Emphasis on rehabilitation
The proposed Drug Court will allow the Cayman Islands to deal with addicts in ways never possible before.
Addicts will receive the help they need. They will be able to remain in the community to hold jobs and support their families. The court will be closed to the public, so nobody has to know their business.
If the addicts successfully complete the prescribed treatment programme, they may be discharged without a conviction recorded against them.
But, as Chief Justice Anthony Smellie warned last week, participation in the Drug Court programme will not be a soft option. Offenders are not going to get away from the consequences of their actions.
Some people who get into trouble because of illegal drugs have never had any form of structure or discipline in their lives, he said.
Through the Drug Court, a strict programme would be designed for each individual that must be complied with. It will not be just turning up once or twice a month and having a nice talk.
There may well be people who would prefer to spend time passively in jail rather than make the effort to attend court, counselling and treatment, he said.
The introduction to the Drug Court Bill explains that the Drug Court will focus on the treatment and rehabilitation of persons who commit certain drug offences or other offences while under the influence of drugs. The offender must consent to the treatment programme, which will include random testing, counselling and supervision.
That programme could last from one to three years.
Anyone who does not consent or who is not committed to graduating through the programme can go to the regular court system and be dealt with in the conventional way, Justice Smellie said.
Two things that will make the Drug Court unique are its setting and format.
Justice Smellie envisions the jury room on the second floor of Kirk House as an appropriate venue. With a large conference table and windows on two walls, the room is spacious, airy and comfortable.
He sees the Drug Court as a round table forum. A judge or magistrate will preside; not to try a case but to conduct the review process.
Around the table will be the offender, a probation officer, a drug counsellor, any other treatment provider relevant to the case, a Crown representative and the offender’s attorney or a court-appointed Duty Counsel for someone not otherwise represented.
The offender, whom Justice Smellie referred to as ‘the client,’ will be required to attend on set dates. At every session, each person around the table will make his or her report. For example, the drug counsellor may share the results of the latest random drug test; the probation officer may speak to whether the person is maintaining employment; a psychologist or psychiatrist may have input if such assistance has been considered necessary.
The Crown’s representative will hear all of the reports. If there are any issues that require sanctions, such as incarceration for up to 14 days or increase in the frequency of counselling sessions, the Duty Counsel will be able to speak to them.
Magistrate Nova Hall, who represents the Judiciary on the committee that has been working on the Drug Court Bill, said the discussion approach will give the offender the opportunity to tell his story with a level of freedom that would not be likely in a regular courtroom hearing.
People need to be open and honest, she said, and the forum will encourage openness.
Both she and Justice Smellie agreed that there is nothing in the bill that provides for the court to be closed to the public. However, it is expected that this will be part of the rules and procedures set after the bill is passed into law in Legislative Assembly.
Not every addict will be eligible for the Drug Court. People charged with violent conduct or sexual assault, for example, will most likely be dealt with in the regular courts.
A person who pleads not guilty or who is not willing to be in the Drug Court or who is assessed as not suitable will also be dealt with in the regular courts.
Participants must be told of all the benefits and consequences and give informed consent.
People who supply drugs illegally for commercial gain will not be eligible for the Drug Court. The addict who buys a cocaine rock and chips it in two so that he can use one piece and sell the other to get more – that person may be eligible, Magistrate Hall explained.
The Drug Court will also deal with the person whose addiction is the underlying problem and the reason for his being charged with burglary for the umpteenth time, she said.
Experience over the years has shown that many thefts, burglaries and handlings of stolen goods are committed to support the offender’s drug habit.
‘They are addicts and they keep coming to court because of the addiction,’ Magistrate Hall said. ‘We are trying to break that pattern of behaviour.’
The emphasis of the Drug Court is therefore on rehabilitation. Justice Smellie said the law gives the court wide power to impose conditions that will assist the rehab process. Such conditions could include a period of residential care, maintaining a job, community service or attendance at church. They might even include compensation to victims where appropriate.
Some back-sliding may occur, such as a failed drug test or missed appointment, but people will not be dismissed from the programme for a first, second or even a third strike, he said. That sort of behaviour is typical of persons addicted to drugs.
The Drug Court will work with the person as long as the person is willing to work with the court and demonstrates an appreciable degree of commitment to the programme.
One objective of the Drug Court is to reduce the number of people sent to prison, he pointed out. Some of the resources spent on the prison could then be spent on building additional rehab facilities, such as a residential unit for females, which is not now available at Caribbean Haven.
The Chief Justice said the Drug Court Law is important because it will require all agencies to work together under a comprehensive set of rules with one objective – the rehabilitation of the offender.
Court six years in the making
Attorney General Samuel Bulgin is scheduled to introduce the bill for a Drug Court during the September meeting of the Legislative Assembly.
The establishment of a Drug Court was one of 14 recommendations made to the Governor and Executive Council (now the Cabinet) in October 2000.
The recommendations came from a previously formed Sentencing Advisory Committee.
At the opening of Grand Court in January 2001, Chief Justice Anthony Smellie described the court as one that would take ‘the voluntary rehabilitative approach, in which guilt and addiction are acknowledged and treatment prescribed on the basis of willingness to reform.’
There was a workshop in 2002 to familiarise participants with the way a Drug Court can work. This was conducted by the team of professionals responsible for the Drug Court initiative in Canada, headed by Justice Paul Bentley.
The first recommendation from the workshop was for a committee to study other models of legislation and draft a proposal for Cayman. The National Drug Council accepted organisational responsibility. The group included representative of the Legal Department, private defence attorneys, Probation and the Judiciary.
No one blames Hurricane Ivan in September 2004 for sidetracking Drug Court plans, but the island-wide destruction did require some re-prioritising.
While there are no statistics immediately to hand, Justice Smellie said last week, anyone involved in the courts system has a sense of the need for a different approach to dealing with drug addicts.
Statistics are being compiled so that the Drug Court programme can be assessed on an ongoing basis and the public can know of its success or failure. Cathy Delapenha Chesnut of the NDC is heading that initiative.
Meanwhile, Cayman has become a member of the National Drug Courts Association of North America, which covers some 600 drug courts. Association members include court personnel and treatment providers; several have offered assistance to Cayman.
Their offers will be accepted. Once the Drug Court Law is passed, a workshop will be held to introduce the concept again in a practical way to all the people involved, Justice Smellie said. There will also be on-going training.
In the six years since a Drug Court was recommended, the problems of offending addicts have not been ignored. Justice Smellie saluted the work that has been done within the framework of the Penal Code and Criminal Procedure Code.
‘The efforts of the Magistrates’ Courts serve as an indication of the true potential of the Drug Court programme,’ he said.