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1 27SUBSTANCE USE, ABUSE, AND DEPENDENCE

Douglas B. Marlowe, David S. DeMatteo, Nicholas S. Patapis, and David S. Festinger

Substance use is highly prevalent in forensic and correc-tional populations. Approximately 70% to 85% of crimi-nal off enders in the United States meet a broad defi nition

of substance involvement, meaning they were arrested for a drug or alcohol-related off ense, were intoxicated at the time of their off ense, reporting committing their off ense to support a drug habit, or have a serious history of substance abuse (Bureau of Justice Statistics, 1998, 2001; National Center on Addiction & Substance Abuse [NCASA], 2010; Zhang, 2003). Rates of diagnosable substance use disorders are lower but still substan-tial. Approximately 65% of off enders meet diagnostic criteria for substance abuse, and 40% to 45% meet criteria for sub-stance dependence1, also referred to as addiction2 (Fazel, Bains & Doll, 2006; Karberg & James, 2005; NCASA, 2010; Zang, 2003).

A diagnosis of substance abuse indicates that the individ-ual has repeatedly ingested illicit drugs or alcohol under cir-cumstances that are harmful to him or herself or others (American Psychiatric Association [APA], 2000). A diagnosis of substance dependence indicates the individual’s usage has become compulsive and he or she is likely to have considerable diffi culty remaining abstinent without formal treatment (APA, 2000). In other words, substance abuse is defi ned essen-tially by the experience of repeated adverse consequences of substance use, whereas substance dependence is defi ned by a substantial inability to stop using the substance. Th e latter symptoms of substance dependence may refl ect a form of neu-rological or neuro-chemical damage to the brain (Baler & Volkow, 2006; Dackis & O’Brien, 2005; Goldstein, Craig, Bechara, Garavan, Childress, Paulus, & Volkow, 2009).

Th e above fi gures do not simply refl ect drug possession off enses. In a nationally representative sample of U.S. booking facilities, positive urine drug-screens were obtained from more than 60% of the arrestees for most categories of off enses, including approximately 50% of violent off enders, 50%–70% of theft and property off enders, and 75% of drug dealers or manufacturers (Zhang, 2003).

In the civil forensic context, substance use is similarly estimated to be a substantial factor in approximately 40% of

1. A diagnosis of substance dependence preempts or encompasses a diagnosis of substance abuse (American Psychiatric Association, 2000). Th erefore, off enders diagnosed with substance dependence are oft en included within the reported percentages of off enders diagnosed with substance abuse.

2. Some scholars use the terms addiction and dependence interchangeably, whereas others reserve the term addiction for chronic or severe dependence on non-legally prescribed substances.

traffi c fatalities and 7% of motor vehicle crashes (National Highway Traffi c Safety Administration, 2005), 60%–80% of substantiated child abuse or neglect cases (e.g., Besinger, Garland, Litrownik, & Landsverk, 1999; Dunn, Tarter, Mezzich, Vanyukov, Kirisci, & Kirillova, 2002), 40%–75% of professional malpractice actions (e.g., Elwork, 2007), and 40% of emergency room visits (Substance Abuse and Mental Health Services Administration, 2010).

Attorneys and forensic experts are frequently called upon to consider what implications substance use might have for a subject’s criminal or civil liability, and whether that individual could be amenable to substance abuse treatment in lieu of a more punitive or restrictive disposition. Th is chapter begins by reviewing the circumstances under which evidence of acute intoxication may serve to reduce legal culpability, and it describes an approach to critically evaluating an intoxication defense that considers the characteristics of the substance, of the defendant, and of the off ense. Subsequently, this chapter addresses some of the thorny issues that are commonly con-fronted when conducting substance abuse assessments in forensic contexts and reviews the research literature on the effi cacy of substance abuse treatment interventions.

It is concluded from this review of the scientifi c literature that drug or alcohol use rarely has the capacity to overtake conscious intent to engage in criminal or tortious activities, although it may increase the likelihood of intentional or reck-less misconduct that was not deliberated or planned in advance. In addition, the effi cacy of traditional substance abuse treatment interventions may have been substantially overestimated for off ender populations. Th e majority of off enders abuse or misuse drugs or alcohol; however, lacking an appreciable compulsion to their usage, less than half can be characterized as dependent or addicted and thus in need of formal substance abuse treatment services. Among those who do require formal treatment, the base rate for success in tradi-tional treatment programs has generally been low to modest. Relatively few individuals remain in substance abuse treat-ment long enough to receive a minimally adequate dosage of services, and the eff ect size (ES) for many community-based treatment programs is oft en too small to serve public safety or public health objectives.

Th e programs that have shown reliable promise for reduc-ing substance use and crime among off enders are those that integrate community-based substance abuse treatment with ongoing criminal justice supervision, and provide immediate and consistent consequences for participants’ progress—or

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S U B S TA N C E U S E , A B U S E , A N D D E P E N D E N C E • 6 3 7

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1 lack thereof—in treatment. Th is requires substantial ingenu-ity on the part of forensic experts and attorneys to craft suit-able dispositional plans. It is no longer defensible from a scientifi c standpoint to simplistically attribute crime to the eff ects of drugs or alcohol, or to refer subjects to treatment without also clearly specifying how compliance with treat-ment should be monitored and how infractions in treatment should be addressed.

S U B S TA N C E I N TOX I C AT I O N A N D L I A B I L I T Y

In civil cases, voluntary intoxication may be considered to be probative of liability. Th at is, it may be viewed as gross negli-gence or recklessness to become voluntarily intoxicated (Mack & Barros, 2008; e.g., Little Rock v. Cameron, 1995; Miles v. General Motors Corp., 2001). Th e matter is more complicated, however, in criminal cases where a few narrowly drawn ave-nues may be available to reduce liability based on instances of acute intoxication.

D I M I N I S H E D C A PAC I T Y

As of 1999, a national survey of U.S. states and territories found that nearly three-quarters of jurisdictions permitted evidence of intoxication to negate the mens rea (i.e., the requi-site mental state) element of certain intentional off enses (Marlowe, Lambert, & Th ompson, 1999). Roughly one-third of the jurisdictions permitted evidence of intoxication to negate mens rea for any general intent crime, roughly 40% per-mitted such evidence only to negate mens rea for specifi c intent crimes, and a small proportion (about 5%) permitted such evidence only to negate mens rea in fi rst-degree murder cases. General intent refers to any intention to perform a pro-scribed act or closely related act, whereas specifi c intent requires a purpose plus deliberation or premeditation (e.g., Kaplan & Weisberg, 1991). Where admissible, the eff ect of intoxication evidence can be to reduce culpability to that of a lesser included off ense. For example, the specifi c-intent crime of burglary might be reduced to a general-intent crime of trespassing or breaking and entering.

Where such a defense is available, it is of little consequence that the defendant intentionally elected to become intoxi-cated. Th e controlling issue is whether the defendant had the requisite intent to commit a further criminal act. Because this may be viewed by some constituencies, such as victims’ rights groups, as being too lenient on crime, a handful of states have passed legislation barring evidence of voluntary intoxication from forming the basis of a criminal responsibility defense. In eff ect, these statutes transfer the intention to become intoxi-cated to the intention to commit further crimes while the off ender is under the infl uence (e.g., Layton, 1997). Th e U. S. Supreme Court upheld one such statute in Montana (Montana v. Egelhoff , 1996), which could open the door for more states to prohibit evidence of voluntary intoxication from negating mens rea in all criminal cases.

I N S A N I T Y D E F E N S E

In most cases, voluntary intoxication cannot form the basis of an insanity defense. Regardless of which insanity test a juris-diction follows, the cognitive or volitional impairment must be the product of a “mental disease or defect.” Mere intoxica-tion, without more, does not satisfy the defi nition of a mental disease or defect (e.g., LaFave & Scott, 1986; Melton, Petrila, Poythress, & Slobogin, 2007).

