Chapter 3: Substance Abuse Treatment, Testing, and Abstinence (Probation and Supervised Release Conditions)

A. Statutory Authority

Under 18 U.S.C. § 3563(b)(7), the court may provide that the defendant “refrain from excessive use of alcohol, or any use of a narcotic drug or other controlled substance, as defined in section 102 of the Controlled Substances Act (21 U.S.C. § 802), without a prescription by a licensed medical practitioner.”

Under 18 U.S.C. § 3563(b)(9), the court may provide that the defendant “undergo available medical, psychiatric, or psychological treatment, including treatment for drug or alcohol dependency, as specified by the court, and remain in a specified institution if required for that purpose.”

Under 18 U.S.C. § 3563(b)(22), the court may provide that the defendant “satisfy such other conditions as the court may impose.”

B. Sample Condition Language

You must participate in an [inpatient/outpatient] substance abuse treatment program and follow the rules and regulations of that program. The probation officer will supervise your participation in the program (provider, location, modality, duration, intensity, etc.).  [[You must pay the costs of the program.] [You must pay [$___ per ___ (e.g., visit, week, month)] or [___ % of the costs of the program.]]

You must participate in an [inpatient/outpatient] alcohol abuse treatment program and follow the rules and regulations of that program. The probation officer will supervise your participation in the program (provider, location, modality, duration, intensity, etc.). [[You must pay the costs of the program.] [You must pay [$___ per ___ (e.g., visit, week, month)] or [___ % of the costs of the program.]]

You must not use or possess any controlled substances without a valid prescription. If you do have a valid prescription, you must disclose the prescription information to the probation officer and follow the instructions on the prescription.

You must submit to substance abuse testing to determine if you have used a prohibited substance. [[You must pay the costs of the testing.] [You must pay [$___ per ___ (e.g., visit, week, month)] or [___ % of the costs of the testing.]] You must not attempt to obstruct or tamper with the testing methods.

You must not use or possess alcohol.

You must not knowingly purchase, possess, distribute, administer, or otherwise use any psychoactive substances (e.g., synthetic marijuana, bath salts, etc.) that impair a person’s physical or mental functioning, whether or not intended for human consumption, except with the prior approval of the probation officer.

C. Purpose

1. This condition serves the statutory sentencing purposes of public protection, deterrence, and rehabilitation. 18 U.S.C. § 3553(a)(2)(B)-(D).
2. By providing for the ability to require substance abuse treatment, testing, and abstinence, this condition enables the probation officer to satisfy the statutory requirements to keep informed of the conduct and condition of the defendant, report the defendant’s conduct and condition to the sentencing court, and aid the defendant and bring about improvements in his or her conduct and condition. 18 U.S.C. §§ 3603(2)-(3).
3. Social science research suggests that correctional interventions that follow the principles of evidence-based practices (e.g., the risk principle, the need principle, and the responsivity principle) promote positive change in the defendant and reduce the probability of recidivism. Under the need principle, correctional interventions should be rooted in empirical knowledge about the sources of criminal conduct and should target known predictors of crime and recidivism that can be changed (also known as “dynamic risk factors” or “criminogenic needs”). They are human deficits directly related to the propensity to commit crime that can be changed in rehabilitation programs. Research has shown that criminogenic needs include substance abuse. Research has also shown that substance abuse is interrelated with other criminogenic needs. Illicit substance abuse draws one to antisocial others, exposes one to antisocial attitudes, interferes with prosocial relationships, hampers success at employment, and leads to impulsive decision making (see: Chapter 1, Section III(A)(1)).
4. Drug testing deters the defendant from possessing illegal drugs by making him or her aware that unlawful possession can be discovered at any time through drug testing, protects the public by enhancing the ability of the probation officer to detect unlawful substances and by assisting with substance abuse treatment, and assists with substance abuse treatment by providing a barometer for change.
5. Abstinence from alcohol use may be necessary because research shows that alcohol use is likely to trigger a recovering drug addict’s return to drug use. Additionally, substance-dependent defendants may substitute alcohol for their drug of choice.
6. Social science evaluations of drug treatment programs indicate positive effects on recidivism. Almost consistently, research demonstrates that correctional programs that are based on a cognitive-behavioral model are more effective than other modes of treatment. Cognitive-behaviorism assumes that cognitions affect behavior, people can monitor and alter their cognitive activity, and changes in cognitions will lead to changes in behavior (see: Chapter 1, Section III(A)(1); Chapter 3, Section X).

