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Reducing the harmful effects of alcohol misuse: the ethics of sobriety testing in criminal justice
  1. David Shaw1,
  2. Karyn McCluskey2,
  3. Will Linden2,
  4. Christine Goodall1
  1. 1Dental School,University of Glasgow, Glasgow, UK
  2. 2Violence Reduction Unit, Strathclyde Police, Glasgow, UK
  1. Correspondence to Dr Christine Goodall University of Glasgow, Dental School, 378 Sauchiehall Street, Glasgow G2 9JZ, UK; christine.goodall{at}glasgow.ac.uk

Abstract

Alcohol use and abuse play a major role in both crime and negative health outcomes in Scotland. This paper provides a description and ethical and legal analyses of a novel remote alcohol monitoring scheme for offenders which seeks to reduce alcohol-related harm to both the criminal and the public. It emerges that the prospective benefits of this scheme to health and public order vastly outweigh any potential harms.

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  • cryobanking of sperm
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Introduction

Alcohol use and abuse play a major role in both crime and negative health outcomes in Scotland. This paper provides a description and ethical and legal analysis of a novel remote alcohol monitoring scheme for offenders which seeks to reduce alcohol-related harm to both the criminal and the public. It emerges that the prospective benefits of this scheme to health and public order vastly outweigh any potential harms.

Scotland, SCRAM and its prospective benefits

Alcohol is a significant factor in crime in Scotland. Over 80% of homicides involve alcohol1 and over a third of offenders have a problem with alcohol.2 Overall, 50% of prisoners in Scotland report being drunk at the time of their offence and this figure rises to 77% among young offenders.3 Increasingly, young offenders attribute their offending to alcohol.4 Alcohol plays a role in 38% of repeat offences2 and 73% of domestic violence cases.5 It is estimated that alcohol-related violence (ARV) costs the Scottish Prison Service more than £59 million per year.6 ,i ,7 The harm caused to the public by ARV is immense; 70% of cases of assault presenting to the Emergency Medicine Departments in Scotland are thought to be alcohol related.8 The harm done by excessive alcohol consumption to personal health is widely recognised, with an overall cost of around £3.56 billion per year.9

In order to reduce levels of ARV and other crimes, it has been suggested that sobriety be introduced as a condition for both community sentences and early release programmes for male offenders. It is known that young men are the group most likely to drink to excess10 and that binge drinkers are the most likely group to offend.11 It follows that a history of offending while intoxicated will increase the likelihood of reoffending while drinking. It is proposed that offenders who have two or more convictions for an alcohol-related offence will be released on the condition that they agree not to consume alcohol and submit to regular testing This was first suggested several years ago by the Violence Reduction Unit of Strathclyde police, but only recently have technological developments made this proposal feasible.

The obvious drawback of this sobriety testing scheme is the issue of compliance and testing. Because of the logistical difficulties in requiring offenders to attend a police station testing twice per day, an electronic system known as Secure Continuous Remote Alcohol Monitoring (SCRAM) will be used. This small, lightweight ankle bracelet measures ethanol levels transdermally every 30 min and streams the results wirelessly to a base station in the offender's home. At the end of each day, the data are sent over the internet to Alcohol Monitoring Systems (AMS) (the manufacturer of SCRAM) in the USA, who analyse the data and alert the Strathclyde Police if there is any alcohol detected. This means that the offender is free to leave his house and go to social events and pubs with friends and family, but the system will alert those monitoring the scheme if he drinks any alcohol.

The decision whether to use sobriety testing in any particular case will be entirely at the discretion of the Sheriff in charge of the case. The condition to abstain from consumption of alcohol would be in line with previous ‘courses of conduct’ mandated by Sheriffs under the Scottish criminal justice system. For the first 120 days of the sobriety order, the offender will not be permitted to drink any alcohol. However, the SCRAM system allows for titration, and so following this period of sobriety he could be allowed 2 units, and later 4, to aid his reintegration and encourage a healthier attitude towards alcohol. If the offender violates the terms of his sobriety condition, he will receive a reprimand. If he does it again, he receives a second warning and home checks are introduced. If he does it a third time, his alcohol limit is set to zero and he is warned again and may have his condition extended. A fourth violation would lead to reincarceration. If the offender complies, he will receive verbal and written praise and have his SCRAM disconnected and sobriety condition lifted.

