helen harberts, ma, jd [email protected] prosecutor dilemmas in problem solving courts

HELEN HARBERTS, MA, JD [email protected] Prosecutor Dilemmas in Problem Solving Courts

Roll Call! Who is in the room? How many years in problem solving assignment? Sole assignment? What else do you do? Are you the sole DA assigned to problem solving courts? Have you attended training?

Why would we do something different than we always have? Do you think what traditional responses to addiction based offenses work as well as you hoped they would? Do you think the public is pleased with the standard criminal justice outcomes? Are you pleased with outcomes? What could be better?

What do we know about problem solving courts? They work There are ways to make them work better They work on a basic set of rules (10 Key Components, Guiding Principles of DWI Courts) They are research driven, and constantly improving.

Overview: Core Competencies Guiding Principles of DUI Courts Ten Key Components of Drug Courts Psychopharmacology of addiction Targeting and Assessments Treatment strategies Placebo Engagement Assistive medications Assumption of co-occurring disorders Complex case management. Competent manualized treatment

Balance of concerns Primary directive: public safety Other concerns: Elected boss Career advancement Ethical concerns Did I mention public safety? Hug a thug Not my educational backgroundor interest.

High Risk Low Risk HighNeeds LowNeeds Accountability Treatment Pro-social habilitation Adaptive habilitation 300 hours of tx (combo) Treatment (Pro-social habilitation) Adaptive habilitation 200 hours of tx (combo) Accountability NO TREATMENT! Pro-social habilitation (Adaptive habilitation) 150 hours of criminal thinking Secondary prevention Diversion 12-20 hours of ed QUADRANT MODEL FOCUS here for public safety

High Risk/High Needs High risk??? HIGH RISK is a term of art. It DOES NOT mean dangerous to public safety. It means that the person cannot succeed on a grant of probation without help. It means high risk to fail standard community supervision BUT, you must watch for public safety issues and issues related to your office within this group.

Some gotta go. The clear majority of the high risk folks will be a good public safety risk if placed in a problem solving court, NOT on a standard grant of probation, or parole. Some just have to go to prison, but plan now for re- entry because they will be back. Facts that shock the community Facts that are beyond office tolerance

You are the gatekeeper and the quality control monitor Who has the power in the room? Learn about good treatment, what it is, and what you should be seeing in your Court. If you dont see it, begin asking. Learn about what is required for this population to succeed and then pursue it. Learn all the alphabet. MET, MRT, MI TBI/PTSD/trauma responsive treatment, CBT, etc. Hold the team accountable for providing these services, ask questions, and pursue answers.

Understand the complexity Learn what needs to be done, and monitor same Learn what works to change behaviorit isnt what you think. Jail? Nope. Doesnt work. Listen to your treatment professionals on their matters of expertise. Your expertise is the law. Be very patient. This is a fatal disease of the brain. Think: stroke patient.

Monitor due process! Prosecutors have a different ethical mandate than the defense! We are required to see that due process is followed and justice is done. Do NOT allow short cuts with the law. Cover your record, and make certain both good and bed news is on the record for appeal.

Ethical concerns Cant use information learned in drug court In office (new files, etc.) With cops (no intel) Other cases (civil) They all want to talk to you without counsel present (red alert) They call you for help when they are scared They call to thank you.

First things first: These are court programs, and the rights which attach to court proceedings are present. It is the job of counsel, especially the prosecutor, to see to it that due process is followed, and that justice is done. For prosecutors, it is an ethical mandate.

Legal Issues Attorney participation is critical-both for outcomes, and to protect due process. Ethical concerns of counsel (or others) are not gone because it is a DUI or Drug Court. Honor the boundaries. Due process is not suspended because we all work together.

What to watch out for: Confidentiality Laws NOTE: Montana v. Plouffe 7/15/14 2014 MT 183 Ex Parte Communications Waiver for Court with caution & watch out Counsel! Judicial Fraternization/Impartiality Brief appearances only-then leave Role of Defense Counsel Like sprinting through a mine field

First Amendment: Religion Ex: NO mandatory AA/NA without alternatives being offered as well. This is settled law. It does not matter that this is a voluntary program This is settled law. Adapt. Civil liability may attach for intentional violation. Life Ring Smart Recovery

Another First Amendment issue: Area and place restrictions: Ex: Do not enter any establishment where . Valid if narrowly drawn and related to rehabilitation needs of the offender. Must have allowances for compelling needs of probationer such as child visitation. Should be reasonable in size and duration.

