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Being a Legal Eagle Confidentiality, Ethical,
and Constitutional Requirements
National Drug Court InstituteJudge William G. Meyer (ret.)
Senior Judicial Fellow
Module 8: Being a Legal Eagle: Confidentiality, Ethical and Constitutional Requirements
Time:
Purpose:
Learner Outcomes:
At end of this session, participants will be able to:
Identify legal issues that occur in treatment courts
Recognize constitutional and due process issues that affect the treatment court program
Identify how federal confidentiality regulations are applied in the treatment court
settings
Recognize ethics laws that influence team member roles in the treatment court process
Trainer Introduction:
1
Disclosure
• This project was supported by Grant No. 2016-DC-BX-K007 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Department of Justice’s Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the Office for Victims of Crime, and the SMART Office.
• Points of views or opinions in this document are those of the author and do not necessarily represent the official position or policies of the U.S. Department of Justice.
2
• Confidentiality and HIPAA
• Ethics� Ex parte communications
� Judge and participant contact outside courtroom
� Defense function
• Limited constitutional issues
Refresher/Crash Course
-
3
42 CFR, Part 2—Summary
�Is your program receiving alcohol and other drugs (AOD) federal assistance?
�Is it patient identifying information?
General rule: Patient identifying information
cannot be disclosed
-Confidentiality of alcohol and other drug treatment information should be guided by 42
CFR, part 2.
-First, you must determine if your program is receiving either alcohol or other drug federal
assistance
-The federal government takes a broad view of this so if any part of your state’s judicial
department or judicial branch is receiving some type of federal assistance, then it is a
program that is receiving federal assistance for the purposes of 42 CFR, part2.
-Second, you must determine is the information we’re talking about patient-identifying
information.
-The general rule under 42 CFR, part 2 is that the patient identifying information cannot be
disclosed absent either a properly signed and executed consent or upon proper order of
the court.
4
SUMMARYConsent
� Advisement
� Elements
Redisclosures
No Consent—Civil
Good cause
� Can’t obtain info otherwise
� Public interest outweighs injury to patient, doctor-patient relationship, and treatment service
What about treatment communications?
� Good cause and serious bodily injury protection or investigation of serious crime
� Waiver by testimony
No Consent—Criminal
� Good cause and serious crime
� Discovery likely successful
-If you’re looking at consent, there has to be an advisement.
- Advisement is set forth in the regulations and it is a very detailed advisement including information the
individual that they have a right not to consent to this information.
-The consent itself has certain specific requirements –those items are contained in a sample consent form
that is contained in the judicial manual under the confidentiality chapter.
-Under any circumstances where you have a proper advisements and consent, re-disclosures are not
permitted.
-If you don’t have consent, you cannot obtain this protected information through a subpoena.
-What is required is a specific order from a court with notice generally to the individual who’s being
inquired about.
-In a civil context, the court must make a determination of good cause before a subpoena can be issued.
-Good cause includes that court has to conclude that you can't obtain the information through some
other means or methods and that the public interest in disclosing the information outweighs the injury to
the patient, the injury to the doctor-patient relationship, and the injury to the treatment services
-- To obtain the actual communications between the therapist and the person seeking treatment, the
court must make a determination of not only good cause but there needs to be a protection against
serious bodily injury or that it’s an investigation of a serious crime or that there’s been a waiver of this
information through testimony by its disclosure.
5
-In a criminal context, we have to establish not only the good cause requirements but also
that the information relates to a serious crime and the records that are being sought to be
obtained will contain significant prosecutorial information.
5
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
HIPAA
-HIPAA DOES NOT apply to court personnel, accrediting agencies (Joint Commission on
Accreditation for Hospital Organizations) and law enforcement.
- This is according to the GAINS Center –a well-respected affiliate of SAMHSA in the
Department of Health and Human Services.
-HOWEVER, treatment court is impacted by HIPAA because treatment providers are subject
to the regulations.
6
• Is the provider a covered entity?
Health care provider, payee, or biller using electronic transmission of
protected health information (PHI)
• Does the court have in place an order that allows the transmission and disclosure of potential PHI in
court proceedings?
45 CFR 164.512 (a), (e) release as required by law or during
administrative or judicial proceedings
• Does your consent form tell the treatment court
participant that the order exists and that PHI will potentially be released to the court team as a
condition of participation in treatment court? (Note: not as a condition of treatment)
45 CFR 164.508(b)(4)
HIPAA
-You first have to decide if the entity you’re working with is a covered entity under HIPAA
-This is any health care provider, payee, or biller that uses electronic transmission of health
care information, often called PHI (protected health information)
-There are two ways your treatment court can become HIPAA compliant
-The first way is by providing for an order where your protected health information will be
release to the treatment court team as a condition of the person’s participation in
treatment court. It CAN NOT be a condition of treatment
- The second way of getting proper HIPAA disclosure of information is through an
appropriate waiver
-Refer to the Drug Court Judicial Manual published in 2011 which has in it a specific
administrative order that would be compliant for HIPAA purposes.
7
The provisions of 42 CFR 2.35 and the need
for open courtrooms required denial of a
motion to close proceedings. Florida v.
Noelle Bush, Florida Circuit Court
(Oct. 2002)
Confidentiality and Open Courtroom
-The issue arises whether 42 CFR, part 2 would block the disclosure of the fact that an
individual is actually in treatment court because if they are in treatment court then it is
assumed that the individual is receiving drug or alcohol treatment.
-The question came up in Florida v. Noelle Bush in 2002.
