Alternatives to Incarceration for Drug Sale and Possession

You asked what alternatives to incarceration are available for juvenile and adult first offenders charged with sales or possession of drugs. You also asked for policy options to increase the use of alternatives, especially community service for drug offenses.

SUMMARY

Juveniles (children under 16) arrested for drug possession or sales, especially first offenders, are rarely, if ever, incarcerated for this offense. Possession of drugs is not an offense for which transfer to the adult criminal court is an option. Sales of drugs may result in a transfer only if the person is also charged with carrying a handgun without a permit. Thus, children under 16 years of age who are arrested for drug sales or possession are virtually always subject to the range of residential and nonresidential treatment programs available for juvenile offenders. These programs are described in some detail in the attached memo recently prepared by our office. It should be noted that community service is an option that juvenile court judges and probation officers can choose for the juvenile offender.

Children aged 16 or 17, arrested for drug sales or possession, especially first offenders can apply for youthful offender status (YO). While this does not guarantee they will not be placed in a correctional facility, it is extremely unlikely that first offenders will serve any time for those offenses, according to Robert Bosco, director of the Office of Adult Probation and Tom Kaput, chief of the adult probation office in Hartford. Courts have a wide range of sentencing options for youthful offenders which can include community service and alternative incarceration centers, which are community based residential and nonresidential treatment facilities.

There are several ways those aged 18 and over arrested for drug possession or sales can be punished other than by incarceration in a correctional facility. This is especially true for first offenders. Possible alternatives available for some or all drug sales or possession charges include accelerated rehabilitation (AR), the community service labor program (CSLP), probation, the alternative incarceration program (AIP), and treatment for drug dependent defendants.

Following, we describe each of the alternatives to incarceration available for some or all drug cases. Following that, we will describe each drug sale or possession charge and indicate which, if any, of the alternatives are available. Finally, we will offer some policy options for enhancing the use of alternative sanctions including community service labor for drug offenses.

It may be of interest to you that the Justice Education Center, Inc. recently completed phase two of the first comprehensive, statewide evaluation of Connecticut's alternatives to incarceration programs. It evaluated offenders sentenced to alternative incarceration programs and compared them to similar offenders sentenced to incarceration or sentenced to incarceration followed by community programming. This multi-year longitudinal study will continue as offender behavior is monitored for additional years.

According to the study's executive summary, initial results indicate that offenders sentenced to community programs in most instances pose less risk to public safety as measured by new arrests than a comparison sample of offenders who were released after having been incarcerated. In addition, those categories of offenders who are typically the source of greatest concern to the public and to policymakers—those convicted of drugs or violent crimes—are doing better in the first year than other types of offenders under community supervision. It is important to note, however, that these findings are derived from data collected in the first year of a multi-year study, and thus are not conclusive.

We have the executive summary and the full report of phase two of the study and can provide you with a copy if you would like.

ACCELERATED PRETRIAL REHABILITATION

Accelerated Pretrial Rehabilitation (AR) is a pretrial program for persons accused of crimes “not of a serious nature” (CGS § 54-56e). The court has discretion whether or not to allow a defendant to use the program. A person is ineligible if he has previously been convicted of any crime, or if he has used the programs before. If the person is accused of a class A, B, or C felony or if he had previously been granted youthful offender status, a court may grant AR only for “good cause” shown. Robert Bosco, director of the Office of Adult Probation, advised us that AR has often been granted for drug sales or possession offenses.

Any defendant who is granted the program is released to the custody of the Office of Adult Probation for up to two years, subject to whatever conditions the court orders. Such conditions can include community service. If the defendant satisfactorily completes his period of probation the charges are dismissed and he has no criminal record. If not, he is brought to trial on the original charges.

YOUTHFUL OFFENDER

The Youthful Offender program allows a court to treat a 16- or 17-year old who is accused of committing a crime less harshly than an adult offender (CGS §§ 54-76b-54-76o as amended by PA 94-136). Whether a defendant gets this program is up to the discretion of the court. The program is not available to those who are charged with a class A felony or aggravated sexual assault, or to those who have previously been convicted of a felony, previously used the YO program, or previously used the AR program.

The defendant must first be examined and investigated by the Office of Adult Probation. The court must consider this office's report, the severity of the alleged crime, and whether the defendant took advantage of the victim because of his age before deciding whether or not to grant the defendant YO status.

Once a defendant is granted this status, the court must then determine whether or not he is guilty of the underlying offense. If he pleads guilty or is found guilty, the court may:

Anyone who has been given YO status who subsequently is discharged from the supervision of the court or the institution to which he has been committed by the court, will have all police and court records erased when he reaches age 21.

