Ziskin & Faust Chapter 27

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1 27
SUBSTANCE USE, ABUSE, AND DEPENDENCE
Douglas B. Marlowe, David S. DeMatteo, Nicholas S. Patapis, and David S. Festinger
S
ubstance use is highly prevalent in forensic and correc-
tional populations. Approximately 70% to 85% of crimi-
naloffendersintheUnitedStatesmeetabroaddefinition
of substance involvement, meaning they were arrested for a
drug or alcohol-related offense, were intoxicated at the time of
their offense, reporting committing their offense to support a
drughabit,orhaveaserioushistoryofsubstanceabuse(Bureau
ofJusticeStatistics,1998,2001;NationalCenteronAddiction
& Substance Abuse [NCASA], 2010; Zhang, 2003). Rates of
diagnosable substance use disorders are lower but still substan-
tial. Approximately 65% of offenders 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
difficulty remaining abstinent without formal treatment
(APA, 2000). In other words, substance abuse is defined essen-
tially by the experience of repeated adverse consequences of
substance use, whereas substance dependence is defined by a
substantial inability to stop using the substance. The latter
symptoms of substance dependence may reflect 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).
The above figures do not simply reflect drug possession
offenses. 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 offenses,
including approximately 50% of violent offenders, 50%–70%
of theft and property offenders, 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). Therefore, offenders
diagnosed with substance dependence are often included within the reported
percentages of offenders 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.
traffic fatalities and 7% of motor vehicle crashes (National
Highway Traffic 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. This 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 offense. 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
efficacy of substance abuse treatment interventions.
It is concluded from this review of the scientific 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 efficacy of traditional substance
abuse treatment interventions may have been substantially
overestimated for offender populations. The majority of
offenders 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 effect size (ES) for many community-based
treatment programs is often too small to serve public safety or
public health objectives.
The programs that have shown reliable promise for reduc-
ing substance use and crime among offenders 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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1 lack thereof—in treatment. This 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
scientific standpoint to simplistically attribute crime to the
effects 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.
SUBSTANCE INTOXICATION
AND LIABILITY
In civil cases, voluntary intoxication may be considered to be
probative of liability. That 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). The 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.
DIMINISHED CAPACITY
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 offenses
(Marlowe, Lambert, & Thompson, 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 specific
intent crimes, and a small proportion (about 5%) permitted
such evidence only to negate mens rea in first-degree murder
cases. General intent refers to any intention to perform a pro-
scribed act or closely related act, whereas specific intent
requires a purpose plus deliberation or premeditation (e.g.,
Kaplan & Weisberg, 1991). Where admissible, the effect of
intoxication evidence can be to reduce culpability to that of a
lesser included offense. For example, the specific-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. The 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
effect, these statutes transfer the intention to become intoxi-
cated to the intention to commit further crimes while the
offender is under the influence (e.g., Layton, 1997). The U. S.
SupremeCourtupheldonesuchstatuteinMontana(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.
INSANITY DEFENSE
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 definition 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 suffer 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). The
traditional rule required this substance-induced insanity to be
permanent; however, some cases have held that a mental defect
may be sufficiently “fixed” to satisfy the permanence require-
ment if it is present for a substantial time, both before and
after 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. The defendant must
lack actual knowledge about the potential effects of the sub-
stance on his or her behavior and must not have reason to
know about such effects. 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.
AUTOMATISM DEFENSE
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 offense (e.g., Fulcher v. State, 1981).
Similar to the insanity defense, the automatism defense is

638 • SCIENTIFIC STATUS OF PSYCHOLOGY AND PSYCHIATRY
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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). The 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 flailing motor activity, or of
a rare somnambulant fugue state, it is difficult to envision a
scenario that could support such a defense.
