Guest blogger Michelle Edgely writes …
There are five cogent reasons why governments interested in evidence based policies should support solution-focused methods for dealing with drug-addicted and mentally impaired recidivist offenders in criminal courts:
- Rehabilitative sentencing is nothing new. Courts traditionally sentence offenders to achieve the balance appropriate to the case at hand of proportionate punishment, community protection, deterrence, denunciation and rehabilitation. In cases involving minor offending, drug-addicted and mentally impaired offenders might have strong claims to mitigation that, under proportionality, require a less punitive sentence. But their cyclic recidivism also invokes the need for community protection. An effective rehabilitative response answers both these demands. Rehabilitation is often difficult to establish at the sentencing stage but many courts already have the power to structure sentences in a way that maximizes the chances of rehabilitation. For example in Queensland, Australia courts have long held the power under common law to make a Griffiths Order, ie, adjourn a sentence hearing subject to appropriate bail conditions for up to twelve months or more to allow an offender to demonstrate genuine progress towards rehabilitation. However, because drug-addicted and mentally impaired offenders often have limited resources and psychosocial dysfunction, the usefulness of a Griffiths Order is extremely limited unless additional resources are made available. Solution-focused approaches in courts offer one evidence-based way of appropriately and effectively channelling those resources.
- Solution-focused approaches have been implemented in Australian courts in a variety of ways. There are Drug Courts, often established under legislation; and Magistrates Courts’ special listings for mentally impaired or other categories of disadvantaged offenders. The Melbourne suburb of Collingwood, has a community court, the Neighbourhood Justice Centre. And there are a variety of court programs that operate in mainstream criminal lists around Australia, usually known by acronyms, such as CREDIT, MERIT, QMERIT, CISP, POP, STIR, CARDS and CADAS. What these programs have in common is that they capitalise on the stress of a court hearing and a looming sentence to trigger an offender’s latent desire to change his or her life. The judicial officer motivates the offender to take advantage of a referral to appropriate targeted services to actualise behavioural change and thus to reduce the likelihood of reoffending.
- There has been extensive research into the effectiveness of solution-focused approaches and especially into drug courts and mental health courts. Many early studies were criticised for poor methodological design, but this drove a wave of more rigorous studies. Meta-analyses based on these more rigorous studies found an average reduction in arrests of 8% compared to controls processed through the general criminal lists. One meta-analysis also measured adherence of the solution-focused court programs to the well-accepted Risk Need Responsivity (RNR) approach to offender rehabilitation. It found that programs that adhered to at least two of the three RNR principles performed much better than the others, achieving an average 31% reduction in recidivism. Follow up studies on long-established solution-focused courts are now providing encouraging evidence that reductions in recidivism could persist beyond a decade. The overall conclusion from well-designed studies of drug courts, mental health courts, neighbourhood courts and mainstream court programs in the US and Australia is that properly designed and implemented solution-focused programs are effective in reducing recidivism.
- Solution-focused approaches in courts built around evidence-based programs have been proven to be cost-effective in the US and Australia. Although drug courts and MHC programs are more expensive than processing through the general criminal court lists, they save money in the long term through saved costs of imprisonment and reduced levels of crime. In the Australian context, cost-benefit analyses of the NSW, Victorian and Perth Drug Courts and Victoria’s CISP demonstrated significant costs-savings. These analyses were conservative insofar as they measured program costs fairly accurately but benefits were based on conservative assumptions about the number of offences saved and did not factor in savings in the policing, prosecutions and health systems.
- Community attitudes to criminal sentencing are more nuanced than they first appear. In Australia, state politics across jurisdictions routinely features tough on crime rhetoric and calls for tougher sentencing. In a democracy, populist punitive criminal justice policies might be justifiable if they represent considered, responsible responses to deeply held community beliefs about appropriate responses to crime. In Australia, for many years, credible national surveys conducted by respected research organisations have shown that a sizeable majority of the public – stably around 70% in surveys since 2004 – believe that courts are too lenient and tougher sentences are warranted. But there are cogent reasons for not taking these measures of punitivity at face value. First, top-of-the-head responses to decontextualized questions can be unreliable, especially on complex topics. Acquiescent response bias is another potential problem, especially where real-world constraints, such as budgetary implications, are omitted. More significantly, the public is poorly informed on criminal justice matters and its views on sentencing are underpinned by some fundamental misconceptions. For example, the public erroneously believes that crime rates are increasing, it over-estimates the proportion of violent crime and recidivism, under-estimates maximum penalties and the use of imprisonment, and has poor knowledge about alternatives to imprisonment. A number of research projects have attempted to build a more nuanced picture of public punitivity. Results showed that when asked to differentiate between different types of crime, public attitudes are more nuanced. For example, one study showed that majorities supported more lenient sentences for non-violent crime, including community based dispositions involving job training and mental health treatment programs. Another study involving jurors and the real cases they determined found that jurors were not more punitive than the sentencing judge. Collectively the research demonstrates that an informed public is not as unambiguously punitive as is commonly believed.
In conclusion, there is no evidence-based reason for executive governments not to lend their support to solution-focused court programs as part of their multi-pronged crime prevention strategies.
