Enacting Alcohol and Other Drug (Testing)-Related Harms in an Australian Drug Court

Background: The Court and Its Testing Regime

The Drug Court of Victoria was established in 2002 and is part of the first generation of Australian drug courts (Indermaur & Roberts, 2005). At the time we conducted our research (July to December 2015), the only existing branch of the Drug Court of Victoria was located in Dandenong. This is the branch we studied. A second branch opened in the Melbourne Magistrates’ Court in March 2017. The Melbourne branch has seen the reorganization of presiding magistrates but is run using the same policies as the Dandenong branch. Given the overlaps in policy and personnel, this article and the possibilities to bring about change it suggests have relevance for both branches and other courts that use similar methods. The stated objectives of the court are to improve the health and well-being of participants through reducing alcohol and other drug use and criminal behavior and improved connection to the community and to reduce the severity and frequency of offending for participants (Klynveld Peat Marwick Goerdeler (KPMG), 2014). Since 2002, two evaluations of the program have been conducted (Alberti, King, Hales, & Swan, 2004; KPMG, 2014). According to an evaluation conducted by KPMG (2014), 90% of Drug Court of Victoria participants are male and 10% are female. Participants currently range in age from 22 to 52. Further, 80% were born in Australia with the remaining 20% born overseas. Three percent identify as Indigenous Australians. Most (78%) have a previous imprisonment history, with the most common offenses committed before entering the program being theft related (47%), driving related (20%), and drug related (15%). The KPMG evaluation found that 61% of individuals accepted into the program did not complete the program but that those who did complete the program experienced improvements in health and well-being and reduced recidivism. ¹

The Drug Court of Victoria employs three magistrates who preside over the two branches of the court full time, are responsible for the granting and canceling of drug treatment orders, and are responsible for the judicial supervision of participants. This includes compliance with drug treatment order conditions such as attendance to appointments with various drug court professionals and different substance use treatment modalities (Parsons & Lauritsen, 2013). ² From time to time, other magistrates sit in, as the presiding Magistrates take leave. The court has strict eligibility criteria. A participant must be “dependent” on alcohol or other drugs, and their “dependency” must have contributed to the commission of the offense (Sentencing (Amendment) Act, 2002, s18Z). Drug court participants are sentenced to a drug treatment order, which lasts from 1 to 2 years. The order consists of two components: alcohol and other drug treatment and supervision and a custodial component that is suspended while the participant undergoes treatment in the community. The treatment component of the order includes specific conditions intended to address the participant’s dependence, such as attendance at appointments with drug court case managers and clinical advisors, alcohol and other drug counseling, regular attendances before the drug court magistrate, and regular substance testing. In addition, the order comprises three different phases. In order to progress from a lower phase to a higher phase, participants must have achieved the specific goals of their current phase. For example, one of the goals of Phase 3 is that the participants become “fiscally responsible” (KPMG, 2014, p. 19).

Because the drug court model first emerged in the U.S., it is important to note that Australian and U.S. drug courts differ in at least three ways. This is reflective of Australia’s approach being more oriented toward harm minimization. First, Australian drug courts were initially set up to target individuals with extensive histories of nonviolent offending, believed to be linked to problematic alcohol and other drug use, and who were likely to be facing imprisonment. In contrast, most U.S. drug courts target first-time offenders (Freiberg, 2002a, 2002b). They also differ at the point in the criminal justice system where participants are first admitted into the program. In Australia, drug courts are generally post-plea, in that defendants enter a “guilty” plea and are then admitted into the program if they meet the eligibility criteria. In the U.S., drug courts admit defendants at different points of the criminal justice system—arrest, bail, sentencing, and post-sentencing. Second, the U.S. practice of targeting individuals at multiple points in the criminal justice system means that U.S. courts bring a larger number of citizens into the system. For this reason, its drug courts have been increasingly criticized for coercing nonviolent, first-time offenders into drug treatment and lengthy court programs (Gowan & Whetstone, 2012; Mosher & Akins, 2014). Finally, Australian drug courts do not require participants to sustain an extended period of abstinence in order to complete the program (KPMG, 2014).