A substantial minority of jurisdictions permit an insanity defense to be predicated on substance abuse if chronic abuse of drugs or alcohol resulted in a “settled insanity” (e.g., People v. Free, 1983). As a result of long-term or serious usage, the defendant must suff er from an independent psychiatric syn-drome (e.g., substance-induced hallucinosis or dementia) that predates and continues beyond the incident of intoxication that is linked to the crime (e.g., People v. Skinner, 1985). Th e traditional rule required this substance-induced insanity to be permanent; however, some cases have held that a mental defect may be suffi ciently “fi xed” to satisfy the permanence require-ment if it is present for a substantial time, both before and aft er the instance of intoxication in question, even if it eventu-ally resolves (e.g., Porreca v. State, 1981).

An insanity defense may be easier to establish in cases of involuntary intoxication or pathological intoxication; how-ever, given the limited fact patterns that satisfy the criteria for these defenses, they are infrequently raised successfully in practice. Involuntary intoxication is intoxication that is induced by coercion, by an innocent mistake of fact (i.e., by a reasonable belief that the drug was a non-intoxicating lawful substance), or by an unanticipated idiosyncratic reaction to a prescribed medication. Pathological intoxication is intoxica-tion that is grossly excessive in degree given the amount and type of intoxicant that was ingested. Th e defendant must lack actual knowledge about the potential eff ects of the sub-stance on his or her behavior and must not have reason to know about such eff ects. If the defendant had experienced unusual reactions to the substance in the past, a defense of involuntary intoxication or pathological intoxication would ordinarily be unavailable. Courts are generally hesitant to recognize a defense of pathological intoxication that was induced by an unanticipated reaction to illicit drugs or alco-hol, because these substances are widely known to have intoxi-cating qualities (e.g., Commonwealth v. Henry, 1990; People v. Matthews, 1985). An insanity defense is more likely to be available in cases involving an idiosyncratic reaction to pre-scription medication.

AU TO M AT I S M D E F E N S E

In rare instances, extreme intoxication or extreme idiosyn-cratic reactions to a substance can cause symptoms of delirium or dissociation. Under such circumstances, the individual might be considered to be, in essence, unconscious of his or her actions. In these so-called automatism cases, the law may view the individual as not having engaged in the actus reus (requisite act) of the off ense (e.g., Fulcher v. State, 1981). Similar to the insanity defense, the automatism defense is



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1 unavailable if the defendant knew, or had reason to know, about his or her hypersensitivity to the substance (e.g., Tift v. State, 1916). Th e automatism defense is almost never raised successfully in this country because of the rare fact patterns that can justify its application; therefore, it has little practical utility in typical forensic work (e.g., Melton et al., 2007). Absent evidence of spasmodic or fl ailing motor activity, or of a rare somnambulant fugue state, it is diffi cult to envision a scenario that could support such a defense.

EVA LUAT I N G A N I N TOX I C AT I O N D E F E N S E

In any evaluation of criminal responsibility, it is diffi cult to reconstruct a defendant’s mental state at an earlier point in time. Th is may be particularly problematic in intoxication cases, because the eff ects of drugs and alcohol typically wear off in several hours, whereas the residual symptoms of psy-chotic or aff ective disorders can last for days, weeks, or even months. Researchers are oft en unable to measure the accuracy of forensic evaluators’ conclusions because there is usually no objectively measurable standard against which to validate their fi ndings. Typically, the only feasible approach is to con-duct forensic substance abuse evaluations in accordance with professionally accepted best practices (see Appendix A for a list of best practices in forensic substance abuse evaluations), and to include in those evaluations a consideration of the fac-tors that are most likely to be credited by courts and juries. Th ese factors include the characteristics of the substance, the characteristics of the defendant, and the characteristics of the off ense.

Characteristics of the Substance

Even severe clinical reactions to psychoactive substances would not ordinarily be expected to interfere with an individ-ual’s capacity to form a specifi c criminal intent. Acute intoxi-cation has its most profound eff ects on impulse control, executive functions (planning and sequencing of behavior), and motor coordination (Baler & Volkow, 2006; Dackis & O’Brien, 2005; Fishbein, 2000; Hoaken & Stewart, 2003). Ordinarily, therefore, it could be expected to precipitate spon-taneous behavior that is intended but not deliberated. For example, an intoxicated person might be predisposed to lash out aggressively against an actual or perceived insult. Th is reaction would be intended, albeit sudden and ill conceived. Consequently, intoxication evidence may be relevant to negate specifi c intent, but it will infrequently make a compelling argument for negating general intent.

Certain classes of psychoactive substances are known to have disinhibiting and agitating eff ects on the central nervous system (CNS), and they have been demonstrated to induce aggression in controlled settings. Alcohol, in particular, has been shown to trigger aggressive responses in the laboratory, and alcohol is the drug most closely linked to violent crime (De La Rosa, Lambert, & Gropper, 1990; Fagan, 1990; Mack & Barros, 2008; Whitfi eld, 1990). Other substances that have activating and disinhibiting eff ects on the CNS, such as amphetamines, phencyclidine (PCP) and cocaine, can cause

agitation as well; however, research suggests that preexisting personality factors may be as or more important than pharma-cological factors in predicting whether the abuse of these drugs will result in crime or violence (Hoaken & Stewart, 2003).

Although initial reports linked PCP to delirium, extreme psychosis, and unprovoked bouts of violence, subsequent data suggested a more “sobering” analysis of its eff ects (e.g., Brecher, Wang, Wong, & Morgan, 1988; Davis, 1982; Khajawall, Erickson, & Simpson, 1982; Kinlock, 1991). Extreme reac-tions to acute PCP ingestion do occur, but they are relatively infrequent (Fauman & Fauman, 1982). Due, in part, to the low purity of street-level PCP and the fact that many PCP abusers titrate their doses over months or years, leading to sub-stantial tolerance, acute psychotic reactions are rarer today than they might have been when pharmaceutical-grade PCP fi rst became widely available in the 1970s.

Substances that have sedating and analgesic (pain reduc-ing) properties are less likely to invoke violent or aggressive criminal reactions during periods of acute intoxication. For instance, when controlling for subjects’ prior criminal history, no defi nitive link has been shown between aggressive criminal behavior and intoxication on cannabis (marijuana) or opiates such as heroin (e.g., Bennett et al., 2008; Goldstein, 1985; Pedersen & Skardhamar, 2010). Indeed, opiate intoxication may precipitate the “nods,” in which the individual has diffi -culty remaining alert and perhaps even keeping his or her head up. Th is would not ordinarily be conducive to intentionally aggressive criminal conduct. To the extent that cannabis or opiate abusers become involved in criminal activity (and many do), this is usually attributable to their eff orts to support their drug habit, or to increased associations with other antisocial individuals (Bennett et al., 2008; Farrington, 2010; Pedersen & Skardhamar, 2010).

Sedatives such as barbiturates or benzodiazepines may produce acute dysphoria, agitation, and paranoia in high doses, particularly when they are taken over an extended binge in which the subject may be deprived of sleep or food for a long period of time. Ordinarily, however, these drugs cause lethargy, euphoria, and psychomotor slowing, which tend to be incompatible with violence or coordinated criminal activity (e.g., Hoaken & Stewart, 2003).

Less is known about the eff ects of newer “designer drugs” or “club drugs” such as “ecstasy” (3,4-methylene-dioxymethamphetamine or MDMA), “GHB” (gamma-hydroxybutyrate), “roofi es” (fl unitrazepam or Rohypnol), or “vitamin K” (ketamine or Ketalar). Many of these drugs are classifi ed or partially classifi ed as “dissociative anesthetics,” with features similar to those of PCP (Kohrs & Durieux, 1998). Th e neurological eff ects of these drugs may include confusion, delirium, euphoria, paranoia, and depression. Research has not connected the use of these drugs to the com-mission of intentional criminal or violent activity, although more current research suggests that such a link may exist in the case of ketamine (e.g., Sanders, Lankenau, Bloom, & Hathaz, 2009). Indeed, some studies have associated MDMA use with a decrease in aggression among laboratory animals (Hoaken & Stewart, 2003).




