Drugs in Prison
by Nick Flynn.
The recent Green Paper, Tackling Drugs Together, calls for an effective and comprehensive strategy to tackle drug use. The paper proposes swift action and sets out detailed action plans, with timescales, for individuals and agencies who are in some way responsible for the control and the treatment of drugs. In this article I intend to comment on the action plans the paper has set out for the Prison Service.
No one should have any doubt about the extent to which drug taking occurs within prisons. Although accurate figures are not available, as aprisoners are understandably reluctant to admit to contravening prison rules" (letter from the Prison Service to Frank Field MP, Hansard 11 February 1994, c.535), it is commonly assumed that well over half of the prison population regularly consumes some kind of drug, be it alcohol. cannabis, amphetamines or heroin.
Research has reliably shown the numbers of prisoners who have taken drugs before they were imprisoned. A survey of 1,751 men serving a prison sentence (Maden, Swinton and Gunn, British Journal of Addiction, 1992) showed that in 1988-89 some 43 per cent of male prisoners had used drugs in the six months prior to their arrest. The same study found that 11 per cent of men and 23 per cent of women had been dependent on drugs in the six months prior to imprisonment and that seven per cent of men and 15 per cent of women had injected drugs in the six months prior to imprisonment.
Further studies have indicated that between 44 and 78 per cent of drug injectors have been in custody at some time in their lives, and that between 17 and 52 per cent have recent experiences of imprisonment (Keene et al 1993, Stimson et al 1988, Dolan et al 1990, Donoghoe et al 1992, Covell et al 1993).
However, it is not just the extent to which drugs are consumed in prisons that is the problem. Cannabis has replaced tobacco as an informal prison currency and supply and demand is strictly controlled by prisoners who will resort to intimidation and bullying to ensure regular profits. Although many prison officers will admit to turning a blind eye to the smoking of cannabis, because it makes prisoners more relaxed and emollient, prisoners' letters to the Prison Reform Trust suggest that prisoners who have accumulated large drug debts risk being bullied and attacked.
A recent study of drugs injected in prisons and the consequences of sharing needles, undertaken by the Centre for Research on Drugs and Health Behaviour on behalf of the Aids Education and Research Trust (AVERT) - has emphasised the risks of HIV infection. The Prison Service continues to be heavily criticised because preventative measures to stop the spread of HIV in prisons through the sharing of needles have not be adequately implemented.
The supply of drugs in prisons therefore represents a variety of control problems for the Prison Service. The Home Secretary, Michael Howard, has said there is considerable public concern about the availability and use of drugs inside prisons and as a consequence the Prison Service has decided to get tough.
However, the recent pronouncement by the director general of the Prison Service, Derek Lewis, that a "war on drugs" (address to the annual general meeting of the Board of Visitors, 1994) should be waged in prisons - although it might offer a call to arms - does not recognise as indeed the Green Paper does, that law enforcement must go hand in hand with drug treatment and drug education initiatives. The Prison Service should learn from the experience and approaches of the various organisations who have contributed to the Green Paper and should refrain from using language which is provocative and unhelpful.
Prison provides the first real opportunity to help people lead drug free-lives, as few prisoners have previously been in touch with drugs agencies in the community. Prison offers an opportunity for prisoners to tackle their drug use, and the part which it may have played in their offending. The aim should be to encourage prisoners to identify themselves as having a drug problem so that adequate support can be provided. A wide ranging approach to tackling drugs in prisons, which included security measures to reduce supply and treatment and education programmes to reduce demand, would ease control problems and also reduce the numbers of prisoners who will continue to commit drug related crime after release. So how does the action plan for the Prison Service measure up to the task?
The Prison Service Drugs Strategy is expected to be launched on the 27 January 1995. The first part of the strategy to be introduced will be a mandatory drug testing programme, legislated for in the 1994 Criminal Justice Act (CJA). The CJA has introduced a new section of the Prison Act which grants the "power to test prisoners for drugs" (Section 1 6A of the Prison Act).
Drug testing will be initially piloted in eight prisons at the beginning of 1995 to evaluate its wider use. Prisoners will be required to provide a urine sample for testing purposes and, for the first time, it will become a disciplinary offence for inmates to use a controlled drug without medical authorization. Prisoners may be tested at reception, or randomly throughout their sentences. Those prisoners suspected of taking drugs, or those prisoners who have persistently tested positive over a period of time, will be tested the most frequently. Prisoners who test positively will be subject to a range of punishments, including additional days imprisonment, or the loss of privileges and earnings.
Mandatory drug testing is being introduced because, as the Home Secretary announced in his speech to representatives of the Prison Service at last year's Prison Service Conference: "The Criminal Justice and Public Order Bill (now known as the CJA) provides for mandatory drug testing of prisoners. It will give you a powerful tool for the control of drugs. It will also give us a more accurate picture of the scale of the problem and enable us to monitor progress over time." The statistical evidence of the extent to which drugs are taken in prison will be used to formulate a new performance indicator for the control of drugs in prisons.
Although, as I hope I have argued, the availability of drugs should be addressed by the Prison Service, the Prison Reform Trust opposes mandatory drug testing in prisons because of issues to do with both principle and practicality. I shall deal with these principles first.
