Georgia State Drug Court Conference May 20, 2013 Hon. William Meyer (retired) Senior Judicial Fellow- National Drug Court Institute Mike Loeffler Senior

Constitutional Issues in Drug Courts

Georgia State Drug Court Georgia State Drug Court ConferenceConference May 20, 2013May 20, 2013

Hon. William Meyer (retired)Hon. William Meyer (retired)Senior Judicial Fellow- National Drug Court InstituteSenior Judicial Fellow- National Drug Court Institute

Mike LoefflerMike LoefflerSenior Prosecutorial Fellow- National Drug Court InstituteSenior Prosecutorial Fellow- National Drug Court Institute

© NDCI, December 15, 2008The following presentation may not be copied in whole or in part without the written permission of the author or the National Drug

Court Institute. Written permission will generally be given without cost, upon request.

. . This project was supported by Grant No. This project was supported by Grant No. 2010-MU-BX-K067 awarded by the Bureau of 2010-MU-BX-K067 awarded by the Bureau of Justice Assistance. The Bureau of Justice Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Assistance is a component of the Office of Justice Programs, which also includes the Justice Programs, which also includes the Bureau of Justice Statistics, the National Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, the Justice and Delinquency Prevention, the SMART Office, and the Office for Victims of SMART Office, and the Office for Victims of Crime. Points of view or opinions in this Crime. Points of view or opinions in this document are those of the author and do document are those of the author and do not represent the official position or policies not represent the official position or policies of the United States Department of Justice.of the United States Department of Justice.

Sponsors NoteSponsors Note

Let’s take a walk….Let’s take a walk….

through Drug Courts through Drug Courts with our Constitution…with our Constitution…

US CONSTITUTION- US CONSTITUTION- Amendment 1Amendment 1

Does requiringDoes requiring

a Participant toa Participant to

work the 12 Steps work the 12 Steps

violate the 1violate the 1stst

Amendment’sAmendment’s

Establishment Establishment

Clause?Clause?

FIRST AMENDMENTFIRST AMENDMENT Working the twelve steps requires: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).

FIRST AMENDMENTFIRST AMENDMENT

Inouye v. KemnaInouye v. Kemna, 504 F.3d 705 (9th Cir. 9-7-2007, , 504 F.3d 705 (9th Cir. 9-7-2007, amended on 10/3/07) amended on 10/3/07)

Parole officer lost qualified immunity by forcing Parole officer lost qualified immunity by forcing AA on AA on Buddhist Buddhist

Hanas v. Inner City Christ. Outreach,Hanas v. Inner City Christ. Outreach, 542 F. Supp. 2d 542 F. Supp. 2d 683(E.D. Mich. 08) 683(E.D. Mich. 08)

Drug Court manager and drug court consultant Drug Court manager and drug court consultant held civilly liable for referral to faith based held civilly liable for referral to faith based program, where they knew of participant’s program, where they knew of participant’s objections while in the program and when the objections while in the program and when the program denied the participant the opportunity program denied the participant the opportunity to practice Catholicism to practice Catholicism


Kerr v. FerryKerr v. Ferry, 95 F.3d 472, 479-80 (7th Cir. 1996) , 95 F.3d 472, 479-80 (7th Cir. 1996)

Prison violated Est. by requiring attendance at Prison violated Est. by requiring attendance at NA NA meetings meetings

Griffin v. CoughlinGriffin v. Coughlin, 88 N.Y. 2d 674 (1996), , 88 N.Y. 2d 674 (1996), cert. cert. denied denied 519 U.S. 1054 (1997) 519 U.S. 1054 (1997)

Conditioning family visitation on prisoner’s Conditioning family visitation on prisoner’s participation participation in program that incorporated AA was in program that incorporated AA was unconstitutional as unconstitutional as violation of the Establishment violation of the Establishment ClauseClause


O’Conner v. CaliforniaO’Conner v. California, 855 F. Supp. 303, 308 (C. D. Calif.) , 855 F. Supp. 303, 308 (C. D. Calif.) & & Restraint of GarciaRestraint of Garcia, 24 P.3d 1091 (Wash. App. 2001) , 24 P.3d 1091 (Wash. App. 2001)

No Establishment Clause violation where No Establishment Clause violation where Probationer had Probationer had choice over program, including self-help choice over program, including self-help programs that programs that are not premised on monotheistic deity)are not premised on monotheistic deity)

