Location:
DRUGS- REHABILITATION; PRISONS AND PRISONERS;
Scope:
Connecticut laws/regulations;

OLR Research Report


November 2, 2010

 

2010-R-0451

DRUG TREATMENT PROGRAMS FOR OFFENDERS

By: Christopher Reinhart, Chief Attorney

You asked about laws that allow a judge to sentence someone to drug treatment instead of prison and any changes to these laws in recent years.

SUMMARY

Two different statutory programs allow judges to refer offenders to drug treatment in place of prosecution or incarceration.

Courts can refer someone charged with possession of drugs or drug paraphernalia to the pretrial drug education program. After an evaluation, the court can suspend prosecution of an eligible defendant and assign him or her to a drug intervention or substance abuse treatment program. The court dismisses the charges against someone who successfully completes the program.

A separate statutory program allows courts to order offenders who are drug dependent into treatment in place of prosecution or incarceration. The pretrial diversion aspect of the program covers all drug sale and possession crimes. The court suspends prosecution of a program participant and dismisses the charges if he or she successfully completes the program. For certain convicted offenders who were drug dependent at the time of the crime, a court can suspend part or all of a prison sentence, impose probation, and order the Court Support Services Division (CSSD) to place the person in a treatment program as a condition of probation. If a person completes the program, complies with all conditions, and abstains from illegal drug use for two consecutive years, the court can modify the sentence or probation terms or terminate probation.

In the last two years, the legislature made a number of changes to the pretrial drug education program. These changes included creating new options within the drug education program, additional fees, and allowing a court to reinstate someone who did not successfully complete a program or was found no longer amenable to treatment.

In addition to these programs, the law authorizes the chief court administrator to establish separate dockets for defendants who are drug dependent and could benefit from treatment (CGS 51-181b). These “drug courts” or “drug intervention programs” currently operate in Bridgeport, Danielson, and New Haven. Judges, defense counsel, prosecutors, and probation officers can refer someone to these courts. The courts focus on treatment and supervision of participants and over a 12 to 15 month period, offenders make regular court appearances for monitoring and are subject to drug testing. The court can issue orders, sanctions, and incentives. The court recommends treatment and services which can include vocational and educational training as well as substance abuse treatment. Alternative incarceration centers can daily supervise offenders. The court and its staff collaborate with treatment and social services staff to monitor offenders.

Courts can also require an offender to receive substance abuse treatment as part of participation in other programs or as a condition of probation.

A Judicial Branch document provides more information on these and other diversion programs: http://www.jud.ct.gov/Publications/CR137P.pdf.

PRETRIAL DRUG EDUCATION PROGRAM

The Department of Mental Health and Addition Services (DMHAS) runs the pretrial drug education program for people charged with possession of drugs or drug paraphernalia. A person is ineligible for this program if he or she previously participated in it or the pretrial community service labor program.

The court may approve a defendant's application for the program after considering the prosecutor's recommendations. Applicants pay a $100 application fee and a nonrefundable $100 evaluation fee. If the court grants an application, CSSD confirms the person's eligibility and refers him or her to DMHAS for evaluation and placement in a program.

The evaluation must recommend whether the applicant should participate in a 10- or 15-session drug intervention program or a substance abuse treatment program at a state licensed facility. Based on the recommendation, the court orders placement in one of these programs. Placement cannot exceed one year. Unless waived by the court due to an applicant's indigency, applicants pay a $350 nonrefundable fee for the 10-session program, a $500 fee for the 15-session program, or the costs of the substance abuse treatment program.

As a condition of program participation, an applicant must successfully participate in the community service labor program for at least (1) five days if assigned to the 10-session or substance abuse treatment program or (2) 10 days if assigned to the 15-session program.

Each program participant agrees to toll the statute of limitations, waive his or her right to speedy trial, complete the program, and begin program participation within 90 days of the court order unless the court grants a delay. The court seals the record of any applicant who states under oath that he or she has not previously participated in the program.

After completing the pretrial program, the person must accept placement in a treatment program (1) recommended by a DMHAS provider or (2) with substantially similar or higher standards than a DMHAS provider if CSSD deems it appropriate.

Program Completion

The court must dismiss the charges against someone who asks after determining that he or she successfully completed the pretrial program and any appropriate treatment program. For participants who do not apply for dismissal, the court may dismiss the charges on its own motion if the program was successfully completed. Upon the participant's motion and a showing of good cause, the court may extend the placement for any reasonable period needed to complete it.

Program Failure and Reinstatement Options

A person can be reinstated to the drug education program twice.

If a person does not successfully complete a program or is no longer amenable to treatment, the program provider must (1) certify this; (2) to the extent practicable, recommend whether any of the three program options would best serve the person's needs; and (3) indicate whether the current program referral was an initial referral or a reinstatement.

If a person requests reinstatement, CSSD verifies eligibility. If the court approves reinstatement, the person pays a nonrefundable fee of $175 for the 10-session program, $250 for the 15-session program, or the costs of substance abuse treatment.