There is significant drug use in prison, as indeed there is in society generally. Overwhelmingly drug use involves the taking of cannabis. In fact, the personal use of cannabis is now so common in society, and is perceived to represent so little harm to the individual or to the community, that police policy is commonly to caution for a first offence of possession. For those who are convicted of possession, fines are the most usual penalty in the courts.
This will not now be the case in prisons where a different set of rules to those in the community will apply. The principle is one of justice. Why should an individual who is found to be in possession of cannabis in prison face the prospect of additional days to their sentence (in effect a prison sentence), when in the community only a caution will be received?
Mandatory drug testing in prisons is to be carried out by prison officers, or prison custody officers, and not by prison health care staff. This awards to prison officers a power not enjoyed by the police and again the justice and fairness of this is the issue. Whereas the police have the power, given reasonable suspicion, to arrest and search for the possession of drugs, they do not have the power to demand urine samples. Indeed, having drugs in the bloodstream does not, in itself, constitute a criminal offence.
Finally in terms of principle, mandatory drug testing should be particularly resisted in the case of remand prisoners, who will be included in the programme. The courts have always held the view that the legal position of someone on remand should, as far as possible, be identical with that of any citizen. It is wrong in principle that those who have yet to be convicted of any offence should be compelled by law to provide a urine sample against their will. Moreover, there could be serious legal problems where a prisoner awaiting trial for an alleged drug-related offence produced a positive test result. Could the result form part of the evidence against the defendant? In which case the Prison Service should be urged to adhere to proper legal safeguards to ensure confidentiality
The operational implications for the Prison Service of introducing mandatory drug testing are many and varied. Prison Service guidelines for the implementation of the initial phase of drug testing stress the need for care and the need to ensure fairness, privacy and accuracy. The control problems that may result should prisoners perceive the programme to be unfair should be taken very seriously indeed. Even senior Prison Service managers have warned of disastrous consequences if compulsory drug testing is not handled sensitively. Quoted in The Guardian of 28 October 1994, Tony Pearson, the director of programmes and Phillipa Drew, at the time director of custody, claimed: "There is a need to acknowledge risks to good order if we clamp down hard on the supply of drugs without a broader treatment strategy. Simply punishing those who test positive runs the risk of creating serious disorder or staff collusion with prisoners, because of the possibility of disorder."
The element of compulsion in mandatory drug testing is likely to discourage prisoners from revealing an existing drug problem. In prisoners' minds, to identify oneself as having an existing drugs problem may be to lay oneself open to frequent testing. In fact, the criteria for the selection of prisoners for drug testing states that "prisoners will only be considered for placement on a programme of more frequent testing if they have a proven disciplinary record of drug misuse" (Mandatory Drug Testing for Prisoners, Initial Phase of Implementation, the Prison Service).
This same document talks about the need to avoid the risk of cheating by ensuring prisoners are given no advance warning of the test and are searched for the presence of any false samples. Obviously this is easier said than done. The additional responsibilities and the additional amount of time that compulsory testing will mean for prison officers' already stretched job descriptions is an important matter for the evaluation of the eight pilot prisons. The Prison Reform Trust has already received information that drug-free urine samples have become a valuable unit of currency in prisons. These and other attempts to falsify results by prisoners will be a constant issue for prison officers.
Finally to return to the reasons mandatory testing is being introduced - to identify those who use drugs and to provide statistics and a performance indicator. We already know that over half of the prison population regularly smokes cannabis. Why does the Prison Service require names? Many prison officers believe the smoking of cannabis is associated with reduced control problems in prisons. Compulsory drug testing is likely to increase tension. Prisoners should be encouraged to address and overcome their drug problems and should not be subject to measures which would be unenforceable outside of prisons. The increase in the number of inmates who are identified as drug misusers, and remember that over half the prison population regularly smokes cannabis, will lead to an increase in the requirements for staff time and resources in disciplinary action, drug treatment and support programmes. Is this a cost the Prison Service can afford? Is the money available to pay for adequate drug treatment and support programmes? The remainder of the measures detailed in the Prison Service Drugs Strategy assume that the money will be available.
Each prison governor is to be asked to draw up their own customised strategies to address the availability and the use of drugs in prisons. The overall Prison Service Drugs Strategy will provide pointers and guidelines intended to help governors to formulate their own individual strategies. Apart from compulsory testing, strategies will include the formation of multi-disciplinary management teams to oversee the various programmes. Teams are likely to include membership from the medical, custodial, probation and psychology departments within prisons, as well as representatives from local drug support agencies. Each prison will be asked to appoint a senior manager who will assume responsibility for the through-care of drug users. Training will be provided for prison staff on the treatment and through-care of drug users.
So called Voluntary Testing Units will be established to enable prisoners to occupy prison blocks or landings designated as drug-free. It is intended that voluntary testing areas will introduce comprehensive treatment programmes and prisoners who have tested positively as serious drug users will be offered advice and assistance, or will be given a place in a Voluntary Testing Unit to undergo a detoxification programme.
All of this is to be welcomed. It is in keeping with my original assertion that drug strategies in prisons should be comprehensive and should offer a range of control and treatment measures as an overall package. At the time of writing much work has been done by the Prison Service on the compulsory testing aspects of the Prison Service Drugs Strategy. I hope I have argued successfully that this measure is both counter-productive and a potential threat to future order and security. It remains to be seen whether as much work and resources will now be made available by the Prison Service for the remaining more constructive parts of the strategy.
Nick Flynn is deputy director of the Prison Reform Trust