Standards on Substance Abuse
V. Ordering Treatment. Judges should be familiar with the
options available at each stage of every case to provide access
and make referrals to treatment for substance abuse, as defined
in the Introduction, and to order treatment for substance abuse.
Every court in every Trial Court department should make use of existing
options for providing access and making referrals to treatment,
if appropriate, and ordering treatment in appropriate circumstances.
A list of options is provided in the Commentary.
The court should use its authority to direct a reluctant party into
treatment for substance abuse in appropriate situations. Substance
abuse can be treated effectively, and involuntary participants in
treatment do recover. (See Introduction.)
Court involvement creates a crisis in a person's life, and courts
are uniquely situated to take advantage of the crisis by directing
the person toward treatment. A timely response to the individual's
crisis is most likely to lead to success in treatment. The court's
authority should be used to order treatment or impose treatment
conditions only when substance abuse is a factor in behavior related
to the case, and the treatment ordered should be proportional to
the underlying behavior. Judges are encouraged to consider information
provided by the victim when fashioning treatment orders in criminal
There are many occasions under
the law when a treatment order is appropriate:
Criminal proceedings afford
several opportunities to use the court's authority to coerce a criminal
defendant into substance abuse treatment and to motivate the defendant
to comply with any treatment orders.
- At the pre-trial stage,
the court may, with the defendant's consent, place the defendant
on probation and make alcohol or drug treatment and testing a
condition of that probation. G.L. c.276, §87.
- G.L. c.111E, §10 lays out
procedures at the time of arraignment for offering a defendant
charged with a drug offense the opportunity to be evaluated for
"drug dependency." If the court determines that the defendant
is a "drug dependent or drug addicted" person, the court can assign
the defendant to a drug treatment facility with the treatment
provider's consent, and eventually dismiss the charges.
- District courts may establish
a pre-trial diversion program, which may have as a component alcohol
or drug treatment. G..L. c.276A, §§1- 9. If a defendant completes
the diversion program, the case is usually dismissed.
- In cases involving certain
crimes, the Commonwealth may move on the grounds of the defendant's
dangerousness for pre-trial detention or release on conditions
under G.L. c. 276, §58A. In these cases, a judge may, depending
on findings, decide to hold a defendant without bail pending trial,
release the defendant on personal recognizance, or release the
defendant under certain conditions, which may include refraining
from the use of alcohol or drugs and undergoing drug treatment
for drug or alcohol dependency. G.L. c.276, §58A.
- In cases involving actual
or potential physical harm to a family or household member, the
judge may set any terms in lieu of or in addition to personal
recognizance that will insure the safety of the person suffering
or threatened with abuse and will prevent its recurrence. G.L.
c. 276, §42A. Substance abuse treatment can be one of those conditions.
- If it is appropriate to
hold a defendant in custody in lieu of bail, the judge is encouraged
to ask probation to provide information to the jail or house of
correction regarding any defendant's apparent substance abuse.
See also Standard X.
- After a finding of guilty
and prior to sentencing a defendant, a judge may order a substance
abuse assessment of the defendant to aid in sentencing. This can
be especially helpful where the relationship between mental health
and drug addiction issues needs to be clarified. G.L. c.123, §15
- The judge may always postpone
sentencing to enable the probation department to prepare a pre-sentence
report which details the defendant's substance abuse history,
including treatment needs and prior or current efforts to seek
treatment. Mass. Rules of Criminal Procedure, Rule 28(d)(2).
- After an admission to sufficient
facts and a court-imposed continuance without a finding, probation
can be conditioned upon compliance with specific terms and conditions,
such as substance abuse treatment. G.L. c. 278, §18.
At sentencing, the judge may
suspend any part of a sentence to a House of Correction under any
conditions it might set, including treatment. G.L. c.279, §§1, 1A.
The sentencing of defendants charged with first and second
offenses involving operating motor vehicles under the influence
of alcohol or drugs creates opportunities for court ordered treatment
which are explicitly prescribed by statute. G.L. c.90, §24 et seq.
In sentencing defendants involved in family or household abuse situations,
the court has explicit authority to order substance abuse treatment,
including residential treatment. G.L. c.276, §42A.
Any defendant who is found
guilty of any type of offense may inform the court that he or she
is a "drug dependent person who is in need of treatment." If this
is confirmed, the court may order that the defendant be afforded
substance abuse treatment at any facility in which he or she may
be incarcerated. G.L. c.111E, §11. (See Standard
X.) The court has broad discretion in setting conditions of
probation for any defendant. G.L. c. 276, §§87, 87A. This may include
attendance at a drug treatment program. The court may also order
a drug dependent defendant to a treatment facility as a condition
of probation. G.L. c.111E, §12.
When structuring a sentence
for a defendant who is a substance abuser, the judge should keep
in mind that substance abuse is a disease of relapse, and try to
fashion a sentence which leaves room for the application of escalating
sanctions for non-compliance with specific conditions of probation.
Straight probation with strict conditions provides the greatest
flexibility to respond to relapse. When the defendant is convicted
of more than one charge, the judge can also lay a foundation for
the application of escalating sanctions for non-compliance, by imposing
a combination of different sanctions for the different charges -
e.g., a committed sentence to the House of Correction followed by
probation, probation concurrent with or on and after a committed
sentence, a combination of straight probation with probation conditions,
or different lengths of suspended sentences on and after one another.
