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

Retribution or Punishment

Retribution justifies sanctions as the earned punishment for transgressing the law. It is founded on the belief that members of a community have an obligation to obey the laws of that community and that anyone who breaks the law deserves punishment. Unlike all other purposes of sanctions, retribution does not aim to use the occasion of sentencing to achieve some future good result for the society. Punishment is meted out because a wrong has been committed and the transgressor must pay. A balance has been tipped (by the offense) and must be righted (by the punishment).

The philosophical underpinnings of this approach are many. Some philosophies focus on the importance of treating each individual as a responsible member of the community to be held accountable for his or her own behavior. Others focus on the societal need to expound community standards of behavior and to reinforce their importance by the act of condemning and punishing violations.

Retribution focuses primarily on the act committed in the offense. Punishment is based on the seriousness of the crime, rather than on the good that the sanction might do for the offender (such as treating an addiction or teaching a skill) or for the community (such as removing a potentially dangerous offender from the community). Neither estimations of future risk nor sanctions based on efforts to address that risk play a role in retribution.

Rehabilitation

Rehabilitation, incapacitation, and specific and general deterrence are utilitarian philosophies of sentencing. They rest on the principle that society is justified in inflicting pain and unpleasantness on its members only if some future good for the larger society is realized from the act: In the case of crime, sanctioning criminal behavior will result in less crime in the future and, therefore, in enhanced public safety.

Rehabilitation is based on the view that the most productive approach to preventing criminal behavior is to diagnose and treat its underlying causes in the individual. This view obviously has its roots in a theory of criminality that traces criminal behavior to some physical, emotional, or social problem of the individual offender.

To be effective, rehabilitation depends on several essential ingredients: a reliable means of assessing offenders' needs, a prescription for responding effectively to the assessment, the resources to respond adequately to the offenders' needs, and the knowledge that responding in this way will affect the individual's proclivity to commit crime.

The availability of resources remains one of the most common problems in implementing a rehabilitative approach to sanctions. When it is possible to determine the kinds of treatment, education, or other assistance that would benefit a given offender or groups of offenders, the resources are often not available. Typically, resources for such services for the noncriminal population are inadequate, making it even more difficult to obtain them for offenders. Some argue that rehabilitation has never been tried in this country because we have never dedicated the resources required to do it.

Until the mid-1970s, rehabilitation was the dominant goal of American corrections. Indeterminate sentencing structures, with their emphasis on "corrections" centers and institutions, and reliance on parole boards to determine when an individual was "ready" to be released (that is, cured) were at least partially based on a rehabilitative model of sentencing.

Incapacitation

The emphasis in an incapacitative approach is on preventing reoffending by restricting or disabling the offender, that is, by acting to reduce or eliminate the offender's opportunity to commit more crime. There are different degrees of incapacitation. Extreme examples, such as the death sentence, are not uncommon. In some societies the hands of thieves are cut off, and, in our own country, judges have ordered both physical and chemical castration of sex offenders.

Mandatory life prison sentences are required in some States for so-called habitual criminals. Other forms of incapacitation emphasize restricting rather than disabling the offender. Curfews, house arrest, required attendance at day reporting centers, and even the requirement of continuous employment or participation in work crews can be used to incapacitate offenders -- that is, to reduce their opportunity to commit crime.

Deterrence

Restoration

Unlike the other purposes of sentencing, which have a long history of debate and definition, restoration has no commonly accepted single definition. Relatively little has been written about it, and the understanding of its meaning in practice is still fluid. Its treatment here is necessarily tentative.

Restoration -- sometimes referred to as reparation -- aims to restore the community to its state before the crime was committed. As in retribution, the crime is viewed as a disruption of the peace or a tear in the moral fabric of the community, but the aim of restoration is to repair the peace rather than punish the offender.