Testing regimes in the criminal justice system typically involve collection of multiple specimens: oral fluids, hair, urine, sweat, blood, and urine (Auerbach, 2007). Urine is generally accepted as the gold standard for drug testing because most of the published scientific literature and legal/court precedents associated with drug testing have been established with urine, but disadvantages to using urine have also been identified (Cary, 2011). First, it requires invasive, witnessed collection procedures (McIntire & Lessenger, 2007). Second, urine drug levels do not provide interpretive data on dose/concentration relationship or level of impairment. Third, the urine collected is susceptible to tampering via dilution or adulteration, and samples can be substituted (Cary, 2011). The last of these disadvantages is based on the assumption that donors will try to conceal their substance use and will engage in illicit strategies (such as drinking copious amounts of fluid to dilute the sample or using devices to substitute their sample with a “clean” one). Because of the perceived potential for collection scams, steps are often taken during sample collection to ensure test integrity, such as direct observation of urination and checking for the use of devices through which samples might be substituted.

According to the Drug Court of Victoria (2012), testing targets the following drug classes: amphetamines, opiates, benzodiazepines, cocaine, cannabinoids, and alcohol. This is based on the premise that they are the most frequently “abused” drugs in the forensic environment. Additionally, at the special request of the court, testing can confirm use of opioid replacement therapy drugs such as methadone, suboxone, naltrexone, and buprenorphine. The court’s urinalysis and breath testing policy (Drug Court of Victoria, 2012, para. 3.1.2) lists four main advantages to having such information. It allows:

appropriate decision-making based on accurate information,

At the time our research was conducted (2015), drug court participants underwent both urinalysis and breath testing. They now undergo urinalysis only, as the court has access to a more sophisticated testing technology. ³ As noted above, participants pass through different phases of the drug court program. Testing frequency depends in part on which phase a participant is in: those in Phase 1 are required to undergo a urine test 3 times a week, while those in Phases 2 and 3 are required to undergo a urine test twice a week (Drug Court of Victoria, 2012; KPMG, 2014). At the time of our research, those on alcohol orders tested more often than others because the body metabolizes alcohol much more rapidly than other substances and the testing technology available to the court was unable to detect it after a few hours. The frequency of urinalysis or breath testing can be increased in any phase by the magistrate as a punishment for lack of compliance with order conditions (KPMG, 2014). Further, case managers can ask participants to undertake random tests at any time.

Literature Review

A growing body of literature critiques the operation, objectives, and effects of drug courts around the world (Boldt, 2010; Bowers, 2008; Burns & Peyrot, 2003; Colyer, 2007; Fischer, 2003; Fitzgerald, 2008; Gowan & Whetstone, 2011, 2012; Hoffman, 2000; Justice Policy Institute, 2011; Kaye, 2013; Lyons, 2013, 2014; Mackenzie, 2008; E. Miller, 2004, 2009; Moore, 2007, 2011; National Association of Criminal Defense Lawyers, 2009; Seddon, 2007; Tiger, 2011; Whiteacre, 2007). Within this literature, there are very few in-depth analyses of the process of urine testing in drug courts. Mackinem and Higgins’ (2007) 4-year participant observation study in three U.S. drug courts found that while urinalysis is considered an “objective” and rigorous method for drug testing, its use is highly subjective in drug court settings. For example, in the testing process known as line identification (which refers mainly to an on-site screening methodology), a chemically embedded paper interacts with drug metabolites in the urine sample. If no illicit drugs are in the urine, a line appears in a field indicator. If a drug is present, no line appears. Because individuals perceive color differently, personnel at times debated whether the line had appeared. Mackinem and Higgins also note that drug court personnel had the discretion to decide whether a participant had intentionally diluted the sample by drinking too much water. In a second study, Paik (2006) analyzed how drug test results were used in court decision-making. She found that depending on the participant, personnel anticipate, recognize, and treat some drug test results (originally reported as either positive or negative) as “false positives,” “false negatives,” or “inconclusive.” They do so by using interpretative tools, including participants’ patterns of behavior, history of substance use, understandings about their client population, and their own assessment of their colleagues’ competence in administering tests and “interpreting” drug concentration levels (see also Cary, 2004, 2011).

