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Approximately one-quarter of all inmates under supervision are incarcerated for drug offenses. In addition, approximately two-thirds to three-quarters of the nation’s correctional population have used drugs at some point in their lives (this is about twice the estimated drug use rate of the total U.S. population).

However, AOD counseling or treatment is available in only about 40% of federal, state, and local adult and juvenile correctional facilities. This situation exists despite the fact that research shows that drug treatment can be effective and for every $1 spent on treatment can save society up to $10 in reduced criminal justice system costs. (14)(35)

Historically, many state courts have used AOD treatment as an alternative to incarceration with DWI offenders and some jails and prisons offered AOD treatment for incarcerated offenders, but beginning in the late 1980’s the volume of AOD cases handled by the criminal justice system increased dramatically.

In order to deal with the increase, jurisdictions have tried a variety of approaches to deal with these offenders. Criminal defendants can be brought to treatment through a number of different routes including defendants can be ordered to be in treatment, they can be advised by the court that they should seek treatment, or they may decide that going to treatment before a trial will increase the possibility of leniency by the court. (17)

These programs can work in a number of ways including the use of supervised release - where the defendant is released from pretrial custody under conditions that include AOD screening and participation in a substance abuse treatment program. There can also be cases of deferred judgment - where the defendant pleads guilty with the understanding that the plea will be vacated and the charges dropped if the defendant successfully completes a treatment program. There are also cases that include the use of jail or prison based treatment programs for pretrial defendants who are not released from custody and for defendants who relapse while they are under some type of conditional adjudication. These options have recently become formalized with the creation of “drug courts.” We will take a little time to look at these different kinds of drug courts on the pages that follow.

Drug Courts

Types of Drug Courts
The emergence of drug courts reflects the growing recognition that the traditional criminal justice methods have not significantly reduced AOD use among criminals and drug-related crimes. The first drug court was established in Miami, Florida in 1989. Drug courts tend to focus on facilitating treatment for nonviolent, first-time misdemeanor and felony drug possession offenders (though some courts will take multiple offenders). (34)

Technically, if defendants are awaiting trial and have not yet been convicted, they cannot be formally compelled to participate in a treatment program. However, judges can exercise considerable authority over pretrial defendants who do not want to remain in pretrial detention and/or who do not want to risk a trial and a criminal conviction.

In this sense, a defendant can be seen as choosing to participate in a treatment program rather than accept other sentencing options. These programs will typically require defendants to appear at regularly scheduled status hearings and sanctions will be imposed when a defendant fails to comply with program or court conditions. Some judges and programs will allow for relapses without necessarily returning the defendant to pretrial detention or reinstating or imposing a more restrictive sentence. (28)

There are two basic types of drug courts. Expedited Drug Case Management Courts (EDCM) do not emphasize treatment. The emphasis, rather, is on consolidating a court system’s drug cases in one court to reduce time for the disposition of these types of cases. Drug Treatment Courts (DTC) also work to expedite drug cases, but in addition they emphasize intense supervision by the court and treatment. While initially developed to deal with illegal substance abuse, there are now programs for alcohol abuse and some jurisdictions have created juvenile and family DTCs to address AOD use with these populations. (17)

Drug Court Characteristics

The key operational components of drug courts typically include:
1) a court that is reserved for drug offenders;
2) judicial supervision of structured community-based treatment;
3) the adjudication process is non-adversarial in nature with the concept of a DTC team (judge, prosecutor, defense counsel, treatment provider, and corrections personnel) working together;
4) timely screening and referral to treatment as soon as possible after arrest;
5) clearly defined structured rules and goals for participation including regular AOD testing;
6) regular status hearings before a judge to monitor treatment progress and program compliance;
7) use of a series of graduated sanctions and rewards for treatment compliance and noncompliance; and
8) dismissal of the charges or reduction in sentence upon successful program completion. (42)(44)

Drug courts typically employ two basic treatment-delivery models. One type of delivery model involves the court referral staff assessing and selecting a treatment provider from a list of approved programs, based on the person’s AOD and other needs.

With the other type of delivery, the drug court uses a single provider, sometimes located at, or near, the courthouse, to treat all clients regardless of AOD and other needs.

Funding for treatment comes from a variety of sources including: federal and state grants, Medicaid and other third-party insurance reimbursements, and fees paid by the program participants and their families.

Most drug courts try to standardize the treatment process by requiring discrete treatment phases, minimum requirements to advance to different program phases, and a minimum length of program involvement. Most drug courts require one year of participation and incorporate several treatment phases.

Phase 1 usually includes assessment, orientation, development of a treatment plan, and urinalysis. This phase generally ranges from 30 to 90 days.

Phase 2 is the primary treatment phase. What type of treatment the person will receive is based upon the person’s AOD and other needs and the treatment options available to the court. This phase generally lasts around 6 months.