There are many aspects to restoring the community. To the extent possible, restoration is used to provide reparation to the victim for the damage done, including the payment of financial restitution. It also focuses attention on the conditions in the community that may have contributed to the commission of crime in the first place. The aim of restoration is securing the safety of the community by preventing the offender, through rehabilitation, incapacitation, or deterrence, from reoffending. It offers the offender the opportunity to restore himself or herself to peace with the community by allowing him or her to make reparation for the offense.

Proportionality

Proportionality is the principle that a sanction should not be any more onerous, intrusive, or painful than warranted by the severity of the crime. This is a critical limiting principle in the imposition of sanctions whose ostensible purpose is to do good, where the temptation to do A LOT OF GOOD is hard to resist. It is one of the fundamental principles of sentencing legislation and decisions.

Equity

Equity is the principle that similarly situated offenders are to be treated similarly. It specifically restrains the system from responding to or sanctioning a subgroup of the offender population for a reason or in a way that is unrelated to their criminality.

Two examples of this principle are currently under discussion around the country. The first involves the passage in some States of laws that sentence offenders for possession or distribution of various amounts of crack cocaine more harshly than offenders who possess or distribute comparable amounts (in terms of use) of cocaine powder. One State supreme court rejected such laws as fundamentally flawed because the result was to punish one group of drug offenders very differently from another when the drug in question was the same except for its form.

The second example concerns the use of particular probation conditions for women offenders in response to perceived gender-related needs (parenting classes, life skills management, grooming classes), rather than to the behavior associated with their criminality (drug treatment, job training, and so forth). A female offender should be sanctioned in a way that is appropriate to the crime she committed and not in response to the fact that she is a woman.

Parsimony

Parsimony is the commitment to using the least intrusive and least drastic measures and the smallest amount of resources to obtain the desired objective in sentencing. Resources might be measured as the time of a probation officer, the duration of confinement, or the cost of treatment.

As with proportionality, parsimony is an important limiting principle in the design of intermediate sanctions: In using intermediate sanctions, decisionmakers often believe that if a little is good, a lot is better. Unfortunately, in addition to wasting resources, the use of too many conditions, restrictions, and expectations with offenders in the community can create failure where success was intended.

Humane Treatment

A commitment to humane treatment means that in deciding how and under what conditions sanctions are organized and carried out, the preference will be to seek the most humane method to achieve the goals of the sentence or the outcomes of the program. To choose the most humane way is to avoid unnecessary or gratuitous humiliation, pain, and discomfort.

Pretrial Supervision in Lieu Of Detention

Following arrest, a defendant is typically brought before a judge, bail commissioner, or magistrate for a decision on the conditions under which the defendant will await trial. A defendant can be released on his or her own recognizance (also called R.O.R, that is, a sworn promise to return), can be detained pending the posting of a certain amount of bail, can be detained with no bail (very unusual), or can be released under certain conditions, such as keeping a curfew or reporting periodically to a supervision officer. An increasingly common condition of release is participation in some form of treatment. Compliance is monitored by a pretrial supervision agency or the probation department. Should the individual fail to comply with the conditions of release, he or she can be returned to jail for detention prior to trial. Successful completion of the treatment or other conditions may mitigate the sentence that may result upon conviction.

Pretrial Diversion: Treatment in Lieu Of Prosecution

Treatment as part of pretrial diversion differs from treatment as a pretrial condition of release in several important ways. The decision to order treatment as part of pretrial diversion typically (though not always) rests with the district attorney's office. The prosecutor offers to cease all prosecution of the case if the defendant completes the prescribed treatment regimen. However, if the defendant fails to complete the treatment and satisfy the other conditions of diversion, he or she may risk being sentenced more harshly (if prosecution proceeds and a conviction results) than if the individual had never entered the diversion program.

Since pretrial diversion occurs before individuals have pled guilty or been convicted by a judge or jury, these individuals are technically innocent. Because of their anxiety about the outcome of pending charges, those charged may be more motivated at this time to agree to cooperate with treatment. Many treatment providers view this as an ideal time to intervene by offering an opportunity to participate in treatment.

