Combining Substance Abuse Treatment With Intermediate Sanctions for Adults in the Criminal Justice System
Treatment Improvement Protocol (TIP) Series 12

The Interest in Intermediate Sanctions

In describing the contemporary landscape in which jurisdictions are working to combine intermediate sanctions and effective AOD abuse treatment, certain trends must be understood. These include:

• More people than ever before are being incarcerated, for longer periods of time.
• More State and local funds are being spent on prisons and law enforcement than ever before.
• A growing percentage of crime is related to AOD use and abuse.
• People are more concerned about crime and more afraid of becoming a crime victim now than they were in even the recent past.
• The criminal justice and AOD abuse treatment
• systems serve a disproportionately large number of persons from minority groups.
• Increasing numbers of persons with special needs are served by the criminal justice and AOD abuse treatment systems, including, for example, elderly and HIV-infected persons, pregnant women, and mentally ill AOD abusers.
• Resources will always be limited.

It is against this backdrop that interest in intermediate sanctions has flourished. For some, these sanctioning options represent the right approach to sentencing: They include many criminal justice system policymakers who want the ability to do individualized sentencing, to be able to respond appropriately and effectively to the diversity of offenses and offenders presented to them. The interest of others is driven by profound dissatisfaction with the outcomes of most existing sanctions, including prison, jail, and probation, particularly in light of their cost. Dissatisfaction with current sanctions is probably most profound in cases that involve drug- and alcohol-abusing offenders. Even the less serious crimes that these offenders typically commit -- burglary, robbery, purse-snatching, small-scale drug sales -- induce fear and are ruinous to a community's sense of itself. Policymakers' greatest dismay is that the intervention of the criminal justice system seems to have little or no effect: The same offenders appear in court time after time. At the same time, the costs of prison, jail, and probation are draining the coffers of State and local governments at a growing rate.

Others, including both criminal justice officials and a considerable portion of the public, believe that these options are necessary because there is simply not enough money to build enough prisons to incarcerate all offenders. In fact, intermediate sanctions programs combined with AOD abuse treatment have been shown to be a more cost-effective approach to the Nation's crime and substance abuse problems than long-term incarceration.

The public is beginning to understand that being jailed or imprisoned is not the only possible consequence of criminal behavior. Intermediate sanctions and AOD abuse treatment are also consequences, and both require accountability. Recent public opinion studies conducted in a variety of States, including Colorado, Delaware, Alaska, and Alabama, have indicated that the public may be more open to these ideas than are many elected officials. The public is beginning to accept creative approaches, even for serious offenses, and accepts the idea of restitution or meaningful community service as well as treatment as appropriate measures of accountability for certain criminal actions.

These expectations of intermediate sanctions -- that they will be more effective, cost less, and present no increased risk to the public -- are terribly high and perhaps even unrealistic. They stand virtually no chance of being met, however, unless jurisdictions can match the sanction with the offense in a way that will meet the connected goals of protecting the community, rehabilitating (or habilitating) the offender, and holding individuals accountable for their behavior.

The matching of offenders and sanctions in the service of specific goals demands that the use of intermediate sanctions be policy driven. Creating policy requires interagency collaboration: Judges, prosecutors, criminal justice agencies, and treatment groups have to choose the goals that are appropriate for offenders, become educated as to what sanctions are available to them, and then reach agreement on which sanctions are most likely to achieve the goals.

Defining Intermediate Sanctions

Sanctions are legally binding orders of the court or paroling authority that deprive or restrict offender liberty or property. An intermediate sanction is any sanction that is more rigorous (unpleasant, intrusive, or controlling) than traditional probation but less restrictive than total incarceration.

In many jurisdictions, public and private agencies have already created a wide variety of intermediate sanctioning programs and options. With the advent of new technologies for assessment and supervision of offenders, new methods of intervention and treatment, and an increased understanding of targeting programs to particular populations, the capability of those agencies to manage offenders safely and to treat them effectively in the community has expanded as well.

