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In Vancouver and Seattle, Winding down the War on Drugs

How alternatives to tossing users in jail are paying off. Last in a series.

By Gordon Katic and Sam Fenn 3 Oct 2014 | TheTyee.ca

Gordon Katic and Sam Fenn are the hosts of UBC's documentary radio collection, The Terry Project on CiTR. This concludes their five-part series telling a story from each of The Four Pillars -- prevention, treatment, enforcement, and harm reduction.

[Editor's note: This is fifth and last in a series of in-depth audio reports and text articles investigating the state of Vancouver drug policy 13 years after the groundbreaking Four Pillars approach was adopted. The project is a partnership between The Tyee and the University of British Columbia's documentary radio series, The Terry Project on CiTR. Find podcasts and airing schedule here. You can also listen to the latest report by clicking on the Soundcloud button further down in this article.]

In 2001, the City of Vancouver passed a bold new drug plan called the Four Pillars. The plan included 36 recommendations for all levels of government, including a recommendation that lead to North America's first supervised injection facility. Public health officials say that Insite, methadone maintenance treatment, and other recommendations reduced overdose deaths as well as the transmission of HIV and Hepatitis C.

The Four Pillars' underlining philosophy is that drug dependency is a health problem that should be treated -- not a legal problem that should be policed. However, its architect, Donald MacPherson, made compromises that further entrenched the role of the criminal justice system in Vancouver's drug scene. For instance, the Four Pillars recommended a drug court that would offer treatment but still maintain the integrity of prohibitory laws. Further, it recommended an increased police presence in the Downtown Eastside.

"I believe it was really important to have them in the tent," says Donald MacPherson about the Vancouver Police Department. "I couldn't see any other way you'd want to do it if you want to get buy-in for certain controversial elements like the injection site."

MacPherson says that the Four Pillars was advanced for its time. However, if he was drug policy coordinator today, he would push more aggressively for the decriminalization of drugs.

"I think you could do that now. You could really point at prohibition, or the 'war on drugs,' or however you want to phrase it," he says, "but at the time it would have been more of an intellectual exercise."

Despite the success of the plan's health initiatives, the federal government has moved towards more punitive criminalization. Larry Campbell, the former mayor of Vancouver who oversaw the opening of Insite, says that Stephen Harper is the number one impediment to the Four Pillars vision.

"We've got prisons full and filling. On what? Some guy with six plants of marijuana? Some guy that got caught with heroin? We're destroying lives. We're destroying families. And it's ridiculous. And why is that? Because they're still living the U.S. model. Well the U.S. doesn't live that model. They got Colorado, Washington, there's going to be more (legalizing marijuana). The war is over. Except in Canada."

On this final instalment of our series on Vancouver drug policy, brought to you in partnership with the University of British Columbia's radio documentary show, The Terry Project on CiTR, we compare MacPherson's compromise to a compromise activists and lawyers are making in the city of Seattle.

While MacPherson and the City of Vancouver have stalled in their battle against prohibitionist drug laws, Seattle is forging ahead. Will their compromise do more to end the "war on drugs?"

Repeat offenders

Devinder Thandi has a criminal record that runs 137 files deep. All of Thandi's charges are either for shoplifting or probation breaches related to shoplifting charges. He has never been charged with a violent crime.

"When I say that I don't mean to downplay it. Basically I feel I have remorse. It's embarrassing what I do in my addiction. To steal from stores and then get money to support my habit," says Thandi.

Thandi's criminal history began in 2000, the year that his mother died and his crack cocaine problem spiraled out of control. Since then, Thandi says he's been in prison an average of two and three times per year.

"Basically what it comes down to is, I don't get arrested. I get rescued. Then I go to jail and eat. But I don't get help," he says.

Thandi says that judges in Vancouver, Surrey, and Burnaby have all dismissed him as a lost cause.

"You're just a nuisance. You're causing a problem. The security guards always have to watch you. And you're not learning your lesson. So we have no choice. We cannot release you," says Thandi, recounting one courtroom interaction.

Shoplifting is officially known as 'theft under $5,000.' It is a summary offence, meaning the maximum sentence is six months. Thandi would typically spend between three to four months in prison before being released, only to return to Vancouver's Downtown Eastside.

"All I did was plan to get high and drunk the day I got out of jail," he says, "welfare puts a $213 cheque in my account. I took it to the bank."

