Return to Executive Summary, Preface and Acknowledgements
CONNECTICUT LAW REVISION COMMISSION
DRUG POLICY IN CONNECTICUT
AND STRATEGY OPTIONS
REPORT TO THE
JUDICIARY COMMITTEE OF THE
CONNECTICUT GENERAL ASSEMBLY
January 21, 1997
Connecticut Law Revision Commission
Hartford, CT 06106
FAX: (860) 240-0322
Table of Contents
January 21, 1997
|B. SUBSTANCE ABUSE POLICY STRATEGY OPTION|
|C. PUBLIC HEALTH STRATEGY OPTIONS|
|D. CRIMINAL JUSTICE STRATEGY OPTIONS|
|APPENDIX A. Judiciary Committee Request to Study Connecticuts Drug Policy|
|APPENDIX B. Strategy Options|
|APPENDIX C. Public Act 97-248, An Act
Concerning Substance Abuse Education and
Treatment Programs and Establishing a Connecticut Alcohol and Drug Policy Council
|PRELIMINARY STAFF REPORT, September 25, 1996 ("Part 2")|
A. INTRODUCTION Top
In April 1995, the Co-Chairs of the Judiciary Committee of the Connecticut General Assembly asked the Connecticut Law Revision Commission to conduct a study of Connecticuts drug policy (See Appendix A). The Commission was asked to conduct a study "broad enough to present a substantive report on the ramifications of our current drug policy and of alternative models" and to make "recommendations for appropriate modification of the laws." Specifically, the Commission was asked to study at least the following five areas:
1. The effectiveness of current criminal penalties for the illegal sale and possession of controlled substances;
2. The effect that alteration of criminal penalties for illegal sale and possession would have on the incidence and treatment of substance abuse, the incidence of other crime, the overcrowding of correctional facilities, and the availability of resources within the law enforcement and criminal justice systems;
3. The effectiveness of current substance abuse treatment and education programs;
4. The relationship between welfare and the illegal sale and possession of drugs; and
5. The outcomes of drug control programs in other states and countries including at least one study of the medicalization of the drug laws and the effect that these programs have had on crime, welfare, and substance abuse.
In September, 1996, the staff of the Law Revision Commission issued a report that reviewed Connecticuts current substance abuse polices and practices and raised a number of questions about what our policy should be. This report is a continuation of the September report and suggests a broad systematic approach to addressing those issues.
Experts and non-experts agree that substance abuse is a major -- if not the number one -- health problem in this country. Studies suggest that more deaths, illnesses and disabilities occur as a result of substance abuse than any other preventable health condition. Costs related to substance abuse are a major contributor to the countrys total health care bill. Additionally, substance abuses total economic cost to the U.S. economy -- including increased health care costs, poor health, absenteeism and reduced productivity in the workplace, and drug related crime and violence -- each year is astronomical. In 1994 Connecticut spent $2.96 billion on substance abuse costs.
The state urgently needs more effective ways of dealing with the problem of drug abuse. The cost of the current system, in both human and economic terms, is enormous. No sound evidence exists that current policies have effectively limited or controlled the problems resulting from drug abuse. Indeed, some current policies may be counterproductive. With the spread of AIDS by injecting drug users, a new urgency exists to bring all drug abusers within the health care system.
Several conclusions can be reasonably drawn.
As a means of "solving" the drug problem, it appears that the states heavy reliance on the criminal justice system is misplaced. One federal prosecutor in Connecticut observed that "it is clear that we cant arrest our way out of the drug problem." Connecticuts Chief States Attorney reported to the Criminal Justice Subcommittee of the Connecticut Alcohol and Drug Policy Council that incarceration has not been the solution to the drug problem and that new and innovative ideas must be attempted.
Although penalties and sanctions may be an important component of addressing drug abuse, the fundamental reliance on the criminal justice system, with its enormous costs, has failed to solve the problem. A recent survey of police chiefs points out that a majority of them believe that there is an urgent need to rebalance current drug policies based on criminal sanctions more toward prevention, education, and treatment.
Connecticut needs coordinated, considered steps toward a public health emphasis to drug policy. Such a public health approach does not reject the important role of law enforcement and criminal justice to provide for the public safety. Within that public safety context, the criminal justice system should also be an intake point for treatment, an opportunity to engage most nonviolent, low-risk drug-involved offenders into treatment and intervention. Moreover, the states preferred goal should be to prevent or successfully treat drug abuse before the state triggers reliance on the criminal justice system.
The problem of drug abuse is multifaceted. It is not solely a criminal, social, or health problem. As such, its solution requires a policy that is equally broad, that addresses the problems stemming from drug abuse in each of its component parts. Such a policy must be coordinated and must analyze potential solutions in terms of effectiveness and reduction in social and economic costs. That policy should recognize that, for many persons involved with drugs, prevention, treatment, and education can be more effective, and more cost effective, than reliance on penal sanctions.
Treatment for substance abuse is central to reducing self-destructive behavior, crime attendant to dependence, and public health and other social risks. Numerous studies (some of which are listed in strategy option B, below) demonstrate the effectiveness of treatment, compared with incarceration, in addressing substance dependence and in reducing criminal behavior. The central objective of treatment is abstinence of use of illicit drugs, but because of the chronic, complex nature of drug problems, the more pragmatic day-to-day objective is to reduce illicit drug consumption by as large a fraction as possible relative to the consumption one might expect in the absence of treatment. Reduction of illicit drug consumption produces socially and personally valuable results and may serve as a critical intermediate step to lifetime abstinence.
The goals of treatment include:
Reduce illicit drug use.
Reduce attendant criminal behavior.
Improve social functioning including housing, education, and employment or productivity.
Improve users overall health, psychological functioning, and family life.
Reduce fetal exposure to drug use.
Drug dependence is a chronic, relapsing condition. Thus, like other chronic conditions such as diabetes, hypertension, and congestive heart failure, continuing interventions may well be necessary. In fact, drug treatment professionals say that relapse is part of recovery. Generally, the longer a dependent person stays in treatment, the more successful it is.
Connecticut has a chronic lack of treatment capacity and availability. Unfortunately, the need is real, but the shortage of treatment availability is difficult to quantify. For example, Judicial Department and Correction officials report that hundreds of persons are imprisoned each year who could safely and more cheaply and effectively be supervised in community residential treatment programs. Connecticut is, however, at least 200 residential treatment slots short of the need for this criminal justice population. See strategy option C. 4, below. The Commission expects that a state office to collect and analyze criminal justice and substance abuse data will assist in determining overall state need. See strategy option B, below. Most importantly, the Commission supports the recommendation of the Governors Blue Ribbon Task Force on Substance Abuse to have, within three years, a system that fully meets treatment and prevention needs.
The Law Revision Commission recommends that the legislature review further and consider the following as strategy options, which are addressed in depth in the more specific sections that follow this summary.
o Connecticut needs an office to develop, coordinate, assess, and monitor its criminal justice and public health strategies for minimizing substance abuse.
A state infrastructure is necessary to develop and coordinate such a new approach to drug policy. Such a body is necessary to develop evidence as to the effectiveness of programs, recommend allocations where they are most effective, modify current policies and programs where necessary, and initiate, oversee, and evaluate new programs as they are established.
The legislature should, therefore, review further and consider as a strategy option establishment of a state office (1) to implement a central, statewide coordination of drug policies and (2) to coordinate a graduated, and considered, policy shift to better address the health and social components of the drug abuse problem and to reduce the heavy burden imposed by current reliance on the criminal justice system. See strategy option B, below.
o Connecticut should implement revisions in its public health programs to shift substance abuse priorities toward assessment, intervention, education, and treatment where those activities are effective and cost efficient.
The Commission points out a number of public health initiatives to address the health components of the substance abuse problem, including programs to:
1. Increase access to methadone treatment services through a pilot program to allow treatment by clinic affiliated private physicians, through a program allowing methadone treatment for certain incarcerated persons, and through increased flexibility in methadone access to treatment and in treatment at long-term care facilities;
2. Require parity in insurance coverage for substance abuse treatment in medical insurance programs;
3. Require training of health care professionals in screening, intervention, and treatment for substance abuse and require protocols for screening for substance abuse;
4. Expand treatment slots in alternative sanction programs and in programs operated by the Department of Corrections;
5. Reduce barriers imposed by the Certificate of Need process for expanded treatment programs;
6. Exempt, as allowed by federal law, those persons convicted of substance abuse from the federal disability for welfare benefits;
7. Monitor and assess, within the Department of Education, current prevention, education, and intervention programs with respect to substance abuse and their coordination with available community-based programs;
8. Expand access to clean syringes; and
9. Revise the definition of drug dependence.
Those strategy options and others are detailed in C. through C.11, below.
o Connecticut should revise its criminal justice programs to reflect the shift toward treatment while retaining components necessary for public safety and to discourage substance abuse.
As noted above, the states current heavy reliance on the criminal justice system to control drug abuse has been misplaced. Policies relying heavily on penal sanctions and incarceration have proven to be costly both in economic and human terms and have failed sufficiently to address the social and public health aspects of the problem. Nonetheless, criminal laws administered in concert with treatment and other social and public health initiatives will continue to play an important role in controlling drug abuse.
Those policies must, however, be revised to optimize the social benefits, and minimize the social and economic costs, that accompany criminal law enforcement. An arrest of a drug involved offender must be recognized, within the context of public safety, as an opportunity to direct the offender to needed treatment. The first goal with respect to such an offender must be to return that person to society in a constructive role, receiving necessary treatment and without the stigma of conviction and incarceration. Of course, public safety concerns will not always allow such an approach. Where the offender is violent or implicated in other crimes, sanctions such as incarceration may often be appropriate. The first, and primary, approach, however, must be to maximize the use of alternative programs. Diverting appropriate offenders to treatment before trial can successfully reduce repeat criminal behavior and avoid the lifetime disability in the employment market that a conviction can bring. With recalcitrant offenders, post-conviction treatment programs and alternatives to incarceration must be used wherever reasonable.
To implement such a shift in policy, the legislature should review further and consider as strategy options the following specific changes in existing laws and practice:
1. Expansion of the drug court. Current pilot programs establishing drug courts in Connecticut and elsewhere are proving highly effective in allowing the system to design the appropriate response, including treatment and other options, for specific offenders. The legislature should, therefore, consider expansion of drug courts statewide and include all offenses in which drug abuse is the primary factor.
2. Penalties for drug sales. The current penalties need review to assure that they meet current criminal justice and substance abuse policy needs.
3. Expand use of alternative incarceration programs. Alternatives to incarceration, including drug education programs and community service, should be emphasized. Where a drug abuser is, in fact, incarcerated, that incarceration should be used as an opportunity for treatment.
4. Drug education and community service labor program. Include drug treatment/education components as part of the community service labor program.
5. Community policing. The legislature should encourage community policing techniques and philosophy.
These strategy options and others with respect to the criminal justice system are set out in strategy options D.1 through D.7, below.
As noted above, the specifics and rationales for each of the specific programming, public health, and criminal justice strategy options follow. However, it should be emphasized that this shift toward public health goals requires ongoing review and revision to ensure that programs prove effective and that substance abuse harms are minimized in a humane and cost efficient manner. The bulk of that monitoring should fall on the state central office established to coordinate policies, formulate strategies, and assess the effectiveness of programs and on the advisory council established to provide agency and program feedback.
B. SUBSTANCE ABUSE POLICY STRATEGY OPTION. Top
B1. Drug policy coordinating office. Top
The Law Revision Commission staff review of Connecticuts current drug policy, as well as the November 1996 draft recommendations of the Connecticut Alcohol and Drug Policy Council and the December 1996 recommendations of the Connecticut Legislative Program Review and Investigations Committee, notes deficiencies in Connecticuts piecemeal approach to substance abuse problems. That approach, which historically developed as the state reacted to limited aspects of the substance abuse problem, has relied heavily on penalties and sanctions imposed by the states criminal justice system, and, to a lesser extent, on substance abuse treatment that is available, or imposed, only inconsistently. Connecticut policy has also made only limited and uncoordinated use of prevention and education strategies. This haphazard approach has incurred enormous costs often with only limited successes, has failed to make an optimal use of treatment and other effective strategies, and has led to inconsistencies in policy and inappropriate competition for resources among state agencies.
To resolve these deficiencies in current substance abuse policies, the legislature should consider centering in one state office the authority to develop, coordinate, and direct a comprehensive statewide substance abuse policy that applies to all the players in the substance abuse field.
Coordination responsibilities could be placed in the Office of Policy and Management (OPM) as a division of substance abuse policy and management for the same reasons that OPM, itself, exists: because it is imperative that one body coordinate implementation of state policy, and allocation of state resources, in this critical area. The Office of Policy and Management already exists to coordinate state policies across all state agencies, including the Judicial Department. A specific division within that office could be expressly dedicated to the substance abuse problem to bring all of the currently disparate state policies on substance abuse within a single umbrella. OPM may be best positioned to coordinate practices and resources not only for substance abuse treatment and prevention, but also for the judicial and criminal justice systems.
Another option places coordination responsibilities in the Department of Mental Health and Addiction Services (DMHAS) or the Department could be designated as the lead agency for the coordination role. DMHAS has lead state responsibility for delivery of treatment and prevention services, and therefore has expertise and experience in the coordination and delivery of services. However, OPM, as a superagency already charged with oversight and budgeting responsibility, is more strategically positioned than is DMHAS to coordinate programing and policy and standardized data collection and evaluation among various state agencies that are coequal with DMHAS and to address criminal justice issues in the Judicial Department.
A Substance Abuse Policy Council should assist the drug policy coordinating office (see B. 4, below). It is expected that the present Connecticut Alcohol and Drug Policy Council created by executive orders in August 1996 would, by statute, become the advisory policy council to the coordinating office. This would assure constancy and statutory status to the Policy Council. It is expected that the Policy Council would continue, with most of the same participants, the work of the replaced Connecticut Alcohol and Drug Policy Council.
B2. Statewide drug policy. Top
The new coordinating office should develop and implement the substance abuse policy statewide. The policy should focus on substance use and abuse as a public health issue and should address it in a comprehensive and coordinated manner. The policy should rely on the best techniques of prevention, intervention, treatment, education, and criminal justice. The goal of the drug policy should be to minimize, overall, the disparate social and economic costs related to drugs: the costs to society of drug use, of production and distribution, and of control efforts. It is easier, but not as useful, to focus on each of these parts of the drug problem separately. For example, the government could perhaps reduce drug use by dramatically increasing criminal enforcement and sanctions, or it could decrease costs of a black market distribution system by government dispensing drugs to certified addicts at rates below the black market, or the government could decrease drug control costs by eliminating government programs concerning drugs. Attempting to focus on each cost independently, while easier, is not as useful as the more difficult task of minimizing the aggregate cost of use, production and distribution, and control.
Barry McCaffrey, director of the White Houses Office of National Drug Control Policy, points out that prevention and treatment of substance abuse is more effective and cheaper than interdiction and incarceration. General McCaffreys position is supported by numerous studies and reports that encourage a public health approach to drug policy and that demonstrate the effectiveness of treatment on drug use and crime when compared with incarceration. Connecticut needs coordinated, considered steps toward a public health emphasis to drug policy. Such a public health approach does not reject the important role of law enforcement and criminal justice to provide for the public safety. Within that public safety context, the criminal justice system should also be an intake point for treatment, an opportunity to engage most nonviolent, low-risk drug-involved offenders into treatment and intervention. Moreover, the states preferred goal should be to prevent or successfully treat drug abuse before the state triggers reliance on the criminal justice system.
The policies of the State Department of Education, Department of Children and Families, Department of Mental Health and Addiction Services, and other agencies should be coordinated to ensure that children and young adults receive the most effective education and intervention to minimize the risks of substance abuse. The more specific recommendations made with respect to the State Department of Education (see strategy option C.7. below) should be integrated into the state comprehensive plan for dealing with substance abuse.
B3. Data collection and evaluation. Top
The new drug policy office should develop a data base to allow monitoring of the effectiveness of programs. Establishing such a data base will require standardized policies and procedures for collecting and evaluating information. Too often under current policy, each agency collects only the information necessary for its own administrative considerations. Moreover, the data format is often incompatible with data from other agencies with substance abuse responsibilities.
Absence of a current, standardized, centralized data base has made it impossible to evaluate the relative effectiveness of many current programs and of criminal sanctions. For example, Judicial Department information on court dispositions of drug offense cases does not reveal the type of drug involved, i.e., heroin or cocaine; marijuana or a misused prescription drug. Thus, it is difficult for administrators to determine with accuracy the kinds of drugs for which persons are being convicted and trends in arrest by drug type. Court case disposition data classifies race by white, Hispanic, black, Asian, or other. Police arrest data in the Uniform Crime Reports, however, does not contain the category of Hispanic; Hispanics are recorded as white. This procedure makes it difficult to determine, for example, whether conviction rates for each population group are consistent with the arrest rates. An effective, statewide system must use scientifically-valid measures to evaluate programs and sanctions, both those that are currently implemented and new ones that are developed. Such a system will, of course, need to be developed within the context of federal and state confidentiality laws.
