America’s Problem-Solving Courts

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America’s Problem-Solving Courts:The Criminal Costs of Treatment and the Case for ReformN A T I O N A L A SS O C I A T I O N O F C RI MI N A L D E F E N S E L A W Y E RSSeptember 2009

Supported in part by grants from the OpenSociety Institute and the Ford Foundation.C O P Y R I G H T 2 0 0 9 N AT I O N A L A S S O C I A T I O N O F C R I M I N A L D E F E N S E L A W Y E R SThis report is subject to a Creative Commons Attribution-Noncommercial-NonderivativeWork license (see http://www.creativecommons.org). It may be reproduced, provided thatno charge is imposed, and the National Association of Criminal Defense Lawyers isacknowledged as the original publisher and the copyright holder. For any other form ofreproduction, please contact NACDL for permission.N A T IO N A L A SS O CIA T I O N O FC R I M I N A L D EF E NS E L A W YE R S1660 L Street NW, 12th FloorWashington, DC 20036Phone: 202-872-8600; Fax: 202-872-8690http://www.nacdl.org

America’s Problem-Solving Courts:The Criminal Costs of Treatment and the Case for ReformCYNTHIA HUJAR ORRPresident, NACDLSan Antonio, TXJOHN WESLEY HALLImmediate Past President, NACDLLittle Rock, ARNORMAN L. REIMERExecutive Director, NACDLWashington, DCEDWARD A. MALLETTPresident, FCJHouston, TXKYLE O’DOWDAssociate Executive Director For Policy, NACDLWashington, DCANGELYN C. FRAZERState Legislative Affairs Director, NACDLWashington, DCNACDL Problem-Solving Courts Task Force MembersRICK JONESMARVIN E. SCHECHTERJAY CLARKCo-ChairCo-ChairCo-ChairNew York, NYNew York, NYCincinnati, OHADELE BERNHARDELIZABETH KELLEYGAIL SHIFMANVICKI YOUNGWhite Plains, NYCleveland, OHSan Francisco, CASan Francisco, CAReporterJOEL M. SCHUMMIndiana University School of Law

TABLE OF CONTENTSABOUT THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS . . .4ABOUT THE FOUNDATION FOR CRIMINAL JUSTICE . . . . . . . . . . . . . . . . . . . .5ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .142Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14Scope of This Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15History and Evolution of Drug Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16The First Drug Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16Features of Modern Drug Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16DECRIMINALIZATION: THE SMART, FAIR,ECONOMICAL, AND EFFECTIVE ALTERNATIVE . . . . . . . . . . . . . . . . . . . . . . . .20DRUG COURTS IN ACTION: OPERATION,ISSUES, AND PROBLEMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22Criteria and Eligibility for Admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22Recommendations — Criteria and Eligibility for Admission . . . . . . . . . . . .23Timing of Admission and Discovery Issues . . . . . . . . . . . . . . . . . . . . . . . . .24Recommendations — Timing of Admission and Discovery Issues . . . . . . .25The Judicial Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27Recommendations — The Judicial Role . . . . . . . . . . . . . . . . . . . . . . . . . .28The High Cost of Failure: Paying a Price for Trying . . . . . . . . . . . . . . . . . . .29Recommendations — The High Cost of Failure . . . . . . . . . . . . . . . . . . . . .29ROLE OF DEFENSE COUNSEL AND ETHICAL CONCERNS . . . . . . . . . . . . . . .30Entry Into Drug Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30Legal Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30Diagnosing and Counseling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31Staffings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31The Importance of Showing Up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31Pursuing a Client’s Stated Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32Maintaining Client Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34The Exclusion of Private Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34Caseload Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35America’s Problem-Solving Courts:

