Skip navigation
The Habeas Citebook: Prosecutorial Misconduct - Header

America’s Problem-Solving Courts – The Criminal Cost of Treatment and the Case of Reform, NACDL, 2009

Download original document:
Brief thumbnail
This text is machine-read, and may contain errors. Check the original document to verify accuracy.
America’s Problem-Solving Courts:
The Criminal Costs of Treatment and the Case for Reform

N 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 RS
September 2009

Supported in part by grants from the Open
Society 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 S
This report is subject to a Creative Commons Attribution-Noncommercial-Nonderivative
Work license (see http://www.creativecommons.org). It may be reproduced, provided that
no charge is imposed, and the National Association of Criminal Defense Lawyers is
acknowledged as the original publisher and the copyright holder. For any other form of
reproduction, please contact NACDL for permission.

N A T IO N A L A SS O CIA T I O N O F
C R I M I N A L D EF E NS E L A W YE R S

1660 L Street NW, 12th Floor
Washington, DC 20036
Phone: 202-872-8600; Fax: 202-872-8690
http://www.nacdl.org

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. REIMER
Executive Director, NACDL
Washington, DC

EDWARD A. MALLETT
President, FCJ
Houston, TX

KYLE O’DOWD
Associate Executive Director For Policy, NACDL
Washington, DC

ANGELYN C. FRAZER
State Legislative Affairs Director, NACDL
Washington, DC

NACDL Problem-Solving Courts Task Force Members
RICK JONES

MARVIN E. SCHECHTER

JAY CLARK

Co-Chair

Co-Chair

Co-Chair

New York, NY

New York, NY

Cincinnati, OH

ADELE BERNHARD

ELIZABETH KELLEY

GAIL SHIFMAN

VICKI YOUNG

White Plains, NY

Cleveland, OH

San Francisco, CA

San Francisco, CA

Reporter
JOEL M. SCHUMM
Indiana University School of Law

TABLE OF CONTENTS
ABOUT THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS . . .4
ABOUT THE FOUNDATION FOR CRIMINAL JUSTICE . . . . . . . . . . . . . . . . . . . .5
ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
PREFACE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .8
EXECUTIVE SUMMARY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14

2

Methodology . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Scope of This Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
History and Evolution of Drug Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
The First Drug Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
Features of Modern Drug Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16
DECRIMINALIZATION: THE SMART, FAIR,
ECONOMICAL, AND EFFECTIVE ALTERNATIVE . . . . . . . . . . . . . . . . . . . . . . . .20
DRUG COURTS IN ACTION: OPERATION,
ISSUES, AND PROBLEMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Criteria and Eligibility for Admission . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22
Recommendations — Criteria and Eligibility for Admission . . . . . . . . . . . .23
Timing of Admission and Discovery Issues . . . . . . . . . . . . . . . . . . . . . . . . .24
Recommendations — Timing of Admission and Discovery Issues . . . . . . .25
The Judicial Role . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27
Recommendations — The Judicial Role . . . . . . . . . . . . . . . . . . . . . . . . . .28
The High Cost of Failure: Paying a Price for Trying . . . . . . . . . . . . . . . . . . .29
Recommendations — The High Cost of Failure . . . . . . . . . . . . . . . . . . . . .29
ROLE OF DEFENSE COUNSEL AND ETHICAL CONCERNS . . . . . . . . . . . . . . .30
Entry Into Drug Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
Legal Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
Diagnosing and Counseling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
Staffings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .31
The Importance of Showing Up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
Pursuing a Client’s Stated Interests . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
Maintaining Client Confidentiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
The Exclusion of Private Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
Caseload Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35

America’s Problem-Solving Courts:

Court Appearances . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
Preparing Clients for Court . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
Counsel in Name Only . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37
Breakdown of the Attorney-Client Relationship and the
Importance of Preserving the Role of Counsel as an Advocate . . . . . . . . .37
Best Practices for All Defense Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . .38
Best Practices for Retained Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .39
Recommendations — Role of Defense Counsel and Ethical Concerns . . .39
CONCERNS ABOUT MINORITIES, THE POOR, AND IMMIGRANTS . . . . . . . .42

3

Widening the Net . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
Racial Disparity . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .42
The Poor . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
Immigrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43
Recommendations — Concerns About Minorities,
The Poor, and Immigrants . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .44
MISALLOCATION OF PUBLIC RESOURCES . . . . . . . . . . . . . . . . . . . . . . . . . .46
Recommendations — Misallocation of Public Resources . . . . . . . . . . . . .47
MENTAL HEALTH COURTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50
History . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50
Entry and Procedures . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .50
Assessment of Mental Health Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
Integrated Services . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
Reduced Recidivism . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
Due Process Rights Often Preserved . . . . . . . . . . . . . . . . . . . . . . . . . . . . .51
Recommendations — Mental Health Courts . . . . . . . . . . . . . . . . . . . . . . .51
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .53
SUMMARY OF RECOMMENDATIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .54
APPENDIX A PROBLEM-SOLVING COURT WITNESS LIST . . . . . . . . . . . . . . .56
APPENDIX B LAYPERSON’S DEFINITIONS OF KEY TERMS . . . . . . . . . . . . . . .59

The Criminal Costs of Treatment and the Case for Reform

Table of Contents

ABOUT THE NATIONAL ASSOCIATION
OF CRIMINAL DEFENSE LAWYERS

T

4

he National Association of Criminal Defense Lawyers (NACDL) is the preeminent organization in the United States advancing the goal of the criminal defense
bar 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 accused
of 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 through
steadfast 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, local
and international affiliates with an additional 40,000 members — include private criminal defense lawyers, public defenders, active U.S. military defense counsel, and law
professors committed to preserving fairness in America’s criminal justice system. Representing thousands of criminal defense attorneys who know firsthand the inadequacies
of 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 would
not have been possible without the specific support of the Ford Foundation and the Open
Society Institute.
For more information contact:

T H E N A TIO NA L A SSO C IA TIO N O F
C R I M I N A L D EF E NS E L A W YE R S

1660 L Street NW, 12th Floor
Washington, DC 20036
202-872-8600

This publication is available online at
www.nacdl.org/drugcourts

America’s Problem-Solving Courts:

ABOUT THE FOUNDATION
FOR CRIMINAL JUSTICE

T

he 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 and
seizure, fair sentencing, and assistance of effective counsel. The FCJ pursues this
goal by seeking grants and supporting programs to educate the public and the legal
profession to the role of these rights and values in a free society and assist in their
preservation 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 the
Foundation are managed by a Board of Trustees that possesses and exercises all
powers granted to the Foundation under the DC Non-Profit Foundation Act, the
Foundation’s own Articles of Incorporation, and its Bylaws.
For more information contact:

F O U ND A TIO N

FOR

C R IM INA L J U STIC E

1660 L Street NW, 12th Floor
Washington, DC 20036
202-872-8600

The Criminal Costs of Treatment and the Case for Reform

5

5

ACKNOWLEDGEMENTS

F

irst and foremost, NACDL thanks the more than 130 witnesses who testified at the
task 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 in
the criminal justice system, each evinced a passion for justice and dedication to pursuit
of effective criminal justice policies.

6

Many others contributed to this project in myriad ways. NACDL gratefully acknowledges the following:

Professor Tony Thompson, for recommending NYU law students Edget Betru and Jorge
Castillo, 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 providing
conference facilities in the New York office for task force meetings; and staff members
Tracy 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 meetings
and conference calls.

Matt Ehinger, a 2009 graduate of the Indiana University School of Law, for invaluable
research 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 Board
Member, 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 logistical
support; 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 for
Programs, for videotaping the hearings in Washington, D.C., and the opening segment of the hearing summary.

Doug Reale, Education Assistant, for editing and
producing the video summary.

Malia Brink, Counsel for Special Projects; Quintin
Chatman, Editor of The Champion; Jack King, Director of Public Affairs & Communications; and
Ivan Dominguez, Assistant Director of Public Affairs & Communications for reading and editing
the 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 for
reviewing the report and providing general assistance during the final stages.
NACDL President Cynthia Hujar Orr and Past
Presidents Martin S. Pinales, Carmen D. Hernandez, and John Wesley Hall, for their vision and
steadfast commitment; FCJ President Edward A.
Mallett and the Trustees of the foundation for their
support, without which this report would not have
been possible.

Finally, with everlasting gratitude, we remember a
great champion of liberty, the late Robert J.
Hooker. As a member of NACDL’s Board of Directors, Bob was an early and staunch supporter
of this project. He testified with eloquence and
passion at the Tucson hearings, and then, just a
few weeks later, died in a tragic automobile accident. His dedication to the representation of the
accused, and his commitment to reform the criminal justice system, are an enduring inspiration for
the legal profession and society.

The Criminal Costs of Treatment and the Case for Reform

Acknowledgements

7

PREFACE

I

8

n 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 good
thing for the accused and the criminal justice system? Criminal defense lawyers
are, 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 the
question about problem-solving courts was considered, however, heated disagreement
was the order of the day. Some thought they are a wonderful advancement. Others
were convinced that they are destroying the adversarial system, with the evisceration
of 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, and
the ultimate consequences of success or failure. And as the dozen or so defense
lawyers from around the country shared their experiences, one immutable fact was
clear: virtually every problem-solving court is different. Even within the same state
or 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 to
draconian 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 from
the 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 judicial
administrators. The defense bar is seldom at the table, and even when a defense lawyer
is part of the planning process, there is almost never a mechanism for systemic input
from the defense. Thus, problem-solving courts swept the nation with the defense bar
largely on the sidelines, notwithstanding the profound implications of their impact on
defense practice.

NACDL’s leadership resolved at that June 2007 meeting that the organized criminal
defense 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 had
come 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 and
evaluating the efficacy of the problem-solving
approach. With strong support from NACDL’s
Board of Directors and initial seed money from
the Foundation for Criminal Justice, a Task
Force on Problem-Solving Courts was created
to assess the impact of these courts on fundamental rights, to make findings regarding practices in them and to develop recommendations
for ensuring that they meet constitutional standards of fairness and due process.

The effort was led by seven outstanding criminal
defense lawyers from across the country, embodying an array of practice settings: Adele
Bernhard, Jay Clark, Rick Jones, Elizabeth Kelley, Marvin Schechter, Gail Shifman, and Vicki
Young. Soon after they began to delve into the
research, it became evident that the initial study
plan was inadequate. There was simply too
much to learn, and variations in practice were
too widespread. With additional support from
the Ford Foundation, the Open Society Institute,
and the Foundation for Criminal Justice, a far
more ambitious plan emerged. Eventually, the
Task Force conducted public hearings in seven
cities, and took testimony from more than 130
witnesses. Task Force members undertook a
comprehensive review of existing literature and
studies, conducted an Internet survey of practitioners and engaged in countless hours of discussion and debate.

During the course of the project, the Task Force
was assisted by Professor Joel M. Schumm of
the Indiana University School of Law, who
served as the project’s reporter. The project
could not have been concluded without Professor Schumm’s dedication, skill and insightful
analysis. His commitment to the project exemplifies the perfect model of collaboration between the legal academy and the practicing bar.

Several key NACDL staff members provided
ongoing and indispensable support for the project. NACDL State Legislative Affairs Director
Angelyn Frazer, assumed principal responsibility for the project when she was appointed in
December 2008, and shepherded it through its

critical latter stages. In the early phases, her
predecessor, Scott Ehlers, launched the project
and provided the essential foundation and the
template for the national hearings. During the
interregnum between Scott’s departure and
Angelyn’s arrival, National Affairs Assistant
John Cutler provided crucial and dependable
support. And, throughout the project, NACDL
Associate Executive Director for Policy, Kyle
O’Dowd, provided keen insight and leadership.

Additionally, NACDL’s Board of Directors supported this project from its inception and closely
monitored the work of the Task Force for the
past two years. After an extensive period of review, the Board formally adopted the report on
August 8, 2009, in Boston, Massachusetts, and
authorized its release as the Association’s official position.

9

Without question, however, this report is the result of one of the most remarkable volunteer efforts ever undertaken by a bar association. The
seven Task Force members contributed their intellect, experience and literally thousands of
hours of effort to this study. The thousands of
pages of transcript that will be posted simultaneously with the release of this report provide
compelling evidence of their dedication and determination. NACDL, the nation’s criminal defense bar and the legal profession, as well as
accused persons throughout the country, are enriched by their service.

The Foundation for Criminal Justice and
NACDL proudly offer this report and its conclusions and recommendations for consideration
by the nation’s criminal justice community, secure in the knowledge that it represents the highest aspirations of the criminal defense bar in its
noble mission to advocate for the rights of the
accused and to safeguard fundamental constitutional protections.

Norman L. Reimer

Executive Director
NACDL

The Criminal Costs of Treatment and the Case for Reform

Manager
Foundation for
Criminal Justice

Preface

T

EXECUTIVE SUMMARY
he debate over drug enforcement policy in the United States is almost always
framed in stark terms premised on narrow options. Conventional thinking about
criminal justice issues—prison, community corrections, probation, or possibly
some sort of diversion program for minor offenses and first-time offenders—has not
worked, nor has it abated the addiction problem. Drug courts have swept the nation
without much debate or input from the criminal defense bar. That input is long overdue.

10

This report seeks to inform and redefine the debate by considering and challenging the
fundamental criminal justice lens through which drug-related issues are evaluated. Because “the definition of the alternatives is the supreme instrument of power,”1 accepting the criminal justice paradigm legitimizes drugs courts while ignoring other smart,
fair, effective, and economical approaches. The report also summarizes the history
and evolution of drug courts, evaluates their operation and effectiveness, makes an
overarching recommendation on the treatment of addiction, and offers a number of
recommendations to ensure that the procedures and practices in drug court comply
with constitutional and ethical norms. The recommendations include:

Address substance abuse
as a public health issue —
not a criminal justice issue.
Policymakers, courts, and lawyers must take a step back and examine the problem being solved: drug addiction. Addiction is an illness.2 Illnesses should be
treated through the public health system — not punished through the criminal justice system. Conditioning treatment on an arrest and entry in the criminal justice system sends a
perverse message to the person who is ill and is an enormous waste of scarce public and
court resources.

NACDL has long believed that “addiction to any substance, whether legal or illegal, is really a health problem best treated by the medical community and others trained in the causes
and treatments of addiction.”3 Thoughtful policymakers from all points on the political spectrum have recommended the decriminalization of all drugs as the best way to combat drug
addiction and make effective use of criminal justice resources. The experience of European
nations provides powerful support for the soundness of this approach and belies concerns that
drug use would increase. Although politicians have been unwilling to engage in a serious debate about legalizing drugs, the broader public has shown interest in the issue. It is time for
a serious discussion of decriminalization.

America’s Problem-Solving Courts:

Drug court
recommendations
Until decriminalization occurs, the conventional paradigm is likely
to continue, and drug courts will have a role. Drug courts are largely
well-intentioned efforts to offer substance abuse treatment as an alternative to lengthy prison
terms and lifelong felony convictions. Much of the support for drug courts ultimately turns
on their existence as the sole, or best, alternative to draconian punishment. Although drug
courts may offer some positive benefits to some participants, they also cause problems and
engender disparities in many areas, including the admission process, the role and ethical obligations of defense counsel, and the misguided use of limited public resources.

A defendant should not be required to
plead guilty before accessing treatment.
Most drug courts require a guilty plea as the price of admission. When guilty pleas are required before
offering treatment, drug courts become little more than conviction mills. In post-adjudication courts,
the defendant must plead guilty before entering drug court, and even if he or she is successful and
completes the program, the conviction will never go away. In pre-adjudication courts, the defendant
must plead guilty, but then, if he or she successfully completes the program there is a possibility that
the plea can be withdrawn and the charge dismissed. Although procedures vary, the hoops through
which participants must jump result in dismissals for relatively few defendants. Profound consequences
flow from every failure.
A pre-plea, pre-adjudication program preserves due process rights, allows defendants an opportunity to
seek treatment, and provides a strong incentive for successful completion. If the participant successfully
completes the program, the charge is dismissed. If the participant does not succeed, the traditional court
process can be pursued.
Pre-plea, pre-adjudication programs are also the only ones that permit informed, thoughtful decisionmaking by defendants and counsel. Conversely, in post-plea programs defendants often lack sufficient
time to make informed decisions, do not have discovery, and are unable to litigate motions. This often
creates impossible ethical quandaries for defense counsel.

Admission criteria must be objective and fair, and
prosecutors must relinquish their role as gatekeeper.
Criteria for admission to drug court must be transparent and fully disclosed. Currently, many courts have no
official criteria or have stated criteria that are backward or counterintuitive. For example, many drug courts
exclude all violent offenders, including defendants charged with domestic violence. Excluding domestic violence offenses leads to the odd result of “the domestic violence offender who gets drunk and beats his wife
up checking with his probation officer once every six weeks” while nonviolent offenders are appearing regularly for status hearings, giving random weekly urine samples, and attending 90 meetings in 90 days. 4

The Criminal Costs of Treatment and the Case for Reform

11

EXECUTIVE SUMMARY
In many courts, whether a defendant is permitted to enter drug court is up to the prosecutor. Prosecutors are frequently hesitant to allow higher risk offenders, even those who desperately need and want
the treatment and supervision, into drug court out of fear that they will be blamed for participant failure or recidivism. As one witness testified, when prosecutors serve as gatekeepers they face the political risk of “a headline waiting to happen.”5

12

To avoid politics improperly affecting access to drug court programs, prosecutors should not be able to
determine access. Admission criteria should be drafted by a panel or commission with broad representation from stakeholders in the criminal justice community, including judges, prosecutors, defense counsel, and social service providers. Admission criteria should be broad, allowing those who need and want
treatment access to the program.

Ethical rules should not change; the drug court framework
must accommodate long-standing ethical rules.
Drug courts seek to impose a team concept on defense lawyers, creating difficult ethical dilemmas and
virtually no role for private counsel. In many situations, the current structure of drug courts requires defense attorneys to set aside their ethical obligations to further the purpose and framework of the drug
court. That must change. When counsel says nothing in representing the interests of clients, defense
lawyers appear headed “to an old Soviet Union model where your job as a lawyer is simply to hold your
client’s hand as they go off to the gallows — here’s what’s going to happen next.”6
Protecting defendants’ Sixth Amendment right to competent counsel requires a process that allows defense attorneys to satisfy their ethical obligations of loyalty, confidentiality, and zealous advocacy.
Doing so will not dismantle the drug court process or its objectives; rather, it will enhance the credibility of the process with both the participants and anyone who observes the court.

Drug courts must be used for high-risk defendants facing
lengthy jail terms; less onerous and expensive alternatives
to drug court must be readily available for low-risk
defendants and those who commit low-level offenses.
Too often, the criteria and process for admission into drug court are guided largely by tough-on-crime
politics, focusing on first-time or nonviolent offenders, with little consideration of smart-on-crime approaches that target those most in need of intensive treatment who would otherwise spend a long time
in prison. The Task Force wholeheartedly agrees with the judge who testified he was “tired of everybody talking about being tough on crime. It’s about time we get smart on crime.”7
Courts frequently select those most likely to succeed to participate in drug court — a process called
skimming. As one witness noted, when they engage in skimming, the drug courts are “sucking up all
the resources that the community has to deal with this very thorny issue of addiction, and . . . using it
on cream puffs.”8 In fact, drug courts, with their program of intense supervision, should be utilized for
high-risk offenders for whom everything else has failed. Courts should focus on those who are facing
the longest sentences and most need treatment, “where we would get the biggest bang for our buck.”9

America’s Problem-Solving Courts:

Other less intensive alternatives to drug courts must be developed for low-risk offenders, who perform
better without intensive judicial intervention.10 Communities should not “invest all of their addiction resources into one program. You can’t ignore the people who don’t get into drug court who are drug-and
alcohol-involved. They have the same needs, the same rights, and impose the same dangers as everyone else.”11

Drug courts must be open to all people regardless of race,
economic status, or immigration status; methodologically
sound research must be done to ensure drug courts are
open to all.
After 20 years, significant concerns continue to exist about the populations served by drug courts. Too
often it seems that drug court eligibility and admission criteria serve to exclude mostly indigent and
minority defendants. Drug courts must address these fundamental and disturbing disparities. Entry requirements must be carefully considered to ensure the same road to success is available to all. Opening
doors for a privileged, Caucasian client base without doing the same for minorities, immigrants, and the
poor cannot be tolerated. Not only must courts be equally available to all who wish to take advantage
of the services, the road to graduation must be a realistic one with reasonable assistance from judges and
drug court teams who truly want participants to succeed. Methodologically sound research must be
done to ensure these basic requirements of fairness are met.

Despite the significant problems outlined above, there are a number of problemsolving courts that demonstrate best practices. Some problem-solving courts offer
opportunities and resources to those who desperately need help through programs
that also protect basic due process rights. The drug court in Philadelphia was created
with significant contributions from defense lawyers and functions in a way that minimizes many due process and ethical concerns. The newly elected prosecutor in Milwaukee worked with defense lawyers and judges to create diversion and deferral
agreements that have dramatically reduced the racial disparity that plagued Milwaukee’s criminal justice system. Finally, mental health courts throughout the country have largely done an effective job of providing integrated services, reducing
recidivism, and preserving due process and fairness for participants.

These examples demonstrate the enormous potential of problem-solving courts.
Adoption of the recommendations of the Task Force can ensure that, like these examples, drug courts across the country are fair and effective as they endeavor to address the enormous problem of addiction and with it, the problem of crime.

