Improving Criminal Justice Response to the Drug Problem

The current criminal justice response to the drug problem in the Philippines has raised concerns. Many accused individuals plead guilty in order to receive a lower sentence with a possible treatment in Community-Based Drug Rehabilitation (CBDR). Unfortunately, these individuals often end up rearrested and prosecuted. Thus, the plea bargaining framework developed by the Supreme Court in 2017 to address the surge in arrests following Duterte's Drug War is now being questioned. To understand this, we must first examine current criminal justice responses. From there, we can offer a better alternative grounded in best practices from other jurisdictions.

Current criminal justice response

The current process can be summarized as follows. Persons Who Use Drugs (PWUDs) are arrested by the police and other law enforcement agencies. Since there are limited alternatives to arrest and detention, most PWUDs end up in pretrial detention. Many are charged with Section 5 (drug dealing) of RA 9165, which renders their case non-bailable. Others may be charged with Section 11 (drug possession), which is sometimes bailable depending on the quantity of drugs involved. However, many accused individuals are indigent and cannot afford bail, contributing to congestion in local jails and further clogging court dockets.

Court hearings are often delayed due to vacancies in judges, prosecutors, and defense lawyers, prolonging the process. It typically takes at least three months for the accused to be arraigned, and if they choose to contest the case, it may take three years or more for a court resolution. During this period, accused individuals, faced with prolonged detention and harsh jail conditions, are often induced to plead guilty to obtain a lower penalty. The prosecution sees this plea as a victory since it results in a conviction. Courts and defense lawyers also benefit from reduced caseloads. However, the accused will now have a criminal record.

Upon admitting guilt, the court will require the accused to undergo a Drug Dependency Evaluation (DDE). Unfortunately, this evaluation typically occurs after the accused has languished in jail for a year or more. The DDE is designed to assess drug dependency within the past six months, which may no longer be relevant unless the accused has managed to use drugs inside the facility through corrupt means. Consequently, the DDE may produce inaccurate assessments.

If the accused is deemed high-risk after pleading guilty, they must undergo intensive treatment in an in-house facility. However, these facilities are often at full capacity, requiring the accused to remain in jail for additional months while waiting for a vacancy. In some cases, the DDE, which can only be conducted by accredited medical doctors, requires payment. Indigent accused individuals may need to request financial assistance from local government units, further delaying the process.

Once the accused is released, they must undergo treatment in designated facilities for six months to two years. Many struggle to comply with program requirements, facing difficulties with housing, employment, and social reintegration. As a result, some return to drug use or criminal behavior within six months of release, often influenced by criminogenic peers, ultimately returning to jail.

While the problem is both legal and social, there are viable solutions. One effective approach is to revise the Plea Bargaining Framework by introducing an Adult Diversion Program for drug offenders.

Introducing the Adult Diversion Program for Drug and other Offenders

Instead of relying on plea bargaining, a diversion program for drug and other type of offenders should be developed. This program would involve holistic coordination among various government agencies.

Upon the arrest and detention of a suspect, a diversion program may be offered immediately. This is a voluntary process and will depend solely on the willingness of the accused to participate.

If the accused voluntarily agrees to participate, they will be legally bound to follow the program's conditions. These conditions include participation in a treatment program, monthly reporting to a designated authority appointed by the judge, and remaining crime-free. Failure to meet these conditions would result in the accused being rearrested and the original charges reinstated. Conversely, successful completion of the program would lead to the dismissal of the charges. The participant would not have a criminal record.

Participants in the diversion program would immediately undergo a criminogenic risk assessment to determine the type and intensity of treatment required. This assessment should focus on the Big 8 risk factors: criminal history, family, peers, attitudes, education and employment, drug and alcohol use, use of leisure time, and mental health. The assessment may be conducted by a fully trained court social worker or a probation officer assigned by the judge.

Based on the risk assessment results, the judge can assign the appropriate program for each participant. Those with high risks will be provided more intensive treatment while low and medium risks may be supervised minimally. Additionally, if the participant is confirmed as a PWUD, they will undergo a Drug Dependency Evaluation to determine their level of drug dependency. The current practice of assigning clients to low, moderate and severe levels of drug dependency can still be adopted, and can be assigned in different type of treatments based on the results of the DDE.

Additionally, the judge can refer participants to relevant agencies such as DepEd for participants lacking in education (Alternative Learning System), TESDA for skills training, and DOLE for employment support. The court social worker or a probation officer may supervise and monitor the performance of the participant in the program. They can also help the participant address emerging needs such as housing, health and other adjustment concerns.

During the program, which may last between six months and two years depending on the risk levels, participants must provide monthly progress reports to the court to update their status. The judge will be intimately involved with the progress of the participants.

Upon successful completion, a graduation ceremony will be held where family and friends of the participants are invited to celebrate their success.

Benefits of the program

This mechanism offers several advantages over the current system.

First, it expedites the process, ensuring suspects are not detained for extended periods while waiting for plea bargains. Second, participation is voluntary, preserving the accused's legal presumption of innocence if they successfully complete the program. Third, it reduces government costs associated with prolonged detention, such as food, medicine, and facility maintenance. Fourth, it protects accused individuals from the criminogenic influences prevalent in detention facilities. Fifth, participants can remain productive through employment opportunities while addressing their legal challenges.

Finally, this program is more likely to reduce recidivism since participants will receive integrated support through a structured and well-monitored system.