Court Appearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36Preparing Clients for Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37Counsel in Name Only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37Breakdown of the Attorney-Client Relationship and theImportance of Preserving the Role of Counsel as an Advocate . . . . . . . . .37Best Practices for All Defense Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . .38Best Practices for Retained Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39Recommendations — Role of Defense Counsel and Ethical Concerns . . .39CONCERNS ABOUT MINORITIES, THE POOR, AND IMMIGRANTS . . . . . . . .423Widening the Net . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42Racial Disparity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42The Poor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43Immigrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43Recommendations — Concerns About Minorities,The Poor, and Immigrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44MISALLOCATION OF PUBLIC RESOURCES . . . . . . . . . . . . . . . . . . . . . . . . . .46Recommendations — Misallocation of Public Resources . . . . . . . . . . . . .47MENTAL HEALTH COURTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50Entry and Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50Assessment of Mental Health Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51Integrated Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51Reduced Recidivism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51Due Process Rights Often Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51Recommendations — Mental Health Courts . . . . . . . . . . . . . . . . . . . . . . .51CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53SUMMARY OF RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54APPENDIX A PROBLEM-SOLVING COURT WITNESS LIST . . . . . . . . . . . . . . .56APPENDIX B LAYPERSON’S DEFINITIONS OF KEY TERMS . . . . . . . . . . . . . . .59ENDNOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .61The Criminal Costs of Treatment and the Case for ReformTable of Contents

ABOUT THE NATIONAL ASSOCIATIONOF CRIMINAL DEFENSE LAWYERST4he National Association of Criminal Defense Lawyers (NACDL) is the preeminent organization in the United States advancing the goal of the criminal defensebar to ensure justice and due process for persons charged with a crime or wrongdoing. NACDL’s core mission is to: Ensure justice and due process for persons accusedof crime Foster the integrity, independence and expertise of the criminal defense profession Promote the proper and fair administration of criminal justice.Founded in 1958, NACDL has a rich history of promoting education and reform throughsteadfast support of America’s criminal defense bar, amicus advocacy, and myriad projects designed to safeguard due process rights and promote a rational and humane criminal justice system. NACDL’s 11,000 direct members — and more than 90 state, localand international affiliates with an additional 40,000 members — include private criminal defense lawyers, public defenders, active U.S. military defense counsel, and lawprofessors committed to preserving fairness in America’s criminal justice system. Representing thousands of criminal defense attorneys who know firsthand the inadequaciesof the current system, NACDL is recognized domestically and internationally for its expertise on criminal justice policies and best practices.The research and publication of this report was made possible through support of individual donors and foundations to the Foundation for Criminal Justice. This report wouldnot have been possible without the specific support of the Ford Foundation and the OpenSociety Institute.For more information contact:T H E N A TIO NA L A SSO C IA TIO N O FC R I M I N A L D EF E NS E L A W YE R S1660 L Street NW, 12th FloorWashington, DC 20036202-872-8600This publication is available online atwww.nacdl.org/drugcourtsAmerica’s Problem-Solving Courts:

ABOUT THE FOUNDATIONFOR CRIMINAL JUSTICEThe Foundation for Criminal Justice (FCJ) is organized to preserve and promote the core values of America’s justice system guaranteed by the Constitution — among them due process, freedom from unreasonable search andseizure, fair sentencing, and assistance of effective counsel. The FCJ pursues thisgoal by seeking grants and supporting programs to educate the public and the legalprofession to the role of these rights and values in a free society and assist in theirpreservation throughout the United States and abroad.The Foundation is incorporated in the District of Columbia as a non-profit, 501(c)(3)corporation. All contributions to the Foundation are tax deductible. The affairs of theFoundation are managed by a Board of Trustees that possesses and exercises allpowers granted to the Foundation under the DC Non-Profit Foundation Act, theFoundation’s own Articles of Incorporation, and its Bylaws.For more information contact:F O U ND A TIO NFORC R IM INA L J U STIC E1660 L Street NW, 12th FloorWashington, DC 20036202-872-8600The Criminal Costs of Treatment and the Case for Reform55