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1 Th e relationship between drug use and psychosis warrants further discussion. A psychosis is defi ned as a break from real-ity, and the clinical hallmarks of psychosis include hallucina-tions (e.g., seeing or hearing things that other people cannot see or hear) or delusions (i.e., persistent beliefs or ideas that do not have a reasonable basis in fact). Psychosis can be defi ned in terms of episodes (i.e., symptoms meet diagnostic criteria for a psychotic episode) or symptoms (i.e., one or more psychotic features that do not meet diagnostic criteria for a full psychotic episode).

Drug use is generally associated with psychosis in one of three ways. First, some drugs, such as hallucinogens (e.g., LSD), specifi cally act to induce psychotic-type symptoms. Th ese symptoms typically include auditory or visual hallucina-tions and delusional beliefs. However, unlike endogenous psy-choses associated with certain psychiatric conditions, such as schizophrenia, drug-induced psychoses are less likely to include disorganized thinking and behavior. Second, some drugs, such as stimulants, can cause psychotic symptoms as an unintended side eff ect of their intended recreational eff ects (i.e., promoting alertness or inducing euphoria). Finally, with-drawal syndromes associated with some drugs may include psychotic symptoms. For example, when sedatives, including alcohol, are used in large quantities over prolonged periods of time, the sudden discontinuation of use of those substances can result in psychotic symptoms. Th e following sections pres-ent a more detailed examination of the relationship between certain substances of abuse and psychosis.

Alcohol Alcohol is classifi ed as a depressant because of its predom-

inant eff ect on brain functioning, but alcohol is well known for causing a wide range of emotional and behavioral responses across users. Typical responses to alcohol intoxication range from sedation or euphoria to excitability, irritability, and aggression. As with most drugs, an individual’s responses to alcohol will vary depending on the amount ingested and the context in which the substance is used. Large doses of alcohol that exceed one’s tolerance lead to cognitive and motor dys-function, and eventually to unconsciousness and possibly even death. Alcohol is most likely to be implicated in cases of psy-chosis during the withdrawal period aft er chronic use. Although alcohol withdrawal is better known for its motor symptoms (i.e., DTs, or delirium tremens), it may also include transient visual and auditory hallucinations. Th ere is no offi cial persisting psychotic state associated with alcohol use (see Table 27.1); however, chronic alcohol abuse has been associated with damage to the brain that can lead to functional defi cits and dementia.

Opioids Synthetic opioids and naturally occurring opiates are

widely used throughout the world. Although the DSM-IV indicates that opioid intoxication can lead to psychotic symp-toms, particularly auditory hallucinations, the frequency of such occurrences is infrequent. Much like benzodiazepines, opioids exert their action at extremely localized points in the CNS that are largely unassociated with psychotic symptoms.

Sedatives (Hypnotics/Anxiolytics) Sedative drugs come in many classes and include anesthet-

ics, analgesics, hypnotics (sleep medications), and even anti-histamines. Th is section will consider the most commonly abused class of sedatives, the benzodiazepines (“benzos” or “blues”), and will devote less attention to barbiturates because of the low base rate of barbiturate abuse in recent decades. Benzodiazepines are only available by prescription and are one of the most commonly prescribed classes of drugs in this coun-try. Brand names of popular benzodiazepines include Valium, Xanax, and Ativan. In 2004, over 32 million prescriptions were fi lled for just the leading benzodiazepine and its generic equivalent. Medically, benzodiazepines are primarily indicated to reduce anxiety (anxiolytic), to induce sleep (hypnotic), and as an adjunct to anesthesia during certain surgical procedures.

Aside from diff erences in their absorption rate, duration of action, and dosage required to achieve therapeutic eff ects, benzodiazepines have nearly identical pharmacodynamic pro-fi les. None of the benzodiazepines carry a risk of causing psy-chotic symptoms or episodes, although this fact does not exclude such symptoms from co-occurring with their use. Th e relatively minor risk of psychosis associated with benzodiaz-epines occurs in cases when there is an abrupt cessation of the drug in a physically dependent individual. However, more common eff ects of abrupt termination include agitation, anxi-ety, and seizures. As will be discussed, benzodiazepine intoxi-cation is most likely to disrupt the formation of memories, which may lead to “blackouts.”

Th e abuse of barbiturates (e.g., Seconal, Tuinal, Luminal) is currently rare. Th ese medications are no longer prescribed very oft en due to their narrow therapeutic index (i.e., for con-trol of brain seizures) and high risk of overdose, especially when combined with alcohol. For the most part, the risk of psychosis associated with barbiturates is during the withdrawal period, and the barbiturate withdrawal syndrome is clinically very similar to that of alcohol.

StimulantsTh e stimulant drugs carry a substantially higher risk of

causing psychotic symptoms or episodes than most other drugs of abuse. Heavy cocaine use (including “crack”) frequently induces paranoid ideation and hallucinations. Such experiences

Table 27.1 DSM-IV DRUG-INDUCED PSYCHOTIC DISORDERS

DRUG INTOXICATION WITHDRAWAL

Alcohol + +

Amphetamines +

Cannabis +

Cocaine +

Hallucinogens + +

Opioids +

Sedative/hypnotics + +




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1 are even more common in intravenous cocaine users. Heavy cocaine use may also be associated with a tactile psychotic symptom known as formication, which is the feeling that bugs are crawling under one’s skin. Psychotic symptoms can begin during cocaine intoxication and persist for several hours or days. Despite the ability of cocaine to cause acute psychotic symptoms, it is not believed to precipitate persisting psychotic symptoms in persons without a history of psychosis.

Amphetamines are potent CNS stimulants. Like cocaine, amphetamines can be smoked or injected, commonly in the form of methamphetamine (“ice” or “crank”). However, unlike cocaine, many commonly abused amphetamines are available by prescription as pills (e.g., Ritalin, Dexedrine, Adderall), which can be swallowed or crushed and then snorted nasally. Like cocaine-induced psychosis, amphetamine-induced psy-chosis typically consists of paranoid ideation and hallucina-tions (with visual hallucinations being more common than auditory hallucinations). Amphetamine-induced psychosis is usually short lived, lasting no more than about 48–72 hours in most cases.

Similar to the amphetamines, the designer amphetamines (e.g., MDMA) have potent stimulant eff ects on the CNS. However, unlike the other amphetamines, designer amphet-amines have signifi cant pharmacological diff erences and intoxication profi les, sometimes including hallucinations and perceptual disturbances. For this reason, they are discussed below with the hallucinogens.

Hallucinogens Some drugs predictably (as opposed to idiosyncratically)

induce psychotic states. In fact, the “traditional” hallucino-gens, lysergic acid diethylamide (LSD), mescaline (peyote), and psilocybin (“shrooms”), are used primarily for their visual and auditory hallucinogenic eff ects. Th ey can also produce feelings of euphoria and synesthesia (i.e., a blurring of the senses; for example, hearing colors or seeing sounds).

Cannabis is the most widely used hallucinogen and it can have a range of eff ects on the CNS. Th erefore, it may produce a spectrum of reactions across users. Cannabis-induced psy-chotic disorder, which is a diagnostic category in the DSM-IV, can develop shortly aft er cannabis use and typically involves persecutory delusions (National Institute on Drug Abuse, 2005a). Evidence suggests this relatively rare syndrome may be the result of triggering a prodromal or sub-clinical psychotic predisposition, especially in adolescent and young adult users (Foti, Kotov, Guey, & Bromet, 2010; Patton, Coff ey, Carlin, Degenhardt, Lynskey & Hall, 2006). By contrast, hallucina-tions associated with cannabis use are rare and typically result when very high blood levels are reached or when the cannabis has been infi ltrated or contaminated with another substance of abuse, such as PCP or cocaine. Cannabis-induced psychotic disorder usually remits within 1 day, although instances have been reported in which it persisted for several days before remitting.

In addition to the acute eff ects of cannabis on sensation and perception, cannabis has substantial eff ects on cognition and motor skills similar to the sedative drugs. Th is is perhaps why there is such a low reported incidence of cannabis-related

violence. It may also explain why cannabis is frequently impli-cated in traffi c accidents and incidents of driving under the infl uence (DUI) (National Institute on Drug Abuse, 2005b).