This February, Thandi was admitted to Vancouver's Drug Treatment Court, where the prosecutor, defence attorney and judge work collaboratively on one common goal: help Thandi beat his drug habit.

The court only accepts clients like Thandi -- people who have repeatedly engaged in criminal activity related to their addiction but never committed a violent crime. The program currently has 48 participants. To enter the program participants must plead guilty to their offence. Then they are put through an intensive treatment program overseen by Vancouver Coastal Health.

"The actual program takes 14 months to complete," says Thandi, "and by the time you get to your last five, you're expected to have your own bank account, social housing, and most of your IDs back. They assist you with all that. I'm grateful, and I'm going to take advantage."

Thandi has relapsed twice since entering the program approximately seven months ago but he has not committed any crimes in that time. If he is able to complete the entire program and abstain from illicit drug use, he will not face prison time for the charge that sent him to drug court.

Vancouver's enforcement shift: therapeutic jurisprudence

According to Judge Peggy Hora, an early proponent of drug treatment courts, North America has increasingly adopted a "therapeutic jurisprudence" approach to drug offences. In therapeutic jurisprudence, social science research guides criminal justice interventions with the goal of improving the health and well-being of offenders. Proponents of the idea says that therapeutic interventions will reduce the likelihood of criminal recidivism while maintaining the integrity of the law.

"Both science and criminal justice finally caught up with one another. And they met one another for the first time," says Judge Hora. "Everyone works together with same goal of helping the individual and giving them the support they need."

Ojmarrh Mitchell, a criminologist at the University of South Florida, is one of North America's leading scholars of drug courts, and his research shows that drug courts across the United States reduce criminal recidivism rates by an average of 24 per cent.

"They are the one criminal justice intervention that has been replicated from jurisdiction to jurisdiction that consistently finds evidence of effectiveness. I know of no other intervention that produces reductions of recidivism of this magnitude this consistently," says Mitchell.

According to Hora, there are 2800 drug treatment courts in the United States. However, there are only six in Canada.

"Should there be more than six?" asks Hora. "Definitely. You probably need six in Vancouver and Toronto alone. But it's a start."

Vancouver's drug court opened in December 2001, following a recommendation by Vancouver's Four Pillars, the bold drug plan passed by municipal council in 2001. The document included recommendations for all levels of government under each of its pillars -- prevention, treatment, harm reduction and enforcement.

Professor Julian Somers of Simon Fraser University evaluated Vancouver's drug treatment court and found that it reduced an average patient's criminal recidivism by 56 per cent over the two year period following their time in the program. Somers credits the court for improving the health of its participants, which he says decreases their likelihood of engaging in criminal behaviour.

"If you have the resources to do things like provide stable housing, the stepping stones to employment, and the alternatives to street drug use, all of those things have the effect of not only improving a person's health, but reducing the likelihood of them being involved in crime," he says.

Will Damon, who studies drug enforcement policy at Simon Fraser University, describes therapeutic jurisprudence as part of a broader shift towards "a new ethic of risk management."

"This is a movement towards a more preventative focus. 'We're better off imposing sanctions that are designed to reduce the likelihood of future offending.' This is the zeitgeist in criminal theory," says Damon, "And it is embraced by B.C., who has been leading the pack in terms of justice reform and risk-based criminal justice."

Vancouver's drug treatment court is one prominent tool within this new toolkit, but it is not the only tool. For example, B.C.'s pre-trail detention facilities often release drug users into recovery homes. Further, judges can impose conditions that seek to help drug users, like orders to stay in a treatment program, or 'red zones' that prohibit them from returning to communities that might trigger their drug use.

However, Damon says that some of these initiatives are not well understood, and he worries that the high degree of judicial discretion may be leading to cases of burdensome restrictions and mounting administrative charges that further criminalize drug users.

An expensive band-aid?

Richard Elliot, the executive director of the Canadian HIV/AIDS legal network, is critical of Canada's drug treatment courts and the therapeutic justice paradigm. In an interview with The Tyee, he claimed that these courts "put a treatment gloss" on a criminal justice system that continues to harm people through drug prohibition.

"I'm not sure the blunt tool of the criminal justice system is ever going to be sufficiently nuanced to be able to address a complex health issue," says Elliot. "There's the saying that to a hammer everything looks like a nail. This may be an instance of that."

Elliot says that drug courts have good intentions and he praises their treatment programs. However, he worries that these courts further entrench the idea that the criminal justice system is a suitable response to illicit substance use.

