Testing and Sanctions

Recent drug use is detectable by chemical testing (of urine, saliva, blood, or hair) for periods of hours, days, or weeks depending on the drug being tested [Page 769]for and the test being employed. While testing positive for a drug is not a punishable offense and officers generally do not have the right to demand that citizens submit to being tested, chemical tests are often used to monitor people on probation, parole, and pretrial release, for which abstinence from illicit drug use is a condition. Testing positive can result in a probationer or parolee being sent or returned to prison, while a positive test can also give a judge reason to detain a pretrial releasee if it is feared that, due to use, the releasee will not appear for trial or will commit new crimes.

A lack of resources, organization, and proper examination of behavioral strategies causes the current system of chemical testing for probationers, parolees, and pretrial releasees to be ineffective in deterring heavy users of illicit and highly addictive drugs from repeating use. These drugs, such as cocaine, methamphetamines, and heroin, take 48–72 hours to become undetectable in the body. Chemical testing of offenders under the most intensive supervision is scheduled only once a month in most states, and often less than that. This allows heavy offenders to use illicit drugs for all but three days a month without testing positive.

When offenders do test positive there is also a high irregularity of sanctioning associated with the positive test. Since probation and parole departments in most states do not have the right to sanction, but are only able to recommend that the offender be re-incarcerated to a judge, these letters of recommendation often do not result in sanction, which leads to noncompliance. When sanctions do occur, the punishment is the revocation of community supervision status that was agreed to under probation, parole, or pretrial release. This can lead to offenders serving out the remainder of multi-year sentences for small infractions, such as marijuana use.

These problems with the predictable infrequent testing and sanctioning in the current system are complicated by what research has shown about the types of individuals who tend to become involved with heavy illicit drug use. Current policies are based off of the assumption of the rational actor model of decision-making, in which individuals will examine possible positive and negative consequences of the decisions they make and then assign values to those consequences, choosing the option that leads to the highest expected value outcome. Research has shown that people who engage themselves in the world of heavy drug use rarely follow this pattern of decision-making, and tend to engage in highly risk-acceptant behavior with an asymmetrically higher value placed on immediacy over future consequences. This understanding of the behavioral patterns displayed by heavy drug users would dictate that instead of following a pattern of repeated unenforced sanctions followed by distant severe punishments for one infraction, the threat of swift and certain sanctioning for every infraction would lead to an increased ability of probation and parole to serve as an effective deterrent by decreasing the value of continued drug use. If probation and parole became effective deterrents to drug use, they could become a more valid alternative to incarceration.

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