First Amendment Freedom of association Ex: Do not associate with any person on probation or parole, or any person who uses drugs, except in the context of treatment Valid if narrowly drawn and related to rehabilitation needs of the offender.

Fourth Amendment You are subject to a search of your person, place of residence, vehicle, or any item under your dominion and control any time, day or night, with or without probable cause, or your then and there presence, by any peace or probation officer. You are subject to testing for the presence of banned items and controlled substances for the duration of your participation in the program.

Search Post conviction: 4 th Amendment waivers are valid under Federal law-reduced expectation of privacy Sampson (2006). Pre conviction and non-conviction cases, must be individualized findings to apply search on a case by case basis (also true on some local state cases post conviction) Make it a program rule.

Other bans: Alcohol- OK: People v. Beal (CA 1997) Articulate why medical marijuana cannot be used on record, and place as a term of probation. (interferes with cognition) Articulate why folks cannot consume any item not for human consumption, poppy seeds, or other items that will mess up drug testing.

Due Process Concerns Juvenile have the same rights as adults regarding due process, except for jury. What process is due when defendants potentially suffer a loss to a recognized liberty or property right? Program violation: probation-full panoply of rights apply. (PC, counsel, notice, appear, cross exam and witnesses, magistrate, findings)

Due Process concerns Termination is LIKE a VOP hearing in most cases Watch your record! Incentives and Sanctions should be noted. Contract analysis does not settle the issue States are divided on hearings for non probation programs. Best practice: follow the VOP procedure.

Question: Is a sanction a potential loss of a recognized liberty or property right? Does it invoke the same level of due process as a VOP? Certainly if you are a post adjudication probation model. Probably if you are not. Best practice: do it. Adds about 45 seconds to the colloquy.

Consider this Is really about the factual basis or about the factors in mitigation and sanctions? What would you prefer if it was you in the clients shoes? Full due process?

Remember your record! You need to document not just the sanctions but the good reviews and incentives in some manner for potential review. If someone questions what happened in a couple of years, how will they know why you did, what you did?

Equal Protection issues: Poverty-you cannot deny access to indigents. Admission based on ability to pay is a denial of equal protection. Discretionary admission criteria must not violate due process (suspect class, semi-suspect class) DA may be gatekeeper for admission, and unless constitutional violation, no right to hearing to challenge rejection.

Other due process issues: Drug testing: must meet legal standards for adjudications. Not all tests are up to legal standards. Get confirmation via GC/MS if there is a question or challenge. If they pass you pay, if they flunk they payand they get sanctioned for lying.

Termination & Sentencing Split of authority. Best practice, if they object, get another Judge.

Best Practice: lawyers must be involved This is how we protect the program, protect the clients, and protect the Constitution. It turns out that lawyers also improve outcomes!!!

What does a prosecutor do in these problem solving courts??? Gate keeper/ screener/ referral source Veto when public safety is threatened beyond tolerable limits. Monitor public safety concerns Monitor program fidelity Monitor and encourage program improvements as informed by research. PROTECT DUE PROCESS

What does a prosecutor do in these problem solving courts??? Coordinate efforts with law enforcement Community support and outreach Bully pulpit Balance the power of the Judge Act as a support and cheerleader for success Solicit funds Become a grant applicant Make sure stuff like the Montana case does not happen!

What does a prosecutor do in these problem solving courts??? Participate in incentives Clear away dirty laundry of addiction Find legal solutions to difficult problems Provide political cover for the team SMILE !!! (Who has power in the Courtroom?)

What does a prosecutor do in these problem solving courts??? Use jury trial skills to persuade a different audience: addicted offenders. Support participant progress with all of your power without losing boundaries. Provide consistency and focus Protect due process and the Constitution. In order to do these things, you must fully understand the research and principles that underlie drug court.

What will you get out of a tour in drug court? Job satisfaction A better understanding of how to get success in criminal justice Deeper levels of knowledge in unique areas of practice. In short, you will be a much better prosecutor for whatever else you choose to do.

Who should be in our courts? What is the goal? What is the issue? Who is the group most likely to produce significant drops in crime if they get treatment? Who needs tighter supervision to protect with public safety? Decision tipping point: when does incapacitation become more important than behavior modification?

This requiresunderstanding: the law the HOLES in the law the model the disease. What works How to help treatment what can undo good work sanctions and incentives to shape behavior How to help supervision

What is the goal? What are the proximal goals? What are the distal goals? What is the big goal? What do you have to know/understand to get there?

