Transcript of HELEN HARBERTS, MA, JD PORTER93@MSN.COM Prosecutor Dilemmas in Problem Solving Courts.
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- HELEN HARBERTS, MA, JD PORTER93@MSN.COM Prosecutor Dilemmas in
Problem Solving Courts
- Slide 3
- 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?
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- 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?
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- 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.
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- 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
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- 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.
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- 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
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- 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.
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- 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
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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
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- 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
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- 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.
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- 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.
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- 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.
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- 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.
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- 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.
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- 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)
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- 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.
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- 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.
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- 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?
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- 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?
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- 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.
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- 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.
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- Termination & Sentencing Split of authority. Best practice,
if they object, get another Judge.
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- 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!!!
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- 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
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- 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!
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- 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?)
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- 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.
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- 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.
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- 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?
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- 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
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- 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?
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- 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?
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- 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?
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- 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?
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- 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?
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- What can attorneys do? Lots! We can improve outcomes, or kill
them
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- How? Placebo Motivational interviewing Engagement Smoothing out
legal delays Expediting responses to behavior Presenting a unified
front against the disease.
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- This is what it looks like when you do it following the
research.
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- Staffing all cases before court-one message & one decision
delivered by Judge
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- Motivation, memory, engagement-public defender engagement
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- Public Defender teaching in the hallways of the courthouse
before court
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- DA training & engaging before Court- treatment team and
defense bar present
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- 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!
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- Understanding addiction and the psychopharmacology of drugs.
Addiction is truly a disease of the brain. It is treatable.
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- 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?
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- 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.
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- 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.
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- 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
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- 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.
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- 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.
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- 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
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- 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
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- 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
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- 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
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- Addiction is a disease of the brain
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- Who wins when we fight and dont follow research? THE
DISEASE