The Criminal Costs of Treatment and the Case for Reform

13

T

INTRODUCTION

14

he first drug court opened in Miami in 1989, offering drug treatment as an alternative to incarceration. Today there are more than 2,000 drug courts and hundreds
of other courts labeled as problem-solving. The proliferation of these courts has
occurred with limited involvement or even engagement of the criminal defense bar. Some
defenders were reluctant to become involved in courts that dramatically altered their roles;
others were not asked to participate. In many cities, the reticence and exclusion continues
today. Because these courts raise fundamental concerns about the function of the criminal
justice system, the due process rights of clients, and ethical obligations of counsel, the
criminal defense bar must play an active and meaningful role in the discussion of problemsolving courts.
In 2007, the National Association of Criminal Defense Lawyers established a Task Force on
Problem-Solving Courts to assess the extent to which these increasingly popular courts impact fundamental rights. Made up of seven experienced criminal defense lawyers from across
the country, the Task Force was asked to conduct an extensive inquiry into problem-solving
courts, make findings regarding the practices in those courts, and develop recommendations
for ensuring that the courts meet constitutional standards of fairness and due process. This
report represents the culmination of the Task Force’s efforts. Drawing upon the testimony of
well over 100 witnesses at seven hearings, a comprehensive review of existing literature and
studies, an Internet questionnaire of practitioners and hours of discussion and debate, this
report details the procedures utilized in problem-solving courts, highlights best practices,
and makes recommendations for change.

Methodology

The Task Force held hearings in San Francisco, Miami, Tucson, New York, Milwaukee, Austin, and Washington, D.C. As detailed in Appendix A, the Task Force engaged in a dialogue with more than 130 witnesses including judges, defense lawyers, prosecutors, professors, policy analysts, treatment professionals, probation
and pretrial service personnel, and drug court participants. The transcript of those hearings, which spans more
than 3,000 pages, is available on the NACDL Web site at www.nacdl.org/drugcourts.
The Task Force also gathered and considered a wide range of existing studies, reports, and statistics on problem-solving courts, including law review articles, news coverage, governmental studies, and public policy reports. The Task Force reviewed information from problem-solving courts nationwide, including notes from
direct observation, annual reports, manuals, and forms.

America’s Problem-Solving Courts:

The Task Force distributed an Internet questionnaire seeking information from defense attorneys on drug court practices in each respondent’s jurisdiction and their overall
impressions of the operation of drug courts. In total, 348
lawyers completed the Internet questionnaire. The respondents reported practicing in 40 different states and the District of Columbia.12
Finally, in the months after the hearings, the Task Force engaged in several lengthy discussions through meetings and
conference calls. Professor Joel Schumm assumed primary
drafting responsibility for this report. Multiple drafts were
circulated, discussed, and revised through a collaborative
process with the Task Force and NACDL staff, with input
from the Board of Directors.

Scope of This Report

The Task Force began with a broad mission. At its hearings,
the witnesses testified not only about drug courts but also
about many other types of so-called problem-solving
courts. These include mental health courts, domestic violence courts, community courts, drunk driving courts, and
gun courts, to name a few.
Every one of these courts is different. Although they exist
in courtrooms and are presided over by a judge, problemsolving courts are not really a new kind of court; they are
simply strategies. As a judge who presides over a mental
health court aptly explained, her court “is a criminal justice
diversionary strategy built around constitutional and consumer-oriented principles.”13

Definitions are important but difficult in the problem-solving court context. A few principles provide a useful starting
point. Problem-solving courts abandon the traditional model
of adjudicating guilt or innocence. Instead, the courts assume guilt and focus on rehabilitation, seeking to address
and resolve the underlying cause of the criminal activity,
such as drug addiction or mental illness.14 The key components of any problem-solving court are diversion from the
traditional prosecutorial track, treatment (graduated sanctions and rewards, tolerance for relapse), comprehensive rehabilitative services, staffing (a team-oriented approach with
all parties involved), and ongoing judicial interaction.15
The understanding of many terms used in different problem-solving courts varies widely. The inconsistent use of
terms sometimes hampers a meaningful discussion of the
issues. For the sake of consistency, Appendix B includes a
layperson’s glossary of key terms used throughout this report. The Task Force has attempted to craft definitions that
reflect the most common usage of the terms, although this
was admittedly a difficult and arguably imprecise process.

15 15

This report focuses on drug treatment courts and includes a
limited discussion of mental health courts. These courts
focus on treatment instead of conventional prosecution and
include many of the features discussed above. Many other
courts labeled as problem-solving courts are really just
docketing or integrated courts that merely group defendants
charged with similar offenses in the same court.16 Docketing courts are not problem-solving but are “problem-shifting” or “problem-causing courts.”17 Courts that focus on
domestic violence, habitual offenders, or guns “tend to
focus on goals other than defendant rehabilitation, such as
increasing judicial expertise, improving stakeholder coordination, expanding services for victims, and holding of-

Witness Testimony:
Jurisdictions
The Criminal Costs of Treatment and the Case for Reform

Introduction

fenders accountable.”18 Courts that simply isolate defendants into specialized conviction mills designed to “make
sure the defendant is held accountable for his or her actions”19 are problem-solving courts in name only and are
beyond the scope of this report.20

History and Evolution
Of Drug Courts
The First Drug Court

16

The first drug court emerged from what was described by
early proponents as dire necessity when Miami, Florida,
was considered the cocaine capital of the world.21 Between
1985 and 1989, drug possession arrests increased by 93 percent in Miami-Dade County.22 Seventy-three percent of
felony-charged defendants in Dade County tested positive
for cocaine when entering the criminal justice system.23
Law enforcement agencies were overwhelmed. As soon as
individuals were prosecuted for drug possession, new cases
quickly arose. These seemingly endless drug prosecutions
led to overcrowded jails and prisons, which in turn caused
the early release of other prisoners.24 Those arrested for
felony drug possession would make an initial appearance
in court and a familiar and troubling routine would follow:
You are probably released pending trial.
You come back when the state files formal charges. You get credit for time
served, even if the time served was a few
hours. In most cases, you accept that
plea. Off you go. We all go to the window, wave goodbye, and say, “Come
back and see us again soon,” and you
don’t disappoint. You do come back and
come back and come back.25
To address the problems of drug addiction and its impact
on the criminal justice system, Miami-Dade created the nation’s first drug court with the active involvement of the
district attorney and public defender.26 The creation of the
court “didn’t come from some benevolent place. A lot of
the reasoning behind that court was concern for overcrowding in the prisons . . . .”27 Revolutionary at the time,
the drug court put forth a simple, pragmatic approach: place
defendants in drug treatment rather than in prison.28 As
noted by the founding judge, the “answer lay not in finding
better ways of handling more and more offenders in the
criminal justice system, but in ‘determining how to solve
the problem of larger numbers of people on drugs.’”29
The Miami-Dade County Drug Court was grounded in the
notion that demand for illicit drugs and the related involvement in crime that led to the revolving door of the
criminal justice system “could be reduced through an effective and flexible program of court-supervised drug treatment.”30 The drug court sought to reverse the failure of the

system to address the revolving door problem. This new
model incorporated social services and treatment programs
under the traditional guise of the court system.31 It was “not
a court” because it “makes no adjudication whatsoever;”
rather, it was “a drug diversion program run under the
[a]egis of the court.”32

Features of Modern Drug Courts

Drug courts leverage the authority of the court to reduce
crime by changing defendants’ drug-using behavior.33 The
drug court model was formalized when the National Association of Drug Court Professionals partnered with the U.S.
Department of Justice’s Office of Justice Programs in 1997
to publish The Key Components,34 which provides 10 guiding principles of operating an effective drug court. To receive federal drug court funding, states and localities must
comply with these 10 components.35

The Ten Key
Components are:
(1) Integration of substance abuse
treatment with justice system case
processing;
(2) Use of a nonadversarial approach, in
which prosecution and defense promote
public safety while protecting the right
of the accused to due process;
(3) Early identification and prompt
placement of eligible participants;
(4) Access to a continuum of treatment,
rehabilitation;
(5) Frequent testing for alcohol and illicit
drugs;
(6) A coordinated strategy among the
judge, prosecution, defense, and
treatment providers to govern offender
compliance;
(7) Ongoing judicial interaction with each
participant;
(8) Monitoring and evaluation to measure
achievement of program goals and
gauge effectiveness;
(9) Continuing interdisciplinary education
to promote effective planning,
implementation, and operation;
(10) Partnerships with public agencies and
community-based organizations to
generate local support and enhance
drug court effectiveness.
U.S. DEPT. OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, DRUG
COURTS: THE SECOND DECADE 3 (2006).

The number of drug courts has grown from single digits in
the few years after the creation of the Miami-Dade Drug
Court to more than 2,000 drug courts today.

America’s Problem-Solving Courts:

Drug Court Procedures
Drug courts employ a standardized set of procedures that
include initial assessment and continuous monitoring. The
drug court judge monitors the progress of the participants
through regularly scheduled status hearings.36 Before participants meet with the judge in court, however, the drug
court team generally discusses the progress of the participant in a backroom meeting called a “staffing.” Sanctions,
such as community service or time in jail, may be imposed
by the judge if a participant relapses or violates the program
rules. Serious or repeated violations may lead to a termination hearing at which the judge considers whether a participant should be removed from the drug court program.

Categories of Drug Courts

Drug courts employ three basic models: (1) pre-plea/preadjudication, (2) post-plea/pre-adjudication, and (3) postadjudication.37 The trend is toward increased use of the
post-adjudication model.38
In pre-plea/pre-adjudication programs, the defendant enrolls in drug court without entering a guilty plea or going
through the trial process.39 If participants complete drug
court, charges are dismissed. If participants fail to complete
the program, however, they proceed to the traditional court
model and suffer no increased sanction for failure.
Conversely, in post-plea/pre-adjudication programs, participants enter a plea that is held in abeyance while they
complete the program. Similar to the pre-plea programs,
successful completion leads to dismissal of the charge.40 If
a participant fails, however, the deferred plea is entered and
sentence imposed.

Drug Courts Over Time
2000

Finally, in post-adjudication programs, defendants plead
guilty and face a suspended sentence while they participate
in the drug court.41 If they fail to complete treatment as part
of the suspended sentence, a prison sentence is imposed.
This is much like probation, except the judge is more actively involved, as explained further below.42

Nonadversarial Approach

Drug courts expect everyone in the court to work together
through a collaborative or “team” approach. The prosecution, judge, treatment providers, and defense counsel
are expected to join and participate as part of the team,
working to determine what is in the best interests of each
participant.43 “Best interests” looks beyond the narrow
focus on the particular charges and instead focuses on the
overarching issue of the participant’s sobriety. In exchange for being processed in this type of nonadversarial
environment, participants forfeit their traditional substantive or procedural challenges to the charges.44

Powerful Judges

Judges are actively involved throughout the drug court
process. Drug court participants meet with the judge frequently, often weekly in the early stages, to engage in
conversations about their progress and obstacles in their
treatment.45 Judges often engage in direct conversations
with the participant.46 Based upon the information provided by the participants and their drug counselors, the
judge may provide incentives or levy sanctions.

Stages of the Process

Participants’ cases may spend as long as five years in
drug court,47 although 18 months is typical.48 The time
spent in drug court is divided into three stages and varies
based on each participant’s circumstances and progress.
The three stages are detoxification, stabilization, and aftercare.49 Each stage has specific goals: detoxification
works to eliminate the participant’s physical dependence
on drugs; stabilization focuses on treating the participant’s craving for drugs over a sustained period of time;
and aftercare assists the participant in obtaining education or job training and remaining drug free.50
Drug courts are generally flexible, working at each individual’s pace. Court personnel and participants understand that the process is a slow track to recovery.51 Each
stage has specific requirements and goals that participants
must satisfy before progressing. If participants struggle
with staying off drugs after they reach a new stage in the
process, they are usually moved back to an earlier
phase.52

0
1989

2009

Those participants who complete all three stages graduate from drug court.53 A graduation ceremony is usually
held at the court to recognize the achievement. Some

The Criminal Costs of Treatment and the Case for Reform

Introduction

17

18

courts seal the arrest record of participants with no previous felony conviction.54 Under existing federal law, however, undocumented immigrants often face deportation.55

ticipants in improving their personal situations. For example, free bus passes assist participants in transportation to
their drug court obligations.65

Judicial Sanctions

Participants

Drug courts anticipate that participants may stumble during treatment and revert to using drugs. Consistent with
their overarching goal of participant success, drug courts
are generally flexible in addressing temporary setbacks,
such as when urinalysis tests show the participant has relapsed.56 Courts employ a variety of mechanisms to motivate participants, including the proverbial “carrot and stick”
technique.57 The carrot, or reward, allows individuals sent
to drug court to remain in the community and avoid a jail
sanction while gaining treatment for their addiction.58 This
is countered with the stick, or punishment, which provides
graduated sanctions for noncompliance with the treatment
regimen, up to and including termination from the program
and a return to the traditional criminal justice system.59

“The amount of hearsay
and gossip that sometimes
is discussed at the
meetings is troublesome.”
— Maryland lawyer

Drug courts describe sanctions as “smart punishment.”60
After meeting with participants, judges impose sanctions
to encourage compliance when participants have tested positive for drug use or otherwise failed to comply with program requirements.61 Sanctions generally start low but
increase as the judge deems necessary. These sanctions
often include additional educational assignments, work details, and community service.62 Further, when the lowerlevel sanctions are not effective, the judge may impose
“motivational jail” for a short period to provide a preview
of the possible outcome if the individual does not successfully complete the program.63

Drug courts are unquestionably successful for some substance-dependent defendants. The Task Force heard and
read numerous stories from rehabilitated addicts. It is nothing short of “inspiring” that a decade after drug treatment
court, individuals are “employed, back with their families,
paying taxes, and giving back to the community.”66 Some
former drug court participants even become counselors and
provide help to others.67 One such story was from Monica,
who completed the Brooklyn Drug Treatment Court. She
was 53 years old, had 47 prior arrests, and had failed four
prior long-term treatment attempts.68 Drug court proponents
also tout the successes of other participants, such as “the
Texas architect who did not lose his professional license” or
“the California mother who, as a drug court graduate, inspired her alcoholic father to seek recovery after 40 years of
addiction.”69 The successes are impressive.
Even those who succeed, however, are sometimes saddled
with a conviction. Drug courts resolve a criminal prosecution without a conviction only for those who graduate from
pre-adjudication programs. This is especially important for
young people who want to go to college and would otherwise be precluded from receiving a Pell grant and other student aid if they have a felony drug conviction.70
Increasingly, however, post-adjudication drug courts are
being used,71 which leave participants with convictions on
their record and undermine any true sense of rehabilitation
and recovery.
The Task Force did not hear from drug court failures or
drop outs. However, it is incontrovertible that for every person who graduates from drug court, others did not qualify
or did not complete the program. The Task Force was unable to locate and hear from some of these thousands of
people and learn from their stories. Yet, understanding their
plight is important to a full understanding of drug courts.72

Conversely, rewards are offered when participants show
progress. For instance, t-shirts, mugs, and key chains may
be provided to recognize and reward participant progress.64
More substantial rewards may also be provided to aid par-

America’s Problem-Solving Courts:

19

The Criminal Costs of Treatment and the Case for Reform

DECRIMINALIZATION:
THE SMART, FAIR, ECONOMICAL,
AND EFFECTIVE ALTERNATIVE
20

T

he criminal justice system is overwhelmed with cases. Nearly 2,000,000 Americans are
arrested each year for drug crimes, and 500,000 are currently incarcerated for a drug
offense.73 These victimless crimes should never enter the criminal justice system.

Address substance abuse as a public health issue
— not a criminal justice issue.

Drug treatment should be freely available to every person addicted to drugs, not simply those who become ensnared in the criminal justice system. Studies suggest that those who voluntarily seek treatment at the point in
their lives when they are most ready for treatment are most likely to succeed.74
NACDL has long believed that “addiction to any substance, whether legal or illegal, is really a health problem
best treated by the medical community and others trained in the causes and treatments of addiction.”75 The editors of the National Review aptly concluded more than a decade ago “that the war on drugs has failed, that it
is diverting intelligent energy away from how to deal with the problem of addiction, that it is wasting our resources, and that it is encouraging civil, judicial, and penal procedures associated with police states.”76 The
Task Force reiterates NACDL’s longstanding support for the decriminalization of all controlled substances and
the creation of a Department of Drug and Addiction Services (DDAS) which shall sell previously denominated
controlled substances to any person over the age of 21 at prices below their street value so as to end the black
market in drugs while setting aside a portion of the revenues collected to establish and maintain free clinics nationwide for drug education and the treatment of addiction.77

The war on drugs “is diverting
intelligent energy away
from how to deal with the
problem of addiction.”
— National Review

Drug usage would likely decline—not increase—if all drugs were
decriminalized. A 2007 Zogby poll asked more than 1,000 Americans if they would be likely to use hard drugs such as heroin or cocaine if they were legalized, and less than one percent responded
yes.78 The Economist, which has supported legalization for the past
20 years, recently reiterated its position and encouraged “providing honest information about the health risks of different drugs,”
which “could steer consumers towards the least harmful ones. . . .
Legalisation might encourage legitimate drug companies to try to
improve the stuff that people take. The resources gained from tax
and saved on repression would allow governments to guarantee
treatment to addicts . . . .”79 Economics Professor Jeffrey Miron
concluded in a 2005 study that “legalizing marijuana would save
$7.7 billion per year in government expenditure[s] on enforcement
of prohibition” and could “yield tax revenue of $2.4 billion annually if marijuana were taxed like all other goods and $6.2 billion

America’s Problem-Solving Courts:

annually if marijuana were taxed at rates comparable to
those on alcohol and tobacco.”80
Comparisons with European nations further suggest that decriminalization would not lead to increased drug use. Although nearly 33 percent of Americans have tried marijuana
in their lives, despite it being illegal here, only 15.6 percent
of the Dutch population has used marijuana, even though it
is legal.81 Moreover, 5.1 percent of Americans surveyed in
1997 used marijuana within the past month compared to
2.5 percent of those in the Netherlands.82 These results hold
true for young adults. In the Netherlands, young adults
(aged 15-24) consume cannabis less than in the UK and
Spain, where drugs are illegal.83
Most telling, Portugal explicitly decriminalized all drugs in
2001.84 The rationale included enabling effective treatment
options to addicts by removing the stigma attached to criminal prosecution and freeing up resources that could be used
for treatment.85 Decriminalization has been successful by
virtually every measure. Drug usage has decreased among
key demographic groups, and the populace has been more
willing to seek treatment.86

Although U.S. politicians have been unwilling to engage in
a serious debate about legalizing drugs, the broader public
has shown interest in the issue. During President Obama’s
first online town hall meeting, the most submitted questions
involved legalizing marijuana.87 As voter initiatives in California and Arizona suggest, the public is often ahead of
politicians in its willingness to try innovative approaches
to solving persistent problems.88 Even some law enforcement officials have concluded, “To save lives and lower the
rates of disease, crime and addiction as well as to conserve
tax dollars, we must end drug prohibition.”89

21

The Task Force is encouraged by recent comments from the
nation’s new drug czar, Gil Kerlikowske, who has suggested
a shift from incarceration toward treatment.90 His shift away
from the “War on Drugs” rhetoric and recognition that
“[w]e’re not at war with people in this country” is a step in
the right direction.91 These comments must be supported by
adequate budget requests and concrete policy proposals.92 A
vigorous public debate about decriminalization, including
the experience of European nations, the associated costs savings, and the availability of treatment, is long overdue.93

The Criminal Costs of Treatment and the Case for Reform

Decriminalization

DRUG COURTS IN ACTION:
OPERATION, ISSUES, AND PROBLEMS
22

Criteria and Eligibility for Admission

Drug courts are not available everywhere or to everyone. Prosecutors generally dictate or have a substantial role
in establishing the criteria for admission as well as determining which individuals are actually admitted.94 Some
courts have established criteria while others have unwritten and inconsistently applied criteria.95 The extent to
which drug courts open their doors and to whom those doors are opened are critical areas in need of sound
methodological studies.96
Eligibility criteria vary. Some courts accept only individuals charged with misdemeanor drug offenses.97 Others cast a wider net and accept those charged with felony drug offenses, as well as with offenses committed while
the defendant was under the influence of drugs, even if the charge is not primarily a drug offense. “Notably, a
sizeable percentage of felony-level drug treatment courts in [New York] currently accept only first-time felony
offenders.”98 Similarly, the Pascua Yaqui tribal drug court in Arizona has no written criteria but unofficially prosecutors “do not like repeat offenders. They do not like violent crimes or any offense involving a law enforcement officer.”99 In Montgomery County, Maryland, where the judge previously made acceptance determinations
after discussion with the team, the prosecutor is now the gatekeeper.100
Defendants charged with crimes of violence are excluded from drug court in many jurisdictions.101 This can lead
to the wholesale exclusion of persons with mental illness. As a lawyer from Florida explained, “People who are
bipolar usually hit other people; however, the State Attorney prohibits anyone with a battery charge from getting
into any of the programs.”102 Other jurisdictions exclude those who have previously been convicted of a prior
crime of violence. These definitions are often so broad as to exclude those defendants with prior or current offenses that in no way correlate to any clear and present danger of violence. Some of these restrictions were the
product of restrictions imposed by the federal government, which offered millions of dollars in grants to programs
that met certain requirements.103 Currently, a “violent offender” for federal funding purposes is a person who:
(1) is charged with or convicted of an offense that is punishable by a term
of imprisonment exceeding one year, during the course of which offense
or conduct —

“[M]any drug courts skim.
They . . . have exclusion
criteria to pick people who
are more likely to do well.”
— Dr. Peter Banys

(A) the person carried, possessed, or used a firearm or dangerous
weapon;
(B) there occurred the death of or serious bodily injury to any person; or
(C) there occurred the use of force against the person of another,
without regard to whether any of the circumstances described
in subparagraph (A) or (B) is an element of the offense or conduct of which or for which the person is charged or convicted;
or

America’s Problem-Solving Courts:

(2) has one or more prior convictions for a felony crime of
violence involving the use or attempted use of force
against a person with the intent to cause death or serious
bodily harm.104
The effect of the prosecution’s gatekeeping role combined
with prohibitions against admission of defendants charged
with or convicted of felonies or so-called crimes of violence
can raise insurmountable barriers to defendants wishing to
enter drug court. For example, in Pima County, Arizona,
defendants are technically eligible for drug court only if
they have no prior felonies and no more than two minor
drug offenses, but even those meeting that threshold may
not be admitted.105 The County Attorney ultimately makes
the decision and has no published criteria for admission but
a “preference” for individuals the prosecutor “think[s] will
be successful.”106
As one policy analyst testified, “one of the most frustrating
things” is the “different barriers to participation,” some of
which are imposed merely for “political reasons.”107
“[M]any drug courts skim. They . . . have exclusion criteria to pick people who are more likely to do well.”108 Different prosecutorial personalities should not lead to
diversion in one case and a felony in a similar case. Simply
put, “[t]hat’s indefensible.”109

High-risk offenders are “likely not to do well in treatment,”
which means those individuals “need more intensive treatment.”115 As a result, in many jurisdictions, prosecutors will
not admit “high-risk” individuals and thereby are “screening out of drug courts exactly the core prognosis cases that
need to be in drug court . . . .”116 Drug courts should include
“the people who would be facing substantial time either in
incarceration or some community correctional programming that restricts their freedom . . . .”117 President Obama’s
desire to offer alternatives to prison is commendable, but
limiting diversion options to “first-time, nonviolent offenders”118 leaves out those who most need the help and are
likely to cost society the most to incarcerate.119
The Task Force agrees wholeheartedly with the judge who
testified he was “tired of everybody talking about being
tough on crime. It’s about time we get smart on crime.”120
The criteria and process for admission into drug court are
guided largely by tough-on-crime politics, focusing on firsttime or nonviolent offenders, with little consideration of
smart-on-crime approaches that target those most in need of
intensive treatment who would otherwise spend a long time
in prison.

