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June 15, 2001 Draft for Michigan Drug Treatment Initiative

Campaign for New Drug Policies

Dave Fratello, Director of Legal Affairs of the Campaign for New Drug Policies, sent this draft via memo to interested parties in Michigan. Fratello invited them to a meeting to provide input into a ballot initiative that will amend Michigan's Constitution and "stands a good chance of becoming law." The Campaign for New Drug Policies is based in California and is funded primarily by George Soros of New York, Peter Lewis of Ohio, and John Sperling of Arizona.

Draft Drug Treatment Ballot Initiative for the State of Michigan

Section 1. Purpose and Intent

The purpose and intent in adding this provision to the Michigan constitution is as follows:

(A) To halt the wasteful expenditure of millions of dollars each year on the incarceration and reincarceration of non-violent drug users who would be better served by treatment.

(B) To divert from incarceration into substance abuse treatment and rehabilitation programs non-violent defendants charged with drug possession or use, in order to reduce or eliminate substance abuse and addiction and increase the employability of such persons to return them to a productive role in society.

(C) To enhance public safety by reducing drug-related crime and preserving jail and prison cells for serious and violent offenders, and to improve public health by reducing drug abuse and dependence through professionally supervised drug treatment programs.

Section 2. Definitions

For the purposes of this article, the following terms have the following meanings:

(A) "Illegal possession or use of a controlled substance" or "possession or use offense" shall mean all criminal offenses involving the possession for personal use or consumption of a controlled substance. For the purposes of this section, this shall include illegal acts incidental to such possession or consumption, such as possession of drug paraphernalia, purchasing a controlled substance for personal use, obtaining a controlled substance for personal use by forging an official prescription form, or similar illegal acts undertaken only to facilitate the personal use of a controlled substance. Possession or use of a controlled substance does not include.

(1) Operating a motor vehicle under the influence of alcohol or a controlled substance.

(2) Theft, for any reason, including to obtain money to procure a controlled substance for personal use.

(3) An act of violence for any reason, including to obtain money to procure a controlled substance for personal use.

(B) "Offense" shall mean a single event or episode of illegal possession or use of a controlled substance, as reflected in a charge, indictment or conviction for illegal possession or use of a controlled substance.

(C) "Treatment" means a program, or set of programs, designed to reduce or eliminate drug dependency and to increase employability which may include one or more of the following: detoxification services, outpatient drug treatment and counseling, treatment in a residential therapy setting, individual mental health counseling, drug replacement and maintenance, vocational training, literacy training, family counseling, or similar support services. All treatment services provided to individuals under this section shall be duly licensed, certified and/or approved as provided by state law, and shall be under the direction of a licensed medical doctor, psychiatrist, psychologist, social worker or other qualified treatment professional. Treatment as provided under this article shall not include any program offered in a prison or jail facility.

(D) "Plan of treatment" or "Treatment plan" means a documented course of treatment for an individual recommended by a qualified treatment professional as provided in this article. A plan of treatment shall include types of treatment and rehabilitative services required by an individual and conditions for monitoring the individual's progress, and shall become binding on the individual with the approval of the court.

(E) "Qualified treatment professional" means a licensed medical doctor, psychiatrist, psychologist, social worker or other duly qualified and appropriately licensed individual with training in the treatment of addiction or substance abuse, counseling or rehabilitation.

(F) "Drug-related violation" means an individual's failure to comply with the terms of the plan of treatment imposed by the court as evidenced through such actions as failure to appear for treatment, relapse into drug use, violating the rules of a specific treatment program in which the individual is enrolled, or committing a new offense of illegal possession or use of a controlled substance.

(G) "Unamenable to treatment" means that an individual subject to this article who has participated in a plan of treatment has indicated by actions that he or she is unwilling to attend, comply with, participate in, and otherwise gain any benefit from the treatment programs outlined in the treatment plan. An individual may also declare himself or herself unamenable to treatment by requesting to be removed from a plan of treatment.