COMMUNITY SERVICE LABOR PROGRAM

There is a community service labor program for people charged with possessing illegal drugs. Those with prior drug possession and sale convictions are not eligible. The program can be a pretrial diversion, part of any sentence of conditional discharge, or a condition of probation. The length of program participation ranges from two to 30 days, depending on the offense and whether it is the first or second time the participant has been charged. The program is within the Office of Adult Probation, established by the director of adult probation, and subject to the approval of the chief court administrator.

Pretrial Diversion

If a person has not previously been placed in the program, the court can suspend prosecution and place him in it. If he satisfactorily completes the program, the court must dismiss the charges against him. If the program provider certifies to the court that he did not successfully complete it, or is no longer amenable to participation in it, the court must place the case on the trial list.

Program as Part of the Sentence

The court may suspend a prison sentence and make participation in the program a condition of probation or conditional discharge if the defendant has pleaded guilty without a trial and a prison term is part of a stated plea agreement. No one can be placed in the program more than twice.

Time in Program

The time a person must serve in the program depends on the offense and on whether it is a first or second violation.

1st 2nd

Violation Offense Offense

Possession of narcotics 14 days 30 days

Possession of hallucinogenics other than

marijuana or 4 ounces or more of a

cannabis-type substance 10 days 20 days

Possession of an illegal drug other than a

narcotic or hallucinogenic or possession of

less than 4 ounces of marijuana 2 days 10 days

ALTERNATIVE INCARCERATION PROGRAM

Courts are authorized to order defendants convicted of drug possession or drug sales by a drug-dependent person to participate in an alternative incarceration program (AIP) instead of going to prison. Those convicted of most nondrug related offenses are also eligible for consideration.

After a court finds a defendant guilty and a prison term is included in the penalty the court may:

The Office of Adult Probation must submit an alternate incarceration plan if it recommends placement. The law limits a defendant's participation in the alternate incarceration program to a maximum of two years. The program must provide care, supervision, and support services such as employment, psychiatric and psychological evaluation and counseling, and drug and alcohol dependency treatment.

AIP sentences generally include specific conditions which must be met; these are formally supervised by a probation officer assigned to the case. Among the most common conditions are a period of extra supervision at an alternative to incarceration center (AIC), drug evaluation or treatment, and community service. Supervision at a day incarceration center (DIC), intensive supervision, electronic monitoring, and an order not to contact particular people are among the other conditions.

The law prohibits a defendant convicted of a capital felony, a class A felony, a crime that has a mandatory minimum sentence, criminal negligent homicide, or certain felonies from participating in the program. The prohibited felonies are manslaughter in the first degree, manslaughter in the second degree, manslaughter in the second degree with a motor vehicle, misconduct with a motor vehicle, criminally negligent homicide, sexual assault in a spousal or cohabitation relationship and the sale of drugs by a non-drug dependent person (CGS § 21a-278)

PROBATION AND CONDITIONAL DISCHARGE

Courts have broad authority to either sentence a defendant to conditional discharge or probation following a suspended sentence of incarceration. Either disposition can be an alternative to incarceration. Both involve conditions that the defendant must meet. Such conditions often involve community service and drug treatment (CGS § 53a-29).

Neither sentence alternative is available if the crime for which the defendant is convicted carries a mandatory minimum term of imprisonment. For example, sale of drugs by a nondrug dependent person carries a mandatory minimum sentence; thus these alternatives are not available to anyone convicted of this offense.

TREATMENT OF DRUG DEPENDENT OFFENDERS IN LIEU OF PROSECUTION OR INCARCERATION

Courts are authorized under a separate statutory program to order offenders who are drug dependent into treatment in lieu of prosecution or incarceration. (CGS §§ 17a-649-17a-658).

The pretrial diversion aspect of the program covers all sales and possession crimes, but the post conviction sentencing aspect excludes those convicted of CGS § 21a-278, sale of drugs by a nondrug dependent person.

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 CADAC examining committee to conduct the examination. The examining committee must determine whether the person was alcohol- or drug-dependent at the time of the offense. If they determine he was dependent, they must examine the history and pattern of his dependency and whether he needs and would benefit from treatment. The committee must report its recommendations to the court, the Office of Adult Probation (OAP), the state's attorney, and the defense counsel within 30 days of when the examination was ordered.

If the committee recommends treatment, it must include provisions for placement and the type and length of treatment and state 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 or approved by CADAC or the Department of Correction 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.

Suspension of Prosecution and Treatment

A person charged with driving under the influence, assault in the second 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 has previously had substance abuse treatment while under suspended prosecution is not eligible. However, the court may waive these eligibility rules.