In addition to this work, some research on drug courts outside the U.S. has looked tangentially at drug testing. In the UK, Powell, Bankart, Christie, Bamber, and Arrindell (2009) point out that unlike the U.S. drug courts, where the aim is to achieve almost immediate abstinence from drugs, UK staff seemed to operate under a philosophy of harm reduction (Bean, 2014; Powell, Bamber, & Christie, 2007). In the UK, drug testing as part of a treatment order is only used as an indication of compliance, with frequency of testing set by the court at sentencing. The tests are not linked to sanctions because legislation prohibits the administration of such sanctions (McSweeney, Stevens, Hunt, & Turnbull, 2008). In her report on a Canadian drug court, Moore (2011) observes that drug testing was conducted randomly once a week, and although drug use was not punished, not admitting to drug use was. While these studies offer insights into how drug court personnel engage with drug testing technology and illuminate the test results and how they interpret them, drug testing in drug courts remains largely unexplored. This is especially the case in Australia (where alcohol and other drug-testing regimes and technologies might be very different from those reviewed above). This lack of research is important because drug testing is presented as an “objective” way of measuring the extent of alcohol and drug use and as central to the management of dependence. Hence, examining it closely will reveal key representations of dependence and ways in which drug court participants accommodate, resist, or otherwise engage with enactments of dependence in their drug-testing experiences. This is important because drug court participants’ voices remain largely unheard on this issue. In what follows, we aim to address these gaps with a detailed analysis of how urine testing unfolds in one Australian drug court.

Before we begin our analysis, however, it is important to consider research on opioid pharmacotherapy treatment (OPT). Many OPT programs also require urine-testing regimes like those used in drug courts, and some of the research on OPT explores issues that overlap with those of drug-testing regimes in drug courts. For example, Strike and Rufo’s (2010) study of drug testing in OPT found that some patients considered urinalysis procedures (including witnessing) degrading, embarrassing, and invasive and felt it reinforced “lying junkie” identities they were trying to escape. However, other patients came to accept it as part of the treatment. Further, while some clinical staff considered urinalysis beneficial, others believed that it jeopardized the development of the therapeutic alliance between clinicians and clients. Another important similarity between drug-testing regimes in drug courts and OPT is the limited opening hours of drug-testing facilities, dispensing pharmacies, and clinics. Fraser’s (2006) analysis of dosing in methadone clinics and pharmacies in Australia found that the model of waiting and dependence created by dosing processes produced the very kind of methadone subjects (“disorderly, illicit, and unproductive”) that the program assumed existed prior to intervention and that it was intended to reform. While this dynamic was identified specifically in relation to methadone, as will be shown below, her analysis offers a useful starting point for identifying similar counterproductive effects in drug courts.

