Up Front
Chief Justice Hon. AnthonySmellie speaks of: The Proposed Drug Treatment Court
Chief Justice, Hon. Anthony Smellie
An "endemic" drug problem, whichis having a deleterious effect upon the young people of Caymanand a recognition of an unsuccessful rehabilitation system ingeneral, have prompted a recommendation for the establishmentof a Drug Treatment Court, among other proposals for changes inthe administation of the criminal justice system.
Under the proposal, the Drug Treatment Court is to be establishedto "reduce drug abuse and resultant criminal behaviour, throughcourt-supervised treatment for individuals addicted to cocaineand/or other opiates," according to information from theoffice of the Chief Justice, Hon. Anthony Smellie.
Non-violent offenders who are charged with possession of smallquantities, or consumption of crack, cocaine or heroin, are eligiblefor entry into the programme of the Drug Treatment Court.
The Court is yet to come into effect, as legislative changes arerequierd for its full enactment, according to the Chief Justice,though noting that there are limited things that the courts cando, even without legislative change.
"The rest of the recommended changes I felt appropriate toawait acceptance by government because of the policy implicationfor legislation before discussing them in detail with you."
He added that the Drug Court is in "a special position"and has been discussed with the Government and the Governor andthat there's general support all around for it.
In an indepth interview with the Chief Justice at the Courts Office,Cayman Net News got information of the rationale for the settingup of the Drug Court, and the mechanisms of its operations.
Cayman Net News: we understand that a Sentencing AdvisoryCommittee made the recommendation in October, for the establishmnetof the Drug Treatment Court. Who comprised this committee?
Chief Justice: The Committee is comprised of about 25 persons.They represent as broad a cross-section as we could muster ofall the relevant disciplines -- of social services, the drug rehabilitationpeople, the police, the prosecution, the courts -- you name it,anybody you can think of who would obviously have some input intothe penal and the rehabilitative process.
Cayman Net News: Is this a committee to deal with drugcase sentencing or sentencing in general?
Chief Justice: The Committee had to do with sentencingin general. When I became Chief Justice, one of the things thatbecame apparent to me was that our traditional approach to sentencingand rehabilitation was flawed. We weren't getting the kind ofsuccess, which we ought to expect, given the resources which wehave, ... the size of the community, the demographics the wholelocal situation and I decided that we should take a new approach.We should look at the matter anew to see if we could come up witha local approach, one that would more than likely bring to bearlocal considerations.
So I got this group together, purely a voluntary arrangement andthe response was very spontaneous and productive; we had a numberof meetings. I sent through two reports, the first report wason community service orders in particular. The first objectiveof this committee was to design the structure of community serviceorders. That was the subject of the first report. The structurewas finally promulgated in June of last year.
Cayman Net News: What were the considerations (rationale)for setting up the Drug Court?
Chief Justice: The first thing to note is that this isgoing to be a facility to deal with drug abusers, not drug traffickers.Indeed the treatment of such offences must involve imprisonment.We won't need a separate formal building for the Drug Court. Whatwe need is a different kind of programme and a different way ofdealing with offenders who take drugs.
And from our experience, we are talking about a very large cross-sectionof offenders because many of our recividist burglars many manyof the young people and not so young people who come before thecourts are involved in other kinds of offences because they aretrying to get the means to sustain the drug habit. So we are notgoing to identify them based only on their being charged withconsumption of drugs.
We are going to look into their entire history and if we are satisfiedthat there is an underlying drug problem, though the charge maybe burglary, then they qualify to be brought into the programmeand they will be dealt with in a different way altogether. Thetraditional way is to have a defendant in court, the judge atone end, the lawyer between him and the defendant. An adversarialsystem, the Crown must get up and prove (the case) if the Crowndoes - then conviction and sentencing -- end of story.
That is not the approach taken in the drug court.
Instead it is one where he accepts that he has difficulty withdrugs; he accepts that he should be in this programme; becausehe acknowledges the particular offence, he knows that the Courthas the power throughout the process to impose a custodial sentence.Though that is not the objective.
On the contrary, the objective is to put him through a programmefrom which the defendant will graduate to the satisfaction ofall involved as somebody who is now free of drug addiction, somebodywho can be assimilated back into the society in a very meaningfuland productive way.
During the course of the programme, if they relapse - we willincarcerate for an appropriate period of time-essentially to makethe point that its easier to stay off drugs than not to stay offdrugs, because of the consequences of not staying off...
It's a consultative process, and we meet like you and I now, aroundthe table - not the adversarial dynamics and he sits there also,the judge as well, and then around the table there will be thepolice, the prosecution, his lawyer, social services, drug counsellorsand anybody else we think would be needed to be in that particularprogramme, because of the circumstances of that individual. It'sa remedial programme.
Cayman Net News: So the physical make-up of the Court willreflect a compassionate approach?
Chief Justice: The very nature of the gathering of allthose persons who are working together, yes, will reflect compassion.And that is why I make the point from the start, that we cannottake that approach if you're drug trafficking. There's only oneproper disposition in a case like that. But here because you recognisethat this person is as much a victim as an offender, then theunderlying premise is compassion. It becomes a concerted efforton every body's part to see this person through the process.
The judge, the magistrate, is in charge of the process throughoutand is in charge because the criminal charge that brought theman before the court in the first place is extant throughout theprocess .
Cayman Net News: We understand that the programe for theDrug Court will rest on voluntary participation. Could this militateagainst its prospects for success?
Chief Justice: If one takes voluntary in that wide sense. Butwhat is meant is that you voluntarily submit to the programme.You have a choice, you know. You can say to the Court, I tookthe drugs, do your next best, or you can say yes I took the drugs,I have a problem, rather than you doing your next best with meand send me to prison, or fine me or something else, I want tosubmit to this programme.