EVALUATING AN INTOXICATION DEFENSE
In any evaluation of criminal responsibility, it is difficult to
reconstruct a defendant’s mental state at an earlier point in
time. This may be particularly problematic in intoxication
cases, because the effects of drugs and alcohol typically wear
off in several hours, whereas the residual symptoms of psy-
chotic or affective disorders can last for days, weeks, or even
months. Researchers are often unable to measure the accuracy
of forensic evaluators’ conclusions because there is usually no
objectively measurable standard against which to validate
their findings. 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.
These factors include the characteristics of the substance, the
characteristics of the defendant, and the characteristics of the
offense.
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 specific criminal intent. Acute intoxi-
cation has its most profound effects 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. This
reaction would be intended, albeit sudden and ill conceived.
Consequently, intoxication evidence may be relevant to negate
specific 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 effects 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; Whitfield, 1990). Other substances that have
activating and disinhibiting effects 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
suggestedamore“sobering”analysisofitseffects(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
first 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 definitive 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. This 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 efforts 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 effects of newer “designer
drugs” or “club drugs” such as “ecstasy” (3,4-methylene-
dioxymethamphetamine or MDMA), “GHB” (gamma-
hydroxybutyrate), “roofies” (flunitrazepam or Rohypnol), or
“vitamin K” (ketamine or Ketalar). Many of these drugs are
classified or partially classified as “dissociative anesthetics,”
with features similar to those of PCP (Kohrs & Durieux,
1998). The neurological effects 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 The relationship between drug use and psychosis warrants
further discussion. A psychosis is defined 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 defined in
terms of episodes (i.e., symptoms meet diagnostic criteria for a
psychotic episode) or symptoms (i.e., one or more psychotic
featuresthatdonotmeetdiagnosticcriteriaforafullpsychotic
episode).
Drug use is generally associated with psychosis in one of
three ways. First, some drugs, such as hallucinogens (e.g.,
LSD), specifically act to induce psychotic-type symptoms.
These 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 effect of their intended recreational effects
(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. The following sections pres-
ent a more detailed examination of the relationship between
certain substances of abuse and psychosis.
Alcohol
Alcohol is classified as a depressant because of its predom-
inant effect 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 after 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. There is no
official 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
deficits 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. This 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 filled for just the leading benzodiazepine and its generic
equivalent.Medically,benzodiazepinesareprimarilyindicated
to reduce anxiety (anxiolytic), to induce sleep (hypnotic), and
as an adjunct to anesthesia during certain surgical procedures.
Aside from differences in their absorption rate, duration
of action, and dosage required to achieve therapeutic effects,
benzodiazepines have nearly identical pharmacodynamic pro-
files. 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. The
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 effects 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.”
The abuse of barbiturates (e.g., Seconal, Tuinal, Luminal)
is currently rare. These medications are no longer prescribed
very often 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
psychosisassociatedwithbarbituratesisduringthewithdrawal
period, and the barbiturate withdrawal syndrome is clinically
very similar to that of alcohol.
Stimulants
The stimulant drugs carry a substantially higher risk of
causingpsychoticsymptomsorepisodesthanmostotherdrugs
of abuse. Heavy cocaine use (including “crack”) frequently
inducesparanoidideationandhallucinations.Suchexperiences
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
formofmethamphetamine(“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 effects on the CNS.
However, unlike the other amphetamines, designer amphet-
amines have significant pharmacological differences and
intoxication profiles, 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 effects. They 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 effects on the CNS. Therefore, 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 after 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, Coffey, 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 infiltrated 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 effects of cannabis on sensation
and perception, cannabis has substantial effects on cognition
and motor skills similar to the sedative drugs. This 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 traffic accidents and incidents of driving under the
influence (DUI) (National Institute on Drug Abuse, 2005b).
MDMA and other designer amphetamines can produce
perceptual and sensational effects 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. These symptoms,
which may include “flashbacks,” can outlast the known psy-
choactive period of the drugs and have been anecdotally
reported to occur years after the last reported use. This 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 first documented in the 1960s and
1970s when the use of LSD surged in popularity. The 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 after drug use has been discontinued.
