April 2011

Drug Testing Often a Part of Supervised Release

As increasingly higher numbers of criminal defendants in federal courts are charged with drugrelated offenses, regular drug testing often is one of the conditions for pretrial release or for probation after time in prison.

In the early months of 2011, more than 56 percent of the some 30,000 federal defendants on pretrial release were designated for drug testing. And more than 57 percent of the some 130,000 federal offenders on supervised release were under a court-imposed duty to submit to post-conviction drug tests.

U.S. District Judge Robert Holmes Bell (W.D.Mich.), chair of the Criminal Law Committee of the Judicial Conference, said drug testing was an integral part of helping offenders and protecting the public. “Testing helps identify if a defendant or offender is using drugs or has relapsed, so that treatment may be undertaken or court action taken,” he said. “In addition, random testing is an effective way to verify sobriety and deter relapse.”

The overwhelming majority of drug tests involve the analysis of urine samples. In the past year, at least 1.2 million such samples were collected and analyzed in the federal Judiciary’s probation and pretrial services system.

The $15 million annual cost of that collection and analysis is money well spent, helping enable the supervised release of some defendants and offenders rather than the far costlier alternative of incarceration. In fiscal year 2009, the annual cost of keeping an offender in a federal prison was $27,251.50; the annual cost of having an offender supervised by a probation officer was $3,807.78. The daily cost of detaining someone before trial was $67.79; the daily cost of supervision by a pretrial services officer was $6.38.

“Probation and pretrial services offices take advantage of a variety of testing methods that are designed to keep costs down, while assuring reliable results,” Bell said.

Each of the federal court system’s 94 judicial districts has some form of on-site testing, where drug tests are administered. (Tests also can occur at an offender’s home or at a treatment facility.) Independent laboratories under contract with the Administrative Office also are used.

“Defendants who receive drug testing as a condition of their pretrial release have a history of substance abuse, which poses a risk of nonappearance or danger to the community,” said Troy Greve, a supervisory pretrial services officer in the District of Nebraska. “The offense charged plays a role in the decision-making process, but a decision to drug test is based primarily on the defendant’s history of substance abuse regardless of the charged offense.”

Greve said one of the biggest challenges facing probation and pretrial officers are, “defendants and offenders who refuse to give up their drug of choice.”

“They can be very creative, and will attempt to evade detection by any means necessary to continue their drug use,” he said. “The most common tactic employed is ‘flushing their system’ by drinking large quantities of water.

One way to counter that tactic involves simple persistence. “This flushing or dilution is so common we had to find a way to address it. In Nebraska, we purchased devices called refractometers that help us determine if a specimen was ‘flushed’ before we tested it,” Greve said. “If the device indicates that a sample is too diluted to be considered a valid specimen, we require the defendant to wait and provide additional samples until a valid specimen is obtained.”