B4. Substance abuse policy council. Top
Finally, the Commission believes that a statutory Substance Abuse Policy Council (to replace and continue the work of the Connecticut Alcohol and Drug Policy Council, see B. 4, above) would be an indispensable part of the work of the drug policy office. The Policy Council should consist of representatives of the leading agencies and others expert in substance abuse policy to assist the new office in the formulation of its statewide policy. The council will ensure that the new policy office has direct access to all available state expertise and that the policy office receives agency and other expert opinion with respect to current and proposed policies.
Should the legislature choose to create a drug policy office in OPM, a draft of legislation that would accomplish that result is in Appendix B, Bill No. 1, page B-1. The legislation is consistent with the draft recommendations of the Connecticut Alcohol and Drug Coordinating Council and parallels recommendations of the Legislative Program Review and Investigations Committee.
C. PUBLIC HEALTH STRATEGY OPTIONS. Top
C. 1. Access to methadone treatment services. Top
Over two million Americans have tried heroin, the most commonly abused opiate drug in the United States. Statistics suggest that there are over 500,000 heroin dependent persons nationwide, and a comparable number using it regularly. In Connecticut, the Governors Blue Ribbon Task Force on Substance Abuse estimated that 65,000 Connecticut residents abused illegal drugs in 1995 - about 1.9% of the total Connecticut population. Heroin abuse accounts for almost half (49%) of the persons treated for illicit drug use by the State of Connecticut Department of Mental Health and Addiction Services for the fiscal year 1995.
Nationally, heroin use grew rapidly in the 1960s, leveled off in the 1970s and 1980s, and appears to be increasing again. Hospital emergency rooms experienced an 80% increase in heroin related treatments between 1990 and 1993. The average purity of heroin has increased from 5% in the 1980s to 40-60% today.
Chronic heavy users often suffer from poverty and thus are more susceptible to diseases associated with poverty. Abusers are often inattentive to their personal hygiene and may experience extreme deterioration of their health. Because heroin is often administered by shared needles, there is an increased risk of exposure to hepatitis, and Human Immunodeficiency Virus (HIV), which can lead to Acquired Immune Deficiency Syndrome (AIDS). Not surprisingly, heroin-dependent persons often exhaust financial resources to support the dependence and turn to criminal activity as a means of support.
No method of treatment for heroin dependence is as successful as long-term high dose methadone maintenance treatment (MMT). Methadone successfully addresses the severity of dependence, safeguards the public health by reducing transmission of the HIV virus, and enhances public safety and reduces criminal behavior of patients - so effectively that it has been called the "anticrime pill."
In one study, new HIV infection rates among persons in methadone treatment were six times lower than new HIV infection rates among those injection drug users not in methadone treatment.
Methadone hydrochloride is a pharmaceutical medication, a synthetic opiate product, similar to heroin in that it causes dependence, but without the ability to produce the "high" in opiate-dependent persons. Persons treated with methadone can safely drive and operate machinery. They can hold jobs and maintain a normal family and social life. When properly prescribed and administered, methadone provides relief from acute withdrawal symptoms and reduces chronic narcotic craving by stabilizing blood levels of the drug as it metabolizes, letting the heroin dependent person function normally without being "high". Methadone has the additional advantage of being metabolized over 24 to 26 hours, about six times longer than heroin, and it can be taken orally. Importantly, methadone is safe for both short-term and long-term use. Methadone maintenance treatment allows the individual to live with an opiate dependency by minimizing its effects on his or her psychological and social well-being.
An estimated 115,000 individuals receive methadone treatment nationally; 4,358 did in Connecticut during 1995. A "snapshot" shows that 3,231 persons were in methadone treatment in Connecticut in September 1996, up from 2,462 in June 1996, a 31 % increase in only three months. The Connecticut Department of Mental Health and Addiction Services estimates that of the 15,000 people currently in heroin drug treatment programs, only 20% are receiving methadone treatment.
Despite the overwhelming evidence supporting methadone maintenance treatments positive impact on crime and public safety, public health, and social outcomes, the United States and Connecticut have fallen behind the successful use of methadone in other western nations. While the number of methadone maintenance treatment placements rose to 100,000 between 1965 and 1980, there has been little increase in methadone maintenance treatment availability since the advent of the AIDS epidemic fifteen years ago. By contrast, Australia increased its methadone maintenance treatment placements ten-fold in recent years, as did Germany.
Private practitioners do not commonly prescribe and dispense methadone in the United States. Federal and state regulations discourage the practice for fear of inappropriate use of the medication and a claimed higher risk of diverting the medication. In fact, however, the Institute of Medicine found that these fears were overstated. Diverted methadone medication is generally used by out-of-treatment heroin-dependent persons to self-moderate their own heroin use or to substitute for heroin when it is in short supply. Although methadone is a powerful medication like many other prescription drugs, the Institute of Medicine found that diverted methadone is but a small part of the drug abuse problem, and that it does not play a significant role in drug-related deaths or emergency health care.
Because the strict regime of controlling methadone medication unnecessarily prevents many heroin-dependent persons from receiving methadone maintenance treatment, the Institute of Medicine has recommended that the restrictions be modified. Outreach activity by treatment programs and by community-based health programs such as needle exchange is an important method of engaging more opiate-dependent persons into treatment. Failure to promote and use methadone maintenance treatment for heroin dependence results in otherwise preventable crime, increased transmission of disease such as AIDS, and impaired psychological and social functioning.
Outside the United States, methadone delivery has been expanded by integrating it into general medical practice. In Europe, Australia, and Canada thousands of general practitioners are involved in methadone maintenance. This scenario allows access to users who live far from or cannot get to clinics, is less stigmatizing, and grants a greater role to the medical community in methadone maintenance. In the Netherlands, the United Kingdom, Canada, and Australia, syringe exchange programs (SEPs) are integrated with methadone programs.
The Law Revision Commission has explored ways to make more methadone maintenance treatment available outside traditional programs, as well as ways to make methadone maintenance treatment more available through traditional programs. The Commission formed a Methadone Working Group to study the issue and to make recommendations. The Working Group was made up of representatives of the Department of Mental Health and Addiction Services, the Department of Public Health, the Department of Correction, methadone program and other treatment providers, physicians in private practice, physicians and researchers in the Yale University Department of Biology and School of Medicine, including the Departments of Internal Medicine and of Epidemiology and Public Health, the New Haven Police Department, and a methadone patient. The group was advised by methadone treatment providers at a New York City jail and by an official from the state of New York State office that regulates methadone treatment.
Although the number of persons receiving methadone treatment during three months of 1996 increased by 31%, the Methadone Working Group found that treatment need still far exceeds treatment availability. Without new initiatives, such as those reported here, the Working Group did not expect that program use would continue to expand. For example waiting lists for treatment more than doubled during that same time and some clinics report delays of up to two months for receiving treatment.
Based on the efforts of the Working Group, the Law Revision Commission reports on the following methods to increase access to methadone treatment in Connecticut:
a. A pilot research program of methadone treatment by private physicians for stabilized methadone patients. The physicians would be affiliated with, but off site from, methadone clinics.
b. A methadone medication as a detoxification treatment (21 days) for opiate-dependent persons who become incarcerated.
c. A pilot research program of methadone maintenance treatment for inmates who are both incarcerated for a short-term and opiate-dependent to prepare linkage to community-based methadone treatment on their release.
d. The Department of Mental Health and Addiction Services should continue to improve its system of monitoring quality of care of methadone maintenance treatment programs to assure access to treatment that meets patient needs and to eliminate any waiting time for access to treatment. The Department should report its progress in these issues to the legislature.
e. The Department of Public Health and Department of Mental Health and Addiction Services should develop systems that permit physicians at long-term care facilities to modify methadone prescriptions for patients on methadone maintenance treatment.
The reported methods to increase access to methadone are explained in more detail below.
a. Methadone patients being treated by private physicians affiliated with methadone clinics.
The legislature could create a statewide pilot research program in which physicians would treat stabilized methadone patients in a private practice or other medical setting rather than at methadone clinics. Methadone clinics would continue to serve as the intake point for treatment. After the patients condition is stabilized at the clinic, the patient would transfer to a private practice physician affiliated with the clinic. Should the patient in the care of a private physician again need the services of the clinic, care would be transferred back to the clinic. Such a coordinated treatment scheme is used successfully in the Netherlands and other nations. Importantly, in October 1996, the American Methadone Treatment Association, Inc. endorsed moving to such a system of private, physician-based treatment.
The pilot program would be established by the Department of Mental Health and Addiction Services which will establish an advisory committee of methadone experts to develop protocols and to provide ongoing review of the pilot program.
The program will:
Allow methadone patients to be treated in a private practice setting which, for many patients, will be more convenient and less burdensome than treatment in a clinic. The result should be better patient compliance with treatment and improved retention rates of patients in treatment. The most important indicator for successful treatment is maintaining a patient in treatment.
Provide more clinical space for new patients.
Establish a group of private practice physicians who become experienced in methadone maintenance treatment.
Inform the methadone treatment system about ways to decentralize the clinical dispensing of the medication. A decentralized dispensing system will help reduce neighborhood complaints about concentrations of opiate-dependent patients at clinic locations, it will be less expensive to operate, and it will increase patient use of methadone by treating patients in physician offices, just as persons with other chronic disorders are treated.
Conduct a rigorous evaluation of its effectiveness, and possibly a randomized clinical trial.
Require that clinics affiliate with at least two physicians in the first year, to ease startup training and supervision burdens. Thereafter, at least five physicians must be affiliated with the program. It is expected that programs will, in fact, be able to affiliate with more than the minimum number of physicians called for.
b. Methadone medication as a detoxification treatment (21 days) for opiate-dependent persons who become incarcerated.
Because of strict limitations on the availability of opiates during incarceration, opiate-dependent inmates suffer withdrawal from opiates. Withdrawal causes extreme physical distress and is characterized by abdominal pains, chills, nausea, diarrhea, and fever. Methadone detoxification treatment (21 days) is the standard medical procedure for treating such opiate withdrawal symptoms. It relieves the extreme physical distress of withdrawal and reduces prisoner disruptive behavior.
Methadone detoxification treatment is currently available in the Connecticut correction system to detoxify female prisoners who have been maintained on methadone maintenance while pregnant in prison. Methadone detoxification is not available for male prisoners or other female prisoners. Methadone detoxification is also used in prison systems in other states. The Methadone Working Group recommended to the Law Revision Commission that the legislature assure that this medical procedure be available to treat the large number of opiate-dependent persons entering the state prison system.
Testing for opiates costs about $1.50 per person. If outside contractors provide opiate detoxification with methadone, the service costs about $65 per week per person.
No reliable data is available about the number of persons entering the Connecticut correction system annually who show indication of opiate use. Members of the Methadone Working Group estimated that up to 40% of the 100,000 admissions to Corrections each year may show opiate use on admission.
At the Law Revision Commissions Methadone Working Group, representatives of the Department of Correction indicated that, while the Department believes that its current detoxification program is adequate, the Department would consider using methadone detoxification treatment where advisable.
c. A pilot research program of methadone maintenance treatment for inmates who are both incarcerated for a short-term and are opiate-dependent to prepare for their release from incarceration to a community-based methadone treatment program.
Upwards of 40,000 newly-admitted inmates to the Connecticut correctional system each year show signs of opiate use. The Methadone Working Group estimated that hundreds, if not thousands, of them are pretrial detainees or have received short sentences and will be released into Connecticut communities within a year of incarceration. These released inmates will not have been engaged in prison in the most successful opiate treatment program known - methadone maintenance treatment.
The Methadone Working Group recommended to the Law Revision Commission that the legislature create a pilot research program of short-term methadone treatment and support services to appropriate inmates who are at risk of resuming opiate use upon release.
This proposal engages opiate-dependent inmates who are to be incarcerated for a short time into a short-term methadone maintenance treatment in prison and transfers them to community-based methadone maintenance treatment on release. The program is designed to break the cycle of: opiate use, criminal behavior and high risk health behavior caused by the opiate use, arrest, incarceration-imposed termination from opiates, release and return to opiate use, criminal and high risk health behavior, rearrest, reincarceration.
A pilot research program of methadone maintenance would be created at two locations: (1) at York Correctional Institution, Niantic, which serves women, and (2) at an intake facility for men in one of Connecticuts cities.
The proposal is based on a successful program, called KEEP, operated at a New York City jail (Rikers Island) since 1988. The program serves as an intake facility for methadone maintenance treatment for opiate-dependent inmates who are to be incarcerated for only a short period - less than one year. The dependent inmate is maintained on methadone while incarcerated. Upon release, the inmate is referred to a community-based methadone maintenance treatment program, where a treatment slot has been reserved. The program serves over 400 inmates daily and 3800 during the year. It measures its success by the number of participants who, in fact, enroll in the community program on release - now approaching 80%.
The KEEP program was established with federal and state support despite prison opposition from administrators and guards. Concerns centered around the treatment modality and the feasibility of providing methadone in a prison setting. Issues such as possible diversion of medication, violence, and security breaches needed to be addressed. Connecticut Department of Correction representatives in the Methadone Working Group indicated that the Department has similar concerns. Shortly after the program was established in the New York City jail, however, the programs value became apparent and it received institutional support from both administrators and guards. Prisoners who entered the program accepted the medication and their behavior improved. Their opiate abstinence syndrome (craving, anxiety, and depression) was also reduced. Since then, the program has been expanded.
A similar program of short-term methadone maintenance had been successfully used in the Hartford Morgan Street jail for about seven years in the 1970s. The program maintained dependent persons on methadone for about forty-five days before their release to a community-based methadone treatment program. A change in medical philosophy at the jail ended the program.
Both the New York City jail program and the experience of the Connecticut Department of Correction in providing methadone maintenance treatment to pregnant opiate-dependent inmates in Connecticut have proven to be successful. Representatives of the Department of Correction continue to express reservations, however, about implementation of the proposed pilot program in Connecticut.
The pilot program is designed as an intake program for methadone maintenance treatment for opiate-dependent inmates who are likely to be released into the community in a relatively short period of time. Additionally, methadone maintenance treatment will also address the abstinence syndrome (depression, anxiety, and craving) that opiate-dependent inmates experience when kept abstinent from opiates.
Specifically, the program would serve every appropriate opiate-dependent inmate serving a sentence of less than one year and incarcerated on or after January 1, 1998, and all appropriate opiate-dependent pre-trial detainees held on misdemeanors on or after January 1, 1998. Under subsections (a) and (b) the commissioner may expand the program to other inmates, such as those charged with a felony who are likely to be sentenced to less than a year and those with felony charges who are likely to have their charges reduced to a misdemeanor. Because methadone treatment is both an anticrime initiative and a public health measure, the treatment should be as widely available as possible to every appropriate opiate-dependent inmate who is likely to be incarcerated for a short period of time.
The Commissioner of Correction, with the aid of the Department of Mental Health and Addiction Services (DMHAS) and representatives of community-based methadone programs, would establish a program for the retention and transfer of treatment of those individuals to community-based programs upon their release from incarceration.
If established methadone programs are contracted to operate the inmate program, program costs are estimated at $2500 to $3000 per year for each program slot. About $30,000 would be needed to evaluate the program. DMHAS will participate in developing standard and protocols, and at that time it can be decided whether DMHAS or some other organization should evaluate the program. The evaluation component of the program could include an evaluation of its cost effectiveness. The evaluation will also determine reincarceration rates after release - an evaluation component not done in the New York program.
A registry is established to enable the state to identify a program participant and to prevent participation in more than one community-based treatment program. Connecticut presently has no such methadone registry.
d. The Department of Mental Health and Addiction Services should continue to improve its system of monitoring quality of care of methadone maintenance treatment programs to assure access to treatment that meets patient needs and to eliminate any waiting time for access to treatment. The Department should report its progress on these issues to the legislature.
One barrier to access to methadone maintenance treatment is program rules and program staff attitudes that discourage patients from seeking treatment or that make treatment inconvenient for patients. The Department of Mental Health and Addiction Services indicates that, in the past year, it has been conducting its quality assurance program with more frequency, care, and deliberation than in previous years. The Law Revision Commission commends that effort and urges the Department to continue to improve its quality assurance systems.
Immediate access to methadone treatment is an important element of assuring that opiate-dependent persons are engaged in treatment when ready. Delay in treatment to an opiate-dependent person means the person will continue behaviors that are illegal and a grave risk to public health. And when treatment becomes available after a delay, the person may no longer be interested in the program.