The court must unseal the file, enter a plea, and place the case on the trial list if (1) CSSD informs the court and the court determines that the person is ineligible for reinstatement or (2) the program provider certifies that the person did not successfully complete the program and was not reinstated (CGS 54-56i, as amended by PA 10-30).

TREATMENT OF DRUG OR ALCOHOL DEPENDENT OFFENDERS IN LIEU OF PROSECUTION OR INCARCERATION

Courts are authorized under a separate statutory program to order offenders who are drug or alcohol dependent into treatment in lieu of prosecution or incarceration (CGS 17a-692 to 17a-701).

Pre-trial Diversion

The pretrial diversion aspect of the program covers all drug sale and possession crimes. A person charged with driving under the influence, assault in the 2nd degree with a motor vehicle, or a class A, B, or C felony is not eligible for suspended prosecution and treatment. In addition, anyone who was twice previously ordered treated under this program or under a program covered by earlier versions of this law is not eligible. But, the court may waive these eligibility rules (CGS 17a-696).

Treatment Evaluation. The court, on its own motion or that of the state's attorney or a person charged with or convicted (but not yet sentenced) of a crime, may order an examination to determine if a person is alcohol- or drug-dependent and eligible for treatment. A probation officer may also order such examination as part of a presentence investigation.

The law requires a clinical examiner appointed by the DMHAS commissioner to conduct the examination. The examiner must determine whether the person was alcohol- or drug-dependent at the time of the offense. If so, the examiner looks at the person's history and pattern of dependency and whether he or she needs and would benefit from treatment. The examiner must report recommendations to the court, CSSD, the state's attorney, and defense counsel within 30 days of the date the examination was ordered.

An examiner's treatment recommendation must include provisions for placement, the type and length of treatment, and when space will be available in a treatment program. The date cannot be more than 45 days from the date of the examination report.

A “treatment program” is one operated by DMHAS or approved by the DMHAS or Department of Correction commissioner for the treatment of the physical and psychological effects of alcohol or drug-dependency. It does not include a program that provides only detoxification services.

Suspended Prosecution. An eligible person may make a motion for suspended prosecution and treatment after the court receives the examination report. The court may order prosecution suspended and treatment for an eligible person if it finds that: (1) the person was alcohol-or drug-dependent at the time of the offense, (2) he or she needs and is likely to benefit from treatment, and (3) suspension of prosecution would advance the interest of justice.

Prosecution may be suspended for up to two years. During the suspension, the person is placed in CSSD custody for substance abuse treatment. The court or CSSD may require that he or she comply with certain conditions of probation and testing for alcohol or drugs.

Prosecution may not be suspended unless the accused acknowledges that he or she understands the consequences of being in the program, has given the victim notice of the proceedings, and the victim, if any, has had an opportunity to be heard on the motion to suspend prosecution. The accused must pay a $25 administration fee unless indigent.

Completion of Program. Upon completing treatment, the person may be discharged by the treatment program's director. The director must notify CSSD at least seven days before the discharge date.

At any time before the end of the supervision period, CSSD may recommend to the court that the charge be dismissed if the person has completed treatment, complied with the conditions set by the court or CSSD, and abstained for one year from alcohol or drugs. CSSD must notify the court and submit a report on whether the person has completed treatment and complied with the other conditions of suspension at least 30 days before the end of the suspension period. It must also indicate whether it recommends dismissal of the charge.

If the court finds that the person is responding well to treatment or has completed treatment and has complied with the other conditions of suspension, it may dismiss the charges. If the court denies the motion and terminates the suspension, the state's attorney may proceed with the prosecution.

The court may modify or terminate the conditions of the suspension if it finds that a person has:

1. committed a violent act at the treatment facility,

2. threatened to commit such an act,

3. committed a serious rule violation,

4. committed repeated violations of the program's rules that inhibit his or her ability to function in the program,

5. refused continually to participate,

6. asked to be removed from the program, or

7. been unable to participate because of a medical or psychosocial condition not appropriately treated by the program.

The director has the burden of establishing the facts. If the suspension is terminated, the person may be prosecuted.

If the person is discharged before completing treatment, the director must give CSSD four days notice. But the person can be discharged without four days notice, with the agreement of CSSD, if it is necessary to protect the health or safety of staff or other program participants.

If a person does not comply with the conditions, CSSD must notify the court and the court may terminate the suspension and proceed with prosecution after a hearing.

Treatment Instead of Incarceration

For certain offenders, a court can suspend part or all of a prison sentence, impose probation, and order CSSD to place the person in a treatment program as a condition of probation.

A person is ineligible if he or she is convicted of murder, attempted murder, kidnapping, 1st degree robbery, or a felony involving serious physical injury. A person is also ineligible if previously treated under this program or an earlier version of this law. The court can order someone to treatment if:

1. the person was alcohol or drug dependent at the time of the crime;

2. there was a relationship between the dependency and the crime;

3. the person needs and is likely to benefit from treatment; and

4. the person meets the criteria for sentencing to probation.

