MODEL BILLS

Drug Treatment Instead of Incarceration Act

Summary: The Drug Treatment Instead of Incarceration Act diverts nonviolent drug offenders to drug treatment programs, and creates a Substance Abuse Treatment Fund to pay for such programs.

SECTION 1. SHORT TITLE

This Act shall be called the “Drug Treatment Instead of Incarceration Act.”

SECTION 2. FINDINGS AND PURPOSE

(A) FINDINGS—The legislature finds that:

1. Substance abuse treatment is proven to be an effective safety and health measure. Nonviolent drug-dependent offenders who receive treatment are much less likely to abuse drugs and commit future crimes, and are more likely to live healthier, more stable, and more productive lives.

2. When nonviolent persons convicted of drug possession or drug use are provided appropriate treatment instead of incarceration, communities are healthier and safer, and taxpayer dollars are saved.

(B) PURPOSE—This law is enacted to enhance public safety, improve public health, and save public funds.

SECTION 3. DRUG TREATMENT INSTEAD OF INCARCERATION

After section XXX, the following new section XXX shall be inserted:

(A) DEFINITIONS—In this section:

1. “Rehabilitative treatment program” means the least restrictive rehabilitative treatment program that is appropriate, as determined by clinical assessment. Such a program shall include drug treatment provided by a certified community drug treatment program. Such a program may include one or more of the following: outpatient treatment, halfway house treatment, narcotic replacement therapy, drug education or prevention courses, vocational training, family counseling, literacy training, community service, and inpatient or residential drug treatment as needed to address severe dependence, special detoxification, or relapse situations.

2. “Nonviolent drug offense” means an offense involving the possession or sale of a controlled substance, as defined in [insert appropriate citation], that did not involve the use, attempted use, or threatened use of physical force against another person.

(B) APPROPRIATE ASSIGNMENT OF NONVIOLENT DRUG OFFENDERS

1. After arraignment, the court shall direct that a clinical assessment be performed of all persons charged with a nonviolent drug offense, with the consent of the person arrested. Such clinical assessment shall form the basis for all orders pursuant to this section.

2. There shall be a presumption that any person who would otherwise be arraigned for a nonviolent drug offense for the first time shall, prior to the entry of a guilty plea, be ordered by the court to participate in and complete a rehabilitative drug treatment program. This section shall apply to all first-time felony and all misdemeanor drug offenders.

3. Upon application by the defendant, and upon good cause shown, the court may allow a repeat nonviolent felony drug offender to plead guilty to the drug offense and subsequently order the person to participate in and complete a rehabilitative treatment program. The repeat nonviolent felony drug offender shall be sentenced in accordance with applicable provisions of the criminal code, but such sentence shall be suspended following the defendant’s participation in and completion of appropriate rehabilitative treatment.

4. Paragraphs (B)(2) and (B)(3) shall not apply to any person who:

a. Has been convicted within the previous five years of a felony involving the use, attempted use, or threatened use of physical force against another person.

b. In addition to the conviction of the nonviolent drug offense, has been convicted in the same proceeding of a felony not related to the use of drugs.

c. Refuses participation in a clinical assessment or rehabilitative treatment program.

d. Has two separate convictions for nonviolent drug offenses, has participated in two separate courses of rehabilitative treatment under this section, and is found by the court by clear and convincing evidence to be unsuitable for any available form of rehabilitative treatment.

5. If, during the course of rehabilitative treatment, the treatment provider determines that the defendant is unsuitable for the treatment being provided, but may be suitable for other rehabilitative treatment programs, the court may modify the terms of its order to ensure that the person receives the alternative treatment or program.

6. Nothing in this section precludes a defendant from declining to participate in a clinical assessment or rehabilitative treatment program. A person who declines participation shall be prosecuted and sentenced in accordance with otherwise applicable provisions of the criminal code.

(C) SUBSEQUENT PROSECUTION

1. If any person who participates in a rehabilitative treatment program pursuant to section (B) is arrested for an offense other than a nonviolent drug offense or violates a non-drug-related condition of the order directing that person to a rehabilitative treatment program, or non-drug-related condition of probation, the [District Attorney] may move to proceed with prosecution, at which time the court shall conduct a hearing. If the alleged violation is proven, the court may modify its order or the conditions of probation, or may direct prosecution to proceed.