ACKNOWLEDGEMENTSFirst and foremost, NACDL thanks the more than 130 witnesses who testified at thetask force hearings. They generously gave their time, many traveling great distances and at their own expense. Regardless of their point of view or their role inthe criminal justice system, each evinced a passion for justice and dedication to pursuitof effective criminal justice policies.6Many others contributed to this project in myriad ways. NACDL gratefully acknowledges the following:Professor Tony Thompson, for recommending NYU law students Edget Betru and JorgeCastillo, who read and digested the New York hearing transcripts.Professor Bruce Green, of Fordham University School of Law for sponsoring law students Edmundo Marquez, Justin Bernstein and Annie Chen, to spend a semester indexing transcripts and conducting research as part of the Public Interest Lawyering Seminar.Personnel from Mayer Brown Law Firm, including attorneys Matthew Ingber, Partner,and Marc R. Kadish, Director of Pro Bono Activities / Litigation Training, for providingconference facilities in the New York office for task force meetings; and staff membersTracy Clark, Charles Kinyeti, Ernestine Tolbert, and Roberta Wilkins, who provided logistical support at the office.Manny Vargas, attorney and immigration specialist, for providing a synopsis of the immigrant experience in Problem-Solving Courts.Gakia Gray, assistant to Rick Jones, for her assistance in scheduling task force meetingsand conference calls.Matt Ehinger, a 2009 graduate of the Indiana University School of Law, for invaluableresearch and editorial assistance throughout the drafting of the report.Geeta Sundrani, and Hudson Reporting and Video Inc., for transcription services.The Carlton Fields law firm and Mark Rankin, member of the firm and NACDL BoardMember, for providing facilities for the Miami hearings.E. Gerry Morris, University of Texas Law School Professor and NACDL Board Member, for providing facilities at the University of Texas for the Austin hearings; the University of Texas Special Events and Media Services Department for providing logisticalsupport; and Judge Larry Gist, Representative of the Texas Bar Association, for donating the refreshments at those hearings.America’s Problem-Solving Courts:

Gerald Lippert, Associate Executive Director forPrograms, for videotaping the hearings in Washington, D.C., and the opening segment of the hearing summary.Doug Reale, Education Assistant, for editing andproducing the video summary.Malia Brink, Counsel for Special Projects; QuintinChatman, Editor of The Champion; Jack King, Director of Public Affairs & Communications; andIvan Dominguez, Assistant Director of Public Affairs & Communications for reading and editingthe report.Cathy Zlomek, Art Director, and Ericka Mills,Graphic Designer, for the design of the report.Alison Sterling, Manager for Information Services for updating the Web site link and establishing the report listserv.Patrick Veasy, National Affairs Assistant for maintaining the listserv database and updating the report Web site.Colleen Garlick, Boston University undergraduate intern, for reviewing countless hours of testimony for the hearing video summary.Susana Inda, UC Merced undergraduate intern forreviewing the report and providing general assistance during the final stages.NACDL President Cynthia Hujar Orr and PastPresidents Martin S. Pinales, Carmen D. Hernandez, and John Wesley Hall, for their vision andsteadfast commitment; FCJ President Edward A.Mallett and the Trustees of the foundation for theirsupport, without which this report would not havebeen possible.Finally, with everlasting gratitude, we remember agreat champion of liberty, the late Robert J.Hooker. As a member of NACDL’s Board of Directors, Bob was an early and staunch supporterof this project. He testified with eloquence andpassion at the Tucson hearings, and then, just afew weeks later, died in a tragic automobile accident. His dedication to the representation of theaccused, and his commitment to reform the criminal justice system, are an enduring inspiration forthe legal profession and society.The Criminal Costs of Treatment and the Case for ReformAcknowledgements7

PREFACEI8n June 2007, at NACDL’s annual leadership planning meeting, the subject of problem-solving courts arose. At issue was a fundamental question: are they a goodthing for the accused and the criminal justice system? Criminal defense lawyersare, by the nature of their work, a strong-willed group. But on core principles of criminal justice, differences in perspective are often slight and highly nuanced. When thequestion about problem-solving courts was considered, however, heated disagreementwas the order of the day. Some thought they are a wonderful advancement. Otherswere convinced that they are destroying the adversarial system, with the eviscerationof fundamental constitutional protections the collateral damage in that swath of destruction. Still others were ambivalent.Peeling beneath the surface of these divergent views, it became clear that the criminal defense practitioner’s perspective on the emerging phenomenon known as problem-solving courts hinges on how the court operates, the terms of participation, andthe ultimate consequences of success or failure. And as the dozen or so defenselawyers from around the country shared their experiences, one immutable fact wasclear: virtually every problem-solving court is different. Even within the same stateor subdivision, the rules, the practices and the protections for the accused are ad hoc,and sometimes are irrational. To the extent that these courts offer some alternative todraconian penalties, no defense lawyer wants to shut off this safety valve. Where,however, the price of admission is a waiver of virtually all rights, and that the consequences of failure may be worse than never pursuing the problem-solving approach,responsible advocates cringe at the Hobson’s choice they must present to their clients.Somehow, within 18 years after the founding of the first drug court in Miami in 1989,these courts had proliferated. And they did so largely without institutional input fromthe nation’s criminal defense bar.Criminal defense is inherently a solitary enterprise, focusing on single-minded representation of individual clients in discrete cases. Most criminal justice “reforms” emanate from the prosecution and law enforcement, usually in combination with judicialadministrators. The defense bar is seldom at the table, and even when a defense lawyeris part of the planning process, there is almost never a mechanism for systemic inputfrom the defense. Thus, problem-solving courts swept the nation with the defense barlargely on the sidelines, notwithstanding the profound implications of their impact ondefense practice.NACDL’s leadership resolved at that June 2007 meeting that the organized criminaldefense bar could no longer bury its head in the sand and pretend that the problemsolving movement was some fringe or transient development. Rather, the time hadcome for the third essential leg of the criminal justice system to join with the judici-America’s Problem-Solving Courts:

ary and the prosecution in understanding andevaluating the efficacy of the problem-solvingapproach. With strong support from NACDL’sBoard of Directors and initial seed money fromthe Foundation for Criminal Justice, a TaskForce on Problem-Solving Courts was createdto assess the impact of these courts on fundamental rights, to make findings regarding practices in them and to develop recommendationsfor ensuring that they meet constitutional standards of fairness and due process.The effort was led by seven outstanding criminaldefense lawyers from across the country, embodying an array of practice settings: AdeleBernhard, Jay Clark, Rick Jones, Elizabeth Kelley, Marvin Schechter, Gail Shifman, and VickiYoung. Soon after they began to delve into theresearch, it became evident that the initial studyplan was inadequate. There was simply toomuch to learn, and variations in practice weretoo widespread. With additional support fromthe Ford Foundation, the Open Society Institute,and the Foundation for Criminal Justice, a farmore ambitious plan emerged. Eventually, theTask Force conducted public hearings in sevencities, and took testimony from more than 130witnesses. Task Force members undertook acomprehensive review of existing literature andstudies, conducted an Internet survey of practitioners and engaged in countless hours of discussion and debate.During the course of the project, the Task Forcewas assisted by Professor Joel M. Schumm ofthe Indiana University School of Law, whoserved as the project’s reporter. The projectcould not have been concluded without Professor Schumm’s dedication, skill and insightfulanalysis. His commitment to the project exemplifies the perfect model of collaboration between the legal academy and the practicing bar.Several key NACDL staff members providedongoing and indispensable support for the project. NACDL State Legislative Affairs DirectorAngelyn Frazer, assumed principal responsibility for the project when she was appointed inDecember 2008, and shepherded it through itscritical latter stages. In the early phases, herpredecessor

America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform CYNTHIA HUJAR ORR President, NACDL San Antonio, TX JOHN WESLEY HALL Immediate Past President, NACDL Little Rock, AR NORMAN L. R EIMER Executive Director, NACDL Washington, DC EDWARD A. M ALLETT President, FCJ Houston, TX KYLE O’D OWD Associate Executive Director For Policy, NACDL Washington, DC .

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