Tuesday, October 31, 2006

Drug Courts, Part II – Policy questions

While waiting for the ghosts and goblins to appear, let's get back to the drug court discussion.

The previous discussion focused on the effectiveness of Drug Courts, and found a lot of reputable evidence that they are effective. However, one can be effective in enacting a policy that has misplaced priorities. So we need to examine the policy.

I promised on Oct. 27 to take up the policy issue soon, in particular the arguments that
- Drug courts diminish the advocacy role of defense counsel.
- Judges are called to be treatment leaders, yet lack the training and credentials to oversee treatment administration.

Central to drug courts is the understanding that involuntary treatment can be effective and that thousands of people that have gone through treatment in drug courts would not have sought out nor had access to treatment otherwise. It is coercion. It requires both judges and defense counsel to play different roles, as part of a probnlem-solving team.

Thus, questions about ethics and advocacy arise. The National Center for State Courts (NCSC) has an excellent resource here providing some useful discussion of ethics. I quote from it extensively below. Another excellent resource is the Center for Court Innovation here.

Defense counsel
Regarding the role of defense counsel, the NCSC summarizes the problems as:
“The lawyer’s goal [in drug court] is not to win or to intimidate, but to do what is therapeutically best for the client. This goal seems in opposition to the lawyer’s mandate of zealous advocacy…. [despite] ABA Model Rule 2.1 [which] allows attorneys to exercise independent professional judgment and, if relevant, provide extralegal advice.”

Issues that may arise for defense counsel include how to balance one’s duties on the problem-solving team (that includes the prosecution and judge) jibe with one’s duty to the client, how to deal with a client that “snitches” on others in program, how to handle information from the defendant that relates to acts while in the program (problematic as attorney/client privilege does not extend to future crimes), and shifts in the burden of proof.

The NCSC advises that defense counsel fully advise client before opting for a problem-solving court. Defendants should know their options, program requirements, and their
legal rights. It also argues that defense counsel stay involved in the development of problem-solving courts to make the defense bar’s concerns heard.

I have not been a defense counsel, and not interacted with many in this setting. These do seem like tough issues though. I hope some of you out there will share your stories.

Again relying on the NCSC report, the problem-solving model changes the judge’s traditional role to “powerful motivator, confessor, task master, cheerleader, and mentor.” Many judges demonstrate enthusiasm for this role. The NSCS rhetorically asks how such processes can be reconciled with existing ethical duties of judges.

Potential problems for judges may include increased levels of community involvement, ex parte communication with defendants, the need to praise or sanction the defendant must be balanced with the judge’s commitment to impartiality, problem-solving courts probably rely coercive intervention more than traditional courts, and certainly rely on a team approach more than traditional courts.

“Some possible solutions to judicial ethics issues include:
· Use the Memorandum of Understanding (MOU) from start of process
· Have mechanism to resolve issues before they arise
· Rely on and be familiar with resources for judges (e.g., canons, presiding judge, ethics
hotline, etc.) to ensure no violations,” etc.

Judges as Treatment Administrators
A small fraction of today’s offender population is served by drug courts, despite widespread substance abuse dependency issues and treatment needs. A recent study of jail inmates found that in 2002 -
68% of jail inmates reported symptoms in the year before their admission to jail that met substance dependence or abuse criteria.
16% of convicted jail inmates said that they committed their offense to get money for drugs.

Prison and other correctional populations are unlikely to be very different from jails. Drug courts are resource intensive and serve a small fraction of the correctional population’s demonstrated need. Can we afford to expand this problem-solving approach even if we deem it effective AND we conclude it does not sacrifice other features of our justice system?

Well, maybe we can do it on the cheap, you say? To what extent can or should the problem-solving techniques used in drug courts be extended to conventional courts? Certain features can be and are transported, such as direct judicial questioning of the defendants and problem-solving court orders. Some judges use split sentences, a period of incarceration to be followed by probation, as a means of ongoing supervision. All the above are problem-solving approaches in a more conventional setting.

How about the issue of treatment and social services? To me this gets to the heart of the second issue raised on October 27, the question of whether judges are the best treatment administrators. Is it good correctional practice to have judges ordering detailed services from corrections officials, often without risk or needs assessment that are becoming a standard part of correctional supervision? Aren't correctional administrators better placed to monitor both availabilty and administration of therapy and programs? To me, oftentimes, the answer is yes. We’d like to hear from you out there with direct experience on this point.

Also it raises the question of whether judges can leverage social services outside a drug court context. Is the judge going to order social service providers to place defendants at the head of the line for scarce public services? Ahead of the rest of the community? Are probation departments expected to cover the costs?

These are all tough ethical issues. Please give us some feedback from your experiences.

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