Phase 3 typically includes relapse prevention and discharge planning. This phase usually lasts about 3 months, depending on the client’s needs. This phase may also include additional types of treatment and training, including family therapy, and vocation and education training, depending on the person’s needs and the treatment program’s resources and referral options.

The research shows that the programs are most successful when:

1) they utilize frequent personal oversight and contact by the judge;
2) program participants sign a contingency contract with the court agreeing to the target behaviors and sanctions in advance;
3) the sanctions are progressively more severe based upon the number and type of infraction; and
4) in circumstances when rules are violated, sanctions are predictable, certain and swift.

Because most judges and prosecutors recognize that relapses are common in the treatment process, most drug court prosecutors will generally not file new charges when a program participant uses a prohibited substance. Instead, judges will use a series of graduated sanctions to provide incentives for treatment adherence - with the goal of using the minimum amount of punishment necessary to achieve the twin sentencing goals of reduced criminality and AOD use.

The sanctions need not necessarily be severe, but individuals in the programs must at least be given the impression that program rule violations will be enforced in a certain and swift fashion. (5)(29)(45)

However, for court supervised AOD treatment to work, there must be sufficient drug treatment programs available and that these programs must have proven effectiveness in assisting different types of people with AOD problems in the recovery process. The Center for Substance Abuse estimates that only 15% of offenders receive treatment services and there is an acute shortage of in-patient and out-patient, intensive, clinically oriented treatment services. (14)

Guidelines for Clinicians: Court-mandated DOA Treatment

The clinician must establish a clear picture of the guidelines of the referring court system: how they define the responsibilities of the client, the court, and the treatment provider

The clinician must clearly know the guidelines established by the court for handling relapse and other violations of court orders

The clinician must fully know state and federal law concerning the release of confidential information in cases of DOA treatment, including CFR 42 Part 2 and HIPAA

Responsibilities of the client

Under court guidelines, clients in court-mandated DOA treatment will typically be responsible for:
1) Attendance at treatment / presenting proof of attendance
2) Passing follow-up drug screens
3) Regular contact with a probation officer or other designee of the court, or follow-up appearances in court
4) Compliance with other behavioral guidelines as outlined by the court, i.e., no other legal violations, no association with known felons or purveyors of illegal substances, etc.

Court-mandated DOA clients will often have the guidelines for their referral outlined in a legal document that the treatment provider should ask to see.

Responsibilities of the court

In instances of court-mandated treatment, the court will typically be responsible for:
1) Either making available appropriate DOA treatment resources within the community, or clarifying what resources the offender may use of his/her own accord
2) Designating procedures for follow-up drug screens
3) Presenting guidelines for coordinating the reporting of treatment information on the part of the treatment provider
4) Designating a probation officer for monitoring compliance, or setting in place other court mechanisms for contact with the legal system to monitor compliance
5) Monitoring and documenting attendance and treatment progress reports as provided by the treatment provider
6) Instituting progressive consequences for violations of treatment expectations

Responsibilities of the treatment provider

In instances of court-mandated treatment, treatment providers will typically be responsible for:
1) Providing direct DOA treatment services and coordinating adjunct services for addressing other psychosocial problems
2) Monitoring attendance at treatment and reporting attendance to the client's probation officer or other court designee
3) Monitoring treatment progress and reporting relevant and appropriate information about treatment progress to the client's probation officer or other court designee
4) Long-term follow-up of the client's stability and sobriety, with long-term reporting responsibilities as defined by the court

Complications to be Aware of in Court-mandated DOA Treatment

In court-mandated DOA treatment, there are a number of complications of which the treatment provider needs to be aware:
1) Courts may not always provide clear guidelines to mandated clients about the exact nature of expected treatment or reporting standards, or clear guidelines about treatment providers deemed acceptable by the court
2) Court-mandated clients frequently misunderstand court guidelines due to DOA abuse-related impairments in thinking and memory
3) Court-mandated clients frequently withhold or misrepresent information about court guidelines in order to avoid responsibilities contained within those court guidelines
4) Certain courts and court systems may establish guidelines that do not make allowances for relapse during the recovery process
5) Treatment providers may be asked by the court or court system to assume policing responsibilities that create complications for the treatment process

There are very important responsibilities for the treatment provider in terms of being very specific from the point of first contact about what information will and will not be released to the court concerning treatment attendance and progress. This topic will be covered in greater detail in the section on confidentiality, to which we will now turn.

Review Questions Section V

About what percentage of inmates are incarcerated due to substance related offences?

What factors are most important in determining if court-mandated DOA treatment will be successful?

For DOA abusers who relapse under court-mandated treatment, what is recommended in terms of the sanctions taken?

What are the responsibilities of the organization, the client and the clinician in court-mandated DOA cases?

What are some of the complications the clinician should be aware of in these cases?