MDMA and other designer amphetamines can produce perceptual and sensational eff ects similar to the traditional hallucinogens. However, relatively little is known about these drugs in comparison to either the amphetamines or older hallucinogens. Nonetheless, they are believed to carry many of the same liabilities of both the stimulants and hallucino-gens, which can include both acute and persisting psychotic symptoms.

As a class, hallucinogens are the drugs most closely associ-ated with persisting psychotic symptoms. Th ese symptoms, which may include “fl ashbacks,” can outlast the known psy-choactive period of the drugs and have been anecdotally reported to occur years aft er the last reported use. Th is raises the question of whether hallucinogens may be permanently altering the chemical transmission between neurons or the functions of neural pathways. Persisting psychotic symptoms of hallucinogen use were fi rst documented in the 1960s and 1970s when the use of LSD surged in popularity. Th e increas-ing use of designer amphetamines, coupled with advances in neuroimaging techniques, has brought the etiology of these persisting symptoms to the forefront of drug abuse research. For example, preliminary data suggest there is a possibility of damage to the brain resulting from MDMA abuse that may account for subsequent mood and perceptual disturbance occurring aft er drug use has been discontinued.

Characteristics of the Defendant

For purposes of sentencing or disposition (which are discussed later), it is oft en in the defendant’s best interest to establish that he or she has a severe substance use history and meets diagnostic criteria for a substance use disorder that requires treatment. Paradoxically, however, such a history could make it more diffi cult to establish a mens rea or insanity defense. On the one hand, a serious substance abuse history could persuade the fact fi nder that the defendant has a propensity for intoxi-cation, and thus that he or she was likely to have been intoxi-cated at the time of the off ense. On the other hand, this could also suggest that the defendant has a greater tolerance for the substance, and thus has a greater ability to engage in deliberate conduct despite having a high blood-level concentration of the drug. It is also less likely that an experienced substance user would be unaware of the psychoactive properties of a particu-lar drug or would be unaware that he or she has a peculiar sensitivity to that substance.

For this reason, “naïve” subjects who have a limited sub-stance use history are oft en the best candidates for an intoxica-tion defense. Some reports suggest that an intoxication defense is most likely to be successful for defendants who have no prior treatment history, who have no prior arrests, and who ingested unusually high doses of a drug they were unfamiliar with (Senay & Wettstein, 1983).

Perhaps the best candidate for an intoxication defense is a naïve subject who also presents with evidence of brain injury or neuropsychological dysfunction. Idiosyncratic reactions to




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1 drugs may be most likely to occur if there is a preexisting lesion (damage) in brain regions controlling executive functions (i.e., the prefrontal cortex) or aff ective regulation (i.e., the limbic system) (e.g., Fishbein, 2000). Most psychoactive substances exert their eff ects, at least in part, by precipitating a surge of the neurotransmitter, dopamine, in these regions of the brain (National Institute on Drug Abuse, 2008). If there is neurological immaturity or destruction of brain tissue in these areas, a dopamine surge could have an unexpected and intense impact on executive control and emotional regulation, perhaps leading to spontaneous aggression or impulsive crimi-nality. Th is process has been analogized to placing a match near a keg of dynamite. Dopamine surges are also associated with the onset of psychotic or schizophrenic-like symptoms, which is why stimulant abuse has a tendency to cause psy-chotic reactions. By contrast, no compelling argument has been set forth that neuropsychological defi cits in the areas of language, attention, or memory (which may be quite common among off enders) should have discernable eff ects on impulsive criminality.

Characteristics of the Off ense

Courts and juries are very likely to focus their attention on the factual circumstances surrounding the off ense. Commonly mentioned factors in court decisions include (1) whether the defendant had an apparent motive for the crime, (2) whether the crime required a coordinated sequence of conduct over time, and (3) whether the defendant engaged in coordinated eff orts to conceal the crime (e.g., Boettcher, 1987; LaFave & Scott, 1986; Marlowe et al., 1999).

Th e most common motives for crime include the “Four Rs”: robbery, rape, reputation, or revenge. If one or more of these motives is present, it may be diffi cult to argue that there was no intent to commit the off ense. Th is is particularly true if the criminal behavior was contemplated prior to the instance of intoxication. For example, inner-city youths may ingest drugs or alcohol prior to confronting rivals or committing a burglary. In such instances, substance use may be part of a pre-off ense “ritual” designed to lower anxiety and foster group cohesiveness. Rather than reducing the apparent intent for the crime, this may actually increase the degree of premeditation because steps are being taken to remove obstacles to the com-mission of the off ense (i.e., to remove fear or reticence).

If a motive for the off ense is present, but the defendant did not contemplate the off ense prior to its commission, then this might reduce the degree of culpability from that of a specifi c-intent crime to one of a general-intent crime; rarely, however, would it negate general intent. For example, assume a defen-dant became intoxicated at a party, subsequently came upon a rival, and assaulted the rival during a spontaneous exchange. In this instance, the motive of revenge or reputation would be present, but there would be no indication that the assault was contemplated prior to its commission. In this situation, intox-ication could be viewed as triggering a potentially explosive situation. Although the defendant might still have had a gen-eral intent to commit a simple assault, this could negate the element of deliberation or premeditation necessary to prove a

more serious specifi c-intent crime, such as assault with intent to infl ict bodily harm.

It is also important to consider whether the crime was spontaneous as opposed to planned, whether it was carried out over a long or short period of time, and whether it involved an ordered sequence of steps. For example, if a defendant stole a car, drove it across town to pick up an accomplice, and then used the car during a robbery, this would indicate planning and sequencing over an extended period of time. If another defendant picked up a brick from the road, threw it through a store window, and grabbed an odd assortment of items, this might indicate minimal planning and a rapid progression of events. If both of these defendants had similar blood alcohol concentrations (BACs) in the intoxicated range, the scenarios might suggest that alcohol was not particularly infl uential to the fi rst defendant’s conduct but could have contributed sub-stantially to the conduct of the second defendant.

Finally, it is conceivable that a defendant might commit a crime while intoxicated, subsequently sober up, and then engage in coordinated eff orts to escape or to conceal the off ense. Th e longer the period of time between the off ense and the subsequent eff orts at obfuscation, the more likely it is that the defendant’s mental status may have cleared. If, for example, the defendant took immediate pains to conceal the crime, this could suggest that the defendant was not so intoxicated as to be unable to engage in deliberate conduct at the time of the off ense (e.g., Commonwealth v. Gribble, 1997). On the other hand, if the defendant awakened 8 hours later on the following morning before engaging in eff orts to cover the crime, this might suggest that he or she was too intoxicated to take self-protective measures during or soon aft er its commission.

S U B S TA N C E -I N D U C E D A M N E S I A

Many criminal defendants purport not to recall the circum-stances surrounding an alleged off ense, oft en attributing this to substance-induced amnesia. Some reports have suggested that between 25% and 65% of violent off enders claimed some degree of amnesia for their crimes (Bradford & Smith, 1979; Schacter, 1986). Th ese defendants may be surprised to learn that this is essentially irrelevant to their criminal culpability. For an intoxication defense, the dispositive matter is whether the defendant intended to commit the crime. Th ere is no requirement that the defendant also remember the crime.

Amnesia for the crime is also not dispositive of a defen-dant’s competence to stand trial (e.g., State v. Kleypas, 2001). Amnesia is typically treated as one factor to be considered in making a competency determination. Courts will consider, among other factors, the degree to which defense counsel can reasonably reconstruct the events surrounding the crime from extrinsic sources such as eyewitnesses or physical evidence (e.g., Wilson v. United States, 1968).

It is possible for an individual to engage in goal-directed activity and to appear normal to bystanders but still have no memory for the events in question. However, barring an unusual susceptibility to the drug, such “blackouts” have only been defi nitively connected to relatively high blood-alcohol




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1 levels (Acheson, Stein, & Swartzwelder, 1998; Goodwin, 1995; Mack & Barros, 2008; Ryan & Butters, 1983; Ryback, 1971; White, Signer, Kraus, & Swartzwelder, 2004), intrave-nous administration of benzodiazepines (Kumar, Mac, Gabrielli, & Goodwin, 1987), or a combination of sedatives and alcohol (Morris & Estes, 1987). A particular benzodiaz-epine, Triazolam (Halcion), has been anecdotally reported to cause blackouts at therapeutic dosages (Rothschild, 1992).

