What are the challenges facing the AODTC

(drug treatment court) in achieving crime

reduction in New Zealand?

Roger Brooking

Word count: 6,308

Research paper for

CRIM 414 Issues in Crime Prevention
at Victoria University of Wellington
December, 2020

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What are the challenges facing the AODTC in achieving crime
reduction in New Zealand?

Crime is a multi-factorial phenomenon with numerous contributing causes. Alcohol and drug abuse
is frequently one of those factors: intoxication, especially to alcohol or methamphetamine, may
precipitate anti-social behaviour or escalate its severity; drug dealing is often associated with gangs
which sometimes resort to violence to resolve disputes; and many burglaries and other acquisitive
crimes are committed to fund an addiction (NZ ADUM, 2016).

Estimates of how much crime is alcohol and drug related vary considerably. In 2006, the New
Zealand Arrestee Drug Abuse Monitoring Programme found that 73% of arrestees tested positive to
one or more illicit drugs at the time of their arrest (NZ ADAM, 2006). In 2008, the National
Committee for Addiction Treatment estimated that 80% of defendants appearing in Court met
criteria for a substance use disorder (NCAT, 2008). For those in prison, the figure is 87% (Corrections,
n.d.). Given the nexus between alcohol, drugs and crime, treatment programmes for addicts and
alcoholics would seem to be a common sense, crime reduction strategy.

The question is, how well, and under what circumstances do such programmes make a difference. A
common myth regarding addiction treatment is that it only works for motivated individuals who
seek help voluntarily (Kushner, Peters, & Cooper, 2014). However, voluntary treatment programmes
tend to have high dropout rates – sometimes as high as 80% in the first three months (Schroder,
Sellman & Deering, 2007). The criminal justice system, with the power of coercion at its disposal, has
been found to be effective at enhancing retention and compliance (Farabee, Prendergast & Anglin,
1998); offenders mandated into treatment tend to have better completion rates than those who
participate voluntarily (Werb, Kamarulzaman, & Meacham, 2016).

In New Zealand, those who appear in Court may be coerced into treatment in four different judicial
scenarios (Law Commission, 2010). The first occurs prior to sentencing: if offenders are considered
low risk and unlikely to receive a prison sentence, they may be bailed to a community-based
treatment programme. If they complete treatment, that can be taken into account at sentencing.
The second scenario occurs at sentencing: offenders may be sentenced to supervision with a
condition to attend alcohol and drug treatment ‘as directed by a probation officer’. In 2006, only 6%
of cases had alcohol and drug treatment imposed as a sentence condition (NZ Law Society, n.d.). By
2010, this figure had risen to 11%, representing 12,271 defendants – out of nearly 123,000 people
who received a conviction that year (Justice Statistics, 2011).

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The third coercive scenario occurs in prison. The Corrections Department may require inmates with
addictions to attend an intensive Drug Treatment Programme (DTP). If prisoners refuse to
participate, it is unlikely they would be released on parole (Law Commission, 2006). The Department
now has DTPs in nine of its 18 prisons allowing approximately 1,000 inmates a year to attend; it
claims the DTPs have “delivered a consistently positive reduction in reimprisonment, though typically
modest in scale” (Corrections, Investment Brief, 2016, p.2). However, the Department’s own
evaluations show the DTPs reduce reoffending by only 5%, or thereabouts, in the first year post
release. In 2015, the figure was 4.8%; in 2019, it was 6.6% (Annual Reports, 2015-2019).

These insignificant results are not surprising. As far back as 1989, the Roper Report stated that
rehabilitation “is rarely effective in the prison environment" (p.35) and recommended it should take
place in the community. Last year, Sir Martin Narey, former director general of the Prison Service in
Britain also claimed that rehabilitation programmes in prison are ineffective, and should be scrapped
(Taylor, 2019). This is reminiscent of the ‘nothing works’ doctrine which was the prevailing view of
rehabilitation in the latter half of the 20 th century (Martinson, 1974, cited in Sipes 2017). Today the
academic consensus still seems to be that rehabilitation in prison produces only marginal reductions
in reoffending, “averaging 10% or less” and that “the vast majority of offenders are unaffected” by
these programme (Sipes, 2017).