Characteristics of the Defendant
For purposes of sentencing or disposition (which are discussed
later), it is often 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 difficult to establish a mens rea or insanity defense. On
the one hand, a serious substance abuse history could persuade
the fact finder 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 offense. 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 often the best candidates for an intoxica-
tiondefense.Somereportssuggestthatanintoxicationdefense
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 affective regulation (i.e., the
limbic system) (e.g., Fishbein, 2000). Most psychoactive
substances exert their effects, 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. This 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 deficits in the areas of
language, attention, or memory (which may be quite common
among offenders) should have discernable effects on impulsive
criminality.
Characteristics of the Offense
Courts and juries are very likely to focus their attention on the
factual circumstances surrounding the offense. 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
efforts to conceal the crime (e.g., Boettcher, 1987; LaFave &
Scott, 1986; Marlowe et al., 1999).
The 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 difficult to argue that there
was no intent to commit the offense. This 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-
offense “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 offense (i.e., to remove fear or reticence).
If a motive for the offense is present, but the defendant did
not contemplate the offense prior to its commission, then this
might reduce the degree of culpability from that of a specific-
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 specific-intent crime, such as assault with intent
to inflict 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 influential to
the first 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 efforts to escape or to conceal the
offense. The longer the period of time between the offense and
the subsequent efforts 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 offense (e.g., Commonwealth v. Gribble,
1997). On the other hand, if the defendant awakened 8 hours
later on the following morning before engaging in efforts to
cover the crime, this might suggest that he or she was too
intoxicated to take self-protective measures during or soon
after its commission.
SUBSTANCE-INDUCED AMNESIA
Many criminal defendants purport not to recall the circum-
stances surrounding an alleged offense, often attributing this
to substance-induced amnesia. Some reports have suggested
that between 25% and 65% of violent offenders claimed some
degree of amnesia for their crimes (Bradford & Smith, 1979;
Schacter, 1986). These 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. There 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 definitively 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 definitive data exist to support the occurrence of true
blackouts from opiates, cannabis, cocaine, PCP, or stimulants.
Although memory may be sketchy after abusing these drugs,
cued recall should be sufficient 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 effects 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 deficits
and potentially permanent memory impairment (Broening,
Morford,Inman-Wood,Fukumura,&Vorhees,2001;Ricaurte,
McCann, Szabo, & Scheffel, 2000). These effects 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 differently 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 “fixed” over an extended time or if they
were ingested inadvertently or with a reasonable absence of
knowledge about their effects.
ASSESSMENT OF SUBSTANCE ABUSE
AND DEPENDENCE
There are literally hundreds of substance abuse assessment
instruments. The 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
specific 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-occurringsubstanceabuseandpsychiatricdisorders(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). The 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 difficult issues that are commonly con-
fronted when conducting substance abuse assessments in
forensic or correctional contexts.
It is estimated that nearly 40% of criminal offenders 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. This 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).
There are several possible explanations for these false-
positive rates. (In this context, a false positive is the misidenti-
fication 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-
nificant substance abuse problem (e.g., Marlowe, Patapis, &
DeMatteo, 2003). Second, many assessment instruments may
inflate the prevalence of substance use disorders either because
theyemployexcessivelybroaddiagnosticcriteria,orbecausethey
assume most addicts to be in “denial” or “pre-contemplation”
about their problem, and thus likely to be underreporting sub-
stance use. These 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.
DIAGNOSIS
Official 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.Thesesymptomscanoccuratanytimeduringa12-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.
The failure of current diagnostic nomenclature to capture
the prototypical symptoms of dependence, or to discriminate
sufficiently between abuse and dependence, has led some
scholars to argue that the dependence diagnosis should be
reserved for individuals who suffer 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 differentiate
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. The content
domains of these instruments vary considerably depending
upon the philosophies of the test developers, and they are
often incongruent with theDSM. 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.” Thus, they may be apt to increase sensitivity
(i.e., increase true positive rates for identifying addicts) at the
expense of decreasing specificity (i.e., misidentifying many
non-addicts as addicts).
