourselves as both free and responsible, it is possible to argue that a form of creeping paternalism has seriously compromised society’s capacity to create large numbers of the sorts of autonomous citizens envisioned by the libertarians. In the extreme, this situation actually creates space in our societies for the deplorable circumstances from which those who become the “criminally addicted” emerge. These highly damaged individuals then go on to engage in exactly the types of behaviour that the advocates for coercion need to justify the next layer of punitive social control, and this further degrades society’s ability to create citizens responsible enough to manage true freedom. It is chilling to consider that the likely end point of this process is abject tyranny and the loss of any semblance of humanity’s full creative potential.
From this perspective the opposition of social liberals to the use of coercion with substance involved offenders may appear to make good sense. However, what most detractors from the liberal side seem to disregard is that the widespread and inappropriate use of external control has left us with a non-trivial number of highly traumatized and disenfranchised citizens who are, in their current state of self development, unable to exercise their freedom in a responsible manner. A very large proportion of these individuals end up in our criminal justice system which, due to the reasons discussed above, is not particularly well-equipped to respond to the actual sources of their discontent. From a pragmatic standpoint, then, attempts to incorporate therapeutic elements into the enforcement sector via DTCs may provide meaningful opportunities to improve matters even if they involve the limited use of external coercion.
The key understanding needed here is that the development of mature, self-actualized citizens capable of responsibly exercising true freedom requires considerable effort and care. As in the case of nurturing dependent children into autonomous and responsible adults, the maturation process requires that we adjust our methods from those that that emphasize protection during the early years, to those that emphasize guidance during adolescence, and finally to those that provide the freedom to learn from personal experience in adulthood. In the case of the criminally addicted who have reached adulthood without the benefits of such a process, it may be appropriate to employ limited forms of coercion to help motivate them to engage in the rehabilitative process, and also to guide their efforts to regain their full humanity as they move along. If this process is to be successful in a libertarian sense, however, the use of coercion should decrease over time as the individual becomes more capable to exercise responsible self direction.
Readers from the conservative and liberal ends of the political spectrum may dismiss the views taken in this essay as either naïve or elitist. I like to think of them as optimistically pragmatic. My optimism derives from the belief in the capacity of most if not all of humanity to achieve their full potential when given the right mix of opportunities and challenges. My pragmatism relates to the desire to acknowledge the uncompromising truth of where we are as a society, and employ reasonable and necessary means to move toward greater individual and social maturity based on this awareness.
To the social conservatives who are terrified that granting true freedom to individuals will lead to chaos and ruin, I’d offer the words of the East Indian philosopher Krishnamurti who first introduced me to the curious phrase “spontaneous restraint.” This is exactly the state of being that autonomous and responsible beings use to creatively produce wellness and order out of true freedom. Freedom without responsibility does indeed betray liberty, and even though some social liberals will probably remain uncomfortable with DTCs in Canada, I believe that there is a legitimate role for the discerning use of coercion in efforts to address substance-involved crime as long as enhancing personal autonomy and responsibility remain the ultimate goals of the intervention.
Gerald Thomas is a senior policy analyst with the Centre for Addictions Research of B.C.
1 DeBeck, K., Wood, E., Montaner, J. & Kerr T. (2009). “Canada’s New Federal ‘National Anti-Drug Strategy’: An Informal Audit of Reported Funding Allocation.” International Journal of Drug Policy, 20(2):188-191. Auditor General
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3 Harrell, A. (2003). “Judging Drug Courts: Balancing the Evidence.” Criminology and Public Policy, 2(2):207-212. Quote from page 207.
4 National Association of Drug Court Professionals (NADCP) (n.d.). “About NADCP.” Downloaded on May 20, 2009 from http://www.nadcp.org/about/
5 Anderson, J. (2001). “What to do About ‘Much Ado’ About Drug Courts?” International Journal of Drug Policy, 12(5):469-475.
6 Werb, D., Elliot, R., Fischer, B., Wood, E., Montaner, J. & Kerr, T. (2008). “Drug Treatment Courts in Canada: An Evidence-based Review.” HIV/AIDS Policy and Law Review, 12(2/3):12-17.
7 Belenko, S. (2001). Research on Drug Courts: A Critical Review 2001 Update. New York, NY: National Center on Addiction and Substance Abuse (CASA) at Columbia University.
8 Ibid, note 6.
9 Ibid, note 7.
10 CBC News (March 10, 2009). “Drug Treatment Courts’ Future Up in the Air.” Downloaded on May 20, 2009 from http://www.cbc.ca/health/story/2009/03/10/drug-treatment-courts.html
11 Maté, G. (2008). In the Realm of the Hungry Ghosts: Close Encounters with Addiction. Toronto: Alfred Knopf Canada.