(H) "Successful completion of treatment" means that an individual subject to this article has been found by the court to have complied substantially with the requirements of a plan of treatment.

Section 3. Treatment for Drug Offenders, Eligibility.

(A) An individual charged with or convicted of illegal possession or use of a controlled substance may elect to receive treatment as described in this section instead of being prosecuted, sentenced, incarcerated or otherwise penalized unless:

(1) In the same proceeding, the individual is charged with or convicted of any felony or any misdemeanor involving theft, violence or the threat of violence.

(2) In the same proceeding, the individual is charged with or convicted of manufacture, creation, delivery or possession with intent to manufacture, create, or deliver a controlled substance.

(3) The individual has participated in treatment in response to two or more offenses of illegal possession or use of a controlled substance after the enactment of this section. At its discretion, the court may permit an individual to elect treatment for a third or subsequent offense if the individual is otherwise eligible for treatment under this article.

(4) The individual has been convicted of, or imprisoned for, a violent felony within five years of the arrest for the possession or use offense.

(B) An individual deemed ineligible for treatment under the terms of this article may be prosecuted and convicted without reference to the terms of this section, provided, however, that an individual convicted of a third or subsequent offense of illegal possession or use of a controlled substance after enactment of this section, who is not permitted by the court to elect treatment, shall be sentenced to up to 90 days in county jail for that offense.

(C) For purposes of this section, an individual who elects to receive treatment prior to conviction shall be deemed to have waived the right to a speedy trial.

Section 4. Authority of Court to Amend Charges.

For any defendant who qualifies for treatment under this article, the court may amend and reclassify any felony charge or conviction for a drug possession or use offense to a misdemeanor if the court finds it is in the interest of justice to do so.

Section 5. Assessment and Placement in Treatment, Monitoring.

(A) When an eligible individual elects to receive treatment under this article, the court shall appoint a qualified treatment professional to conduct an assessment of the individual's history of substance use and abuse and the various treatment needs of that individual by utilizing prevailing standards for such assessments. The appointed treatment professional shall use the findings of such assessment to create a plan of treatment for the individual to be submitted to the court for final approval.

(B) Upon receipt of the treatment plan, the court shall evaluate the plan, make any adjustments or additions it deems necessary, and certify the court's approval of the plan. The court shall order the individual to begin treatment as soon as is practical on the terms set by the plan.

(C) A plan of treatment shall be subject to the following terms:

(1) The individual subject to this section shall be required to participate in and comply with the plan of treatment for a period of time not to exceed twelve (12) months, unless the court finds by clear and convincing evidence that an extension of such period is necessary for treatment to be successful, in which case the court may require up to an additional 6 months.

(2) The court may require an offender who is reasonably able to do so to pay for a portion of the costs of a treatment plan. A payment requirement shall not be so burdensome as to make participation in a plan of treatment inaccessible, nor shall such payment be excessive or punitive.

(3) No individual eligible to participate in a plan of treatment shall be required to waive confidentiality of medical or treatment information as a condition for participation in such plan.

(4) Any drug testing ordered as part of an individual's treatment plan shall be conducted by a treatment provider and used primarily as a treatment tool.

Section 6. Modification of, or Removal From, Plan of Treatment.

(A) An individual participating in a plan of treatment under this section may be transferred by court to a different treatment program consistent with the original plan due to violations of treatment program rules or unsuitability to the form of treatment plan initially ordered. The court may order such transfer with or without a hearing.

(B) An individual may be removed from a plan of treatment or be subject to a modified plan of treatment in accord with the following criteria:

(1) If the people allege that an individual participating in a plan of treatment has violated the terms of that treatment plan by committing an offense other than illegal possession or illegal use of a controlled substance, or by committing a serious violation of a condition of the plan of treatment that is not a drug-related violation, the court shall conduct a hearing to determine whether the alleged violation occurred. If the alleged violation is proved by clear and convincing evidence, the court may modify the plan of treatment or remove the individual from treatment.