Americans United v. Prison FellowshipAmericans United v. Prison Fellowship, 509.3d 406(8th , 509.3d 406(8th Cir. 2007) Cir. 2007)

State supported non-coercive, non-rewarding faith State supported non-coercive, non-rewarding faith based based program is Establishment Clause violation, program is Establishment Clause violation, where no where no alternative availablealternative availableLifeRing Recovery LifeRing Recovery http://www.unhooked.comRational Recovery Rational Recovery http://www.rational.orgSecular Organizations for Sobriety (SOS) Secular Organizations for Sobriety (SOS) http://www.secularhumanism.org/sos

11stst Amendment: Right of Amendment: Right of AsemblyAsembly

AREA RESTRICTIONS:AREA RESTRICTIONS: Reasonable when narrowly drawn:Reasonable when narrowly drawn:

1) Whether the defendant has a compelling need to go through/to the area;

2) A mechanism for supervised entry into the area;

3) The geographic size of the area restricted, and

4) The relatedness between the restriction and the rehabilitation needs of the offender.

See See People v. RizzoPeople v. Rizzo, 362 Ill. App. 3d 444 (2005)., 362 Ill. App. 3d 444 (2005).

11stst Amendment: Amendment: Right to Assemble Right to Assemble

Association Restrictions –Association Restrictions –– Watch who you hang out with!Watch who you hang out with!

– Jones v. StateJones v. State, 41 P.3d 1247 (Wyo. 2001) , 41 P.3d 1247 (Wyo. 2001) Persons of disreputable character constitutionalPersons of disreputable character constitutional

– State v. HearnState v. Hearn, ___ P.3d ___ (Wash. App. 2006) , ___ P.3d ___ (Wash. App. 2006) Prohibition against associating with drug users or dealers Prohibition against associating with drug users or dealers

constitutionalconstitutional– See also: Birzon v. KingSee also: Birzon v. King, 469 F.2d 1241, 1242 (2nd. Cir. 1972);, 469 F.2d 1241, 1242 (2nd. Cir. 1972);

Commonwealth v. LaPointeCommonwealth v. LaPointe, 759 N.E.2d 294 (Mass. , 759 N.E.2d 294 (Mass. 2001).2001).

4th AMENDMENT 4th AMENDMENT

4th AMENDMENT 4th AMENDMENT Probation and parolees---Probation and parolees---

– Not probable causeNot probable cause– Reasonable suspicionReasonable suspicion

Why? Why?

Reduced expectation of privacyReduced expectation of privacy

Special need to control recidivismSpecial need to control recidivism

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

4th AMENDMENT 4th AMENDMENT

Sampson v. California, 126 S.Ct. 2193 , 126 S.Ct. 2193 (2006)(2006)In parole case, mandatory search In parole case, mandatory search waiver constitutional and totally waiver constitutional and totally suspicion-less search is upheld.suspicion-less search is upheld.Does not require a finding of Does not require a finding of reasonable suspicion, but notes that reasonable suspicion, but notes that search cannot be “harassment”search cannot be “harassment”

44thth Amendment Amendment (pretrial waivers) (pretrial waivers)

State v. UllringState v. Ullring, 741 A.2d 1065 (Me. 1999) , 741 A.2d 1065 (Me. 1999) In Re YorkIn Re York, 9 Cal. 4th 1133 (Calif. 1995) , 9 Cal. 4th 1133 (Calif. 1995)

Search waiver as condition of bond constitutionalSearch waiver as condition of bond constitutional

Terry v. Superior CourtTerry v. Superior Court, 73 Cal. App. 4th 661 , 73 Cal. App. 4th 661 (1999) (1999)

Search waiver improper condition in diversion case, Search waiver improper condition in diversion case, without statutory authoritywithout statutory authority

U.S. v. ScottU.S. v. Scott, 450 F.3d 863 (9th Cir. 2006), 450 F.3d 863 (9th Cir. 2006)

Search waiver improper when person on bond Search waiver improper when person on bond

4th AMENDMENT4th AMENDMENT Alcohol ProhibitionAlcohol Prohibition

People v. BealPeople v. Beal, 60 Ca. App. 4th 84 , 60 Ca. App. 4th 84 (1997).(1997).

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

55thth Amendment Amendment (Double Jeopardy)(Double Jeopardy)

No multiple Criminal No multiple Criminal Prosecutions for same offenseProsecutions for same offense

No multiple punishments No multiple punishments for same offensefor same offense


VOP- Sentence Revocation, etc. are considered a VOP- Sentence Revocation, etc. are considered a consequence for not following original sentence. consequence for not following original sentence.

Witte v. U.S., 515 U.S. 398, 405 (1995)Witte v. U.S., 515 U.S. 398, 405 (1995)

Sentencing for deferred judgment violations including Sentencing for deferred judgment violations including positive UA tests does not violate double jeopardy positive UA tests does not violate double jeopardy

People v. Lopez, 97 P. 3d 223, affirmed other issues 113 P. 3d 713 (Colo. People v. Lopez, 97 P. 3d 223, affirmed other issues 113 P. 3d 713 (Colo. 2005)2005)

Doyle v. State, CA CR 08-530 (Ark. App. 2-18-2009) Doyle v. State, CA CR 08-530 (Ark. App. 2-18-2009)

Vehicle forfeiture and license forfeiture not criminal Vehicle forfeiture and license forfeiture not criminal penaltiespenalties


In Re O.F., 2009 ND 177 (10/13/09)In Re O.F., 2009 ND 177 (10/13/09)Curfew and mistreating animals sanctioned Curfew and mistreating animals sanctioned DA later filed new charges for animal abuseDA later filed new charges for animal abuse 1. Sanction in DC like probation revocation1. Sanction in DC like probation revocation 2. Revocation not a stage of criminal 2. Revocation not a stage of criminal proceeding—not guilt or innocence but proceeding—not guilt or innocence but compliance with terms of supervisioncompliance with terms of supervision

3. No double jeopardy3. No double jeopardy

14th Amendment- Due Process 14th Amendment- Due Process

14th Amendment- Due Process 14th Amendment- Due Process

Procedural protections are due under Procedural protections are due under the due process clause when the the due process clause when the defendant will defendant will potentially sufferpotentially suffer a a loss to a loss to a recognized liberty or property right

If Due Process applies, the question If Due Process applies, the question remains what process is due? remains what process is due? Fuentes v. Shevin, 407 U.S. 67 (1972).

Morrissey v. Brewer, 408 U.S. 471 (1972).

Due Process- Due Process- ProceduralProcedural

What’s required in Probation What’s required in Probation Violation proceeding?Violation proceeding?– P/C determinationP/C determination– Written NoticeWritten Notice– Right to AppearRight to Appear– Cross-Exam and call witnessesCross-Exam and call witnesses– Independent magistrateIndependent magistrate– Written findings-reasonsWritten findings-reasons– CounselCounsel

Gagnon v. ScarpelliGagnon v. Scarpelli, 411 U.S. , 411 U.S. 778(1973).778(1973).

Due Process- ProceduralDue Process- Procedural

Revocation=TerminationRevocation=Termination

– People v. Anderson, People v. Anderson, 833 N.E.2d 390 (Ill. App. 833 N.E.2d 390 (Ill. App. 2005); 2005);

– State v. Cassill-SkiltonState v. Cassill-Skilton, 122 Wash. App. 652 , 122 Wash. App. 652 (Wash. App. 2004); (Wash. App. 2004);

– Hagar v. StateHagar v. State, 990 P.2d 894 (Okl. Cr. 1999). , 990 P.2d 894 (Okl. Cr. 1999). – In Re MiguelIn Re Miguel, 63 P.3d 1065, 1074 (Ariz. App. , 63 P.3d 1065, 1074 (Ariz. App.

20032003) )

Due Process- ProceduralDue Process- ProceduralNew Cases New Cases

HARRIS v. COMMONWEALTH, 091177 (Va. 2-25-2010)HARRIS v. COMMONWEALTH, 091177 (Va. 2-25-2010)

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

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

STATE v. ROGERSSTATE v. ROGERS, I, I (Idaho Ct. App. 2006 (Idaho Ct. App. 2006))

Due process concerns are therefore sufficientlyDue process concerns are therefore sufficientlyallayed through the contract-based means allayed through the contract-based means commonly used to remedy breaches of commonly used to remedy breaches of

agreements agreements between the State and a defendant. [W]e do not between the State and a defendant. [W]e do not wish to dissuade a judge from following wish to dissuade a judge from following termination procedures in drug court akin to termination procedures in drug court akin to

those those employed in a probation revocation process. To employed in a probation revocation process. To

the contrary. . . we encourage courts to do so. the contrary. . . we encourage courts to do so.