The fourth scenario involving coercion is the Alcohol and Other Drug Treatment Court (AODTC) in
Auckland. This is an intensive treatment programme designed to rehabilitate recidivist offenders in
the community, and is available to a limited number of defendants whose offending is driven by
alcohol or drug addiction, provided they plead guilty. This is permitted under Section 25 of the
Sentencing Act 2002 which allows judges to adjourn sentencing while the offender attends a
rehabilitation programme and then to “take account of the offender’s response” to that programme
[Section 25(1)(e)].

Each of these mandated scenarios has incentives to encourage compliance. However, offenders can
and sometimes do, refuse to attend. One of the issues this essay will address is how coercive the
AODTC actually is. It will also examine claims by Carr (2020) that the Court has become so punitive, it
causes harm to participants and should be abandoned.

To put this in context, there is a fifth scenario in which treatment is fully compulsory, even when no
crime has been committed. Alcoholics and drug addicts can be compelled into treatment under the
Substance Addiction (Compulsory Assessment and Treatment) Act 2017, when “their capacity to
make decisions about treatment for that addiction is severely impaired” (SACAT, 2017, Section 3).

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Since the Act came into effect in February 2018, it has been used on only 48 people (H. Roberts,
private correspondence, August 18, 2020). Many of those in the AODTC are also ‘severely impaired’
and appear to have lost the capacity to make informed decisions. Without the coercive power of the
AODTC, and the opportunity to avoid a prison sentence, the history of these defendants suggests
they would be unlikely to seek treatment.

Three main challenges

In addition to concerns about coerciveness, the AODTC faces three main challenges. The first is for it
to operate effectively, to steer offenders into treatment, reduce their offending and keep them out
of prison. Towards this end, in 1997, the National Association of Drug Court Professionals (NADCP) in
the United States identified ten Key Components of drug courts (Bureau of Justice Assistance, 1997).
In 2012, this was followed by publication of the ten ‘best practices’ of drug courts (National Drug
Court Institute [NDCI], 2012). In the limited space available, it is not possible to examine whether
the AODTC has adhered to every one of these practices. Instead, this essay will focus on a selection
of key practices which, if implemented successfully, lead to significant reductions in reoffending. It
will also examine contrasting claims made by academics and agencies that have evaluated the Court
– the majority of which indicate the AODTC has achieved its objectives (Litmus, 2019; Thom and
Black, 2017; Ministry of Justice, 2019).

The second challenge facing the AODTC is to be cost-effective. How much money it saves is a major
concern for government, which, in 2019, tasked the Ministry of Justice (MOJ) with conducting a cost-
benefit analysis. Whether drug courts meet this objective largely depends on how well they follow
best practice – so cost-effectiveness and best practice are closely intertwined. At the end of the
pilot, the MOJ (2019) concluded the Court was effective, but that the financial benefits were
relatively small. However, its analysis came with numerous caveats and concluded: “it needs to be
noted that many potential benefits (of participation in the AODTC) were not able to be costed” (p.29).

This leads to the third challenge - persuading Government the Court works well enough, and is cost
effective enough, to justify setting up drug courts in other centres - thereby increasing the number of
offenders who might benefit. This essay suggests that to maximize savings, up to 1,000 defendants a
year need to go through drug courts before Corrections can reduce operational or capital costs.

First challenge: the need to adhere to best practice

One of the most important AODTC ‘practices’ is to select the right kind of participant. Numerous
studies have found that drug courts which accept moderate and high-risk offenders have better

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outcomes (Belenko, 1998; Marlowe et al., 2006, cited in Emigh, 2017). Logan and Link (2019) note
that “Courts which can successfully identify these candidates and admit them into the drug court see
crime reduction benefits approximately twice as large as those programmes that enrol less serious
offenders” (and) “see about 50% greater cost savings” (p. 285).

Based on these findings, the AODTC only takes moderate to high-risk defendants whose offending is
driven by an addiction. Their crime has to be serious enough to warrant up to three years in prison,
and they need to plead guilty to be accepted by the Court (MOJ, 2019). The process is supervised by
a specialist judge who monitors each participant’s compliance with treatment conditions. This
involves regular status hearings, combined with incentives and frequent drug testing while
participants work towards becoming abstinent. Failure to comply with conditions imposed by the
Court leads to a graduated series of judicial responses. The toughest sanction is a weekend in prison,
although in the event of repeated breaches, participants may be exited from the programme and
sentenced in a traditional court.