(2) Where an individual participates in a treatment plan under this article, and commits multiple or severe drug-related violations of that plan, the people may petition the court to consider removal of the individual from treatment. Upon receiving such petition, if the court determines that the alleged violation or violations indicate a serious disruption of the treatment plan, the court shall hold a hearing to consider evidence of the violation or violations and removal of the individual from treatment. If the court does not deem the alleged violation or violations to indicate a serious disruption of the treatment plan, there shall be no hearing and no consequence to the defendant resulting from the state's petition. If, at a hearing, the court finds by clear and convincing evidence that an individual's alleged drug-related violation or violations did occur, and did indicate a serious disruption of the treatment plan, the court shall proceed as follows:

(a) If the court has not previously found the individual to have committed a serious disruption of the treatment plan during the current course of treatment, the court shall consider evidence that the individual poses a danger to the safety of others. If the court so finds by clear and convincing evidence, the court may remove the individual from treatment and impose consequences as outlined in this section. If the court does not find that the individual poses a danger to the safety or others, the court may amend the individual's treatment plan based on the recommendations of a qualified professional to rectify or intensify the form of treatment.

(b) If the court has once previously found the individual to have committed a serious disruption of the treatment plan during the current course of treatment, the court shall consider evidence that the individual is unamenable to treatment, as that term is defined in this article. If the court so finds by clear and convincing evidence, the court may remove the individual from treatment and impose consequences as outlined in this section. If the court does not remove the individual from treatment, the court may amend the individual's treatment plan based on the recommendations of a qualified treatment professional to modify or intensify the form of treatment.

(c) If the court has more than once previously found the individual to have committed a serious disruption of the treatment plan during the current course of treatment, the court may remove the individual from treatment and impose consequences as outlined in this section. If the court does not remove the individual from treatment, the court may amend the individual's treatment plan based on the recommendations of a qualified treatment professional to modify or intensify the form of treatment

Section 7. Removal from Treatment

(A) Upon removal from treatment in accord with this section, an individual who has been convicted of illegal possession or illegal use of a controlled substance may be sentenced for that offense to a term or up to 90 days in county jail. If the individual has not been convicted of illegal possession or illegal use of a controlled substance, such individual may be tried for the offense and, if convicted, may be sentenced for that offense to a term of up to 90 days in county jail.

(B) If an individual is removed from treatment as a result of committing an offense that is not an illegal possession or use offense as described in this article, a sentence for that separate offense may be imposed without reference to this article.

Section 8. Completion and Termination of Treatment.

A plan of treatment shall be terminated upon an individual's successful completion of the plan as determined by the court, or twelve (12) months after the date the individual elected to receive treatment, whichever occurs first.

(A) Upon release from a plan of treatment, the individual subject to that plan shall not be prosecuted, sentenced or placed under continued court supervision for the offense which led to the treatment.

(B) If the eligible person has been convicted of illegal use or possession of a controlled substance and the court finds that the individual successfully completed the required plan of treatment, the court shall set aside the conviction and order it to be removed from publicly available records.

(C) If an offense is set aside by the court, the individual may respond to any question on an employment questionnaire that he or she has not been arrested, convicted or required to enter treatment for that offense of illegal possession or use of a controlled substance, unless seeking employment in the field of law enforcement or seeking elective office, in which case it shall be the duty of the individual to disclose the offense and the consequences imposed.

(D) Notwithstanding the provisions of this section, law enforcement agencies and the courts may retain records of an individual's illegal drug possession or use offense for law enforcement purposes, but no agency shall disclose such records except for law enforcement purposes.

Section 9. Legislation Consistent with Section.

