Document Category: Probation

This brief argues against mandating regular drug or alcohol testing as a probation condition for a client who does not have a history of substance abuse related to their offense. It is written citing MCL 771.3(11), which requires probation conditions to be tailored to the individual’s assessed risks and needs, but can be easily adapted to other jurisdictions with similar probation statutes. The brief argues that mandatory testing is counterproductive to this client’s rehabilitation because it (1) makes it more difficult for probationers to obtain and maintain employment, (2) is extremely onerous and invasive, (3) places unnecessary financial burden on probationers, and (4) is not shown by research to improve recidivism outcomes. Defenders can use this brief to urge the court to strike mandated testing from their client’s probation requirements in favor of an individualized supervision strategy that is less invasive and truly aimed at supporting successful reintegration.

This draft motion argues for diversion to restorative justice (RJ) programming in lieu of imposing a traditional probation sentence. Section I (p. 1-3) explains the basic tenets of restorative justice, citing research showing restorative justice is more effective at reducing recidivism than conventional court processes. Section II (p. 3-6) argues that restorative justice works even in the absence of victim participation, citing research that use of victim surrogates may even increase its efficacy. Section III (p. 6-7) provides research-based support for restorative justice as an effective and appropriate tool for rehabilitating perpetrators of violent and bias-based harm (countering the narrative that restorative justice should be limited to nonviolent crime).

This draft section of a sentencing memorandum argues for a goal-based probationary term or, alternatively, for no more than one-year of probation.  It relies on social science research about how unnecessary, costly, and counterproductive probationary terms that are longer than one year are and how effective goal-based, shorter periods of probation are at acheiving the twin goals of probation — rehabilitation and public safety.  This draft motion is modular, permitting defenders to use it to argue for goal-based probation or no more than one year of probation or both.

This brief argues that, contrary to stereotypes, drug use alone—even frequent or illicit use—does not necessarily indicate substance abuse (pp. 23, 28-29). Only a minority of users develop a diagnosable SUD (p. 23). A single positive drug test is insufficient to establish a SUD (p. 29). And equating substance use, even a SUD, with substantial risk of harm to a child is unsupported by the medical evidence (pp. 40-42).  Defenders can use the research collected in this brief to file motions in limine to exclude evidence of or arguments about substance use as more prejudicial than probative or to obtain expert testimony on substance use.  The research could also be useful at the pretrial release and sentencing stages to suggest that clients do not suffer from a substance abuse disorder and do not pose a danger.