Mandates substance abuse assessment or treatment for convicted felons on probation and for offenders under the custody of the department of public safety.
HOUSE OF REPRESENTATIVES
TWENTY-SECOND LEGISLATURE, 2003
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO SUBSTANCE ABUSE.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
SECTION 1. The legislature finds:
(1) A growing body of research demonstrates the destructive impact of alcohol and other substance abuse on personal health and health care costs, the spread of communicable disease, educational performance and attainment, work force participation, safety and productivity in the workplace, and financial stability. These indicators of social erosion are in turn related to crime in many obvious but hard to measure ways. Given the recognized relationship between crime and substance abuse and addiction, it is necessary and appropriate to use, adapt, and expand the resources and remedies available within the criminal justice system to address the problem of substance abuse dependency and thereby help reduce the demand for illicit drugs and the incidence of drug-related crimes;
(2) Studies, such as the drug use forecasting studies conducted by the National Institute of Justice, reveal that a large percentage of persons arrested for both drug and nondrug offenses (such as thefts, burglaries, robberies, assaults, rapes, and homicides) test positive for recent drug use. Many offenses are committed by adults who are under the influence of a controlled substance or alcohol or in order to raise revenues to support the offender's drug habit. Some mind and mood altering drugs, moreover, seem to induce criminal and often violent behavior, reducing the person's inhibitions as well as the person's ability to anticipate future consequences, thereby undermining the deterrent thrust of the criminal law. Some drugs also may reduce an offender's ability to empathize with a potential victim, resulting in episodes of seemingly mindless violence. Finally, some crimes, including crimes of violence, are committed in the normal course of conducting illicit drug businesses and enterprises. These include strong-arm robberies and "rip offs", violent retaliations for these offenses, and efforts to protect markets and "turf" by means of intimidation and terrorism directed against would-be competitors and drug purchasers who patronize competing drug distributors;
(3) Research has demonstrated that substance abuse and addiction are treatable within the offender population and that appropriate actions by criminal justice professionals can foster the effectiveness of treatment. This research further demonstrates that the effectiveness of substance abuse treatment is directly related to the length of stay in treatment. The threat of criminal justice sanctions, in turn, can be used to motivate offenders to enter treatment and stay in treatment for as long as necessary to effect positive change. To achieve this change, treatment must be of sufficient duration and intensity, must be supported by periodic comprehensive drug testing to maintain program integrity, must be provided by professional staff who have received adequate training and who continue to receive training and adequate supervision, and must provide for the continued collection and analysis of program data to allow for both process and impact evaluation. Moreover, the drug and alcohol treatment programs must be accredited by the department of health and must be appropriate in type, duration, and intensity based upon the length and level of treatment derived from an alcohol and other drug assessment of each individual's needs, balanced with the public's right to protection;
(4) Few addicts voluntarily seek help for a substance abuse problem. Many drug dependent persons deny that they have a problem. Consequently, the decision to participate in treatment typically is the result of pressure brought to bear by other persons, including family members, friends, co-workers, employers, medical and health care professionals, school officials, courts, or law enforcement agencies. Since a substantial percentage of referrals for substance abuse treatment come from law enforcement agencies, the law enforcement community acts as a major point of entry to the substance abuse treatment system. It is in the public interest to use the coercive powers of the law enforcement community and their jurisdiction over persons charged with committing crimes to constructively influence substance abusing and addicted offenders and to provide strong incentives for these offenders to accept help and to participate and remain as long as necessary in meaningful treatment and monitoring programs;
(5) Most addicted offenders who are convicted of serious crimes and who are sentenced to terms of imprisonment will eventually be released back into the community on parole or at the expiration of their sentences. Without proper treatment, an offender is likely to continue to be drug dependent and to commit new offenses, resulting in further injury to victims, loss of property, and the expenditure of limited resources to identify, apprehend, prosecute, and return the offender to confinement. Under these circumstances, the overriding need to protect the public safety requires that all substance abusing and addicted offenders receive appropriate treatment and monitoring services, based on the individual's need as determined by an alcohol and other drug assessment, either in lieu of or during the course of traditional imprisonment, and continue to receive needed treatment or appropriate aftercare, support, or monitoring services as a condition of parole or other release from confinement;