To ensure that defendants are in the medium to high risk category, the Court primarily relies on a
standardized risk assessment tool developed by the Corrections Department known as the RoC*RoI.
This is because “actuarial scales consistently outperform the judgements of experts” (Bakker,
O’Malley & Riley, 1999, p.7) and “drug courts that rely on validated and standardised tools show
improved substance abuse and criminal recidivism outcomes compared to those that did not take
advantage of these instruments” (Schaffer, 2011, cited in Logan and Link, 2019, p. 286).

In her PhD thesis, Carr (2020) objects to the use of the Roc*RoI, claiming it is ‘tacked on’ to decision
making about eligibility and serves as “a shallow and inconsistent facade in the screening out of
offenders” (p. 103). It seems she came to this conclusion based on observations in Court, which
included a defence counsel claiming that the Roc*RoI (which was developed in New Zealand), is not
used in American drug Courts. 1 This allegation, that the RoC*RoI is used to exclude certain
defendants, is contradicted by the data. Litmus (2016) found that only 3% of potential participants
were excluded because they were not in the high-risk target group.

Carr (2020) also claims the “AODTC selects participants who do not always meet the officially stated
eligibility criteria for an AOD addiction” (p. 107). This is another dubious statement. Defendants are
required to have a comprehensive assessment by an alcohol and drug (AOD) clinician before making
their first appearance in Court (AODTC Manual, 2019). It is these clinicians, not the judges, who
determine whether an individual has an addiction. If the AOD assessor concludes a defendant does
1
The risk assessment tool used in many drug courts in the United States is the Level of Service Inventory
Revised (LSI-R). Atkins, C.T. (2018). Initial Drug Court Risk Assessment Scores and Probationers' Completion
of Drug Court Programmes. Walden University, Minneapolis, USA.

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not meet the criteria,2 they are not referred for a Determination Hearing (Litmus, 2016). This means
judges cannot select participants who do not meet criteria for addiction as those individuals never
make it into Court in the first place.

Carr (2020) is also concerned the AODTC does not work well for offenders with co-existing mental
health disorders. This problem is not reserved to the AODTC. Historically, there has long been a lack
of collaboration between addiction services and mental health providers in New Zealand, which
means those with co-existing disorders often do not receive integrated treatment (MOH, 2010). It
may be that some of those who drop out of the AODTC, do so because inadequate attention was
paid to their mental health issues. On the other hand, recovery from a chronic addiction is inherently
difficult often involving multiple attempts before abstinence is achieved (Kelly, et al., 2019). Many
participants in the AODTC do not realize how demanding the treatment process is and “most
commenced the programme thinking it was an easy option to avoid prison” (Litmus, 2014, p.3).

In addition to determining which defendants meet the eligibility criteria, the size of the judge’s
caseload is also important. The NDCI (2012) found that when drug courts have fewer than 125
participants at any one time, reductions in recidivism are five times greater than courts which have
more than 125. In Auckland, each Court is well under this quota, with only 50 participants each. This
allows the judges to spend more time talking with each participant. When judges spend an average
of three or more minutes interacting with participants, this produces a 153% greater reduction in
recidivism than when judges spend less than this (NCDI, 2012). The two judges in Auckland spend an
average of seven to eight minutes (L. Tremewan, personal communication, June 27, 2020); seven
minutes or more improves engagement and effectively triples the potential reduction in subsequent
reoffending (NDCI, 2012).

Minimising the time between arrest and acceptance into the Court is another best practice. When
this is less than 50 days, it reduces recidivism by up to 63% (NDCI, 2012). The AODTC struggles to
meet this goal because most addiction facilities in New Zealand, including those in Auckland, have
long waiting lists (Fraser, 2019). So even when defendants have been accepted into the Court within
50 days, 58% have to be remanded in custody while waiting for a bed in a treatment facility to
become available; on average, they wait another 41 days before starting treatment (Litmus, 2016).
Placing defendants into treatment within 50 days has proved to be a constant struggle for the
Court.3

2
The criteria are described in the Diagnostic and Statistical Manual of the American Psychological Association
(known as the DSM) to determine the severity of an offender’s addiction or substance use problem.
3
This is discussed in more depth as part of the third challenge faced by the Court – how to persuade the
Government to increase the availability of addiction treatment and roll out drug courts nationwide.