The Department indicates that prospective methadone patients should, after assessment for appropriateness, be placed in treatment immediately, or placed on a waiting list. The Department says that it has done a great deal to eliminate waiting lists in the past several years. Yet, in the three months in 1996 when treatment slots increased by 32%, waiting lists more than doubled - from 29 to 67. Furthermore, anecdotal information from the courts, public defenders, treatment counselors, and social workers indicates continuing delays in getting into methadone treatment. For example, an informal survey on December 20, 1996, by some members of the Methadone Working Group of three state-funded methadone treatment programs found a two-week delay in admission at one program and a one to two month-delay at two other programs. Such unacceptable delays unnecessarily threaten both public safety and public health.
The Law Revision Commission recommends that the Department continue to review and to improve how programs are complying with waiting list standards and to remove barriers to immediate access to treatment.
The Commission recommends that the Department report to the Judiciary and Public Health Committees of the General Assembly in 1998 its progress in improving quality assurance monitoring and in eliminating waiting times.
e. The Department of Public Health and Department of Mental Health and Addiction Services should develop systems that permit physicians at long-term care facilities to modify methadone prescriptions for patients on methadone maintenance treatment.
As patients in methadone maintenance treatment age or become disabled because of AIDS, more enter long-term care facilities. Physicians at these health facilities are not permitted to modify a patients methadone medication as needed because the patients are under the methadone maintenance care of clinics removed from the health care facilities. The Law Revision Commission recommends that the Departments of Mental Health and Addiction Services and of Public Health develop a system that allows such physicians to modify methadone prescriptions for patients in their care.
Should the legislature choose to increase access to methadone, a bill to enact proposals a, b, and c is located in Appendix B, Bill No. 2, page B-2. No legislation is necessary to implement proposals d and e.
C. 2. Parity of insurance coverage for substance abuse treatment. Top
There is virtual unanimity that substance abuse should be treated as a public health problem. Currently, Connecticut has mandated substance abuse insurance benefits under group health policies, but that coverage is limited to confinement for substance abuse treatment in a hospital or other recognized facility. As a result, Connecticuts citizens presently have different limits and coverages -- on lengths of stay and levels of care, treatment modalities, maximum annual or lifetime benefits, deductibles and co-payments, and percentages reimbursed, for example -- for substance abuse services and medical/surgical services, if they have substance abuse coverage at all.
To curb the impact of substance abuse and to reduce significantly the myriad costs associated with it, substance abusers must have early and ready access to appropriate medical services. They must not be deterred from seeking such help by the prospect of financial distress, and their health care providers must be encouraged to provide such help secure in the knowledge that they will be appropriately compensated for their health services. Equal treatment for substance abuse services is the way to achieve the goal of early universal access to appropriate substance abuse health care services. This view has been embraced by a number of experts who have studied the question of parity of health insurance coverage for substance abuse treatment.
The issue of parity is not a new one. Seven states already have parity laws covering mental health or substance abuse; four states are studying the parity issue; and sixteen other states, including Connecticut, have in the past introduced parity bills. Congress has also passed a mental health parity law.
Numerous studies have examined the anticipated ramifications of parity on premium rates under various legislative proposals. For example, in Connecticut, the Office of Health Care Access (OHCA) estimated that mental illness and substance abuse benefits account for approximately $100 of the premium of $2,076 for a single person, and $240 of the premium of $4,946 for a family, or about 5% of the total premium in the benefits package for a small employer PPO plan. OHCA further estimated that the cost of providing parity of benefits between medical/surgical and mental illness/substance abuse increases this premium by $18 per year for an individual, and by $42 for a family. Substance abuse benefits alone account for even less of the annual premium and, therefore, the estimated cost of providing parity would be even less than the figures cited above.
Moreover, the net savings to society, while not precisely quantified, are estimated to be significant in the long run; those societal savings include restoration of health of the substance abusers; restoration and healing of families; less child abuse; fewer highway deaths; reduction in illegal drug trafficking, theft, prostitution and other crime; reduced use of coverage for "medical" illnesses (i.e., prevention of medical complications and their costly treatment); less employee absenteeism; and more employee productivity. Finally, paritys appeal is enhanced by the continued spread of managed care, which provides a mechanism for controlling costs, improving access, and assuring quality in health care delivery without the need for strict limitations on care.
On the public side, the full continuum of substance abuse treatment services is rarely available for Medicaid eligible individuals and families. Failure to provide sufficient services to this population can only lead to increased medical assistance and other costs for the public. The Presidents Commission on Model State Drug Laws concluded that "[m]edical assistance that fails to cover a sufficient level of alcohol and other drug treatment to provide a reasonable prospect of recovery is medically and fiscally unsound and inconsistent with general medical assistance practices of providing sufficient resources to secure recovery where possible."
What is the full continuum of substance abuse services and treatments that should be covered under the proposed parity bill? At a minimum, the services should include screening, assessment, intervention, detoxification, short-term and long-term inpatient rehabilitation, outpatient and intensive outpatient services, family treatment, and methadone maintenance treatment. As to this latter reimbursable item, methadone maintenance is the most thoroughly studied and documented effective treatment for heroin dependence or dependence on other opiates. As is the case with long-term insulin treatment for diabetics or renal dialysis for kidney failure, the benefits of methadone maintenance treatment persist for as long as treatment is provided. While public and private insurance typically covers the costs of insulin and dialysis for as long as treatment is medically necessary, coverage for methadone maintenance treatment is often denied or limited, decreasing access and availability. To improve the health of people dependent on heroin and other opiates and to achieve parity with other medical conditions and treatments, methadone maintenance treatment should be a required covered service, and treatment costs should be covered for as long as they are medically necessary. Again, the long-term savings via medical cost offsets alone would be substantial.
To maximize the early and appropriate provision of substance abuse prevention and treatment services, the legislature should review further and consider as a strategy option placing such services on a par with medical/surgical services in group health insurance policies and in the state Medicaid program. This strategy option is consistent with The Governors Blue Ribbon Task Force on Substance Abuses recommendation of minimum core benefits for substance abuse prevention and treatment, and with the draft recommendations of the Health Care Committee of the Connecticut Alcohol and Drug Policy Council.
In Appendix B, Bill No. 3, page B-5 is a draft of legislation to implement this option.
C. 3. Screening patients for substance abuse care. Training health care professionals in substance abuse issues. Top
a. Screening patients for substance abuse care.
Experts and non-experts agree that substance abuse is a major -- if not the number one -- health problem in this country. Studies suggest that more deaths, illnesses and disabilities occur as a result of substance abuse than any other preventable health condition. Costs related to substance abuse are a major contributor to the countrys total health care bill. Additionally, substance abuses total economic cost to the U.S. economy -- including increased health care costs, poor health, absenteeism and reduced productivity in the workplace, and drug related crime and violence -- each year is astronomical. In 1994 Connecticut spent $2.96 billion on substance abuse costs.
No population group is immune from substance abuse: it affects men and women, and people of all educational levels, ages, racial and ethnic backgrounds. Indeed, "[m]ost substance abusers (70%) in Connecticut are employed, well paid, and well educated." The effects of substance abuse may be felt at birth (newborns exposed to substances taken by their mothers during pregnancy), childhood (neglect and abuse resulting from parents child abuse), and adulthood (family disintegration and employment problems). Moreover, more than 50% of the new AIDS cases in Connecticut are related to substance abuse.
Despite its myriad costs to society, Connecticut is not doing all it reasonably can to address the substance abuse problem. Prevention is the key to reducing these costs, and prevention first of all depends on the ability to identify persons with such problems. Many of our front-line personnel -- primary care providers, and health professionals in hospital trauma settings -- are hampered in their efforts to deal with patients substance abuse problems, primarily for two reasons: lack of training in substance abuse identification and care, and lack of reimbursement for their time and effort. This scenario of lack of training and lack of reimbursement is unacceptable for two reasons: first, the patient is entitled to more complete and timely care, and, second, early identification and intervention is an opportunity to reduce significantly the costs associated with substance abuse.
Medical evidence suggests that substance abuse screening, intervention and treatment are effective for many people, although these activities must occur periodically because substance abuse is an intermittent relapsing chronic disease. These activities should be provided at the earliest opportunity. While it may take a variety of forms, in essence
[s]creening is a process to differentiate people who have (or are at risk of having) a specific medical condition from those who do not. The purpose of screening is to identify conditions at an early stage, even before the onset of a diagnosable disease. Thus, screening may be distinguished from diagnosis, which is usually a more detailed, intensive process to determine what treatment to provide. Screening assumes the earliest possible identification will benefit the health and general well-being of the individual. It also increases the likelihood that low-cost interventions may both reduce immediate harm and prevent in some patients the possible progression to disease that would be more costly to treat at a later time.
In short, "screening is an essential first step in understanding a patients medical needs and determining if there is an underlying substance use disorder."
Screening, followed by appropriate intervention, is important in attempting to curtail the devastating costs associated with substance abuse. Screening and intervention are particularly, though not uniquely, critical in trauma settings. Indeed,
[t]here is extensive evidence and wide agreement in the field that traumatic injury creates a "teachable moment" or a unique opportunity in the course of the addiction process . . . . This teachable moment happens when a patient makes a connection in his or her mind that the traumatic injury is a direct result of AOD [alcohol or drug] use. Those who are able to make the connection may be more open to accepting AOD education or treatment, greatly reducing their chances for reinjury and improving their course of recovery from the injury.
Moreover, "[s]everal factors -- including the rapid advance of managed care -- make this a propitious time in which to transfer SBI [screening and brief intervention] to widespread applications. Changes in the organization and management of health services are placing a premium on preventive care and lower cost interventions."
As of October 1, 1992, each hospital in Connecticut was required to establish and implement "a protocol whereby each patient who shows symptoms of substance abuse shall be provided with informational referrals to (1) entitlement programs for which the patient may be eligible; (2) area substance abuse treatment programs; and (3) appropriate community-based support services." Screening and brief intervention are implicit initial components of such a protocol. The Law Revision Commission conducted an informational survey about each Connecticut hospitals experiences with the statute and, based upon the results of that survey and suggestions from the Primary Health Care Committee of the Connecticut Alcohol and Drug Policy Council, it is clear that section 19a-509e should be expanded and improved, either by statute or by regulation.
It is also clear that "[w]e must overcome the barriers, including lack of training and reimbursement, to the routine use of effective, inexpensive, and brief [screening and] interventions for substance abuse disorders in medical practice." The Law Revision Commission now suggests that the Department of Public Health, in conjunction with health care providers and other appropriate interested persons, study the development of substance abuse screening and intervention protocols for use in hospital admissions and by primary care physicians; study ways to improve the use and effectiveness of section 19a-509e; study ways to recognize and compensate health care providers for their time and effort in substance abuse screening and intervention procedures; and report its findings and recommendations to the General Assembly in 1998. After all, "[w]e treat spinal meningitis to create good health, not to reduce medical spending. Substance abuse should be treated for the same reason. It is a potentially fatal health problem."
b. Training health care professionals in substance abuse issues.
As mentioned above, before treatment there must be diagnosis, and the evidence strongly suggests that physicians regularly miss the diagnosis of substance abuse. A number of reasons account for this state of affairs, chief among them is that physician training has not required that they develop the knowledge, attitudes and clinical skills needed to diagnose substance abuse and to intervene, treat or refer patients as appropriate. Proper physician training is, therefore, essential to early screening, intervention and treatment.
To enhance the early and proper diagnosis of substance abuse and, thereby, the provision of early and appropriate intervention and treatment services, the legislature should review further and consider further as a strategy option legislation requiring initial substance abuse training before licensure for certain health care providers. The Department of Public Health would develop standards for the initial substance abuse training required before licensure.
Additionally, the legislature should review further and consider as a strategy option directing the Department of Public Health to study issues related to a continuing substance abuse education requirement for certain health professionals, particularly for primary health care providers such as medical doctors and osteopathic doctors in family practice, internal medicine, pediatrics, and obstetrics/gynecology; physician assistants; and nurses. Currently, the state of Connecticut has little or no initial education (apart from the requirements of a degree or certificate) or continuing education requirements of any kind for these individuals.
According to a recent American Medical Association publication, most state licensing boards require some level of physician continuing medical education. Interestingly, Kentucky requires physicians and osteopaths, among others, to complete educational courses on the transmission, control, treatment and prevention of HIV/AIDS, another major public health concern often related to substance abuse. Just last session, the General Assembly required each licensed acupuncturist to complete successfully a course in clean needle technique prescribed by the Department of Public Health. Thus, there is precedent for the Commissions suggestions.
These proposals are consistent with the draft recommendations of the Health Care Committee of the Connecticut Alcohol and Drug Policy Council as well as the recommendations of The Governors Blue Ribbon Task Force on Substance Abuse. A draft of legislation to implement these options is in Appendix B, Bill No. 4, page B-5.
C. 4. Availability of treatment slots in alternative to incarceration programs and halfway houses. Top
It costs, on average, several thousand dollars more per year to imprison a Connecticut inmate than it does to enroll an eligible convicted person in one of the states residential substance abuse treatment programs, or to parole a soon-to-be released inmate into a halfway house. Notwithstanding this fact, the state sends to prison in any given year over 250 drug-dependent persons who, but for the lack of space, could otherwise be safely and effectively supervised and treated in a residential community-based setting. Likewise, an additional 250 inmates who have served all but about eight months of their sentences, who have participated in treatment programs while incarcerated, and who could safely be supervised in halfway house residential treatment programs continue to be incarcerated for a lack of treatment slots.
The cost saving of providing adequate treatment slots is both obvious and compelling. First, in the short term, the state pays more than is necessary to house, feed, and supervise these individuals - more than twice as much as is necessary: $18,000 vs. $8,700. Second, in the long term, substance abusing individuals who are incarcerated are much more likely to reoffend than those who participate in alternative programs that include substance abuse treatment. Approximately $4,650,000 would be saved in incarceration costs per year.
The legislature should review further and consider as a strategy option an increase in funding for two types of programs: 100 new treatment slots for halfway house treatment programs for paroled inmates and released inmates supervised by the Department of Correction and 100 new residential treatment slots for the alternative to incarceration programs run by the Judicial Departments Office of Alternative Sanctions and other agencies. Each residential treatment slot is used approximately 2.5 times each year; thus, 500 offenders who would otherwise be incarcerated would be placed in supervised, more effective, and less costly residential community-based treatment.
The types of programs in which the additional slots would be created are described in more detail below.
Halfway Houses (Transitional Supervision). The Department of Correction currently operates 562 beds in the halfway house treatment programs. Participants must have sentences of fewer than two years, have participated in drug programs while in prison, and be determined by the correction department not to be a risk to public safety. Generally, qualified inmates are transferred from prison to a halfway house when they have completed all but eight months of their sentences. They spend about four months in the halfway house (including residential drug treatment) and another four months in a community supervised release setting.
Office of Alternative Sanctions. This office operates several inpatient residential treatment programs for offenders who would otherwise be incarcerated, but who are considered good risks for supervised community-based substance treatment. Fresh Start is one state residential alternative to incarceration program available for substance abusing female youthful offenders and their children. The program, Fresh Start, includes slots for 22 female offenders and 11 of their children in Hartford. In a structured environment, it provides clients with comprehensive services to address the complex, interrelated problems (including substance abuse) that prevent them from being successful citizens. Project Green is a four month residential service program developed by the Office of Alternative Sanctions, the Office of Adult Probation, the Department of Environmental Protection, and the Department of Mental Health and Addiction Services. There are currently slots available for 24 participants in New Haven and 16 participants in Hartford. Program clients receive structured inpatient substance abuse treatment and education during the evening hours and on weekends. At the same time, they are required to perform community service for the DEP in state parks and forests four days per week for a minimum of two months. After this two month introduction, they are required to pursue employment and/or vocational opportunities while continuing to reside at the program and participate in substance abuse treatment and education. Throughout the program, clients receive individualized case management and life skills training. Clients are referred to the program by either Adult Probation or the Department of Mental Health and Addiction Services. Approximately 80 percent of the clients who begin the program complete it.
An act to implement this strategy option is in Appendix B, Bill No. 5, page B-15.
C. 5. Reduce barriers imposed by certificate of need (CON) process for expanded treatment programs. Top
Connecticuts certificate of need (CON) process "requires that health care providers obtain a government determination of public need before undertaking major capital expenditures or adding or deleting beds or services." CONs purpose "is to assure the appropriate allocation of state health care resources."
