Supreme Judicial Court
Standards on Substance Abuse

STANDARD VI. Indications of Substance Abuse. All judges and court personnel should look for indications of substance abuse that may be a factor related to a case before the court.

COMMENTARY: Indications of Substance Abuse in Criminal and Delinquency Cases

There can be at least seven sources of information which suggest that substance abuse may be a factor related to the case:

1. The offense title. Any criminal offense can involve substance abuse. For some offenses, however, substance abuse generally appears more likely - a drug or alcohol related offense, disorderly conduct, disturbing the peace, assault and battery, malicious destruction of property, leaving the scene of an accident, breaking and entering, larceny, prostitution, and shoplifting.

2. The actual allegations. The statement that an offense was committed while the defendant was under the influence of drugs or alcohol or was otherwise related to substance abuse may appear in the information provided by the District Attorney, such as the police report, or in the clerk's file, among allegations presented at the hearing on an application for a criminal complaint.

3. The criminal record. In general, a history of offenses which probably involve substance abuse may be discerned from a defendant's criminal record. Even a first offense, however, may merit inquiry regarding substance abuse.

4. Abuse prevention order. In cases when an order against domestic violence is sought in connection with the criminal complaint or has been issued previously, the affidavit in support of the application may allege substance abuse or reveal facts suggesting substance abuse.

5. A party's demeanor or physical appearance. Substance abuse may be indicated if the party appears agitated, glassy-eyed, unkempt, or unsteady, or if the party smells of alcohol. Judges and other court personnel should be aware, however, that slurring of speech or tremors can also be symptoms of neurological or metabolic illnesses.

6. A party may identify himself or herself as a substance abuser, and request referral to a detoxification center or treatment program.

7. The victim of a crime, the police officer, a family member, or others may provide information about an offender's substance abuse.

Indications of Substance Abuse in Civil Cases

In cases involving divorce or paternity-related custody, termination of parental rights, guardianship of minors, or applications for restraining orders under G.L. c. 209A, factors similar to those listed for criminal cases may indicate that substance abuse is involved. In addition, substance abuse may be present if the parents are alleged to have left children unattended or to have frequently left children with friends or neighbors while staying out late, or if parents are charged with a criminal offense. In other kinds of cases, substance abuse may be indicated by sudden or persistent financial difficulties.

Determination That Substance Abuse Is a Factor.

Judges and court personnel should be alert to other interpretations of the indications listed. Counsel may wish to be heard on the issue of whether substance abuse is a factor in the case.

STANDARD VII. Screening. If there is an indication that substance abuse is a factor in a case, at the earliest stage and at any stage, the court is encouraged to use tools for prompt screening. Screening is a mechanism for rapid initial determination whether it is appropriate for a person to undergo a substance abuse assessment (as provided in Standard VIII) or to participate in a treatment program. In performing screening, courts should observe applicable constitutional and statutory safeguards, including the right to counsel and the privilege against self-incrimination.

COMMENTARY: The purpose of screening is to provide the court rapidly with information regarding any drug or alcohol factor in a case. Screening results usually provide a sufficient clinical basis for a court order directing a person to appear for a substance abuse assessment (as provided in Standard VIII) and to undergo treatment, but in some cases the judge may prefer to refer the person for a substance abuse assessment before ordering treatment. The probation department is responsible for conducting screening and recommending whether a substance abuse assessment is appropriate.

Screening is the first stage of the diagnostic process, but an assessment is necessary for full and clear understanding of a party's substance abuse. Screeners look for possible abuse of alcohol or other drug; primary substance used, if any; symptoms of acute mental health problems; signs of acute intoxication or withdrawal; other medical problems, particularly infectious diseases such as HIV/AIDS or tuberculosis; motivation or readiness for treatment; criminal history; prior involvement in treatment; and use of psychotropic medication.

Judges and other court personnel should be aware that a defendant or party who is shaking or suffering from flu-like symptoms may need detoxification, a medical intervention to manage withdrawal symptoms caused by abstinence from alcohol or drugs. Since such withdrawal can cause very serious medical problems, and can be life-threatening in the case of alcohol, the judge should initiate an appropriate response, such as directing the probation department to refer the person to a treatment facility or, if involuntary commitment is necessary, initiating a commitment for detoxification pursuant to G.L. c. 123, §35. If the person is remanded to the House of Correction, the mittimus should make a clear statement concerning the need for detoxification.

Even if a screening cannot be performed, courts should consider the indications of substance abuse to the extent allowed by law.

STANDARD VIII. Assessments. When the court has determined as a result of a screening that substance abuse is a factor in the case and has issued or is considering a court order of substance abuse treatment, a substance abuse assessment should be conducted under the direction of the probation department, in order to determine which form of treatment will be most appropriate and effective.

COMMENTARY: The purpose of this standard is to assure that court-ordered treatment will be based on comprehensive information regarding a party's drug or alcohol abuse. An assessment should be done and considered by the court at each stage of a case when the court is considering a change in a party's status. An assessment is an in-depth process to determine a person's specific treatment needs, which takes much longer than a screening. An assessment is an evaluation performed under the direction of the probation department by a qualified clinician or other qualified substance abuse professional. In general, the probation department should refer parties to treatment providers for substance abuse assessments, but some probation officers have the requisite training and experience to conduct substance abuse assessments. Probation officers should be alert to mental health problems which compound substance abuse problems, and, in cases involving major mental illness in addition to substance abuse, the probation department should use the court clinic or an outside vendor with mental health expertise to conduct the assessment. The treatment provider to which the party is eventually referred should always conduct its own clinical assessment, in order to confirm that the referral is appropriate, design a treatment plan, and engage the party in the treatment.