-Bush was the daughter of the then governor and press wanted to come into the treatment
court to observe her review process. The treatment court, prosecutor and defense counsel
attempted to close proceedings but it was determined by a Florida Circuit Court that the
provisions of 42 CFR 2.35 and the need for open courtrooms required the denial of a
motion to close proceedings.
8
State v. Sykes, 339 P. 3d 972 (Wash. 12/18/14)
(Adult drug courts are philosophically, functionally,
and intentionally different from ordinary criminal
courts. Based on their unique characteristics, we hold
that adult drug court staff meetings are not subject to
the open courts provision of Article I, Section 10 of
the Washington State Constitution. Whether adult
drug court staff meetings are presumptively open or
closed is left to the discretion of the individual
drug courts.)
What about staffing—open?R1
-Are treatment court staff meetings also open because of the need to have an open and
public courtroom?
-The issue was decided in State v. Sykes by the Washington Supreme Court
-The press was seeking to get into staff meetings held in the judge’s chambers before the
actual calling of the case based on Washington’s very strong state constitutional provision
mandating open and public courtrooms (article I, section 10).
-The court ruled that adult treatment courts are philosophically, functionally and
intentionally different from ordinary criminal courts and, based on their unique
characteristics, held that staff meetings are not subject to open courts provisions.
-Whether staff meetings are open or closed is left to the discretion of the individual
treatment courts.
9
Slide 9
R1 I've left "drug court" here because it seems te be an excerpt from a court deciisionRebecca, 1/12/2018
What about the defendant’s right to be at every critical stage of a proceeding—
staffing too? A defendant’s right to be present at a proceeding is
required “whenever his presence has a relation,
reasonably substantial, to the fullness of his
opportunity to defend against the charge.”
However, this right is not absolute. . . . Just as
closed staffings are critical to the success of drug
court in the context of public trial rights, the
presence of the defendant at staffings would
frustrate the collaborative purpose of drug court.
State v. LeClech, Washington Court of Appeals,
NOT SELECTED (6/15/15)
R2
Normally a defendant has the right to be present at every critical stage of the proceedings.
Critical to this opinion allowing his exclusion at staffing was his waiver and that he was
represented by defense counsel at the staffing.
10
Slide 10
R2 "drug court" left as is because this is an excerpt from a court decisionRebecca, 1/12/2018
• Assume that confidentiality laws apply.
• Designate someone on the team to be a
confidentiality compliance officer (CCO).
• Provide the CCO with resources.
• Your consents should cover HIPAA, open
courtroom, and voluntariness, with
acknowledgement of representation.
• Follow the rule of minimization.
• Obtain an administrative judicial order for HIPAA.
• Update your releases regularly.
• Document your privacy policies.
Best Practices
-Follow these best practices to ensure you comply with HIPAA and 42 CFR, part 2
-Assume confidentiality laws apply
-Designate someone on the team to be a confidentiality compliance officer
-Provide the designated compliance officer with resources
-Including, Confidentiality and Communication: A Guide to Federal Drug and Alcohol
Confidentiality Laws and HIPAA from the Legal Action Center.
-Ensure your consents cover HIPPA and the fact that it is an open courtroom and that the
person executing the consent is doing so voluntarily with the consent of legal counsel.
-Follow the rule of minimization
-Information disclosed should be the minimum necessary for individuals to do their jobs
-Obtain an administrative judicial order for HIPAA to apply in every case
-A form of that order is contained in the Judicial Benchbook
-It should be for every case
-Update releases regularly
-Document privacy policies
-If you follow these practices it is very unlikely that your program would be challenged for
noncompliance
-This presentation is designed to cover only federal mandates
11
-Check your own state what particular requirements they may have with regard to
confidentiality.
11
1. Ex parte communications and staffing
2. Judicial fraternization and impartiality
3. Role of the defense counsel
Ethics in Treatment Courts:
Thorny Issues
-There are days worth of material on ethics in treatment court, but three are the most
thorny
12
Several states, including Oklahoma,
Minnesota, Montana, New York, Indiana,
Idaho, Arkansas, and Colorado, have amended
their Canons of Judicial Conduct to address
the ex parte communication issue facing
problem-solving courts.
A judge may initiate, permit, or consider ex parte communications expressly authorized by law or by consent of the parties, including when serving on therapeutic or problem-solving courts such as many mental health courts, drug courts, and truancy courts. In this capacity, judges may assume a more interactive role with the parties, treatment providers, probation officers, social workers, and others. Comment Canon 2.9
Ex parte Communication
-An ex parte communication is where the judge may receive information outside of the
context
of the courtroom either from some third person when both the prosecutor and defense
counsel
are not jointly present
-Several states have provided for ex parte communications for problem-solving courts in
their
canons of judicial conduct
-If you a judge in a state where ex parte communication is permitted, the best practice is
for you to disclose the ex parte communication and the substance of that
communication as soon as possible when both the prosecutor and defense counsel are
present.
-If the person providing the information is a member of the team, he/she should disclose
that information during the team meeting.
13
Judge attended group
activities, softball
games, bowling night,
holiday party, spring
picnic, Disneyland trip,
with treatment court
participants.
The Judge & Treatment Court
participant
-Parameters of proper judicial conduct while working in a treatment court are no different
than in a traditional court function
-“Is it okay if a judge attended group activities, softball games, bowling night, holiday party,
spring picnic, Disneyland trip, with treatment court participants?”
-Absolutely not permitted
14
Disciplined
Matter of Blackman, 591 A.2d 1339 (N.J. 1991)Judge Blackman argued that his attendance was an innocent mistake; he had no improper motive and had been friends with the defendant for many years. The court was unpersuaded and stated, “The lesson is that a judge who attends a public or social event will be perceived as endorsing or supporting not only the event itself but also persons associated with the event.”
In Re Jones, 581 N.W.2d 876 (Neb. 1998)
Judge met individually with probationers. The judge justified a portion of his conduct on his sincere concern for the welfare of persons with substance use disorders and their progress. The Nebraska Supreme Court was unpersuaded and found that Jones’s conduct constituted a violation of Canon 1 (uphold integrity and independence of judiciary) and Canon 2 in that Jones failed to act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
-Two non-treatment court cases provide examples of how the courts have viewed contact
between participants and judges outside the context of the court.
-Matter of Blackman
-Judge Blackman went to a birthday party at a person’s house who he had known for a long
period of time
-That person had been convicted of a felony so it was brought to disciplinary authorities, a
complaint was filed against him and he was eventually disciplined
-The New Jersey Supreme Court held “a judge who attends a public or social event will be
perceived as endorsing or supporting not only the event itself but also persons associated
with the event.“
-In re Jones
-Judge Jones met individually with probationers giving the reason that he was concern for
the welfare of addicts and their progress.
-The Nebraska Supreme Court held his actions violated Canon 1, upholding the integrity
and independence of judiciary, and Canon 2 in that Judge Jones failed to act in a manner
that promotes public confidence in the integrity and impartiality of the judiciary.
15
Respect the role of Defense
National Legal Aid and Defender
Association:
Nothing in the problem-solving court
policies or procedures should
compromise counsel’s ethical
responsibility to . . . challenge evidence
or findings and the right to recommend
alternative treatments or sanctions.
-Many times defense counsel is criticized for not going along with the team
-They might not recommend an individual for a treatment court program when they feel a
different disposition is warranted.
-Team members must understand the obligations of the defense counsel that those
obligations are first and foremost to their respective clients.
16
ABA Standards Defense
Function
The basic duty defense counsel owes to the administration of justice and as an officer of the court is to serve as the accused’s counselor and advocate with courage and devotion and to render effective,
quality representation. (ABA Model Rule 1.2, “Defense Function Guidelines”)
To competently represent client in DTC must familiarize self with treatment, procedures, bases for sanctions or termination, etc. (ABA Model Rule 1.1)
- The American Bar Association's standards for defense function holds that the
defense function
includes not only becoming aware of the various sentencing alternatives, including treatment courts,
but also an obligation to serve as the accused’s counselor and advocate
17
Smith v. State
Florida Ct. App. 4th Dist. 3/19/03
It is essential that lawyers educate themselves as to the
availability, requirements, and appropriateness of drug court
programs. Only then can they effectively advise their clients. It is
equally important for the institutions that educate future lawyers,
as well as those that educate the other disciplines that play vital
roles in the drug court process, to incorporate drug courts into
their curricula. For lawyers to do otherwise is for them to become
legal dinosaurs. To ignore the need to learn about the drug court
process is to ignore the evolution of the justice system. The
sooner the Bar educates itself, the issue raised in this case will
become extinct.
-In Smith v. State, an appellate court judge in the 4th circuit of the Florida Circuit Court of
Appeals found that it is a defense counsel’s duty to be fully informed of all sentencing
options,
including treatment court.
-In this case, the lawyer in question’s former client moved to withdraw his original guilty
plea because he was not properly advised as to the treatment court program
-Because he was not fully informed by defense counsel, the court found that was
ineffective assistance of counsel and allowed him to withdraw his plea.
18
Best Practice
• Ensure that DA and defense counsel attend
staffings and review hearings.
• Where Canon of Judicial Conduct permits ex
parte, ensure disclosure to opponent.
• Judges should avoid public activities
(nonjudicial) with participants, except for
cameo appearances.
• Respect ethical obligations of defense
counsel.
-Ensuring that the DA and defense counsel attend review hearings will go a long way in
avoiding
the potential problem of ex parte communications
-In addition, research from NPC shows that when prosecutors staffing and defense
counsel attend staff meetings, there is greater likelihood for cost savings and better
outcomes in terms of recidivism
- Where ex parte communication is permitted, insure that all information is disclosed to all
team
members
-Judges should avoid public activities with participants except for cameo appearances.
-An example of a cameo appearance might be showing up at a sobriety picnic put on by
participants to say a few words congratulating the participants on their commitment to
sobriety – but that’s all.
-Respect the ethical obligations of defense counsel because their job is to be effective and
vigorous representation to their client.
-Their ethical obligations trump being a “team player”
19
Constitutional Issues in Treatment and
Other Problem-Solving Courts
-Visit the Law section at NDCI.org for a webliography that is much more expansive than the
resources
contained in this presentation.
-The online version is updated regularly and are grouped under topic headings
-Clicking on the topic headings will bring up a list of cases on that topic and will provide
you with the actual opinion to read
20
Can a treatment court prohibit medication-assisted treatment
(MAT), such as methadone, because it
substitutes one addiction for another?
NO!
For a detailed analysis of the legal issues surrounding MAT see: Drug Courts and MAT: The
Legal Landscape at
http://ndcrc.org/content/mat-module-7
21
Prevalence of MAT Use in Treatment Courts
Following the national trend of increasing opioid misuse, the number of people in
treatment courts with opioid problems has increased over the past decade. This increase
has been especially notable in rural treatment courts, where opioids were the misused
drug of choice for 19% of treatment court participants in 2008, compared with 6% in 2005.
Huddleston & Marlowe, Painting the Current Picture: A National Report on Drug Courts and
Other Problem Solving Court Programs in the United States
(NADCP: July 2011)
22
While treatment courts are better than other criminal justice interventions, fully 44% do
not use MAT –usually because of philosophical opposition—trading one drug for another or
ignorance of the benefits.
23
The Unequivocal Position of NDCI
Inclusion of MAT as part of opioid abuse treatment in treatment courts is recommended by the NDCI as well as the National Association of State Alcohol and Drug Abuse Directors
NDCI Drug Court Practitioner Fact Sheets. Alexandria, VA: National Drug Court Institute (2002). Methadone and other pharmacotherapeutic interventions in the treatment of opioid dependence: National Association of Drug Court Professionals. (2010). Resolution of the Board of Directors on the availability of medically assisted treatment (M.A.T.) for addiction in Drug Courts; National Association of Drug Court Professionals. (2013, 2015). Adult Drug Court Best Practice Standards (Vol. I & II-Standards I, V & VI).
Your national organization recognizes that MAT is appropriate for some individuals.
24
When, if ever, can the treatment court
say no and still keep federal funding?
Medications available by prescription must be
permitted, unless the judge determines the
existence of one of the following conditions:
1. The client is not receiving those medications as
part of treatment for a diagnosed substance use disorder.
2. A licensed clinician, acting within their scope of
practice, has not examined the client and determined that the medication is an appropriate
treatment for their substance use disorder.
3. The medication was not appropriately authorized through prescription by a licensed prescriber.
25
Federal funders are now requiring that MAT be an adjunct to treatment as a condition to
federal funding—assuming availability.
25
The Bottom Line
Under no circumstances may a treatment
court judge, other judicial official, correctional
supervision officer, or any other staff connected
to the identified treatment court deny the use of
these medications when made available to the
client under the care of a properly authorized
physician and pursuant to regulations within an
opioid treatment program or through a valid
prescription. 26
Court cannot deny use if properly authorized or prescribed.
26
What about mandating
cessation as a condition of treatment court graduation?
In all cases, MAT must be permitted to be
continued for as long as the prescriber
determines that the medication is clinically
beneficial. Grantees must assure that a
treatment court client will not be compelled to no
longer use MAT as part of the conditions of the
treatment court, if such a mandate is
inconsistent with a licensed prescriber’s
recommendation or valid prescription. 27
If federally funded, Court cannot condition graduation on cessation of MAT if prescriber
believes that treatment court participant still needs MAT for treatment
27
Challenging Blanket MAT Prohibitions
• Americans with Disabilities Act (ADA)Prohibits discrimination by state and local governments
• Rehabilitation Act of 1973 (RA)Prohibits discrimination by federally operated or assisted programs
Discovery House, Inc. v. Consol. City of Indianapolis, 319 F.3d 277, 279 (7th Cir. 2003) ("the ADA and the [Rehabilitation Act] . . . run along the same path and can be treated in the same way").
• Due process protections of the Fourteenth Amendment
• Eighth Amendment—cruel and unusual punishment
If the treatment court does not have federal funding, a challenge to a blanket prohibition
against MAT can be based on at least 3 legal theories:
ADA/Rehab. Act of 1973
Due process violation based upon need for individualized sentencing
Cruel and Unusual Punishment-8th Amendment—usually pre-conviction and treatment
court participant already on MAT and then incarcerated where no MAT available.
28
Can your treatment
court refer participants
to 12-step fellowship
programs like AA and
NA?
Yes, under certain
circumstances.
29
FIRST AMENDMENT
• Working the 12 steps requires:
� Confess to God “the nature of our wrongs”
(Step 5).
� Appeal to God to “remove our shortcomings” (Step 7).
� By “prayer and meditation” make
“contact” with God to achieve the
“knowledge of his will” (Step 11).
-Comparing the First Amendment to AA or NA programs, note that steps 5, 7 and 11
require making “contact” with God
-If you are requiring someone to go to AA or NA, then it appears facially that is a violation
of the establishment clause of the First Amendment
-That has what a host of cases have held
30
FIRST AMENDMENT
• Kerr v. Ferry, 95 F.3d 472, 479-80 (7th Cir. 1996) (prison violated Establishment Clause by requiring attendance at Narcotics Anonymous meetings that 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 prisoner’s participation in program that incorporated Alcoholics Anonymous doctrine was unconstitutional as violation of the Establishment Clause).
• Inouye v. Kemna, 504 F.3d 705 (9th Cir. 9-7-2007, 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) (treatment court program manager and treatment court consultant held liable for actions related to referral to faith-based program, where they knew of participant’s objections while in the program and when the program denied the participant the opportunity to practice his chosen faith—Catholicism).
- Here are four cases listed in the Judicial Benchbook holding that courts or prisoners have
violated the First Amendment by mandating someone into a deity-based program such as
AA or
NA
31
Voluntary program:
Can you mandate AA
without a secular
alternative?
Equal Protection
violation
-Isn’t treatment court a voluntary program? If they don’t want to participate in treatment
court because there is a religious component in AA, they don’t have to.
-What you’re saying here is that those that believe in God or a higher being can join the
program but nonbelievers can’t.
-But the court doesn’t require that an individual participate in AA or NA, it’s the treatment
providers
-The courts have addressed that issue and found that it is a violation of the First
Amendment because you require treatment to be completed and part of that treatment is
NA or AA so it’s just the same as having the court mandate it.
-"Well, you clearly don't understand AA and NA. There's no requirement that the person
believe in God. It's a higher being."
-The courts have addressed that issue and found that a higher being is deity based and a
violation of the First Amendment.
-It’s a reference to God or a higher being or any other belief system that the person would
have to accept as a condition of meeting their obligations to the court.
