Prosecutors in Problem Solving Courts

Helen Harberts, MA, JDPorter93@msn.comProsecutor Dilemmas in Problem Solving CourtsRoll 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?3

4What do we know about problem solving courts?They workThere are ways to make them work betterThey work on a basic set of rules (10 Key Components, Guiding Principles of DWI Courts) They are research driven, and constantly improving.5Overview: Core CompetenciesGuiding Principles of DUI CourtsTen Key Components of Drug CourtsPsychopharmacology of addictionTargeting and AssessmentsTreatment strategiesPlaceboEngagementAssistive medicationsAssumption of co-occurring disordersComplex case management.Competent manualized treatment6Balance of concernsPrimary directive: public safetyOther concerns:Elected bossCareer advancementEthical concernsDid I mention public safety?Hug a thugNot my educational backgroundor interest.High RiskLow RiskHigh NeedsLow Needs Accountability Treatment Pro-social habilitation Adaptive habilitation300 hours of tx (combo) Treatment (Pro-social habilitation) Adaptive habilitation200 hours of tx (combo) AccountabilityNO TREATMENT! Pro-social habilitation (Adaptive habilitation)150 hours of criminal thinking Secondary prevention Diversion12-20 hours of edQUADRANT MODEL

FOCUS here for public safety8This is perhaps a better way of looking at the issues presented. Mix and match what the assessment tells you, then follow the directions. Example: see the left side? What is missing from the bottom left? TREATMENT. Why? Because they are not addicted! They choose to use, but they CAN choose. Thus, they dont need treatment. They need a different intervention. The best current model is the Hawaii HOPE Court. For them, no drug court. No low end, or bank caseload. They are high risk.but low needs. In other words, you make them worse.

The top left quadrant is high risk/high needs. Those folks are problem solving courts of various typed, by need. What about the rest of these folks? They are not all the same and to be effective, they cannot be treated the same by the Courts, probation, or treatment vendors. High Risk/High NeedsHigh 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 supervisionBUT, 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 communityFacts that are beyond office toleranceYou are the gatekeeper and the quality control monitorWho 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 sameLearn 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 concernsCant use information learned in drug courtIn 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 scaredThey 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.15Legal IssuesAttorney 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.

16What to watch out for:Confidentiality LawsNOTE: Montana v. Plouffe 7/15/14 2014 MT 183Ex Parte CommunicationsWaiver for Court with caution & watch out Counsel!Judicial Fraternization/ImpartialityBrief appearances only-then leaveRole of Defense CounselLike sprinting through a mine field

17First Amendment: ReligionEx: NO mandatory AA/NA without alternatives being offered as well.This is settled law. It does not matter that this is a voluntary programThis is settled law. Adapt.Civil liability may attach for intentional violation.

Life RingSmart Recovery18Another 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.

19First AmendmentFreedom 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.

20Fourth AmendmentYou 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.

21SearchPost conviction: 4th 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.22Other 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.

23Due Process ConcernsJuvenile 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)

24Due Process concernsTermination is LIKE a VOP hearing in most casesWatch your record! Incentives and Sanctions should be noted. Contract analysis does not settle the issueStates are divided on hearings for non probation programs. Best practice: follow the VOP procedure.

25Question: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.

26Consider thisIs 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?27Remember 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?

28Equal 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.29Other 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.

30Termination & SentencingSplit of authority.Best practice, if they object, get another Judge.

31Best Practice:lawyers must be involvedThis is how we protect the program, protect the clients, and protect the Constitution.It turns out that lawyers also improve outcomes!!!

32What does a prosecutor do in these problem solving courts???Gate keeper/ screener/ referral sourceVeto when public safety is threatened beyond tolerable limits.Monitor public safety concernsMonitor program fidelityMonitor and encourage program improvements as informed by research.PROTECT DUE PROCESS33What does a prosecutor do in these problem solving courts???Coordinate efforts with law enforcementCommunity support and outreachBully pulpitBalance the power of the JudgeAct as a support and cheerleader for successSolicit fundsBecome a grant applicantMake sure stuff like the Montana case does not happen! 34What does a prosecutor do in these problem solving courts???Participate in incentivesClear away dirty laundry of addictionFind legal solutions to difficult problemsProvide political cover for the teamSMILE !!! (Who has power in the Courtroom?)35What 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 focusProtect due process and the Constitution.In order to do these things, you must fully understand the research and principles that underlie drug court.

36What will you get out of a tour in drug court?Job satisfactionA better understanding of how to get success in criminal justiceDeeper levels of knowledge in unique areas of practice.In short, you will be a much better prosecutor for whatever else you choose to do.37Who 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?38This requiresunderstanding:the lawthe HOLES in the lawthe modelthe disease.What worksHow to help treatment

what can undo good worksanctions and incentives to shape behaviorHow to help supervision39What 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?40How 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?41PUNISHMENT!!!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?42What about the simple facts of addiction?Addiction is a disease of the brainMemory problemsDepression, poor decision makingCollateral illnessSlower recovery times for some drugsPoor life skills and associatesThe length of time for treatment to work.

SHOULD THAT GUIDE YOUR RESPONSE?43So, 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?44What can attorneys do?Lots! We can improve outcomes , or kill them45How?PlaceboMotivational interviewingEngagementSmoothing out legal delaysExpediting responses to behaviorPresenting a unified front against the disease.46This is what it looks like when you do it following the research.

47Staffing all cases before court-one message & one decision delivered by Judge

48Motivation, memory, engagement-public defender engagement

49Public Defender teaching in the hallways of the courthouse before court

50DA training & engaging before Court-treatment team and defense bar present

51What makes a drug court?Following behavior modification principles that use incentives and sanctions to address behavior and to support change.

Disappointment is a sanction!

52Understanding addiction and the psychopharmacology of drugs. Addiction is truly a disease of the brain. It is treatable.

53So 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?54Reality CheckCounsel can be a great boon to drug courtsCounsel can be a great impedimentOur 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.55Attorney roles:Protect the constitutionMaximize outcomes

Facilitate the treatment team and the plan when it meets #1 and #2Only counsel can find the legal way to get treatment and probations goals implemented.56Monitor 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 helpTell you all sorts of stuffGive you updates on their life

57Back the ethical problems of your defense attorneySolve problems together-they have a tough line to walk.Monitor the due process issues of the Court:NA/AAHearings 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.

58So 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 chargesMakes offer to defense for pleaTakes case through court hearingsLitigation: motion to suppress, preliminary hearings, trial, etc.Sentencing hearingsLitigate, litigate, litigateAlmost entirely an individual effort.59What are we trained to do as lawyers? fight, fight, fightBattle the defenseArgue before the CourtPursue convictionsAdvocate for our clients-the publicAs a prosecutor, protect public safetyProtect and honor victimsProtect the ConstitutionMax them outPunish for crimesDo justice for everyone as much as possible60What is the difference with problem solving courts?Litigation overTEAM procedure. I become just one of many.Adversarial environment is moved from Court to meeting roomsProsecutor 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:DUIDVMental HealthDrug Court61What is the difference with problem solving courts?Completely different use for same skillsResearch based responses to criminal justiceBetter outcomesPublic safetyCompletely different experience for DASuccess is different but commonEthical challenges aboundImproves your skill setMakes you a better trial attorney

62The disease is the enemyWe all fight to help force the disease into remission, then recovery.We use any incentive to keep folks coming

63Addiction is a disease of the brain

64Who wins when we fight and dont follow research?The disease65