Constitutional and Legal Issues in Drug Court

Presented by Honorable Peggy Davis

Question?

Are constitutionally enumerated rights absolute?

Right to free speech?

Second Amendment right to bear arms?

Eligibility and Equal Protection

14th Amendment Requires:• Strict Scrutiny?• Intermediate Level?• Rational Relationship to Legitimate

Government Purpose?

Jurisdiction’s decision not to develop a drug court is rationally related to a

legitimate government purpose

•Lomont v. State, 852 N.E. 2d 1002 (Ind. App. 2006)•State v. Harner, 103 P. 3d 738 (Wash. 2005)•State v. Little, 66 P.3d 1099 (Wash. App. 2003)

Refusal to offer drug court to all defendants does not constitute denial of equal protection because there exists no

right to enter drug court

• Jim v. State, 911 So. 2d 658 (Miss. App. 2005)

Juvenile Rights

Juvenile proceedings must be in conformity with the essentials of due process and fair treatment as guaranteed by the Due Process Clause of the Fourteenth Amendment of the Constitution of the United States.

In re Gault, 387 U.S.1, 87 S.Ct. 1428 (1967).

Conditions of Drug Court Contract

4th Amendment

Waiver of Probable Cause for Search of Person and Property

Drug Court Participant on Probation or Post-Plea Model

• May be permitted solely on execution of waiver

Samson v. Calif., 126 S. Ct. 2193 (2006)• Cannot use waiver to harass, be arbitrary

or capricious

Drug Court Participant in Diversion Program

Waiver of 4th Amendment Protection in Bond or Diversion Cases Probably Unconstitutional

Terry v. Superior Court, 73 Cal. App. 4th 661 (Cal. App. 1999) (search waiver improper condition in diversion

case, without statutory authority)U.S. v. Scott, 450 F3d 863 (9th Cir. 2006) (search waiver

probably improper when person is on bond)In re York (1995) 9 Cal.4th 1133 (particularized finding)

State v. Ullring, 741 A. 2d 1065 (Me. 1999) (search waiver as condition of bond constitutional)

Conditions of Bond

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

Two considerations when setting bond;

Assure defendant’s appearance

Protect public safety

Conditions of Drug Court

1st Amendment

Area & Association Restrictions

Area Restrictions Factors

• Compelling Need to Go to Location

• Mechanism for Supervised Entry

• Size of the Area• Relationship to Rehabilitation

of Offender

Area Restrictions Permissible

Two block radius- Oyoghok v. Municipality of Anchorage,

641 P.2d 1267 (Alaska 1982)

One block - Johnson v. State, 547 So.2d 1048

(Fla. App. 1989)

Stay out of French Quarter State v. Morgan,

389 So. 2d 364 (La. 1980)

Not Permissible

Any place where alcohol is sold, served, consumed – State v. Wright, 739 N.E.2d 1172 (Ohio App. 2000) (overbroad)

But! “Do not enter any establishment where the primary item sold is alcohol may be fine.”

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

People v Beal (1997) 60 Cal.App.4th 84

Association RestrictionsReasonably related to the Purposes of

Probation, the Prevention of Crime, and Protection of the Public

•Wife - People v. Tungers, 127 Cal. App. 2005)•Drug users and dealers - Andrews v. State, 623 S.E.2d 247 (Ga. App. 2005)•But, Too Broad – Any unsupervised contact with drug using wife - Dawson v. State, 894 P.2d 672 (Alaska App. 1995)

Association Restrictions

Is the restriction related to the crime for which the offender was convicted?

Is it intended to prevent future criminal conduct, or

Does the restriction bear a reasonable relationship to an offender’s rehabilitation?

Malone v. State 2012 Ark. App. 289 (2012), State v. Allen, 634 S.E.2d 653 (2006), Jones v. State, 41 P3d 1247 (Wyo. 2001), State v. Hearn, 128 P3d 139 (Wash. App.2006).