Approach

The analysis conducted in this article is framed through Bacchi’s (2009) methodological work on analyzing policy. Her “What’s the Problem Represented to be?” (or WPR) approach was designed to facilitate critical interrogation of public policy, and to this end, she argues that policy does not simply “address” social problems, rather policies identify or constitute problems and give them shape (Bacchi, 2009, p. x). In this sense, policy approaches do not simply respond to preexisting, stable “problems,” but actually enact them. According to Bacchi, the way a problem is constituted has important effects for “what can be seen as problematic, for what is silenced, and for how people think about these issues and their place in the world” (Bacchi & Eveline, 2010, p. 112). Here, the term “effects” does not refer to “evaluation” or measurement of “outcomes” (Bacchi, 2009, p.15), but to the repercussions of problem representations and their implications for how we can think about problems. Problem representations also have effects on how participants see and understand themselves as well as material effects on their lives (see Bacchi, 2009, 2012). The WPR approach has been used to examine a range of alcohol and other drug policies and treatment issues (see Fraser & David Moore, 2011a; Lancaster, Duke, & Ritter, 2015; Lancaster, Hughes, Chalmers, & Ritter, 2012; Lancaster & Ritter, 2013). This emerging body of work has identified the multiple ways in which policies do not merely address the “problem” of alcohol and other drug use and “addiction” or “dependence” but discursively constitute it in particular ways. Other research within this “new subfield of drug policy research” (Seear & Fraser, 2014, p. 828) used Bacchi’s approach to critically examine the ways the law produces taken-for-granted assumptions about the “problem” of “drug use” and “addiction,” thus further stigmatizing and marginalizing people who use drugs through the subjectivities enacted (see Lancaster, Seear, & Treloar, 2015; Seear & Fraser, 2014; Spivakovsky & Seear, 2017). In this article, we extend these ideas further through a detailed analysis of the way one drug court conceptualizes the problem of alcohol and other drug “dependence” and seeks to respond to it through the administration of an onerous drug-testing regime. In doing so, we focus on the first, fourth, and fifth questions of Bacchi’s (2009) WPR approach, which consists of the following six questions (p. 2):

What is the “problem” represented to be in a specific policy?

Using Bacchi’s approach, we examine the presuppositions and assumptions that underlie the representation of drug problems in the drug court drug-testing policy and consider some of their effects on participants.

Method

The data on which our analysis is based were collected via a combination of methods: court observation, qualitative interviewing, and analysis of the textual materials the Drug Court of Victoria uses to present itself (including policy documents, information given to participants and evaluations). For the observational component of this research, one researcher (E.S.) attended the Drug Court of Victoria weekly across a period of 5 months (August to December 2015), observing public hearings and sitting in on case conferences (meetings involving drug court personnel before review hearings to determine the progress of participants). Extensive field notes were kept. In these field notes, we recorded interactions between drug court staff and participants during court hearings and how members of the drug court team administered sanctions and rewards in the case conferences. These notes constitute the project’s first data set.

The second data set for this project comprises transcripts of semistructured interviews conducted with two main categories of interviewees: court participants and court personnel. Fourteen interviews were conducted with drug court participants recruited through court-related organizations (see demographic details of drug court participants in Appendix A). Recruitment information provided to prospective participants made it clear that participation was entirely voluntary. A snowballing technique was also used to expand access to court participants. The second category of interview participants was drug court personnel. In conducting the observational component of this research, E.S. invited all members of the drug court team to participate via letter. Seven members of the drug court team expressed interest and were interviewed. Because this was the only drug court in the state of Victoria when this research was conducted, staff are readily identifiable, so demographic details about these participants cannot be reported here. Drug court participants were reimbursed for their participation in the research. The interviews explored a wide range of issues including drug court participants’ experiences with the drug court system, processes of entry, diagnosis and treatment, processes of alcohol and other drug testing, and views about alcohol and other drug use. The interviews were confidential, digitally recorded, and transcribed verbatim.

The third data set comprises key drug court policy and procedure documents, information given to participants and evaluations. The researchers identified documents using the report on the most recent evaluation of the drug court (KPMG, 2014). Most of the documents were provided on request by the drug court (see Appendix B). Two of these documents have been used in the Analysis section of this article: the drug court participant manual, given to participants when they start the drug treatment order, and drug court policy No. 8 (urinalysis and breath testing).

All three data sets were analyzed using the Miles, Huberman, and Saldana (2013) approach, which involves thematic analysis and coding in three stages: data reduction, data display, and data analysis. The project has ethics approval from the Curtin University Human Ethics Research Committee (approval number: HR84/2015). We have assigned pseudonyms to drug court participants, and in order to obscure gender and enhance the anonymity of participating staff, we have assigned only initials to drug court professionals.