How do you balance science and the law? Incentives work better than sanctions-but sanctions make the incentives workhuh? How does the DA help with this concept? How does the Defense help? What can goof it up? Excessive lawyering? Immediacy and reliable detection are critical? How can lawyers goof this up?

PUNISHMENT!!! Actually, no-it is not the severity but the certainty of getting caught, and sanctioned that is most important for behavior modification. 24-48 hours is often more significant than a longer sentence. Why?

What about the simple facts of addiction? Addiction is a disease of the brain Memory problems Depression, poor decision making Collateral illness Slower recovery times for some drugs Poor life skills and associates The length of time for treatment to work. SHOULD THAT GUIDE YOUR RESPONSE?

So, when folks are just beginning.. What are the proximal goals? What is reasonable to expect? What are the distal goals? When is it reasonable to expect behavior that is heading toward distal goals? What about later on in program? When does the change kick in? It depends, right?

What can attorneys do? Lots! We can improve outcomes, or kill them

How? Placebo Motivational interviewing Engagement Smoothing out legal delays Expediting responses to behavior Presenting a unified front against the disease.

This is what it looks like when you do it following the research.

Staffing all cases before court-one message & one decision delivered by Judge

Motivation, memory, engagement-public defender engagement

Public Defender teaching in the hallways of the courthouse before court

DA training & engaging before Court- treatment team and defense bar present

What makes a drug court? Following behavior modification principles that use incentives and sanctions to address behavior and to support change. Disappointment is a sanction!

Understanding addiction and the psychopharmacology of drugs. Addiction is truly a disease of the brain. It is treatable.

So how much sense does three strikes make? What does the research show us about the brain and recovery? How can we motivate the necessary change, and maximize outcomes while protecting the public safety?

Reality Check Counsel can be a great boon to drug courts Counsel can be a great impediment Our role is NOT limited to the strict application of due process. Our role is to protect the Constitution and maximize outcomes. A Pyrrhic Victory is no victory. Applying this model to lightweights is no benefit to the public.

Attorney roles: 1. Protect the constitution 2. Maximize outcomes Facilitate the treatment team and the plan when it meets #1 and #2 Only counsel can find the legal way to get treatment and probations goals implemented.

Monitor those ethics issues! Aside from confidentiality concerns, the potential for ex parte contact is very high in a drug court setting. Strange things happen in Drug Court- Defendants call you for help Tell you all sorts of stuff Give you updates on their life

Back the ethical problems of your defense attorney Solve problems together-they have a tough line to walk. Monitor the due process issues of the Court: NA/AA Hearings for violations with standards of proof (or full admissions) Watch your appellate record to be sure it reflects incentives and sanctions. Monitor the drug testing to be sure it meets Frye/Daubert standards.

So what does a prosecutor do normally? Reviews and approves search warrants Advises on investigations as needed. Reviews crime reports, analyzes evidence, compares the law and files charges Makes offer to defense for plea Takes case through court hearings Litigation: motion to suppress, preliminary hearings, trial, etc. Sentencing hearings Litigate, litigate, litigate Almost entirely an individual effort.

What are we trained to do as lawyers? fight, fight, fight Battle the defense Argue before the Court Pursue convictions Advocate for our clients-the public As a prosecutor, protect public safety Protect and honor victims Protect the Constitution Max them out Punish for crimes Do justice for everyone as much as possible

What is the difference with problem solving courts? Litigation over TEAM procedure. I become just one of many. Adversarial environment is moved from Court to meeting rooms Prosecutor role moves to advocating in a different forum-engaging sick people to stay in treatment and to understand their disease. Prosecutor uses skills to solve problems on a different level. Prosecutor uses their power to make the system work for the client. Prosecutor maintains public safety role. DIFFERENT RESPONSES FOR DIFFERENT COURTS: DUI DV Mental Health Drug Court

What is the difference with problem solving courts? Completely different use for same skills Research based responses to criminal justice Better outcomes Public safety Completely different experience for DA Success is different but common Ethical challenges abound Improves your skill set Makes you a better trial attorney

The disease is the enemy We all fight to help force the disease into remission, then recovery. We use any incentive to keep folks coming

Addiction is a disease of the brain

Who wins when we fight and dont follow research? THE DISEASE

helen harberts, ma, jd [email protected] prosecutor dilemmas in problem solving courts

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