-Qualified immunity is waved or lost when mandating someone to a program violating
firmly established constitutional protection
-Hanas v. Inner City Christian Outreach, Eastern District of Michigan
32
Not All Is Lost• O’Conner v. California, 855 F. Supp. 303, 308 (C.
D. Calif.) (no Establishment Clause violation where DUI probationer had choice over program, including self-help programs that are not premised on 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 noncoercive, nonrewarding faith-based program unconstitutional First Amendment Establishment Clause violation, where alternative not available).
• LifeRing Recovery http://lifering.org/
• Rational Recovery https://rational.org
• Secular Organizations for Sobriety http://www.sossobriety.org/
-Where a secular alterative is available, then it is perfectly appropriate to make referrals to AA or NA.
-O’Conner v. California held that the establishment cause was not violated because DUI probationers had a choice
between programs, including self-help programs not premised on a monotheistic deity
-"Well, we live in a rural area and those secular programs are not available."
-Programs such as LifeRing Recovery, Rational Recovery and Secular Organizations for Sobriety are available online
and research has shown these can be just as effective as traditional meetings when manualized
-Manualized refers having the individual use a workbook to work through the 12 steps.
-“Well I don’t own a computer”
-The local library
-How the First Amendment usually comes up:
-When a participant is being sanctioned or terminated from the treatment court program, they will claim you
forced them into a deity-based program so you can’t fault them for not going
-To avoid this let them know "We have these 12-Step programs here, AA, NA, they're deity based, and we have
these other programs that are non-deity based“ -Have them execute an agreement acknowledging which they
chose.
-Usually it’s a matter of convenience that they will choose the AA or NA program so it’s good to have a record of
what the individual has chosen and their newfound claims of being an atheist or agnostic ring hollow given the
choices they previously made.
33
First Amendment and Area Restrictions
Who uses place and area restrictions?
Reasonable when narrowly drawn:
1. Whether the defendant has a compelling need to go through or to the area
2. A mechanism for supervised entry into the area
3. The geographic size of the area is restricted
4. The relatedness between the restriction and the rehabilitation needs of the offender
See People v. Rizzo, 362 Ill. App. 3d 444 (2005).
-Place and area restrictions are perfectly permissible but they have to be narrowly drawn
- It comes down to whether this restriction is related to the rehabilitation needs of the
offender
-So a restriction that an individual not go to any place where alcohol is served, stored, or
manufactured is too broad a restriction.
-Restrictions in certain areas of town where the individual doesn't live that encompass
high drug trafficking are perfectly permissible.
34
Association Restrictions
Watch who you hang out with.
Not necessarily know whether they are druggies or felons; look at what associates are doing and
where they are.
Malone v. State, 2012 Ark. App. 280, (2012); State v. Allen, 370 S.C. 88, 634
S.E.2d 653 (2006); Jones v. State, 41 P.3d 1247 (Wyo. 2001) (persons of
disreputable character); State v. Hearn, 128 P.3d 139 (Wash. App. 2006)
(prohibition against associating with drug users or dealers constitutional);
Commonwealth v. LaPointe, 759 N.E.2d 294 (Mass. 2001).
-Association restrictions are permissible
-You have to tell your participants to watch out who they hang out with –no felons, drug
dealers, drug users
-Obvious exceptions for other individuals who are drug abusers and felons they come in
contact with during treatment
35
Search WaiverSampson v. California, 547 U.S. 843 (2006)
• In parole case, mandatory search waivers are
constitutional and totally suspicionless
searches are upheld. No need to have a finding
of reasonableness, but observes that the
search cannot be for harassment.
• Probationers and parolees, who are subject to
a clearly disclosed search condition of parole
or probation, have greatly diminished
expectations of privacy such that warrantless
searches survived Fourth Amendment scrutiny.
-Many treatment courts require that the participants sign an agreement that they can be
searched at any time, any place without probable cause or reasonable suspicion.
-The U.S. Supreme Court held in 2006 that mandatory search waivers are constitutional and
suspicionless searches are upheld
-Probationers and parolees are subject to search based only on reasonable suspicion and
are guaranteed only minimal Fourth Amendment protections.
36
Due Process
• 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
Fourteenth 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).
If procedural protections are due, meaning that the individual will potentially suffer a loss
to a
recognized liberty or property interest, then the question is, what process is due?
37
• Revocation = Termination
• 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); In Re Miguel, 63
P.3d 1065, 1074 (Ariz. App. 2003)
(juvenile).
Due Process
-There are several cases that hold that the termination from a court is equivalent to
probation
revocation and the same process hearings are necessary.
-People v. Anderson
-Diversion drug court
-Hagar v. State
-Post conviction drug court
38
What is required?• Probable cause
determination
• Written notice
• Right to appear
• Cross-examine and call witnesses
• Independent magistrate
• Written findings—reasonsGagnon v. Scarpelli, 411 U.S. 778, 781-782 (1973) (probation)
• Right to counsel is a state mandate
Due Process
-So what is required under the due process clause according to Gagnon v. Scarpelli?
-Probable cause determination
-Written notice of the nature of the alleged violation
-A right to appear at the hearing
-Cross-examine and call witness
-Independent magistrate making the determination
-Written findings or reasons for the violation if a violation is found
-You would notice that there is no right to counsel
There is no federal constitutional right to counsel at a federal probation revocation hearing
but there is under each and every state still right to counsel as well.
39
Weight of Authority
• HARRIS v. COMMONWEALTH, 279 Va. 541 (2010)
Consequently, because Harris had no opportunity to participate in the termination decision, when deciding whether to revoke Harris’ liberty and impose the terms of the plea agreement deprived Harris of the opportunity to be heard regarding the propriety of the revocation of his liberty interest.
• GOSHA v. STATE, 927 N.E.2d 942 (Ind. Ct. App. 2010)
In termination from treatment 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.
• HUNT v. COMMONWEALTH, 326 S.W.3d 437 (Ky. 2010)Summary probation revocation proceeding when defendant sentenced to probation with treatment court as a condition of probation, where no evidence presented, but simple conclusory statements made and counsel appointed immediately prior to hearing violated due process.
• State v. Shambley, 281 Neb. 317 (2011) Treatment court program participants are entitled to the same due process protections as persons facing termination of parole or probation.
-Newer cases in this area are unanimous in the holding that termination from treatment
court is equivalent to probation revocation of the case.
-State (Nebraska) v. Shambley sums it up best
-In most states, that means while those due process protections are due that the hearing,
the way it's conducted, is not the same as a trial in that the burden of proof is
preponderance of the evidence and hearsay is admissible at such hearings as well.
40
Pre-Allegation Waiver of Hearing
• Neal v. State, 2016 Ark. 287 (Ark. Sup. Ct. 6/30/16) (citing LaPlaca and Staley, infra , Ark. Sup. Ct. holds: “[T]he right to minimum due process before a defendant can be expelled from a drug-court program is so fundamental that it cannot be waived by the defendant in advance of the allegations prompting the removal from the program.”)
• State v. LaPlaca, 27 A.3d 719 (New Hampshire 2011) (even where program manual provided: “Any violation of the terms and conditions of the [Program] shall result in the imposition of sanctions, without hearing, by the court as deemed fair and appropriate, consistent with statutory authority and the descriptions as outlined in the [Program] policy manual. The defendant waives any right(s) to any and all hearings. Termination of participation in the [Program] shall result in the imposition of the suspended prison sentences and fines without hearing. The defendant shall affirmatively waive any and all rights to a hearing,” waiver pre-notice of allegations was not enforceable.
• Court relied upon Staley v. State, 851 So.2d 805 (Fla. Dist. Ct. App. 2003) (failure to provide the participant a pre-termination hearing was a violation of due process in the context of removal from drug court and imposition of a suspended sentence). See also Gross v. State of Maine, Superior Court case # CR-11-4805 (2/26/13).
• People v. Freeman not selected Calif. Ct. Appeals 4th Dist. 2nd Div. 1/23/12—contra, without discussion.
-"Well, wait a second. In our contract, the defendant agrees specifically to waiver here on
termination and the court or the team just makes the determination that the individual
shouldn't be in the program anymore."
- The team cannot make that decision because it’s an abdication of the judge’s
responsibilities
-Under Boykiun, an agreement is only valid if a person has knowingly, voluntarily and
intelligently surrendered their rights. If a person gives up their right to a termination
hearing, they have no idea the potential allegations down the road.
-This was held under State v. LaPlaca and Staley v. State and most recently in Neal v. State
41
Due Process and Judicial Impartiality
TEST:
U.S. v. Ayala, 289 F.3d 16, 27 (1st
Cir. 2002) (would the facts, as
asserted, lead an objective
reasonable observer to question
the judge’s impartiality?)
-Imagine you have never been to a treatment court, have no idea how it works and you
wandered
into a session in progress in a courthouse. What would the answer be when you asked
yourself
"Would the facts as asserted lead an objective reasonable observer to question that judge's
impartiality as it related to each one of those people?"
42
Alexander v. State, 48 P. 3d 110 (Okla. 2002)
• Requiring the district court to act as treatment court team member, evaluator, monitor, and final adjudicator in a termination proceeding could compromise the impartiality of a district court judge assigned the responsibility of administering a treatment court participant’s program.
• Therefore, in the future, if an application to terminate a treatment court participant is filed, and the defendant objects to the treatment court team judge hearing the matter by filing a Motion to Recuse, the defendant’s application for recusal should be granted.
-The issue becomes whether the judge should recuse or decide the issue where this
individual
should be terminated from treatment court.
-Alexander v. State is the safest and best position.
-The judge should ask the participant whether he or she wants this particular judge to
hear the termination and if they do, then get the participant and counsel to sign an
acknowledgement to that effect.
-If the participant does not want the judge to hear, the case should be transferred to
another judge
43
What is the trend on recusal?
Recusal Not Required1. State v. Belyea, 160 N.H. 298, 999 A.2d
1080 (N.H. 2010)
2. Mary Ford v. Kentucky, (Ky. Appellate April
30, 2010)
3. Grayson v. Kentucky, No. 2011-CA-
000399-MR. Court of Appeals of Kentucky
UNPUBLISHED (June 29, 2012)
4. Arizona v. Tatlow, No. 1 CA-CR 11-0593,
Court of Appeals of Arizona, Division 1,
Department C. (December 4, 2012)
5. Arizona v. Perez Cano, No. 1 CA-CR 11-
0473 Court of Appeals of Arizona
(September 20, 2012) UNPUBLISHED
6. State v. Rogers, 170 P. 3d 881 (Idaho
2007)
7. State v. McGill, No. M2015-01929-CCA-
R3-CD. (Tenn: Court of Criminal Appeals
7/18/2016) (rejecting Stewart)
Recusal Required
1. Minnesota v. Cleary, No. A15-1493
(Court of Appeals of Minnesota July 5,
2016) (when the sole basis for revoking
probation is a probationer's termination from
treatment court and the treatment court
judge participated in the treatment court
team’s decision to terminate the probationer
from treatment court, a probationer is
entitled to have a judge other than the
treatment court judge preside over the
probation revocation hearing, because of
the appearance of lack of impartiality).