Michelle Edgely is Lecturer in the University of New England School of Law. This blog is a snapshot of her recent article ‘Addressing the Solution-Focused Sceptics: Moving Beyond Punitivity in the Sentencing of Drug-Addicted and Mentally Impaired Offenders’ 39(1) UNSW Law Journal, 206-233.
 Veen v The Queen (No 2) (1988) 164 CLR 465, 476.
 Griffiths v The Queen (1977) 137 CLR 293.
 EG, the Drug Court Act 1988 (NSW).
 EG, the Assessment and Referral Court (Victoria).
 The full names of these programs are: Court Referral of Eligible Defendants into Treatment (NSW) (‘CREDIT’); Court Referral and Evaluation for Drug Intervention and Treatment (NT) (‘CREDIT’); Court Referral and Evaluation for Drug Intervention and Treatment and Bail Support Program (Vic) (‘CREDIT’); Magistrates Early Referral into Treatment (NSW) (‘MERIT’); Queensland Magistrates Early Referral into Treatment (Qld) (‘QMERIT’); Court Integrated Services Program (Vic) (‘CISP’); Pre-sentence Opportunity Program (WA) (‘POP’); Supervised Treatment Intervention Regime (WA) (‘STIR’); Court Assessment and Referral Drug Scheme (SA) (‘CARDS’); Court Alcohol and Drug Assessment Service (ACT) (‘CADAS’).
 Both of these methodologically different meta-analyses found an average effect size of 8%: Steve Aos, Marna Miller and Elizabeth Drake, Evidence-Based Public Policy Options to Reduce Future Prison Construction, Criminal Justice Costs, and Crime Rates, Washington State Institute for Public Policy No (2006), 8; Leticia Gutierrez and Guy Bourgon, Drug Treatment Courts: A Quantitative Review of Study and Treatment Quality, Public Safety Canada No (2009), 9.
 Gutierrez and Bourgon, Public Safety Canada No (2009), 12.
 Michael W Finigan, Shannon M Carey and Anton Cox, ‘The Impact of a Mature Drug Court over 10 Years of Operation: Recidivism and Costs’ (Final Report, Office of Research and Evaluation, National Institute of Justice (US), April 2007), https://www.ncjrs.gov/pdffiles1/nij/grants/219225.pdf; Juliette R Mackin et al, ‘Baltimore City District Court Adult Drug Treatment Court: 10-Year Outcome and Cost Evaluation’ (Report, Office of Problem-Solving Courts (MD), June 2009), http://npcresearch.com/wp-content/uploads/Baltimore_City_District_10_Year_Outcome_Cost_06092.pdf.
 Bronwyn Lind et al, ‘New South Wales Drug Court Evaluation: Cost-Effectiveness’ (Report, NSW Bureau of Crime Statistics and Research and Centre for Health Economics Research and Evaluation, 2002), http://www.bocsar.nsw.gov.au/Documents/l15.pdf; KPMG, ‘Evaluation of the Drug Court of Victoria: Final Report’ (Report, Magistrates’ Court of Victoria, 18 December 2014) http://www.magistratescourt.vic.gov.au/news/drug-court-victoria-evaluation-released; Department of the Attorney-General (WA), A Review of the Perth Drug Court (Report, November 2006); University of Western Australia, WA Diversion Program – Evaluation Framework (POP/STIR/IDP): Final Report (Report, Drug and Alcohol Office (WA), May 2007), http://www.dao.health.wa.gov.au/portals/0/DAO/Info%20and%20resources/Full%20Report.pdf; PricewaterhouseCoopers, ‘Economic Evaluation of the Court Integrated Services Program (CISP): Final Report on Economic Impacts of CISP’ (Report, Department of Justice (Vic), November 2009), https://www.magistratescourt.vic.gov.au/sites/default/files/Default/cisp_economic_evaluation_final_report.pdf.
 School of Politics and International Relations, ANU College of Arts and Social Sciences, Australian Election Study (31 December 2015) Australian National University http://aes.anu.edu.au/home; Shaun Wilson et al (eds), Australian Social Attitudes: The First Report (UNSW Press, 2005); Australian Data Archive, The National Social Science Surveys (NSSS) (7 February 2013) https://www.ada.edu.au/social-science/nsss.
Kate Warner et al, ‘Public Judgement on Sentencing: Final Results from the Tasmanian Jury Sentencing Study’ (Trends and Issues in Crime and Criminal Justice No 407, Australian Institute of Criminology, February 2011); Karen Gelb, ‘Predictors of Punitiveness: Community Views in Victoria’ (Research Report, Sentencing Advisory Council (Vic), July 2011); Brent Davis and Kym Dossetor, ‘(Mis)perceptions of Crime in Australia’ (Trends and Issues in Crime and Criminal Justice No 396, Australian Institute of Criminology, July 2010).
 Mackenzie et al, ‘Sentencing and Public Confidence: Results from a National Australian Survey on Public Opinions towards Sentencing’ (2012) 45 Australian and New Zealand Journal of Criminology 45.
 Austin Lovegrove, ‘Sentencing and Public Opinion: An Empirical Study of Punitiveness and Lenience and Its Implications for Penal Moderation’ (2013) 46 Australian and New Zealand Journal of Criminology 200.