The Governors Blue Ribbon Task Force on Substance Abuse found that "[t]here is an immediate need to reduce the rigidity and complexity within the regulatory and licensing rules that impact the provision of substance abuse treatment services" in this state. As the Task Force explained, "[p]resently, substance abuse facilities must apply for a Certificate of Need if they intend to introduce new services, relocate existing services, or change the services they offer at an existing location. This time-consuming process can take months to complete, resulting in added costs to providers and inefficient utilization of treatment beds and outpatient slots. CON application fees place a further burden on providers. There is some question as to whether the Certificate of Need process for substance abuse facilities, as currently structured, is serving a meaningful purpose." In the light of these considerations, the Task Force recommended exemption of, or significant modification to, the CON requirements as they relate to addiction service programs. The substance abuse treatment programs currently exempt from the CON process by statute are simply too few.
To facilitate "timely access to all Connecticut citizens who need prevention, intervention and treatment services" for substance abuse, the legislature should review further and consider as a strategy option modifying the CON program so as to exempt from its requirements the provision of substance abuse services or treatment, and to raise from $1 million to $2 million the threshold limit for capital expenditures related to the provision of substance abuse services or treatment. In this way, substance abuse treatment providers will have greater flexibility in adapting to the changing needs of the service population and, thereby, can maximize the provision of services at the earliest possible opportunity.
This proposal is consistent with the recommendations of The Governors Blue Ribbon Task Force on Substance Abuse. A draft of legislation to implement this proposal is in Appendix B, Bill No. 6, page B-15. The proposed exemptions have been placed in section 1 of the bill amending section 19a-154 by adding a new subsection (g) (4) and in section 2 of the bill amending section 19a-155 by adding language raising the threshold limit. In addition to the new exemptions related to substance abuse services or treatment, the current exemptions from the CON program have been moved from section 19a-5b into the CON statutes themselves as section 19a-154(g) (1), (2) and (3) and section 19a-155(g) (1), (2) and (7). This will clarify the existence of exemptions and gather all exemptions together in the CON statutes to make it easier for the practitioner to locate them.
C. 6. Exemption from federal denial of welfare. Top
On August 22, 1996, President Clinton signed the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (P.L. 104-193) (the "Act"). Section 115(a) of the Act denies federal cash welfare (now known as Temporary Assistance for Needy Families) and food stamp eligibility to any individual convicted under federal or state law of "any offense which is classified as a felony by the law of the jurisdiction involved and which has as an element the possession, use, or distribution of a controlled substance (as defined in section 102(6) of the Controlled Substances Act (21 U.S.C. 802(6)))." However, the Act also expressly allows states to reject that policy. The Act gives states three choices: (1) to do nothing, and thereby be subject to the Act; (2) to exempt its domiciliaries from the disability - that is, allow its domiciliaries to receive benefits; or (3) to limit the period of time for which the disability will apply to the states domiciliaries. The latter two options, exempting domiciliaries or limiting the disability, require state legislation to be exercised. States that exercise either of these options are not financially, or otherwise, penalized by federal law for rejecting the federal policy.
The ramifications to the convicted substance abuser of disability under Section 115(a) of the Act are severe, and the disability may be for the convicted persons lifetime. The Legal Action Center, a non-profit advocacy group involved in human services issues, notes that " the provision will make it harder for [residential substance abuse] treatment programs . . . to survive financially. These programs, many of which cannot get Medicaid reimbursement, pool their clients public benefits (including AFDC and Food Stamps) to support all the components of treatment. For example, a substance abuse treatment program in Florida estimates that 80% of its clients have felony convictions, and the loss of funds supporting clients in treatment could leave significant gaps in the programs budget. " The Legal Action Center also predicts that the provision will result in an increase in crime as individuals lose support and access to substance abuse treatment and other essential social services and, further, "will impede the efforts of drug courts and other initiatives that divert addicted offenders from prison to treatment."
Joseph Califano, Jr., chairman of the National Center of Addiction and Substance Abuse at Columbia University observed that a similar initiative to deny federal Supplemental Security Insurance benefits to persons disabled by alcohol or drugs would increase the crime rate and would be a false economy.
If we were intelligently using the reduction in benefits to get more ... [substance dependent persons] into treatment, it would make sense as public policy. But to simply cut them off is insane. Its going to increase homelessness, increase the incivility of our urban life and just savage [dependent individuals].
The Law Revision Commission believes that the federal policy of denial of benefits to otherwise eligible substance abusers is shortsighted, undermines efforts to address substance abuse through treatment and social programs, and jeopardizes the states ability to "take every practical step within its sphere of authority and responsibility" to devise a comprehensive and effective strategy to prevent substance abuse and to treat substance abusers. Substance abuse wreaks havoc on families and on the economy. The state policy should minimize those costs, where possible by successfully treating substance abusers and returning them to society as economically viable, productive citizens. Denying benefits that make treatment and a return to productivity possible is, therefore, poor public policy, harmful to the individual, to his family, and to society at large.
To further the State of Connecticuts goals as described above, the legislature should review further and consider as a strategy option exempting the state from the operation of the federal welfare disability, Section 115(a) of the Act, as it is permitted to do without federal penalty or recrimination. That exemption is necessary if Connecticut, as suggested by this report, is to create and implement a comprehensive and cost-effective system for addressing substance abuse as a public health issue.
Legislation to activate the exemption is set out in Appendix B, Bill No. 7, page B-22.
C. 7. Drug education in local schools. Top
Connecticuts education policy currently addresses the problems of substance abuse. Section 10-16b of the General Statutes requires that drug abuse prevention be taught as part of the required health and safety instruction in the public schools. Section 10-19 further requires that the effect of alcohol and drugs, as well as of nicotine, be taught each year to all students in all public schools grades. Under section 10-220a, school boards must provide in-service training, approved by the state board, to provide teachers, administrators, and guidance personnel with information about the nature and relationship of drugs and alcohol to health and personality development. School boards are also required to adopt policies and procedures for dealing with student use, sale, or possession of drugs on school grounds. CGS section 10-221. Under section 10-19a, the school superintendent may designate a substance abuse prevention team, and section 10-19b allows advisory councils established under the federal Drug Free Schools and Communities Act of 1986 to serve as a resource for public schools.
Pursuant to these authorities, the State Department of Education has developed a curriculum guide specifically on substance abuse. That guide sets learning objectives and activities geared to four major grade groupings: primary, upper elementary, middle school or junior high, and high school. The guides objectives are intended to give students the knowledge to act responsibly. The skills they develop are intended to enable them to evaluate their behavior, take responsibility for their actions, and understand the consequences.
The Department of Education also works with the Department of Mental Health and Addiction Services (DMHAS) to develop a community-based partnership for drug abuse prevention. In that effort, local agencies such as regional action councils, local prevention councils, and other organizations are working toward creating a prevention infrastructure on a community level.
Notwithstanding these activities, two areas of current policy raise concerns. Current law does not ensure that substance abuse education receives the appropriate level of priority in all communities, and it does not ensure that where a school becomes aware of a substance abuse problem, an appropriate program is available to address the students needs.
The level of attention granted to substance abuse education was specifically delegated to local or regional boards of education by Public Act 95-182, which provided that "the content and scheduling of [substance abuse] instruction shall be within the discretion of the local or regional board of education." A consequence of that local control is that the level of substance abuse education that is provided in the communities is not systematically monitored.
According to the Office of Legislative Research, school districts tend to offer about 25 hours of health education a year, on average, part of which is devoted to drug abuse prevention. However, particular districts may, in fact, offer substantially less attention. Moreover, because the content of the programs is locally determined, it is not clear that all programs being offered meet the most effective standards as they are currently understood. To the extent that programs are proven effective, it may be that more resources should be directed their way.
Because prevention is a critically important component of drug abuse policy - because it is so much more cost efficient and effective to prevent a problem than it is treat it - drug abuse prevention in the schools should be given a high priority on a statewide basis. Giving those programs priority will require that the state monitor the programs currently in place and offer additional assistance and guidance to those districts with programs that do not measure up. Moreover, outcome evaluations are now ongoing on the effectiveness of the various prevention approaches. As information is developed, the state should ensure that the most effective programs are put into practice.
The Law Revision Commission, therefore, recommends that the State Department of Education conduct an ongoing survey of drug abuse prevention programs in the communities, assess the effectiveness of those programs in the light of the expertise available, and offer additional guidance to local and regional districts where deemed necessary.
Moreover, as noted above, there is no systematic program in place to ensure that each school district has access to appropriate guidance, counseling, and treatment programs when a problem with student substance abuse is encountered. While many districts do, in fact, have substance abuse counselors and programs directed to substance abuse, it is apparent that others may not or do not. That variation in the quality of service available can not be tolerated if the state is to ensure that substance abuse problems are addressed as early and effectively as possible. Again, the state commitment requires that the issue be monitored on a statewide basis.
The Commission, therefore, recommends that the State Department of Education survey and monitor the availability of guidance, counseling, and treatment programs for students in each of the local and regional districts. As part of that process, local and regional boards should be required to report to the Department with a comprehensive list of those services in use. Where services are unavailable, the need for such services should be identified. Where inadequacies cannot be addressed within available resources, the Department should report to the General Assembly on those needs.
Finally, as is recognized by the current community-based action programs, preventing substance abuse requires a broad-based approach addressing not only the substance abuse itself but also the conditions leading to it. Child-oriented programs, community centers, sports programs, and other student activities all direct children toward constructive activities. While those programs add to the opportunities and experiences of children in many ways, they may also provide a cost effective approach to substance abuse in the schools. Again, however, the availability of such programs is determined on a local basis and remains essentially unmonitored statewide.
Because deficiencies in the availability of programs may be exacerbating the substance abuse problem among teenagers, the availability of such programs is a matter of state concern. A first step to addressing any deficiency will require a systematic effort to assess program availability.
The Law Revision Commission recommends that the state Department of Education undertake such an assessment in coordination with its current community-based drug prevention initiatives. Pursuant to that assessment, the Department should report to the legislature as to localities lacking in available community based programs for children and adolescents.
C. 8. Access to clean syringes. Top
At least 20 percent of injecting drug users (IDUs) in the Hartford, New Haven, Bridgeport, Danbury and Waterbury areas are HIV-positive. Distressing as that statistic sounds, it represents good news. In Hartford for example, only three years ago, approximately 55 percent of this segment of the population was infected with the virus that causes AIDS. This dramatic reduction in the rate of infection can be traced to a change in state law that took effect in July 1992. Since that time, it has been legal in Connecticut to buy, sell, or carry up to 10 hypodermic needles and syringes without a prescription.
When IDUs share dirty needles, they engage in one of the highest risk activities possible for the spread of AIDS. The Connecticut Department of Public Health finds that by decriminalizing the limited sale and possession of syringes, Connecticut has reduced needle sharing by 40 percent. This is a remarkable behavioral change. By a simple statutory revision, and without spending a dime, the General Assembly took a giant step towards improving Connecticuts public health. At the same time, there is no evidence that needle decriminalization has increased the use of drugs. Rather, it may have increased the number of IDUs who entered treatment programs, as a result of referrals from needle exchange programs.
The Law Revision Commission believes that public health may well be better served if the current 10-needle limit were increased to a number that more nearly meets the demands of public health. Distribution of clean needles to IDUs has a proven record of reducing the spread of AIDS in Connecticut. It appears likely that increasing its reach will increase the public health benefit. Thus, the legislature should review further and consider as a strategy option amending the statute authorizing Connecticuts needle exchange programs, and amending the statute prohibiting the sale or possession of more than 10 needles. To be consistent with these changes, CGS section 21a-267 (possession of drug paraphernalia), would also need to be amended.
The average IDU injects between 2 and 2.5 a day. Thus, if an IDU were to obtain new, clean syringes once per week, he or she would need approximately 14 to 18 syringes a week. At the same time, experience in the New Haven needle exchange program suggests that IDUs give approximately 25% of the clean syringes they obtain to other IDUs. Factoring in this secondary distribution effect, an IDU might reasonably use 23 needles in a week. Because needles come in packages of 10, an increase in the number of allowable needles would need to be a multiple of 10.
This change is expected to facilitate the distribution of clean needles to IDUs in two ways, and thus to reduce needle sharing.
1. Primary IDU distribution. The most obvious result of increasing the 10 needle limit will be to increase the number of needles that IDUs can purchase and carry. As a result, IDUs will be able to ensure that they have enough clean needles when pharmacies and needle exchange programs are not available to them.
2. Secondary distribution. Perhaps more important, it has been demonstrated that IDUs who obtain clean needles often distribute them to other IDUs. Some IDUs either cannot or do not take advantage of the opportunity to purchase clean needles from pharmacies or obtain them from needle exchange programs. This secondary distribution of clean needles has the same health benefits in reducing the spread of disease as does the primary distribution.
Appendix B, Bill No. 8, page B-22 contains a bill to enact this strategy option.
C. 9. Definition of drug dependence. Top
A "drug-dependent person" as defined in section 21a-240(19) is a person who "has developed a physical and psychic dependence" on drugs. This criteria of "physical and psychic dependence" does not correspond to any currently-accepted definitions of drug dependence within the health care profession. The Department of Mental Health and Addiction Services has called the definition "vague and not functional in determining drug dependency for the court."
The definition also directly conflicts with the definition of "drug-dependent person" in section 19a-126 of the general statutes where, in contrast to the ambiguous language in section 21a-240(19), "drug-dependent person" is defined as a person "who has a psychoactive substance dependence on drugs as that condition is defined in the most recent edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders." Instead of the vague criteria of "physical and psychic dependence," this definition requires that an assessment of a drug dependent person conform to currently accepted DSM criteria. Similar language is also used in section 46b-120 which defines "drug-dependent child" as "any child who has a psychoactive substance dependence on drugs as that condition is defined in the most recent edition of the American Psychiatric Associations Diagnostic and Statistical Manual of Mental Disorders."
The legislature should review further and consider as a strategy option revising the definition of drug-dependent person in section 21a-240(19) to reflect the clear diagnostic standards required in sections 19a-126(7) and 46b-120. In addition, section 21a-240(18), which defines "drug dependence" in vague terms as "a state of physical or psychic dependence," should similarly be revised to create consistent language in the statutory definitions. Appendix B, Bill No. 9, page B-25 contains a draft of legislation to implement this strategy option revising section 21a-240(18) and (19).
C. 10. Utility of Connecticuts current medical marijuana statutes. CGS sections 21a-246 and 21a-253. Top
Since 1981, Connecticut has recognized the medicinal value of marijuana by permitting physicians to prescribe marijuana as a medication to treat certain patient disorders: glaucoma and the side effects of chemotherapy. That policy is embodied in CGS sections 21a-246 and 21a-253.
Connecticuts legislation was part of a nationwide policy shift begun in 1978 in which thirty-six states enacted legislation, in the face of federal prohibitions, to permit patients to use marijuana for medicinal purposes. These laws remain in effect in twenty-four states. State legislation concerning medical access to marijuana generally falls into five categories: 1) therapeutic research programs; 2) prescriptive or pseudo-prescriptive authority; 3) scheduling marijuana under state controlled substances acts in a manner that allows its medical use; 4) medical necessity defense, and 5) removal of state criminal liability and penalties.
Two factors restrict the application of Connecticuts policy permitting medicinal use of marijuana: i.e., the number of disorders for which marijuana can be used is limited and pharmacies cannot carry marijuana to fill prescriptions written by physicians. In addition, without a change in federal law, patients using marijuana and physicians or pharmacies dispensing it still face possible criminal charges for violation of federal law.
Given these and other limitations on the use of marijuana for medical purposes, several states - California, Ohio, Washington, Arizona, and Massachusetts - containing 22% of the nations population have in recent months made efforts to address the availability of medicinal marijuana. Below is a summary of the actions in those states:
Washington. The state of Washington passed legislation in March 1996 allocating $130,000 to two medicinal-marijuana projects. Under the first project, the state can seek approval from the federal government to become a source of marijuana for research purposes. The second project will research the effects health of medicinal marijuana.
Massachusetts. Also in 1996, Massachusetts Governor William Weld signed into law a bill directing the Massachusetts Department of Public Health to adopt rules and regulations within 180 days to establish a marijuana medical research program. The bill also anticipates a medical necessity legal defense in the future.
Arizona. In a statewide initiative in November 1996, Arizona voters adopted a provision that permits a physician, when supported by a second medical opinion, to prescribe marijuana (and other controlled drugs) for medicinal purposes to seriously ill or terminally ill patients. A patient who uses or possesses a prescribed controlled substance would not be subject to criminal penalties.
California. California voters adopted Proposition 215 in November 1996 which allows a physician to authorize the medical use of marijuana for certain disorders. A patient who has a physicians recommendation for medicinal use of marijuana is not subject to a criminal conviction on a charge of possession marijuana, although the patient is at criminal risk for sale or distribution.