The difficulty for many jurisdictions is that the term intermediate sanctions is used to refer both to specific sanctioning options or programs and to the overall concept of a graduated range of sentencing choices guided by articulated policy that directs their most appropriate use. Creating intermediate sanctions requires the development of a range of sanctioning options and a coherent policy to guide their use.

There is further confusion created when particular programs or options are used for pretrial populations, that is, for those who have only been charged with but not convicted of a crime. In that case, the court may order a defendant to participate in a treatment program or report to a day reporting center (for example) as a condition of release while he or she is awaiting trial. Under that circumstance, the program is not truly an intermediate sanction, but a form of pretrial supervision.

The particular programs or forms of sentencing that comprise a jurisdiction's intermediate sanctioning options can be whatever the policymakers of that jurisdiction decide that they need and can afford in order to meet their goals for their offender population. Some of the more widely used options are described in Exhibit 1-1. AOD abuse treatment may be combined with any of these sanctions to achieve the goal of more effective sentencing for drug-involved offenders. It is important to understand, however, that each jurisdiction, whether a State, a county, or a court district, will have developed its own version of these, and that from area to area, programs may share a name and little else.

Jurisdictions around the country are using a wide variety of intermediate sanctioning options and inventing new ones. As described below, these sanctions are employed or imposed at various points in the criminal adjudication and disposition process. However, they are rarely used alone. They are typically imposed in a package, and often are part of a so-called "split sentence" (that is, a short -- 1 to 6 months -- period of incarceration combined with time under supervision in the community). A particular offender, for example, might be ordered to serve a short term in jail and, after release, to observe a strict curfew, attend a day treatment program, and perform a specified number of hours of community service each week.

The History of Intermediate Sanctions

There is nothing inherently new in intermediate sanctions. Private agencies, probation departments, parole agencies, corrections departments, and community corrections agencies have for many years operated programs with special features designed to make them more intense than "typical" probation or parole, but less intrusive than incarceration: Work release centers, halfway houses, intensive supervision, supervised furloughs, community service, and community treatment programs have been used for decades.

The development of community-based corrections programs gained momentum in the 1960s and 1970s. The increase in funding for social programs and the optimism about dealing with poverty and social problems that characterized much of that period also influenced criminal justice. The creation of the Federal Law Enforcement Assistance Administration (LEAA) in the early 1970s meant the addition of many millions of dollars each year for the development and operation of new community-based offender treatment and training programs.

Following a period of fairly localized program development, several States organized and funded community corrections as a separate branch of corrections and a distinct sentencing option in the mid-1970s. Kansas, Colorado, Iowa, Minnesota, and Oregon developed community corrections acts during this time.

While each jurisdiction was -- and is -- different, the motive behind these initial efforts was the belief that many offenders, particularly those with short criminal histories and no record of violence, could be dealt with more effectively in the community than in an institution. The underlying assumption was that the purpose of sanctioning was to make offenders less likely to commit more crime, chiefly through treatment and training. Individual communities were seen to be the best judges of appropriate responses to their own offenders and, therefore, the most appropriate treatment sites.

In the 1980s, a number of other States, including Tennessee, Michigan, and North Carolina, created community corrections programs. Other States began experimenting with intensive supervision probation, electronically monitored house arrest, and boot camps. The difference between these and earlier efforts was the emphasis in the 1980s on punishment and increased control of offenders, as opposed to treatment and training. To gain support, new community-based programs had to prove how tough and unpleasant they were. At the same time, States were passing laws creating mandatory minimum prison sentences for a wide variety of crimes; escalating the penalties on most crimes, especially those involving drugs; and making an increasing number of offenders ineligible for nonincarcerative sentences. The so-called war on drugs, as waged by legislatures and law enforcement and prosecutorial agencies, was part of this fundamental shift in criminal justice policies. According to surveys of the Nation's 75 largest counties by the Department of Justice, the percentage of felony convictions resulting in prison sentences increased consistently and dramatically in the last half of the 1980s, while the percentage resulting in probation sentences declined. The largest increase in prison sentences was for drug-trafficking offenses. In 1990, 71 percent of felony convictions in State courts overall resulted in a sentence to prison or jail (Bureau of Justice Statistics, 1990).