(A) Within 120 days of enactment of this article, the Legislature shall designate a state department to direct implementation of the programs demanded by this article, which shall be referred to as the lead agency. Such department shall meet the following criteria: the department otherwise has responsibility for matters of public health; the department has a demonstrated capacity for administering funds for multiple types of programs; and the department has affiliated agencies in county governments to which funds may be distributed. At any time after a minimum of five years serving as the lead agency, the department chosen by the Legislature may be reconsidered or changed by the Legislature upon a motion of the Governor. If a new department is designated as the lead agency, it shall meet all criteria specified in this section.

(B) The Legislature shall enact legislation that is consistent with the purposes of this section to provide for its implementation. If the legislature fails to enact appropriate implementing legislation, the judiciary shall provide for the implementation of this section through its orders, rules, or both.

(C) Nothing in this section prohibits the legislature from authorizing treatment in lieu of trial or conviction for persons not otherwise eligible under this section. This section does not preclude the legislature from repealing any law that creates a controlled substance offense or implies a penalty f or such offense or from enacting any law that creates or relates to a controlled substance offense that is not in conflict with this section.

Section 10. Appropriations.

(A) A new fund is hereby created in the treasury of the State of Michigan to be known as the "Substance Abuse Treatment and Rehabilitation Expansion Fund." The responsibility for distributing monies from this fund shall rest with the director of the lead agency.

(B) Notwithstanding any provision to the contrary in this constitution of Michigan statute, the legislature shall annually appropriate for drug treatment programs the sum of $----------, or greater amount, to ensure that all persons eligible for, and who elect, treatment under this section, receive such treatment and that all other requirements imposed by this section may be fulfilled. This sum shall be placed into the Substance Abuse Treatment and Rehabilitation Expansion Fund.

(C) The State of Michigan shall maintain its prior effects to provide drug treatment and rehabilitation. Funds appropriated to expand treatment programs made necessary under this article shall supplement, and not supplant, funding for drug treatment programs and other rehabilitation programs operating prior to the enactment of this article. In any dispute over the State's failure to maintain prior levels of funding for drug treatment and rehabilitation services, a calculation of the prior levels of funding shall be made using an average of funding levels for the five years prior to the year of the dispute.

(D) On an annual basis, or more frequently, the director of the lead agency shall distribute monies from the Substance Abuse Treatment and Rehabilitation Expansion Fund to the department's county subdivisions to pay for the costs of providing treatment services under this article. In determining levels of funding for each county, the director shall create a formula for estimating the need for funds that is based on such factors as the number of drug possession arrests, substance abuse treatment and rehabilitation services caseload, the need for infrastructure development to provide treatment and rehabilitative services, and such other factors as the director may deem appropriate.

(E) Each county shall spend at least 90 percent of the funds distributed under this article on the provision of treatment services. Each county shall be required to submit, to the state department designated by the Legislature, annual reports, subject to audits, detailing the use of funds provided under this article. No county shall devote more than ten percent of the funds provided under this article to non-treatment expenses in any fiscal year. If the director of the lead agency finds that a county has used more than ten percent of its funds for non-treatment expenses, or has otherwise misused funds provided under this article, the director may take necessary steps to prevent the future misappropriation or misuse of funds in the future.

(F) The director of the lead agency may create regulations regarding unspent funds remaining at the conclusion of a fiscal year within the state Substance Abuse Treatment and Rehabilitation Expansion Fund, or in a similar fund within a county, provided such regulations guarantee that excess funds are spent on the delivery of treatment and rehabilitative services.

Section ll. Evaluation.

(A) The lead agency shall annually conduct a study to evaluate the effectiveness and financial impact of the treatment programs implemented under this article. The study shall include, but not be limited to, a review of the implementation process, a review of lower incarceration costs, reductions in crime, reduced prison and jail construction, reduced welfare costs, comparisons of treatment modalities, and adequacy of funds appropriated and other impacts or issues identified by the department.

(B) The lead agency shall annually allocate up to 0.5% of the total appropriation required by this section for a long term study to be conducted by a public university in Michigan to evaluate the effectiveness and financial impact of the programs that are funded to provide eligible persons with treatment.