Ohio. Similarly, a 1995 revision to the Ohio code gives a person a defense to a charge of possession of marijuana if the possession is pursuant to a physicians prior written recommendation for medicinal purposes.
If Connecticut legislators choose to make Connecticuts medical marijuana statute more available to treat disorders, revisions based on the approaches in other states should be considered. Using these approaches, Connecticut could permit the medical use of marijuana for properly screened patients under a physicians care while continuing to prohibit its use for nonmedical purposes. Below are key features of such an approach:
A physician may make a written recommendation for use of marijuana for specific disorders: glaucoma, side effects of chemotherapy, neurological disorders such as multiple sclerosis, and acquired immune deficiency syndrome (AIDS).
To issue such a recommendation, a physician-patient relationship must exist and the physician must determine that the patient is faced with clear and imminent harm from the disorder, that marijuana would effectively abate the harm, and that no alternative would be equally effective for the patient in abating the harm.
The written recommendation must meet the statutory standards of a prescription and must be for no longer than six months.
The recommendation must identify the disorder for which the marijuana is to be used.
A person using marijuana pursuant to such a physicians recommendation would not be subject to criminal liability for possession.
Physicians making such recommendations must register with the Commissioner of Consumer Protection.
Diversion for nonmedical purposes is not permitted.
A physician-designated caregiver for a disabled patient would have statutory protections.
The list of disorders for which marijuana may be medically administered is expanded to include AIDS and neurological disorders such as multiple sclerosis and epilepsy. Anti-convulsive effects and spasticity reduction have been reported, and many AIDS patients report that smoking marijuana reduces their nausea, increases their appetite, reduces pain and generally improves their well-being. Although some states have expanded medical use of the drug beyond these four disorders, case studies and anecdotal information support limiting the medical use of marijuana to these additional conditions.
Specifically, amendments would:
a. Revise section 21a-253 (Possession of marijuana pursuant to a prescription or written recommendation by a physician.) as follows:
Subsection (a) permits an individual to possess, cultivate, grow or have under his or her control marijuana for his or her own medical use under a physicians authority. Subsection (a) provides also that the marijuana may be grown or kept by a caregiver designated by the physician, in accordance with subsection (d), for the patients use only and may not be distributed by an individual to others (other than by a physician in accordance with section 21a-246). This provision is not intended to permit the operation of "buyers clubs" or "users clubs" as exist in other states. Further, the person must show that he possesses or is growing the marijuana either pursuant to a prescription from a licensed physician in accordance with section 21a-249 and section 21a-246, or pursuant to the written authorization of a physician, issued in accordance with subsections (c) and (d) of this section. If the legislature repeals section 21a-278 as elsewhere discussed in this report, the reference in subsection (b) to section 21a-278 should be removed.
New subsection (b) provides that a person who possesses, cultivates, grows or has under his control marijuana pursuant to either a prescription or written doctors authorization is not subject to criminal liability for possession of marijuana. To obtain the benefit of the defense, the prescription or authorization must have been issued before an arrest.
New subsection (c) requires physicians wishing to authorize the medical marijuana to register with the Commissioner of Consumer Protection. The Commissioner must maintain a current list of physicians registered to authorize marijuana for patients. The registry is intended to aid police and prosecutors in determining the authenticity of a written authorization. The subsection relieves physicians from criminal liability or from professional sanctions (such as having their licenses revoked or suspended) for authorizing a patient to use marijuana or for supplying marijuana to a patient where the physician can show that, in his professional judgment: (1) the patient faces clear and imminent harm from the medical conditions specified; (2) marijuana would be effective in abating that harm; and (3) no alternative is legally available that would abate the harm equally as effectively for the patient. The latter provision is intended to address the experience of many patients for whom legal alternatives (Marinol, for example) are ineffective. Thus, the mere availability of legal alternatives does not end the inquiry. The legal alternatives must actually abate the harm to the particular patient to preclude his substituting marijuana, or to prohibit a physician from recommending marijuana to that patient.
New subsection (d) requires an authorization to be signed by the authorizing physician, to identify the disorder for which the physician is issuing the authorization, and to be written in accordance with subsections (a) and (b) of section 21a-149 governing the form and content of prescriptions. The physician may designate a caregiver for the patient in the authorization. The caregiver could, under subsection (a), grow marijuana for the patient who may be too ill to do so himself. An authorization is valid for six months after its date of issuance (which must be noted on the authorization). After that period, the patient must obtain a new authorization to be protected by the statute.
b. Revise section 21a-246 (License to manufacture, wholesale, supply, compound, etc. Exception. License fees. License to possess and supply marijuana.) to subject its provisions to those of section 21a-253, revised as discussed above.
The revised provision continues to permit the Commissioner of Consumer Protection to license physicians to possess and supply marijuana for the treatment of glaucoma or the side effects of chemotherapy, and adds neurological disorders and acquired immune deficiency syndrome (AIDS) as conditions for which marijuana may be prescribed.
Appendix B, Bill No. 10, page B-25 contains a bill that would implement such changes.
C. 11. Pilot research program for medical maintenance of chronic out-of-treatment opiate-dependant persons. Top
The health threat posed by injecting drug users in the age of HIV and AIDS is, perhaps, the most daunting, disturbing aspect of societys drug problems. Injection drug use accounts for the overwhelming number of new HIV infections in Connecticut. Thus, injection drug use is the most important risk behavior leading to the spread of AIDS in the state, impacting all races of needle-sharing heroin users. The impact is especially severe among Hispanic and black Americans between the ages of 25 and 44. AIDS is the leading cause of death in those age groups, and over half of those deaths are related to injection drug use
The practice by injection drug users of sharing of contaminated needles also threatens spreading AIDS to children and other non-drug users. Injecting drug users who have contracted AIDS spread the disease to spouses, sexual partners, their children, and others with whom they trade sex for drugs. The spread of AIDS has continued notwithstanding intensive state and federal efforts to suppress drug use through the criminal justice system. The Commissions report on drug policy identifies a number of initiatives to ensure that those who are at risk receive treatment, education, training, and a legitimate opportunities to put self-destructive drug use behind them. In strategy option C. 8, above, the Commission points out how Connecticuts needle program, an important initiative to reducing the public health risk from the spread of AIDS and other diseases, can be improved.
Those initiatives should help. Societys longstanding experience with drug use suggests, however, that, notwithstanding these efforts, a core group of chronic long-term heroin-dependent users exists, and will likely continue to exist in the foreseeable future, that is impervious to existing treatment options or criminal sanctions. Because of their drug dependence, limited life skills, and other disabilities, these chronic heroin users are simply incapable, or unwilling, to manage their lives to avoid high risk conduct. With their high risk practices, they are either HIV positive or at high risk of contracting the disease. Repeat incarcerations and treatments have failed to modify their behavior and little reason exists to believe that a new round of traditional interventions will be beneficial. A significant aspect of our current approach is to attempt to warehouse those persons in prisons at costs upwards to $30,000 per year for long stretches. Moreover, a large portion of available treatment resources are diverted to fruitless treatment of this relatively small number of intractable users. At any given time, moreover, only a minority of these persons are locked up or in treatment. During periods when the person is in the community, and, perhaps, even during periods of incarceration, the chronic drug user is a primary vector threatening himself and others with the prospect of contracting a fatal disease. In short, current programs have proved both costly and ineffective in addressing the problem of some chronic, untreatable hard-core users.
The Governors Blue Ribbon Task Force on Substance Abuse notes the need for new initiatives with respect to these chronic drug users, commenting, with respect to chronic users generally (including chronic alcoholics and poly drug users):
"Steps can and should be taken to improve the lives of these very sick persons and to lessen their inappropriate consumption of substance abuse treatment resources. Alternative programming designed to meet this populations very special needs should be tested by pilot programs in areas of the state that experience the highest incidence of costs due to these types of cases. Appropriate programming for these individuals would relieve the negative cost impact of their repeated use of expensive services that are neither appropriate, nor effective for their needs."
The National Institute on Drug Abuse has also called for "innovative strategies to reduce high-risk drug-using behaviors and to recruit, engage, and retain [out-of-treatment, chronic] drug users in treatment." A special committee of the American Bar Association has also called for increased treatment focused on the chronic drug user and for innovative research into treatment, including pharmacotherapies.
A new treatment approach for these chronic drug users is desperately needed if the state of Connecticut hopes to control AIDS and effectively use available resources. One such possible treatment approach is currently being used, with reported success, in Switzerland. Notwithstanding its controversial nature, this program deserves serious consideration as an approach to limiting the spread of AIDS and avoiding the waste and ineffective use of available treatment resources.
Under the Swiss treatment program, which is subject to strict medical and other controls, selected hard-core untreatable heroin users are maintained on pharmaceutical heroin that is hygienically administered in a supervised clinical environment. Such a program has the potential of reducing the incidence of high risk injections on the street and the resultant spread of disease. The Swiss program has also shown promise as an approach to improving the physical and mental health of the user, improving that persons social integration, reducing his illegal activities, and reducing or controlling the persons ongoing drug use.
Patients were admitted to the Swiss treatment program only after a comprehensive assessment procedure that targeted hard-core drug users who had not benefited from conventional drug treatment. The Swiss entry criteria were as follows:
At least two years of opiate dependence from consumption of heroin or another opiate on a daily basis;
At least two failed attempts at treatment, including detoxification, methadone maintenance, and residential treatment;
Clear evidence of psychological or health problems related to drug use;
Agreement to participate in the treatment and counseling program;
Agreement to comply with the scientific aspects of the program;
Agreement to relinquish driving privileges.
Based on initial success with 250 participants, the program expanded to 1000 participants: 800 received injectable heroin each day in prescribing programs in fifteen different cities; 200 participants received morphine and injectable methadone. The heroin is administered at clinics open every day. The amount of the dose was determined by whatever the participant wanted. Most clinics allowed up to one gram of pharmaceutically pure heroin a day, administered in up to three visits a day. Others allowed higher doses. More intensive research on participants in one of the Zurich programs found that clients opted to stabilize their daily dose and even to cut back. All injections were administered in an injecting room where the staff prepared the syringes and the participants injected themselves. A waiting room was provided for before and after the injection.
The government cost was approximately $50 per day. Participants were required to pay approximately $7.50 or about 7% of the street price.
A participant could be banned from the program for driving, for bringing drugs in or out of the facility, for failing to comply with research requirements such as drug testing and group therapy, or for exhibiting violent behavior.
Foremost, the Swiss believed that the program would reduce the spread of AIDS and reduce the criminal activity of participants. They also felt that the regularized maintenance program would allow the addicts to reassert control over their lives, allowing them to stabilize their consumption habits and avoid the underground milieu of criminal drug sales and use. The program also sought to assist addicts by helping them with living arrangements, employment, and relationships.
The Swiss concluded that the feasibility of heroin maintenance programs was demonstrated by their trial which incurred no major negative incidents. The retention rate in treatment was approximately 80% for fifteen months. The Swiss considered four primary factors in evaluating the program: the feasibility and public acceptance of the program; the attractiveness of the program to the targeted chronic substance abusers; retention rates; and induced behavioral changes. As reported by Swiss researcher Ueli Locher, there were no drug overdoses, there was no leakage or black market diversion of heroin from the facilities, and there were no problems reported of disruption in the neighborhoods. Locher reported that the maintenance program broke the ties of participants to the illicit drug markets and that participants experienced general improvement in their lives.
The 80% retention rate in treatment is significant because these clients, who all had chronic dependence, had previously rejected or done poorly in treatment. The 80% retention rate included those who stayed in the heroin maintenance treatment program (67%) and those who left the program to receive methadone treatment or other treatment services.
In a more intensive study of 366 participants, Locher found:
Participant use of heroin stabilized and tended toward declining use;
Participants experienced improved physical health;
Participants experienced improved social integration such as housing and employment;
Participants experienced financial relief;
Cocaine and other illegal non-opiate drug use (except marijuana) also declined.
The relevance of the Swiss program to Connecticut is obvious. Connecticut needs effective programs that will control the proliferation of AIDS. Connecticut needs treatment programs that will address criminal activity of the most intractable chronic drug users. Connecticut needs cost-effective programs that reduce the social harms spread by illicit drug use. The Swiss heroin-maintenance program promises to address those needs by reducing the harms spread by the chronic heroin user. Although a relatively costly treatment program (about $15,000 per year in Switzerland), the program is far less costly than untreated drug dependence with its attendant health risks for the spread of AIDS, criminal liabilities, and other serious social consequences.
Societys experience with opiates has well demonstrated their dangers. Providing drugs in a culture attuned to zero-tolerance is apparently incongruous. Yet, one does not have to condone substance abuse to recognize that, in the day of criminal activities that support drug dependence, AIDS, infectious hepatitis, and tuberculosis, it is of critical importance to bring the worst chronic substance abusers into the health system. The state should take cognizance of scientific and fiscal realities and health necessities.
Given our lack of successful alternatives to traditional treatment and incarceration for chronic users, the apparent success of a controlled medical program in Switzerland, and the fact that the Governors Blue Ribbon Task Force and other reliable authorities have called for alternative pilot programs to address the needs of this chronic population, such a program must receive serious attention for those chronic abusers, especially those who are HIV positive. The legislature should give such a research program further consideration. Appropriate waivers by federal authorities must, of course, be obtained. Should the legislature choose to conduct a pilot study, Appendix B, Bill No. 11, page B-28 contains an act that would establish such a pilot program for medical heroin maintenance of chronic, untreatable heroin users.
D. CRIMINAL JUSTICE STRATEGY OPTIONS. Top
D. 1. Drug courts. Top
Since July 1996, the Judicial Department has operated a Drug Session in New Haven Superior Court three days each week. A Drug Session is planned for Bridgeport in the near future. Under this program, drug-dependent defendants charged with possession of controlled substances in New Havens G.A. 6 can apply to have their cases transferred to a single docket dealing exclusively with drug cases. The focus of the Drug Session is to coordinate the responses of the judicial, treatment, social service and education systems to help defendants get off drugs and to reduce drug-related criminal activity. An important component in the success of drug courts is direct judicial contact with an accused on a regular ongoing basis during his or her time in the program.
Defendants have various incentives for applying. If accepted, those without prior criminal records can have the charges against them dismissed if they complete court-ordered drug treatment programs. If they are unsuccessful, these defendants cases are returned to the regular criminal docket. Defendants with minor criminal records can plead guilty, with the agreement that the court will vacate their pleas and dismiss the charges against them if they complete the programs. Finally, defendants with more extensive records can plead guilty with the understanding that they will face a particular term of incarceration or other penalty if they do not complete the court-ordered drug education and treatment programs.
Judges in other criminal courts have discretion to order these types of remedies, but three things make the Drug Session unique:
First, the Drug Session deals exclusively with drug-dependent defendants. It is designed to channel these defendants into appropriate treatment programs, while providing ongoing incentives to keep them motivated and participating. The New Haven Drug Session has one judge, Judge Jorge Simon. While their cases are pending, defendants are required to appear before Judge Simon once every two to four weeks. The program length is generally about 48 weeks.
Second, prosecutors and defense attorneys play a less adversarial role in Drug Session than they do in traditional criminal courts. In the drug court, they function first as members of a team dedicated to the goal of rehabilitating the defendant. In New Haven, Assistant States Attorney Robyn Stewart Johnson and Assistant Public Defender James M. Chase handle all cases. Each is involved in the decision of whether to admit a particular defendant to the program.
Third, the judge directly oversees the defendants progress in the programs. At any time, the judge can terminate the program and impose whatever sanction was agreed upon for failure. As an alternative, the judge can impose intermediate sanctions, such as confining the defendant to jail for a few days, but allowing the defendant to continue under the Drug Sessions supervision. At every step in the process the judge has a service coordinator available to provide referrals to appropriate treatment programs and design effective judicial responses. While the decisions to grant or deny a defendants application, and what remedies to fashion are the judges alone, the service coordinator in New Haven Superior Courts Drug Session sits next to the judge on the bench.
While their cases are pending in the Drug Session, participants agree to several conditions: (a) a year of daily treatment with random urinalysis; (b) bi-weekly court appearances in front of the same judge; (c) release of treatment information for court monitoring purposes; and (d) keeping all treatment and other required appointments. A defendants progress is assessed by a team made up of the judge, court personnel, prosecution and defense attorneys, probation staff, and others.
Drug court is intended to reduce reliance on incarceration as a response to the drug problem, provide treatment to nonviolent drug using defendants, provide early and continuing judicial supervision for nonviolent drug abusing defendants, and reduce recividism. As of May 1996, drug courts have been implemented in 29 other states. While it costs an average of $25,500 to incarcerate a state prisoner each year, the Judicial Departments Office of Alternative Sanctions estimates it costs only $3,000 to supervise and treat a defendant in the Drug Session.