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Another key component of successful drug courts is frequent drug testing to ensure participants are
being honest about their substance use - combined with a variety of judicial responses, including
sanctions for repeated relapses (NDCI, 2012). The need for drug testing stems from a principal goal
of the Court, which is for participants to become entirely abstinent from alcohol and illicit drugs
(Litmus, 2016). This is supported by findings that drug courts which demand regular drug testing
have 164% greater reductions in recidivism (NDCI, 2012). Participants who take the most drug tests
each month are also more likely to stay in treatment (Emigh, 2017); the longer they remain in
treatment, the greater the reduction in recidivism (Logan and Link, 2019). In the AODTC,
participants must be drug free for at least six months to graduate and take an average of 18 months
to finish, which is in line with the best performing drug courts internationally (Thom, 2017).

Finally, best practice requires the treatment available to participants to be evidence-based (Litmus,
2016). According to the NCDI (2012), most high needs, high risk defendants require intensive
treatment such as that available in residential facilities and this “may translate into a 106%
improvement in recidivism outcomes” (p.31). In Auckland, the AODTC has contracted residential
treatment from Odyssey, Higher Ground and the two-month Salvation Army Bridge programme. For
participants who require less intensive treatment, the Salvation Army also provides a three-month
day programme.

Evidence-based treatment also requires those with mental health disorders to receive appropriate
medication as part of their treatment. Logan and Link (2019) report that offenders “who receive
Medication Assisted Treatment (MAT) services show increased engagement in treatment and
reduced drug use and criminal recidivism (p. 287). As part of her concern that the AODTC does not
work well for participants with co-existing disorders, Carr (2020) claims the AODTC discourages the
use of certain medications including diazepam, 4 naltrexone5 and methadone6 which are recognized
as “safe and effective alternatives in the treatment of opioid, other drugs and alcohol dependence”
(p. 115).

This claim is contradicted by the management of Odyssey, Higher Ground and the Salvation Army
who all advised in personal communications that, when required, prescribed medication is an
integral part of treatment. The Team Leader at the Salvation Army wrote: “There are no medications

4
Diazepam is clinically approved for the treatment for anxiety. It may be used for up to a week to assist
alcoholics detox from alcohol but is not approved as a long-term substitute for dependence on illicit drugs.
This is because it addictive and leads to physiological dependence within three or four weeks of use (Brett &
Murnion, 2015).
5
Naltrexone is an anti-craving medication which assists alcoholics withdrawal from alcohol (Beaglehole,
Foulds, Mulder, & Boden, 2019).
6
Methadone is an evidence-based, harm reduction treatment for opioid addicts (Ministry of Health, 2014).

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that would bar a client from coming to the Bridge in Auckland. We can accommodate methadone,
naltrexone etc. We merely would require the client was stable on that medication” (C. Whittle,
personal correspondence, June 23, 2020).

Carr (2020) also believes the AODTC does not work well for Maori, who make up nearly 60% of
participants (Litmus 2015). She claims that rehabilitation programmes in New Zealand are based on
western principles and procedures, “resulting in Māori culture being undermined and subjugated”
(p. 153) and that in the AODTC, “Maori cultural identity is homogenised for the purposes of
treatment” (p. 152).

This criticism also appears unfounded, due to another key component which requires on-going
evaluation of the Court to ensure monitoring and improvement of its practices. In response to this
requirement, Litmus conducted three process evaluations which led to several changes to AODTC
protocols (MOJ, 2019). In the second year of the pilot, a Maori advisor (Pou Oranga) was appointed
to “give advice on how to engage with Maori participants” (Litmus, 2014, p. 56); several tikanga
practices were also introduced and normalised in the daily routine of the Court (Litmus, 2016). In
contrast to Carr’s negative claims about the treatment of Maori, Litmus (2016) reports that both
Māori and non-Māori participants were “overwhelmingly supportive of tikanga Māori in the AODT
Court” (p. 66).

This view is endorsed by Rob Hulls, Director of the Centre for Innovative Justice (2019) in Australia,
who points out that while the AODTC is based on the US model, “the most striking feature of the
Court is the way in which it embraces and celebrates its own local culture” (CIJ website). This includes
a waiata sung by Court staff (including the judges), to open the Court each day, the widespread use
of Te Reo in Court procedures, and the haka performed at graduation ceremonies.

