Sentencing the Drug Offender
| Publication year | 1992 |
| Pages | 657 |
| Citation | Vol. 21 No. 4 Pg. 657 |
1992, April, Pg. 657. Sentencing the Drug Offender
The mood and temper of the public with regard to the treatment of crime and criminals is one of the most unfailing tests of the civilization of any country.
---Winston Churchill
Nowhere is the impact of the drug war more evident than in the court system. In Colorado, felony drug-case filings increased over 200 percent between 1984 and 1990, while all criminal case filings increased only 42 percent during the same period.(fn1) Nationally, 70 percent of those arrested for crime are under the influence of drugs at the time of their arrest.(fn2) During February 1990, 59 percent of all male arrestees and 62 percent of all female arrestees in Denver tested positive for one or more illegal drugs.(fn3) Reported studies show that drug abusers are involved in criminal activity from three to five times more than nondrug users.(fn4)
The increasing number of drug and drug-related cases has spawned a plethora of sentencing and treatment alternatives for drug offenders. The purpose of this article is to identify and discuss special problems involved in sanctioning and treating a drug offender. In that regard, the article is divided into four sections: (1) the presentence report, (2) sentencing alternatives, (3) treatment, and (4) matching the offender with the sentence. Finally, the article presents some possible solutions and a call to action.
In every case where there is a felony conviction or where ordered by the court for a misdemeanor conviction, the probation department must prepare a presentence report.(fn5) This report must include information about the offender's background---including educational level, employment history, familial status, past criminal record, restitution, victim impact statement and an evaluation of sentencing alternatives, as well as a sentencing recommendation.(fn6)
The evaluation of sentencing alternatives is based primarily on the offense committed, the offender's criminal record and a "risk-needs" analysis. The probation department measures the "risk" that the offender will reoffend with the medical, educational, vocational and psychological "needs" or deficiencies of the offender. The greater the "risk" of re-offending, the greater the "need" for a more supervised or structured setting.(fn7)
Additionally, most probation departments use some form of drug abuse assessment, ranging from offender self-reporting to more reliable objective measures. More recently, the Colorado Judicial Department has developed a pilot
When the district attorney, the defendant and the court agree, prosecution of a criminal offense may be deferred for as long as two years.(fn9) The court may place the defendant under the supervision of the probation department and require drug treatment during the period of the deferred prosecution.(fn10) The court also may defer sentencing and entry of judgment for a period of up to four years for a felony and two years for a misdemeanor when such an arrangement has been agreed to by the defendant and the district attorney.(fn11) The conditions imposed on the defendant to complete the deferred judgment successfully may include probation supervision and any other restrictions authorized as a condition of probation.(fn12)
For individuals convicted of use of controlled substances, the court may defer sentencing, with the consent of the offender, and place the defendant in treatment for up to one year.(fn13) The court must make a finding that the offender is an addict, in need of treatment or dependent on a controlled substance.(fn14) If the person successfully completes the treatment, the court can dismiss the case. If the defendant fails to complete the treatment, the court can impose a sentence authorized for a class 5 felony, which ranges between six months and eight years, and a fine between $1,000 and $100,000.(fn15)
Probation is the preferred sanction unless the court concludes, based on the defendant's background and the nature of the offense, that imprisonment is appropriate for the protection of the public.(fn16)
The court is required to consider fourteen different factors in making the sentencing decision.(fn17) These generally can be grouped into (1) the circumstances surrounding the crime; (2) whether the defendant has been and will be a law-abiding citizen; (3) the defendant's background, including his or her health, family and employment; and (4) the defendant's amenability to treatment.
After considering these factors, if the court grants probation, it has considerable latitude in determining the probationary conditions to impose. These conditions may require that the offender: be employed or enrolled in vocational or educational training;(fn18) undergo treatment;(fn19) support dependents;(fn20) pay restitution fees, costs or make a charitable contribution;(fn21) report to the probation officer;(fn22) refrain from substance abuse;(fn23) serve jail time(fn24) or home detention time;(fn25) and give random urine samples.(fn26) If the defendant is granted probation, the probation department may assess the individual's behavioral patterns to develop a supervision strategy. This supervision strategy is known as the Case Management Classification ("CMC").(fn27)
Anyone who is convicted of a drug offense and receives probation, a deferred judgment or deferred prosecution for an offense that occurred after July 1, 1991, must perform useful public service.(fn28) The felony offender must perform at least forty-eight hours and the misdemeanant must perform twenty-four hours of useful community service.(fn29)
For offenses committed after July 1, 1991, any drug offender, whether given probation or incarcerated, must pay a surcharge, which is the equivalent of a fine, ranging from $150 to $3,000, the amount of which is dependent on the classification of the offense of conviction.(fn30)
Intensive Supervision Probation ("ISP") is a sentencing alternative for offenders who, but for the program, would be incarcerated in the Department of Corrections ("DOC") or a community corrections facility.(fn31) Intensive supervision is a sentencing option in each of the twenty-two judicial districts. Probation officers assigned to ISP have reduced caseloads, thereby allowing them increased contact with the offender sentenced to ISP. The ISP probationer may be required to comply with supplemental probation conditions such as community service, curfew, electronic monitoring, drug testing, substance abuse treatment and vocational, literacy, or educational training.(fn32)
Probation applicants in sixteen judicial districts who test positive for controlled substances may be referred to a specialized pilot drug treatment and rehabilitation program.(fn33) Random drug screens for offenders assigned to the program are authorized.(fn34) Each offender who is accepted into the program must have undergone both a "risk-needs" analysis and must be evaluated for drug addiction severity.(fn35) The results of the offender's evaluation determine the potential treatment referrals that the probation department uses as part of a case plan for the offender.
The Specialized Drug Offender Program is a two-phase, 240-day program. The offender may be required to participate in a cognitive group which is intended to assist the offender in: (1) improving reasoning skills, (2) recognizing cause and effect, (3) developing problem-solving abilities, (4) understanding others' thoughts and feelings, and (5) increasing the ability to interpret societal rules.(fn36) The offender's treatment is monitored weekly and a random urine screen is performed at least twice monthly.(fn37)
Community corrections facilities may be established by governmental or non-governmental entities. The legislative intent in establishing community corrections as a direct sentencing option is to provide greater sanction flexibility while enhancing the potential for victim restitution and offender rehabilitation.(fn38) The DOC relies on community corrections as a custodial setting. This is much less restrictive and less expensive and provides programs to reintegrate the inmates into the community.(fn39)
The types of community corrections facilities and the programs they offer are limited only by what the statute allows and what the Division of Criminal Justice approves.(fn40) Most community corrections programs have at least two phases. The initial phase is a residential program, followed by a nonresidential or post-release supervision phase. While in community corrections, the offender is expected to be employed and to attend any drug counseling or treatment programs that are required by the court or the community corrections facility. Non-governmental community corrections facilities are required to perform urine screens to detect drug and alcohol usage.(fn41) The length of stay in the residential phase of a community corrections facility is not only dependent on the length of sentence, but varies with the jurisdiction and the progress of the offender in the program.
The Colorado DOC currently has approximately 6,500 inmates at seventeen facilities. In addition, 2,200 parolees are under DOC supervision. Fourteen percent of all commitments are for drug crimes, and 76 percent of all inmates have a significant...
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