Not only are drug courts less costly than prisons as a way for dealing with drug-involved offenders, but evidence shows that drug courts are more effective at preventing recividism in defendants than ordinary criminal courts which impose traditional sanctions for drug crimes, such as incarceration. Because Connecticuts program is new, no recividism statistics are yet available. However, other jurisdictions report that while 45 percent of drug defendants reoffend overall, recividism rates are between 5 and 28 percent for defendants who participate in drug courts. In Dade County, Florida, where the Drug Court handled 4,500 cases between 1989 and 1993, 89 percent of defendants did not reoffend.
Other economic benefits have been realized as well. Prosecutors and police report that drug court programs reduce their police overtime and witness costs, because they do not need to testify in cases handled by drug court. Most programs also report that while a substantial percentage of defendants receive public assistance and welfare when they enter the program, many obtain employment while in the program.
As Connecticut redirects its efforts toward a treatment approach for dealing with nonviolent drug-involved offenders, it is important that effective tools such as the drug court be implemented widely and as quickly as possible. Even though the Drug Session was initiated as a pilot program, the success of the program elsewhere and the promised of success of the pilot here in Connecticut suggests that the legislature should consider, even before conclusion of the pilot, authorizing the Judicial Department to open Drug Sessions as soon as possible in all parts of the state.
To assure that the various Drug Sessions operate under the same policies and procedures, the Judicial Department could implement statewide standards for the courts. The public act creating the Drug Session provides that the court should be available to all offenders "who could benefit from placement in a substance abuse treatment program." To assure that judges have discretion to admit to the Drug Session a broad range of appropriate drug-dependent offenders, the Judicial Department should consider expanding the eligibility criteria to permit all drug-involved offenders, except those charged with murder, kidnaping, robbery in the first degree, or any felony involving serious physical injury, to be considered for admission to the Drug Session.
Should the legislature choose to expand the Drug Session concept, Appendix B, Bill No. 12, page B-29 contains a proposed bill to achieve that result.
D. 2. Penalties, drug sales. Top
a. Distinction between sales by drug-dependent persons and by non drug-dependent persons and mandatory minimum sentences
Under section 21a-278 of Connecticut law, mandatory minimum prison sentences are established for persons (1) who sell narcotics, hallucinogens, amphetamines, or one kilogram or more of marijuana and (2) who are not drug dependent at the time of the offense. Lesser penalties for those who sell drugs and are drug dependent are established in section 21a-277.
Connecticut is one of only three states in the nation to make a statutory distinction between drug-dependent persons and non drug-dependent persons for the purpose of establishing enhanced penalties for those in the latter group who sell drugs. In 1995, inmates incarcerated for offenses under section 21a-278 as non drug-dependent drug sellers represented 11% of all inmates incarcerated in Connecticut for drug offenses. The Commission has examined the history and application of section 21a-278 and concludes that the statute not only impedes the policy objective of bringing Connecticuts drug abusers into the health care system, but also significantly undermines our criminal justice system.
Before the enactment of section 21a-278 in 1971, the general statutes had one penalty section applicable to all drug sales without regard to whether a defendant was drug-dependent. Decisions regarding the severity of each individual defendants sentence were made by our courts within the parameters set by law. Before 1971, Connecticut law stipulated that a person, regardless of drug dependency, who was convicted of selling any quantity of narcotic drugs could be sentenced to a term of between five and ten years in prison for a first offense. A sentence could, however, be suspended in whole or in part at the discretion of the court. By enacting section 21a-278, the legislature sought to remove the courts sentencing discretion for defendants who were found to be non drug-dependent at the time of the offense.
Initially, both the legislature and the Connecticut Supreme Court viewed section 21a-278 as an "additional crime" for the state to use in penalizing drug sales offenses by non drug-dependent persons. To convict a person, the legislature intended and early court decisions required that the prosecution prove beyond a reasonable doubt not only that a defendant sold drugs, but also that the defendant was a non drug-dependent person at the time of the sale. In hearing its first case under section 21a-278, the Connecticut Supreme Court rejected a defendants claim that his conviction should be reversed on the ground that "the evidence was insufficient to justify the finding, beyond a reasonable doubt, that he was not a drug-dependent person at the time of arrest." The Court, in affirming the conviction, held that on "the evidence presented, the jury could have concluded that the state had proved beyond a reasonable doubt that the defendant was not a drug-dependent person at the time of his arrest" (emphasis added). Thus, the Court explicitly interpreted that the language of the statute made the condition of being a "non drug-dependent person" an element of the offense, which the state bore the burden of proving beyond a reasonable doubt.
However, nine years later in State v. Januszewski, the Court withdrew from its initial position and held that the condition of non drug dependence is not an element of the offense under section 21a-278. The prosecution thereafter had no obligation to prove that a defendant was a non drug-dependent person at the time of the offense in order to obtain a conviction under section 21a-278 for illegal sale by a non drug-dependent person. Instead, under the Court's ruling in Januszewski, all defendants are presumed to be non drug-dependent persons at the time of a drug sales offense. Defendants who want to contest the issue of non drug dependence bear the burden at trial of proving by a preponderance of the evidence that they were drug-dependent at the time of the offense.
The Courts rationale for its holding in Januszewski was that drug dependence fits an "exception" to the offense. It reasoned that burdens of proof for exceptions to drug-related offenses are guided by section 21a-269 which stipulates that it is not the states burden "to negative any exception" contained in any Title 21a provisions, but rather "the burden of proof of any such exception...shall be upon the defendant." Thus, as an exception, drug dependence must be raised at trial and proven by the defendant. The Court further noted that a "defendants drug dependency at the specific point of time in the past at which the offense occurred is certainly a matter personal to the defendant and peculiarly within his own knowledge," and "logic" should not place the "burden of proof on matters personal to the defendant" upon the State.
While the Courts reasoning may have represented one logical interpretation of the language of the statute, it did not correspond to the purposes expressed by the members of the legislature in passing the law in 1971. During House hearings, the sponsor of this law, former Representative Bernard Avcollie, responded to several areas of concern among his colleagues when he stated:
The intent of the bill is to give the states attorney and the prosecuting attorney an opportunity to charge an additional crime which does carry a harder sentence which goes towards imprisoning the person who is not drug dependent and who is, in fact, selling drugs for a profit.
The "additional crime" about which Representative Avcollie spoke was the crime of being a non drug dependent-drug dealer as distinguished from the perceived less serious crime of being a drug dependent drug dealer. Several members of the House expressed concern that the new laws harsh non-suspendable mandatory minimum prison sentence for the sale of any quantity of drugs might be applied not only to the organized drug pusher, but also to a young person who gave a small quantity of a drug to a friend. Representative Avcollie acknowledged that while prosecutors would have discretion to charge in each case, the law indeed could be applied equally whether the sale of drugs was committed by a young person in an isolated incident of bad judgment or by an enterprising individual in conjunction with large, organized crime operation. Avcollie further explained to his colleagues that before charging under the proposed law, the prosecutor would be required to establish that a defendant was not a drug-dependent person at the time of the offense:
[I]n order to charge under this law, a states attorney or a prosecuting attorney would have to take advantage of the existing law...and have the party arrested and examined for drug dependency. In other words, you would first have to prove that he was or was not addicted and then charge him with this crime. (emphasis added)
Representative Avcollie reemphasized at several points during the hearing the procedural requirements incumbent upon the prosecution - an individual could only be charged under the proposed law "at the time of the arrest if a states attorney or prosecutor had him examined for drug dependency." Since pre-trial drug treatment diversion programs would obviously not be appropriate for non-drug dependent defendants, this preliminary determination was essential prior to charging so as to divert eligible defendants into treatment programs as needed. Thus, it seems apparent that the legislature, in passing section 21a-278, did not have in mind the kind of application of the law we have seen since the Januszewski decision where individuals charged under section 21a-278 bear the burden of proving the issue of drug dependence at their own trial.
Nevertheless, in writing the law, legislators failed to consider how procedurally difficult it would be to weed out the drug dependent from the non drug-dependent prior to charging. As the states attorney argued in his Januszewski brief to the Connecticut Supreme Court:
It is frequently very difficult, if not impossible for the State to prove non-drug dependency in most cases. The State has no right to compel a defendant, at the time of his arrest, to submit to the taking of a blood sample, or a urine test or a psychiatric examination. Such may be procured under our practice only after an order of the court based on a finding of probable cause by the court. Even if an order is entered, the defendant can take an appeal from such an order and by the time the Supreme Court has acted, the value of the test might well be destroyed.
As currently applied, section 21a-278 presumes all defendants to be non drug dependent and requires that a defendant provide evidence of drug use at trial. This application of section 21a-278 has been problematic in two ways. The definition criteria that a defendant must meet in order to carry the burden of proving drug dependence are ambiguous. A defendant must show at trial that she is a "drug-dependent person" as defined in section 21a-240(19) which states that a drug dependent person is one who "has developed a physical and psychic dependence" on drugs. This criteria of "physical and psychic dependence" does not correspond to any currently accepted definitions of drug dependence within the health care profession. The Department of Mental Health and Addiction Services has called the definition "vague and not functional in determining drug dependency for the court." In strategy option C.9. earlier in this report, the Law Revision Commission pointed out how the definition of drug dependence could be revised to reflect contemporary medical standards and to be consistent with other statutory provisions.
In addition to the definition problem, two significant constitutional issues arise from the requirement that defendants must prove drug dependence at their own trial on a charge of illegal drug sale by a non-drug dependent person. First, a sixth amendment issue emerges when considering the influence that such evidence may have on a jurys impartiality and, second, a fifth amendment concern arises in relation to a defendants right against self-incrimination. In effect, defendants who provide evidence at trial of extensive involvement with drugs in an attempt to prove that they meet the exception of drug dependence risk thwarting their own defense against the charge of selling drugs. Instead of meeting the burden of proving drug dependence, such defendants may only succeed in convincing a jury that they have a drug problem. For example, a defendant may only be able to show that she was a drug user or abuser at the time of the offense, neither of which would meet the statutory definition of drug dependence. In such a situation, a defendants self-incriminating admission of drug use or abuse can inadvertently assist the prosecution in its burden of proving the charge of selling drugs. After hearing a defendant testify to drug use, jurors may be understandably unable to exercise their impartial judgment in deciding the issue of whether the defendant sold drugs. Thus, defendants who undertake the burden of proving drug dependency risk fostering in the minds of jurors the suggestion that "where theres smoke, theres fire." This risk has been far from inconsequential - the penalty for a non drug-dependent person convicted of selling or giving away any quantity of a drug under section 21a-278 is a mandatory minimum five years in prison which may not be suspended or reduced by the court.
Not only does the current application of section 21a-278 dilute both an individuals fifth amendment right against self-incrimination and the sixth amendment right to an impartial jury, the law also tends to distort the legal process in other subtle ways. First, the mandatory minimum sentencing provisions disable judges from exercising discretion in cases where an individuals drug problem, while not reaching the level of statutorily-defined dependence, has clearly influenced her involvement in selling drugs. (Ironically, persons with drug abuse problems not at the level of clinical dependence who turn to other crimes such as larceny or burglary to support their drug use face far less serious penalties than similar users who become involved in selling drugs.) Second, while disabling judges from determining appropriate individualized sentences, the law simultaneously empowers prosecutors to wield the mandatory minimum sentencing provisions as leverage in plea negotiations with defendants, most of whom are unwilling to gamble on an attempt to establish drug dependence.
According to the Office of the Chief Public Defender, under the current statutory scheme a majority of defendants - even those with obvious drug problems - opt to plea bargain with the prosecution rather than risk prejudicing a jury against them in an attempt to prove drug dependence. Resourceful prosecutors are aware of this. Knowing that most defendants prefer to plea down to a lesser charge to avoid a trial in these cases, prosecutors have a strong incentive to charge everyone arrested for the sale of drugs as a non drug-dependent person under section 21a-278 (regardless of whether the accused shows signs of drug dependence) in order to negotiate a favorable plea. Yet, even when prosecutors choose not to make charging decisions on this basis, practically speaking, because they have no reliable way of determining whether or not an individual was drug dependent at the time of the offense, they have little alternative but to charge all persons arrested for selling drugs under 21a-278 as non drug-dependent persons. Prosecutors are not experts in determining clinical drug dependency issues, nor are the police for that matter. Thus, as the law stands now, most drug sellers, whether drug dependent or not, are initially charged as non drug-dependant persons.
To resolve the procedural inequities and functional problems inherent in section 21a-278, the legislature should consider revising the law to eliminate the distinction between drug-dependent persons and non drug-dependent persons, as well as the mandatory minimum sentencing requirements. This strategy option would be achieved by repealing section 21a-278. All illegal sales would be charged under 21a-277. Penalties for sales under section 21a-277 are quite strict: up to 30 years depending on the number of offenses and the type of drug involved.
Mandatory minimum sentencing laws have been the subject of intense controversy in recent years. A 1994 policy paper reprinted in Corrections Compendium: The National Journal for Corrections Professionals reported that mandatory minimum sentencing for drug offenses have not succeeded in deterring drug sales because most dealers "do not consider that they will be caught and do not consider the consequences." The study also concluded that the most dangerous drug dealers, so-called "drug kingpins," avoid mandatory minimum sentences by hiring destitute and desperate "mules" as delivery people or street sellers. These minor players in drug distribution operations are the persons most often subject to mandatory minimum sentences for first offenses. Thus, society expends enormous resources arresting, prosecuting, and incarcerating small-time offenders while the major players continue to circumvent the law.
A 1996 study by the Rand Corporations Drug Policy Research Center showed that mandatory minimum sentencing strategies have been less cost-effective than traditional enforcement when applied to low level people in drug distribution organizations. The study concluded that "conventional enforcement [where courts have discretion to impose appropriate individualized sentences] is more than twice as cost effective as mandatory minimums in reducing cocaine use."
The recently-issued report by the Connecticut Legislative Program Review and Investigations Committees on Connecticuts substance abuse policies for juveniles and youth recommends that mandatory minimum sentences for drug offenses be repealed in Connecticut. The report states that there is "consensus among criminal justice professionals that treatment programs [are] as or more effective than traditional incarceration" and recommends that "Connecticuts public policy address substance abuse as a health problem that should be dealt with through prevention, education, and treatment efforts in addition to criminal sanctions."
To ensure that criminal sanctions do not needlessly subvert Connecticuts prevention, education, and treatment efforts to minimize the costs of substance abuse, the legislature should review further and consider as a strategy option eliminating mandatory minimum sentences. Sentencing decisions would be returned to the courts where judges may make determinations on an appropriate sentence after an evaluation of a defendant's personal and criminal history.
Such a change would address the constitutional problems that have emerged in the application of section 21a-278 since it was approved by the legislature in 1971. At that time, those who voted for the bill did so with the understanding that the law targeted the non drug-dependent "pusher" and that a determination of a persons dependence on drugs would be made before trial. Subsequent interpretation and application of the law have not fulfilled the legislatures goals and a perversion of the law has resulted. Judges will have discretion under the section 21a-277(a), as amended, to administer extremely strict sentences of up to 30 years imprisonment to non-dependent persons who sell drugs, while offering treatment to those who need it.
For similar reasons, the legislature should review further and consider revising section 21a-278a concerning distribution by a non dependent-person to a youth or near a school to correspond to the changes recommended in sections 21a-277 and 21a-278. Section 21a-278a imposes an extra two to three year mandatory minimum sentences on (a) non drug-dependent individuals who sell drugs to minors under eighteen years of age, (b) on individuals who sell drugs near schools or public housing projects, and (c) on individuals who use minors to sell drugs. As revised, even though the mandatory nature of the sentence would be eliminated, a judge could still impose the extra two to three year sentence in appropriate cases.
The same rationale for eliminating the procedural and functional problems associated with both mandatory minimum sentencing and non-drug dependent status of section 21a-278 is applicable to section 21a-278a. The legislature should review further and consider returning to the courts the authority to make individualized sentencing determinations for all offenses involving the sale of drugs. The courts will have discretion to impose an additional two years in prison on individuals convicted under section 21a-277 when the offense involves the sale of drugs to a minor or near a housing project or school, or when it involves the use of a minor to sell drugs. A defendants dependence or non-dependence on drugs will not be an issue to be determined at trial, but may be a factor that the court considers in sentencing decisions. By returning sentencing discretion to the courts, drug treatment options are not absolutely and arbitrarily foreclosed as they are under a mandatory minimum sentencing scheme. Yet, such revisions would continue to authorize courts to administer, when they deem appropriate, severe enhanced penalties on offenders who sell to minors or near schools or who use minors as drug couriers.