An eligible person may make a motion for suspended prosecution and treatment after the court receives the examination report. The court may order suspension of prosecution 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 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 the custody of OAP for substance abuse treatment. The court or OAP may require that he comply with certain conditions of probation and be tested for alcohol or drugs.

Prosecution may not be suspended unless the accused acknowledges that he 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.

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

At any time before the end of the supervision period, the OAP 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 the OAP, and abstained for one year from alcohol or drugs. The OAP 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 must hold a hearing to determine whether the conditions of the suspension should be modified or terminated if the program's director notifies OAP that a the 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 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 the OAP four days notice. But the person can be discharged without four days notice, with the agreement of OAP, 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 of suspension, the OAP must notify the court and the court may terminate the suspension and proceed with prosecution after a hearing.

Treatment Following Conviction

By law, a person convicted of murder, assault with intent to commit murder, attempted murder, kidnapping, first degree robbery, or any felony involving serious physical injury to another is not eligible for treatment. In addition, anyone who has previously been ordered to be treated for substance abuse following conviction is not eligible.

The court may impose a sentence involving treatment if after considering information before it, including the examination report, it finds that: (1) the person was alcohol- or drug-dependent at the time of the offense, (2) there was a relationship between the dependency and the offense, (3) he needs and is likely to benefit from treatment, and (4) he is eligible for probation.

After sentencing, the court may suspend the sentence entirely or, after a period of incarceration impose a period of probation of up to five year. But the court may not suspend any portion of a mandatory minimum sentence. As a condition of probation it may order the OAP to place the person in a treatment program. The court may order the person's immediate transfer to the program if space is available. It may require a probation officer to contract the treatment program and anyone in an outpatient program at least once a week. Violation of any condition set by the court is a violation of probation. The director of the treatment program must recommend to the OAP whether a person needs further treatment when he completes the program.

The OAP must notify the court when a person has completed treatment, has complied with the conditions set by the court, and has abstained for two years from alcohol or drugs. The OAP may make any recommendation, including modifying a sentence or terms of probation or terminating probation and releasing the person. Upon receipt of the notice, the court must set a hearing. After the hearing the court may notify the sentence or terms of probation or terminate the probation and release the person.

The court must decide whether the sentence or the probation terms should be modified if the programs director notifies OAP that the person is unable to successfully complete treatment. The director has the burden of establishing the facts. If the person is discharged before completing treatment, the director must give the OAP four days notice if possible.

DRUG OFFENDERS AND PENALTIES AND ALTERNATIVE SANCTIONS

In Table 1, we have briefly described the drug sale offenses and the prison sentences authorized or required for them. For each offense we have also indicated which of the following alternative sanctions are available: accelerated rehabilitation (AR); youthful offender (YO); community service labor program (CSLP); probation; alternative incarceration program (AIP); and drug treatment for drug dependent defendants (Drug Treatment). In Table 2, we have done the same for drug possession crimes. As a reminder, it should be noted that these alternative sanctions are within the court's discretion. Courts are not required to order alternative sanctions just because they are available, and judges have different philosophies about using alternative sanctions.