The system has not been used in the UK, but has been deployed successfully in the USA, where it has been used in 1764 courts, and 177 866 people have been monitored. The adherence rates have been around 95%, and close to 100% after any violations.12 In addition to the intended benefits of reduced recidivism and improved reintegration, a substantial fall in domestic violence and in the number of deaths due to driving under the influence of alcohol was recorded in South Dakota (33%).13

The potential benefits of using SCRAM are manifold. If it works, it will reduce the amount of alcohol consumed by offenders, which will improve their health. It will aid their reintegration into the community and increase their employability, with indirect benefit to the economy. More importantly, it will reduce the number of crimes being committed. This will directly benefit the public by reducing the number of victims of crime, and will protect prospective victims of violent crime and thus keep them healthier. There will also be a reduced cost to the National Health Service and police through reduced violent crime and to the prison service through less incarceration time.

Objections to SCRAM

Perhaps the most obvious objection to SCRAM is that it could be said to violate the human rights of offenders. Offenders could certainly attempt to claim that their right to privacy and family life and freedom from degrading treatment would be violated by the sobriety scheme. Why should they have to abstain from consuming a legal product in order to be released? And why should they be forced to wear an embarrassing tag that might cause stigma?

The use of SCRAM could be challenged under human rights law, but it is difficult to see how such a claim could succeed. Any attempt under Article 3 of the Human Rights Act or European Convention on Human Rights would have to show that forced compliance with SCRAM constituted inhuman or degrading treatment or punishment, which seems implausible. SCRAM is not degrading in the sense that people would know that the offender was tagged as the anklet is completely hidden by clothing. Only if the offender wore shorts or went swimming would the anklet be visible, and the device is not waterproof and so swimming would not be an option anyway. (The device can be worn in the shower.) In any case, anecdotal evidence indicates that offenders regard their tags as something of a badge of honour.

An attempt under Article 8 of the ECHR would have more chance of success, but would have to show that SCRAM violates the right to private and family life. It could be argued that mandatory alcohol testing does indeed constitute an invasion of privacy, and that people should be free to drink what they want with whom they want. But it would be a mistake to view the use of sobriety testing as a unique case simply because it involves novel technology. Prisoners frequently have conditions set if they are released on bail. In this sense, SCRAM can be seen as simply another condition; offenders are free to refuse to participate, but then they must stay in prison (or go to prison if they refuse a sobriety condition at initial sentencing). As mentioned above, sobriety has been suggested as a condition of release in the past, but there has been no reliable way of monitoring compliance; also, alcohol is no longer a mitigating factor in an offence under Scots law: it is considered an aggravating factor. The right to consume alcohol is not an absolute right, but one that is subject to numerous restrictions concerning age, sale and consumption in public places. Apart from anything else, prisoners cannot consume alcohol, and so an attempt to argue that this new alternative to incarceration also infringes this particular right would probably be unsuccessful. If offenders have two convictions for ARV, they can hardly argue that a scheme designed to stop them offending again is disproportionate or violates their human rights.

Furthermore, Article 8 itself states: There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.14

Given that SCRAM is intended to protect the public from ARV, and thus prevent crime and protect the health and rights and freedoms of others, any attempt under Article 8 would be doomed to failure from the outset. Article 8.2 has been used to permit the sharing of private medical records for research, which would appear to be a much greater violation of privacy for substantially less public benefit than the use of SCRAM to protect the public from violent crime.15 The argument under article 8.2 that water fluoridation constitutes an invasion of privacy has also failed: ‘the argument for the presumed medical advantage to the general public took precedent over the claimed violation of the Petitioner's right to privacy.’16 If mass medication of entire populations is a justified invasion of privacy, it seems unlikely that tagging a few violent offenders would be. In terms of human rights law, there do not appear to be any good arguments against using SCRAM.

It is worth noting that it is not accurate to view the use of SCRAM as a punishment; arguably it is more of an aid to rehabilitation which also acts as a deterrent of future offending. Given that the primary aim of sobriety conditions is to reduce violent reoffending, it could in fact be argued that wearing the anklet benefits rather than harms the offender. Furthermore, community sentencing is designed to allow offenders to give something back to the community that they have harmed by committing an offence; SCRAM could complement this be increasing the chances that no future harm is done to the community (or the offender).