For example, one of the most widely used screening instru-
mentsistheSubstanceAbuseSubtleScreeningInventory(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-
ficity exceeding 90% (Lazowski, Miller, Boye, & Miller, 1998),
subsequent studies have been less sanguine, with true-positive
ratesbelow70%(Pearson,2000),sensitivitybelow60%(Fuller,
Fishman, Taylor, & Wood, 1994; Svanum & McGrew, 1995),
and inadequate specificity (Peters et al., 2000). In one study
involving juvenile offenders, the SASSI misclassified nearly
two-thirds of nonusers as being substance dependent (Rogers,
Cashel, Johansen, Sewell, & Gonzalez, 1997). This suggests
that the SASSI might substantially overestimate the need for
substance abuse treatment among offenders.
MULTIDIMENSIONAL ASSESSMENT
INTERVIEWS
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 affected by substance
abuse.
Perhaps the most widely used of these instruments is the
Addiction Severity Index, which is currently in its fifth edi-
tion3
(ASI-5; McLellan et al., 1992). The 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. The ASI-5 is comprised predomi-
nantly of two types of items. One type of item inquires about
the frequency of specific 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. The 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. The composite scores are based
exclusively on events occurring during the immediately pre-
ceding 30 days.
The ASI-5 and its predecessors are supported by a long
historyofrigorouspsychometricvalidationresearchpublished
in peer-reviewed scientific journals. Multiple examinations
of ASI composite scores and lifetime items have yielded
impressive evidence of interrater reliability (i.e., the extent to
which different 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).
There 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. That is, it has not, to date, been administered
to a large, well-defined, 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. Therefore, 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 software to compute the CFS
scoring algorithms.
Without standardized scaling, it is difficult to know
whether a particular client’s substance abuse problem should
be categorized as mild, moderate, or severe as compared with a
normative population. The most that can be inferred from the
composite scores is whether they decline over time, or whether
different groups have significantly 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. The research evidence is clear
that the ISRs are unreliable, meaning that different raters may
cometodifferentconclusionsaboutthesameclient(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. Thus, in a
forensic context, one would have great difficulty concluding
from the ASI-5 whether a client has a serious substance abuse
problem. The best that can be accomplished is to review
responses to specific items, such as how often 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. The 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. There
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. This
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
deflate the apparent severity of his or her problems. Clinicians
often 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.
There are no published studies indicating whether this
approach is valid or reliable and how it might alter the assess-
ment results.
OVERREPORTING AND UNDERREPORTING
OF SUBSTANCE USE
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.
Therefore, 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 offenders 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,
McCaffrey, & 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 significant 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 offender and non-offender popula-
tions. This 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 TREATMENT OF SUBSTANCE ABUSE
AND DEPENDENCE
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 often 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 confidently assumed.
ATTRITION FROM TREATMENT
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 first 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).
Comparablefiguresarereportedamongsubstance-abusing
criminal offenders. Only about 25% of drug-involved offend-
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).
EvidencefromthenationalDrugAbuseTreatmentOutcome
Study(DATOS)suggeststhat3monthsofdrugabusetreatment
may be a minimum threshold for detecting dose–response
effects for the interventions, and 6–12 months may be a thresh-
old for observing clinically meaningful reductions in substance
use (Simpson et al., 1997). After 12 months of drug abuse treat-
ment, clients have roughly a 50% probability of remaining con-
tinuously abstinent for an additional year following completion
oftreatment(McLellan,Lewis,O’Brien,&Kleber,2000).Given
that no more than about 25% of drug-abusing offenders 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.
TREATMENT EFFECTS
In community-based substance abuse treatment programs, the
magnitudes of the treatment effects 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 definition
of“success”(i.e.,abetterthanaverageoutcomeforthesample),
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 effects of a particular intervention). The
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 efficacy (Miller & Wilbourne, 2002).