Second challenge: the need for reliable evaluations

So what outcomes has the AODTC achieved and how reliable are these results? The Government
contracted Litmus to conduct evaluations of the Court, which were completed in 2014, 2015, 2016
with a final evaluation in 2019. Although the bulk of these reports were qualitative descriptions of
the Court’s operations and impact, Litmus also provided statistical data to back up its conclusions.
Another evaluation was conducted in 2017 by independent researchers, Dr Katey Thom from the
University of Auckland and Stella Black from the Auckland University of Technology. In addition, the
MOJ conducted a quantitative evaluation and a cost benefit analysis in 2019.

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According to all seven of these evaluations, the Court is meeting its objectives. Since the pilot was
established in 2012, 46% of participants have graduated (MOJ, 2019), the same graduation rate
achieved by successful drug courts in the NDCI study (2012). According to the New Zealand Drug
Foundation (2011), this rate is six times higher than that achieved by most ‘voluntary’ rehabilitation
programmes. Graduates were 62% less likely to reoffend and 71% less likely to return to prison in
the first 12 months after treatment (Thom, 2017). When non-graduates were included in the
analysis, 54% (of participants overall) were less likely to reoffend and 58% less likely to go back to
prison in the following 12 months.

After three years, graduates still had a reoffending rate 28% lower than matched offenders
sentenced through the district court (MOJ, 2019). When nongraduates were included, AODTC
participants overall were 23% less likely to reoffend and 35% less likely to commit a serious offence
(MOJ, 2019). Litmus (2019) says these outcomes are double those achieved in most Australian drug
courts and concluded the AODTC is making a “strong positive difference in the lives of graduates who
remain in recovery” (p.77) - and that non-graduates “also experience positive outcomes” (p.78). The
evaluation found that many graduates were still maintaining sobriety four years later.

Carr (2020) ignores all this statistical data claiming that “the AODTC has achieved low graduation
rates” (p. 95). She came to this conclusion based on one paragraph of statistical information in a
282-page thesis that is almost entirely based on subjective observations. One sentence in that
paragraph states that between November 2012 and April 2016, 79 people graduated out of 282
participants. This gives a graduation rate of 28%. Carr had access to MOJ reports from June 2019
showing a graduation rate of 46%, but failed to correct her out-of-date data. 7

The gulf between the controversial claims made by Carr (2020) and those made by these other
agencies is disturbing. It highlights the second challenge faced by the AODTC - whether the
evaluations of the Court and its achievements cited above, are sufficiently independent and
professional to be reliable. In her PhD, Carr (2020) disparaged the reports by Litmus and Thom and
Black as “government evaluations” (p.11). At first glance, she may have a point; Litmus was
commissioned by the Ministry of Justice. How independent any evaluation is from its funder is a
relevant concern.

In my view, these concerns can be put aside. Litmus is a private sector, specialist evaluation
company with an international clientele.8 The company’s conclusions were endorsed by
7
In her bibliography, Carr cites MOJ documents published in June 2019, but makes no reference to the
Ministry’s quantitative assessment published that same month. The result is she was unaware of or
ignored important documentation which undermine many of her observations.
8
Since its establishment in 2001, the company has provided analysis and reports for the United Nations, New

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independent academics, Thom and Black (2017). In a preliminary investigation, Thom wrote: “When
judged against the Ministry of Justice’s stated aims, the pilot programme has been a resounding
success. Not only have graduates of the programme been recorded as having significantly lower
rates of reoffending, but even participants who do not complete the programme experience lower
rates of recidivism” (Thom, 2015, March 25).

Thom and Black’s research was funded by the Royal Society of New Zealand Marsden Fund.
Although this fund was established by the Government, all research projects are initiated by the
applicant and decisions to award funding are made by a panel of academics. As such, the Fund is
“not subject to government’s socio-economic priorities” (Royal Society, n.d.).

The AODTC has also been observed (although not formally evaluated), by at least two international
drug court experts, New York Law Professor Michael Perlin, and Dr Shannon Carey who helped
develop the Best Practice Standards for the NDCI. Prof Perlin described procedures in the AODTC as
“spectacular” and said the judges operate in “integrative ways that left me agape” (Perlin, 2017). Dr
Carey (2020) filmed the two AODTC judges interacting with participants and said: “I have used the
videos in trainings across the United States and internationally as examples of best practices in how
treatment judges should interact with participants" (S. Carey, personal communication, July 29,
2020).