Table 1

Drug Sale Crimes


		*Alternative Sanctions Instead of Prison*
*Description of Offense*	*Authorized Penalties*	AR	YO	*CSLP*	*Probation*	*AIP*	*Drug Treatment*
Sale of heroin, cocaine, or methadone directly causing the user's death: capital felony Cite CGS § 53a-54b(6)	Life imprisonment without possible early release or death sentence if jury finds that certain statutory factors exist and there no mitigating factors	Yes	No	No	No	No	No
Sale by nonaddict of at least: 1 oz. of heroin, cocaine, or methadone; 5 mg. of LSD; or .5 mg. of crack Cite: CGS § 21a-278(a)	Mandatory minimum 5 to 20- year jail term, possible maximum term of life imprisonment	Yes	Yes	No	No	No	No
Sale by nonaddict of at least 1kg. of marijuana, or any amount of narcotics, amphetamines, or other hallucinogens Youth or mental impairment; sentence can be reduced below mandatory minimum Cite: CGS § 21a-278(b)	Minimum 5-year jail term up to a 20-year maximum Subsequent offenses: mandatory minimum 10-year jail term up to a 25-year maximum	Yes No	Yes No	No No	No No	No No	No No
Sale of illegal drug by nonaddict within 1,500 feet of an elementary or secondary school, a licensed day care center, or a public housing project Cite: CGS § 21a-278(b)	Mandatory 2-year jail term running consecutively to jail term imposed for violating other drug sale law	Yes	Yes	No	No	No	No
Sale of illegal drug to minor by nonaddict adult at least 2 years older than minor Cite CGS § 21a-278a(a)	Mandatory 2-year jail term running consecutively to jail term imposed for violating other drug sale law	Yes	Yes	No	No	No	No
Hiring minor to sell illegal drug in violation of 21a-277 or 21a-278 (described above) Cite: CGS § 21a-278(c)	Mandatory 2-year jail term running consecutively to jail term imposed for violating other drug sale law	Yes	Yes	No	No	No	No
Sale of any narcotics or hallucinogens other than marijuana Cite CGS § 21a-277(a)	First offense: up to 15-year jail term, up to a $50,000 fine Second Offense: up to 30-year jail term, up to a $100,000 fine Subsequent offenses: up to 30-year jail term, up to a $250,000 fine *Alternative sentence: up to 3-year indeterminate jail term with conditional release by correction commissioner	Yes No No	Yes No No	No No No	Yes Yes Yes	Yes Yes Yes	Yes No Yes
Sale of any other illegal drug Cite: CGS § 21a-277(b)	First offense: up to 7-year jail term, up to a $25,000 fine Subsequent offenses: up to 15-year jail term, up to a $100,000 fine *Alternative sentence: up to 3-year indeterminate jail term with conditional release by correction commissioner	Yes No	Yes No	No No	Yes Yes	Yes Yes	Yes Yes


		*Alternative Sanctions Instead of Prison*
	*Possession*	AR	YO	*CSLP*	*Probation*	*AIP*	*Treatment*
Narcotics (i.e., heroin, cocaine, crack) Cite: CGS § 21a-279(a)	First offense: up to 7-year jail term, up to a $50,000 fine Second offense: up to 15-year jail term, up to a $100,000 fine Subsequent offenses: up to 25-year jail term, up to a $250,000 fine *Alternative sentence: up to 3-year indeterminate jail term with conditional release by correction commissioner	Yes No No	Yes No No	Yes Yes No	Yes Yes Yes	Yes Yes Yes	Yes Yes Yes
Dangerous hallucinogens or at least 4 oz.. of marijuana Cite: CGS § Sec. 21a-279(b)	First offense: up to 5-year jail term, up to a $2,000 fine Subsequent offenses: up to 10-year jail term, p to a $5,000 fine *Alternative sentence: up to 3-year indeterminate jail term with conditional release by correction commissioner	Yes No	Yes No	Yes Yes	Yes Yes	Yes Yes	Yes yes
Any other illegal drug or less than 4oz. of marijuana Cite: CGS § 21a-279(c)	First offense: up to 1-year jail term, up to a $1,000 fine Subsequent offenses: up to 5-year jail term, up to a $3,000 fine	Yes	Yes	Yes	Yes	Yes	Yes
Possession of illegal drugs within 1,500 feet of an elementary or secondary school or a licensed day care center Cite: CGS § 21a-279(d)	Mandatory 2-year jail sentence running consecutively to jail term imposed for violating other drug possession laws	Yes	Yes	Yes	No	Yes	Yes

While the individuals we spoke with in connection with our research expressed the view that few actual first time offenders are sentenced to prison for drug offenses, a very large portion of our prison population is incarcerated for drug offenses. The following table shows the number of inmates incarcerated for drug-related offenses as of September 30, 1994.

Table 3

Inmates Incarcerated for Drug Offenses

on September 30, 1994

Offense Number of Inmates

CGS 14-227a

operating a motor vehicle while under influence of liquor or drug 92

21a-267

possession/use of drug paraphernalia 7

21a-267(c)

possession/use of drug paraphernalia by non student within 1,500 feet of school 1

21a-268

misrepresentation as controlled substance 5

21a-277(a)

illegal manufacture or sale of controlled substance 2197

21a-277(c)

possessing drug paraphernalia in a drug factory 3

21a-279(a)

possession of narcotic substance 666

21a-279(d)

possession by nonstudent within 1500 feet of a school 13

Total 2984

This total of 2,984 was around 20% of the number of persons incarcerated at that time. Most of these, according to the experts we spoke with, are repeat offenders. Thus, to the extent you want to encourage alternatives for repeat offenders, you might consider expanded AIP, Drug Treatment, and CSLP programs for repeat offenders that are longer, more rigorous, and more supervised than for first offenders.

ALTERNATIVES TO INCARCERATION PHASE 11: SENTENCING EVALUATION

The research staff conducting the sentencing evaluation phase of the study reached several conclusions that we thought you might find interesting. These findings are: