Legal Issues in Adult Drug Courts: Best Practices

1. Legal Issues in Adult Drug Courts: Best Practices JAMES S. Egar Chief Public Defender Monterey County Public Defender

2. Legal Issues in Adult Drug Courts: Best Practices • Living with the Ten Key Components • Ensuring right to counsel • The law as we know it thus far

3. The Ten Key Components • 1. Drug Courts courts integrate alcohol and other drug treatment services with justice system case processing. • Question: How can we integrate two fundamentally inconsistent systems – Treatment and Criminal Justice?

4. Ten Key Components (cont’d) • 2. Using a non-adversarial approach, prosecution and defense counsel promote public safety while protecting participant’s due process rights. • Question: What does “non-adversarial approach” really mean in a drug court setting and where does it occur? • Question: Can drug courts co-exist with due process and how much process is due? • Question: What about the defense attorney’s ethical obligations – what about other team members’ ethical responsibilities?

5. Ten Key Components (cont’d) • 3. Eligible participants are identified early and promptly placed in the program. • Question: Is there a difference between drug related crimes and other types of criminal conduct? • Question: Is eligibility a team decision or the gatekeeper’s – who is the gatekeeper?

6. Ten Key Components (cont’d) • 4. Drug Courts provide access to a continuum of alcohol, drug and other related treatment and rehabilitation services.

7. Ten Key Components (cont’d) • 5. Abstinence is monitored by frequent alcohol and other drug testing. • Question: Is drug testing punitive (Gotcha!) or therapeutic? Accountability and due process?

8. Ten Key Components (cont’d) • 6. A coordinated strategy governs drug court responses to participants’ compliance. • Question: What is really important when delivering sanctions and incentives? What actually works? • Question: When and how does a court terminate a participant?

9. Ten Key Components (cont’d) • 7. Ongoing judicial interaction with each drug court participant is essential. • 8. Monitoring and evaluation measure the achievement of program goals and gauge effectiveness.

10. Ten Key Components (cont’d) • 9. Continuing interdisciplinary education promotes effective drug court planning, implementation and operations. • Question: How can cross training improve team communication?

11. Ten Key Components (cont’d) • 10. Forging partnerships among drug courts, public agencies, and community-based organizations generates local support and enhances drug court program effectiveness.

12. Right to Counsel • Critical Stage Doctrine: Defendants have a right to counsel at critical sates of proceedings. Brewer v. Williams, 430 U.S. 387, 404 (1977) • The Supreme Court has defined “critical stage” in numerous cases with the core criterion being whether the accused will benefit from the assistance of counsel. U.S. V. Ash, 413 U.S. 300, 313 (1973)

13. Which treatment court proceedings constitute “critical stages”? • Stages of a case that are indistinguishable form traditional case processing, e.g., arraignment, pre-trial hearing, entry of a plea, sentencing: treatment courts should follow established law. • Non-traditional proceedings, e.g., staffings, sanctions, modifications of conditions of participation: treatment courts should look to the Supreme Court’s definition of “critical stage” of the proceeding to determine whether the right to counsel is triggered. • Note: Distinctions between pre and post plea status

14. THE LAW • Review of case law applicable to drug treatment courts • Implications at each stage of a case from arraignment to sentencing

15. Eligibility and Equal Protection 14th Amendment- Persons similarly situated will receive like treatment • Strict Scrutiny? – infringes on a fundamental right or categorizes on the basis of race or national origin or suspect class • Intermediate Level? – liberty right or semi-suspect class • Rational Relationship to a Legitimate Government Purpose?

16. Jurisdiction’s decision not to develop a drug court is rationally related to a legitimate government purpose • Lomont v. State, 852 N.E. 2d 1002 (Ind. App. 2006) Indiana did not require all counties to have drug diversion programs • State v. Harner, 103 P.3d 738 (Wash. 2005) – drug court aailable in adjacent county but not where D is arrested • State v. Little, 66 P.3d 1099 (Wash. App. 2003) –counties can decide how to implement scarce resources • People v. Forkey, 72 A.D.3d 1209 (N.Y.App. Div. 2010) no hearing required before being rejected for drug court

17. Refusal to offer drug court to all defendants does not constitute denial of equal protection because there exists no right to enter drug court • Jim v. State, 911 So. 2d 658 (Miss. App. 2005) – Denial of Motion to transfer case to drug court on first day of trial falls within judge’s discretion and statute specifically stated no right to participate in drug court.

18. Eligibility Permissible criteria • Severity and type of offense - violence, sex offenses • Immigrant status – may not be able to complete program • Individuals on methadone maintenance • Individuals using medical marijuana – cannot as matter of law exclude (People v. Beaty, 181 Cal.App. 4th 644 (Cal.2010) but see U.S. v. Lafley, 2010 WL 174509 (United States District Court of Montana 2010) – illegal under federal law

19. Equal Protection (cont.) • Evans v. State, 667 S.E.2d 183 (Ga. Ct. App. 2008) D was HIV positive – claimed violation of EP and ADA re: rejection from drug court. Rejection based on onerous medical requirements and ADA not implicated because D could not demonstrate that his disabilities affected major life activities. But note possible ADA implications – Reasonable modifications vs. fundamental alteration of procedures or undue financial hardship

20. Conditions of Drug Court Contract 4th Amendment Waiver of Probable Cause for Search of Person and Property • Unconstitutional Conditions Doctrine • Doctrine of Criminal Waiver • Special Needs Doctrine

21. Drug Court Participant on Probation or Post-Plea Model • Griffin v. Wisconsin, 483 U.S. 868 9 (1987), Generally permitted but may need reasonable suspicion. • United States v. Knights, 534 U.S. 112 (2001) Search of probationer based on reasonable suspicion but pursuant to a suspicionless search condition of probation is permissible under totality of the circumstances test. • Samson v. Calif., 126 S. Ct. 2193 (2006) Permitted search of parolee based solely on execution of waiver- officer did not suspect criminal activity but relied on provision of CA law authorizing suspicionless searches.

22. Scope of 4th Amendment Waiver • Co-inhabitant may be able to withhold consent to search of common living areas if he is present when search occurs. Georgia v. Randolph, 547 U.S. 103 (2006)

23. Drug Court Participant in Diversion Program • Search based on solely on waiver for offenders before conviction is probably unconstitutional Terry v. Superior Court, 73 Cal. App. 4th 661 (Cal. App. 1999) U.S. v. Scott, 450 F3d 863 (9th Cir. 2006)

24. Conditions of Drug Court 1st Amendment Area & Association Restrictions • Pre-plea and Post-plea distinction

25. Area Restrictions Factors • Compelling Need to Go to Location • Mechanism for Supervised Entry • Size of the Area • Relationship to Rehabilitation of Offender • People v. Rizzo, 362 III. App. 3d 444 (2005)

26. Area Restrictions Permissible • Oyoghok v. Municipality of Anchorage, 641 P.2d 1267 (Alaska 1982) – Two block radius • Johnson v. State, 547 So. 2d 1048 (Fla. App. 1989) – Near high drug areas • State v. Morgan, 389 So. 2d 364 (La. 1980) – Stay out of French Quarter

27. Area Restrictions Not Permissible • State vs. Wright, 739 N.E.2d 1172 (Ohio App. 2000) – Any place where alcohol is sold, served, consumed

28. Association Restrictions Reasonably Related to the Purposes of Probation, the Prevention of Crime, and Protection of the Public • Andrews v. State, 623 S.E.2d 247 (Ga. App. 2005) drug users and dealers • People v. Tungers, 127 Cal. App. 2005) – Wife • People v. Forsythe, 43 P.3d 652 (Colo.App. Ct. 2001) – could only have supervised contact with children

29. Association Restrictions Other Permissible Restrictions • Motorcycle clubs, U.S. v. Bolinger, 940 F2d 478 (9th Cir. 1991) • Any Irish organization, Malone v. United States, 502 F.2d 554 (9th Cir. 1974) • Any member of a criminal gang, U.S. v. Vega, 545 F3d 743 (9th Cir. 2010) • Person with criminal records, if individual knows of, records, Birzon v. King, 469 F.2d 1241 (2d Cir.1972)

30. Association Restrictions • But, Too Broad- Dawson v. State, 894 P.2d 672 (Alaska App. 1995) – Any unsupervised contact with drug using wife

31. Restrictions on Dress • Restrictions on dress that are too vague violate 1st Amendment, U.S. v. Brown, 223 Fed.Appx. 722 (9th Cir. 2007) • Restrictions must be reasonably related to offense or future criminality, State v. Hicks, 1999 WL 997297 Ohio

32. Establishment Clause1st Amendment – Establishment Clause and Treatment • Establishment Clause of the 1st Amendment Prohibits Mandating Participants to Attend AA or NA Meetings

33. Establishment Clause • Court or treatment provider can make AA and NA available so long as participation is not mandatory and other options are available • Kerr v. Farrey, 95 F.3d 472 (7th Cir. 1996) – prisoner can’t be mandated to treatment w/ explicit religious content • Griffin v. Coughlin, 88 N.Y. 2d 674 (1996) – couldn’t condition prisoner’s visits with wife on AA/NA – must offer alternative program • Destefano v. Emergency Housing Group, Inc., 247 F.3d 397 (2d Cir. 2001) • State tax revenues can go to private treatment provider so long as staff don’t inculcate patients with AA doctrine

34. Establishment Clause • Inouye v. Kemma, 504 F.3d 705 (9th Cir. 2007) – parole officer lost immunity because he forced AA on a Buddhist • Hanas v. Inner City Christian Outreach, 542 F. Supp.2d 683 (E.D. Mich. 2008) – program liable for prohibiting patient from practicing Catholicism

35. Secular Alternatives • SMART Recovery • Secular Organizations for Sobriety (SOS) • Life Ring

36. Drug Testing and Due Process To satisfy due process concerns, drug tests should be scientifically reliable • Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993) • Frye v. United States, 293 F.3d 1013 (1923)

37. Types of Drug Tests • Urine – Instrumented vs. non-instrumented tests Non Instrumented– cups or dip sticks are screens; GC/MS testing should be used to confirm in cases of denial by participant • Sweat Patch – usually attached for one week –subject to environmental contamination • EtG (Ethyl Glucuronide) –metabolite of alcohol found in urine – high risk of incidental exposure SAMHSA advisory about risks of relying solely on EtG results: http://etg.weebly.com/uploads/7/4/7/5/74751/etg.samhsa.advisory.pdf

38. Reliability of Drug Tests • EMIT - Found to be reliable Matter of Lahey v. Kelly, 518 N.E.2d 924 (N.Y. 1987); Spence v. Furrier, 807 F.2d 753(8th Cir. 1986); Jones v. State, 548 A.2d 35 (D.C. 1998) • Sweat Patch – Generally found reliable but concerns with environmental contamination U.S. v. Alfonzo, 284 F. Supp. 2d 193 (Mass. 2003) • Hair – High risk of environmental contamination Wykoff v. Resig, 613 F. Supp. 1504 (N.D. Ind. 1985); Thomas v. McBride, 3 F. Supp. 989 (N.D. Ind. 1998)

39. Alcohol and Drug Testing • Certificates of analysis qualify as testimony – and analysts as witnesses –under the Confrontation Clause of the 6th Amendment. Melendez-Diaz v. Massachusetts, 129 S.Ct. 2527 (2009) • Because of blood-alcohol analysis reports are testimonial, defendants have the right to confront the analyst who certified their sample at trial, unless the analyst is unavailable and the accused had an opportunity, pretrial, to cross-examine that particular scientist. Bullcoming v. New Mexico, 131 S.Ct. 2705 (2011).