Carr (2020) seems unaware of these professional observers, and entirely ignores the results of the
Litmus and Thom evaluations; instead, she claims her goal was to give participants in the AODTC a
voice, on the basis that very little research has been done “that focuses on the offenders’
experience” (p.4). She interviewed 18 offenders, almost all of whom seem to have made adverse
comments about their treatment. At the time of those interviews, only nine were still participating in
Court. Eight had already been declined or exited; some were never accepted into Court in the first
place, and so were not actually participants at all. Only one of Carr’s interviewees had graduated,
representing 5% of her subjects.

The Litmus researchers also gave offenders a voice. They interviewed 21 participants, 14 of whom
had graduated. This means 66% of the Litmus sample were graduates, compared with Carr’s 5%.
Carr’s reliance on comments from dropouts and non-graduates has almost inevitably skewed the
quality of the feedback she received. Based on a preponderance of negative feedback, which is

Zealand and Australian aid agencies and Pacific Island governments covering a variety of issues including
justice, health, international development, local government, social services and sport (Litmus website).
They
appear to be independent and professional, with an excellent reputation for in-depth analysis and research.

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sprinkled throughout her entire thesis, she concludes that “in practice, the AODTC has created
barriers to treatment and inflicted harms on participants” (Carr, 2020, p.214).

To justify this conclusion, Carr (2020) questions the entire premise on which the AODTC is based -
that treatment can be combined with punishment. She argues that: " one of the major limitations of
the AODTC  is the contradiction of  simultaneously accepting addiction as a 'disease' while holding
participants responsible for their addiction"  (p. 108); and that "if addiction is truly a disease, then it
is highly likely that the AODTC’s attempts to enforce abstinence-based treatment will fail" (p. 112).

Carr’s argument implies that addiction treatment will never benefit alcoholics or addicts because
they have a chronic relapsing disease. If that was true, millions of alcoholics and addicts who have
stopped using by going to Alcoholics Anonymous (AA) or Narcotics Anonymous (NA) are doomed to
relapse. Many do. But those who commit themselves to the 12-step programme remain abstinent
for years (Kelly, Humphreys, & Marica, 2020). They do so by taking responsibility for their treatment
- one day at a time - which is a foundation principle of all such programmes (Virco, 2017).

The same applies to any other chronic health condition. For instance, if a type 1 diabetic does not
take insulin every day, they will ‘relapse’ to uncontrolled blood sugar levels. So Carr is correct that
the AODTC takes the stance that addiction is a disease, but the Court holds participants responsible
for their treatment, not for their addiction. The American Medical Association makes the point that
wherever AOD treatment is offered: “Addressing addiction as a disease does not remove the
responsibility of the individual, which is the argument frequently used to resist recognizing and
treating addiction as an illness” (Chandler, 2009, pp. 183-190).

Carr (2020) also questions whether abstinence is an appropriate goal for the Court and challenges
the need for sanctions. Although the AODTC has the power to sanction, it is debateable how
coercive it actually is. In order to participate, defendants have to sign a 17-point contract in which
they agree to: take part in whatever treatment the Court deems appropriate; compulsory alcohol
and drug testing; and to accept any sanctions that may be imposed for returning a positive test.
However, the contract advises that “I can also withdraw my consent to take part in the AODT Court
at any time” and be “sentenced in a normal Court” (Carr, 2020, p. 261). Only four out of 282
defendants (1.4%) who were offered entry into the Court between November 2012 and April 2016
declined the offer. Another 10% withdrew consent after they started (Litmus, 2016). As described,
Carr drew her selection of interview subjects almost entirely from among these ‘dropouts’.

Ultimately, Carr (2020) is so opposed to what she sees as coercive treatment in the AODTC that she
proposes “a return to the traditional criminal justice options” (p.229). In that case, almost all AODTC

11
participants would be sentenced to prison which, by its very nature, is inherently coercive. In that
environment, they would be required to attend a Corrections’ Drug Treatment Programme. Such a
retrograde step makes little sense. The DTP is ineffective; it reduces reoffending by an average of 5%
in the first 12 months after treatment, compared with the 62% reduction achieved by the AODTC
(MOJ, 2019).

