Tennessee Drug Court Conference, Dec.

12, 2013

Drug Court Resources

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BEING A LEGAL EAGLE

CONFIDENTIALITY, CONSTITUTIONAL AND OTHER LEGAL ISSUES
National Drug Court Institute Developed by Hon. William Meyer (Ret.) Presented/Modified by Hon. Peggy Fulton Hora (Ret.)
NDCI Senior Judicial Fellows

Confidentiality, ethics and legal issues chapters in Drug Court Judges Benchbook www.ndci.org Legal link on National Drug Court Resource Center www.ndcrc.org listing all drug court related cases

HIPAA
Is provider a covered entity? Health care provider, payee or biller using electronic transmission of private health care information (PHI) Does the court have in place a order that allows the transmission and disclosure of potential PHI in the court proceedings? 45 CFR 164.512 (a), (e) release as required by law or during administrative or judicial proceedings

CONFIDENTILITY IN DRUG COURT

HIPPA, cont.
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HIPPA, cont.
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Does your consent form tell the drug court participant that there is this order and that potentially PHI will be released to the drug court team as a condition of his participation in drug court?
45 CFR 164.508(b)(4) See: Drug Court Judicial Manual for sample forms

Contrary to myth, HIPAA covered entities do not include the courts, court personnel, accrediting agencies like JCAHO and law enforcement personnel including police or probation officers.

GAINS CENTER, Dispelling the Myths Feb. 2007

Confidentiality issues
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HIPAA (not applicable to court) Are there firewalls for electronic reporting? Releases legal? Updated with personnel changes?

TIP: When reviewing files for phase advancement, review releases, waivers, etc., for accuracy TIP: Every time there is a change in personnel, change release forms

Confidentiality Issues
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Permitted and Mandatory Disclosure

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Mental health & substance abuse releases of information covered by 42 CFR Up-to-date releases Must balance maintenance of the public record with confidentiality Who collects, maintains, retains sensitive information? Who has access to it?

Mandatory

Permitted

Valid Court Order Child Abuse and Neglect Cause of Death

Medical emergency Crime on premises Entity with: admin control audit/research QSO-legal, billing

Mandatory disclosure
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Confidentiality = Closed Courtroom?

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Motion to Compel disclosure of identify of drug court participants cannot be denied on basis of confidentiality if information is relevant to discovery in a civil rights case

The provisions of 42 CFR 2.35 and the need for open courtrooms required denial of motion to close proceedings Sec. 2.35: a. need to disclose as a condition of participation in program b. disclosure only to those in criminal justice system on a need to know basis c. consent

United States District Court, E.D. Michigan, Southern Division. Joseph Raymond HANAS, Plaintiff, v. INNER CITY CHRISTIAN OUTREACH CENTER, INC., et al., Defendants. Civil Action No. 06CV-10290-DT. Feb. 20, 2007.

Courtroom as classroom/theatre
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Additionally, and equally as important, drug court status hearings must be open to all participants so that all participants can observe each others successes and failures. Every participant must be able to observe other participants status hearings because the hearings and the interaction with the drug court judge are an essential part of the treatment program.

The drug court participants who are observing, gain encouragement by seeing that other participants can become drug free and that the program works. The hearings also give the participants the opportunity to see what sanctions may be imposed and thereby help them to avoid the same behavior....

Florida v. Bush, Circuit Court FL (2002)

Not absolute

Former participant may call DC Ees

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Drug court employees may be called to testify about whether another drug court participant (potential witness) had recently been in trouble for his conduct in drug court They could also testify as to whether he had received favorable treatment for testifying against defendant

Supreme Court of Wyoming. Kilen Patrick DYSTHE, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff). No. 01-125. Feb. 19, 2003.

Best Practices
Assume Confidentiality Laws apply ! Designate someone on the team to be Confidentiality Compliance Officer ! Provide CCO with resources ! Your Consents should cover HIPAA, open courtroom and voluntariness
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Best Practices, cont.

Follow the rule of minimization Obtain an Administrative Judicial Order for HIPAA (sample in Benchbook) ! Update your Releases regularly ! Document your privacy policies
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Constitutional Issues

First Amendment
Establishment Clause

First Amendment Establishment Clause

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Estalishment, cont.
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Working the twelve steps requires:

Confess to God the nature of our wrongs (Step 5); Appeal to God to remove our short comings (Step 7); By prayer and meditation to make contact with God to achieve the knowledge of his will (Step 11).

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Kerr v. Ferry, 95 F.3d 472, 479-80 (7th Cir. 1996) (prison violated Establishment Clause by requiring attendance at Narcotics Anonymous meetings which used God in its treatment approach); Griffin v. Coughlin, 88 N.Y. 2d 674 (1996) cert. denied 519 U.S. 1054 (1997) (conditioning desirable privilege family visitation on prisoners participation in program that incorporated Alcoholics Anonymous doctrine was unconstitutional as violation of the Establishment Clause);

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Establishment, cont.
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Damages are mandatory

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Inouye v. Kemna, 504 F.3d 705 (9th Cir. 9-72007, amended on 10/3/07)(Parole officer lost qualified immunity by forcing AA on Buddhist) Hanas v. Inter City Christian Outreach, 542 F. Supp. 2d 683 (E.D. Mich. 2/29/08) (Drug Court program manager and drug court consultant held liable for actions related to referral to faith based program, where they knew of participants objections while in the program and when the program denied the participant the opportunity to practice his chosen faith Catholicism)

Atheist sent to only program available Condition of parole When wouldnt participate, revoked Spent 100 days in custody In Civil Rights action, if violation found, damages are mandatory
Hazle v. Crofoot (9th Cir., 8-23-13)

Not all is lost

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Alternatives to AA/NA
LifeRing Recovery http://www.unhooked.com ! Secular Organizations for Sobriety/ Save Our Selves (SOS) http://www.cfiwest.org/sos/index.htm ! SmartRecovery http://www.smartrecovery.org/
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OConner v. California, 855 F. Supp. 303, 308 (C. D. Calif.) (no Establishment Clause violation where DWI probationer had choice over program, including self-help programs that are not premised or monotheistic deity) In Re Restraint of Garcia, 24 P.3d 1091 (Wash. App. 2001) (same) Americans United v. Prison Fellowship, 509 F.3d 406 (8th Cir. 12/3/07) (state supported non-coercive, non-rewarding faith based program unconstitutional First Amendment establishment clause violation, where alternative not available)

SMART Recovery evaluation

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The sessions are centered on building and maintaining motivation, coping with urges, managing thoughts feelings and behaviors, and teaching members to live a balanced life Receiving help from a peer support group is more important than which support group a person attends 300 groups vs. 59,000 AA groups
OSullivan, Deirdre, Penn State University, National Conference on Addiction Disorders annual meeting on September 22, 2013

First Amendment
Area Restrictions

First Amendment and Area Restrictions

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Permissible Area Restrictions

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Who uses place and area restrictions?

Reasonable when narrowly drawn:

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# $ Whether the defendant has a compelling need to go through/to the area; %$ &$ ' $

A mechanism for supervised entry into the area; The geographic size of the area restricted, and The relatedness between the restriction and the rehabilitation needs of the offender.
See People v. Rizzo, 362 Ill. App. 3d 444 (2005).

Two block radius in prostitution case Oyoghok v. Anchorage 641 P2d 1267 (Alaska 1982) One block including mothers house Johnson v. State 547 So2d 1048 (Fla. App. 1989) Stay out of the French Quarter in prostitution case State v. Morgan 389 So.2d 364 (La. 1980)

Alcohol restriction
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OK in drug case?
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Any place where alcohol is sold, served or consumed Overbroad State v. Wright 739 NE2d 1172 (Ohio App. 2000) Do not enter any establishment where alcohol is the primary business such as bars and liquor stores OK People v. Beal (1997) 60 Cal.App.4th 84

[E]mpirical evidence shows that there is a nexus between drug use and alcohol consumption. It is well documented that the use of alcohol lessens self-control and thus may create a situation where the user has reduced ability to stay away from drugs. Beal

First Amendment
Association Restrictions

Association Restrictions
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Permissible or Overbroad?
Persons with disreputable character Permissible ! Drug dealers Andrews v. State 623 SE2d 247 (Ga. App. 2005) Permissible ! People on probation How do they come to court or go to group? ! Drug using wife ! Overbroad Dawson v. State 894 P2d 672 (Alaska App. 1995)
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Watch who you hang out with Not necessarily know that they are drug users or felons; look at what associates are doing and where they are located
Jones v. State, 41 P.3d 1247 (Wyo. 2001) (persons of disreputable character); State v. Hearn, ___ P.3d ___ (Wash. App. 2/6/06) (prohibition against associating with drug users or dealers constitutional); Birzon v. King, 469 F.2d 1241, 1242 (2nd. Cir. 1972); Commonwealth v. LaPointe, 759 N.E.2d 294 (Mass. 2001).

Fourth Amendment and Related Issues

Fourth Amendment
Search and Seizure including Drug Testing

Search of person on probation and parole does not require probable cause Why? Reduced expectation of privacy and special need to control recidivism

Griffin v. Wisconsin, 483 U.S. 868 (1987); U.S. v. Knights, 534 U.S. 112 (2001).

No reasonable suspicion needed

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Search waivers in non-convicted cases

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In parole case, mandatory search waiver constitutional and totally suspicionless search is upheld. Like Knights, but goes further because does not make a finding of reasonableness, but notes cannot be harassment Tearing Down a Pillar of Fourth Amendment Protections Harvard Law Review
Sampson v. California, 547 U.S. 843 (2006)

Compare State v. Ullring, 741 A.2d 1065 (Me. 1999) (search waiver as condition of bond constitutional); and In Re York, 9 Cal. 4th 1133 (Calif. 1995) (same) with Terry v. Superior Court, 73 Cal. App. 4th 661 (Cal. App. 1999) (4th Amendment waiver improper condition in diversion case, without statutory authority) and U.S. v. Scott, 450 F.3d 863 (9th Cir. 2006) (search waiver probably improper when person on bond)

Random Drug and Alcohol Testing

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Drug Testing TN
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Distinction between convicted vs. non-convicted status As a condition of bond or pre-trial release must be reasonable and based upon individual assessment

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P terminated from community corrections/drug court Ordered to serve his sentence in confinement Positive test results from drug patch which he claims was unreliable Testified he had never failed a urinalysis test during his entire time in drug court HOLDING?

Steiner v. State, 763 N.E. 2d 1024 (Ind. App. 2002); Oliver v. U.S., 682 A.2d 186, 192 (D.. 1996); State v. Ullring, 741 A.2d 1045 (Me.1999);

What kind of test?

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Upheld No abuse of discretion P not a credible witness since previously revoked for positive tests

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Roche Varian On Trak TesTcup No GC/MS No violation of due process

Court of Criminal Appeals of Tennessee, at Jackson. STATE of Tennessee v. Justin VAULX. No. W2008-00772-CCA-R3-CD. Assigned on Briefs Jan. 6, 2009. May 13, 2009.

Misc.3d 1011(A), 2004 WL 2495849 (N.Y.Sup.), 2004 N.Y. Slip Op. 51326(U) Supreme Court, New York County, New York. The PEOPLE of the State of New York v. Luis DIAGO, Defendant. No. 6252/03. Nov. 3, 2004.

What to Due before cuffin and stuffin?

5th/14th Amendment
Due Process of Law

Due Process
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Tribal Courts
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Procedural protections are due under the due process clause when the defendant will potentially suffer a loss to a recognized liberty or property right under the 5th/14th Amendment. If due process applies, the question remains what process is due.
Fuentes v. Shevin, 407 U.S. 67 (1972) Morrissey v. Brewer, 408 U.S. 471 (1972)

Court did not follow its policies and procedures in manual Without proper notice of the intent to revoke, the due process provisions of the Indian Civil Rights Act are violated

The Blackfeet Tribe vs. Deamarr Rutherford, Defendant. Case No. 00-AC-41. Opinion/Order. August 16, 2000

Adult Rights=Juvenile Rights

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Do Due Process?
Parole Morrissey v. Brewer 408 U.S. 471 (1972) Probation Gagnon v. Scarpelli 411 U.S. 778 (1973) ! Pre-Plea Diversion Wood v. U.S. 622 A.2d 67 (DC Cir., 1993);
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Deurloo v. State 690 NE2d 1210 (Ind.Ct.App., 1998) Contra WA and NJ

Juvenile proceedings must be in conformity with the essentials of due process and fair treatment as guaranteed by the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States.
In re Gault, 387 U.S. 1(1967); In Re R.W.S. 2007 ND 37

Post-Plea Diversion State v. Rogers, 170 P.3d 881 (Idaho 2007);

People v. Kollie ___NYS2d ___, 2013 WL 91980

"[N]either the Fourteenth Amendment nor the Bill of Rights is for adults alone." In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 18
L.Ed.2d 527 (1967). Nicholas v. People, 973 P.2d 1213 (Colo. 1999); IN RE CT, 2006 WY 101, 140 P.3d 643 (2006)

Due Process

Discussion Question
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Revocation=Termination

When participant enters into drug court and signs the contract he/she waives their right to a hearing. Its a matter of contract law, not Constitutional law.

People v. Anderson, 833 N.E.2d 390 (Ill. App. 2005); State v. Cassill-Skilton, 122 Wash. App. 652 (Wash. App. 2004); Hagar v. State, 990 P.2d 894 (Ok. 1999).

Its a contract
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Waiver of future allegations?

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Due process concerns are therefore sufficiently allayed through the contract-based means commonly used to remedy breaches of agreements between the State and a defendant. By this opinion we do not wish to dissuade a judge from following termination procedures in drug court akin to those employed in a probation revocation process. To the contrary, in order to eliminate uncertainty and the appearance of unfairness, we encourage courts to do so. What is recommended is not, however, the equivalent of what is required.

Defendant cannot prospectively waive his right to contest future allegations of violations Staley v. State 851 So2d 805 (Fla. App. 2003) Cannot waive without full knowledge of allegations State v. LaPlaca 2011 N.H. LEXIS 86

STATE v. ROGERS, 31264 (Idaho Ct. App. 8/22/2006)

Appellate Court reversed

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Waiver of hearing OK in contract

Just like other Constitutional rights ! May be waived in drug court contract ! TIP: Make it explicit and include may be relying on ex parte communications
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Supreme Court of Idaho did not even mention the contract analysis Key was diversionary program where guilty plea entered thus due process was required

Rogers Reversed State v. Rogers, 170 P.3d 881 (Idaho 2007)

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People v. Freeman (CA Ct. App., 2-21-12)

How much jail invokes DP?

Any loss of liberty triggers Due Process rights. ! Jail time of more than 6 days increases recidivism rates
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Courts that use jail greater than 6 days have worse (higher) recidivism

Elements of a Due Process Hearing

(4)

(1) written notice of the time and place of the hearing; (2) disclosure of evidence; (3) a neutral fact-finding body or person;

opportunity to be heard in person and to present witnesses and documentary evidence;

(5) the right to cross-examine adverse witnesses; and, (6) a written statement by the fact finder as to the evidence relied on and the reasons for revoking the conditional liberty
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Whats missing? No Federal right to counsel state mandate

Gagnon v. Scarpelli , 411 U.S. 778, 781-782 (1973)

No counsel at termination hearing

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Record and Due Process

Given the therapeutic component of problem-solving-court programs, we are not prepared to say that each and every action taken in such a proceeding must be a matter of record. But we have no difficulty in concluding that when a judge of a problem-solving court conducts a hearing and enters an order affecting the terms of the juvenile's probation, the proceeding must be on the record. We agree with other courts which have held that where a liberty interest is implicated in problem-solvingcourt proceedings, an individual's due process rights must be respected. IN RE INTEREST OF TYLER T., 279 Neb. 806 (2010)

Due process rights not violated by not having counsel represent probationer at drug court termination hearing Drug Court" is not a "court" in the jurisprudence sense it is a drug treatment program administered by the court system Termination from drug treatment program not subject to due process protections any more than participation in a private drug treatment program would have been

Court of Appeals of Kentucky. Keith Aaron DUNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. No. 1999-CA-001253-MR. Aug. 3, 2001. Case Ordered Published by Court of Appeals Oct. 5, 2001.

Recent Due Process/Drug Court Cases

Participant had no opportunity to participate in the termination decision. When deciding whether to revoke Harris' liberty and impose the terms of the plea agreement he was entitled to the opportunity to be heard regarding the propriety of the revocation of his liberty interest.
HARRIS v. COMMONWEALTH, 279 Va. 541 689 S.E.2d 713 (Va. 2-25-2010)

In termination from drug court, due process rights include: written notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and present evidence, the right to confront and cross-examine witnesses, and a neutral and detached hearing body
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Nebraska's Supreme Court ruled that the state carries the burden of proving an offender should be expelled from a post-conviction drug court program and that it should not be up to that person to prove why he or she should not be.

STATE V. SHAMBLEY 281 Neb. 317 (2011)

GOSHA v. STATE, 48A02-0912-CR-1210 (Ind.App. 5-28-2010)

Diversion and Due Process

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Hearsay at termination hearing

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NY law requires signing a waiver of all rights prior to entry in the diversion

At a termination hearing the minimal due process rights an offender possesses include the right to confront adverse witnesses, unless good cause exists not to allow the confrontation. A court may consider alternatives to live testimony including affidavits and other documentary evidence that would otherwise be considered hearsay. However, hearsay evidence should be considered only if there is good cause to forgo live testimony.

Court of Appeals of Washington, Division 1. STATE of Washington, Respondent, v. Eddie James FRANCIS, Appellant. Nos. 59771-0-I, 59772-8-I, 59773-6-I. July 21, 2008.

Increase jail time?

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What if its not a termination?

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May give aggravated term after dismissal from drug court Punish them for trying to get well?

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When intermediate sanctions are going to be imposed, what Due Process is due? Is there a difference between weekend garbage pick up and writing an essay? What about increasing testing? Does changing level of care require a hearing? What if its going from IOP to Live in?

People v. Loveless; People v. Miller, CA Ct. App (3-9-09, 3-212-09)

No hearing rights for non-custodial sanctions

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Involuntary Placement in Drug Court

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Many diversionary programs are informal in nature, and we do not want to unnecessarily impede the functioning of diversionary programs. The principles articulated in this opinion apply only when a participant in a diversionary program is facing termination from the program because that is when the participant faces a loss of liberty. Intermediate sanctions imposed in these programs do not implicate the same due process concerns, and continued use of informal hearings and sanctions need not meet the procedural requirements articulated here.
State v. Rogers, 170 P. 3d 881 (Idaho 10/22/07)

Juvenile drug court program as a special term of standard probation Involuntary placement in drug court does not violate due process, equal protection, 5th Am. right against self incrimination Why?

Court of Appeals of Arizona, Division 1, Department E. In re MIGUEL R., In re Jose J. Nos. 1CA-JV 02-0016, 1CA-JV 02-0072. Feb. 25, 2003.

Discretionary entry or exclusion 5th/14th Amendment

Equal Protection
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2.

3.

Is it a suspect class or does it involve a fundamental right? STRICT SCRUTINY Is it a semi-suspect class? IMMEDIATE SCRUTINY Not suspect class or fundamental right? RATIONAL RELATIONSHIP TO A GENUINE GOVERNMENT INTEREST

Drug Court is not a Right

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Equal Protection
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There is no Constitutional right to participate in Drug Court Jurisdictions decision to forego development of a Drug Court may be rationally related to a legitimate government purpose.

Defendant excluded from drug court because he was HIV positive Equal protection challenge Americans with Disabilities Act challenge Held: Rational relation to legitimate government interest because medical regimen too complicated to participate in Drug Court. ADA does not apply because drug court is not an Activity of Daily Living (ADL)

United States District Court, W.D. North Carolina. Brent JACOBY, Plaintiff, v. BUNCOMBE COUNTY Drug treatment PROGRAM et., al, Defendants. No. 1:09CV304-03-MU. Aug. 13, 2009; State v. Saxon, Ct. App. NJ 3-23-10; Phillips v. State, MS Ct. App. 1-12-10; Lomont v. State, 852 NE2d 1002 (Ind. App. 2006); State v. Harner 103 P3d 738 (Wash. 2005); State v. Little 66 P3d 1099 (Wash. App. 2003)

Evans v. State, 293 Ga. App 371, ___ S.E. 2d ___ (Ga. App. 8/22/08)

No Right to Hearing for Rejection

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CAUTION
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May defer to the DAs decision about admission to DTC DA may be gatekeeper for admission

New Jersey v. Jones, Superior Court Appellate Division, 5-19-09 People v. Forkey, NY 4-8-10

CONTRA

District Court of Appeal of Florida, Third District. Samson LOUIS, Appellant, v. The STATE of Florida, Appellee. No. 3D08-506. Nov. 12, 2008.