"We shouldn't accept drug treatment courts as a band aid on a flawed system. We should think about questioning the underlying basis of prohibition in the first place," says Elliot. "We should take money out of the wasteful system of prohibition and invest in health services. Including voluntary community-based treatment that doesn't require the criminal justice system."

Even Professor Somers, the author of a favourable evaluation of Vancouver's drug treatment court, says that there are more cost-effective tools to reduce recidivism before drug users even enter the criminal justice system.

Somers lead the landmark Vancouver At Home Project, which published a number of studies that demonstrating that B.C. taxpayers could save significant policing and health care costs if they merely housed homeless drug users. This model is called "housing first" and Somers found that it is as effective for active drug users as it is for people who do not use drugs.

Katherine Beckett, a sociologist at the University of Washington, also thinks there may be more cost-effective ways to tackle drug dependency than through the criminal justice system.

"Drug court is one of the most expensive ways you can imagine to deliver treatment services to people. Because you have judges, attorneys, and court costs," says Beckett.

While drug treatment courts are substantially less expensive than the traditional criminal justice system, the costs remain high. According to the Justice Department, Canada's drug treatment court's operational costs are approximately half as much as the traditional court and prison system -- around $50,000 per patient per year in the traditional system, vs. $25,000 in drug court. Depending on whether a client succeeds or fails and how they are sentenced when they leave the program, drug court’s total costs can sometimes run even higher than the traditional system.*

A better way?

Beckett says that Seattle's Law Enforcement Assisted Diversion program, or LEAD, may offer a better way. The program is a pre-booking diversion, meaning police officers can move criminal suspects directly into drug treatment -- without ever involving the courts.

"This is one of the first post drug court initiatives, says Beckett. "In some ways, it was been shaped to respond to some of the limitations of drug courts."

In LEAD, when a police officer arrests somebody suspected of a drug crime, they have the ability to offer them a choice of two doors: behind one, the suspect faces the traditional criminal justice system. Behind the other, they are sent directly to a treatment program administered by Evergreen Treatment Services -- without ever being booked for their crime.

Tony Kagochi is one of ten case managers with Evergreen. If the suspect chooses the second door, Kagochi or another case manager walks down to the station to meet them.

"Clients were looking at us like 'are you fucking kidding me?' says Kagochi, 'Like, really? First of all, I'm not getting booked for the charge that they just picked me up for. And they're offering me services like housing, food, ID assistance, or whatever?'"

Jim Pugel is a former officer with the Seattle Police Department who is now chief deputy to the King County Sheriff. He says he was incredulous when he first heard that LEAD would ask police officers to not book people when they had probable cause.

"It's blasphemy. It went against everything that we had been taught as far as drug use, drug sales, drug possession," he says.

582px version of Seattle police
Seattle police can send drug arrestees into the traditional criminal justice system on directly to treatment without being booked for a crime. Source: Creative Commons/stobor.

The idea came out of the Public Defender Association, a legal advocacy organization that challenges drug prohibition. In 2005, the group sued the SPD for racial bias in policing. Lisa Daugaard, a lawyer with the Public Defenders, told Seattle's then-police chief Steve Brown that they had been disproportionately targeting African Americans for drug offences.

In court, Daugaard questioned Brown extensively. Kris Nyrop of the Public Defender Association remembers that, after hours of confrontational questioning, Brown fired a challenge back: "Assuming everything you guys say is true, what you would have us do?"

"That was a wake-up call for us, because we never really thought about that before," Nyrop recalls.

"Really we only had two answers, both of which were snarky and flippant. One of which was 'end the War on Drugs.' Well, that wasn't gonna happen any day soon. The second answer was start arresting white drugs users. Like four or five times as many as you're arresting now. And that wasn't an answer we wanted to give either."

Activists now writing drug policy

Daugaard spent the next five years trying to find a better answer to Brown's question. LEAD is a product of that process. After working to receive the backing of several councilors and community groups, she looked for donors to fund the idea. Once the Ford Foundation pledged $500,000 to cover much of the costs, Daugaard's idea became feasible.

In 2011, municipal council approved LEAD as a pilot project in Seattle's Belltown area, the heart of Seattle's open-air drug market. Since then, the City of Seattle has pledged $800,000 to expand LEAD into other neighbourhoods.