40. Sanctions and Due Process Factors • Pre-Plea vs. Post-Plea Model • Contested vs. Non-contested Factual Basis • Due Process Rights of Parolee or Prison Inmate

41. Right to Hearing • Participant can prospectively waive right to a hearing on a sanction in drug court contract State v. Rogers, 144 Idaho 738; 170 P.3d 881 (2007) Contract rules govern when sanctions are imposed (different result with termination)

42. Termination from Drug Court and Due Process • States vary what process is due • Many states analogize drug court participant status to that of a probation violator (assuming participant has entered a plea) • If program follows pre-plea diversion model, more due process!

43. Termination Probation Revocation Hearing Analysis • Written Notice • Disclosure of Evidence • Opportunity to be Present and Testify • Right to Confront and Cross-Examine Witnesses • Neutral Magistrate • Written Findings of Evidence and Decision • Right to counsel left to the states – most require it Gagnon v. Scarpelli, U.S. 778 (1973)

44. Termination • People v. Anderson, 833 N.E. 2d 390 (III. Appo. Ct. 2005) – Drug Court termination requires hearing • State v. Perkins, 661 S.E. 2d 366 (S.C. App. 2008) – Drug court termination required notice and hearing • State v. Rogers, 144 Idajo 738; 170 P.3d 881 (2007) –Idaho Supreme Court required same rights as those accorded a probationer facing revocation

45. Termination • Nebraska v. Shambley, 795 N.W. 2d 884 (Sup. Ct. Neb. 2011) Documents containing only hearsay cannot constitute sole basis for termination from drug courts – drug court participant accorded probation/parole violation hearing rights – preponderance of the evidence standard. • Gosha v. State, 931 N.E. 2d 432 (Ind. Ct. App. 2010) and Harris v. Commonwealth, 689 S.E. 2d 713 (Va. 2010) Drug court participants are entitled to hearings because drug court affects liberty interest.

46. But Not Always!!New York Standard • Evidentiary hearing not required • Preponderance of evidence not required • Court must conduct sufficient inquiry to satisfy itself that there was a legitimate basis for program decision • Court must put findings on the record People v. Fiammegta, 14 N.Y. 3d 90: 923 N.E. 2d 1123 (2010)

47. Waiver of Hearing Rights • State v. Rogers, 144 Idaho 738, (Idaho 2007) Footnote suggests the rights can be waived but no indication of waiver in this case – leaves open question of when can they be waived • Staley v. State, 851 So. 2d 805 (Fla. Ap. 2003) Defendant could not prospectively waive his right to contest future allegations of violations State v. LaPlaca, 162 N.H. 174 (2011) – cannot waive right to a hearing prior to that right being implicated

48. Scope of Waiver of Right to Appeal • Defendant’s general waiver of right to appeal did not foreclose review of his contention that he was denied his right to due process People v. Kitchens, 46 A.D. 3d 577 (2d Dept.) (2007) • Waiver of right to appeal encompassed original sentence of probation, not the sentence following defendant’s violation of probation People v. Dexter, 71 A.D. 3d 1504 (4th Dept.) (2010)

49. Judicial Impartiality and Due Process Termination Hearings • Neither Actual nor Apparent Bias • Standard – Objective • Recusal – Preferred Option where Factual Basis Contested

50. Recusal at Termination Hearings • Alexander v. State, 48 P3d 110 (Okla. 2002) Oklahoma Supreme Court does not require recusal but saw potential for bias when Drug Court judge presides over termination proceeding – in future cases, judge should recuse if drug court participant makes a motion claiming potential bias. • Stewart v. State, 2010 Tenn. Crim. App. LEXIS 691 If termination involves same conduct as was ruled on in drug court, drug court judge must recuse him/herself – ex parte communication (participant may not know what to challenge) and personal involvement in case can cause bias.