(6) Persons charged with repeat offenses who actively abuse or are addicted to a controlled substance or alcohol and who are not undergoing appropriate treatment and monitoring pose a proportionately greater risk of criminal recidivism;
(7) To ensure uniformity and the best possible use of limited resources, the department of health must develop and enforce accreditation and operational standards for all programs, whether public or private, that provide substance abuse assessment services or treatment services to adults who are repeat offenders who are inmates in correctional centers and facilities; and
(8) For treatment and intervention services to be most effective, alcohol and other drug abusing and addicted offenders must be assured that information provided during the course of treatment and counseling will be kept confidential in accordance with 42 United States Code section 290dd-2 and 42 C.F.R. Part 2, which govern the confidentiality of alcohol and other drug abuse treatment records. Without these protections, an offender in need of alcohol and other drug treatment services may be discouraged from constructively engaging in the treatment process. Preserving the confidentiality of treatment information and records is consistent with the vital goal of holding alcohol and other drug abusing and addicted offenders fully accountable for their past and future actions.
The purpose of this Act is to mandate a substance abuse assessment and treatment program for all inmates in correctional centers and facilities who are alcohol or drug dependent, or who are otherwise in need of substance abuse treatment and monitoring. It is the intent of this Act to hold substance abusing offenders accountable for their past and future actions by means of an effective combination of rewards, threats, and swiftly imposed punishments and sanctions designed to take full advantage of the coercive influence of the criminal justice system.
SECTION 2. Chapter 353G, Hawaii Revised Statutes, is amended by adding three new sections to be appropriately designated and to read as follows:
"§353G- Interagency coordination. (a) To carry out their responsibilities under chapter 353G, the department of public safety, Hawaii paroling authority, judiciary, department of health, department of human services, and any other agency assigned oversight responsibilities for offender substance abuse treatment by law or administrative order, shall establish, by an interagency cooperative agreement, a coordinating body to oversee the development and implementation of offender substance abuse treatment programs in the State to ensure compliance with the intent of the master plan developed under chapter 353G. The interagency cooperative agreement shall set forth the role of the coordinating body and the responsibilities of each agency that is a party to the agreement.
(b) The department of public safety shall be the lead agency for the statewide offender substance abuse treatment program. As the lead agency, the department shall act as facilitator of the coordinating body by providing administrative support to the coordinating body.
(c) Notwithstanding any other provision to the contrary, any agency that is part of the interagency cooperative agreement shall provide, upon the request of any other participating agency, all medical, psychological, or mental health records of any offender receiving supervision or treatment while under custody of the State. Any participating agency receiving the records of any offender receiving supervision or treatment, while under custody of the State, shall keep that information confidential in accordance with the requirements of 42 United States Code section 290dd-2.
§353G- Drug treatment; probation. (a) The court shall sentence to probation any person who:
(1) Is convicted of an offense under section 712-1243, 712-1246, 712-1247, or 712-1249.6;
(2) Has no prior conviction for any offense;
(3) Agrees to comply with the conditions of probation provided by the court; and
(4) Has been recommended for substance abuse treatment as the result of a drug assessment performed pursuant to section 353G-5.
In addition to any other conditions provided by the court under section 706-624, the court shall provide, as an explicit condition of a sentence of probation for a defendant meeting the requirements of this section, that the defendant undergo available treatment for drug or alcohol dependency and remain in a specified institution, if required for that purpose.
(b) If, after a hearing as described in section 706-625, the court finds that a person sentenced to be placed on probation under subsection (a) has inexcusably failed to comply with a substantial requirement of the order that is related to substance abuse treatment or substance abuse, and the court finds that the person has not previously failed to comply with any substantial requirement of the order, the court shall not revoke probation but may make any other order permitted by section 706-625.