D. Method of Implementation

1. Considerations for Recommendation of Special Conditions
   1. The special condition requiring the defendant to participate in substance abuse treatment should be worded to permit the probation officer, in consultation with the treatment provider, to adjust the modality, duration, and intensity of treatment to the risk and needs presented by the defendant.
   2. When testing or treatment services are ordered, defendants should be required to pay for these services to the degree that they are able. The collection of reasonable co-payments for services meets both administrative and treatment objectives. It provides good stewardship of public money and ensures that limited funding resources are used for maximum benefit. Collection also meets the treatment purpose of providing a symbol for defendants of their investment in the treatment process. Research has shown that if a defendant feels invested in the treatment process, he or she is more likely to achieve success. It is also important that the wording of the requirement to contribute to the cost of treatment does not inadvertently delegate the establishment of the amount of the co-payment to the probation officer. Districts are encouraged by Judicial Conference policy to establish a court-approved sliding scale for treatment services that is responsive to changes in a defendant’s financial circumstances.
   3. The treatment condition should also include a provision requiring the defendant to submit to drug testing during and after formal treatment services are provided. It is advisable to get a separate drug testing condition, even when the mandatory drug testing requirements have been imposed (see: Chapter 1, Section II(A)(1)). Circuits vary in their wording requirements for the drug testing condition. Probation officers are directed to their local court policies to adopt wording that meets circuit requirements.
   4. Most treatment programs also require a defendant to abstain from alcohol during the course of treatment.
   5. There may be cases where defendants have a history of substance abuse, but are nevertheless categorized by an actuarial or screening/assessment instrument as low risk. If the instrument does not indicate a dynamic risk factor for substance abuse, and there are no positive mandatory drug tests (see: Chapter 1, Section II(A)(1)), probation officers should request that the court remove or suspend the special condition.
2. Correctional Interventions and Strategies
   1. A thorough understanding of the nature and severity of the defendant’s substance abuse problem is an essential first step toward establishing an effective plan for correctional intervention. Developing this understanding may require two stages: screening and assessment.
   2. The screening process places the defendant in one of two categories – a well-documented substance abuser or an uncertain substance abuser. Defendants who come to supervision with a recent and well-documented history of substance abuse do not require the administration of a validated screening instrument. By using the available documentation, probation officers can determine decisions about further assessment and treatment placement. Defendants who come to supervision with indications of substance use or a distant history of substance abuse require the administration of a validated screening instrument.
   3. When screening and/or other case information indicates substance dependence, a clinical assessment is typically the next step. An assessment is more comprehensive than a screening and is generally conducted by a clinically trained substance abuse professional or probation officer. The assessor identifies the defendant’s substance abuse severity, strengths, weaknesses, and readiness for treatment and provides a written recommendation for the appropriate level of services.
   4. The treatment plan should be collaboratively developed by the treatment provider, the probation officer, and the defendant. It should address the modality, intensity, and anticipated duration of treatment. Although the development of the treatment plan is a collaborative process, the probation officer is ultimately responsible for approving contracted services. All probation officers are expected to have sufficient knowledge about addiction and available treatment services to make informed decisions.
   5. The treatment plan should include long-term and short-term goals. Tying measurable objectives to these goals assists the provider, probation officer, and defendant to monitor progress. Outlining achievable milestones that the defendant completes as he or she works towards treatment termination ensures that the treatment is goal directed.
   6. In keeping with the underlying supervision philosophy of proportional intervention (see: Chapter 1, Section II(C)(1)), it is important that the intensity of treatment match the specific treatment needs of a defendant. Research indicates that providing services more intensive than needed can make defendants more likely to commit future crimes. There should be ongoing assessment of risk and needs.
   7. Once a treatment referral is initiated, the probation officer should arrange a meeting with the defendant and the clinician, during which an individualized treatment plan should be developed. The probation officer should use this meeting to address any concerns the defendant has and discuss how compliance will be monitored and the consequences of noncompliance. The probation officer should clearly state his or her role in monitoring the treatment plan.
   8. For substance-dependent defendants, abstinence from alcohol during the term of supervision is critical to facilitate positive outcomes. If a defendant does not have an alcohol restriction condition, Judicial Conference policy recommends that the probation officer ask for this modification to the defendant’s conditions.
   9. Probation officers are to use positive incentives to encourage prosocial behavior and reinforce progress toward objectives. The usefulness of positive incentives should not be underestimated; research indicates that rewards are more effective than sanctions when seeking to achieve long-term behavior change. Incentives must be implemented in a swift, consistent, and graduated manner. Incentives are provided by adding a positive reinforcement or taking away an existing sanction or restriction. Officers must modify supervision plans to reflect earned achievement incentives such as reduced restrictions or less frequent contact.
   10. The most reliable method of drug testing is urinalysis. Random testing may be implemented by the probation officer during unannounced visits to the home. Automated systems (code-a-phone) may also be used to notify defendants to report to the probation office for random testing.
   11. The sweat patch is a device that detects the presence of drugs in perspiration. Although the sweat patch does not produce the immediate results of on-site urinalysis, the methodology provides a means of continuous detection and is less intrusive.
   12. Alcohol abstinence conditions are to be monitored through contacting the defendant’s family and associates who have daily opportunity to observe the defendant’s behavior and through random breathalyzer testing.
   13. All substance-abusing defendants, even those who are making significant progress in their recovery, are susceptible to relapse. The process of recovery often includes relapses; thus, they are likely, unavoidable, and not necessarily indicative of long-term failure. Examples of behaviors that can be early warning signs that a relapse is imminent include the sudden loss of a job, change in mood, choosing to associate with others who are abusing substances, and going back to places where drugs were purchased or used. The probation officer should be well acquainted with these behaviors and relapse prevention techniques.
   14. The behavioral change process is full of trial and error. The balanced use of correctional and controlling strategies for drug use can prevent a return to criminality. Substance abuse treatment and case planning is a dynamic process and should be adjusted throughout the course of supervision in response to the defendant’s current risk and needs. The probation officer can accomplish this through regular reviews and updates to the supervision plan and by making contact with the defendant’s social network.
   15. To assist in the transition from a formal treatment relationship to a community-based aftercare program, the probation officer must participate in a final meeting between the defendant and the clinical provider. The probation officer must be aware of community-based programs and services that aim to help defendants with treatment needs or provide support. Ongoing communication with the defendant’s social network is essential when formal treatment services conclude to ensure that the defendant is in compliance with the aftercare plan in the community.