(Note: A forthcoming Treatment Improvement Protocol will examine the use of AOD abuse treatment within the context of alternative case processing. Many jurisdictions have expanded this option through so-called drug courts.)

Sentencing

Following adjudication and a plea or finding of guilt, the offender is subject to sentencing by the court. Intermediate sanctions are most often ordered at this time. The sentence itself takes many legal forms, depending on the jurisdiction. The sentence may be to a term of probation in lieu of a term of imprisonment; the intermediate sanctions, including any AOD abuse treatment, are imposed as conditions of probation. In other cases, the intermediate sanctions are themselves the terms of the sentence. In some States, the actual judgment and conviction are suspended pending successful completion of the terms imposed by the court, including the intermediate sanctions.

Regardless of the specific legal form under which the sanctions are ordered, the court retains the right to revoke the offender's probation if the terms of the original sentence are violated and to impose a term of incarceration or any other sanction it may choose.

Although the sentence is imposed by a judge, the decision is influenced by other parties, including the prosecutor, defense attorney, and the probation agent, as well as by the traditional practices of the court.

The most important influence on sentencing decisions in individual cases is the prosecutor's power to choose the charge upon which conviction will be sought. Since any single act can be charged under many different crime statutes, some of which may carry restricted sentences, this discretion is considerable. When the prosecution and defense attorney discuss plea agreements, the prosecutor brings this ability to negotiate the charge to the table. Because more than 90 percent of felony convictions in the State courts are the result of guilty pleas rather than trials (Bureau of Justice Assistance, U.S. Department of Justice, 1991.), these negotiations between the defense and the prosecution are the key grounds where sentencing is decided.

Defense attorneys provide mitigating factors and negotiate around weaknesses they perceive in the case. Some public defender offices are energetic at getting out into the community and identifying alternative sanctions that the court and probation office may not know about. Others are not. In either case, defenders typically advocate for the least restrictive sentencing, which may not always agree with treatment goals. In some defender offices, social workers interview clients to evaluate them from a clinical perspective.

Probation officers also influence decisions regarding intermediate sanctions, particularly in cases where presentence investigations are requested. In sentencing hearings (held when guilt has been established at a trial, or following a guilty plea not resulting from a sentence agreement between the prosecutor and the defense), the prosecutor is expected to represent the people; the defense attorney represents the accused. The prosecutor urges tough sentences; the defense urges the least restrictive. A good probation officer examines the situation independently of the positions taken by the prosecutor and the defense. She or he will seek the most appropriate sentence based on a number of factors, including the offender's criminal history, employment history, family situation, physical and emotional problems, and other needs. The probation officer may, figuratively speaking, sit with the prosecutor in one case and with the defense attorney in another. The court may be inclined to give great weight to the probation officer's recommendations, trusting his or her independent judgment.

Probation Supervision

In some jurisdictions, the court orders the offender to a term of probation and permits the probation agency to impose the specific level of supervision and additional conditions that may constitute intermediate sanctions. In this case, the agency retains the ability to order treatment, impose restrictions, or otherwise control the offender.

If the offender fails to observe or complete these conditions, his or her probation can be revoked by the court, and he or she is subjected to any sanction the court chooses. (See next step.)

In determining the level of supervision that individual offenders require, many probation (and parole) agencies employ classification systems. These systems use objectively derived instruments that measure offender risk as calculated by identifying the presence or absence of preidentified risk factors. The scores are used as the basis for grouping offenders into one of several categories for purposes of supervision.

Probation Violation: Treatment in Lieu of Revocation

In the case of any offender on probation, the court may order intermediate sanctions, including AOD treatment, when the offender has been found to be in violation of the original conditions of probation.