Problematizing Alcohol and Other Drug Testing in the Drug Court of Victoria

As we noted earlier, the stated objectives of the Drug Court of Victoria are to improve participants’ health and well-being through reducing alcohol and other drug use and criminal behavior and improving their connection to the community and to reduce the severity and frequency of their offending (KPMG, 2014). This focus is instantiated in the legislation establishing both the court’s jurisdiction and the eligibility criteria for participants (the aforementioned Sentencing (Amendment) Act, 2002 , s18Z). Through these criteria, the drug court explicitly problematizes both alcohol and other drug dependence itself and criminal offending thought to be related to (or caused by) such dependence. We argue that these objectives are also underpinned by an implied subject (those who are both “dependent” and “criminal”). From the outset, in other words, the drug court’s objectives and underlying premises produce a set of problematic objects (“dependence” and “dependence-related crime”) and subjects (“dependent criminals”), even though these objects and subjects are assumed to preexist the establishment of the court itself. A key question for consideration then becomes: If the court’s objectives and eligibility criteria enact these as their problems, do the court’s practices and processes—and particularly, for the purposes of this article, the urine screening process—enact or assume the same kinds of problems or different ones? And what is the significance of these alignments or misalignments between the court’s stated objectives/foci and the effects it actually produces? We consider these issues in what follows as we analyze experiences of drug court participants with the court’s drug-testing regime. As we will see, these experiences include random testing. We also trace some of the effects of the alcohol and other drug-testing policy and its implementation for participants. In doing so, we make three key points: the regime is likely to intensify participants’ involvement in the criminal justice system, its emphasis on abstinence may heighten exposure to alcohol and other drug-related harms and risks and isolate participants from broader society, and it inhibits participants’ social relationships and employment prospects. In all these respects, the court can be said to create the very ill effects it is aiming to avoid. Ironically, both problem and solution are underpinned by the same idea: damaged/problematic drug-using subjects. As we will also note, however, despite these negative effects, some participants find aspects of the drug-testing regime beneficial.

Conclusion

In this article, we examined the approach to drug testing in one Australian drug court. Drawing on Carol Bacchi’s poststructuralist approach to policy, we explored the problem representations inherent in the drug court’s policy with respect to drug testing and considered some of the underlying presuppositions and assumptions embedded in that policy. We then explored some of the effects of the policy and the process of its implementation, including the effects for drug court participants subjected to the testing regime. We argued that the everyday and seemingly mundane ritual of urination is of central importance to the drug court model, a mechanism by which the drug court seeks to govern participants and solve their problems (particularly their alcohol and other drug “dependence”). As Vrecko (2009) points out, the coercion in drug courts is not carceral; it involves a commitment by the individual “to submit to relatively mundane, but technically precise interventions that target only particular, ‘dividual’ elements of the offending subject” (p. 223). Urinalysis is a clear example of such an intervention because it targets a specific activity of the participants: the several-times-daily, mundane ritual of urination. In our view, for many participants, the governance of urination is one of the most coercive elements of the order and an important way through which particular problems are constituted and particular forms of social control are enacted.

In urine testing, the problems participants face are constituted as anterior to the operations of the drug court. In this sense, urine testing helps constitute the legal and social rationale for the court: It deters substance use, alleviates participants’ dependence, and in so doing, resolves associated problems such as criminality. However, as we have argued, the specific practices of urine testing documented in the drug court may actually allow or even produce the very kinds of problems thought to justify participants’ commitment to the court. Urine-testing regimes are onerous, demanding, intrusive, and time-consuming. Although the drug court purportedly adopts a model of harm reduction, testing regimes are more consistent with abstinence models since substance use is heavily monitored and sometimes formally sanctioned through custodial sentences. This focus on abstaining from alcohol and other drug use can have a range of effects. It can, for example, magnify entrepreneurial efforts on the part of some participants to avoid detection through complex and potentially harmful alternative drug-taking regimes. In this sense, drug courts may allow or encourage the very kind of drug-related harms that are assumed to be resolved by them and which are often claimed to be the effects of “addictive” drugs “themselves” (see Fraser & David Moore, 2011a).