The emphasis on control, supervision, and surveillance of offenders in the 1980s resulted in the development of new or enhanced technologies to achieve those objectives. Probation and parole agencies devised objective risk assessment instruments to measure the level of risk that groups of offenders represented, and used the results to develop the most effective supervision strategies for each group. With the development of easy and relatively inexpensive methods of chemical testing, screening offenders for the use of illicit drugs became routine at arrest and as part of offender supervision. Several different technologies have been deployed to monitor the movement of offenders in the community using electronic devices attached to the offender, a telephone hook-up, and computers signaled by the devices.

Throughout the 1980s, the call for increased offender accountability and punishment also resulted in the development of community service, day fines, and restitution programs whose emphasis is on making the offender "pay his (or her) debt" to society. Many of these programs emphasize difficult and/or unpleasant manual labor, often performed in public places. Boot camps have also surged in popularity.

This shift in emphasis from treatment and training to punishment, surveillance, and control means that as we approach the mid-1990s, many jurisdictions have a fairly broad range of types of sanctioning options in place that are designed to meet many different goals. At the same time, corrections agencies and courts are beginning to understand the power of information technology to help them manage their operations and pinpoint the kinds of offenders in their system. A well-designed information system can give a local or State criminal justice system very specific data on its offenders and can help its policymakers make informed choices about the most effective use of existing and yet-to-be-created sanctioning options for its offender population.

AOD-Involved Offenders And Intermediate Sanctions

As policymakers examine the use and benefits of intermediate sanctions in their systems, the offenders that they typically identify first as potential candidates for such sanctions are drug- and alcohol-abusing offenders. Those on the front lines of the system -- judges, prosecutors, probation officers, and defense attorneys -- are expressing their frustration at the ineffectiveness of a "punish and control" approach with AOD offenders. They are fueling, and in many cases leading, the demand for a range of sanctioning options that contains: first, programs that provide AOD abuse treatment that can be used as a component of a sentence or sanction, and, second, options that permit them to respond to relapse without sending the offender to jail or prison. Their demands arise not out of a desire to hold offenders less accountable or less subject to appropriate control, but rather from a belief that only effective treatment will reduce offenders' propensity to commit future crimes, and thus increase public safety.

Federal, State, and local legislatures are responding. Increased funds are being allocated for treatment, and in some places, greater discretion to use these sanctions is being returned to judges. Prosecutors' offices and courts are establishing so-called "drug courts" to divert low-level AOD offenders to treatment before they are adjudicated.

Overview of This Tip

This Treatment Improvement Protocol fosters cooperation between the criminal justice system and the alcohol and drug abuse treatment field to address the use of intermediate sanctions with offenders whose crimes are related to their AOD abuse. Intermediate sanctions can be structured and used to realize benefits for the community and the offender by punishing crime and treating its cause at the same time.

Bringing about the cooperation and collaboration required to combine sanctions and treatment requires the joint efforts of the legal, correctional, medical, educational, and treatment fields, as well as continuing research efforts. For the benefit of all these fields, the TIP uses a fundamental and logical approach to provide basic overviews of the criminal justice system and the AOD abuse treatment system (Chapters 2 and 3, respectively).

The TIP then proceeds logically to describe the processes of combining the two systems in local areas (Chapters 4 and 5). This is followed by a discussion of major issues that will face planners in developing a cooperative criminal justice and treatment approach to intermediate sanctions (Chapter 6). Specific planning approaches for developing policy at the local level are provided. The TIP concludes with a discussion of the ethical and legal issues involved (Chapter 7).