4. Probation Violation
Probation violation and modification
hearings present valuable opportunities for mandating substance
abuse treatment. When a probationer is before the court for a probation
violation, the court may order a new assessment, initial treatment,
or intensified treatment as an alternative to incarceration. A court
may modify conditions of probation as a matter of common law. Buckley
v. Quincy Division of the District Court, 395 Mass. 815 (1985).
However, a court may not impose only part of a formerly suspended
sentence as a means of coercion. G.L. c. 279, §3; Comm. v. Holmgren,
421 Mass. 224 (1995). The use of straight probation and the imposition
of suspended sentences of different lengths, as recommended under
paragraph 3 above, however, give the judge the flexibility at the
time of a violation hearing to apply gradually escalating sanctions
for non-compliance. Sometimes, it is necessary for the judge to
revoke probation in order to protect public safety.
The District, Juvenile, or
Boston Municipal Court may hear requests for the civil commitment
of alcoholics and substance abusers upon the written application
of certain petitioners (police officer, physician, spouse, blood
relative, guardian or court official). G.L. c.123, §35. The judge
may order a person committed for up to 30 days upon a finding, based
on competent medical testimony, that the person is an alcoholic
or a substance abuser and that there is a likelihood of serious
harm as a result of his or her alcoholism or substance abuse. These
civil commitments may occur at any time during the pendency of a
criminal case, including at arraignment, and should also be considered
in other situations. Citizens who come to court looking for help
with a family member with a substance abuse problem should be informed
about community treatment resources or, if there appears to be a
likelihood of serious harm, should be informed about a petition
for a §35 commitment.
The Juvenile Courts and juvenile
sessions of the District Courts also have options to order treatment
for juveniles and parents in various types of cases.
In delinquency and youthful
offender cases, the judge may order substance abuse assessment and
treatment as a condition of probation for a juvenile adjudicated
delinquent or a youthful offender. G.L. c.119, §58. With the defendant's
consent, probation or diversion may be ordered even before adjudication.
G.L. c.276, §87; G.L. c 276A. If a juvenile is ordered committed
as a delinquent to the custody of the Department of Youth Services
(DYS), then DYS is responsible for finding suitable treatment services.
In such a case, the court should make specific recommendations to
DYS regarding substance abuse treatment.
2. Children in Need
"Children in need of service"
(CHINS), which includes runaways, truants, and stubborn children,
may be placed in the custody of the Department of Social Services
(DSS) with a request by the judge that treatment be provided. G.L.
c.119, §39H. After adjudication as a CHINS, a juvenile may be committed
to the custody of DSS with the same request by the judge for substance
abuse treatment. Another disposition is to allow the child to remain
in the custody of his or her parents, on the condition that he or
she comply with the substance abuse treatment ordered by the court.
Any such order must be made as a condition of custody only. The
judge may not directly order the child to engage in substance abuse
treatment. See Matter of Vincent, 408 Mass. 527 (1990).
3. Care and Protection
Care and protection cases
present a strategic opportunity for court intervention with substance
abusing parents, keeping in mind the best interests of the children.
G.L. c.119, §51A et seq. If the judge believes substance abuse may
be a factor, the judge should advise the respondent parent(s)/guardian
that failure to comply with substance abuse treatment will be considered
as a factor in making the ultimate determination of parental unfitness
or of termination of parental rights. However, the fact that the
judge did not advise the parent(s)/guardian of the ramifications
of failure to comply with substance abuse treatment does not prevent
the judge from considering substance abuse in making an ultimate
determination of parental unfitness or termination of parental rights.
Probate and Family Court cases
routinely involve substance abuse issues. These cases may involve
divorce or paternity-related custody or visitation disputes under
G.L. c.208 and c.209C, petitions to dispense with parents' rights
to consent to adoption under G.L. c.210, guardianships of minors
under G.L. c.201, or applications for orders of protection under
G.L. c.209A. The judge should identify substance abuse early in
any case involving children, provide for an assessment of the parent's
treatment needs, refer the parent to an appropriate substance abuse
treatment provider in order to address the problem, monitor the
parent's progress in treatment through interim hearings, and
manage the case by bringing it back periodically to determine progress
and adjust visitations accordingly. Faced with the loss of custody
of a child, a substance abusing parent is likely to be receptive
In domestic relations cases,
either a party or a probation officer (family service officer in
the Probate and Family Court) can best inform the judge of substance
abuse issues. The judge may also direct a family service officer
to investigate a family situation and submit a report to the judge.
As part of that report, the family service officer can assess the
validity and severity of any substance abuse allegations and make
recommendations to the court regarding custody, visitation, and
treatment for the substance abuser.
The court should take special
precautions when dealing with orders of protection under G.L. c.209A.
When dealing with a batterer who is also a substance abuser, treatment
for substance abuse should precede or be in conjunction with batterer's
treatment or the batterer's treatment will be ineffective. Therefore,
in cases involving batterers who are also substance abusers, the
judge should order substance abuse treatment as well as a certified
batterers' program. The Standards on Judicial Practice, Abuse Prevention
Guidelines, Guideline 6:01 state in part: "In addition to including
in the order terms necessary to ensure the safety of the plaintiff,
the judge or court personnel may recommend and refer the parties
to appropriate agencies for victims of violence and certified batterers'
programs. Among these may be counseling for substance abuse."
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