In conclusion, Carr’s observations, allegations and recommendations are incongruent with the
qualitative outcomes described by Litmus, Thom and Black, and the quantitative results described by
the Ministry of Justice - all of which demonstrate that when it comes to reducing reoffending, the
AODTC has achieved a marked level of success. One is led to the conclusion that Carr’s analysis is
fundamentally flawed and that the so-called ‘government evaluations’ (Litmus, Thom & Black) are
more reliable.

How reliable is the cost benefit analysis?

Unfortunately, that reliability does not extend to the MOJ’s cost-benefit analysis - which addressed
the question of whether the AODTC provides value for money. The Ministry concluded that by
reducing police, prison and victim related costs, the Court achieved a cost benefit ratio of 1.33. This
means $1.33 was saved for every $1 spent operating the AODTC, relative to the standard court
process. (MOJ, June 2019).

The Ministry (2019) described this as a relatively small financial benefit, pointing to American studies
which found successful drug courts “tend towards a 2.50 average cost–benefit ratio” (p.13). But
even that figure is on the low side. The New Zealand National Committee on Addiction Treatment
(2008) has argued that every dollar spent on addiction treatment in the community - not just in drug
courts - brings a reduction in drug-related crime costs between $4 and $7; some programmes save
up to $12 (NCAT, 2008). NDCI (2016) says some drug courts save up to $27 for every $1 invested. On
the face of it, therefore, the Ministry’s conclusions about the savings achieved by the AODTC are
very conservative.

To its credit, the MOJ (2019) acknowledged it had to make several assumptions about potential costs
and benefits and said their analysis carried numerous caveats. One was that the MOJ waited four
years before conducting its analysis, whereas most American studies measured their results after
only two years of operation. The MOJ admitted that if international studies had also been evaluated
after four years, the results would likely have been similar to those of the AODTC (MOJ, 2019).

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Another caveat relates to the Ministry’s calculations about the size of potential savings achieved by
participants avoiding a prison sentence. In 2018, at which point only 167 defendants had graduated,
the average sentence time avoided was 20.6 months, saving an estimated $28.7 million in prison
costs (Fuatai, 2018). At the final evaluation in 2019, 220 graduates had avoided prison, leading to a
potential saving of $37 million - based on Corrections’ costings that incarcerating one prisoner, for
one year, costs in excess of $100,000 (Fyers, 2018).

However, the MOJ (2019) claimed the savings achieved by one defendant avoiding prison for 12
months was only $12,847 and, based on this figure, total savings to the taxpayer were only $3.32
million. The MOJ appears to have used the $12,847 figure because the total number of offenders
going through the AODTC, and avoiding prison, is so small it has negligible impact on the Corrections
Department’s operational costs. This is probably true, but it highlights the need for more drug courts
and a larger-scale analysis. To illustrate, if these courts were rolled out nationwide and New Zealand
put 1,000 defendants into treatment every year, 9 nearly half of them would graduate. That’s
approximately 500 offenders who would avoid being sent to prison.

New Zealand currently has nine prisons that hold less than 500 inmates (Corrections, 2020);
additional drug courts would enable at least one of them to close. In the United States, Texas was
able to close four prisons after expanding the use of drug courts and mental health programmes,
saving $3 billion in the process. South Carolina closed six prisons after enacting similar reforms
(Holden, M. & Rollins, B. 2018, September 25). In other words, the size of savings achieved by drug
courts is directly proportional to the number of offenders put through them - which provides a
powerful argument for their expansion in New Zealand. The Ministry’s cost-benefit analysis does not
address this issue.

Perhaps of even greater concern is the Ministry’s decision to compare the cost of operating the
AODTC with the cost of a traditional court. Given that traditional courts are designed to punish
rather than rehabilitate offenders, they serve an entirely different purpose. In most respects
therefore, they are not comparable. It would make more sense to compare the cost of treatment in
the AODTC with the cost of drug treatment in prison - both of which have the same purpose. As
discussed below, that would go a long way towards resolving the third challenge facing the Court.

