Constitutional and Legal Issues in Drug Court › sites › default › files ›...
Transcript of Constitutional and Legal Issues in Drug Court › sites › default › files ›...
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.