There 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 often not evidence-based,
lacking in a coherent focus or structure, and delivered by inad-
equately trained staff (Lutze & van Wormer, 2007; Taxman &
Bouffard, 2003). The most commonly administered “treat-
ment”incorrectionalsettingsisdrug-educationgroups,which
offer minimal benefits for addicted offenders (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 offenders has produced mixed but potentially
promising findings. 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 offenders 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 effective at identifying substance
abuse problems among offendersandmaking appropriatetreat-
ment referrals (Weinman, 1990). Moreover, clients involved
with the criminal justice system tended to remain in treatment
significantly longer when they were under TASC supervision
(Hubbard, Collins, Rachal, & Cavanaugh, 1988). However, an
evaluation of five large and representative TASC programs
concludedthateffectsondruguseandcriminalrecidivismwere
mixed (Anglin, Longshore, & Turner, 1999). Drug use was sig-
nificantly lower for TASC clients in three of the five sites and
criminal activity was lower in two of the sites. Moreover, the
positive findings were small to moderate in magnitude. These
results suggest that TASC programs may be a critical compo-
nent of successful treatment for substance-involved offenders;
however, they require additional support and back-up from the
courts, probation or parole officers, and treatment agencies to
achieve significant and sustained positive effects.
QUALITY OF TREATMENT
The 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). That same study found more than a 50% staff-
turnover rate among both the clinicians and administrators
within 12 months. With such gross instability in staffing, the
programs could not reasonably be expected to maintain the
skills level necessary to deliver effective 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 &
Bouffard, 2003), it is difficult 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 offenders reported that only
about 60% of the sessions addressed clinically relevant mate-
rial, few counselors endorsed a cohesive or identifiable 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 & Bouffard, 2003). This is con-
sistent with several earlier national studies finding that few
alcohol or drug abuse treatment programs provided evidence-
based treatments for their clients (Lamb, Greenlick, &
McCarty, 1998).
EFFECTIVE DISPOSITIONS
Given the relatively low base rate for success in standard cor-
rectional treatment programs, it should go without saying that
simply diverting offenders into treatment, without more, is
unlikely to reliably serve public-health or public-safety objec-
tives (Marlowe, 2002, 2003). This 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 offenders return to drug use
within 3 years of release from prison, with roughly 85% relaps-
ing within only the first 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,
within3yearsofreleasefromprison,approximatelytwo-thirds
of offenders 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).
The 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 often have limited power to intervene. The crim-
inal justice system maintains substantial supervisory control
over offenders 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. The 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.
The evidence is clear that drug courts provide enhanced
supervision of drug-involved offenders 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). This 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 scientific
teams have all concluded that adult drug courts significantly
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;
Shaffer, 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 specific 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
standardpretrialsupervisionorprobation(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 offenders when they can
earn tangible rewards for positive achievements in the pro-
gram (Marlowe, Festinger, Dugosh, Arabia, & Kirby, 2008).
The results of these dismantling studies indicate that the
positive impacts of drug courts cannot be attributed simply to
the effects of substance abuse treatment. The additional ele-
ments of judicial supervision, urine drug testing, and contin-
gent sanctions and rewards appear to be making significant
incremental contributions to outcomes (Marlowe, DeMatteo,
& Festinger, 2003). This suggests that forensic experts and
attorneys will need to be substantially creative when crafting
dispositional recommendations. It may not be sufficient 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 offenders, 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.
SUMMARY
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 influenced 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 overinflate the prevalence or severity of diag-
nosable substance use disorders among offenders, and there-
fore may overestimate treatment needs in this population.
Finally, difficult as it might be to accept, the research evidence
does not provide reliable or consistent support for the effec-
tiveness of traditional community-based substance abuse
treatment interventions for reducing substance abuse and
crime among offenders. Unless attorneys and forensic experts
develop dispositional plans that include careful procedures for
monitoring offenders’ compliance in treatment and respond-
ing consistently to infractions, the majority of offenders might
be expected to drop out of treatment prematurely or to fail to
achieve a sustained interval of sobriety.
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