A more plausible objection to SCRAM is that it would hinder rather than help reintegration of offenders back into the community. Scotland sadly has something of a drinking culture, and even if human rights arguments fail, it might seem unfair to stop offenders socialising as usual with their families and friends. But SCRAM would not stop offenders doing this. As stated above, they would still be able to socialise as much or as little as they want; they just would not be able to drink while they do. While Scottish culture might impose a mandate to drink at social gatherings, one can nonetheless socialise without drinking. We should also remember that no offender will be forced to accept a sobriety order; he or she could simply choose the old-fashioned route of incarceration or some other penalty. But as explained above, it is only initially that alcohol is prohibited by the system; over the course of several months, the offender is permitted to slowly increase his alcohol intake (if he wants to), allowing him to reintegrate without indulging in binge-drinking, which is one of the biggest problems and a significant cause of reoffending (over a third of offenders had a problem with binge-drinking).

A related concern is that the prohibition on alcohol might lead to an increased use of illegal drugs among participants. The evidence from the USA does not indicate that this is the case, and in fact many offenders assume (despite assurances to the contrary) that the bracelet also monitors for illegal drugs and therefore avoid them too. Finally, it may be the case that levels of smoking will increase for those using SCRAM, with a potential negative health effect. However, research has shown that reducing alcohol intake actually lowers smoking levels17 and also that alcohol enhances the harmful effects of smoking.18

In terms of public policy, it could be argued that implementing the SCRAM system would be too expensive. But quite apart from the fact that SCRAM promises substantial long-term savings, the system is relatively inexpensive. The SCRAM system would cost under £1800 for a 6-month sobriety condition, as opposed to £22 000 if the offender remained in prison for the same period. Furthermore, the supplier of SCRAM provides ‘Results Based Payment’, whereby payment is only provided if the scheme proves successful (payment per adherent). SCRAM is clearly a cost-effective intervention.

Another objection concerns the potential conflict of interest posed by AMS, which manufactures the SCRAM devices and is paid by result, and is also responsible for alerting the police if any alcohol is detected. This is certainly a potential conflict of interest, but the scheme has been very successful in the USA, and the police would realise very quickly if offenders were drinking and not being detected; such is the nature of the alcohol-related offending that SCRAM aims to prevent. If AMS were to fail to report a violation of the sobriety condition, the offender would soon be reoffending and detected in this way.

Another potential legal argument against the use of SCRAM is posed by data protection concerns. The data about offenders' alcohol consumption will be sent to another country on another continent, and those taking part in the scheme certainly have a right to know if their data are being handled properly. The European Union's Data Protection Directive requires any processing of private data to meet three criteria: transparency, legitimate purpose and proportionality.19 In the case of SCRAM, the transparency criterion is met, as offenders consent to the use of their data for this purpose and this use is in any case necessary as a legal obligation and is also in the public interest. Protecting public health and preventing crime are clearly legitimate purposes, and the use of data concerning alcohol use is obviously proportionate in a scheme designed to reduce alcohol-related offending. Furthermore, all data are anonymised and encrypted and retained only for as long as the sobriety condition is in place, and so there are scant grounds for concern on this issue. At some point in the future, permission might be sought to access the tagged offender's medical records in order to track any long-term health benefits of SCRAM, but any such research would be entirely separate from the sobriety scheme itself and would be approved by a research ethics committee.

Conclusion

While an attempt could be made to argue that the use of SCRAM is in some way unethical in that it violates offenders' human rights, the law clearly permits the imposition of sobriety conditions, and there are no convincing grounds for objections based on human rights law. Furthermore, there seems to be nothing unethical about SCRAM; in fact, given the prospective benefits to both offenders and the public, it would be extremely unethical not to implement the scheme. Quite apart from the considerable financial savings for the police (less policing required), the prison service (less incarceration required) and the National Health Service (less alcohol-related harm to treat), such a scheme would make Scotland a healthier, safer place, and might begin to erode Scotland's unhealthy obsession with alcohol, which is the root cause of much of the crime that SCRAM seeks to reduce.

References

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Footnotes

  • Competing interests The authors are involved in the evaluation of the pilot SCRAM scheme in Glasgow and as such have had some contact with the company that provides the technology (AMS Monitoring Systems, Inc.). KM and WL work at Strathclyde Police's Violence Reduction Unit, which is running the pilot study at the Sheriff Court, and DS and CG work at the University of Glasgow. No financial support has been or will be provided to the authors by the company.

  • Provenance and peer review Not commissioned; externally peer reviewed.

  • i Estimate Based the Number of the Projected Number Incarcerations over a Year Multiplied by the Average Sentence Multiplied by the Cost per day Rate.

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