No defi nitive data exist to support the occurrence of true blackouts from opiates, cannabis, cocaine, PCP, or stimulants. Although memory may be sketchy aft er abusing these drugs, cued recall should be suffi cient to assist the defendant to remember salient events, particularly if those events were paired with violence or with autonomic arousal.

Again, less is known about the eff ects of newer “designer drugs.” Rohypnol and GHB have been associated with antero-grade amnesia (an inability to form new memories) combined with a loss of consciousness (Dyer, Roth, & Hyma, 2001; Garrison & Mueller, 1998), which accounts for their reported use as “date rape” drugs. Repeated laboratory administration of MDMA has also been associated with cognitive defi cits and potentially permanent memory impairment (Broening, Morford, Inman-Wood, Fukumura, & Vorhees, 2001; Ricaurte, McCann, Szabo, & Scheff el, 2000). Th ese eff ects may be greater with the concurrent ingestion of alcohol or sedatives (Schwartz & Weaver, 1998). Although pharmacological evi-dence and case law have yet to catch up with these newer classes of drugs, there is no reason to believe legal standards should apply diff erently to them. To the extent that these drugs interfere with the formation or retrieval of new memo-ries, it may become necessary to reconstruct the events of a crime from extrinsic sources to move forward with a fair trial. Similarly, to the extent they precipitate psychosis or dissociation, their usage might support an insanity defense if the symptoms were “fi xed” over an extended time or if they were ingested inadvertently or with a reasonable absence of knowledge about their eff ects.

A S S E S S M E N T O F S U B S TA N C E A B U S E A N D D E P E N D E N C E

Th ere are literally hundreds of substance abuse assessment instruments. Th e National Institute on Alcohol Abuse and Alcoholism (NIAAA) and the National Institute on Drug Abuse (NIDA) have published compendia reviewing the psy-chometric research on many of these instruments (Allen & Wilson, 2003; Rounsaville, Tims, Horton, & Sowder, 1993), although these are a bit outdated at this juncture. In addition, more recent review articles have been published that address specifi c topics in substance abuse assessment, including assess-ment in criminal justice settings (Andrews, Bonta, & Wormith, 2006; Inciardi, 1994; Peters, Greenbaum, Steinberg, Carter, Ortiz, Fry, & Valle, 2000; Simpson & Knight, 2007), co-occurring substance abuse and psychiatric disorders (Carey, 2002), screening in clinical settings (Carroll & Rounsaville, 2002), screening in primary care settings (McPherson & Hersch, 2000), and motivation for change (Carey, Purnine,

Maisto, & Carey, 1999). Th e reader is advised to consult these resources for in-depth information on a particular instrument relevant to a given case. In the limited space available, we address some of the diffi cult issues that are commonly con-fronted when conducting substance abuse assessments in forensic or correctional contexts.

It is estimated that nearly 40% of criminal off enders who are diverted into substance abuse treatment do not have a seri-ous substance use disorder that requires formal treatment (Kleiman et al., 2003). In some studies, nearly one half of mis-demeanor drug court clients (Marlowe, Festinger, Lee, et al., 2003; DeMatteo, Marlowe, Festinger, & Arabia, 2009), one-third of felony drug court clients (Marlowe, Festinger, & Lee, 2004), and two-thirds of drug-involved pretrial super-visees (Lee et al., 2001) produced sub-threshold scores on a structured clinical interview, similar to a community sample of non-substance abusers. Th is suggests that many individuals who may be experimenting with drugs, or who may be non-drug-using dealers, are perhaps being diverted into these pro-grams unnecessarily (DeMatteo, Marlowe, & Festinger, 2006).

Th ere are several possible explanations for these false- positive rates. (In this context, a false positive is the misidenti-fi cation of an individual as being in need of substance abuse treatment when the individual does not require formal treat-ment.) First, many jurisdictions make these referrals simply on the basis of whether the individual has a current drug charge, which does not indicate whether he or she has a clinically sig-nifi cant substance abuse problem (e.g., Marlowe, Patapis, & DeMatteo, 2003). Second, many assessment instruments may infl ate the prevalence of substance use disorders either because they employ excessively broad diagnostic criteria, or because they assume most addicts to be in “denial” or “pre-contemplation” about their problem, and thus likely to be underreporting sub-stance use. Th ese instruments were not designed to detect over-reporting or malingering of substance use, which might be of greater concern in a forensic or correctional context.

D I AG N O S I S

Offi cial diagnostic criteria for substance abuse and depen-dence are worded so generically that they may fail to convey clinically precise or meaningful information. Moreover, they may blur the important distinction between substance depen-dence and abuse. As was noted previously, the term substance abuse conveys a repetitive pattern of substance ingestion under dangerous or inappropriate circumstances, whereas substance dependence conveys a pattern of compulsive use or addiction. However, according to the Diagnostic and Statistical Manual of Mental Disorders (DSM-IV; American Psychiatric Asso-ciation, 2000), a client can receive a diagnosis of substance dependence without exhibiting the features that one would ordinarily associate with addiction, such as withdrawal symp-toms, compulsive use, or cravings. It is possible, for example, to be diagnosed as drug dependent by virtue of spending a great deal of time using drugs, developing a tolerance to the drugs, and using more drugs than initially planned on multiple occa-sions. Th ese symptoms can occur at any time during a 12-month period, with no requirement that all of the symptoms occur at




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1 the same time, or that they last for an appreciable length of time.

Th e failure of current diagnostic nomenclature to capture the prototypical symptoms of dependence, or to discriminate suffi ciently between abuse and dependence, has led some scholars to argue that the dependence diagnosis should be reserved for individuals who suff er from severe withdrawal symptoms when they refrain from using drugs or alcohol (e.g., Langenbucher et al., 2000), or who experience overwhelming cravings or compulsions to use drugs or alcohol (e.g., O’Brien, Childress, Ehrman, & Robbins, 1998). Anything short of that, according to this argument, may constitute abuse or misuse, which although dangerous and illegal may be undeserving of a formal psychiatric diagnosis. In fact, early indications suggest that the upcoming 5th edition of the DSM might drop the substance abuse diagnosis altogether and instead diff erentiate among degrees of severity of substance dependence (Knopf, 2010).

In practice, many criminal justice professionals may lack the requisite time or skills to render an accurate diagnosis using a DSM-IV-congruent structured interview. Many of these practitioners employ brief screening instruments that can purportedly identify substance dependence using no more than a dozen to a few dozen self-report items. Th e content domains of these instruments vary considerably depending upon the philosophies of the test developers, and they are oft en incongruent with the DSM. As a result, it may be unclear what syndrome(s) they actually measure. As noted earlier, a particular concern is that many of these instruments were designed to detect substance dependence in individuals who are in “denial.” Th us, they may be apt to increase sensitivity (i.e., increase true positive rates for identifying addicts) at the expense of decreasing specifi city (i.e., misidentifying many non-addicts as addicts).

For example, one of the most widely used screening instru-ments is the Substance Abuse Subtle Screening Inventory (SASSI; Miller, Roberts, Brooks, & Lazowski, 1997). Most of the SASSI scales contain items that do not inquire explicitly about substance use, but have been found by the test developer to dis-criminate empirically between groups with and without sub-stance abuse problems. Although initial validation studies by the test developer were impressive, with sensitivity and speci-fi city exceeding 90% (Lazowski, Miller, Boye, & Miller, 1998), subsequent studies have been less sanguine, with true-positive rates below 70% (Pearson, 2000), sensitivity below 60% (Fuller, Fishman, Taylor, & Wood, 1994; Svanum & McGrew, 1995), and inadequate specifi city (Peters et al., 2000). In one study involving juvenile off enders, the SASSI misclassifi ed nearly two-thirds of nonusers as being substance dependent (Rogers, Cashel, Johansen, Sewell, & Gonzalez, 1997). Th is suggests that the SASSI might substantially overestimate the need for substance abuse treatment among off enders.