First AmendmentEstablishment of Religion

Establishment Clause of the 1st Amendment Prohibits Mandating Participants to Attend AA or NA Meetings

Court or treatment provider can make AA and NA available so long as

participation is not mandatory and other options are available

• Kerr v. Ferry, 95 F.3d 472 (7th Cir. 1996)• Griffin v. Coughlin, 88 N.Y.2d 674 (1996)• Inouye v. Kemma, 504 F.3d 705 (9th Cir. 2007)

Beware! Increasing line of cases upholding a loss of

qualified immunity for the violation of an established Constitutional right.

Kerr v Ferry, 95 F3d 472 (7th Cir. 1996), Prison violated Establishment Clause by requiring attendance at NA meetings. Inouye v. Kemna, 504 F3d 705 (9th Cir. 9-7-2007) amended on 10-3-2007, Parole officer lost qualified immunity by requiring a Buddhist to attend at AA. Hanas v. Inter City Christian Outreach, 542 F. Supp. 2d 683 (Mich. E.D. 2-29-08). Program manager and Consultant liable for referring to a faith-based program when they knew of participant’s objections and the participant was denied opportunity to practice his Catholic faith.

But, You Can:

Can mandate meetings if a secular meeting is available

On line programs are supported by research

Can change meetings, but cannot use to avoid meetings

Tribal: Be open to other ways to engage and support participants

O’Connor v. California, 855 F. Supp. 303 (C.D. Calif.). No establishment clause violation where DUI probationer had choice over program, including self-help programs that are not premised on monotheistic deity.

Drug Testing and Due Process

To satisfy due process concerns, drug tests should be scientifically reliable

• Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)

• Frye v. United States, 293 F.3d 1013 (1923)

Types of Drug Tests• Urine – Instrumented vs. non-

instrumented tests• Sweat Patch – environmental

contamination• Hair – environmental contamination

Reliability of Drug Tests EMIT – Found to be reliable

Matter of Lahey v. Kelly, 518 N.E.2d 924 (N.Y. 1987); Spence v. Furrier, 807 F.2d 753 (8th Cir. 1986); Jones v. State, 548 A.2d 35 (D.C. 1998)

Sweat Patch – Generally found reliable but concerns with environmental contamination

U.S. v. Alfonzo, 284 F.Supp.2d 193 (Mass. 2003) Hair – High risk of environmental contamination

Wykoff v. Resig, 613 F. Supp. 1504 (N.D. Ind. 1985); Thomas v. McBride, 3 F.Supp. 989 (N.D. Ind. 1998)

Due Process

Procedural protections are due:

Potentially suffer a loss to a recognized liberty or property right under the 14th

Amendment.

Sanctions and Due ProcessFactors

Pre-plea vs. Post-plea Model

Contested vs. Non-Contested Factual Basis

Due Process Rights of Parolee or Prison Inmate

SANCTIONSRIGHT TO A HEARING

Participant can waive right to hearing

State v. Rogers, 170 P.3d 881(Ida. App. 2006)

Contract rules govern when sanctions are imposed (different result with termination)

Participant cannot prospectively waive due process rights

Staley v. State, 851 So.2d 805 (Fla. App. 2003)

BEWARE

Mississippi Commission on Judicial Performance v. Thompson,___Miss.___(Miss. Supreme Court 5/21/2015).

Judge’s conduct of depriving participants of their due process rights when he signed orders of contempt without the persons being properly notified of the charge of contempt or a right to a hearing and by conducting “hearings” immediately after “staffing meetings”

Continued:

Without adequate time for the persons to have proper counsel or evidence presented violated Canons 1, 2A, 3B(1), 3B(2), 3B(4), 3B(8) and constitutes willful misconduct in officer and conduct prejudicial to the administration of justice.

Result: Judge removed from office.

Timeliness of Termination/Sanction Hearing

Hoffman v. Jacobi (S.D. Ind. 9/29/2015).

Magistrate Judge recommends class certification on 42 USC Sec. 1983 damages and injunctive relief suit against Drug Court Judge and team for incarcerating participants for lengthy periods of time, while awaiting placement in drug treatment facilities. Plaintiffs allege that the decision to hold them in jail pending placement was made without counsel, hearing, consideration of bond or other rights of due process.

Timeliness, cont.

County of Riverside v. McLaughlin, 500 U.S. 44,52, 111 S. Ct. 1661, 114 L.Ed.2d 49 (1991).

In Gerstein v. Pugh, 420 U.S. 103 (1975), this Court held that the Fourth Amendment requires a prompt judicial determination of probable cause as a prerequisite to an extended pretrial detention following a warrantless arrest.

Determination of probable cause within 48 hours of arrest will as a general rule, comply with the promptness requirement.

Arrest, Original Charge vs. Probation Violation

Strict 48 hour rule in Riverside may not apply to arrest for probation violation, due process and state statute/rule generally require prompt probable cause determination to continue to detain the individual.

Gagon v. Scarpelli, 411 U.S. 778 (1973), Morrissey v. Brewer, 408 U.S.471 (1972), Fowler v. Cross, 635 F.2d 476 (5th Circuit 1981) (denying qualified immunity and finding civil liability for denial of prompt preliminary hearing in probation revocation)

Double Jeopardy

DiMeqlio v State, 29 A.3rd 663 (Md. App. 2011) (imposition of sanction for drinking and driving in DUI Court did not bar subsequent prosecution for DUI offense on double jeopardy grounds)

In re O.F., 773 N.W. 2d 206 (N.D. 2009).

Termination from Drug Court and Due Process

Probation Revocation Hearing Analysis

Notice

Disclosure of Evidence

Opportunity to be Present and Testify

Right to Confront and Cross-Examine Witnesses

Neutral Magistrate

Written Findings of Evidence and Decision

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

Hearing Required

State v. Rogers, 170 P.3d 881 (Idaho 2007) Idaho SupremeCourt ruled full due process required in termination from drug court

State v. LaPlaca, 2011 N.H. LEXIS 86 (N.H. June 28, 2011) New Hampshire Supreme Court ruled hearing is required but not full panoply of rights. Suggests due process may diminish if lesser sanction is imposed.

State V. Gosha, 931 N.E.2d 432; 2010 Ind. App.

Full hearing required at termination

No Hearing Required

Evidentiary hearing not required

Preponderance of evidence not required

Court must conduct sufficient inquiry to satisfy itself that there was a legitimate basis for program decision

Court must put findings on the record

People v. Fiammegta, 923 N.E. 1123, (NY Ct App 2010)

Waiver of Hearing Rights State v. Rogers:

170 P.3d 881 (Idaho 2007) Idaho Supreme Court ruled full due process required in termination from drug court – “contract”cannot waive this right

Staley v. State:

851 So.2d 805 (Fla. App. 2003) Defendant could not prospectively waive his right to contest future allegations of violations

State v. LaPlaca, 2011 N.H. LEXIS 86 (N.H. June 28, 2011)

Cannot prospectively waive right to hearing – cannot waive without full knowledge of allegations

Recent DecisionsTermination

Harris v. Commonwealth, 689 S.E. 2d 713 (Va. 2010). 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.

Bonn v. Commonwealth, No. 2009-CA-002304-MR (Court of Appeals of Kentucky May 6, 2011) unpublished.. Hearing continued to allow defendant to obtain an expert to testify that positive drug tests were due to sexual contact what cocaine users and contact with users in the Defendant’s barbershop.

�Recent Decisions Termination

State v. Shambley, 281 Neb. 317 (2011). Drug Court participants are entitled to the same due process protections as persons facing termination of parole or probation.

Mental Health Courts

Tate v. State, 2013 OK CR 18, 319 P.3d 274 (2012). Due process guarantees are applicable to mental health court terminations.