Historically disadvantaged groups affected by admission, participation or termination policies? Those who have experienced sustained discrimination or reduced social opportunities should receive the same opportunities as others to participate and succeed in Drug Court Adult Drug Court Best Practice Standards, 2013

BUT exclusion by DA re:gang membership reviewed and rejected by judge OK. High standard.
New Jersey v. Woodward, Superior Court Appellate Division, 6-8-11

Double Jeopardy

5th/14th Amendment
Double Jeopardy

Juvenile participant broke curfew and mistreated animalssanctioned in drug court ! 53 days later DA filed new charges Double jeopardy? 1. Sanction in JDC like probation revocation 2. VOP not a stage of criminal proceedingnot guilt or innocence but compliance with terms of supervision so no double jeopardy
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In Re O.F., 2009 ND 177 (10/13/09)

Drug Court Credits? Miscellaneous Legal Issues

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P flunked out of drug court and was sentenced to prison Is P entitled to sentencing credits for the time he spent in the drug court program? We dont know although we suspect _____ Not proper grounds for appeal

Court of Criminal Appeals of Tennessee, at Nashville. STATE of Tennessee v. Noah Chris RUSS. No. M2007-00676-CCA-R3-CD. Assigned on Briefs Aug. 14, 2007. March 10, 2008. Appeal from the Circuit Court for Lawrence County. Court of Criminal Appeals of Tennessee, at Nashville. STATE of Tennessee v. Jimmy CANTRELL. No. M2007-00048-CCA-R3-CD. Assigned on Briefs Aug. 15, 2007. Dec. 18, 2007. Appeal from the Circuit Court for Rutherford County, No. F-47455

Grounds for Termination

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More grounds
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Threatening the staff and threatening suicide are sufficient grounds for termination Treatment resistant May be related to his medication for Parkinsons Termination upheld

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Falsifying peer support group attendance cards Lied to the court Drug court participants are entitled to the same minimal due process rights as persons facing alleged probation, parole, SSOSA, or conditions of sentence violations.

Court of Criminal Appeals of Tennessee, at Knoxville. STATE of Tennessee v. Daniel GONZALEZ, Jr. No. E2009-01863-CCA-R3-CD. Assigned on Briefs Aug. 24, 2010. Jan. 12, 20

Court of Appeals of Washington, Division 1. STATE of Washington, Respondent, v Lorenzo BELL, Appellant. No. 59784-1-I. April 27, 2009.

FTA and Absconding

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Best Practices
Provide a secular alternative to AA or written waiver ! Place and Area restrictions rationally related to rehabilitation and narrowly drawn ! Written, knowing 4th Amend. Waiver
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Failed to report Didnt attend court review Sufficient grounds to revoke and resentence to state prison

Court of Criminal Appeals of Tennessee, at Knoxville. STATE of Tennessee v. Daniel GONZALEZ, Jr. No. E2009-01863-CCA-R3-CD. Assigned on Briefs Aug. 24, 2010. Jan. 12, 2010

Resources
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Provide DP protections at sanctions hearing if participant denies factual basis and jail possible sanction Provide equal access to drug court participation to all and be sure ground for exclusion pass muster Defendant can recuse Judge for revocation, or written waiver Ensure participant knows what (s)he getting into (Boykin advisement)

LEGAL ACTION CENTER, Confidentiality and Communication, (LAC 2006) NDCI, Ethical Considerations for Judges and Attorneys in Drug Court (May 2001) NDCI, Federal Confidentiality Laws and How They Affect Drug Court Practitioners (2001) NDCI, Critical Issues for Defense Attorneys in Drug Court (2003) GAINS CENTER, Dispelling the Myths Feb. 2007 Chapter 9 in Drug Court Judicial Manual available on line at www.alllrise.org