Probation officers exert their greatest influence in probation violation and revocation cases. Although agency policy and practice also play key roles, individual officers typically have considerable discretion in handling violation behavior. (Violation behavior might include failure to keep a scheduled appointment, positive results of a urinalysis, or drinking in a bar when that was specifically forbidden by the probation conditions.) Probation officers can issue warnings, intensify supervision, bring the probationer in to be reprimanded by a supervisor, or bring the case back before the court and ask for a revocation. Officers may also bring a case to the judge and recommend an intermediate sanction instead of a revocation to jail or prison.

Condition of Release on Parole

Parole is a form of supervised release into the community following a term of incarceration. In most States, a parole board decides on a case-by-case basis which inmates to release from prison, when (at what point in the total sentence), and with what conditions. (If an offender is never granted parole and serves his or her entire sentence, he or she is said to "max out," and does not receive supervision after release.) In the same way that a judge orders conditions of probation, the parole board orders conditions of parole. Failure to comply with the conditions can result in a motion to the board to revoke parole and return the parolee to prison. AOD abuse treatment and some of the other intermediate sanctions described earlier are common conditions of parole release.

Not all States have parole as part of their sentencing laws. In such States as California, Washington, and Minnesota, an offender serves the term specified by the judge at the time of sentencing, minus any time off that term for good behavior or program credits, if those are available in the State. In that case, the offender leaves prison under mandatory release and usually has no conditions on that release.

Parole Violation: Treatment in Lieu Of Revocation

As with probation, a parole board can impose intermediate sanctions, including AOD abuse treatment, in response to violations of the original conditions of parole and in lieu of revocation to prison.

Parole agents have the same power with parolees as probation officers do with offenders on probation. They can bring cases of parole violation behavior to the parole board for revocation or recommend an intermediate sanction. When a new crime has been committed, the offender is accountable to the parole board in addition to the court.

Sanctions vs. Programs

As indicated earlier, a sanction is a legally binding order of a court or paroling authority. A sanction may include a program or several programs, but these are not themselves the sanction.

Programs are organized activities and interventions designed to achieve specific purposes in many different arenas. They are typically created to address a specific problem or need; the strategies that they adopt to respond to or ameliorate the problem or need govern the organization, activities, staff, and internal operating policies of the program. This TIP examines use of a variety of types of AOD abuse treatment programs for offenders offered within the jurisdiction of the criminal justice system as well as by community AOD abuse treatment programs that also serve nonoffenders.

Many treatment programs in both the justice system and the community have made the necessary accommodations to provide services to offenders. In fact, the history of treatment is replete with examples of accommodation in scope and purpose to meet the changing needs of clients. Programs have adapted from treating heroin addiction to treating teenagers sniffing glue and abusing LSD and to treating addiction to crack cocaine. Flexible programs can adjust to deal with offenders, even if they have not previously treated this population.

Successful integration of AOD abuse treatment and intermediate sanctions depends on a continuing process of monitoring and evaluating the impact and effectiveness of selected programs. Results-oriented programming can ensure the timely identification of problems and changing needs and permit the necessary redesign or adjustment of program components.

Sanctions Are Not Diversion

Because the terms diversion and intermediate sanctions are so often used together, it is important to distinguish between them.

Diversion may occur before conviction and sentencing, in which case the diversion is a pretrial diversion. (See discussion above.) Confusion occurs when intermediate sanctions, ordered at sentencing, are referred to as diversion, meaning diversion from prison or jail. In this latter instance, diversion refers to the placement of an offender in a specialized corrections program designed for offenders in lieu of sending them to prison. In that specific instance, it is appropriate to use the term diversion for that specific intermediate sanction. However, most commonly used intermediate sanctions cannot properly be referred to as diversionary because it is difficult to prove that the offenders who are sentenced to them would otherwise have gone to prison. Pretrial diversion diverts the accused from prosecution. Post-sentencing diversion (which seldom occurs) diverts the convicted from prison or jail.