The Commission recognizes that while an emphasis on treatment over punishment for many of Connecticuts troubled citizens who become involved in drug crimes will further the public health and safety of our state, a treatment approach may not be universally appropriate. Some defendants may not want to make a commitment to treatment. Others may have no need of treatment because they do not have a substance abuse problem. For such defendants, criminal sanctions are appropriate. A court would have discretion to sentence such defendants to prison terms of up to fifteen years for a first offense and up to thirty years for subsequent offenses.
b. Distinction between cocaine and free-base cocaine.
Another consequence of repealing section 21a-278 is the elimination of enhanced penalties for the sale of cocaine in free-base form. In 1987, the legislature passed a revision to section 21a-278(a) that distinguished powder cocaine from cocaine in free-base form for the purposes of imposing enhanced penalties for sales of the latter. Powder cocaine is produced by dissolving coca paste in hydrochloric acid and water, adding potassium salt to separate undesired substances from the mixture and then adding ammonia to separate a solid substance - the powder cocaine - from the solution. It is the most commonly used form of cocaine. Cocaine base is produced from powder cocaine into one of two forms: free-base cocaine, derived from powder cocaine that has been dissolved in water and an alkaloid solution like ammonia; or crack cocaine, derived from powder cocaine that has been dissolved in a solution of water and sodium bicarbonate, boiled into a solid substance, dried, and broken up into "rocks."
Powder cocaine can be injected, snorted, or ingested; cocaine base is smoked. According to data The National Institute on Drug Abuse (NIDA) between 1988 and 1992, 71% of those who used cocaine at least once during year 1992, snorted cocaine, while 27.9 percent smoked cocaine.
Under current Connecticut law, an individual who sells one half of a gram of free-base cocaine is subject to a mandatory minimum five years and up to life in prison while an individual would have to sell over fifty-six times that amount of powder cocaine (one ounce) before being subject to the same penalties.
Connecticut is one of only 9 states in the country to have a penalty distinction between free-base and powder cocaine. The legislature in 1987 supported the legal distinction between powder cocaine and free-base cocaine "because of the highly addictive nature of [free-base] and its easy accessibility." Several months earlier the United States Congress, in response to public concern and media coverage of cocaine use as a factor in the June 1986 death of college basketball star Len Bias, had initiated a federal criminal law distinction between "cocaine base" and other forms of cocaine. Congress created a 100-to-1 quantity ratio in differentiating crack cocaine from powder cocaine in the penalty structure. The justification for this distinction was based on the perception that crack cocaine caused greater physical, emotional, and psychological damage and was linked to violent crime and gang activity.
Penalty distinctions between base and powder cocaine have been criticized on several fronts as unfair, unjust and racist. Demographic data showing the racial composition of crack and powder cocaine offenders in Connecticut is not currently available. Statistics at the federal level, however, show that crack cocaine offenders are 88.3 percent black. In contrast, the racial distribution of powder cocaine offenders is more evenly composed of 32 percent white, 27.4 percent black, and 39.3 percent hispanic.
Penalizing the sale of crack more harshly than the sale of powder cocaine because of its association with gang violence has been criticized as being inadequately supported by logic. At a U.S. Sentencing Commission hearing held on the issue in 1993, several critics argued that violence is more attributable to underlying gang culture than to the type of drug being sold. As one scholar put it: "Crack is simply processed [powder] cocaine...so that distinction [between crack and powder] just is not a sensible distinction." Numerous law enforcement officials throughout the country agree. A sergeant in the Narcotics and Special Investigations Unit of the Washington, DC Metropolitan Police in explaining his views on why penalty distinctions between base and powder cocaine should be eliminated stated: "it takes fifteen minutes to turn powder cocaine into crack cocaine - a box of baking soda, a pot of water, and a microwave or a stove, and you have crack cocaine."
Critics have also assailed the grounds that the distinction is justified because of the "highly addictive nature" of base cocaine. Dr. Charles R. Schuster, Senior Research Scientist at the Addiction Research Center of the National Institute on Drug Abuse testified at the U.S. Sentencing Commission hearing that "cocaine is cocaine is cocaine, whether you take it intranasally, intravenously, or smoked."
The Journal of the American Medical Association recently reported that free-base cocaine is no more addictive than powdered cocaine. The study showed that "cocaine, regardless of whether it is crack cocaine or [powder] cocaine hydrochloride, leads to the same physiological and behavioral effects." Dr. Schuster and the JAMA authors recognize that the onset of physiological and psychotropic effects vary depending on the route of administering cocaine into the body. Snorting and ingesting produce less rapid effects than injecting or smoking cocaine. Injecting powder cocaine and smoking crack cocaine produce equally rapid effects on the user. Dr. Schuster and the JAMA authors suggest that because individuals may prefer the ease of use associated with smoking a drug rather than the difficulties associated with injecting one intravenously, smokable crack cocaine may pose greater public health consequences. However, it does not follow that because individuals might more readily smoke than inject a drug that the sale of smokable drugs ought to be penalized more harshly than the sale of injectable ones.
A final critic of penalty distinctions between powder and crack cocaine at the U.S. Sentencing Commission hearing was Dr. Ira J. Chasnoff, President of the National Association for Perinatal Addiction and Professor of Pediatrics at the University of Illinois. Commenting on the effects of prenatal exposure to cocaine, Dr. Chasnoff stated that "the pharmacology of cocaine and crack is identical. They are identical drugs, so any effect you have on the fetus is similar, whether the woman uses crack or uses cocaine." Admitting that while he could not speak directly to the issue of heavier penalties, he urged that if the goal of public policy is to benefit children, "then we are going to have to find other ways than taking their mothers away and putting them in jail."
Noting that those involved in the distribution of crack cocaine are younger than those distributing powder cocaine, the JAMA authors assert that the enhanced penalties for crack have driven drug dealers to recruit juveniles as drug sellers because of the potentially less severe sentencing for juveniles when arrested. While the authors agreed with the findings of the 1995 US Sentencing Commission that free-base cocaine "is easier to use and more accessible to a broader population" than is powder cocaine, it maintained that quantifying a sentencing differential ratio is impossible at this time because of the limited research in the areas of "social context, current availability, and associated deleterious consequences."
The legislature should review further and consider whether to eliminate the penalty distinction between free-base and powder cocaine. Forty-one other states in the nation make no such distinction. By eliminating the distinction, Connecticut will authorize courts to target for drug treatment and education those individuals who will most benefit from such an approach, while reserving harsher criminal penalties of up to 15 years imprisonment for a first offense and 30 years for subsequent offenses for predatory individuals who sell cocaine in any form, regardless of how it has been chemically constituted. As the authors of the JAMA study emphasized:
Prison is a scarce commodity in the United States, and if treatment has the potential to decrease the likelihood that the individual treated will return to selling cocaine, it makes sense to try that approach first. In fact, drug abuse treatment has been shown to work about as well when mandated by the courts or under conditions in which users have the option to go into treatment or go to jail as when it is voluntary. By imprisonment of these individuals, society is choosing the most expensive option to deal with a problem that, for some, can be managed more effectively by intensive outpatient therapy combined with meaningful supervision for the criminal justice system.
Appendix B, Bill No. 13, page B-30 contains a proposed bill that would implement the changes.
D. 3. Availability of alternative incarceration programs. Top
The five-year-old alternative to incarceration programs are among Connecticuts most effective antidrug tools. While some of the programs were designed originally to ease prison overcrowding, they have proven to be unusually successful in dissuading drug-related defendants from committing further crimes. In the case of drug offenders under age twenty-one, for example, those who enter the alternative programs are only 30 percent as likely to reoffend as those drug offenders sent to prison. Participants in other age groups are less likely to reoffend as well. At the same time, the programs are much less expensive than incarceration.
One flaw, however, exists in the way the statutes creating these programs are established. Most restrict participation to defendants who have not participated before, and who have no criminal record. The legislature should review further and consider as a strategy option removal of these "one-time-only" restrictions for drug-involved defendants whose crimes do not involve violence. Judges need discretion to order drug-related defendants into the alternative programs regardless of the defendants prior history.
The most important reason for this change is that it generally takes more than one try before a drug-dependent person is able to control his or her addiction. Experts on drug treatment warn that drug dependence is a chronic, relapsing condition. Treatment clients will likely require multiple interventions, and many will fail at least once before they succeed. While drug dependence is a medical disorder, current treatment methods do not offer a permanent and complete cure for many persons. Rather, often the best medicine can do is to help the drug-dependent patient control his or her symptoms, "just as complete symptom elimination is not possible with the treatments for diabetes, hypertension, asthma, or many other disorders."
Medical evidence suggests that many drug-related offenders placed in the alternative to incarceration programs will require more than one intervention and treatment to control their drug dependence. We know, therefore, that many of the clients referred to the alternative to incarceration programs will fail to achieve long-term success on the first try. However, with each additional intervention, the likelihood of success increases for many. It is extremely difficult for drug-dependent persons to control dependent behavior on their own in the long-term. Those who suffer from many other medical problems, such as hypertension and diabetes, are unable to control their problems without continuing medical support.
Numerous studies show as well that drug treatment can be more effective and less costly than incarceration in controlling many drug-involved criminal justice offenders. Even if it does not "cure" a drug dependent persons dependency, treatment at least reduces illegal drug use and attendant criminal behavior. It prevents rearrest more effectively and less expensively than incarceration. As a bonus, persons in treatment have improved health and social functioning.
These concerns are even more important in the cases of younger defendants. In a recent report, the Connecticut Legislative Program Review and Investigations Committee recommended that the one-time-only restrictions be removed. Substance abuse is a "chronic and progressive behavior and is a direct or indirect factor in juvenile crime," but the law does "not take into consideration the reality of drug use by children." Many first-time offenders participating in the programs are only 16 or 17 years old. Under current law, these young offenders get only one chance at a very early age to participate in the alternative programs.
It is illogical and counterproductive to the interests of public safety, public finance, public health, and the health and needs of a drug-dependent person to deprive him or her of treatment interventions simply because the "trigger" is, by statute, a criminal offense. Judges need discretion to consider the information they have received about the defendant, the recommendation of the states attorney, and the interests of public safety before making the most appropriate placement of a defendant, whether it be incarceration or other sanctions.
To accomplish these objectives, the legislature should review further and consider as a strategy option the proposed legislation outlined below. The proposals would affect three programs.
Accelerated Rehabilitation. Defendants who have criminal records, or who have been through AR in the past are currently ineligible for the program. The strategy option would give courts discretion to invoke AR notwithstanding a defendants prior history where the primary or most serious charge pending is possession of narcotics or drug paraphernalia, or where the defendant is drug-dependent, and the charged conduct is likely a result of his drug dependence. The latter provision is intended to apply to drug-dependent defendants charged with crimes like criminal mischief, larceny and prostitution. The statute would expressly provide that no defendant could be admitted to the program if his charged conduct caused the death or serious injury of any person other than the defendant himself. Additionally, the court would have to find that the defendant would benefit from drug treatment or education.
Court Liaison Program. Under current law, the court may waive the "one time only" rule for defendants who apply to the program before trial, but may not waive the rule for defendants who apply after conviction. The proposed change would give the court discretion to waive the post-conviction restriction for defendants whose primary or most serious conviction is for possession of narcotics or drug paraphernalia, or for drug-dependent defendants charged with non-violent crimes where the charged crimes are likely to have been the result of the defendants drug dependence.
Youthful Offender Program. This program is currently unavailable to defendants who have previously been convicted of a crime, or who have previously been adjudged a youthful offender. The recommended changes would entitle the court to try a defendant as a youthful offender or accept his guilty plea to the charge of being a youthful offender notwithstanding these restrictions if the primary charge pending against him is possession of narcotics or drug paraphernalia, or if his charged offense (other than a class A felony or first-degree sexual assault; the same restrictions currently included) likely was the result of his drug dependence.
Appendix B, Bill No. 14, page B-31 contains a proposed bill to implement this strategy option.
D. 4. Drug education and community service labor program. Top
The Community Service Labor Program (CSLP), created by statute in 1990, is administered by the Office of Alternative Sanctions. It allows first-time defendants charged with drug possession to apply to do community service in lieu of prosecution.
The number of CSLP clients each year has grown steadily. In fiscal year 1991/92, 1,156 clients participated; by 1995/96, that number had increased to 7,925. Despite the high number of participants, however, no statistics are kept on what percentage of the participants avoid further offenses. Participants in alternative to incarceration programs generally are less likely to reoffend than defendants who are convicted and sentenced to prison. However, the Law Revision Commission believes that CSLP is less effective and efficient than it might otherwise be because it fails to address the involvement with drugs that underlies the offenses of defendants in the program.
The Law Revision Commission believes that several changes to the CSLPs authorizing statute would increase the effectiveness of the program. Those changes would (1) require CSLP participants to complete an appropriate program of drug education or treatment, under the supervision of the Department of Mental Health and Addiction Services and (2) expand the class of drug defendants who are eligible for the program. These changes are similar to those advocated in a recent report by the Connecticut Legislative Program Review and Investigation Committee. The changes are discussed in detail below.
Drug education and treatment. In 1996, the Governors Blue Ribbon Task Force on Substance Abuse recommended the creation of a pretrial drug education program for first-time drug possession offenders, similar to the pretrial alcohol education program now offered to first-time DUI offenders. Legislation based on that recommendation was introduced in the Senate last year, but died in the appropriations committee. The Department of Mental Health and Addiction Services also has recommended similar legislation.
While the Law Revision Commission agrees with the need for a drug education program, the Commission believes that incorporating such a drug education program into the CSLP would increase the effectiveness of both programs. By combining those programs, the state takes a "carrot and stick" approach to illegal drug use. The combined program will provide defendants with structured support to address their drug problems, while providing a level of sanction to express state disapproval of their involvement with drugs. In line with the Commissions general view of how to deal with substance abuse issues, substance abuse will be treated as a medical condition requiring intervention, but individuals will be held responsible for taking conscious steps towards resolution of their problems.
Lack of a drug education component is a major shortcoming in the CSLP. CSLP does not require that clients receive any screening, testing or counseling to determine the extent of their substance abuse. Alternative programs such as CSLP are much less expensive than incarceration, and alternative sanctions programs that include drug treatment components are effective at reducing recividism. Thus, CSLP should be more effective if required to incorporate drug education and treatment. "Intervening with offenders at the earliest possible opportunity can reduce jail and prison populations, streamline court dockets, and prevent first-time, non-violent offenders from becoming enmeshed in a criminal cycle." Even if treatment does not "cure" a drug-dependent persons problem, or cannot prevent all casual users from returning to that lifestyle, treatment and education do, in fact, reduce illegal drug use and attendant criminal behavior during the time of treatment and education, and for a considerable period thereafter.
Expanding the class of eligible defendants. The CSLP currently restricts participation to first- and second-time defendants charged with drug possession (section 21a-279) or drug paraphernalia possession (section 21a-267). If the defendant has been convicted of any drug offense, or has participated in the CSLP before, he may apply once for the CSLP after a guilty plea in lieu of prison time.
The Law Revision Commission believes that the legislature should review further and consider as a policy option removing these one-time-only restrictions. Without drug education or treatment, recividism is likely to be fairly high. Treatment -- and repeated treatment -- provides the tools, often more effectively than incarceration, to reduce repeated involvement with the criminal justice system. No drug education and treatment program can "cure" drug use or addiction 100 percent of the time. Some defendants will reoffend even with the addition of the education component. While drug dependence is a medical disorder, current methods often require repeat treatment interventions. "[J]ust as complete symptom elimination is not possible with the treatments for diabetes, hypertension, asthma, or many other disorders," drug treatment may not, in all cases, eliminate the disorder; treatment is, however, successful in helping the drug-dependent patient control his or her symptoms Experts on drug treatment warn that drug dependence is a chronic, relapsing condition. Treatment clients will often require multiple interventions, and many will fail at least once before they succeed. Experience shows, however, that treatment -- even repeated treatment -- is a more effective and less costly way to reduce drug use and its attendant crime than is incarceration of a drug offender.
The legislature should also review further and consider as a strategy option expanding program eligibility to include defendants who are charged with sale of drugs, or with possession of drugs with intent to sell, if they can establish that they are drug dependent. If a defendant is selling drugs to support his own addiction, both he and the citizens of the state of Connecticut may be better served if he gets the intervention and treatment he needs. The evidence suggests that defendants who are incarcerated have an increased likelihood of repeated criminal behavior compared with those supervised and treated outside the prison setting. Because drug sales offenses are more serious than drug possession offenses, defendants who qualify for the program after being charged with drug sales would face much longer periods of community service.
It is important to note that these changes would merely expand the ability of the court system to use the CSLP in an appropriate case. A defendant is not guaranteed admission to the program. The decision rests with the judge to decide, based on the circumstances of the case, whether society and the defendant will be better served by incarceration or by CSLP and drug education or treatment. The statute requires that the court consider the recommendation of the prosecuting attorney in making that decision. In short, the changes would make the potential benefits of the CSLP option available in a significantly larger number of cases.