The court can consider any information about a person's alcohol or drug dependency, including an examination report made as part of the pretrial diversion program.

As part of participation in the program, the court can require a probation officer to contact the program at least once a week or contact the person at least once a week if he or she is not in an inpatient program. Placement in the program must be no earlier than the date space is available as reported by the clinical examiner. The court can order immediate transfer to a program if space is available.

Time in a treatment program does not reduce any sentence which the court has suspended. Violation of any condition is considered a violation of probation.

Completion of Program. The treatment program director must report to the court when someone completes the program and recommend whether the person should receive further treatment. CSSD must notify the court clerk when a person completes the program; complies with all conditions; and has abstained from use of alcohol or illegal drugs, whichever is appropriate, for two consecutive years. CSSD may make recommendations to the court including whether to modify the sentence

or probation terms or terminate probation and release the person. After a hearing, the court can modify the sentence, probation terms, or terminate probation.

The court may modify the sentence or probation terms if it finds that a person has:

1. committed a violent act at the treatment facility,

2. threatened to commit such an act,

3. committed a serious rule violation,

4. committed repeated violations of the program's rules that inhibit his or her ability to function in the program,

5. refused continually to participate,

6. asked to be removed from the program, or

7. been unable to participate because of a medical or psychosocial condition not appropriately treated by the program.

The director has the burden of establishing the facts.

RECENT LEGISLATION

Legislation made changes to the pretrial drug education program in 2009 and 2010.

PA 09-3, Sept. Special Session, 54-55

This act creates three options in the pretrial drug education program: 10- and 15-hour intervention programs and a drug treatment program. Previously, the program ran for 12 hours over eight sessions. Under the act, once the court allows a person to participate in the program, it must refer him or her to DMHAS for evaluation.

The act establishes a $100 application fee and a $100 evaluation fee. It establishes a $500 fee for the 15-session program; the 10-session fee remains $350. All fees must be credited to the pretrial account. The act makes people ordered into substance abuse treatment responsible for

paying program costs. As under prior law, (1) indigent people cannot be excluded from any program and (2) program fees are not refundable if a person is later found ineligible to participate or fails to complete a program.

The act extends to all components of the drug education program the prohibition against participation for anyone who previously participated in it or the community service labor program.

It requires people placed in the drug education program to receive appropriate intervention or treatment services as recommended in their evaluation. Placement cannot exceed one year. Treatment services must be provided only at a state-licensed facility that complies with all state standards governing its operations.

Under the act, program participants must agree to (1) complete whichever option the court orders and (2) begin participating within 90 days after the order is entered; the law already requires them to agree to accept placement in a treatment program after completing the education program if a DMHAS provider recommends this. The act increases the time people participating in the drug education program must also participate in the community service labor program. Prior law required them to participate for four days. The act requires those in the 10-session intervention program or the treatment program participate in community service labor for at least five days while those in the 15-session program must participate for at least 10 days.

The act establishes procedures for the court to follow when dealing with a person who does not successfully complete an intervention program or is found no longer amenable to treatment. Under prior law, if the program provider certified either of these circumstances, the court unsealed the court record, entered a not guilty plea for the individual, and scheduled a trial; in practice, the court reinstated people in intervention programs. Under the act, if the program provider certifies either of these circumstances it must, to the extent practicable, (1) recommend to the court whether a 10- or 15-session intervention or placement in a state-licensed alcohol treatment program would best serve the person's needs and (2) indicate whether the person had been in an initial program or had been reinstated. If the person does not pursue reinstatement or if the court denies it, the court must proceed to trial as under prior law.

The act imposes a nonrefundable $175 reinstatement fee for a 10-session intervention program and $250 for 15 sessions. It limits a person to two reinstatements. The act allows the court to waive the fee for good cause, otherwise the person must pay it. The reinstatement fee must be credited to the pretrial account. The act requires CSSD to confirm that the person is eligible for reinstatement and the court to order reinstatement. A person reinstated in a treatment program is responsible for paying any costs associated with reinstatement.

The act increases, from seven years to 10, the time CSSD must keep records of people's participation in the program.

These provisions took effect on January 1, 2010.

PA 10-30

PA 10-30 makes a number of minor changes to the pretrial drug education program. The law requires CSSD to keep records of a person's participation in the program. The act requires that the 10-year period start on the date the court grants the application for participation, rather than from the date of application.

The act specifies that the substance abuse treatment program costs must be paid from the pretrial account if the court finds that a person is indigent or unable to pay. The law already allows the court to waive all or part of the fees for intervention programs. Additionally, the act specifies that a person cannot be excluded from the substance abuse treatment program based on his or her inability to pay costs. Also, by law, if a person is unable to attend a program in Connecticut, he or she can attend in another state if the appropriate fees are paid. The act requires that costs be paid as well.

The act clarifies that CSSD, rather than DMHAS, must require participation in the community service labor program as a condition of participation in the drug education program.

Finally, the act makes technical and conforming changes.

These provisions took effect on July 1, 2010.

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