MU LT I D I M E N S I O NA L A S S E S S M E N T I N T E RV I EWS

A number of semi-structured interviews have been developed that provide a behavioral assessment of substance use severity,

and that can detect changes in substance use over time or as a function of treatment. Many of these instruments are multi-dimensional, meaning that they inquire about problems in several life domains that are commonly aff ected by substance abuse.

Perhaps the most widely used of these instruments is the Addiction Severity Index, which is currently in its fi ft h edi-tion3 (ASI-5; McLellan et al., 1992). Th e ASI-5 measures cur-rent (past 30 days) and lifetime problem severity in the areas of drug problems, alcohol problems, legal problems, medical problems, family and social problems, employment problems, and psychiatric problems. Th e ASI-5 is comprised predomi-nantly of two types of items. One type of item inquires about the frequency of specifi c events, such as the number of days the subject used illicit drugs or committed illegal activities during the preceding 30 days and during the individual’s lifetime. Th e second type of item is on a Likert scale and assesses how serious the subject believes his or her problems to be in each domain, and how much the subject desires treat-ment for those problems (from “not at all” to “extremely”). Composite scores are calculated from a weighted combination of both types of items and serve as global indicators of prob-lem severity in each domain. Th e composite scores are based exclusively on events occurring during the immediately pre-ceding 30 days.

Th e ASI-5 and its predecessors are supported by a long history of rigorous psychometric validation research published in peer-reviewed scientifi c journals. Multiple examinations of ASI composite scores and lifetime items have yielded impressive evidence of interrater reliability (i.e., the extent to which diff erent raters agree on ASI scores), test–retest reli-ability (i.e., the stability of ASI scores over time), concurrent validity (i.e., the correlation of scores on the ASI with perfor-mance on other measures at the same point in time), predic-tive validity (i.e., the correlation of scores on the ASI with performance on other measures at some point in the future), and discriminative utility (i.e., the ability of the ASI to dis-criminate between clinical and nonclinical samples) across various groups of clients characterized by age, race, gender, and primary drug of abuse (e.g., Alterman et al., 1998; Cacciola, Koppenhaver, McKay, & Alterman, 1999; McLellan et al., 1985, 1992; McLellan, Luborsky, O’Brien, & Woody, 1980).

Th ere are several factors, however, that could be expected to limit the utility of the ASI-5 in a forensic or correctional context, and these factors exemplify many of the same prob-lems that are presented by many substance abuse interviews. First, the ASI-5 was not normed and does not yield standard-ized scale scores. Th at is, it has not, to date, been administered to a large, well-defi ned, and representative sample of partici-pants that can be used as a point of reference against which to compare the results of future test takers. Th erefore, it is not possible to make meaningful comparisons across scales. For example, one cannot compare the severity of a client’s drug problems with his or her alcohol problems. Clinical Factor

3. A 6th edition of the ASI is undergoing psychometric research and development.




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1 Scores (CFSs) have been devised for the ASI-5 which are on a standardized t-score scale (mean = 50 and SD = 10) (McDermott et al., 1996); however, they were only standard-ized on a narrow sample (n = 500) of methadone maintenance clients, raising questions about the stability and generalizabil-ity of the scaling. Moreover, few community treatment pro-viders may have the requisite soft ware to compute the CFS scoring algorithms.

Without standardized scaling, it is diffi cult to know whether a particular client’s substance abuse problem should be categorized as mild, moderate, or severe as compared with a normative population. Th e most that can be inferred from the composite scores is whether they decline over time, or whether diff erent groups have signifi cantly higher or lower composite scores within the same domain. Many treatment providers will attempt to classify the severity of clients’ substance abuse problems using what are called “interviewer severity ratings” (ISRs) on the ASI-5, which are essentially derived from the assessor’s own clinical judgment. Th e research evidence is clear that the ISRs are unreliable, meaning that diff erent raters may come to diff erent conclusions about the same client (Alterman, Brown, Zaballero, & McKay, 1994). As a result, the test devel-opers have advised against their use and have dropped them from the upcoming sixth edition of the instrument. Th us, in a forensic context, one would have great diffi culty concluding from the ASI-5 whether a client has a serious substance abuse problem. Th e best that can be accomplished is to review responses to specifi c items, such as how oft en the client used drugs in the previous month, and then to make inferences of severity from those frequency data.

Although the ASI-5 is commonly used by clinicians, it is important to recognize that it was originally developed by researchers to measure change during treatment–outcome studies. Th e items were chosen predominantly on the basis of their sensitivity to change over time or their ability to predict long-term outcomes. As a result, the ASI-5 does not render information related to clinical symptoms or diagnoses. Th ere is no way to reach a DSM-IV diagnosis from the ASI-5 or to assess prototypical features of dependence, such as withdrawal or cravings. Moreover, there is no information about how much drugs or alcohol an individual consumed. Because sub-jects’ reports were empirically determined to be unreliable in terms of the amount of substances they consumed, the ASI-5 focuses instead on the frequency of use, measured in days. Th is leaves many questions unanswered concerning the clinical characteristics of a client’s substance abuse problem.

Finally, the ASI-5 is highly susceptible to the issue of “days at risk.” Because the scales measure events occurring within a 30-day window, if a subject were in a restricted environment such as jail or prison during that time, this could systematically defl ate the apparent severity of his or her problems. Clinicians oft en attempt to compensate for this problem either by calcu-lating the proportion of days at risk that the subject engaged in various behaviors, or by inquiring about the 30 days immedi-ately preceding the subject’s entry into a restrictive setting. Th ere are no published studies indicating whether this approach is valid or reliable and how it might alter the assess-ment results.

O V E R R E P O RT I N G A N D U N D E R R E P O RT I N G O F S U B S TA N C E US E

Depending on the context, individuals may have reason either to underreport or overreport their level of substance use. For example, individuals on probation or parole might underre-port or deny drug use out of an understandable concern that a violation of the terms of their probation or parole may result in incarceration. By contrast, it is conceivable that criminal defendants seeking to establish an insanity defense might overreport drug use on the belief that voluntary intoxication could form the basis of such a defense. Although several stud-ies have addressed the underreporting of drug use among criminal and civil populations, we were unable to locate reli-able research directly addressing the overreporting of drug use. Th erefore, we will limit our discussion to a review of research regarding the underreporting of drug use.

Among criminal populations, research has typically found that arrestees underreport their recent use of illicit drugs, particularly cocaine (e.g., Hser, 1997; Lu, Taylor, & Riley, 2000; Mieczkowski, Barzelay, Gropper, & Wish, 1991; Yacoubian, 2000). Harrison (1995) found that among arrest-ees who tested positive for marijuana, cocaine, and opiates, only half reported using any of those drugs within the past 3 days. Research also suggests that a high proportion of drunk-driving off enders underreport their use of drugs besides alco-hol (e.g., Lapham, C’de Baca, Chang, Hunt, & Berger, 2002).

Researchers have also found underreporting of drug use among other high-risk, but non-arrestee, populations (e.g., Fendrich, Johnson, Sudman, Wislar, & Spiehler, 1999; Morral, McCaff rey, & Iguchi, 2000). Fendrich et al. (1999) collected self-report survey data and hair specimens from a high-risk sample of household respondents in Chicago, and results indi-cated signifi cant underreporting of cocaine and heroin use during the past 30 days. In another study, Morral et al. (2000) explored the accuracy of self-reported drug-use frequency among 701 methadone maintenance clients and found that use frequencies averaged 34% higher for opiates and 20% higher for cocaine than were self-reported. In a study exam-ining self-reported drug use and urine-testing data among 59 methadone maintenance patients, researchers found that the subjects over- or underreported their use of cocaine and heroin by an average of 15% (Ehrman & Robbins, 1994). Finally, in the civil context, some commentators have sug-gested that parents involved in child custody disputes may routinely underreport their use of drugs and alcohol (e.g., Schleuderer & Campagna, 2004).

Taken together, the weight of the available evidence appears to suggest that underreporting of drug use is a signifi -cant concern among some off ender and non-off ender popula-tions. Th is highlights the importance of not relying exclusively on self-report data when conducting a substance abuse evalua-tion or monitoring an individual’s abstinence. Best-practice standards strongly underscore the importance of combining self-report data with objective measures of drug use, such as urine drug-screen results (Carver, 2004; Harrell & Kleiman, 2002; Messina, Wish, Nemes, & Wraight, 2000; Rosay, Najaka, & Herz, 2000).