Kaguchi and the other case managers use their funds to provide clients with food, clothing, and other support. The vast majority of these clients are long-time users and homeless when they enter the program. Evergreen follows a harm reduction-based model -- meaning they do not require that all of their clients abstain from drug use in order to gain access to services or participate in the program.

Drug courts in Washington and Vancouver require that their participants abstain from illicit drug use. Both courts mandate urine screens and attendance at regular treatment sessions and court dates. Participants in both courts cannot graduate the program if they continually relapse.

Kaguchi says that many of his clients face severe mental and physical disabilities. It would be unrealistic to expect them to keep up with the rigorous demands of drug court's treatment program, let alone the requirement to abstain from illicit drug use.

These challenges mean that Kaguchi must make special efforts to reach his clients.

"One of my colleagues calls us guerrilla case management. We go out there with our backpack and our cell phones. And we engage with clients on the street," he says. "So if that means we have to engage with a client in an open air drug market, that's what we do."

Evergreen oversees each client's treatment plan in consultation with LEAD's many stakeholders, including the SPD, the King County Prosecutor's Office, the King County Sheriff's Office, and the American Civil Liberties Union of Washington.

These groups gather around a table in bi-weekly meetings to discuss the progress of each client. Mary Barbosa, who works for the King County Prosecutor's Office, attends these meetings. She says that LEAD is not "a get-out-of-jail free card."

Since LEAD clients are such prolific offenders, they almost all have other charges that are still working their way through the traditional criminal justice system. If a client is not taking LEAD seriously, Barbosa might prosecute them in those other cases. However, if they are taking LEAD seriously, she will be more lenient.

"Does it really make sense to have the person go off to prison if for the first time in eight years they are no longer homeless? Or they're finally in treatment, or reunited with their children?" asks Barbosa.

The Tyee was provided figures from a preliminary review done by Professor Susan E. Collins of the University of Washington. She found that participants of the LEAD program were 25 per cent less likely to be charged with a crime in the years after joining LEAD than the years before joining LEAD.

“It was very encouraging to see that over time this program seemed to see a decrease of their contact with the criminal justice system,” said Collins.

Collins adds that these findings are statistically significant, but the review is too preliminary to draw definitive conclusions. Because the review did not use a control group, Collins cannot say with certainty if LEAD, or some other variable, caused the reductions. A full review, with a control group, should be available sometime this winter.

'War on drugs' to end through irrelevance?

The Public Defenders Association began by attacking the 'war on drugs.' LEAD was their compromise.

However, Nyrop thinks that the program is helping to build a consensus that is moving closer and closer towards their initial position. He tells The Tyee that many SPD officers are beginning to slowly question the logic of prohibition.

"On their own, they are thinking about what it would look like if we dramatically reduce penalties for drug possession and sales. They're thinking about that. Years ago, they may have thought it, but would have never talked to me about it," he says.

Daugaard says that LEAD is making people within the criminal justice system, including drug treatment courts, realize that drug users may not need them as much as they need people like Kaguchi, and the supports and services that he can provide.

"A very enlightened former drug court judge in King County said it makes me feel really good as a judge to participate in this process. But that doesn't mean I'm necessary," says Daugaard, recounting the judge's words.

"And we really should find out. We really should find out if the prosecutors, public defenders and judges who are standing around the edges of this process are really necessary," she adds.

Daugaard hopes that LEAD, and programs like LEAD, can make the 'war on drugs' "dissolve through irrelevance," like old sodomy laws that are no longer enforced. Like Vancouver's Don MacPherson, Daugaard believes that drug dependency should be thought of as a health issue, not a legal issue that should not be addressed by the criminal justice system. 
"To me, these are core challenges to the 'war on drugs,'" she says.

Even though Seattle is still waiting for definitive evidence of LEAD's effectiveness, politicians from all over the United States are pointing to LEAD as a possible way forward. The City of Sante Fe is setting up a similar program, and New York City is considering opening a 24-hour diversion centre. Representatives from 14 states have visited Seattle to learn more about the program.

After his initial incredulity, Jim Pugel has become one of the program's most outspoken proponents. Pugel, chief deputy of the King County Sheriff's Office, now tours around the world telling politicians and police officers about the LEAD program.

"I've seen a lot of grief in my 32 years of policing. I've seen a lot of death. Seen a lot of addiction. I can't help but think that this is the right thing to do," he says "It's much better than what we've been doing over and over again with no results or negative results."  [Tyee]

*Figure updated Friday, Oct. 3 at 1:10 p.m.

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