Appendix B, Bill No. 15, page B-35 contains legislation that would enact these strategy options.
D. 5. Community policing. Top
Anecdotal evidence accumulated in the past several years suggests that police departments that adopt community policing philosophies are more successful in stemming the flow of illegal drugs and the accompanying crime. By developing relationships with community members and attacking root causes of crime, by using civil remedies, by upgrading community services and facilities, and through social service referrals, police can take a proactive approach, intervening at the community level before criminal activity develops that requires an arrest. Many police departments in Connecticut already use forms of "community policing". For example, police departments have established satellite or substation offices, lessened the reliance on vehicle patrols, assigned officers to walking patrols in neighborhoods, and made use of the Safe Streets-Safe Neighborhoods grant program.
The U.S. Department of Justice has identified the core components of community policing as community partnership and problem solving. The concept of community partnership between law enforcement and the community requires police officers to develop relationships with residents. Police officers seek to function within the community as participants, and not from above as enforcers. Through the partnership with community members, problems can be identified before they become serious. When a problem is identified, the partnership can undertake solutions that may range from neighborhood activities and community social work to increased police visibility.
Community policing has broader goals than more traditional enforcement-oriented policing, which by nature tends to focus on making arrests and winning convictions. An enforcement-oriented approach, for example, might emphasize documenting arrests and convictions as evidence of successful policing. Critics of this approach now include a growing number of police chiefs who note, for example, that the drug war arrests and convictions target low level street dealers and users, and let higher-ranking drug dealers get away. Critics suggest that a police department that focuses primarily on arrests and convictions tends to lose sight of the positive effects that community policing has in preventing crime, particularly drug use, through neighborhood social action and visibility. Of course, necessary enforcement and effective response to crimes that do take place are also important in a community policing regime. Community policing, however, recognizes that police have a much broader role and that their responsibilities, including their enforcement responsibilities, are more effectively met if they work in concert with their community.
A special committee of the American Bar Association endorsed community policing and argued that "every patrol officer, not just specialists, should be engaged in community policing. A city should be divided into as many sub-beats, or satellite offices, as there are generalist patrol officers." Other studies of the effectiveness of community policing in combating the drug problem have similarly found it to be the most effective approach. It provides police with the one of the most effective tools available to law enforcement: the eyes and ears of the people who live in the neighborhoods they patrol. "Observations, criminal intelligence information and influence, especially among young people, are indispensable to police in ensuring public safety."
The legislature should review further and consider as a strategy option developing additional programs to assure that community police techniques are used appropriately by all local police departments. Those programs might include the establishment of a grant program to local police agencies as an additional incentive to implement community policing. Similarly, the legislature should review the adequacy of police officer education and training requirements. The effective implementation of community policing requires ongoing training and education of police officers. Training is necessary to teach officers the practical skills needed to police their communities. Education is necessary to provide skills in critical thinking, problem solving, social work, and communication. Police departments must have adequately trained personnel to meet community policing objectives. A non-exclusive list of these skills might include developing proficiency in Spanish where officers patrol a Hispanic community, communicating with young people or people from different ethnic backgrounds, and organizing and motivating community members.
Some existing grants and training programs already include community policing. For example, the drug enforcement grant program, administered by the Office of Policy and Management, provides funds to local police departments, state police, and Division of Criminal Justice to enforce federal and state drug laws, undertake drug use and crime prevention, education, or training activities and covers the costs of a community-based police program. In addition, a safe neighborhoods grant program provides funds to improve public safety in urban communities, involve residents in crime prevention activities, and increase police presence. Thirteen of the states largest cities (Bridgeport, Danbury, Hartford, Meriden, Middletown, New Britain, New Haven, New London, Norwalk, Norwich, Stamford, Waterbury, and Windham) and the Police Officer Standards and Training Council are eligible on a competitive basis for those grants. And the curriculum of the Police Officer Standards and Training Council recognizes community policing.
Current funding, however, is not primarily targeted to establishing community policing and the importance of meeting community policing objectives is not universally recognized. If community policing is to be widely implemented, the state needs to develop additional programs to attract participation in all communities.
D. 6. Penalty for possession of unweighable quantities of drugs. Top
The legislature should review further and consider as a strategy option revision of Connecticuts drug possession statute to make the possession of a narcotic substance criminal only if it is a "weighable" quantity. Arrests for possession of drug residue undermine the states interest in limiting the spread of AIDS by injecting drug users and place police officers and other members of the public at undue risk of accidental needle sticks from contaminated needles.
Current law prohibits the possession of any quantity of narcotic substance, even of a quantity that is too small to be weighed. As such, the law may undermine public health concerns by unnecessarily leading to the increased spread of AIDS among injecting drug users (IDUs), their sexual partners and children, and the general public. Police officers and other professionals who intervene with drug users are also exposed to the increased risk from contaminated needles. Moreover, the current residue law is, in fact, rarely prosecuted because of evidentiary difficulties and because the existence of drug residue is often consistent with an innocent explanation.
Eliminating arrests for the possession of drug residue may have the following results:
AIDS prevention. The General Assembly has recognized that one important way to reduce the spread of AIDS among Connecticut citizens is to discourage injecting drug users from sharing needles contaminated by the HIV virus. In 1992, the legislature decriminalized the sale, purchase or possession of up to ten clean needles to allow injecting drug users to obtain, possess, and use their own needles and to remove their incentive to risk use of a contaminated needle.
However, the evidence suggests that this significant and successful step towards reducing the spread of AIDS through shared needles is undermined by the fact that an intravenous drug user may be arrested if he possesses a needle contaminated with drug residue. Any needle, once used, will be so contaminated. Because the possession of the drug residue on a needle is illegal, IDUs are discouraged by the drug residue law from continuing to carry their own needles after use.
Yet, an IDU who has discarded his own needle after use because possession is a felony offense may, thereafter, share a contaminated needle used by another drug user for his next injection. Each incident of use of a shared contaminated needle risks the spread of AIDS among Connecticut residents. If IDUs could legally carry needles, regardless of whether they were used, needle sharing and HIV transmission would be reduced.
Between March and November 1994, two University of Connecticut researchers surveyed IDUs to learn whether the 1992 needle legislation had led them to carry clean needles. Only 30 percent reported that they carried their own syringes. Sixty-five percent of the drug users who did not carry their own needles said they did not do so because they feared arrest. Moreover, despite their awareness that sharing dirty needles can spread the virus that causes AIDS, many addicts use dirty needles if no clean ones are available. "When you are dope sick, you dont care," explained one 35-year-old addict. At the same time, the percentage of IDUs who are HIV-positive is astounding. At least 20 percent of the IDUs in Hartford, New Haven and Bridgeport are infected with the virus that causes AIDS.
In short, it appears that the current fear of prosecution for drug residue is a factor in the sharing of contaminated needles among injecting drug users, and the resultant spread of AIDS. That reason, alone, may provide ample ground for revising the law.
Police and public safety. A person who is stuck with a needle contaminated with the HIV virus runs about a one percent chance of being infected, and "stories are now commonplace of officers being pricked or stabbed by a drug users dirty needle." Local statistics verify that being stuck is a significant danger in police work. Officers have been stabbed intentionally with dirty needles while making arrests, and have been accidently stuck while patting down a suspect carrying a hidden dirty needle.
Yet, because the possession of the drug residue on a needle is illegal, IDUs often hide their dirty needles on their person when faced with arrest. Police searching such a suspect subsequent to arrest, or conducting a "Terry frisk" or pat-down to ensure that the suspect is not carrying a weapon, risk potentially fatal infection by such a hidden contaminated needle. The federal Centers for Disease Control and Prevention recently addressed this problem by recommending the use of the anti-AIDS drug AZT by police officers who are stuck with needles and who do not know whether they have contracted the HIV virus. If IDUs could legally carry syringes, regardless of whether they were dirty, IDUs would be less likely to hide the contaminated needles and would be more likely to show his "works" to an officer on request, lessening the likelihood of need a needle stick when a search is made. If not faced with the possibility of arrest for possessing a contaminated needle, any rational IDU will immediately disclose his needle to avoid risking an accidental infection.
The danger of needle sticks has other practical problems for law enforcement. As noted above, the federal Centers for Disease Control and Prevention recommends the use of the anti-AIDS drug AZT for use against accidental exposure to the virus on the job. While AZT can reduce the chance of contracting AIDS from a needle-stick or other accidental exposure by up to 80 percent, it carries with it severe side effects, including nausea and vomiting. An officer who is stuck with a dirty needle does not know for several months whether he has avoided infection. In the meantime, he suffers from severe stress and anxiety. In one highly publicized case, a Springfield, Massachusetts police officer who was stabbed by a hypodermic needle did not contract AIDS but was unable to work for three years, and eventually retired from police work as a result of stress. While "most [other types of] occupational exposures to HIV do not result in infection transmission," factors present in the injection of an HIV-contaminated intravenous needle into the system of a healthy individual make infection considerably more likely.
Police officers are not the only members of the public whose risks are increased by the drug residue law. Because of their fear of arrest, IDUs are more likely to store their used needles by hiding them in public places, or to discard them on the street immediately after using them. In each case, nondrug users are exposed to the risk of being inadvertently stuck with a contaminated needle. Researchers conducting one study of Connecticut injecting drug users reported that they "observed IDUs hiding syringes in public places (e.g. bushes) where they could potentially be found and used by other IDUs. We also observed a child finding such a syringe." If IDUs could legally carry syringes, regardless of whether they were dirty, the risk of uncontrolled disposal of dirty needles would be reduced.
Additionally, practical problems and fiscal costs are associated with prosecution of residue drug laws. Although police make arrests on the basis of drug residue, the state health department lab reports that it "virtually never" tests syringes for drug residue, and that they are aware of no state case in which a drug possession conviction was obtained based on hypodermic needle drug residue. It is apparent, therefore, that although fear of prosecution for residual drugs is very real in the drug using community, the law itself does not provide an effective basis for prosecution. In that light, police resources used for enforcement of the provisions would have to be considered largely wasted even if the law was not, itself, counterproductive.
Again, criminalizing possession of drug residue has had a negative effect on public health leading to needle-sharing, the transmission of disease, and unnecessary risk to enforcement officers. The General Assembly may wish to consider whether revising the drug possession statute to include only weighable amounts of narcotics, in line with the other Commission strategy options to shift toward a public health sensitive drug policy, will reduce those problems.
Unwitting Law-Breaking by Unsuspecting Citizens. Besides the risks associated with enforcing the law against IDUs, statistics suggest that many unsuspecting citizens unwittingly violate Connecticuts drug possession law. A recent article published in the Journal of Analytical Toxicology reported that 79 percent of the dollar bills in the United States contain traces of cocaine. Researchers analyzed U.S. paper money in 14 cities and found that the amount of cocaine residue on the bills varied from nanograms to milligrams. The degree to which clean money is contaminated simply by being placed in the same drawer with "dirty" money is sufficient to make drug-sniffing dogs identify it as contaminated money. Under current Connecticut law, a person carrying contaminated currency is in violation of 21a-279 for possession of cocaine, and could be subject to up to seven years in prison if convicted.
Legislation intended to remove the felony penalty for possession of an unweighable quantity of narcotics was introduced in the 1996 session, but died in the Judiciary Committee. In the light of increased awareness of the health problems used or "dirty" needles pose not just to IDUs, but to police officers and ordinary private citizens, the Law Revision Commission believes that public health demands full consideration of a new version of this bill. The 1996 bill made possession of an unweighable quantity of narcotics other than marijuana a class A misdemeanor. Continuation of any such criminal penalty threatens IDUs with arrest for needle possession, a policy that increases, rather than reduces, the risks stemming from intravenous drug abuse.
Appendix B, Bill No. 16, page B-37 contains a bill that would accomplish this strategy option.
D. 7. Penalty for adults in possession of one ounce of marijuana. Top
Presently in Connecticut, under section 21a-279(c) of the general statutes, a first-time offender possessing a small amount of marijuana (less than four ounces) may be imprisoned for up to one year and fined up to $1,000. Subsequent offenses are felonies, permitting imprisonment for up to five years and fines up to $3,000. (First-time offenders may be eligible for the community service labor program, subject to statutory criteria in section 53a-39.)
The Law Revision Commission has examined laws from other states that have reduced penalties for possession of small amounts of marijuana and the impact of those laws in those states. Based on that review, the legislature should review further and consider as a strategy option establishing the offense of infraction for adults twenty-one years of age or older who possess one ounce or less of marijuana. It is important to point out that the state will continue to exact a penalty from adults who possess one ounce or less, and that penalty, if not paid, could result in a years imprisonment.
Ten states have reduced the penalty for possession of small amounts of marijuana. Five of them (Oregon, Maine, Ohio, New York and Nebraska) now treat possession of small amounts of marijuana to be noncriminal violations. Two states (California and North Carolina) retain misdemeanor status for possession of lesser quantities of marijuana, but reduce the possible penalties from prior statutes. Three states (Colorado, Minnesota, and Mississippi) have reduced the status of this kind of violation from a misdemeanor to either a "petty offense" (Colorado), a "petty misdemeanor" (Minnesota) or an "offense" (Mississippi). In these states, for a first offense, a fine of not more than two hundred dollars may be imposed (not more than one hundred in Colorado) but, in Colorado, a first-time offender also might serve fifteen days in the county jail.
Maine and Minnesota define the amount of marijuana covered by their statutes as a "usable amount" or a "small amount" respectively. Most other states specify quantities, most commonly 25 grams or one ounce which is 28.35 grams. One ounce is approximately the weight of a small individual size container of breakfast cereal. According to a report by The Lindesmith Center, "[a] typical joint [cigarette] contains between 0.5g and 1.0g of cannabis plant matter." Thus, one ounce of marijuana would yield approximately 28 to 56 marijuana cigarettes.
Studies of states that have reduced penalties for possession of small amounts of marijuana have found that (1) expenses for arrests and prosecution of marijuana possession offenses were significantly reduced, (2) any increase in the use of marijuana in those states was less than increased use in those states that did not decrease their penalties and "the largest proportionate increase occurred in those states with the most severe penalties", and (3) reducing the penalties for marijuana has virtually no effect on either the choice or frequency of use of alcohol or illegal "harder" drugs such as cocaine.
Legislators are, of course, concerned whether reducing the penalty for possessing a small amount will exacerbate any adverse health effects of marijuana use. Marijuana use does have an effect on the body both physically and psychologically. The extent of any adverse health impact continues to be a matter of debate and depends, in part, on whether the use is light, moderate, or chronic. Because increased use of marijuana in states that reduced penalties for possession did not appear to be in excess of increased use in other states, and was, in fact, less than that of states with stricter penalties, any increased adverse health effects should not be expected to occur and may, in fact, be moderated by the reduction in penalties.
In Connecticut, according to figures provided by the Court Operations Division of the Judicial Department, 8,981 offenses charging a violation of CGS section 21a-279(c) were disposed of during the period of July 1, 1994 to June 30, 1995. Of that number, only 1,700 were convictions and 7,281 resulted in not guilty dispositions or were nolled. A "snapshot" of the Department of Correction population in 1995 shows that 57 persons were incarcerated for violation of section 21a-277(c), a 176% increase in incarceration for this offense since 1991.
Proponents of lesser penalties for possession of small amounts of marijuana point out that, of all the illegal drugs, marijuana is the least dangerous and that millions of Americans know this and use it even in the face of criminal sanctions. Proponents argue that it is misdirected public policy and expenditure of resources to prosecute and incarcerate persons for possessing small amounts of marijuana when more dangerous and violent criminal behavior requires the attention of criminal justice and corrections. Misdemeanor and felony convictions of persons with small amounts of marijuana also bring a lifetime of employment disability, a burden to all of society when such persons can obtain only marginal employment.
All agree that criminal behavior while under the influence of marijuana, such as driving while intoxicated, should be punished. The question for legislators, however, is whether, in the light of our knowledge and experience with marijuana, it continues to be appropriate to imprison adults who possess one ounce or less of marijuana and whether, in the light of evidence that such a new sanction for possession of small amounts of marijuana does not increase marijuana use, an additional sanction is more appropriate and cost effective. In addition, over 80% of the marijuana possession cases are either not pursued by prosecutors or result in verdicts of not guilty. The new sanction would give prosecutors an additional option is dealing with these 80% of the marijuana possession cases. The legislature should review further and consider as a policy option whether to create a penalty of infraction for adults twenty one and over who possess one ounce or less of marijuana.
Appendix B, Bill No. 17, page B-39 contains a bill that would implement an infraction for this offense.
Top Part 1, Appendix A Part 1, Appendix B Part 1, Appendix C Part 1, Bibliography Part 2