State v. Rogers,- IIState v. Rogers,- II170 P. 3d 881170 P. 3d 881 (Idaho 2007) (Idaho 2007)

“As of January 2006, Idaho had forty-four drug courts in operation spread out over approximately twenty-three counties and at differing levels of the judicial system within some counties. From the above discussion, it must be assumed that each drug court in Idaho operates uniquely and, therefore, the analysis in this case might not be applicable to any other particular drug court program in the state. “

– Not even mention the contract analysis

– Key was diversionary program vs. post- plea


Batista v. State, Batista v. State, 951 951 So.3d 1008 (Fla. 41008 (Fla. 4thth Cir. Cir. 2007)2007)

Pre-plea/diversion/ deferred prosecution Pre-plea/diversion/ deferred prosecution termination—no right to a hearing—termination—no right to a hearing—statutory program and contract not statutory program and contract not provide for a hearing. provide for a hearing.

CfCf. . State v. Gorayeb, 510 So. 2d 1168(Fla 3State v. Gorayeb, 510 So. 2d 1168(Fla 3rdrd Cir Cir 1987)1987)

Due Process & Judicial Due Process & Judicial ImpartialityImpartiality

U.S. v. AyalaU.S. v. Ayala, 289 F.3d 16, 27 (1st Cir. , 289 F.3d 16, 27 (1st Cir. 2002) 2002)

Test: would the facts, as asserted, lead Test: would the facts, as asserted, lead an objective reasonable observer to an objective reasonable observer to question the judge’s impartiality? question the judge’s impartiality?


Alexander v. State,Alexander v. State, 48 P. 3d 110 (Okla. 2002) 48 P. 3d 110 (Okla. 2002)Requiring a Judge to act as Drug Court Requiring a Judge to act as Drug Court

team team member, evaluator, monitor and final member, evaluator, monitor and final adjudicator in a termination proceeding adjudicator in a termination proceeding

could could compromise the impartiality of that compromise the impartiality of that judge judge

If an application to terminate a Drug If an application to terminate a Drug Court Court participant is filed, and the participant is filed, and the defendant objects to defendant objects to the Drug Court the Drug Court team judge hearing the matter team judge hearing the matter by filing by filing a Motion to Recuse, the defendant’s a Motion to Recuse, the defendant’s application for recusal should be granted application for recusal should be granted


STATE v. BELYEA, 2009-038 (N.H. 5-20-STATE v. BELYEA, 2009-038 (N.H. 5-20-2010) 2010) Defendant failed to show that a reasonable person Defendant failed to show that a reasonable person would entertain significant concern about whether would entertain significant concern about whether Judge prejudged the facts or abandoned or Judge prejudged the facts or abandoned or compromised his impartiality because of his role compromised his impartiality because of his role on the drug court team. on the drug court team. FORD v. STATE (Ky. Appellate 2010)FORD v. STATE (Ky. Appellate 2010)

Having same judge preside over drug court Having same judge preside over drug court and revocation hearing is not a denial of right to and revocation hearing is not a denial of right to impartial hearing/due processimpartial hearing/due process

Due Process and Due Process and SanctionsSanctions Hearing vs. non hearingHearing vs. non hearing Will defendant Will defendant potentially sufferpotentially suffer a loss to a a loss to a

recognized liberty or property right under under the 14th Amendment. the 14th Amendment.

Gagnon v. Scarpelli, 411 U.S. 778, 781-782 (1973);Gagnon v. Scarpelli, 411 U.S. 778, 781-782 (1973);Wolff v. Wolff v. McDonnellMcDonnell, 418 U.S. 539, 557 (1974) overruled on other , 418 U.S. 539, 557 (1974) overruled on other grounds grounds Sandlin v. ConnerSandlin v. Conner, 515 U.S. 472 (1995) , 515 U.S. 472 (1995) In Re In Re MiguelMiguel, 63 P.3d 1065, 1074 (Ariz. App. , 63 P.3d 1065, 1074 (Ariz. App. 2003). (juvenile entitled to hearing)2003). (juvenile entitled to hearing). .

Due Process-Due Process-ProceduralProcedural

In Re Nolan WIn Re Nolan W, 203 P.3d 454 (Calif. , 203 P.3d 454 (Calif. 2009)2009)

Non-reunification and termination Non-reunification and termination

are the ultimate sanctions not jailare the ultimate sanctions not jail

Due Process - Substantive Due Process - Substantive SanctionsSanctions

State v. Rogers, State v. Rogers, 170 P. 3d 881170 P. 3d 881 (Idaho 2007) (Idaho 2007)

Intermediate sanctions imposed do not implicate Intermediate sanctions imposed do not implicate the same due process concerns (as probation the same due process concerns (as probation revocation) and continued use of informal hearings revocation) and continued use of informal hearings and sanctions need not meet the procedural and sanctions need not meet the procedural requirements (as probation revocations) requirements (as probation revocations)


NICELY v. COMMONWEALTH, 2007-CA-002109-MR(Ky. App. NICELY v. COMMONWEALTH, 2007-CA-002109-MR(Ky. App. 2009) 2009)

If a sentencing court chooses to find a If a sentencing court chooses to find a defendant defendant in contempt for violating in contempt for violating conditions of probation conditions of probation as opposed to revoking as opposed to revoking or modifying the conditions or modifying the conditions of probation, of probation, defendant must be afforded certain defendant must be afforded certain due due process rights, including a hearing. process rights, including a hearing.

Due Process -ProceduralDue Process -Procedural

IN RE INTEREST OF TYLER T., 279 Neb. 806 (2010)IN RE INTEREST OF TYLER T., 279 Neb. 806 (2010)

--We are not prepared to say that each and every actionWe are not prepared to say that each and every action taken in such a proceeding must be a matter of record. taken in such a proceeding must be a matter of record.

- (But) When an order affecting the terms of probation is- (But) When an order affecting the terms of probation is entered, the proceeding must be on the record. entered, the proceeding must be on the record.

- Where a liberty interest is implicated in problem-solving-- Where a liberty interest is implicated in problem-solving- court proceedings, an individual's due process rights court proceedings, an individual's due process rights must be respected. must be respected.

Equal protectionEqual protection Discretionary entry or exclusionDiscretionary entry or exclusion

Suspect class or fundamental right-strict scrutiny Semi-suspect class /liberty interest-intermediate scrutiny No suspect class--rational relationship to legitimate

governmental interest

State v. HarnerState v. Harner , 103 P. 3d 738 (Wash. 2005) , 103 P. 3d 738 (Wash. 2005) In Re MiguelIn Re Miguel, 63 P.3d 1065, 1074 (Ariz. App. 2003). , 63 P.3d 1065, 1074 (Ariz. App. 2003). Lomont v. StateLomont v. State,, 852 N.E.2d 1002 (Ind. App. 2006) 852 N.E.2d 1002 (Ind. App. 2006)

Equal Protection Equal Protection ************

It is not a It is not a denial of Equal denial of Equal Protection to refuse to Protection to refuse to admit defendant to drug admit defendant to drug courtcourt

State of New Jersey v. SAXON, (N.J Sup Appellate Div. March 23, 2010)State of New Jersey v. SAXON, (N.J Sup Appellate Div. March 23, 2010)

State of New York v FORKEY, April 8, 2010.State of New York v FORKEY, April 8, 2010.

PHILLIPS v. STATE, Court of Appeals of Mississippi. Jan. 12, 2010PHILLIPS v. STATE, Court of Appeals of Mississippi. Jan. 12, 2010

Equal ProtectionEqual Protection

EVANS v. STATE,EVANS v. STATE, 293 Ga. App. 293 Ga. App. 371 (2008) (Ga. App. 8/22/08) 371 (2008) (Ga. App. 8/22/08) – HIV positive defendant excluded HIV positive defendant excluded

from drug courtfrom drug court– equal protectionequal protection– RxRx– ADA--major life activityADA--major life activity

Misc. CasesMisc. Cases In Re Nolan WIn Re Nolan W, 203 P.3d 454 (Calif. 2009), 203 P.3d 454 (Calif. 2009) Non-reunification and termination are the Non-reunification and termination are the

ultimate sanctions not jailultimate sanctions not jail

Brown v. StateBrown v. State, ___ Md. ___ (Md. 5/19/09 ), ___ Md. ___ (Md. 5/19/09 )

Maryland Public Defender filed an action Maryland Public Defender filed an action attacking jurisdiction of Md. Courts to set attacking jurisdiction of Md. Courts to set up/operate a drug court program. In up/operate a drug court program. In addition, Brown’s appeal raised questions addition, Brown’s appeal raised questions about double jeopardy. Ct rejected these about double jeopardy. Ct rejected these arguments. arguments.

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Georgia State Drug Court Conference May 20, 2013 Hon. William Meyer (retired) Senior Judicial Fellow- National Drug Court Institute Mike Loeffler Senior