2. If any person who participates in a rehabilitative treatment program pursuant to section (B) is arrested for a nonviolent drug possession offense, or violates a drug-related condition of the order that directs the person to a rehabilitative treatment program, or a drug-related condition of probation, the [District Attorney] may move to proceed with prosecution, and the court shall conduct a hearing. If the alleged violation is proved, and the state proves by clear and convincing evidence that such person poses a danger to the safety of other persons, the court may direct prosecution to proceed. Otherwise, the court may order that the rehabilitative treatment program be intensified or modified.

3. If the court directs prosecution to proceed, in no event shall any person who has failed to successfully complete a rehabilitative treatment offense pursuant to this section receive a sentence that exceeds the sentence to which the person would have been subject had the person declined to participate in the rehabilitative treatment program.

4. If the court directs prosecution of a first-time felony or any misdemeanor nonviolent drug offense to proceed because the defendant has failed to successfully complete a rehabilitative treatment program pursuant to this section, notwithstanding any other provision of law, the trial court shall not sentence the defendant to a term that exceeds 30 days in jail.

5. If a defendant has two separate convictions for a nonviolent possession offense, has participated in two separate courses of drug treatment, and is found by the court, by clear and convincing evidence to be unsuitable for any available form of drug treatment, the defendant is not eligible for continued probation under section (B). Notwithstanding any other provision of law, the trial court shall not sentence the defendant to a term that exceeds 90 days in jail.

6. At any time after completion of treatment, a defendant subject to section (B)(2) may petition the court for dismissal of the charges. If the court finds that the defendant successfully completed the prescribed course of treatment and substantially complied with the conditions of probation, the charges against the defendant will be dismissed in accordance with section [insert appropriate citation].

7. At any time after completion of treatment, a defendant sentenced pursuant to (B)(3) may petition the court for dismissal of the charges. If the court finds the defendant successfully completed the prescribed course of treatment, the conviction on which the sentence was based shall be set aside. The plea entered by the defendant will be withdrawn and the charges dismissed.

SECTION 4. SUBSTANCE ABUSE TREATMENT TRUST FUND

(A) ESTABLISHMENT OF FUND—A special fund to be known as the “Substance Abuse Treatment Trust Fund” is created within the [Department of Justice].

1. Upon passage of this Act, $XXXXX shall be appropriated from the General Fund to the Substance Abuse Treatment Trust Fund for the 20XX-XX fiscal year.

2. There is hereby continuously appropriated from the General Fund to the Substance Abuse Treatment Trust Fund an additional $XXXXX annually. These funds shall be transferred to the Substance Abuse Treatment Trust Fund on July 1 of each fiscal year.

3. Nothing in this section shall preclude additional appropriations by the legislature to the Substance Abuse Treatment Trust Fund.

(B) FUNDING ALLOCATION

1. Monies deposited in the Substance Abuse Treatment Trust Fund shall be distributed annually by the [Controller] through the [State Department of Corrections] to counties to cover the costs of placing persons in and providing drug treatment programs under this Act.

2. Such monies shall be allocated to counties through a fair and equitable distribution formula as determined by the Department as necessary to carry out the purposes of this Act. That includes, but is not limited to, per capita arrests for controlled substance possession violations and substance abuse treatment caseload.

3. The Department may reserve a portion of the fund to pay for direct contracts with drug treatment service providers in counties or areas in which the Department has determined that demand for drug treatment services is not adequately met by existing rehabilitative treatment programs. However, nothing in this section shall be interpreted or construed to allow any entity to use funds from the Substance Abuse Treatment Trust Fund to supplant funds from any existing fund source or mechanism currently used to provide substance abuse treatment.

(C) ACCOUNTABILITY AND EVALUATION

1. The Department shall annually conduct a study to evaluate the effectiveness and financial impact of the programs that are funded pursuant to the requirements of this Act.

2. The study shall include, but not be limited to, a study of the implementation process, a review of incarceration costs, crime rates, prison and jail construction, welfare costs, the adequacy of funds appropriated, and any other issues the Department can identify.

SECTION 5. SEVERABILITY

The provisions of this Act shall be severable, and if any phrase, clause, sentence or provision is declared to be invalid or is preempted by federal law or regulation, the validity of the remainder of the Act shall not be affected.

SECTION 6. EFFECTIVE DATE

This Act shall take effect on July 1, 20XX and its provisions shall be applied prospectively.