A court-ordered substance abuse assessment should determine whether and to what extent a party is using substances, evaluate the party's suitability for treatment, determine whether and what treatment is appropriate, and establish the degree of risk to the community due to the substance abuse of a defendant or convicted offender in a criminal case. If treatment is appropriate, the assessment should result in a recommendation for treatment appropriate to the party's needs, for a specific time in a designated residential facility or community placement, with proposed monitoring requirements. The assessment should include information regarding any insurance coverage available to the party, including coverage, or eligibility for coverage, by the Massachusetts Medical Assistance program. The assessment should consider all available, relevant information regarding the party, including, where applicable, substance abuse history; mental health history; other areas of psychosocial history and functioning, such as medical and health status; employment and job status; social and family relationships; educational status; legal status (current case and other pending or active cases); treatment history, including responses to and compliance with treatment; prior experience with self help recovery groups; motivation or readiness for treatment; resources and limitations affecting ability to participate in treatment; learning or other developmental disabilities; and family history of mental health and substance abuse disorders.

STANDARD IX. Treatment Matching. Court-ordered treatment should match the party's treatment needs, and should be selected on the basis of expert information about what type of treatment will work best for the party, with full consideration of public safety.

COMMENTARY: Court-ordered treatment should be based on the court-ordered assessment and the treatment recommendation resulting from the assessment, including the manner of payment for the treatment recommended. The treatment recommendation should address the party's needs, if any, for educational assistance, psychological or psychiatric services, vocational services, and social skills training. If an assessment is conducted before the issuance of the treatment order, the probation department, with the judge's approval, should make all relevant information and recommendations available to the court, the parties, and their attorneys, within a reasonable time prior to the issuance of a treatment order. See Massachusetts Rules of Criminal Procedure 28(d)(3) regarding access to pre-sentence reports. The objective of matching treatment to the party's treatment needs is to match the intensity of the intervention to the severity of the substance abuse problem. It involves consideration not only of the individual qualities addressed by the assessment, including the severity of the dependency and the support structures available to the person through family, work, school, and peers, but also of the latest available information about the effectiveness of treatment programs. Appropriate matching, using only those resources and restrictions called for by the substance abuser's problem, greatly enhances the effectiveness of treatment, is essential in addressing relapse and reducing recidivism, and promotes the efficient use of resources.

Self-help recovery groups, such as Alcoholics Anonymous and Narcotics Anonymous, are typically part of a good, comprehensive treatment plan. For example, if a treatment program slot is not immediately available, the judge may order that the party abstain from alcohol or drugs (as provided in Standard XI) and suggest that he or she should participate in a self help recovery program in order to comply with the abstinence order. Such participation can be a valuable interim action. Participation in a self-help recovery group can also be an essential adjunct to treatment and a means of sustaining recovery. The judge should allow the party the option of attending either AA/NA meetings or other daily self help recovery meetings that do not conflict with his or her religious beliefs.

STANDARD X. Recommendations to Correctional Authorities. Criminal courts should indicate to correctional authorities on the mittimus when a defendant has a substance abuse problem, to assist in classifying the inmate and addressing treatment needs. Judges are encouraged to recommend a particular treatment program or a particular institution on the mittimus. Courts should also provide correctional authorities with the results of court-ordered assessments and any other relevant information that will assist in the classification of the inmate.

COMMENTARY: The purpose of this standard is to encourage courts to make recommendations directly on the defendant's mittimus to the sheriff's department or Department of Correction in an effort to provide correctional authorities with information about a defendant's substance abuse problem and to promote the placement of a defendant in an appropriate substance abuse treatment program operated by correctional authorities. Since most defendants are released eventually, public safety is served and recidivism is less likely when treatment is provided in the institution. Judges and probation officers should familiarize themselves with treatment programs in jails and prisons, including eligibility requirements, and, if possible, waiting lists, in order to recommend a particular treatment program or institution on the mittimus. Whenever possible, judges and probation officers are encouraged to obtain personal knowledge about available treatment programs. This knowledge will not only inform sentencing decisions, but also will permit judges to explain sentences more accurately to the public. This standard will also help to expedite the classification of offenders held without bail or sentenced to short terms of incarceration.

The Office of the Commissioner of Probation, in consultation with the Standing Committee on Substance Abuse, should develop, distribute, and maintain a directory of substance abuse treatment programs run by correctional institutions that includes each program's address, contact person and title, eligibility requirements, duration, process of referral, treatment method, and program capacity. The directory of institutional treatment programs should be organized by regions. The Office of the Commissioner of Probation may combine the directory of institutional treatment programs with the directory of community treatment providers recommended in Standard XV.

One way of assuring that correctional authorities are alerted to substance abuse issues would be to add a check-off box for substance abusers to the mittimus form.

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