The policy of urine testing has other effects. For instance, frequent attendance and waiting times, added to other drug court commitments, constitute barriers to securing and maintaining employment for some participants (see also Fraser, 2006). Paradoxically, these kinds of broader lifestyle changes (securing stable, ongoing employment) are one of the aims of the drug court model, in that the court problematizes participants as insufficiently gainfully employed and lacking engagement with the broader community (Fraser, 2006). Second, while the treatment and monitoring modalities to which participants submit are community-based, they might further direct participants to the periphery of society and encourage them to form relationships with others who use substances. Again, this is often in conflict with the stated aims of the drug court, which problematizes participants as margin dwellers. These findings are consistent with Fraser’s (2006) findings about OPT, which, in its quasi-coercive forms, bears similarities to drug court approaches. Finally, we have argued that the process of urine testing can intensify rather than reduce participants’ exposure to the criminal justice system and increase criminalization. Again, criminal behavior in drug court participants is often naturalized and positioned as an effect of drug use and/or “dependence,” a problem that preexists enrolment in the drug court and is likely to be alleviated by it. This increased risk of criminalization raises important questions about the efficacy of the drug court model and its putatively more therapeutic approach.

Our analysis suggests that the drug court enacts a wide range of problems and that the effects it produces, in Bacchi’s sense, are sometimes uneven and contradictory. In some respects, the court’s drug-testing processes produce effects that converge with the court’s stated aims. Other effects diverge from them and are more clearly anti-therapeutic, in contrast with the underlying objectives and claims of the drug court as a remedial alternative to traditional criminal justice systems. While similar concerns have been raised before in the context of U.S. drug courts targeting low-risk or low-level offenders (Belenko, Fabrikant, & Wolff, 2011; Justice Policy Institute, 2011; Makkai, 1998, 2002), the analysis that we offer in this article differs from that work in two key ways. First, we have provided examples of how an Australian drug court, which focuses on individuals with a long history of offending, might intensify involvement in the criminal justice system through the mechanism of drug testing. Second, our work demonstrates the simultaneously divergent and convergent effects of these processes and the tensions and overlaps between these and the court’s stated aims. As we know, Carol Bacchi’s framework demands a focus on the ways in which policy processes enact problems. These findings suggest that the “effects” of drug court processes may not always align, at least at first glance, with the formally stated “problems” that lodge within and underpin the rationale of the court. This is most obvious when we consider the extent to which the court’s focus on improving community connections, fiscal responsibility, and reducing criminalization is actually achieved. These divergences (between problem representation and “effects”) expose the difference between the palatable public account and the messy, often negative motivation and logics the court entails. What is more, they pose some challenges for our use of Bacchi’s framework. We argued, however, that the various effects produced by the drug court align with the key presuppositions lodged in the rationale for the court. This involves the presupposition of the abject subject (those who are both “dependent” and “criminal”) in the court’s aims and objectives and the abject subject that drug courts often (although not always) enact.

Research remains to be undertaken in other drug courts to establish whether these issues apply elsewhere and to consider the effects of this seemingly inadvertent drift away from harm reduction. We argue that courts should rethink the very central emphasis they place on alcohol and other drug use per se. It is possible that the drug court’s intense focus on alcohol and other drug consumption forecloses other ways of thinking about participants and their lives, their needs, priorities, and the kinds of supports that might benefit them and improve their well-being. In other words, the focus constitutes the court’s problems in certain ways, and as Bacchi notes, alternative ways of constituting problems can produce significantly different effects. Drug court participants we encountered for this research were socially and economically disadvantaged and struggling with fundamentals such as food and housing. It is important to ask whether the drug court’s particular emphasis on urine tests and urine test results is productive, given the adverse outcomes we have identified. Drug testing could be made available if requested by participants who consider it useful to them. Furthermore, other more respectful forms of accountability can be developed. In this article, we questioned what drug courts prioritize and how these priorities stem from problem representations, presuppositions, and assumptions that lodge in the design of drug courts from the outset. Might things be done otherwise?