2. State v. Stewart, W2009-00980-CCA-R3-
CD (Tenn. Crim. App. 8-18-2010) (not
selected for publication).
-The trend on recusal is clearly the other way.
-In Alexander, recusal was required where the participant requested it. The safest course
of conduct is to recuse when asked by certainly get on the record the request from the
court on whether or not the participant wants this judge to recuse.
-In most circumstances the participant won’t want the judge to recuse because he/she
understands addiction and how difficult it is to go through the treatment court program.
-The judge down the hall might see it the opposite way
The Cleary case is interesting because it would appear the judge already made up her mind
when the treatment court judge terminated participant from treatment court—now same
judge has decision on probation revocation—use the Alexander approach and get a waiver
of recusal or recuse.
44
Ethics Opinions
Tennessee Advisory Opinion 11-01
• Question: Does the Code of Judicial Conduct permit a judge who is a member of a
treatment court team to preside over the revocation/sentencing hearing of a defendant who is in the treatment court program?
Yes, unless the judge has personal knowledge of the facts giving rise to the revocation.
Kentucky 10/10/11 JE_122
• Recusal issues where a treatment court or mental health court judge presides in a
revocation hearing based on defendant’s violation of terms of participation in a treatment or mental health program.
Yes, unless the judge has personal knowledge of the facts giving rise to the revocation.
• Canons of Judicial Conduct
3C and 3E—Recusal for Appearance of Partiality & Remittal of Recusal
The recusal issue is two prong—first the due process concern and the ethical
responsibilities under the Canons of Judicial Conduct.
45
Do infractions involving
jail as a potential
sanction require a
hearing, when the
participant denies the
factual basis?
YES!
46
Due Process and Sanctions
Hearing vs. nonhearing—If the treatment court participant does not admit the violation and denies the factual basis of the alleged
noncompliance, and jail is a possible sanction, ask yourself:
1. Will the defendant potentially suffer a loss to a recognized liberty or
property right at the sanctioning hearing?
2. If the answer is yes, the due process clause is implicated.
3. Because due process is implicated, the issue becomes what type of
hearing is the participant entitled to?
Gagnon v. Scarpelli, 411 U.S. 778, 781-782 (1973); Wolff v. McDonnell, 418 U.S. 539, 557 (1974) overruled on other grounds; Sandlin v. Conner, 515 U.S. 472 (1995); In Re Miguel, 63 P.3d 1065, 1074 (Ariz. App. 2003) (juvenile entitled to hearing).
-When you look at the question of due process and sanctions, you have to go back to our
analysis of what the due process clause requires
-Will the defendant potentially suffer a loss to a recognized liberty or property right at the
sanctioning hearing?
-If the sanction is jail, then the answer is yes, thus the individual would be entitled to some
type of due process and a hearing
-What does the hearing look like?
-It doesn’t have to have the accoutrements of a probation revocation or treatment court
termination hearing
-But the individual should be able to make a statement, call witnesses and be represented
by counsel
-This only applies, though, when the individual denies the factual basis upon which the
potential sanction is based and that sanction could be jail
47
Key Component #2
Using a nonadversarial approach,
prosecution and defense counsel
promote public safety while protecting
participants’ due process rights.
Well don’t the Drug Court Key Components require a non-adversarial process
YES—as long as defendant’s due process rights are protected
48
NICELY v. COMMONWEALTH, 2007-CA-002109-MR (Ky. App. 4-24-2009)
Under these circumstances, if a
sentencing court chooses to find a
defendant in contempt for violating
conditions of probation as opposed to
revoking or modifying the conditions
of probation, the defendant must be
afforded certain due process rights,
including a hearing. Pace, supra at 395.
Clearly some type of hearing is contemplated the Kentucky courts.
49
STATE v. STEWART (Tenn. Crim. App. 8-18-2010) (NSOP)
� Having reviewed the record, we are additionally troubled by the four or five occasions where the defendant in this case was “sanctioned” to significant jail time by the drug
court team during the two years he participated in the program.
� Leaving aside (as we must) the obvious due process concerns attendant to any additional deprivation of the defendant's liberty that has been imposed through a collaborative, non-adversarial, and at times ex parteprocess rather than through a traditional adversarial evidentiary hearing, there is considerable tension between this outcome and the general guidelines under which drug courts should operate. The drug court program explicitly recognizes that alcohol and drug addiction “is a chronic, relapsing condition,” that “many participants [will] exhibit a pattern of positive urine tests,” and expressly contemplates that many participants will experience periods of relapse “[e]ven after a period of sustained abstinence.”
-State v. Rogers from the Idaho Supreme Court held that some type of hearing is necessary
but not the same type of hearing as would be in a probation revocation
-State v. Stewart, not selected, expressed concern with sanctioning hearings that were in
large part ex parte and resulted in multiple weeks in jail
50
Mississippi Commission on Judicial Performance v.
Thompson, ____Miss. ___, (Miss Supreme Court
5/21/2015)
(Judge Thompson's conduct of depriving participants in
treatment court of their due process rights when he signed
orders of contempt without the persons being properly
notified of the charge of contempt or a right to a hearing, and
by conducting “hearings” immediately after “staffing
meetings” without adequate time for the persons to have
proper counsel or evidence presented, violated Canons 1,
2A, 3B(1), 3B(2), 3B(4), 3B(8), and constitutes willful
misconduct in office and conduct prejudicial to the
administration of justice. Result: Judge removed from office.)