But there is also the ongoing voluntariness of cooperation inthe programme.
Where the voluntariness ends is in the sense that it is not entirelyup to him, whether or not the programme is seen as succeedingand whether or not he is seen as complying. So in that sense itis not voluntary. That is where the judge or the magistrate controlsthe programme. Because for instance, if he fails to turn up forone of his evaluations, one of his meetings, or anything of thesort, that will be regarded as a breach of the programme and thebasis for recourse to the other remedies.
If he tests positive on one of his tests, then that could alsobe regarded as a breach and the other recourses will kick in.It depends on the scenario, but there are a number of differentthings that could be done to ensure compliance. It is true thoughthat underlying all of this throughout the entire programme mustbe the willingness on this person's part to submit to the programmeand to work for its success. Without that, he's likely going toend up in jail.
Cayman Net News: We have information that at Northwardsome 40 percent of those incarcerated are for direct drug charges...
Chief Justice: I can't confirm the figure...I doubt thatthere is a policy in any of the courts to send somebody to prison,only for drug abuse. You establish a tariff that if somebody goesthere for that kind of offence, only after a certain number ofre-offences, because you would have tried everything else availablein the past, without it working.
So what you may find is that the 40 percent you are be talkingabout may be there for drug-related offences, not only drug consumptionitself. Something else has involved the social agencies... andwhich indicate that prison is the appropriate place, otherwisethat figure sounds high to me.
Cayman Net News: From the point of view of abuse of andtrafficking in controlled substances, how significant is the problemin Cayman. What kind of numbers of drug cases come up before theCourts, say in a year?
Chief Justice: How does one quantify the nature of a problemlike this? One can't. It has always been clear to me and to therest of the court that the problem is quite serious. And the deleteriouseffect on the youngsters of Cayman is alarming.
I couldn't tell you offhand the number of drug cases per year...theyare many and the figures are available.
Cayman Net News: When do you envision that the Drug Court willbecome operational?
Chief Justice: I'm hoping in the strict formal sense, beforethe end of the year but for some things we can do now ahead ofthe law being changed, it could be a matter of months - threeto five months. What we need to do is to decide on how to structureour programme; the role of each agency and how we identify drugabusers for entry into the programme...things of that nature.The good news is that by and large we already have the wherewithal,we have the facilities - Caribbean Home, a private clinic, socialservices department who are very well-trained, and dedicated socialofficers.
Cayman Net News: So the necessary legislation is the ultimategoal?
Chief Justice: Yes, in the sense that the legislation is necessaryto formalize the structure. What happens now is that there isa charge, which is proven, or not proven. If it is proven, thensentencing is required. That is how the matter is disposed of.We do our best in the sentencing process, for instance, even nowand for sometime we have been requiring abusers to take drug counselling,whether or not they go to prison. We've made orders of conditionalprobation, or conditional other kinds of other orders...
What that lacks is the structure for follow up. What we need isthe legislation to allow us to take the man and say: Here's thecharge, you've accepted that you have a problem, we're not goingto try it; we're simply going to record your acceptance of youraddiction. On that basis, here is the programme you must submitto and it will probably be, in some cases as long as two years,with monthly meetings. Some of them will start out with weeklymeetings with random drug tests.
What we need is legislation that enables us on any of those occasionsto say that you're not complying with the programme to which youhave signed on. You've breached the programme, you have thereforebreached the law, and these are the consequences. So until wehave legislation designed specifically to underpin the programme,we can't really do it formally and properly.
The most we can do now is, for instance, postpone sentencing ortrial of the charge, and while postponed, require to report fromtime to time to take random tests, as a condition of the bail,pending trial or sentence. But immediately you will understandthe inadequacy of that kind of ad hoc situation.
Cayman Net News: Could anyone view this initiative as away to relieve overcrowding at Northward?
Chief Justice: I can tell you that this initiative hasnothing whatsoever to do with particular problems at the prison.It might be a healthy spin-off, that it help to alleviate that,but it didn't motivate it, or generate the idea, this came asa result of research and general concern, and because it was clearthat what we had been doing all these years was not working.
And there is so much more that could be done. But this is justone initiative that we found from some research in other places.We are now linked with the Drug Court Professionals Associationof North America and their membership comprises professionalswho work with the 600-odd Drug Courts in North America.
Cayman Net News: Is the Cayman Drug Court to be modelledon a particular territory's?
Chief Justice: I can't say yes, absolutely just yet. WhatI can say is that the basic idea is nothing new. These 600 courtsalready operate along the lines I describe. There, of course,are in most cases, specific institutions that have been establishedas drug courts, which is not something we're thinking of usingresources for.
What I'm hoping is that until we develop the other site for theSummary Court, which is intended, we'd have meetings in Chambersin this building. When that building is created, we hope to havean area set aside in it, to be dedicated to the business of theDrug Court.
The important thing is the support staff and a special way ofhandling these cases in the registry, for example, the listingand monitoring of them.
Cayman Net News: Will the extra space for the Summary Court bebuilt on this (the Courts Office) site?
Chief Justice: That was mooted, but we stopped and reflectedand noted that with the congestion in town already, it would bedifficult for users, prisoners, and the public. So I'm hopingthat Government will find a site somewhere out on Thomas RussellWay, not too far from downtown and the Grand Court will remainhere.
Cayman Net News: What will be the cost to establish the Drug Court?
Referring to the numbers at Northward and the cost of keepingthem, he responded:
Chief Justice: If you look at 40 percent of 300 people,that's 120, at $20,000.00 dollars a year each. That's $2,400,000million dollars per annum. The Drug Court is going to be nothinglike that. We're talking primarily about resources in terms ofpersonnel, people already on staff, and it's a matter of redeployingthem.