Third challenge: gaining acceptance from Government

It was not until the Ministry completed its analysis in 2019 that Justice Minister, Andrew Little,
announced that a new drug court would be established in Hamilton (Nyika, 2019). Currently, there

9
As at 16 October 2020, there were 2,471 prisoners with a RoC*RoI in the target range. OIA reponse.

13
are only 23 beds in the Waikato area for people with addictions - and waiting lists up to three
months (Wilson, 2020). This means the most intransigent obstacle facing the new court is the same
one the AODTC continues to face - a shortage of residential treatment facilities in the community.

This problem is not confined to Waikato. Due to years of underfunding, so many treatment centres
in New Zealand closed that the number of residential beds in the community more than halved
(Collins, 2005). In 2005, addicts were waiting up to six months for treatment in some parts of the
country. This situation does not seem to have improved. In 2019, the National Committee for
Addiction Treatment said 150,000 New Zealanders experience problems with substance use every
year, but because of underfunding, less than one third can access help. The Drug Foundation (2019)
agrees stating “strict criteria, long waiting lists, difficult locations and unsuitable services all prevent
people from accessing help” (p. 11) and called for funding for addiction services to be doubled from
the current figure of $150 million a year (Dapaanz, 2017).

While these treatment facilities were closing, penal populism was driving the prison population to
record highs (Pratt, 2007; Walters, September, 2019). In response, Corrections had to build a
number of new prisons (Walters, April, 2019). This empowered a succession of Corrections Ministers
to claim their Department had a responsibility to rehabilitate these additional inmates (Collins 2016;
Cheng, 2019). In 2015, the National Government endorsed this perspective announcing that
Corrections had to reduce reoffending by 25% (Lewis, 2015). As a result, for the last 20 years, the
Department has demanded more and more funding – both to build new prisons and to provide more
rehabilitation programmes. In the process, the number of prisoners accessing drug treatment in
prison jumped from 174 a year in 2005 (CareNZ, n.d.) to 500 in 2008, and then to 1,000 in 2011
(Beehive Media release, 2011). In the 2019 ‘Wellbeing’ budget, Kelvin Davis announced more
funding would be made available, enabling 1,200 prisoners to attend (Cheng 2019).

In other words, whoever has been Minister of Corrections has had more influence over government
spending on addiction treatment than the Minister of Health. Valuable resources have been diverted
into prisons, instead of into the community where, potentially, they would have far more impact on
crime reduction. This imbalance will not be turned around by the MOJ’s dubious cost-benefit
analysis, which suggests the financial benefits of investing in drug courts in the community are
entirely marginal. It would have been considerably more revealing if the Ministry had compared the
AODTC with the costs, benefits and effectiveness of drug treatment in prison.

Another reason that successive governments have been reluctant to invest in residential treatment
may stem from a perception that there is simply not enough money in the budget to provide

14
treatment in the community as well as in prison. This is simply not the case. In 2019, the Police
Asset Recovery Unit seized $101 million from criminals, most of which stems from organised crime
associated with drug dealing (NZ Police, 2019). The Government also receives over $1 billion a year
from alcohol levies, very little of which goes into addiction services (Strecker, 2018). Clearly, there
are potential sources of funding available to establish additional facilities in the community if
Government chose to take advantage of them. The reality is that very little of this funding would
even be required; the added cost of the AODTC pilot over standard court costs was minimal - $14.46
million spread over six years (MOJ, 2019). That works out at an additional $2.41 million a year.

Despite this apparent reluctance to invest in community-based treatment, the government has
decided to go ahead with a new drug court in Hamilton. That decision appears to have been made
in response to sustained pressure from advocates such as the Hamilton mayor, the local judiciary,
lawyers, and recovering addicts (Rowland, 2019). Additional support came from Waikato Alcohol
and Drug Community Support Trust director, Stephen King, who lobbied the government for 18
months prior to this decision (RNZ, 2019).

The message is clear. Governments tend to listen to those with the loudest, most persistent voices –
whether that comes from the Corrections Department or a local community. If other communities
follow Hamilton’s example and advocate for a drug court in their city, the Government just might
respond. To do so, it will have to increase the availability of addiction services in that community and
reduce waiting lists for residential treatment. Given that that 87% of prisoners have problems with
substance abuse; given that treatment in the AODTC is substantially cheaper than treatment in
prison; and given that the AODTC is up to 12 times more effective at reducing reoffending than
treatment in prison, it is remarkable that obtaining increased funding for drug courts and treatment
services still remains the greatest challenge facing the AODTC.

15
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