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1 T R E AT M E N T O F S U B S TA N C E A B U S E A N D D E P E N D E N C E

As was noted earlier, attorneys and forensic experts are fre-quently called upon to predict whether a subject would be likely to succeed in substance abuse treatment in lieu of a more punitive or restrictive disposition. As with any prediction, the answer to this question will oft en depend, in large part, on the base rate for success in the population. Unfortunately, success in traditional substance abuse treatment programs can by no means be confi dently assumed.

AT T R IT I O N FRO M T R E AT M EN T

Attrition from substance abuse treatment is unacceptably high. Between approximately one-half and two-thirds of indi-viduals who schedule an initial intake appointment for drug abuse treatment fail to show for the fi rst intake session (Festinger, Lamb, Kirby, & Marlowe, 1996; Festinger, Lamb, Kountz, Kirby, & Marlowe, 1995; Festinger, Lamb, Marlowe, & Kirby, 2002). Of those who do attend an intake, between 40% and 80% drop out of treatment within 3 months (e.g., Gainey, Wells, Hawkins, & Catalano, 1993; Simpson, Joe, & Brown, 1997; Stark, 1992) and between 80% and 90% drop out within 12 months (e.g., Satel, 1999).

Comparable fi gures are reported among substance- abusing criminal off enders. Only about 25% of drug-involved off end-ers may be expected to complete a substance abuse treatment regimen (UCLA, 2007). Between 40% and 70% of proba-tioners and parolees drop out of treatment or attend irregu-larly within 2–6 months (Nurco, Hanlon, & Kinlock, 1991; Taxman, 1999a; Young, Usdane, & Torres, 1991).

Evidence from the national Drug Abuse Treatment Outcome Study (DATOS) suggests that 3 months of drug abuse treatment may be a minimum threshold for detecting dose–response eff ects for the interventions, and 6–12 months may be a thresh-old for observing clinically meaningful reductions in substance use (Simpson et al., 1997). Aft er 12 months of drug abuse treat-ment, clients have roughly a 50% probability of remaining con-tinuously abstinent for an additional year following completion of treatment (McLellan, Lewis, O’Brien, & Kleber, 2000). Given that no more than about 25% of drug-abusing off enders remain in treatment for 12 months, one might reasonably expect no more than about 10% to 15% of the original intent-to-treat cohort, on average, to achieve a sustained interval of sobriety.

T R E AT M E N T E F F E C T S

In community-based substance abuse treatment programs, the magnitudes of the treatment eff ects are typically small to mod-erate. A meta-analysis of 78 studies that compared standard drug abuse treatment with a no-treatment or minimal-treat-ment control condition reported small impacts on crime and moderate impacts on drug use (Prendergast, Podus, Chang, & Urada, 2002). (A meta-analysis is a quantitative method of combining the results of several research studies so that infer-ences can be drawn across studies.) Using a liberal defi nition of “success” (i.e., a better than average outcome for the sample),

the mean weighted ES for criminal activity was 0.13, equiva-lent to about a 6 percentage-point increase in the percentage of “successful” cases. (An ES is a way of expressing the size or magnitude of the eff ects of a particular intervention). Th e average weighted ES for drug use was 0.30, equivalent to about a 15 percentage-point increase in the proportion of “success-ful” cases. A meta-analysis of 361 controlled alcohol treatment studies found that the most commonly administered treat-ments in standard practice (i.e., psychoeducational group counseling, milieu therapy, and relaxation training) yielded no appreciable evidence of effi cacy (Miller & Wilbourne, 2002).

Th ere may be reason to anticipate lesser success within the criminal justice system. Nationally, less than 10 percent of pro-bationers and 20 percent of prison or jail inmates have access to needed substance abuse treatment services on any given day (Chandler, Fletcher, & Volkow, 2009; Friedmann, Taxman, & Henderson, 2007; Taxman, Perdoni, & Harrison, 2007). What little treatment is available is oft en not evidence-based, lacking in a coherent focus or structure, and delivered by inad-equately trained staff (Lutze & van Wormer, 2007; Taxman & Bouff ard, 2003). Th e most commonly administered “treat-ment” in correctional settings is drug-education groups, which off er minimal benefi ts for addicted off enders (Pearson & Lipton, 1999). Although psycho-education might be a useful secondary-prevention strategy for non-addicted substance abusers, it has almost no value for addicts.

Adding case management services to standard drug abuse treatment for off enders has produced mixed but potentially promising fi ndings. Under the rubric of what was originally named Treatment Alternatives to Street Crime (TASC)—renamed Treatment Accountability for Safer Communities—hundreds of case management agencies were founded across the country to identify and refer drug-abusing off enders to a range of needed treatment services, to monitor their progress in treatment, and to report compliance information to appro-priate criminal justice authorities. Early evaluations concluded that TASC programs were eff ective at identifying substance abuse problems among off enders and making appropriate treat-ment referrals (Weinman, 1990). Moreover, clients involved with the criminal justice system tended to remain in treatment signifi cantly longer when they were under TASC supervision (Hubbard, Collins, Rachal, & Cavanaugh, 1988). However, an evaluation of fi ve large and representative TASC programs concluded that eff ects on drug use and criminal recidivism were mixed (Anglin, Longshore, & Turner, 1999). Drug use was sig-nifi cantly lower for TASC clients in three of the fi ve sites and criminal activity was lower in two of the sites. Moreover, the positive fi ndings were small to moderate in magnitude. Th ese results suggest that TASC programs may be a critical compo-nent of successful treatment for substance-involved off enders; however, they require additional support and back-up from the courts, probation or parole offi cers, and treatment agencies to achieve signifi cant and sustained positive eff ects.

Q UA L I T Y O F T R E AT M E N T

Th e disappointing outcomes reviewed above should come as no surprise to anyone who is familiar with the substance abuse




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1 treatment system in this country. A study of a nationally repre-sentative sample of public and private substance abuse treat-ment programs in the U.S. found that nearly 45% of the programs were either closed or no longer providing substance abuse services within a 16-month period (McLellan, Carise, & Kleber, 2003). Th at same study found more than a 50% staff -turnover rate among both the clinicians and administrators within 12 months. With such gross instability in staffi ng, the programs could not reasonably be expected to maintain the skills level necessary to deliver eff ective services. Moreover, given that between one-quarter and one-half of substance abuse treatment providers, nationally, have no more than a 2-year college degree (McLellan et al., 2003; Taxman & Bouff ard, 2003), it is diffi cult to imagine how they could be expected to master the complicated principles and techniques that are necessary to treat chronic and intransigent conditions such as crime and addiction.

One multisite observational study of counseling sessions for drug-abusing or addicted off enders reported that only about 60% of the sessions addressed clinically relevant mate-rial, few counselors endorsed a cohesive or identifi able treat-ment philosophy, there was no conceptual clarity to the sessions, few evidence-based treatments were administered, and the counselors failed to show for nearly 20% of the sched-uled appointments (Taxman & Bouff ard, 2003). Th is is con-sistent with several earlier national studies fi nding that few alcohol or drug abuse treatment programs provided evidence-based treatments for their clients (Lamb, Greenlick, & McCarty, 1998).

E F F E C T I V E D I S P O S I T I O N S

Given the relatively low base rate for success in standard cor-rectional treatment programs, it should go without saying that simply diverting off enders into treatment, without more, is unlikely to reliably serve public-health or public-safety objec-tives (Marlowe, 2002, 2003). Th is does not, however, justify a wholesale abandonment of treatment objectives. Outcomes from substance abuse treatment are actually better than those derived from punitive correctional sentences, and they are considerably less costly. For instance, the research evidence is clear that imprisonment has virtually no impact on drug use or crime. Over 95% of drug-abusing off enders return to drug use within 3 years of release from prison, with roughly 85% relaps-ing within only the fi rst 6–12 months (Hanlon, Nurco, Bateman, & O’Grady, 1998; Maddux & Desmond, 1981; Martin, Butzin, Saum, & Inciardi, 1999; Nurco et al., 1991; Pelissier, Jones, & Cadigan, 2007; Vaillant, 1973). Moreover, within 3 years of release from prison, approximately two-thirds of off enders are arrested for a new crime, and roughly one-half are convicted of a new crime or reincarcerated for a technical parole violation (Langan & Levin, 2002). Dozens of program evaluations similarly revealed no impacts on drug use or crime for so-called intermediate sanctions, such as boot camps, home detention, or electronic monitoring (e.g., Gendreau, Goggins, Cullen, & Andrews, 2000; Taxman, 1999b).