§353G- Drug treatment. The department of public safety may order an inmate to participate in treatment for drug or alcohol dependency if the inmate has been recommended for substance abuse treatment as the result of a drug assessment performed pursuant to section 353G-5."
SECTION 3. Section 353G-3, Hawaii Revised Statutes, is amended by amending the title and subsection (a) to read as follows:
§353G-3[ ]] Mandatory drug testing of [ repeat offenders.] felons. (a) Any inmate who has been convicted of [ an offense] a felony under chapter 329, 329C, 707, 708, 709, 710, 711, or 712, [ and has one prior conviction under any of these chapters,] shall be required to submit to drug testing."
SECTION 4. Section 353G-4, Hawaii Revised Statutes, is amended by amending the title and subsection (a) to read as follows:
§353G-4[ ]] Mandatory assessment of [ offenders.] felons. (a) Any inmate who has been convicted of [ more than one offense] a felony under chapter 329, 329C, 707, 708, 709, 710, 711, or 712, [ and has one prior conviction under any of these chapters,] shall be required to undergo an assessment if:
(1) The inmate refuses to undergo a drug test required under section 353G-3;
(2) The results of the drug test conducted pursuant to section 353G-3 reveal the presence of a controlled substance, for which the inmate has no lawful prescription, or reveal alcohol abuse or dependency;
(3) The inmate requests an assessment;
(4) The inmate admits to the unlawful use of a controlled substance within the year preceding the conviction for the present charge or admits to alcohol abuse or alcoholism;
(5) The inmate has been granted a conditional discharge within the past five years pursuant to section 712-1255 or any similar or predecessor law of this State, any other state, or federal law;
(6) The inmate has been sentenced within the past five years to probation or treatment during incarceration pursuant to this chapter or any similar or predecessor law of this State, any other state, or federal law; or
(7) The present or pending charge involved the use or possession of a controlled substance or alcohol."
SECTION 5. Section 353G-5, Hawaii Revised Statutes, is amended by amending subsection (c) to read as follows:
"(c) Anyone receiving drug test results or assessment results under subsection (a) shall keep that information confidential in accordance with the requirements of 42 United States Code section [
SECTION 6. Section 353G-6, Hawaii Revised Statutes, is amended by amending subsection (b) to read as follows:
"(b) Except as provided by law, an assessment shall be used only for the purposes listed in subsection (a)(2) or (a)(3), to provide information to a court in sentencing a defendant, and to provide background information about an inmate to any person or agency conducting a prerelease assessment pursuant to section 353G-4."
SECTION 7. Section 353G-16, Hawaii Revised Statutes, is amended by amending subsection (a) to read as follows:
"(a) The department of public safety, with the assistance of the department of health[
, may] and the attorney general, shall pursue all available funding through federal, state, and local government programs [ and] or private sources. [ Contingent upon the receipt of sufficient funds, the department of public safety may implement the assessment and treatment services mandated pursuant to this chapter. If at any time funds are not available, the department may not be required to provide these services.] In addition, the department of public safety, in conjunction with the department of health, may pursue all available federal matching funds through medicaid for nonhospital residential alcohol and other drug treatment services from the United States Health Care Financing Administration."
SECTION 8. There is appropriated out of the general revenues of the State of Hawaii the sum of $ , or so much thereof as may be necessary for fiscal year 2003-2004, and the same sum or so much thereof as may be necessary for fiscal year 2004-2005, for substance abuse treatment programs for inmates incarcerated in Hawaii correctional facilities. The sums appropriated shall be expended by the department of public safety for the purposes of this Act.
SECTION 9. There is appropriated out of the general revenues of the State of Hawaii the sum of $ , or so much thereof as may be necessary for fiscal year 2003-2004, and the same sum or so much thereof as may be necessary for fiscal year 2004-2005, for substance abuse treatment programs for convicted felons on probation. The sums appropriated shall be expended by the judiciary for the purposes of this Act.
SECTION 10. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.
SECTION 11. This Act shall take effect on July 1, 2003.