Judicial Impartiality and Due Process

Termination Hearings• Actual or Apparent Bias•Standard – Objective•Recusal – Preferred Option where Factual Basis Contested•U.S. v. Ayala, 289 F.3d 16 (1st Cir. 2002), (would the facts as asserted, lead to an objective reasonable observer to question the judge’s impartiality)

Judicial Impartiality

Canons of Judicial Conduct

Due Process

Judicial Recusal

No recusal required: State v. Dailey, 2006 ND 184 N.W. 2d 29 (August 24, 2006) The statements the judge made were facts the judge learned while presiding over the case. The facts concerned prior convictions and the defendant’s request that specific judges not preside over the case because of his past relationship to the judges and the fact that the defendant failed drug court. It is in the nature of the judicial process for a judge to assess the defendant’s conduct and form an opinion on the merits of the case. See, State v. Crescenzo, 114 R.I. 242, 332 A. 2d 421 (1975).

Judicial Recusal

Required: A judge should recuse where the Court has personal knowledge of disputed facts.

Liteky v. U.S., 510 U.S. 540 (1994). The basis or recusal is due to partiality or bias acquired outside the context of the proceedings—or from an “extrajudicial source”.

Recusal at Termination Hearings

Oklahoma Supreme Court saw potential for bias when Drug Court judge presides over termination proceeding

Alexander v. State, 48 P3d 110 (Okla. 2002)

Tennessee Court of Criminal Appeals found actual bias – drug court judge cannot function as “neutral

and detached” hearing body

State v. Stewart, 2010 Tenn. Crim. App. LEXIS 691,

August 18, 2010, Filed

Waiver of Disqualification Code of Judicial Conduct 3.E Remittal of

Disqualification:

Judge disqualified by the terms of Section 3D may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, out of the presence of the judge whether to waive disqualification OTHER THAN PERSONAL BIAS OR PREJUDICE CONCERNING A PARTY. If the parties agree that the judge should not disqualify, and the judge agrees, the judge may participate in the hearing.

Should be reflected on the record.

Medication Assisted Treatment

Drug Courts need to be cautious when refusing to permit MAT.

Risks when denying MAT:

Personal liability

Loss of federal funding

Resources

American with Disabilities ACT (ADA)

Rehabilitation Act of 1973 (RA)

Prohibits discrimination by federally operated or assisted programs.

Due Process protections of the 14th Amendment

8th Amendment-cruel and unusual punishment

Well studied over 11,000 peer review articles supporting MAT

Risk to Federal Funding

Under no circumstances: may a drug court judge or staff deny the use of these medications when made available to the client under the care of a properly authorized physician and pursuant to regulations within an Opioid Treatment program or through a valid prescription.

In all cases: MAT must be permitted to be continued for as long as the prescriber determines that the medication is clinically beneficial.

Risk to Federal Funding

When can the Court say no and still keep federal funding:

The client is not receiving those medications as part of treatment for a diagnosed substance use disorder.

A licensed clinician, acting with their scope of practice, has not examined the client and determined that the medications is an appropriate treatment

The medication was not appropriately authorized through prescription by a licensed prescriber.

Personal Liability?

Stephanie Watson v. Commonwealth of Kentucky et. al. U.S. District Court for Eastern District of Kentucky, Southern Division.

Practicing medicine without a license?

Cruel and unusual punishment?

See: American University, Bureau of Justice Assistance Drug Court Technical Assistance/Clearinghouse Project, Frequently Asked Questions Series: Information Inquiry Regarding Use of Medication Assisted Treatment (MAT) by Drug Courts, April 23, 2015 (revised).

Conclusion Drug Courts are innovating and when operating

according to best practices, saves lives and makes our communities safer.

However, the Courts are increasingly looking at drug court practices. There are increasing numbers of cases where courts have rejected the defense of qualified immunity.

Let us remember that first and foremost we are a court of law. We must pay attention to constitutional guarantees of due process and fundamental rights.

Drug Courts can continue to operate, well within the provisions of the Constitution. We just need to pay attention and operate in the most conservative manner possible.