This is not a due process case but a disciplinary hearing against a judge for not giving
hearings
51
Sanction Hearing
Taylor v. State, CR-15-0354 (Ala. Crim. App. 9/9/16)
Sanctioning hearing using hearsay was not a due process
violation. Concurrence: I realize that developing specific
procedures for handling drug-court sanctions can be an
arduous task — especially given the dearth of case law in
this State addressing drug-court programs. I would
encourage other drug-court judges in this State either to use
or to develop a drug-court-sanction procedure similar to the
one outlined in this Court's opinion (i.e., provision of a
hearing). I would also recommend to other drug-court
professionals that they take advantage of the vast training
resources and educational opportunities available through
the National Association of Drug Court Professionals.
Kudos to NADCP for teaching sanctioning hearings where factual basis denied and jail
possible sanction
52
Is it permissible to place a participant with a
substance use disorder in jail while you are
waiting for a placement bed to become
available?
NO! Unless due process requirements
are met.
53
“She is an addict, and if I release her, she will OD”
Robinson v. California, 370 U.S. 660
(1962)[1]. The Eighth Amendment of
the Constitution was interpreted to
prohibit criminalization of particular
conduct—status as a person with a
substance use disorder—as contrasted
with prohibiting the use of a particular
form of punishment for a crime.
R10
A number of courts are jailing individuals because they need inpatient treatment and a bed
is not available, the courts do not grant a hearing and they are being detained indefinitely.
This is preventive detention because the person has a substance use disorder—a status
crime and unconstitutional as cruel and unusual punishment.
54
Slide 54
R10 I've left "addict" here, as it seems to be a quote (though I've added the quotation marks to make that
more clear")
I've changed "addict" to "has a substance use disorder" in the slide notesRebecca, 1/12/2018
Hoffman v. Jacobi (S.D. Ind., 9/29/2015)
(Magistrate judge recommends class certification on 42 USC §1983 damages and injunctive relief suit against treatment court judge and team for incarcerating participants for lengthy periods of time, while awaiting placement in treatment facilities. Plaintiffs allege that the decision to hold them in jail pending placement was made without counsel, hearing, consideration of bond, or other rights of due process.) (Injunctive relief moot—court closed—judge forced to resign 4/22/16)
Preventative Detention
A federal court literally shut down a treatment court for doing this in Indiana.
55
Preventative Detention
Kansas v. Hendricks, 521 U.S. 346 (1997) (upholding the preventive detention of sexual predators because the
detention was preceded by an adversarial hearing that afforded the individual robust procedural protections,
including the right to state-funded counsel, the right to present and cross-examine witnesses, and the right to an
annual case review to determine if detention was still warranted). Kansas v. Crane, 534 U.S. 407, 415 (2002)
(holding that a state law authorizing the civil commitment of sex offenders was unconstitutional because it did not
require an adversarial hearing as to whether the offender lacked control over the dangerous behavior).
The US Supreme court said a hearing is necessary –robust procedural protections
56
Civil Commitment
O’Conner v. Donaldson, 422 US 563
(1975) (cannot fence in the harmless
mentally ill solely to save its citizens
from exposure to those whose ways are
different).
Addington v. Texas, 441 US 418 (1979)
(clear and convincing evidence).
If you are going to proceed on a civil commitment standard is high!
57
County of Riverside v. McLaughlin, 500 U.S. 44, 52, 111 S. Ct. 1661, 114
L.Ed.2d 49 (1991).
• In Gerstein v. Pugh, 420 U. S. 103 (1975), this court held that the Fourth Amendment requires a prompt
judicial determination of probable cause as a prerequisite to an extended pretrial detention following
a warrantless arrest.
• Taking into account the competing interests articulated
in Gerstein, we believe that a jurisdiction that provides judicial determinations of probable cause within 48
hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein.
A hearing should be timely—not as rapid as on initial arrest but probable cause
determination within 3 days and hearing within
58
Arrest on Original Charge vs. Probation Revocation
Although the strict 48-hour rule in Riversidemay not apply to arrest for probation violation, due process and state statute/rule generally require prompt probable cause determination to continue to detain the individual. Gagnon v. Scarpelli, 411 U.S. 778, (1973);
Morrissey v. Brewer, 408 U.S. 471 (1972). See also Warner, C. “The Waiting Game: How States Deny
Probationers Their Constitutional Right to a Preliminary Hearing”, 8 Crim. Law Brief 13 (2012-2013); Fowler v.
Cross, 635 F. 2d 476 (5th Circuit 1981) (denying qualified immunity and finding civil liability for denial of prompt
preliminary hearing in probation revocation).
Recommend but probable cause determination within 3 days and hearing within 10
59
Best Practice• Provide a secular alternative to AA and written consent.
• Rationally relate place and area restrictions to rehabilitation.
• Use a written, knowing Fourth Amendment waiver.
• Provide due process protections at termination hearings.
• If a participant denies factual basis and jail is a possible sanction,
provide due process protections at the sanctions hearing.
• Provide equal access to treatment court participation to all.
• Consider whether a defendant can recuse the judge for revocation,
or written waiver.
• Ensure that participants know what they are getting into (Boykin
advisement)—no staffing access.
• Use MAT when clinically indicated and appropriately prescribed.
• Do not use preventive detention.
60
Resources• LEGAL ACTION CENTER, “Confidentiality and
Communication,” (LAC 2012)
• 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
• Chapters 7, 8, and 9 in Judicial Manual (2011) on Ethics, Confidentiality, and Legal Issues
• NDCI: http://www.ndci.org/law
61
The end
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