Th e programs that have produced the most consistent evidence of success are those that blend the functions of the

criminal justice system and the substance abuse treatment system (Marlowe, 2002, 2003). Substance abuse treatment assumes a central role in these programs, rather than being viewed as peripheral to punitive ends, and is provided in sub-jects’ community of origin, where they can maintain family and social contacts and can seek or continue in gainful educa-tion or employment. Responsibility for ensuring subjects’ attendance in treatment and avoidance of drug use and crimi-nal activity is not, however, delegated to treatment personnel who may be unprepared or disinclined to deal with such mat-ters, and who oft en have limited power to intervene. Th e crim-inal justice system maintains substantial supervisory control over off enders and has enhanced authority through plea agree-ments and similar arrangements to respond rapidly and con-sistently to infractions in the program.

Drug courts are one example of an integrated program that has shown substantial promise for reducing drug use and crime among pretrial defendants and probationers. Drug courts are special criminal-court dockets that provide judi-cially supervised substance abuse treatment in lieu of prosecu-tion or incarceration. Th e core ingredients of a drug court include regular status hearings before the judge in court, random weekly urine drug screens, mandatory completion of a prescribed regimen of treatment and case management ser-vices, progressive negative sanctions for program infractions, and positive rewards for program accomplishments. Participants who satisfactorily complete the program may have their criminal charges dropped, reduce their probation-ary obligations, or receive a sentence of time served in the pro-gram. Defendants are generally required to plead guilty or no contest as a condition of entering a pre-adjudication drug court; therefore, termination from the program ordinarily results in a criminal conviction and sentencing to probation or incarceration.

Th e evidence is clear that drug courts provide enhanced supervision of drug-involved off enders and increase their exposure to substance abuse treatment (Lindquist, Krebs, Warner, & Lattimore, 2009). Reviews of dozens of program evaluations concluded that an average of 60% of drug court clients completed 1 year or more of treatment, and roughly one-half graduated from the program (Belenko, 1998, 1999, 2001, 2002). Th is compares quite favorably to the usual reten-tion rates in community-based drug abuse treatment pro-grams, where, as was noted earlier, 75% to 90% of probationers drop out or attend irregularly in less than 1 year.

Five meta-analyses conducted by independent scientifi c teams have all concluded that adult drug courts signifi cantly reduced criminal recidivism (typically measured by re-arrest rates) by an average of approximately 8 to 14 percentage points (Aos, Miller, & Drake, 2006; Latimer, Morton-Bourgon, & Chretien, 2006; Lowenkamp, Holsinger, & Latessa, 2005; Shaff er, 2006; Wilson, Mitchell, & MacKenzie, 2006). In ran-domized experimental studies, drug court participants exhib-ited roughly a 15 percentage-point reduction in rearrest rates at 2 years and 3 years post-admission compared to probation-ers (Gottfredson, Kearley, Najaka, & Rocha, 2005; Gottfredson, Najaka, & Kearley, 2003; Turner, Greenwood, Fain, & Deschenes, 1999).




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1 A number of dismantling studies have investigated the critical ingredients of drug court programs. Dismantling stud-ies use an experimental design to determine the independent contributions of specifi c components of an intervention. A series of controlled, parametric studies found that holding fre-quent judicial status hearings improved outcomes for high-risk drug court clients who had more severe drug-use histories or a comorbid diagnosis of antisocial personality disorder (Festinger, Marlowe, Lee, Kirby, Bovasso, & McLellan, 2002; Marlowe, Festinger, & Lee, 2003, 2004; Marlowe, Festinger, Dugosh, Lee, & Benasutti, 2007; Marlowe, Festinger, Lee, Dugosh, & Benasutti, 2006). Two other experimental studies found that imposing graduated sanctions for positive urine drug screens and other infractions improved outcomes over standard pretrial supervision or probation (Harrell, Cavanagh, & Roman, 1998; Hawken & Kleiman, 2009). Finally, at least one study has suggested that outcomes might be improved for the more incorrigible types of drug off enders when they can earn tangible rewards for positive achievements in the pro-gram (Marlowe, Festinger, Dugosh, Arabia, & Kirby, 2008).

Th e results of these dismantling studies indicate that the positive impacts of drug courts cannot be attributed simply to the eff ects of substance abuse treatment. Th e additional ele-ments of judicial supervision, urine drug testing, and contin-gent sanctions and rewards appear to be making signifi cant incremental contributions to outcomes (Marlowe, DeMatteo, & Festinger, 2003). Th is suggests that forensic experts and attorneys will need to be substantially creative when craft ing dispositional recommendations. It may not be suffi cient to simply recommend that a subject receive substance abuse treatment, especially in light of the relatively modest base rates for success in standard treatment programs. Particularly for the more serious or recidivist off enders, a suitable disposition plan will need to include provisions for ongoing monitoring by criminal justice authorities, as well as for the immediate and consistent imposition of sanctions and rewards contingent upon the subject’s progress or lack of progress in treatment.

S U M M A RY

In summary, the research evidence fails to support a simplistic premise that substance use is primarily responsible for crimi-nal activity in many cases, or that substance abuse treatment, alone, is necessarily the most appropriate strategy for forestall-ing future wrongdoing. Criminal and tortious activities are frequently infl uenced as much by the circumstances surround-ing a particular event, or by the personal characteristics of the defendant, than by the pharmacological properties of a given substance. Moreover, it appears that many assessment instruments may overinfl ate the prevalence or severity of diag-nosable substance use disorders among off enders, and there-fore may overestimate treatment needs in this population. Finally, diffi cult as it might be to accept, the research evidence does not provide reliable or consistent support for the eff ec-tiveness of traditional community-based substance abuse treatment interventions for reducing substance abuse and crime among off enders. Unless attorneys and forensic experts

develop dispositional plans that include careful procedures for monitoring off enders’ compliance in treatment and respond-ing consistently to infractions, the majority of off enders might be expected to drop out of treatment prematurely or to fail to achieve a sustained interval of sobriety.

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C A S E C I TAT I O N S

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TA B L E O F AU T H O R I T I E S

C A S E S

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White et al. (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .17Whitfi eld (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7Yacoubian (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24Young et al. (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26Zhang (2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2

A P P E N D I X A

B E S T-P R AC T I C E S TA N DA R D S I N S U B S TA N C E A BUS E EVA LUAT I O N S

1. Make substance-related diagnoses using accepted clinical standards (DSM-IV, ICD-10).

2. Distinguish between “abuse” and “dependence,” with particular atten-tion to the hallmark features of addiction (i.e., withdrawal, cravings, compulsion).

3. Check the validity of self-reported drug use by consulting collateral sources of information (e.g., reports of probation/parole offi cers; urine drug-screen results).

4. Always assess for malingering or feigning of a drug problems. Most assessment tools and substance abuse counselors are better detectors of “denial” than exaggeration.

5. Know the reliability and validity of the psychological measures used during examinations, and be aware of the proper uses and limitations of those measures. Many psychological tests have drug abuse scales that may indicate problematic use, but which are not valid diagnostic tools.

6. Use objective data when available to substantiate reports of abstinence, including urine drug screen results, toxicology reports, or ER admis-sion records.

7. Know the pharmacological characteristics of the substances in question.

8. Know the acute and long-term eff ects of intoxication and withdrawal from the primary drug of abuse.

9. Know the treatment history of the individual being evaluated. An indi-vidual’s treatment history is oft en predictive of the outcome of future treatments.



ziskin & faust chapter 27

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