The eligibility criteria and the blanket prohibitions have
contributed to serious concerns about racial and socio-economic class discrimination in admission policies. For example, in Pima County, defendants in drug court are largely
Caucasian. African-Americans and Hispanics “are way
under-represented.”110 Others who have visited many drug
courts reported, “I’ve been to drug courts where I have seen
not one client of color.”111
The admission criteria may also create serious consequences
for the immigrant population in drug courts, which may restrict the admission of nonresidents or be unable or unwilling to accommodate those who do not speak English.112 At
least one appellate court has reversed a trial judge’s exclusion of an entire class of undocumented defendants.113

Recommendations — Criteria and
Eligibility for Admission
Admission criteria must be revised to
end skimming.

Many drug courts exclude any person charged with a crime
of violence, even though substance abuse treatment may be
particularly useful to those charged with crimes of domestic violence. Other courts exclude participants with mental
health diagnoses, who could also benefit greatly from appropriate treatment. However, “co-occurring disorders are
best served in treatment programs that can simultaneously
provide mental health and addiction treatment using practitioners trained in both domains.”114

23

“I’ve been to drug courts
where I have seen not one
client of color.”
— Tim Murray
Not all drug courts avoid the difficult cases. Some drug
courts have adopted policies and practices that belie the
criticisms of skimming and playing politics. The drug court
in Waterloo, Iowa, for example, was established “purposefully” to deal with individuals who have been to prison at
least once if not two or three times.121 The court hears all
kinds of cases including “forgeries, burglaries, thefts” committed by drug-addicted defendants.122 Similarly the drug
court in Eau Claire County, Wisconsin, decided “to deal
with the frequent flyers in the prison, that’s where we would
get the biggest bang for our buck.”123 These drug courts are
models to emulate in crafting criteria for individuals appropriate for drug court.

Judges in traditional courtrooms
should be encouraged to use innovative drug court techniques in their
courtrooms.

The innovative approaches to solving underlying problems that are used in drug courts can and should be used

The Criminal Costs of Treatment and the Case for Reform

Drug Courts

24

in traditional courts as long as participants’ due process
rights are protected. The Task Force heard from successful drug court participants and also from others who were
ineligible for drug court but who managed to resolve their
addiction issues in other ways. They were successes, not
because of drug court, but despite it. For example, Jeff
Jeffery was excluded from drug court because his prior
offense involved a drug sale.124 He “should have went and
served a six-year prison term. Instead, [the judge] hung
onto me in her court, kept me in her jurisdiction, [like an]
‘independent drug court.’”125 Rhonda Reagan “had been
on drugs for 20 years,” including 14 on heroin.126 After
many failed attempts at treatment, a parole officer gave
her a chance with a life-skills program for women.127 Candice Singer did not qualify for drug court because of the
severity of her crimes but was admitted when she hired a
private attorney with “relationships with the prosecutor,
relationships with the judge.”128
Although all three of these individuals impressively completed drug treatment and are now living productive lives,
they could never have done so under traditional admission
criteria and policies. The judges who presided over the
prosecution of these defendants adopted some of what is
best in drug court: a desire to look beyond failed traditional
approaches and take an innovative and intensive approach
to the underlying problem.

“I am tired of everybody talking about
being tough on crime. It’s about time
we get smart on crime.”
— Judge Tom Bower
Prosecutors must relinquish their
role as gatekeeper. Admission criteria should be objective and broad.

Every defendant who needs treatment should be presumed
eligible for a drug court program. Currently many courts
have no official criteria or stated criteria that are backward
or counterintuitive.129
Admission criteria must be transparent and fully disclosed.
This is not revolutionary. Proposition 36, the voter initiative
that mandated treatment instead of incarceration in California, provided “no judicial discretion or prosecutorial discretion regarding who gets into the program.”130
Prosecutors often take a safe and restrictive approach to eligibility. A new prosecutor who does not approve of the
drug court approach can unilaterally abolish it by simply

denying entry, as occurred for several months when a new
prosecutor began in the Pascua Yaqui tribe.131 Prosecutors
may worry that drug court cases are “headlines waiting to
happen,” with significant “political risk” to elected prosecutors.132 Expansive criteria for admission to drug courts
should be adopted, which would remove the decision-making authority of prosecutors.133 Acceptance decisions must
be made instead by a panel or commission with broad representation including the judge, prosecutor, defense, and
social services.

Crimes of violence must not be categorically excluded.

When those charged with domestic violence offenses are
screened out of drug court, where do they go? Probation.134
This leads to the odd result of “the domestic violence offender who gets drunk and beats his wife up checking with
his probation officer once every six weeks” while nonviolent offenders are appearing regularly for status hearings,
giving random weekly urine samples, and attending 90
meetings in 90 days.135
Defendants with a history of violence could be assessed
based on factors such as “the nature of the offense (isolated
minor assault versus arson, robbery, etc.); severity of the
offense; years at liberty since the offense occurred; number
of previous violent offenses, etc.”136 Although some recommend this assessment occur on a “case-by-case basis,”137
uniform policies are preferable to avoid the wholesale exclusion of defendants who merely have an isolated prior violent offense. Any risk assessment must be based on valid
social science.138

Timing of Admission
And Discovery Issues
Although drug court is potentially a life-altering decision,
there is often little time for defendants to decide whether to
enroll, especially in those jurisdictions employing a postplea/pre-adjudication model. Defendants arrested in Brooklyn have one day to decide.139 Those arrested in the Bronx
generally have three to four days.140 Although other courts
may allow more time,141 time alone is not the issue.
Discovery is essential to allow defense counsel to advise
the defendant on the best course of action. As a lawyer from
Florida explained, “[d]rug court attempts to short-circuit
the discovery process. This is done by not providing complete discovery or even a witness list,” which makes it impossible for counsel to advise clients about entry.142 Those
courts that require a decision within days of arrest do not
provide discovery to participants. In other courts, discovery
must be provided before a decision is made.143 As one prosecutor put it, “[t]he earlier we get the discovery to the defendant, the faster an individual consults with their client
and gets them into drug court.”144

America’s Problem-Solving Courts:

Discovery is of little value when counsel is precluded from
litigating motions. A defense lawyer in Wisconsin testified
he was always provided with discovery before a client decided whether to enroll in drug court.145 However, if motions were litigated, the ability to enroll in drug court could
be removed.146 In Travis County, Texas, defendants “either
go in the drug court or you go litigate your case; you don’t
do both.”147 The general guideline of the Pima County Attorney’s Office is to offer a plea at the outset of the case. If
the defense files motions, the plea is no longer available.148
As one county attorney put it, “[I]f you file a motion to suppress, we win, now you’re going to trial.”149 As a New York
lawyer noted, “it doesn’t matter how egregious the stop or
search was — you want to litigate, there’s the door to the
‘real’ courtroom. Entry into the ‘program’ is conditioned
upon a guilty plea and no motions — period.”150 Although
some prosecutors told the Task Force that cases are carefully screened for search and seizure issues,151 defense attorneys are justifiably unwilling to abdicate the protection
of Fourth Amendment rights to the prosecutor.

Recommendations — Timing of
Admission and Discovery Issues
Drug courts must use a pre-plea, preadjudication model.

If society is serious about solving the underlying problem
of addiction, treatment must be universally available and
never conditioned on an arrest, much less a plea of guilty.152
To the extent that the criminal justice system is involved,
a pre-plea, pre-adjudication model is superior for many
reasons. It is the only model that affords defendants sufficient time to obtain discovery, to investigate the facts, and
to carefully and thoroughly evaluate the choices presented.
Moreover, the pre-plea, pre-adjudication model provides
a valuable incentive for seeking treatment. Upon completion, charges will be dismissed and the record may be
sealed.153 If participants fail, the traditional court process
can be pursued. Pre-plea approaches avoid the significant
due process, ethical, and immigration concerns arising in
the post-plea models.154
If, alternatively, drug courts use a post-plea model, they
must allow adequate time for review of discovery and litigation of motions. Many post-plea, pre-adjudication models prevent informed, careful decision-making and too
hastily extract waivers of fundamental rights. Defendants
must choose the drug court option quickly or lose the opportunity for treatment. They frequently lack sufficient time
to make informed decisions, are deprived of an opportunity
to obtain discovery, and are prevented from litigating motions. Drug courts must not become a perverse game of
“Let’s Make a Deal,”155 forcing defendants to plead guilty
without knowing what’s behind door number one (discovery and motions) or door number two (time to reflect on the
important decision with the advice of counsel).

“Drug court attempts to short-circuit
the discovery process.”
— Florida lawyer
Otherwise, this approach imposes impossible ethical quandaries on defense counsel.156 Moreover, post-adjudication
programs do not offer the incentives of dismissal and expungement available through pre-adjudication programs.157
This may diminish their effectiveness.158
In addition, a pre-plea model is necessary to guard against
abusive or sloppy police work. When defendants do not receive discovery and cannot litigate motions, police are not
held accountable for violations of the Fourth Amendment.
Although many street stops are illegal,159 they go unchallenged when cases go to drug treatment court days after arraignment with no review of discovery or litigation of
motions to suppress. Lawyers have stopped trying cases,
especially buy-and-bust cases that historically had a high
acquittal rate.160 Risk of trial is simply too high when the
penalty for losing is five to 10 years in prison as opposed to
no prison time if treatment is successfully completed.161 As
a result, “police officers aren’t being held to any kind of
questioning anymore in drug cases.”162 “Very rarely is there
a thought that [police are] going to be challenged in a courtroom under oath and questioned and cross-examined by defense lawyers.”163

25

Finally, as explained below, only a pre-plea model will protect immigrants from deportation or refused re-entry under
existing standards and criteria that are often confusing, arbitrary, and misleading.164
In short, nothing is lost by allowing a defendant to enter
drug court without first pleading guilty.165 Any concern that
prosecutors may have difficulty in proving a case if a par-

“It doesn’t matter how egregious the
stop or search was — you want to
litigate, there’s the door to the ‘real’
courtroom. Entry into the ‘program’ is
conditioned upon a guilty plea and

The Criminal Costs of Treatment and the Case for Reform

no motions — period.”
— New York lawyer

Drug Courts

“Very rarely is there a thought that
[police are] going to be
challenged in a courtroom under
oath and questioned and crossexamined by defense lawyers.”
— Robin Steinberg

26

ticipant fails drug court is largely overstated. Most drug
cases involve police officer testimony, often with surveillance, and physical evidence of drugs. Putting together a
case with this type of evidence, which is stored in a secure
evidence locker, will not be hampered by delay. Moreover,
prosecutors may protect their cases by requiring defendants
to waive their right to a speedy trial.

In order for defense counsel to properly advise clients, adequate time must
be provided to allow defendants to decide whether to enroll in drug court.

Defense counsel must have an opportunity to review discovery, investigate the case, advise clients, and litigate motions
before entry into a drug court that requires a guilty plea. The
National Association of Drug Court Professionals’ Key Component No. 3 advocates for initial court appearances “immediately after arrest or apprehension” and requires enrollment in
treatment “immediately.”166 Regardless of any possible treatment advantages—and the Task Force heard no specifics—an
immediate decision does not permit sensible consideration of
the ramifications of a criminal prosecution. The rapid turnaround is similar to and even more troubling than the “meet
and plead” approach in many misdemeanor courts.167
Although rapid entry decisions are required in many drug
courts across the country, they appear unnecessary to suc-

“The opportunity to apply for a
pretrial diversion/intervention
program should be available as soon
as possible to eligible defendants
from the point of the filing of formal
charges through final adjudication.”
— National Association of
Pretrial Services Agencies

cessful treatment and make the review of discovery and investigation of the merits of the case impossible. As one
treatment professional explained, enrollment in treatment
within a couple of weeks or as much as 30 days would be
“excellent.”168 In Philadelphia, prosecutors generally provide discovery within 10 days and defense counsel are
given an opportunity to review that discovery and litigate
motions before entry.169 Moreover, some courts “give defendants several weeks to test out treatment while their case
is still pending,” which creates a double benefit: counsel
can investigate the case and clients can decide whether to
opt into or out of the treatment program.170
If drug courts are truly designed to solve the underlying
problem of drug addiction, there is no reason to prevent
people from enrolling, getting treatment, and getting well at
any point in the proceeding. This occurs in some drug
courts as an exception but should instead be the rule.171 The
Task Force heard no rationale for limiting enrollment in
drug court to the early stages of proceedings. “The opportunity to apply for a pretrial diversion/intervention program
should be available as soon as possible to eligible defendants from the point of the filing of formal charges through
final adjudication.”172

The state must have a triable case.

Drug court procedures and protocols must make clear that
drug courts cannot be dumping grounds for weak cases that
the prosecution would otherwise be unable to win. Providing discovery and allowing time for investigation and the
litigation of motions are necessary to ensure that prosecutors
do not use drug court to “dump” weak cases. Defense counsel must have time to raise challenges to cases with significant legal or factual difficulties. Prosecutor offices must also
review internal decisions about which cases are sent to drug
court to make sure that weak cases, which should ethically
be dismissed, are not disposed of in drug court.

Immunity must be granted to all
statements made in drug court.

Drug court agreements or legislative enactments should ensure that nothing said in drug court can be used against a
participant in any future proceeding. Prosecutors largely
agreed that statements made in drug court should be offlimits; some even suggested a prosecutor who used incriminating statements made in drug court should be
disbarred.173 This is largely an unwritten rule, though, which
must change. Key Component No. 2 speaks against “the filing of additional drug charges” based on an admission in
drug court.174 The prohibition in Component No. 2 should
be broadened to include a ban on filing any type of additional charges.175 Statements made as part of treatment,
often under direct questioning from the judge and sometimes without counsel, should not later be used against a
participant in any way. To ensure this occurs, every drug
court contract should explicitly state that anything said as
part of treatment in drug court cannot be used against a participant in any subsequent proceeding.

America’s Problem-Solving Courts:

Philadelphia:
A promising, albeit
imperfect, example

efore entering drug treatment court in
Philadelphia, the defense receives full discovery
and clients are extensively advised of “everything
there is to know about the program,” including a day
observing status hearings to understand how the
court operates.176 Participants are guaranteed that
“everything they said could not be used at all outside
of treatment court, not on probation or parole or
anything else.”177 This guarantee is “written into every
colloquy and signed by the district attorney.”178

B

Clients are not asked to consider drug court until
about 10 days after arrest and are given an
opportunity to think about the decision while a
clinical assessment is scheduled.179 The clinical
assessment is usually completed when the client
returns for an appearance 20 days later.180 Although
prompt treatment is often emphasized for drug
treatment court, the delay to allow clients to reflect
on the important decision and for counsel to review
discovery appears not to have taken a toll on the
success of the participants, 92 percent of whom
“have remained conviction free and drug free for a
year to 18 months.”181

The Judicial Role

Drug courts are highly personality-driven, relying on the active involvement of judges. Hundreds of judges have committed years of their lives to tirelessly working for better
outcomes for participants in drug courts. Lawyers who appear before them and the participants who have charted new
directions in their lives expressed a great deal of satisfaction and thanks to the judges. Participants are successful in
no small part because of their regular appearance before
judges.182 The active role of a judge who is genuinely interested in helping a person battle addiction is preferable in
many ways to probation officers who may have a law enforcement mentality and an overwhelming caseload. Many
defendants view a probationary sentence as a “joke. And
what they mean is nobody cares and nobody is watching.”183

Drug court graduates often attribute their success not to the
program but to the individual judge who presided over their
case.184 However, there is no guarantee that all judges will
be “good.” There is no personality test for judges prior to
assignment in drug court, and even “good” judges sometimes move to other courts or retire. Simply put, “we can’t
be sure that there is always going to be that good and benevolent judge who’s running these courts.”185 Judges change
and so can sanctions and policies, unless they are codified
in statute or in drug court agreements.
The pervasive and activist role for judges in drug courts
must have limits. When participants enter drug court they
would be well-advised to “[p]repare to turn your life over
to this judge and her whims for at least the next year or
two.”186 One judge candidly admitted that he did things that
were “absolutely over the line in the canons of judicial conduct,” such as midnight curfew checks on participants and
sitting in on treatment meetings.187 Another judge described
himself as “a case manager for 2,000 clients. . . . I would get
calls from defendants all the time.”188

27

The judicial role raises especially troubling questions when
unrepresented litigants are involved. Judges should not
make a “sales pitch,” subtly pushing litigants into drug court
by letting them know if they go to trial and lose, “I could
sentence you up to the maximum.”189 When judges “pressure clients into treatment,” they become “just another coercive arm of the state by adopting principles of ‘harm
reduction.’”190
Moreover, drug courts give rise to serious ex parte communication concerns.

A former drug court judge believes this commonly occurs
with “all this exchange of information” in which “people
think they can just come to a judge and say, hey, you ought
to know this, this and this . . . .”191 Treatment providers should
not discuss matters outside the presence of counsel, which
appears to occur with some regularity in drug courts.192
The ABA Model Code of Judicial Conduct was significantly revised in February 2007. Rule 2.9 generally prohibits ex parte communication, although one provision now

“Prepare to turn your life over to
this judge and her whims for
at least the next year or two.”

The Criminal Costs of Treatment and the Case for Reform

— Professor Josh Bowers

Drug Courts

provides: “A judge may initiate, permit, or consider any ex
parte communication when expressly authorized by law to
do so.”193 The comment explains:
A judge may initiate, permit, or consider
ex parte communications expressly authorized by law, such as when serving on
therapeutic or problem-solving courts,
mental health courts, or drug courts. In
this capacity, judges may assume a more
interactive role with parties, treatment
providers, probation officers, social
workers, and others.194

28

Several states have adopted the revised code, and many others have committees considering its adoption.195 It is unclear when ex parte communication becomes “expressly
authorized by law” under the model rule. One reading suggests any problem-solving court provide authorization, but
some jurisdictions have adopted specific rules to provide
this express authority.196

Recommendations — The Judicial Role
Judges must not directly or indirectly
coerce defendants to secure waivers
of counsel.

The decision to enroll in drug court must be voluntary and
can only be voluntary if it is made after a full explanation of
the function and policies of drug court. Detailed handbooks
for participants and contracts should be used.197 Moreover,
defendants should be encouraged, if not required, to observe
drug court proceedings before an enrollment decision is
made. For example, in Dallas County defendants first participate in an orientation during which they observe drug
court proceedings and talk with participants.198
Any waiver of counsel must be knowing, intelligent, and
voluntary.199 Although the Supreme Court has held no specific formula is constitutionally required for a waiver, some
state courts have adopted specific rules and warnings that
must be provided.200 Counsel has a crucial function
throughout the drug court proceedings.201 Any waiver of
counsel may only occur after a careful and detailed explanation of the important right being waived.

Drug courts must do everything
possible to ensure that every lawyer
who wants to appear in drug court
has the opportunity to do so.

Although many judges lamented that counsel frequently
failed to appear in drug court, the structure of drug court
often discourages appearance of counsel.202 This must
change. Courts should insist that counsel attend staffings
and hearings by providing notice and sanctioning nonap-

pearance. Notice of positive drug screens and the scheduling of sanction hearings must come directly from the court.
Counsel cannot be expected to rely on clients to notify them
of test results or hearings. Moreover, courts could engage in
“more careful scheduling of staffing hearings so that the
clients of a given attorney are all heard on the same calendar . . . .”203 Teleconferences or videoconferences could be
used in some circumstances.

Sanctions must be imposed in a fair
and consistent manner.

Drug courts should promulgate guidelines for the imposition of consistent sanctions and maintain records of sanctions. Failing to follow a graduated sanctions approach
“threatens inconsistent and arbitrary outcomes,”204 which
may not only lead to poor outcomes but also may lead participants to rightfully question whether they are being treated
fairly. Litigants who believe they are treated fairly are more
likely to comply with program requirements and succeed.205

The judge who guides treatment
should not be the judge who determines termination or hears the underlying case after termination.

The drug court judge should generally not be involved in the
litigation of issues related to the merits of the criminal case or
preside over a hearing regarding the defendant’s termination
from the drug court program. The drug court judge will be
using some degree of coercion to compel participants to stay
clean and complete the program. Pressure and coercion, however, must be constrained by due process and consistency.
There is a “hammer” hanging over participants’ heads and that
hammer can be “wielded pretty arbitrarily” in some cases.206
Judges may feel personally involved with each participant’s
success or failure, which are subjective issues.207 The judge
may believe the team has done everything it can to help the
person succeed, and as a result the judge may feel angry or
offended at a participant’s lack of progress and be inclined
to punish what seems like failure. Moreover, the judge will
have “a dramatically greater amount of information than a
judge would have in a traditional situation.”208 The Idaho judicial canons were recently amended to make clear the judge
in drug treatment court who has received ex parte information cannot preside over a termination hearing.209 The Oklahoma Criminal Court of Appeals acknowledged the
potential for bias when a judge is required to act as a “team
member, evaluator, monitor and final adjudicator in a termination proceeding,” which “could compromise the[ir] impartiality . . . .”210 The Oklahoma approach requires recusal
upon request from the defendant.211 This allows each participant the opportunity to decide. “[I]n many circumstances
they will want that particular judge making those ultimate
decisions, because that judge understands the individual, and
the nature of the addiction, whereas [another judge] down
the hall may not, and will bury the individual.”212

America’s Problem-Solving Courts:

Ex parte communication must never
be permitted.

Although many states have already adopted the 2007 ABA
Judicial Code of Conduct, states should not adopt those
parts of Rule 2.9 that allow for ex parte communications in
drug court. There is simply no reason to make an exception
to longstanding prohibitions on ex parte communications
for drug courts. Progress reports should be provided to the
judge, defense attorney, and prosecutor at least one day in
advance of any proceeding. Moreover, as explained in the
defense counsel section of this report, counsel must be kept
abreast of drug court staffings and hearings and counsel
should be required to attend.213 Making counsel’s appearance optional simply harms clients, who are left without an
advocate, and encourages ex parte communications, which
are always problematic, no matter how well-intentioned.

Drug court assignments must go to
experienced, interested judges who
remain for more than a year.

Drug court judges are crucial to the court’s success. In systems
in which judges are appointed, new judges should not be assigned to drug court. An experienced judge is better equipped
to address the many challenges described above. Moreover,
only judges who express an interest in drug court should be assigned. The position should not be viewed as an entry level one
that judges cannot wait to escape.214 Rather, drug court should
be seen more as a “career opportunity for a judge who really
wants . . . to become an expert at this type of assignment . . . .”215

more troubling. A lawyer recounted a recent case in which
the client could plead upfront for five years or enter a treatment program and face as much as nine years if the client
failed.221 In a Nebraska drug court, participants who were
terminated from drug court received “the harshest possible
sentence regardless of how long someone has participated
and regardless of a lesser punishment if they had been sentenced to probation and had violated or had simply been sentenced to jail originally.”222 Similarly, a public defender from
California reported that a judge “automatically gave any
failure the maximum prison sentence.”223

Recommendations —
The High Cost of Failure
Sentences for those who attempt
drug court must not exceed what
would have been imposed if the
standard plea was taken.

A public defender from California reported, “[s]ome drug
cases would get 60 days in jail, but because the defendant
has offended the court by failing to complete the program, I
have seen sentences as long as 10 months.”224 Judges should
not be offended at failure in drug court but rather should appreciate and reward genuine attempts to succeed. Longer sentences are inappropriate and cannot be justified as a means to
“set an example” for other drug court participants.225

Adequate time must be allowed for training. This includes
outside training conducted by organizations that specialize
in drug courts as well as on-the-job training with judges
who have previously presided in drug court.
For all of these reasons, drug court should be a long-term
judicial assignment. Judges should be assigned to drug
court for more than one year.

The High Cost of Failure:
Paying a Price for Trying
Except in pre-plea, pre-adjudication programs, participants
must pay a high price to enter drug court: they must enter a
guilty plea. A guilty plea is only part of the cost.
“[P]eople are punished for attempting to treat themselves
and failing.”216 The sentences in many courts are significantly higher for those who seek drug treatment and fail than
for those who simply avoid drug treatment and take a plea,
at both the misdemeanor and felony level.217 For example, a
simple crack possession case will usually net a 10- to 20day jail sentence in Manhattan.218 A defendant may wait 20
to 30 days for placement in a program.219 If defendants enter
a treatment program and fail, they may be sentenced to six
months in jail.220 For felony offenses, the disparities are even

29

“[P]eople are punished for
attempting to treat
themselves and failing.”
— Annalisa Mirón
Some amount of credit time should
be applied to the sentence of anyone
who spends several months complying with a drug court program and
working toward completion before
ultimately failing.

Defendants who are incarcerated pending trial earn credit
time toward any sentence imposed against them. Those who
spend months or even years working diligently to meet the
onerous drug court requirements and conquer their addiction, sometimes even through inpatient programs, are given
no credit for their efforts. Some even receive maximum
sentences and are ineligible for probation or early release.226
This should change. Courts should give some amount of
credit to those who have demonstrated a commitment to
completing the drug court program, even if they ultimately
end up falling a little short.

The Criminal Costs of Treatment and the Case for Reform

Drug Courts

ROLE OF DEFENSE COUNSEL
AND ETHICAL CONCERNS
30

Entry Into Drug Court

In city after city, the Task Force heard deep-seated concerns about the role of defense counsel and the contours of ethical obligations in drug court. Those concerns arose from the fundamental tension between the defense lawyer’s traditional role as a zealous advocate for clients and the drug court’s focus as a “nonadversarial, collaborative
approach”227 among the prosecutor, defense attorney, judge, and others in the attempt to assist participants’ work toward a drug-free future.
Drug court proponents often downplay ethical concerns by focusing on “the best interests of the client,” or those interests “within the given legal framework” of drug treatment court.228 According to a program lawyer in drunk driving court in Austin, however, “the issue of clients’ rights in these programs is one that is both unclear and . . . very
seriously needs to be addressed.”229 The drug court model raises fundamental ethical concerns about the lawyer’s role
as advisor, counselor, and zealous advocate of the client.230
Key Component No. 2 of the National Association of Drug Court Professionals’ Ten Key Components231 requires a
“nonadversarial approach” in which the “prosecution and defense counsel promote public safety while protecting participants’ due process rights.”232 It continues that the “responsibility” of defense counsel is the simultaneous protection of these rights “while encouraging full participation.”233 As a public defender in Texas put it, “the problem has
more to do with people wearing two hats and having to be one thing at one point and another thing at another and
that the drug courts don’t clarify what that role of the lawyer should be. They say you’re part of the treatment team,
you’re not this client’s lawyer, but then they have you sign documents as a defense lawyer.”234
There are three critical points in the drug court process at which the role of counsel and ethical issues must be examined: (1) entry into drug court, (2) staffings (backroom meetings), and (3) drug court appearances with the participant during which sanctions or termination may be pursued. In many ways throughout the different stages of the
proceedings, the prevailing drug court model contravenes ethical obligations of the ABA Model Rules of Professional
Conduct.
Under Model Rule 1.1, “[a] lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skills, thoroughness and preparation necessary for the representation.” This
rule requires defense attorneys to be familiar with the drug court program, including the range of sanctions that
could be imposed upon the participant as well as the consequences if the individual fails to complete the program.235 In the context of drug court, this rule presents difficulty for many attorneys guiding a client through
the process without a true understanding of the contours of drug court and the full range of consequences for a
client upon failure or noncompliance with the process.

Legal Issues

Under the traditional drug court model, an individual must waive significant rights when entering drug court,
even though litigants often do not have access to discovery before being asked to waive these rights.236

America’s Problem-Solving Courts:

Competent representation in drug court requires, first and
foremost, adequate time afforded to and used by counsel. A
quick enrollment deadline undermines the ability of counsel to investigate the case and may prevent counsel from
uncovering significant legal issues that could affect the disposition of the case. The relinquishment of rights with no
opportunity for investigation is troubling: “Either go in the
drug court or you go litigate your case; you don’t do
both.”237 Competent representation requires counsel to
“fully advise the client of the advantages and disadvantages,” which encompasses informed counsel concerning
pretrial motions, the likelihood of conviction, and the consequences of participation.238

Diagnosing and Counseling

The enrollment decision is compromised by a lack of time
and information. Since the decision to enroll in drug court
is often required soon after arrest, defendants may be forced
to make this decision while still experiencing the shock of
arrest.239 If the defense counsel pushes for treatment rather
than traditional adjudication, the client may be unduly persuaded by the attorney’s advice.240
To fulfill their ethical obligations, counsel must fully investigate the case, including review of all discovery. Moreover, the attorney must inform the client of the specific
rights being waived upon entering drug court, including release of confidential information, as well as the likely sentence if the case were resolved by a plea or trial.241 Defense
counsel must be familiar with drug court and should encourage or require a client to attend a drug court session before making the decision.242
In the context of drug court, “zealous advocacy means presenting these options to the client. It may also mean offering the client advice based on the advocate’s experience or
expectation of success or failure or the risks associated with
each path . . . .”243 Competent representation is especially
challenging when it transcends advising about a legal issue
or likely outcome into making assessments about treatment.
This is difficult because the drug court model requires
counsel “to be a diagnostician, not of trial court success”
but “whether someone is going to succeed in treatment,”
which “is simply not something that a defense attorney is
trained to do.”244 Defense attorneys cannot read their
clients’ minds or know their willpower to exercise reason in
the face of temptation.245 Although counsel may decide to
recommend treatment court, this should occur only after a
full explanation and discussion of “every possibility.”246 At
other times, the best advice is to litigate the suppression
motion to take a guilty plea to time served to avoid a likely
drug court failure and longer sentence.247
In sum, in the context of entry to drug court, zealous advocacy means presenting and explaining options to the client.
Counsel must be vigilant in avoiding the easy road of disposing of cases by merely convincing clients to enroll in drug
court when the drug court “offer seems to hold out the prom-

ise of everything the defendant could want: immediate freedom and the possibility of dismissal.”248 Rather counsel must
offer the client the best possible advice based on the lawyer’s
experience and thorough investigation of the case.249

Staffings

Drug court participants appear in court frequently, often
weekly for the first few months.250 Before the participants
appear in court to meet with the judge, however, the “team”
meets behind closed doors in a “staffing” to discuss the
progress of the participants. This meeting may be “the most
animated, knock-down, drag-out fight,”251 but participants
are not part of this crucial discussion about their lives,
which is not on the record.
A researcher from the National Association of Drug Court
Professionals emphasized that “zealous advocacy takes
place in the staffing.” 252 In these backroom meetings defense counsel is supposed to be standing up for his or her
client’s rights, albeit outside the client’s presence. 253 Counsel is then expected to report what occurred to his or her
client and the arguments the attorney made on the client’s
behalf, before the in-court proceeding during which disagreements are not openly expressed.254 These secret backroom meetings exclude participants, prevent them from
seeing their lawyer advocate on their behalf, and discourage
zealous advocacy by counsel.

31

“They say you’re part of the
treatment team, you’re not this
client’s lawyer, but then
they have you sign documents
as a defense lawyer.”
— Clara Hernandez

The Importance of Showing Up

Advocacy for a client’s stated interest often does not occur
in staffings for a variety of reasons. The most fundamental
and troubling reason is that many defense lawyers simply
do not show up for these backroom meetings. A lawyer
from California reported, “I did not attend staffing meetings. Thank God.”255 Once a participant is admitted to some
drug courts in Tennessee they “do not see the defense
lawyer anymore.”256
Even lawyers who appear for staffings may fail to render
minimally competent representation. Effectiveness at

The Criminal Costs of Treatment and the Case for Reform

Role of Defense Counsel

staffings requires that counsel be “involved” and “maintain
communication” with clients to be “an invaluable conduit” in
explaining their client’s circumstances to the court.257 Counsel may know things the rest of the team does not know and
must bring to light that information in order to reduce a sanction or dissuade against termination. As one drug court judge
explained, the best lawyers “get to know the clients and really read the reports and educate themselves, really read the
literature about addiction and get to know which programs
are better and worse.”258 According to another judge, “The
defense lawyers who in my view do the best job in drug court
are those lawyers who take an interest in treatment court
models and an interest in the personal lives of their clients.”259
If a public defender has a heavy caseload and a large number
of cases set for staffing,260 taking an active interest and role
can be quite difficult, if not impossible.261

32

In drug court “the best advocacy is done in those team meetings and after consultation with the client and after a full understanding of . . . what might happen, and what will
happen.”262 At least at the staffing phase, the “really good”
lawyers “challenge a lot of things on behalf of their clients.”263
In short, the staffing model raises serious concerns under
Model Rule 1.1, especially when lawyers are unfamiliar
with the drug the court model and unlikely to appear, be
prepared, or to understand the significance of the staffing.

Pursuing a Client’s Stated Interests

Professor Monroe Freedman is often cited for the criminal
defense attorney’s guiding principle: “I am a partisan committed to the client and the client’s expressed interests,
whose zealousness and commitment to defend the client’s
rights is untempered and unmitigated…[T]here is no other
avenue that will achieve [the client’s] necessary ends.”264
Despite this widely accepted mantra, this principle is often
diminished or disregarded in drug courts.

“My office needs to repeatedly
remind the other team members that
we are our clients’ attorney, not their
parents, so we cannot substitute
what we think is ‘in the best
interests’ of our clients for our
clients expressed interests.”
— California lawyer

Best Interests Versus Stated
Interests in Other Contexts
Counsel must pursue clients’ “stated interests” rather than
what some might term their “best interests” even when clients
are minors or respondents in civil commitment proceedings.
Some United States jurisdictions require court-appointed
counsel for children to express their client’s wishes to the
court.265 Many others “use the word ‘represent’ in their
statutes defining the role of lawyers for children, requiring
the attorney to represent either the child or the child’s interests.”266 The Youth Advocacy Project (YAP) in Boston, a
group that represents indigent children accused of crimes,
strictly represents the minor’s stated interest. YAP believes
“not only is loyalty to the client an integrity issue on behalf
of the child, but it is also necessary for the integrity of the
system. It would undermine the system for the attorney not
to do what the client wants.”267 If the attorney did not represent the client’s stated interest, the client would essentially
be silenced, and the judge would not be able to take the
client’s position into account when rendering a decision.268
In the civil commitment context, “the active and attentive
attorney who seeks discharge [at an involuntary commitment] hearing, as opposed to passively concurring to involuntary hospitalization, benefits all individuals involved.
. . . Without zealous advocacy on the part of the lawyer, it
is unlikely that a clear and full picture of the mentally ill
person’s psychiatric treatment and housing needs will be
demonstrated.”269 If the attorney fails to advocate on behalf
of the client, there is a risk that clients will grow to doubt
the value of their own rights and will view the process as a
sham because no one is speaking on their behalf.270

A Client’s Stated Interest Must
Be Pursued in Drug Court

The ethical obligation to voice clients’ stated interests applies to representation in drug court, just as it does in these
other contexts.271 If defense attorneys pursue what they believe to be in the client’s best interests rather than the
client’s stated interest, clients might justifiably feel the
process is a sham and stacked against them. Defendants,
even if young or suffering from mental illness, are unlikely
to trust a process if they have no voice in it. Our legal system rightfully places
emphasis on personal autonomy and individual decision-making. Allowing the
client to control the litigation is consonant
with our belief that individuals should be
allowed to make the important decisions
about their lives for themselves, even
though the decisions they make may be
unreasonable or shortsighted. While an
attorney may counsel his client against a
particular decision, ultimately he must
allow the client to take responsibility for

America’s Problem-Solving Courts:

his own fate. For in the end, client autonomy reflects a deeply held belief that, just
as we jealously guard against the paternalistic state, so, too, we find repugnant
the paternalistic lawyer.272
Although counsel’s ethical obligations appear clear, the
drug court emphasis on a team approach and its focus on
treatment demand acquiescence from counsel simply to ensure clients work toward sobriety. As a lawyer from Ohio
put it, “[t]here is an expectation that the defense attorney
will act more as a guardian ad litem and be part of the ‘drug
court team.’ Zealous advocacy is considered obstructionist,
a misunderstanding of the drug court process and an inability to ‘think outside the box.’”273 In many drug courts,
the role of defense counsel “embodies no vestiges of the
adversarial defender, and therefore takes on a ‘best interests’ mantra.”274 As a public defender from California explained, “My office needs to repeatedly remind the other
team members that we are our clients’ attorney, not their
parents, so we cannot substitute what we think is ‘in the
best interests’ of our clients for our clients expressed interests.”275 The Task Force agrees that lawyers should view
clients as a whole person, not simply a case, but must ultimately defer to the client’s stated interest rather than imposing counsel’s view of the client’s “long-term best
interest . . . .”276 Needless to say, representing a client’s
stated interests requires a regular dialogue with clients.277
Although the drug court model expects the defense lawyer
to be a team player to promote the best interest of the client,
defense counsel must challenge any sanctions that conflict
with the client’s stated interest. This is not happening in
many places. The Task Force heard from prosecutors who
reported recommending “one more chance” for participants
in team meetings while defense attorneys recommended
sanctions or termination.278 “And we used to laugh because
nothing was as it is expected.”279 In other cases where a participant relapses several times, public defenders have said,
“I think he has run out of second chances. I think we need
to dump him.”280 The prosecutor, however, has asked the
judge to give the participant “another chance.”281 The chief
of operations for the Dade County Drug Court recounted a
recent incident where the judge and defense lawyer agreed
to a two-week jail sanction, but the state attorney suggested
the participant instead be sent to a living facility.282 These
appear not to be isolated events,283 and these events cannot
be reconciled with the zealous advocate standard set forth
in the Model Rules.284
The staffing model also raises real and perceived loyalty
concerns. “Model Rule 1.7 creates a duty of loyalty on behalf of the attorney. This loyalty is breached when the
lawyer cannot consider, recommend, or carry out an appropriate course of action for the client because of the
lawyer’s other responsibilities or interests.”285 This loyalty
between a client and counsel is eviscerated when a defense
attorney suggests that his or her client be subjected to sanctions. Being a “team-player” in drug court as the vocal
leader of sanctions defies the purpose of Rule 1.7. It may be

“Zealous advocacy is considered
obstructionist, a misunderstanding
of the drug court process and an
inability to ‘think outside the box.’”
— Ohio lawyer
appropriate to recommend additional treatment as a sanction, but it should never be appropriate to recommend jail
as a sanction without the express consent of the client.286
As one public defender explained, treatment is seldom
available in jails and “I will never rationalize opting or requesting a sanction that is jail.”287 If the prosecutor asks for
jail time, he responds with a request for additional treatment or more meetings.288

33

Pursuing a client’s stated interest is further compelled by
Model Rule 1.2. That rule defines the scope of representation an attorney owes his or her client, stating “[a] lawyer
shall abide by a client’s decisions concerning the objectives
of representation.” 289 The Model Rules are written in the
abstract in order to allow an attorney to evaluate a certain
set of facts to the specific situation an individual encounters.290 There is little room for interpretation under this rule,
however, once a client provides instruction on his or her
objectives. The typical objective for an individual charged
with a drug offense is to minimize or avoid incarceration
or other penalties that may be imposed. After an individual
advises his or her attorney of these objectives, Model Rule
1.2 requires that a lawyer abide by this instruction and try
to further these objectives to the best of his or her ability.
The defense attorney must be a zealous advocate for the
client’s stated objective, not the team’s objective of the
client’s supposed “best interest,” whatever that might be.
In short, the client decides the objectives of the representation, and counsel is required to remain loyal to the client
and pursue the client’s interest. Adhering to the teamwork
approach that sometimes leads counsel to advocate for
sanctions instead of doing everything possible to minimize
sanctions, conflicts with Rules 1.2 and 1.7.

“I will never rationalize opting or
requesting a sanction that is jail.”

The Criminal Costs of Treatment and the Case for Reform

— Jeff Thoma

Role of Defense Counsel

34

Maintaining Client Confidentiality

Importance of Showing Up

Representation in drug court requires careful consideration of
client confidentiality. Counsel may have information about a
client’s progress, including information about drug relapses
or noncompliance with the drug court guidelines, which
should be guarded. Counsel must decide when, if ever, to disclose such information. Under Model Rule 1.6, “[a] lawyer
shall not reveal information relating to the representation of
a client unless the client gives informed consent [or] the disclosure is impliedly authorized in order to carry out the representation . . . .”291 The importance of the implications of
this rule is discussed in the commentary to Model Rule 1.6,
which notes a “fundamental principle in the client-lawyer relationship is that, in the absence of the client’s informed consent, the lawyer must not reveal information relating to the
representation . . . . This contributes to the trust that is the
hallmark of the client-lawyer relationship. The client is
thereby encouraged to seek legal assistance and to communicate fully and frankly with the lawyer even as to embarrassing or legally damaging subject matter.”292

In some communities, the custom of the local defense bar
is not to appear in drug treatment court or merely to “check
in” from time to time.296 As the Bronx Drug Court judge
explained, “the vast majority just don’t come.”297 A drug
court judge in Florida “feels like a daycare center” where
the private bar drops “their clients off and I never see them
again.”298 The root of the problem seems to be that “private counsel don’t really know what they’re getting
into.”299 Surprisingly, judges often accept counsel’s absence as part of drug court practice. There was no judicial
testimony about ordering counsel to appear or sanctioning
counsel for nonappearance, as commonly occurs in any
other proceeding.

Participants may feel betrayed by the defense attorney who,
as a team player in drug court, was an active participant in
those discussions that led to the sanctions, especially if confidential information was disclosed.293 The purpose of
Model Rule 1.6, to encourage a participant to disclose potentially damaging information to an attorney, is likely destroyed if participants see their attorney actively
participating as a “team player” in a process that sanctions,
incarcerates, or ultimately terminates them from the drug
court program.
In sum, the drug treatment court currently requires the defense attorney to play two roles: advisor to the participant
and team player. The latter role has the propensity to diminish, if not destroy, the ability to serve in the trusted advisor role, the aim and purpose of Rule 1.6

“Private counsel don’t really know
what they’re getting into.”
— Peter Rose
The Exclusion of Private Counsel

Much of the work of drug court is done in staffing meetings
during which “the team” discusses cases and decides on possible sanctions. Despite the importance of staffing to a client,
many private lawyers are either not invited or do not show
up, leaving clients unrepresented or added to the large
docket represented by the public defender. The drug court
model favors institutional players;294 some even forbid appearances by private counsel.295 Moreover, the required frequent appearances, sometimes with little or no notice,
further discourage private counsel from representing clients.

More troubling, drug courts are grounded in a team model
that minimizes or excludes private counsel. The drug court
model is premised on the presence of the same defense
member of the team. Key Component No. 2 focuses on the
“nonadversarial approach” and emphasizes the importance
of consistency and stability within drug court. “[T]he judge,
prosecutor, and court-appointed defense counsel should be
assigned to the drug court for a sufficient period of time to
build a sense of teamwork and to reinforce a nonadversarial atmosphere.”300 This appears to leave no role for private
counsel or multiple defenders from a public defender organization. Indeed, one private lawyer who regularly
showed up to status hearings in a case was asked repeatedly, “Why are you here? You don’t need to be here,” to
which he appropriately responded “[n]o, that’s my client.
I’ve been paid to represent this person.”301

Limited Retainer Agreements

Related to the problem of the persistent absence of counsel
is the confusion about private counsel’s role, which sometimes may be addressed in a retainer agreement.
Piecemeal representation does not work in the drug court
setting. A public defender assigned to drug court will not
know the specifics of cases of privately retained counsel
and will be unable to render competent and effective representation. Clients suffer as a result. As one participant
recounted, “[t]he defense attorney that was assigned to
drug court didn’t get involved in any of my case because
I had a privately retained attorney. So I hadn’t called the
attorney. I didn’t know I was going to jail, and suddenly I
was in jail.”302 Moreover, it is unfair to overburdened public defenders to require them to stand in, often on a regular basis, for private counsel who do not appear in drug
court. This also cheats public defender clients. In Marin
County, California, public defenders recently made clear
they would not represent participants with retained counsel: “The reality is that they have the money to hire counsel, and the time that we spend with them we are not
spending with indigent clients who don’t have the money
to afford counsel.”303

America’s Problem-Solving Courts:

The Task Force recognizes the possibility that limited retainer agreements may be used in some drug court cases.
In this “unbundled legal services” model, a “lawyer and
client agree, implicitly or explicitly, that the lawyer will
handle discrete tasks which may be less than complete representation.”304 In cases involving pro se litigants without
the financial means to hire counsel, such as family law
cases, advocates of unbundled legal services argue “some
legal advice and representation is better than none at all.”305
In the drug court setting, however, participants have hired
private counsel and often have the financial means to pay
for full representation. Private counsel, for a variety of reasons including the local custom in some courts or standard
agreements in others,306 often fail to appear or represent
clients once enrolled in drug court.307 The approaches in
two neighboring counties in Texas highlight just a few of
the variations. In Travis County, Texas, after enrollment
“the hired attorney goes about his way or goes his way and
the program attorney takes over representing [the participant] in court.”308 However, in Williamson County, the program attorney represents all participants at staffing but not
in the event of a revocation hearing.309 In cases where more
is expected, the realities of private practice make it challenging for retained counsel to make several appearances,
often on short notice, required by drug court.
Private counsel must decide at the outset of a drug case
whether they are in for the long haul.310 Dumping clients at
the doorstep of drug court to fend for themselves or possibly be picked up by an overburdened public defender is not
appropriate. Drug courts should accommodate private
counsel whenever possible, through flexible scheduling or
possibly conference calls. However, the optional or discouraged appearance of private counsel cannot continue.
As a matter of sound policy and competent client representation, the Task Force believes limited retainer agreements
are unacceptable in drug courts. As a general proposition,“[u]nbundled legal services raise questions concerning
the existence and adequacy of client autonomy, confidentiality, competence, continuity of representation, communication with represented parties, and candor to the court.”311
This is especially a concern “where the scope of the representation is not clear and the client and lawyer share different expectations about the lawyer’s responsibilities.”312
Confusion about the proper role of counsel comprises several pages of this report. Moreover, as explained above,
clients and public defender offices suffer a real impact as a
result of the limited or unclear role of retained counsel.

Caseload Concerns

As explained throughout this section, effective representation in drug court requires regular communication with
clients and an understanding of the complexities of their
addiction and compliance with drug court rules. Many drug
courts have massive dockets and the public defender(s) assigned to those courts are expected to represent hundreds of
clients. For example, the Dade County Drug Court has a

“The defense attorney that was
assigned to drug court didn’t get
involved in any of my case because
I had a privately-retained attorney.
So I hadn’t called the attorney. I
didn’t know I was going to jail, and
suddenly I was in jail.”
— A drug court participant
caseload of 2,000 for two assigned public defenders.313 Not
only is the caseload “big,” but the cases are complicated
and often extend far beyond a year.314

35

Several ethical rules are implicated by excessive caseloads.
“Model Rules of Professional Conduct 1.1, 1.2(A), 1.3, and
1.4 require lawyers to provide competent representation,
abide by certain client decisions, exercise diligence, and
communicate with the client concerning the subject of representation,” which require public defenders to control “their
workload so that each matter can be handled competently.”315
At some point defense attorneys are no longer able to provide
competent representation because of their caseload. There
are two different approaches to determining when the line is
crossed. The first, more traditional, approach focuses strictly
upon the number of cases a defense attorney has at one time.
The second approach, which has begun to evolve over the
past decade, is a more subjective analysis.

“There is a role for the private bar,
just none of them care
to take it very often.”
— Judge Kathy Foster
According to the National Advisory Commission on Criminal Justice Standards and Goals (NAC),
[t]he caseload of a public defender attorney should not exceed the following:
felonies per attorney per year:
not more than 150;
misdemeanors (excluding
traffic) per attorney per year:

The Criminal Costs of Treatment and the Case for Reform

Role of Defense Counsel

not more than 400;
juvenile court cases per
attorney per year: not more
than 200;
Mental Health Act cases per
attorney per year: not more
than 200 . . . .316

36

Many states have chosen to adopt similar approaches by
adopting ceilings beyond which public defenders are not
allowed to accept additional cases. For example, Indiana
limits the number of felony cases a public defender can
represent to 200 and 400 cases for misdemeanors, while
Georgia has limits of 150 and 400, respectively, and Colorado has a sliding scale of 80-241 felony cases and 310598 misdemeanors depending upon the circumstances of
the case.317 At least 15 states have similar limitations for
public defenders.318
The significant criticism for this hard-and-fast standard for
public defenders is that each case a public defender undertakes is different, and depending upon the circumstances, might take significantly more time than a
traditional case. This is particularly a concern in the drug
court context. Individuals who enter drug court may require more time than a client in a traditional court. A client
will likely be in the program not only for months, but
years, and the client will require representation for that entire time.

“The public defender . . . furnishes
stand-in counsel for sanction

sole factor in determining if a workload is
excessive…[other factors include] case complexity, the
availability of support services, the lawyer’s experience
and ability, and the lawyer’s nonrepresentational duties.”320
If lawyers believe their workload precludes them from
meeting the basic ethical obligations required in the representations of a client, the attorney must not continue representation or must decline representation if representation
has not begun.321 Adopting a similar approach to the ABA
Opinion, the Florida courts have explained that “[w]hen
excessive caseload forces the public defender to choose
between the rights of the various indigent criminal defendants he represents, a conflict of interest is inevitably created.”322 The court made clear “[t]he rights of defendants
in criminal proceedings brought by the state cannot be subjected to the fate of choice no matter how rational that
choice may be because of the circumstances of the situation.”323 As a result of this decision, the court held that it
was proper to relieve the public defender’s office of 143 of
the 286 unassigned cases that had not been briefed within
the time periods set forth in the Florida Appellate Rules.324
Whether applying a blanket restriction on the number of
cases or the more subjective ABA approach, caseloads in
drug court must be carefully scrutinized. To fulfill counsel’s ethical obligations at staffing, counsel must have a
thorough understanding of each participant’s specific and
nuanced addiction and personal issues. Conversations must
occur before each staffing, and counsel must be available
for discussions throughout the one or many years the client
is enrolled in drug court. That the judge is taking an active
role in no way lessens defense counsel’s role; if anything,
it requires more work and vigilance on the part of counsel
to ensure the client’s interests are being advanced and
rights are being preserved.

hearings. . . .[s]o they are there
to represent people who they are
often seeing for the first time.”
— Judge Michael Rankin
Attempting to reconcile concerns about the blanket standards, a new approach has emerged to help determine
when an attorney’s caseload is too large. In 2006, the ABA
Standing Committee on Ethics and Professional Responsibility drafted a formal opinion that appears to take a more
subjective approach to determine when a public defender
has a caseload that does not allow the attorney to provide
adequate assistance to his or her indigent clients. The committee concluded “whether a public defender’s workload is
excessive often is a difficult judgment requiring evaluation of factors such as the complexity of the lawyer’s case
and other factors.”319 Further rejecting the approach of numerical caseload limits, the committee observed that “although such standards may be considered, they are not the

Court Appearances

Defense counsel must appear in drug court and advocate
for clients. The diminished and distorted role of defense
counsel in staffings cannot continue when the case is called
in the courtroom. In several courts visited by a Wisconsin
professor, he “never once saw a defense attorney in the
hearing.”325 Being present is a good starting point, but effective representation in drug court requires much more.
The drug court courtroom is a different universe that encourages direct communication between the participant and
judge with virtually no role for defense counsel.326 Nevertheless, defense counsel has an important role in preparing
the client for the appearance and speaking on the client’s
behalf when necessary to render competent and zealous
representation. Upon one of his first opportunities to view
drug treatment court in action, the Chief Counsel of the
Maryland Public Defender’s office observed: “Another [defense] attorney stepped up who was an underling to represent someone who had been talked about in a staffing
meeting ex parte, and there was a decision about sending
this man to jail, and I almost threw up right there.”327

America’s Problem-Solving Courts:

Preparing Clients for Court
There are inherent dangers when judges speak exclusively
to clients with no participation by counsel. This dialogue
can have dire consequences for participants and should not
be casually approached by them or their counsel. Before
participants appear in court, counsel should prepare the
client by having the client observe drug court, discussing
the types of questions likely to be asked, and warning
clients that statements may be used against them.328 Counsel must have enough time to talk with the client.329 If counsel is not prepared, a continuance should be requested.
Moreover, judges should not “discount” the client’s answer
because it seemed prepared.330 Prepared comments demonstrate that a participant was concerned enough to take time
to prepare for a hearing.
An attorney representing an individual in drug court cannot
be prevented from fully representing his or her client simply because a judge wants to directly communicate with the
client. Model Rule 1.3 requires diligent representation of
the client,331 which at times means that the attorney needs
to have the opportunity to communicate the interests and
circumstances of the client because clients are not able to
provide those communications on their own. As a lawyer
from California noted, difficulties arise “when a person
with minimal education or poor language skills (sometimes
speaking through interpreters) interacts with a judge and is
trying to explain something (a missed meeting, unmade
payment, lost paperwork) and is unable to properly explain.”332 More generally, some people are uncomfortable
speaking in public, which is especially true for individuals
facing a possible jail sentence or termination from drug
court in a room full of strangers. There are times when a
client’s best interest is to stop talking, and effective representation should permit counsel to signal to a client when
that time has come.

The Court: “Call the next case.”
The lawyer: “May I be heard, Your Honor?”
The Court: “No.”336

Other defenders reported having “colleagues called aside
for trying to fight too hard . . . against sanctions, for instance, spending a weekend in jail. What’s worse, I think
defense attorneys’ involvement in the status hearing was
seen as optional. Clients had their cases called without
lawyers being present . . . .”337 Not surprisingly, one defender cited the following as the biggest problem in drug
courts: “standing up to the judge and demanding hearings
and demanding due process” as opposed to playing along as
a member of the team.338

Breakdown of the Attorney-Client
Relationship and the Importance
Of Preserving the Role of
Counsel as an Advocate

37

Perception is often not far from reality, and the Task Force is
deeply troubled by both the perception and reality of the role
of counsel in drug treatment courts. A lawyer not only represents clients but is also “an officer of the legal system and
a public citizen having special responsibility for the quality
of justice.”339 How can a client know their stated interest has
been advanced in staffing when the client is not there and no
record is made? It is not surprising that some drug court participants do not view their lawyers as an advocate; they have
never seen their lawyer, or any lawyer, advocate in drug
court. Clients have only counsel’s word that advocacy occurred minutes or hours earlier in a backroom meeting as part
of a “team” that explicitly excludes the participant.

“I think defense attorneys’ involvement
Counsel in Name Only

Counsel must appear and advocate for clients in drug court.
In some jurisdictions, “the public defender . . . furnishes
stand-in counsel for sanction hearings. . . .[s]o they are there
to represent people who they are often seeing for the first
time.”333 As explained above, a public defender is usually a
member of the drug court “team,” which discusses cases
through staffing meetings.334 Representation is generally
horizontal, with counsel representing every client appearing
in court on a specific day.335
Defense lawyers are at most seen and seldom heard in drug
court. When counsel dare speak up, they are sometimes
quickly put in their place. For example, the following terse
exchange occurred in one case in the District of Columbia:
The lawyer: “I’m here to advocate for my clients.”
The Court: “But these are not your clients.
You’re here standing in.”
The lawyer: “They’re my—”

in the status hearing was seen as
optional. Clients had their cases called
without lawyers being present . . . .”
— Professor Mae Quinn
The public does not regard the legal profession as particularly trustworthy, and a client’s skepticism in the high stakes
world of drug court is completely understandable. Clients
may not trust lawyers or simply may not regard them as real
lawyers. As one drunk driving court participant put it, “We
have a volunteer lawyer so if we have questions, we can go
to him.”340 Client confusion is understandable. As a public
defender in Wisconsin explained, “I know where I wear my
team hat; I know where I wear my lawyer hat. But my clients
don’t necessarily have the sophistication to get that.”341

The Criminal Costs of Treatment and the Case for Reform

Role of Defense Counsel

The confusion about the role of defense counsel is troubling,
although not surprising. Although drug courts generally require participants to sign a contract with several specific provisions, those contracts rarely say a word about defense
counsel, much less an explanation of the role of defense
counsel.342 Despite the “team approach” and dramatically
different role explained above, contract provisions wholly
fail to explain to the participant the role of counsel. In a sampling of 15 contracts reviewed by the Task Force, contracts
at most include a passing reference to “the Public Defender’s
Office” as part of the team.343 Telling the participant the public defender is on the drug court team in no way explains
that counsel will not be serving in a traditional defense attorney role as a zealous advocate for the client.

38

Further, many contracts say nothing about the individuals
included on the drug court team, much less describe the collaborative approach. The three contracts that mentioned the
defense attorney raise even more troubling concerns. One
stated that participants were completely waiving the right to
have their lawyer present,344 while another stated that the
participant waived the right to an attorney if they did not
show up to any hearing or staffing meeting.345 The final contract, which mentioned the defense attorney, included a
statement informing the participants they could talk to their
lawyer at any time, but did nothing to explain the role that
the lawyer would be playing within the drug court context.346
Judges expressed the view that defense attorneys are important to “reinforce and encourage compliance. . . . I think
the defendant needs somebody standing next to them who
is repeating to them everything I say. I think we all need to
hear things said to us by different people in different
ways.”347 Defense counsel should seldom, if ever, assume
the role of a parrot. Counsel regularly do and should choose
their own words and course of action, which may and must
complicate the judge’s job when counsel stands up against
anything not in a client’s stated interest. When counsel says
nothing, the courts appear headed “to an old Soviet Union
model where your job as a lawyer is simply to hold your
client’s hand as they go off to the gallows — here’s what’s
going to happen next.”348

“I know where I wear my team hat;
I know where I wear my lawyer hat.
But my clients don’t necessarily

Best Practices for
All Defense Counsel
Counsel must be mindful of, but not co-opted by, the drug
court approach. Counsel can and must remain a zealous
advocate for clients from the beginning to the end of the
process. This need not be inconsistent with the drug court
approach. Where zealous advocacy and the drug court approach or judge’s instructions conflict, counsel must be a
zealous advocate.
Far too often, defense counsel is viewed as optional or is relegated to a nonadvocacy role in drug court. This must change.
The Task Force recommends the following best practices
for representing participants in drug courts:

Entry

1. Counsel must insist they be given adequate time
to consult with clients fully about the merits of
their case and the drug court process.349

2. Counsel must insist they be provided enough time
to investigate the case including the review of all
discovery.
3. Counsel must insist they have an opportunity to
litigate motions.

4. Counsel must inform the client of the specific
rights being waived, including release of confidential information and the likely sentence if the
case were resolved by a plea or trial.350

5. Defense counsel must be familiar with drug court
and should encourage or require a client to attend a
drug court session before making an entry decision.

Staffing
1.

2.
3.
4.
5.

6.

Counsel must insist they be given notice of staffing
hearings.

Counsel must insist they be provided progress reports at least one day in advance of any scheduled
staffings.
Counsel must consult with clients before attending
a staffing meeting.

Counsel must attend and participate in staffing meetings.

Counsel must advocate for a client’s stated interests.
Counsel must maintain client confidentiality.

have the sophistication to get that.”
— Liesl Nelson

Court Hearings
1.

Counsel must be permitted adequate time to prepare for hearings and speak to clients in advance
of hearings.

America’s Problem-Solving Courts:

2.

Although drug court judges may speak directly to
a participant, counsel must insist they be given the
opportunity to intervene and advocate for clients
when necessary.

“Who needs special rules? . . . There
are the rules of professional conduct.”
— Julia Leighton

Training
1.

Counsel must avail themselves of training opportunities.

Best Practices for
Retained Counsel
1.

2.
3.
4.
5.

Retained counsel must have the opportunity and be
encouraged to participate in drug court. Timely notice of positive drug screens and the scheduling of
sanction hearings must come directly from the court.
Retained counsel must recognize the special nature of drug court and the significant time commitment involved.
Retained counsel must not take a drug case and
then abandon a client upon entry to drug court.

Limited retainer agreements should not be used in
drug court.351

Retained counsel who appear in drug court must
take the initiative to secure training and continuing
legal education courses focusing on drug court
practice.

Recommendations — Role of Defense
Counsel and Ethical Concerns
Drug court “theater” must include
a leading role for defense counsel.

Drug courts cannot continue to be a proceeding at which
defense counsel is given a non-speaking role. In many drug
courts, the judge will engage and interrogate the participant, purportedly for his or her own good, in what was aptly
described to and viewed by the Task Force as drug court
“theater.”352 The show is partially for the benefit of the participant, but also for the benefit of the many other drug
court participants in the courtroom. What is rarely included
in the script, however, is an opportunity for the defense
lawyer to advocate. Defense counsel advocacy in the open
courtroom defines that role and is essential to the attorneyclient relationship. Allowing everyone else in the courtroom, especially all the participants, the opportunity to
observe defense counsel truly advocating for clients contributes to the overall process in a positive way.
The existing drug court show must end or the script must be
dramatically revised to ensure that counsel has a leading
role as an advocate for each participant. Even if much of
this role plays out during staffing, defense counsel cannot

be wholly written out of the courtroom script. Counsel must
be able to meaningfully consult with clients before court
appearances and intervene in court appearances to communicate on behalf of the client who otherwise would have no
meaningful voice.

Ethical rules should not change; the
drug court framework must accommodate the rules.

39

The current structure of drug courts requires defense attorneys to compromise their ethical obligations to further the
purpose and framework of the drug court. Counsel cannot
continue to be forced into a nonadversarial “team” approach
when it conflicts with their ethical obligations to clients.
Rather than amending the ethical principles that have governed the legal profession far longer than drug courts have
existed, the drug courts should embrace these principles and
ameliorate the issues by altering the drug court process.353
“Who needs special rules? . . . There are the rules of professional conduct.”354
Providing a process that allows a defense attorney to satisfy
the ethical obligations of loyalty, confidentiality, and zealous
advocacy to his client will not dismantle the drug court process
or its objectives, but will instead enhance its credibility with
both the participants and anyone who happens to observe the
court. “[T]he adversarial defender, who is seen by his client as
insuring the individualized fairness of the process, can have a
real impact on satisfaction with the court outcome, acceptance
of the result, and empowerment of the client.”355 By providing
a participant a defense attorney in his or her traditional role, the
participant will understand and appreciate having an advocate
throughout the entire process, someone who will completely
keep his or her confidence and always be on their side. This
provides the reinforcement for the participant to fully invest
in the process, knowing counsel will always serve as an advocate, especially when obstacles arise.
Moreover, the Key Components must be modified to allow
defense counsel to fulfill their ethical obligations.356 Key
Component No. 2, which requires a nonadversarial, team
approach, must be modified to make clear that “consistency
and stability” through “teamwork” cannot trump zealous advocacy. Although a “sense of teamwork [may] reinforce a
nonadversarial atmosphere,”357 it cannot undermine counsel’s ethical obligations or preclude appearances by all but
one assigned lawyer. Multiple defenders or private counsel
must be permitted to appear in drug court.

The Criminal Costs of Treatment and the Case for Reform

Role of Defense Counsel

“The adversarial defender, who is seen by his client as ensuring the
individualized fairness of the process, can have a real impact on satisfaction with
the court outcome, acceptance of the result, and empowerment of the client.”
— Professor Tamar Meekins

40

Key Component No. 3 must be amended to allow sufficient
time for defense counsel to review discovery and litigate
motions. Key Component No. 3 currently advocates for initial court appearances “immediately after arrest or apprehension” and requires enrollment in treatment
“immediately.”358 Although this approach is used by many
drug courts across the country, it appears unnecessary to successful treatment and makes the review of discovery and investigation of the merits of the case impossible. As one
treatment professional explained, enrollment in treatment
within a couple of weeks or as much as 30 days would be
“excellent.”359 Moreover, some courts “give defendants several weeks to test out treatment while their case is still pending,” which creates a double benefit: counsel can investigate
the case and clients can decide whether to opt into or out of
the treatment program.360

The defense bar must have a significant role in the creation of any new
drug courts.

Participation by the defense bar must begin at the earliest
stages of drug court planning. This does not mean that the
courts, law enforcement, prosecutors, and others construct
the court and then seek the defense bar’s input and comments in what is essentially a fait accompli. Including defense bar insight from the beginning offers the advantage of
constructing a fair model and would eliminate later timeconsuming efforts to undo problems that could have been
avoided in the first instance.
Defense counsel must be involved in the drafting of court
procedures, contracts, and forms to ensure that due process
rights are preserved. Many judges recognize the importance
of including defense lawyers in the planning of new problem-solving courts.361 Philadelphia and Milwaukee provide
strong examples of how this can be done effectively.362

Training for defense lawyers must be
readily available and broad enough
to cover the key aspects of representing clients in drug court.

Although training is offered for defense lawyers who appear in drug court, lawyers are sometimes turned away because of limited capacity.363 Training should be more
readily available not only for public defenders who regularly appear in drug courts, but also for counsel who appear

less frequently. Moreover, at least some specialized training
should be sponsored by defender organizations, which
could be offered through partnerships with drug court advocacy groups.364

The same lawyer should represent a
client throughout a drug case.

Vertical representation, through which the same lawyer represents a client from the beginning to end of a case, is
preferable to the model currently used in many jurisdictions, which assigns a lawyer to all cases in a specific court
or all cases heard on a specific day.365 When lawyers are
constantly changing for a participant, there is no opportunity for a meaningful attorney-client relationship to be established.366 With vertical representation, the attorney has
the opportunity to get to know his or her client, learn the
case, and will likely provide better representation as a result.367 Although every attorney may not be exceptional at
establishing a positive attorney-client relationship, attorneys who represent clients over the entire process instead of
a single stage of the process are more likely to develop a
meaningful client relationship.
Most drug courts employ horizontal representation, where
the same defense attorney is always in the same courtroom.
This type of system creates a negative perception by the
client of “being processed through an assembly line.”368
“The defender who must stay all day, day after day, in the
same courtroom, is not likely to risk antagonizing the judge
or the prosecutor in the name of zealous representation of
his client. The desire for pleasant, amiable working conditions may well lead the defender to act in harmony with his
fellow ‘employees.’”369 Some defender organizations refuse to assign one lawyer to drug court because “attorneys
feel useless” when they “learn that the judge always does
the same thing and they just stop fighting.”370 Not only will
the client receive better representation in the preparation of
the case when the same attorney represents him or her, but
the actual representation will likely be more vigorous and
objective. The attorney is not constantly appearing before
the same judge, who is also the leader of a team of individuals with whom the defender must constantly work. Finally,
having different lawyers appear in drug court need not affect the court’s success rate.371

America’s Problem-Solving Courts:

Senior and highly skilled lawyers
should be assigned to drug court.

The Task Force agrees that “drug treatment court calls out
for ‘the best lawyers, most experienced lawyers’ to take on
[this] important role.”372 Experienced lawyers are best positioned to know “when it’s time to walk across the line and
sing [K]umbaya and when it’s time to stay on this side of
the line and throw the gauntlet down.”373 Assigning junior
lawyers and new judges to drug court is an “invitation to
disaster.”374 Fortunately, at least some public defender agencies assign senior trial lawyers best positioned to deal with
the complicated issues described throughout this report.375

Caseloads of lawyers representing
clients in drug court must take into
account the special nature and demands of drug court.

To comply with both the Model Rules of Professional Conduct and the Sixth Amendment, counsel must ensure they
have adequate time to represent clients in drug court. Caseload concerns are not unique to drug courts. The Constitution Project’s recent report, Justice Denied, highlights many
broad and deep shortfalls in indigent defense systems
around the country.376 The issue is further complicated in
the drug court context. The length of time for each drug
case is significant, and to provide adequate representation
the attorney should have a substantial understanding of each
client’s circumstances to properly represent him or her in
staffing and in court. Achieving these goals is time consuming and cannot be done by overburdened counsel with
hundreds of clients. If a public defender is overburdened
with cases and unable to render competent and effective assistance, counsel must withdraw.

“The defender who must stay all
day, day after day, in the same
courtroom, is not likely to risk
antagonizing the judge or the
prosecutor in the name of zealous
representation of his client.”
— Professor Richard Klein
through which their case is discussed and decided in a secret meeting they cannot attend. Any value from a unified
team front can be diminished, if not destroyed, if a participant believes they have been treated unfairly by a process
that explicitly excludes them.

41

If drug courts want participants to take responsibility for
their addiction and their lives, they should allow participants to be part of the critical discussion surrounding
their addiction and lives that occurs at staffing meetings.
Participants are in the best position to provide immediate
feedback to the discussion of their case during a staffing
meeting. Their participation would result in a fuller,
richer discussion.

Drug courts should consider allowing participants to attend staffings.

Although staffings appear to be a longstanding and widely
used aspect of drug court, their use is not universal.377 The
National Association of Drug Court Professionals believes
any court without staffings is not a drug court.378 However, a
judge affiliated with NADCP acknowledged the significant
criticism of staffing, at which issues are prejudged and the
participant is excluded.379 “Some judges feel so strongly about
it they don’t go to staffing. The staffings are held with the
team, minus the judge.”380 The efficacy of staffing should be
studied and reconsidered in light of the impact on clients.381

“Drug treatment court calls
out for ‘the best lawyers,
most experienced lawyers.’”
— Howard Finkelstein

Backroom staffing meetings have been described as “the
most animated, knock-down, drag-out fight,” but the person
most affected by that discussion, the drug court participant,
is excluded.382 “The amount of hearsay and gossip that
sometimes is discussed at the meetings is troublesome.”383
Discussing cases in a backroom meeting before appearing
in court as a united “team” for the participant’s best interest is riddled with problems as detailed above. Drug court
participants may be confused or frustrated by the procedure

The Criminal Costs of Treatment and the Case for Reform

Role of Defense Counsel

CONCERNS ABOUT MINORITIES,
THE POOR, AND IMMIGRANTS
42

Widening the Net

Research has not squarely addressed “whether drug court participants would have ended up in the criminal justice system if not for the drug court.”384 Drug courts arguably process “discretionary crimes” that police might
otherwise not bother enforcing at all.385 In so doing, drug courts may provide “window dressing for politicians,”386 rather than long-term solutions to underlying problems of poverty, homelessness, and the lack of educational opportunities.
Net-widening refers to “an expansion in the number of offenders arrested and charged after the implementation of [a drug court] because well-meaning police and prosecutors now believe there to be something worthwhile that can happen to offenders once they are in the system (i.e., treatment instead of prison).”387 When drug
courts are created, police in some cities have arrested more people and prosecutors have filed more charges.388
“The very presence of the drug court, with its significantly increased capacity for processing cases, has caused
police to make arrests in, and prosecutors to file, the kinds of $10 and $20 hand-to-hand drug cases that the system simply would not have bothered with before, certainly not as felonies.”389

Racial Disparity

Racial prejudice pervades the criminal justice system,390 and drug courts are no exception. For example, in a
study of four counties within California, drug courts admitted a proportionately greater number of Caucasian
offenders, “even though persons of color comprise a disproportionately large percentage of the low-level drug
offender population eligible for drug courts services.” 391 In Pima County, Arizona, there were no African-Americans in drug court and Hispanics “are way under-represented.”392

“The very presence of the drug court, with its
significantly increased capacity for processing cases,
has caused police to make arrests in, and prosecutors
to file, the kinds of ten-and-twenty-dollar hand-tohand drug cases that the system simply would not
have bothered with before, certainly not as felonies.”
— Judge Morris Hoffman

Drug courts were not created to reduce racial disparity. As a drug court
judge candidly testified, drug courts
“would never have come to being had
not middle class kids been arrested because we had kids of color…arrested
and no one gave — you know . . . .”393
The extent of this problem cannot be
adequately analyzed because the data
simply does not exist.394 These concerns, however, appear at all age levels: “[I]n early reporting of juvenile
drug court numbers, white children
constituted the largest racial group receiving [drug court] treatment.”395 As
a public defender from Utah explained about adult clients,

America’s Problem-Solving Courts:

My minority clients rarely get accepted
in the first place. For whatever reason,
they are more apt to have prior criminal
history that keeps them out of drug court.
The problem I’ve seen is that for whatever reason, I have been able to get the
drug court to waive admissions rules for
some clients and those clients are always
white. In one case, I didn’t even refer a
guy because of his problematic record
and the drug court cop called me and
asked why I hadn’t referred him and said
that since my client’s mom was a cop,
my client would get into drug court if I
would only refer him.396
The disparity may continue throughout the case, including
sanctions and termination. As a different Utah lawyer noted,
“I have seen white defendants who re-offend offered second
and third chances, while members of minority groups are
treated immediately as being in violation.”397
Drug courts are not likely to reduce racial disparity in the
criminal justice system.398 First, drug courts have no direct
effect on police practices (such as targeting crack cocaine
or open-air dealing) that cause African Americans to be dramatically overrepresented at the front-end of the system.399
“Police focus on certain communities because it is simply
easier and cheaper to make arrests and find crime in those
communities.”400 Moreover, drug courts have a high failure
rate in general, but the failure rate for blacks is as much as
30 percentage points higher in some courts.401 The effect of
this disparity is stark because, as noted above, failure (or
even problems along the way to success) may result in
longer incarceration than nonparticipation.402

The Poor

Lawyers who testified and those who responded to the
questionnaire expressed serious concerns about the ability
of poor clients to complete drug court, which requires frequent court appearances, self-help meetings, and travel for
random drug screens.403 A lawyer from Arizona aptly
noted, “The standard by which success is measured is
against the Beaver Cleaver, white-middle-class-suburban
standard. Cultural differences and differences based on
poverty are not properly considered.”404 Moreover, jumping through all the required drug court hoops may be impossible for someone without transportation and very
difficult for someone trying to maintain full-time employment to provide for their family.405
As a general proposition, drug courts “make it too hard for
indigent people to hold down a job and go to drug court and
make all their appointments. Transportation is a big issue
for these people and there is no assistance in transportation.”406 As a lawyer from Pennsylvania explained, “[t]he
fees and transportation requirements of this court preclude
indigent participation.”407 Treatment often includes three

“I have seen white defendants who
re-offend offered second and
third chances, while members of
minority groups are treated
immediately as being in violation.”
— Utah lawyer
group sessions and two individual therapy sessions each
week. Participants are further “required to seek employment, yet the types of jobs they may accept are restricted.
Those who are unable to find work have to enroll in job
training classes that meet five days a week.”408 Moreover,
participants “must appear 5-7 days a week for urine testing
and attend weekly court appearances.”409 In short, “participants without transportation have to arrange transportation
to many different places, several days a week in order to
satisfy their obligations.”410

43

The difficulties are especially acute for single mothers. As
a public defender from Missouri observed,
You can’t take children to treatment
court. Consequently, a poor woman without reliable child care would have problems because the court requires the
participants to phone in every weekday
in the morning and find out if they have
been the randomly selected person who
was required to submit a urine sample
before the close of business hours. It is
hard for a poor woman to find childcare
on such short notice.411
The burdens for some can make completion of the program
impracticable. At a minimum “missing appointments leads
to jail sanctions and holds up a participant’s progress significantly.”412 Being poor may lead to termination for others. As a public defender from California noted, “Most
indigent or minority participants were unable to make the
payments assessed by the programs. Rather than work with
the participants to scale payments to match ability to pay,
many minority and indigent participants are just dropped
from the programs.”413

Immigrants

Drug courts are especially troubling for the immigrant population. Drug convictions often result in mandatory deportation even if the plea is later vacated or withdrawn.414

The Criminal Costs of Treatment and the Case for Reform

Concerns

“The standard by which success is
measured is against the Beaver
Cleaver, white-middle-class-suburban
standard. Cultural differences and
differences based on poverty are not
properly considered.”
— Arizona lawyer

44

Although a “conviction” is required for deportation,415 that
term is often interpreted in a manner that leads to deportation of those who participate in drug court. According to 8
U.S.C. § 1101(a)(48):
The term “conviction” means, with respect to an
alien, a formal judgment of guilt of the alien entered by a court or, if adjudication of guilt has been
withheld, where —
(i) a judge or jury has found the alien
guilty or the alien has entered a plea
of guilty or nolo contendere or has admitted sufficient facts to warrant a
finding of guilt, and
(ii) the judge has ordered some form of
punishment, penalty, or restraint on
the alien’s liberty to be imposed.

“Participants without
transportation have to
arrange transportation to
many different places, several
days a week in order to
satisfy their obligations.”
— Maryland lawyer

Immigration concerns may arise at different times: when a
person is taken into custody for a violation during drug
treatment; when applying for U.S. citizenship; when seeking adjustment to legal status; or when attempting to reenter the United States after traveling abroad.416 These
draconian measures do not establish a time limit or statute
of limitation for how remote a prior conviction may have
been.417
For many immigrants, drug court is never an option under
existing federal law. The web of confusion and inconsistency makes it nearly impossible for defense counsel to advise clients about entry into drug courts. Moreover, beyond
the severe immigration consequences, many immigrants
may be destined for failure in drug courts that “require defendants to obtain lawful employment during the course of
an individual’s treatment” because “many undocumented
clients cannot obtain ‘lawful’ employment . . . .”418 Immigrants who do not want to be deported are forced to go to
trial rather than avail themselves of treatment opportunities.

Recommendations — Concerns About
Minorities, the Poor, and Immigrants
Admission criteria must be carefully created and reviewed to ensure
drug courts are open to all people regardless of race, economic status, or
immigration status.

Admission criteria cannot exclude those who most need
treatment, including racial minorities, the poor, and immigrants. “In identifying target populations, drug courts need
to be sensitive to class and race bias, real or apparent. Unless care is taken, diversion courts may tend disproportionately to work with the white and middle class substance
abusers.”419 Other types of restrictions also need to be re-examined. Specifically, individuals who commit crimes of violence may be excluded when courts receive federal or state
funds.420 Some witnesses candidly testified they are “concerned about our funding sources. We don’t want to do anything to jeopardize that.”421
Even in the absence of funding restrictions, some prosecutors have imposed similar restrictions. These admission criteria often disproportionately exclude persons of color.422
Although funding is important, it cannot take priority over
fairness. Courts should consider refusing grant funds that
prohibit entry of defendants on probation or with a prior
crime of violence.423 In Milwaukee, where racial disparity
in the criminal justice system was among the worst in the
nation, the newly elected prosecutor took an aggressive approach to diversion and deferred prosecution agreements
eradicated the disparity in less than two years.424

America’s Problem-Solving Courts:

The intensive supervision of drug
court cannot create impossible obstacles for participants to succeed.

“Rather than work with the

The number of court sessions and required meetings is a
heavy burden for participants in smaller communities without well-developed public transportation systems.425 Although drug court is inherently intensive, the requirements
imposed on participants should not force participants to quit
jobs or otherwise raise insurmountable barriers to their success. In larger cities, transportation vouchers should be
available. In less urban areas, courts should provide transportation or adopt schedules that make it possible for participants to secure transportation that allows them to
complete programs.

participants to scale payments to
match ability to pay, many minority
and indigent participants are just
dropped from the programs.”
— California lawyer

Immigrants who successfully complete drug treatment courts must
not be deported on the basis of the
drug court “conviction,” no matter
how defined.

45

The possibility of deportation upon entry into drug court
could be avoided by pre-plea diversion agreements, prosecution-based contracts, or by a plea to a nondeportable offense.426 The United States Code could also be amended
with language similar to: “this section does not apply to defendants who successfully complete drug treatment programs that result in the dismissal or expungement of the
charge.” Finally, another approach could “[r]equire the immigration courts to grant full faith and credit to the laws of
the states in their determination of what constitutes a ‘conviction’ and the parameters of that state court action.”427
Additional training must be provided to judges and defense
lawyers to ensure incorrect advice is not given to immigrants.428 The consequences of bad advice are life-altering.
If selecting drug court is likely to result in deportation,
counsel must so advise the defendant to allow the pursuit of
other options. If in doubt, counsel should consult with an
expert or refer the client to another lawyer who understands
the immigration implications.429

“In identifying target populations, drug courts
need to be sensitive to class and race bias, real or
apparent. Unless care is taken, diversion courts
may tend disproportionately to work with the
white and middle-class substance abusers.”
— National Institute of Justice report

The Criminal Costs of Treatment and the Case for Reform

Concerns

MISALLOCATION OF
PUBLIC RESOURCES
46

D

rug courts may provide political cover to elected officials or convince the public that
the underlying problem of drug addiction is being addressed. Drug courts, however, are
not the only solution to drug-related crime. Decriminalization must be seriously dis430
cussed. Other options must also be considered.
Drug court is intensive, expensive, and often not effective. Drug court control over a participant
stretches over a long period of time, longer than usual for a low-level offense.431 As explained
above, difficulties during drug treatment can cause a participant to return to earlier phases of
treatment,432 and participants may remain enrolled in drug court for as long as five years.433 The
longer the shadow of a court looms over a defendant, the more likely the defendant will end up
incarcerated for some sort of violation.434 Drug court cases “simply never go away.”435
Drug courts usurp resources that could be used for community-based solutions that do not involve court control and the micro-management of the lives of clients.436 Currently, many communities are willing to fund treatment, especially in communities of color, only through the
criminal justice system with the accompanying control over the person and added cost. This is
“not only inefficient, it’s unfair and unnecessary.”437 Limited public resources should be spent
most efficiently. Communities should be “providing social services in a way that is unlinked, uncoupled from conventional criminal justice.”438 Drug courts “may function as a distraction for
more proactive change that is necessary.”439 Robert Hooker, the late public defender for Pima
County, Arizona, put it best:
What we’re doing by setting up these courts is backloading the issue, backloading the treatment, when in fact we ought to be front-loading the treatment . . . . I
fear that by setting up problem-solving courts like this, we are enabling our legislators and our leaders to fail to properly fund treatment programs, education,
and health services, because we have given them the excuse not to do that.440
Judge Espinoza, the long-serving judge of the Bronx Treatment Court, would “absolutely”
prefer a shift to the public health approach.441 Governments working toward providing housing, health care, educational, and economic opportunities for its citizens could combat the “in-

America’s Problem-Solving Courts:

credible influx” of people otherwise arrested for
drug offenses.442
If drug treatment were freely available, a significant number of nondrug cases would never enter
the system. As a long-time addict who later completed treatment testified, “[i]f treatment is available, you will divert many people before they
ever get to the drug court system. Treatment is not
available.”443

Recommendations — Misallocation
Of Public Resources
Drug courts must be used for highrisk defendants facing lengthy jail
terms; less onerous and expensive alternatives to drug court must be
readily available for low-risk defendants and those who commit
low-level offenses.

Last year corrections were the fastest growing expenditure
in state budgets, and the recent fiscal crisis has led to cuts
and will likely lead to many more cuts.444 These limited dollars should be used effectively.445
President Obama has pledged to support drug court funding
to give “first-time, nonviolent offenders a chance to serve
their sentence, where appropriate, in drug rehabilitation
programs that have proven to work better than a prison term
in changing behavior.”446 The Task Force certainly supports
the President’s emphasis on alternatives to prison but is
concerned about a continuation or expansion of “drug
courts” as currently constituted. The vast majority of firsttime offenders do not have a drug addiction that requires
the intensive approach of drug court.447
“Drug courts should be the intensive care units wherein regular courts should be the emergency rooms.”448 The “highly
recidivistic group” should be in the more intensive setting.449 This is currently not happening. In many communities, drug courts are “sucking up all the resources that the
community has to deal with this very thorny issue of addiction, and . . . using it on cream puffs.”450 Communities
should not “invest all of their addiction resources into one
program. You can’t ignore the people who don’t get into
drug court who are drug-and alcohol-involved. They have
the same needs, the same rights, [and] impose the same
dangers as everyone else.”451
Drug courts should be limited to the few high-risk offenders for whom everything else has failed. Courts should not

“We are enabling our legislators
and our leaders to fail to properly fund
treatment programs, education, and
health services, because we have given
them the excuse not to do that.”
— Robert Hooker
skim those most likely to succeed but rather focus on those
who are facing the longest sentences and most need treatment, namely “where we would get the biggest bang for
our buck.”452 Governments and private entities should not
fund programs simply because they report high success
rates. “Success is not 90 percent. A program that has 90 percent success is going after soft cases and it is wasting a lot
of money and supervising a lot of people. If traditional case
process has a success rate of 30 percent, if I come in with
37, all hail.”453

47

Misdemeanor drug courts are a particularly poor use of resources. They require a costly bureaucracy of personnel and
court appearances when the participants “are not really jail
bound,” which means the programs are not saving society
money or diverting people from prison.454 A drug prosecution would cost much less if a case is diverted to programs
that do not require probation supervision, such as requiring
a defendant to complete a class and return months later with
proof of completion to secure a dismissal.
Other less intensive alternatives to drug courts must be developed for low-risk felony offenders, who perform better
without judicial intervention.455 Studies show an active judicial role is important for high-risk offenders who require
“consistent and intensive judicial supervision to succeed,”
while low-risk offenders perform better without judicial intervention.456

Fair and effective alternatives must
be offered to low-level offenders.

Although drug courts may represent a progressive alternative to the rigid, tough-on-crime-and-criminals approach of
traditional adjudication, they presume that all cases belong
in the criminal justice system and all charged defendants
require system supervision. Defendants with no criminal
record who are not addicted to drugs should have the same
opportunity as drug court participants to avoid a conviction
and its collateral consequences. When courts “overtreat and
overmanage a low-risk offender . . . you have a statistically
significant risk of creating recidivism.”457
Diversion programs take many forms and have occurred

The Criminal Costs of Treatment and the Case for Reform

Misallocation

in many other courts. They reach much further than the
drug court model. The newly elected prosecutor in Milwaukee, working with the Circuit Court judge and public
and private defense bar, created a highly effective diversionary program. Elsewhere, diversion is mandated by
statute. For example, in Tennessee a person who has not
previously been granted diversion and does not have either a prior misdemeanor conviction for which confinement was served or a prior felony conviction within a
five-year period after completing the sentence or probation period may be diverted.458 In other jurisdictions, including Washington, D.C., “under the radar diversion
programs” exist.459 Judges appropriately lean on prosecutors to dismiss or reduce charges to allow defendants to
get probation or continue treatment.460

48

Sufficient resources must be available to permit drug treatment for all
who qualify.

The availability of drug courts and alternatives varies
widely across the country and within states. 476 There is a
“checkerboard pattern of justice,” illustrated by seven California counties without a drug court or “access to anything,” while those arrested in other counties may have
many options.477 Further, although counties with a population over 200,000 in Texas must have a drug court, each of
those counties structures its own court and many smaller
counties do nothing.478 A recent report in New York concluded that “diversion options should be made available to
nonviolent felony drug offenders regardless of the county in
which a case is prosecuted.”479 To rectify the current disparity of programs in the patchwork county-by-county systems, the report recommended “a statewide program for
judicial diversion should be codified.”480

Diversion and deferred prosecution agreements in Milwaukee
When John Chisholm was elected prosecutor in Milwaukee, racial disparity in his county in the
criminal justice system was among the worst in the nation.461 Chisholm took an innovative, smart,
fair, and ultimately effective approach to resolving the issue with the broad involvement of the
defense bar and judiciary. Protocols were developed to allow for diversion or deferred
prosecution before charges are filed.462
Diversion means that charges are never filed. This is a “win-win situation” for the defense. If the
participant fails to complete the program, “you can come back and you can litigate the hell out
of the case.”463 Even police officers sometimes urge the prosecutor to offer diversion agreements.464 At the end of a diversion program, participants are given a “success letter,” which
they can show to potential employers or others as proof that no charges were ever issued.465
If charges are filed, a deferred prosecution agreement may be offered. Deferred prosecution
agreement is a misnomer. The participant is charged, enters a plea, rights are waived, but judgment is deferred.466 The prosecutor has open file discovery and police reports are provided immediately.467 The defense is never required to make a decision blindly.468 If motions are litigated,
however, the deferred prosecution agreement may no longer be available.469
The agreements last for six to eight months. Participants are monitored by a third party, such as
pretrial services, and appear in court for periodic reviews.470 At the end of the designated
period, cases are reduced to a less serious
charge or dismissed.471
The program was created with input from the
public and private defense bars. The forms are
widely available to all defense counsel.472 Public
defenders “are trying very hard to educate as
many lawyers to do these as possible.”473
At the end of 2007, more than 700 people had
benefited from a diversion or deferred prosecution agreement, with a 65 percent success
rate.474 Within the first 18 months of Milwaukee’s
program, the racial disparity was eliminated.475

America’s Problem-Solving Courts:

Moreover, some drug treatment courts are full and cannot
accept all who want treatment.481 There has been a sixmonth waitlist for drug court in some counties in Wisconsin.482 When a court is at capacity, it is unlikely to retain the
high-risk addicts who most need it. Instead, some courts
apply arbitrary and even counterintuitive criteria, such as
exclusion of two-time felons.483

Defendants who do not suffer from
chemical dependency must be provided with alternative programs to
avoid criminal prosecution.

Defendants who do not suffer from true chemical dependency may gain entrance into drug courts for their own perceived strategic advantage.484 The majority of those who
experiment with drugs do not become addicted.485 Although
Judge Espinoza favors opening the door “as wide as we
can” because “treatment court is the best game in town” for
addressing the problems of crime and criminality,486 other
approaches must be considered. Requiring intensive treatment and extensive court monitoring of a nonaddict is not
a wise use of limited resources.

Sound research on important topics
related to the diversion of cases, including drug courts, must be pursued.

Although the Task Force heard from a wide range of drug
court experts, judges, and practitioners, many significant
questions went unanswered. Data simply does not exist to
answer many significant questions about the racial and social background of drug court participants. For example,
what happens to those who are not admitted to drug court?
Why do participants drop out?487
The Task Force could find little more than anecdotal information about racial disparity, and that information was typically troubling. One witness reported, “I’ve been to drug
courts where I have seen not one client of color.”488 A leading drug court researcher agrees the studies have not been
done, but need to be done.489

“If treatment is available, you will
divert many people before they ever
get to the drug court system.
Treatment is not available.”
— Candice Singer

Merely keeping the data is an important step in allowing
the federal and state governments as well as private entities to fund research to address significant topics including:

49

Do minorities and the poor have equal access
to problem-solving courts, and are sanctions,
termination, and graduation rates similar?
Would outcomes be affected if participants
were allowed to attend staffings?493
Are sentences for those terminated from drug
treatment court more severe than those who
do not participate in drug treatment?
Do sentences imposed after termination differ if the drug court judge hears the case or
a separate judge presides over the hearing?
Must a participant enter drug court within
days of arrest or are success rates similar for
those who enter drug court weeks later after
being given an opportunity to consult with
counsel and litigate motions?494

Drug courts, as well as traditional courts and police organizations, should be required to maintain and report data relevant to these issues. “A number of evaluators [have] cited
problems with extensive missing data, inconsistent data,
data entry errors, or the need to merge information from a
number of different agencies and data sources.”490
Moreover, there must be appropriate comparison groups.491
For example, there appears to be little or no data kept on
those rejected from drug court. The purpose of the comparison group is significant; determining whether the recidivism rate, for example, decreases by completing a drug
court program requires a group with which to compare the
successful drug court participants.492

The Criminal Costs of Treatment and the Case for Reform

Misallocation

T

MENTAL HEALTH COURTS

50

he Task Force heard far more about drug courts than it did about mental health courts.
Although some of the problems associated with drug courts apply to mental health
courts, others are less of a concern. This report concludes on a mostly positive note
in this discussion of mental health courts.

History
Broward County, Florida, created the first mental health court in the United States in 1997. The idea was advanced by Public Defender Howard Finkelstein with active support from the bench to address “the failure of
the community-based mental health system and the failure of the criminal justice system to divert people.”495
The deficiencies in the system were highlighted by tragic deaths in the county jail and in a scathing grand jury
report detailing the inadequacies of the community mental health system.496 The court was created after a task
force studied the problem.497
Today there are more than 150 mental health courts in the United States.498 As with the first court, they “focus
on mental health services and resources for defendants whose mental illness [i]s the primary purpose for their
recidivism.”499

Entry and Procedures

Mental health courts vary considerably in their procedures but are generally uniform in their commitment to address issues surrounding mental illness from the beginning to end of the case.500 This includes bringing multiple sources of information to the table.501
Mental health courts may allow entry at arrest, charging, or after conviction.502 Each court has its own procedures to screen individuals who may be eligible. Although some courts refuse defendants charged with felonies,
others have become more willing to accept individuals charged with minor felonies.503
Unlike drug courts, where the prosecutor is largely the gatekeeper, mental health courts frequently accept referrals from a wide range of individuals. For example, in Broward County, referrals come from the jail, community mental health managers, family members, other judges,
attorneys, or any person “who has information that somebody may be
in need” of the mental health court services.504 In Brooklyn the court is
“I will not have nor do I have
“mostly defense-driven,” which allows the defense to “identify cases
where we think the client not only has mental illness, but would benefit from that court.”505 Mental health courts generally require a diagnoany desire to require any kind
sis recognized by the DSM-IV.506 The referral process generally
includes a clinical interview of the individual who may be suffering
of plea to access this court.”
from mental illness.507

— Judge Ginger Lerner-Wren

Once enrolled, participants “receive outpatient treatment at local clinics,
have regular meetings with court or probation officers, make appearances in court to confer with the judge over their treatment progress, and

America’s Problem-Solving Courts:

participate in group counseling programs.”508 Moreover,
everyone in a mental health courtroom is “much more sensitive, much more tuned in” to mental illness issues.509
Programs that involve misdemeanor charges may be as
short as six months.510 The mental health court in the Bronx,
which includes felonies, requires an 18- to 24- month individualized treatment program.511

“What we need most is people not even
entering into the criminal justice system”
— Doug Brawley

Assessment of Mental
Health Courts
Although the Task Force heard from many critics of drug
courts, most witnesses who testified about mental health
courts had largely positive reviews. Their comments were
wide-ranging, including the provision of integrated services, reduction in recidivism, and the generally lower due
process cost involved.

Integrated Services

Mental health courts have been effective in offering many
services to participants with mental illness. Without mental
health courts, “a lot of people [are] falling through the system.”512 They might otherwise plead guilty and face a short,
time-served sentence but “they’re right back out on the
streets with no place to get a meal, no place to have shelter,
no one to talk to.”513 Those with mental illness lack a
“safety net” because of the lack of coordination between
treatment, probation, and the court system.514
Mental health courts provide multiple services, such as
treatment and housing, in the same place. The mental health
court in Miami-Dade, for example, “has done wonders obtaining outpatient treatment for mentally ill offenders who
otherwise would be subjected to incarceration.”515 A defense lawyer in Austin told of an elderly man with longstanding mental health issues: “We got his SSI benefits
reinstated. We found him a group home . . . and he hasn’t
been arrested in . . . 14 months.”516 A prosecutor praised
public defenders for doing “a really good job of trying to
find a lot of these people housing, places to live, hooking
them up with counseling, [and] making sure they stick with
their [mental health] programs . . . .”517

Reduced Recidivism

Once the treatment process is completed, participants may
be provided continuing treatment options, which will continue to reduce the recidivism rate.518 Many participants
would likely have continued to commit crimes without the
involvement of mental health courts.519 In the Broward
Mental Health Court, only 27 percent of participants were
rearrested upon successful completion of the program, none
of them for a violent offense.520

Due Process Rights Often Preserved

These advantages often come without the due process costs
frequently associated with drug courts. The Broward Mental Health Court, like many, is pre-plea, and the defense and
prosecution maintain “their traditional role and function
from an ethics standpoint.”521 As the judge there explained,
“[w]e do not have problematic standards like the drug court
model. It’s purely voluntary. I will not have nor do I have
any desire to require any kind of plea to access this
court.”522

51

The Dallas Mental Health Court is “a true diversion program. It’s a six-month program and their case is dismissed
at the end of the six-month period if they successfully complete the program.”523 Maricopa County mental health court
is post-conviction and “geared toward getting people
through probation.”524 As a public defender there noted,
however, it would be a “great advantage to having a preconviction diversion program,”525 which would not saddle
the participant with a conviction.

Recommendations —
Mental Health Courts
Treat persons with mentally illness;
do not incarcerate them.

Mental illness should not be treated through the criminal
justice system. As a judge testified, “many of us feel that a
lot of these people don’t belong” in the criminal justice system.526 Just as drug courts would be unnecessary if society
treated addiction as an illness through the public health system, mental health courts would be unnecessary if society
properly addressed mental illness as an illness.527
Police officers should be trained to divert persons with
mental illness, especially those who have committed minor
offenses, into treatment programs instead of processing
them through the criminal justice system. 528 The Memphis
Police Department has rightfully received national acclaim
for doing this well.529 Some persons with mental illness in
Miami are similarly diverted into treatment.530

The Criminal Costs of Treatment and the Case for Reform

Misallocation

Taxpayers should not be “investing in the courts and
lawyers,” but rather a “more effective treatment system”531
This is especially true when many individuals with mental
illness are in jail “on petty, low-level offenses, quality of
life, nuisance type of offenses” and unable to post even a
$25 bond.532 As the public defender instrumental in creating
the first mental health court observed, mental health courts
should not exist if proper community-based mental health
systems and diversionary programs were in place.533

Devote sufficient and appropriate resources.

52

Treating mental illness requires a commitment of necessary
resources. An impressive example is Travis County, Texas,
where the sheriff has 28 social workers on his staff and in
corrections facilities, not to mention many officers who
have special training in mental health issues.534 Among
other things, this ensures persons with mental illness get
their medication.535 The resources and properly trained staff
must continue after arrest. As detailed above, mental health
court teams have been effective in providing invaluable
services, including housing and treatment, to participants.

Screening should occur early, include multiple referral sources, and
allow for broad access.

In many jurisdictions, an assessment is done at the jail and
then cases are screened by a clinical team in the mental
health court.536 Just as with drug court, prosecutors should
not be the gatekeeper.
Although mental health courts wish to avoid public safety
risks, they should not exclude individuals with mental illness merely because they have been arrested for offenses
involving violence. 537 As one judge explained, “[w]e all
know who deal with the mentally ill that it’s very normal for
them perhaps to have an episode when they’re going to be
violent, maybe with a caretaker or with someone else. That
doesn’t mean that like a typical Defendant, they are prone
to violence . . . .”538 Many types of activity are declared “violent” even if it does not present a clear and present danger
of harm to anyone.539 This is of special concern for individuals with mental illness. If violent individuals are excluded, they will continue through the revolving door, and
once released back onto the streets may well commit another violent crime.540

persons with mental illness to make a voluntary choice between the traditional court process and mental health
court.543 “If a requirement for voluntary participation in the
special courts is not only competency as legally defined,
but also an ability to understand and make reasonable decisions, then achieving voluntariness among mentally ill or
disabled treatment candidates is a challenging proposition
indeed.”544

Counsel must zealously represent
each client’s stated interest.

Any pressure to be part of a team may not supplant or diminish counsel’s ethical obligation to represent a client’s
stated interest. Counsel must ensure that clients with mental illness understand their options.545 Moreover, as in any
other court, lawyers must always argue on behalf of clients
“as zealously, frankly, and strongly” as possible.546
A public defender who regularly represents clients in drug
court and mental health court emphasized the importance of
education on the proper role of counsel.547 The public defenders in Travis County, Texas, include the private bar in
monthly training sessions on topics such as “basic diagnoses, the meds, collateral consequences of criminal convictions, all those sorts of things.”548
Finally, counsel must be sure not to divulge confidential or
privileged information. The same rules of professional conduct must apply to mental health courts and require adherence to the attorney-client privilege, even if players are
expected to share information to further treatment or as part
of a team approach.

Although some courts hear only misdemeanors, others have
begun and should continue to hear felony cases.541

Counsel and the court must ensure
that participation is voluntary.

Enrollment in mental health courts must be voluntary to ensure they do not become mere vehicles for “coerced treatment.”542 Significant concerns surround the ability of some

America’s Problem-Solving Courts:

CONCLUSION

W

hat began 20 years ago in Miami as a revolutionary and laudable
opportunity for defendants to receive much-needed treatment
and avoid costly and ineffective incarceration has evolved into
something much different and dangerous. As detailed throughout this report,
problem-solving courts often create far more problems than they attempt to
solve—for defendants, lawyers, judges, and the public at large.

53

Although decriminalization remains the smartest, fairest, and most economical solution, significant reforms must be made to these courts until that occurs. These courts cannot continue to be conviction mills that require
defendants to abandon fundamental constitutional rights and lawyers and
judges to modify or disregard longstanding ethical obligations. Access must
be available without requiring a guilty plea to all who seek treatment, regardless of race, or immigration or socioeconomic status.
The recommendations in this report are intended to offer useful guideposts
for defense lawyers, judges, prosecutors, and policymakers. The adoption of
one or a few recommendations may improve the problem slightly, but any
meaningful reform will require significant changes to the structure and function of these courts. NACDL is committed to leading this effort through the
wide dissemination of this report, engagement and education of the defense
bar, and targeted efforts in Congress, state legislatures, bar associations, advocacy organizations, and courts throughout the country.

The Criminal Costs of Treatment and the Case for Reform.

Conclusion

SUMMARY OF RECOMMENDATIONS
DECRIMINALIZATION: THE SMART, FAIR, ECONOMICAL,
AND EFFECTIVE ALTERNATIVE

Address substance abuse as a public health issue — not a criminal
justice issue.

Drug Courts in Action: Operation, Issues, and Problems
Admission criteria must be revised to end skimming.

54

Judges in traditional courtrooms should be encouraged to use innovative drug court techniques in their courtrooms.

Prosecutors must relinquish their role as gatekeeper. Admission criteria should be objective
and broad.
Crimes of violence must not be categorically excluded.

Drug courts must use a pre-plea, pre-adjudication model.

In order for defense counsel to properly advise clients, adequate time must be provided to
allow defendants to decide whether to enroll in drug court.
The state must have a triable case.

Immunity must be granted to all statements made in drug court.

Judges must not directly or indirectly coerce defendants to secure waivers of counsel.

Drug courts must do everything possible to ensure that every lawyer who wants to appear in
drug court has the opportunity to do so.

Sanctions must be imposed in a fair and consistent manner.

The judge who guides treatment should not be the judge who determines termination or hears
the underlying case after termination.
Ex parte communication must never be permitted.

Drug court assignments must go to experienced, interested judges who remain for more than
a year.

Sentences for those who attempt drug court must not exceed what would have been imposed
if the standard plea was taken.

Some amount of credit time should be applied to the sentence of anyone who spends several
months complying with a drug court program and working toward completion before ultimately failing.

America’s Problem-Solving Courts:

Role of Defense Counsel and Ethical Concerns

Drug court “theater” must include a leading role for defense counsel.

Ethical rules do not need to change; the drug court framework must accommodate the rules.
The defense bar must have a significant role in the creation of any new drug courts.

Training for defense lawyers must be readily available and broad enough to cover the key aspects of representing clients in drug court.
The same lawyer should represent a client throughout a drug case.

Senior and highly skilled lawyers should be assigned to drug court.

Caseloads of lawyers representing clients in drug court must take into account the special
nature and demands of drug court.
Drug courts should consider allowing participants to attend staffings.

55

Concerns About Minorities, the Poor, and Immigrants

Admission criteria must be carefully created and reviewed to ensure drug courts are open to
all people regardless of race, economic status, or immigration status.

The intensive supervision of drug court cannot create impossible obstacles for participants to
succeed.

Immigrants who successfully complete drug treatment courts must not be deported on the
basis of the drug court “conviction,” no matter how defined.

Misallocation of Public Resources

Drug courts must be used for high-risk defendants facing lengthy jail terms; less onerous and expensive alternatives to drug court must be readily available for low-risk defendants and those who
commit low-level offenses.

Fair and effective alternatives must be offered to low-level offenders.

Sufficient resources must be available to permit drug treatment for all who qualify.

Defendants who do not suffer from chemical dependency must be provided with alternative
programs to avoid criminal prosecution.
Sound research on important topics related to the diversion of cases, including drug courts, must
be pursued.

Mental Health Courts

Treat persons with illness; do not incarcerate them.
Devote sufficient and appropriate resources.

Screening should occur early, include multiple referral sources, and allow for broad access.
Counsel and the court must ensure that participation is voluntary.
Counsel must zealously represent each client’s stated interest.

The Criminal Costs of Treatment and the Case for Reform

Recommendations

APPENDIX A
Problem-Solving Court Witness List
Daniel Abrahamson, Director of Legal Affairs for the Drug Policy Alliance; Berkeley, CA

Gerianne Abriano, Bureau Chief, Red Hook, Kings County District Attorney’s Office; New York, NY

Michele Albo, Maricopa County Mental Health Court Team, Adult Probation Serious Mental Illness (SMI) Unit: Phoenix; AZ
Janet Altschuler, Defense Attorney, Pima County Domestic Violence Court Team; Tucson, AZ

Amy Arnold, Victim/Witness Representative, Pima County Domestic Violence Court Team; Tucson, AZ

Judge Carl Ashley, Milwaukee Circuit Court; Milwaukee, WI

Vicki Ashley, Assistant County Attorney for Travis County; Austin, TX

56

Dr. Peter Banys, Health Sciences Clinical Professor of Psychiatry at UCSF and the Director of Substance Abuse Treatment Programs
and the Substance Abuse Physician Fellowship Program at the VA Medical Center; San Francisco, CA
Richard Baron, Friends of Miami-Dade Drug Court; Miami, FL

Erica Bartlett, Assistant Defender, Defender Association of Philadelphia; Philadelphia, PA

Sam Benedict, First Assistant Public Defender, Wisconsin State Public Defender, Waukesha Office; Waukesha, WI

Bill Bennett, Travis County DWI Court Participant; Austin, TX

Judge Joel Bennett, Travis County Drug Diversion Court, Austin; Austin, TX
Tom Bomba, Staff Attorney, Legal Aid Society; New York, NY

Judge Tom Bower, Black Hawk County (Iowa) District Court; Waterloo, IA

Professor Josh Bowers, University of Virginia School of Law; Charlottesville, VA
Judge John Bozza, Erie County; Erie, PA

Doug Brawley, Broward County Public Defender’s Office; Fort Lauderdale, FL

Anne Brockett, Community Justice Assistance Division, Texas Department of Criminal Justice; Austin, TX

Bennett Brummer, Miami-Dade Public Defender; Miami, FL

Carol Burney, Public Defender, Pima County Mental Health Court Team; Tucson, AZ

Ira A. Burnim, Legal Director, Bazelon Center for Mental Health Law, New York; New York, NY
Gary Butchen, Executive Director, Bridge Back to Life Center; New York, NY

Judge Alex Calabrese, Presiding Judge at Red Hook Community Justice Center; New York, NY
Nina Carlow, Chief of the Intake Bureau, Bronx District Attorney’s Office; New York, NY
Judge Brent Carr, Tarrant County Mental Health Diversion Court; Fort Worth, TX

Dan Carrion, Attorney Manager, Maricopa County Public Defender’s Office and President of the Arizona Association of Drug Court Professionals; Phoenix, AZ
Ben Casey, Court Administrative Attorney, Pascua Yaqui Tribal Drug Court Team; Tucson, AZ

Bruce Chalk, Deputy County Attorney, Pima County Mental Health Court Team, Pima County Attorney’s Office; Tucson, AZ
John Chisholm, District Attorney; Milwaukee, WI

Ana Yanez-Correa, Executive Director, Texas Criminal Justice Coalition; Austin, TX

Judge David Crain, Travis County Mental Health Court; Austin, TX
Judge John Creuzot, Dallas DIVERT Court; Dallas, TX

Shelly Curran, Maricopa County Mental Health Court Team, Director of Court Advocacy for Magellan Mental Health Services; Phoenix, AZ

Mary DeFusco, Esq., Director of Training and Recruitment, Defender Association of Philadelphia; New York, NY
Jesse Delaney, Deputy County Attorney, Pima County Domestic Violence Court Team; Tucson, AZ
Paul DeWolfe, Montgomery County Public Defender; Rockville, MD

David R. Dickmann, First Assistant Public Defender, Wisconsin State Public Defender, Stevens Point Office; Stevens Point, WI

Robin Dorman, Principal Deputy First Assistant Public Defender, Wisconsin State Public Defender, Milwaukee Office; Milwaukee, WI

Professor Victoria Brown-Douglas, Professor, St. John’s University Law School; New York, NY

Ernest Drucker, Professor, Departments of Epidemiology, Family and Social Medicine, and Psychiatry, Montefiore Medical Center/Albert Einstein College of Medicine; New York, NY
Judge Elisabeth Earle, Travis County DWI Court; Austin, TX

America’s Problem-Solving Courts:

Laure Ekstrand, Former Director, Justice Issues, U.S. Government Accountability Office; Washington, D.C.

Judge Laura Safer Espinoza, Presiding Judge, Bronx Drug Court; New York, NY

Jeffrey Fagan, Professor of Law and Public Health, Columbia Law School and the Director of the Center for Crime, Community and
Law at Columbia Law School; New York, NY
Keith Farmer, Assistant District Attorney, Dane County; Madison, WI
Judge Jo Ann Ferdinand, Brooklyn Drug Court; New York, NY

Nestor Ferreiro, Chief of the Narcotics Bureau, Bronx District Attorney’s Office; New York, NY

Rebecca Figueroa, Advocate, Pascua Yaqui Prosecutor, Yaqui Tribal Drug Court Team; Tucson, AZ
Michael Finigan, President and Founder, NPC Research; Portland, OR

Howard Finkelstein, Broward County Public Defender’s Office; Fort Lauderdale, FL
Nick Fontana, Chief Public Defender, Yaqui Tribal Drug Court Team; Tucson, AZ

Judge Kathy Foster, Waukesha County Circuit Court; Waukesha, WI

Carson L. Fox, Jr., J.D., Director of Operations, National Association of Drug Court Professionals; Alexandria, VA
Ed Friedman, Private Defense Attorney; New York, NY

Elaine Calco Gray, Community Partnership Representative, Pima County Mental Health Court Team; Tucson, AZ

Judge Larry Gist, Chair, Criminal Justice Section, State Bar of Texas; Beaumont, TX

57

David Gonzales, Private Practice, Sumpter & Gonzales; Austin, TX

Kim Hart, Probation Officer, Pima County Mental Health Court Team; Tucson, AZ

Kristin Heavey, Staff Attorney, Neighborhood Defender Service of Harlem; New York, NY

Clara Hernandez, El Paso County Public Defender; El Paso, TX

Joe Hildedbrand, Travis County DWI Court Participant; Austin, TX

Michael Hintze, Commissioner, Maricopa County Mental Health Court Team; Phoenix, AZ
Dee Hobbs, Chief County Attorney, Williamson County; Georgetown, TX

Monica Holmes, Brooklyn Drug Court Graduate; New York, NY
Robert Hooker, Pima County Public Defender, Tucson, AZ

Carey Hyatt, Judge, Maricopa County Superior Court; Phoenix, AZ

Judge Craig Iscoe, Associate Judge, D.C. Superior Court; Washington, D.C.

Jon Josevama, Adult Therapist, Yaqui Tribal Drug Court Team, Pascua Yaqui Tribe Centered Spirit Program, Tucson, AZ
Jeff Jeffery, Criminal Justice Substance Abuse Counselor, MHS North County Center for Change; Vista, CA
Tim Jeffries, Policy Advisor for Substance Abuse and Mental Health, BJA; Washington, D.C.

Ben Kempinen, Professor, University of Wisconsin Law School; Madison, WI

Spurgeon Kennedy, Director of Treatment, D.C. Pretrial Services Agency; Washington, D.C.
Jeanette Kinard, Travis County Mental Health Public Defender; Austin, TX
Ryan King, Policy Analyst, Sentencing Project; Washington, D.C.

Judge Judy Harris Kluger, Deputy Chief Administrative Judge, Court Operations and Planning; New York, NY

Jean LaTour, Assistant Public Defender, Wisconsin State Public Defender, Waukesha Office; Waukesha, WI
Julia Leighton, General Counsel, DC Public Defender Services; Washington, D.C.
Robert Lerman, Deputy Public Defender, Maricopa County; Phoenix, AZ

Judge Elliott Levine, La Crosse County Circuit Court; La Crosse, WI

Austine Long, Project Director, Adult and Family Assistance, National Association of Drug Court Professionals; Alexandria, VA
Christine Lopez, Mental Health Court Coordinator, Maricopa County Mental Health Court Team; Phoenix, AZ
Professor Adam Mansky, Adjunct Professor, Fordham University Law School; New York, NY

Doug Marlowe, Chief of Research, Law and Policy, National Association of Drug Court Professionals; Alexandria, VA
David Markus, Attorney and Drug Court Graduate; Miami, FL

Craig Mastantuono, Lawyer in Private Practice; Milwaukee, WI

Sarah Mayer, Travis County DWI Court Participant; Austin, TX

Judge Michael Mery, Bexar County Mental Health Court; San Antonio, TX
Stephen J. Meyer, Meyer Law Office; Madison WI

Judge William G. Meyer (ret.), Senior Fellow, National Court Institute, Judicial Arbiter Group, Inc.; Denver, CO
Patrick McGee, Director, Maryland Division of Parole and Probation; Baltimore, MD

Annalisa Mirón, Staff Attorney, Neighborhood Defender Service Harlem; New York, NY

The Criminal Costs of Treatment and the Case for Reform

Witness List

Timothy J. Murray, Executive Director, Pretrial Justice Institute; Washington, D.C.

Liesl Nelson, Assistant Public Defender, Wisconsin State Public Defender, St. Croix Co. Office; Board Member of Wisconsin Association of Treatment Court Professionals; Hudson, WI

Leonard Noisette, Executive Director of the Neighborhood Defender Service of Harlem; New York, NY

Judge Sarah B. O’Brien, Dane County Circuit Court; Madison, WI

Kevin O’Connell, Supervising Attorney, New York County Defender Services; New York, NY

Cruzita Acuña-Olvera, Advocate, Yaqui Tribal Drug Court Team, Pascua Yaqui Public Defender; Tucson, AZ

Judge Jack Peyton, Presiding Judge, Pima County Domestic Violence Court Team; Tucson, AZ
Judge Gisele Pollack, Broward County Misdemeanor Drug Court; Fort Lauderdale, FL

Judge Louis J. Presenza, Presiding Judge, Municipal Court of Philadelphia; Philadelphia, PA

Mae Quinn, Associate Professor, University of Tennessee College of Law; Knoxville, TN

Valerie Raine, Director, Drug Court Programs, Center for Court Innovation; New York, NY
Judge Michael Rankin, Associate Judge, D.C. Superior Court; Washington, D.C.

Rhonda Reagan, Former Drug Court Participant; Princeton, NJ

58

Mike Rempell, Research Director, Center for Court Innovation; New York, NY

Carl Reynolds, Administrative Director, Texas Office of Court Administration; Austin, TX

Steve Rockman, Director, Samaritan Village; New York, NY

Peter F. Rose, General Counsel, Maryland Office of the Public Defender; Baltimore, MD

Judge Jeffrey Rosinek, Judge Miami-Dade Drug Court; Miami, FL

Timothy Rountree, Attorney in Charge, Queens Co. Criminal Defense Practice, Legal Aid Society; New York, NY

JoAnne Sakato, Deputy County Attorney, Maricopa County Mental Health Court Team, Maricopa County Attorney’s Office; Phoenix, AZ

Lisa Schreibersdorf, Executive Director, Brooklyn Defender Services; New York, NY
Carol Shapiro, Founder and President, Family Justice; New York, NY

Candice Singer, Policy Analyst, National Council on Alcoholism and Drug Dependence New Jersey (NCADD-NJ); Hamilton, NJ

Jessica Skemp, Assistant District Attorney, La Crosse County; La Crosse, WI
Judge Lisa Stark, Eau Claire County Circuit Court; Eau Claire, WI

Jason Steans, Assistant County Attorney for Travis County; Austin, TX
Robin Steinberg, Director, Bronx Defenders; New York, NY

Michael Steuer, Assistant District Attorney, Eau Claire County; Eau Claire, WI
Jeff Thoma, Public Defender, Solano County; Fairfield, CA

Tony Thompson, Professor, New York University Law School; New York, NY

Joseph Vaccarino, Executive Director, Queens Law Associates; New York, NY
Jose Varela, Assistant Public Defender, Marin County; San Rafael, CA

Judge Kristin Wade, Dallas County Misdemeanor Mental Health Diversion Court; Dallas, TX
Terrence Walton, Director of Treatment, D.C. Pretrial Services Agency; Washington, D.C.

Judge Nanette Warner, Presiding Judge, Pima County Mental Health Court Team; Tucson, AZ

Barry Wax, President of the Florida Association of Criminal Defense Lawyers; Miami, FL

Donald Weaver, Supervising Probation Officer, Pima County Domestic Violence Court Team; Tucson, AZ
Judge Richard Weinberg, Presiding Judge Midtown Community Court; New York, NY
Bruce Winick, Professor of Law and Psychiatry, University of Miami; Miami, FL
Tammy Wray, Deputy Public Defender, Maricopa County; Phoenix, AZ

Judge Ginger Lerner-Wren, Broward County Mental Health Court; Fort Lauderdale, FL
Judge Tim Wright, Williamson County DWI/Drug Court; Georgetown, TX

America’s Problem-Solving Courts:

APPENDIX B

T

Layperson’s Definitions of Key Terms
he following is a nonexhaustive list of terms that appear in the Task Force Report. Many of
these are terms of art with specialized and debatable definitions. This glossary is simply offered to provide a general understanding of the terms.

Case dumping: The prosecutorial unloading of difficult cases (because of weak evidentiary support or significant grounds for defense litigation) in drug court.
Client confidentiality: The ethical obligation of lawyers not to reveal information about clients to others without the client’s consent.

59

Creaming: See skimming.
Crime of violence: Although definitions vary from jurisdiction to jurisdiction, crimes of violence are generally
ones that involve the use of a weapon or the use of force against another person. Many drug courts exclude persons who are charged with or have been convicted of a crime of violence.
Discovery: The process through which parties in a lawsuit provide relevant information to opposing counsel.
Diversionary program: A general term for programs in which participants admit their responsibility for a crime
but complete a program instead of having their case processed through the traditional court system.
Successful completion may result in dismissal of the charge.
Ex parte communication: The communication of information about a pending case with the judge outside the
presence of counsel. Ex parte communication is generally prohibited by Judicial Canon 2.9.

Gatekeeper (or gatekeeping function): The role, usually played by the prosecutor, of deciding which defendants
or types of cases are eligible for admission to a problem-solving court.
High-risk offender: A person who, based on prior attempts at treatment and other factors, is unlikely to succeed
in treatment.
Horizontal representation: A system for assigning appointed counsel in which the same defense attorney represents all clients in the same court on a given day.

Low-risk offender: A person who, based on the lack of previous attempts at treatment and other factors, is likely
to succeed in treatment.
Model Code of Judicial Conduct: Model rules from the American Bar Association that provide ethical standards
for judges and include commentary. They have no force of law until adopted by individual states.
Model Rules of Professional Conduct: Model rules from the American Bar Association that provide standards
governing all aspects of a lawyer’s ethical obligations and include commentary. They have no force of
law until adopted by individual states.
National Association of Drug Court Professionals: A not-for-profit organization founded in 1994 that advocates for the creation, study and funding of drug courts. It currently has a membership of more than
2,100 drug courts nationwide.
Net-widening: The concern that the number of drug prosecutions will increase after the creation of a drug court
because treatment will be offered instead of incarceration.

The Criminal Costs of Treatment and the Case for Reform

Definitions

Pre-plea, pre-adjudication model: A problem-solving court program that admits participants while charges are
pending without requiring a guilty plea.
Post-plea, pre-adjudication model: A problem-solving court program that admits participants after they enter
a guilty plea, which is held in abeyance while they complete the program.
Post-adjudication model: A problem-solving court program, commonly as part of probation, which admits participants only after a final sentence has been entered. This model may only be post-plea and is the opposite of the pre-adjudication model, which can be either pre- or post-plea.
Retainer agreement: A written agreement between private counsel and a client, which specifies the terms and
costs of representation.
Sanctions: Penalties, such as community service or time in jail, imposed by a judge when a participant relapses
or violates programs rules.

60

Skimming: The process through which some problem-solving courts gain cases involving low-risk defendants
most likely to succeed rather than high-risk defendants who most need treatment.
Staffing (backroom meeting): Meeting of the drug court “team” to discuss the progress of the participant before the participant appears in court to meet with the judge.
Team (drug court team): The prosecution, judge, treatment providers, defense counsel and sometimes others,
who are expected to work together to determine what is in the best interests of each participant.
Ten Key Components: Ten guiding principles for operating an effective drug court developed by the National
Association of Drug Court Professionals, partnered with the U.S. Department of Justice’s Office of Justice Programs, in 1997. Government funding often requires compliance with these key principles.
Termination hearing: A hearing at which the judge considers whether a participant should be removed from the
problem-solving court for violating one or more of the rules. If terminated from the program, the participant returns to court for conventional processing (pre-plea programs) or faces imposition of sentence (post-plea programs).
Vertical representation: A system for assigning appointed counsel in which the same lawyer represents a client
from the beginning to end of a case.
Violent offender: See crime of violence.

America’s Problem-Solving Courts:

Endnotes
1. E.E. Schattschneider, THE SEMISOVEREIGN PEOPLE 68 (1960).
2. See generally Robinson v. California, 370 U.S. 660, 667 (1962) (“In this Court counsel for the State recognized that narcotic
addiction is an illness. Indeed, it is apparently an illness which may be contracted innocently or involuntarily.”).
3. National Association of Criminal Defense Lawyers, Board Resolution to End War on Drugs (Nov. 4, 2000), available at
http://www.nacdl.org/public.nsf/26cf10555dafce2b85256d97005c8fd0/e57009319de167ee85256d97005c8195?OpenDocument.
4. Douglas Marlowe, Testimony at 2983.
5. See generally John Chisholm, Testimony at 1734.
6. Bennett Brummer, Testimony at 520.
7. Hon. Tom Bower, Testimony at 1758.
8. Tim Murray, Testimony at 2603.
9. Hon. Lisa Stark, Testimony at 1760.
10. See, e.g., David S. DeMatteo, et al., Secondary Prevention Services for Clients Who Are Low Risk in Drug Court: A Conceptual Model, 52 CRIME & DELINQUENCY 114, 123 (2006); Douglas B. Marlowe, et al., A Sober Assessment of Drug Courts, 16 FEDERAL
SENT’G REP 1, 4 (2003).
11. Tim Murray, Testimony at 2616.
12. The questionnaire was distributed to NACDL members and a variety of other defense organizations. The goal was to learn what
was happening in as many jurisdictions around the country as possible. The purpose was not to secure statistically accurate responses.
Individuals who participated in the questionnaire were assured that their identities would be kept confidential. Questionnaire results may
be found at www.nacdl.org/drugcourts.org.
13. Hon. Ginger Lerner-Wren, Transcript at 245-46.
14. As a leading professor on problem-solving courts explained, the focus is on “the underlying problem and not the crime.” Mae
C. Quinn, Transcript at 2174.
15. See generally John A. Bozza, Benevolent Behavior Modification: Understanding the Nature and Limitations of Problem-Solving Courts, 17 WIDENER L.J. 97, 98-102 (2007).
16. Hon. Judy Harris Kluger, Testimony at 873.
17. Leonard Noisette, Testimony at 942.
18. Mike Rempell, Testimony at 1246.
19. Hon. Judy Harris Kluger, Testimony at 874; Valerie Raine, Transcript at 1249 (“There is no rehabilitative goal in domestic violence courts. It is strictly about protecting the victim, delivering services to the victim . . . .”).
20. These cases give rise to other concerns as well. Perhaps most troubling, when a “gun court” was created in the Bronx, the same
judge heard all the cases—and sentences went up dramatically. Robin Steinberg, Transcript at 946.
21. Hon. Jeffrey Rosinek, Testimony at 404.
22. Michael M. O’Hear, Federalism and Drug Control, 57 VAND. L. REV. 783, 823 (2004).
23. John S. Goldkamp, Miami’s Treatment Drug Court for Felony Defendants: Some Implications of Assessment Findings, 73 THE
PRISON JOURNAL 110, 112 (1994).
24. O’Hear, supra note 22, at 824.
25. Tim Murray, Testimony at 2556-57.
26. Bennett Brummer, Testimony at 521; see generally Peggy Fulton Hora, et al., Therapeutic Jurisprudence and the Drug Court
Movement: Revolutionizing the Criminal Justice System’s Response to Drug Abuse and Crime in America, 74 NOTRE DAME L. REV. 439,
481 (1999).
27. Mae C. Quinn, Testimony at 2151.
28. Norma Jaeger, Where We Have Been and Where We Are Going: A Review of Idaho’s Drug and Mental Health Courts, 48 ADVOCATE 26, 26 (2005); Hon. Judy H. Kluger, Panelist, The Impact of Problem Solving on the Lawyer’s Role and Ethics, 29 FORDHAM URB.
L.J. 1892, 1893 (2002).
29. Hora, supra note 26, at 481 (quoting Peter Finn & Andrea K. Newlyn, U.S. Dep’t of Justice, Pub. No. NCJ-142412, Miami’s
“Drug Court”: A Different Approach 3, 10 (1993)).
30. Goldkamp, supra note 23, at 112.
31. Cait Clarke, Problem-Solving Defenders in the Community: Expanding the Conceptual and Institutional Boundaries of Providing
Counsel to the Poor, 14 GEO. J. LEGAL ETHICS 401, 432 (2001).
32. Bennett Brummer, Transcript at 521.
33. U.S. GEN. ACCOUNTING OFFICE, DRUG COURTS: OVERVIEW OF GROWTH, CHARACTERISTICS, AND RESULTS 22 (1997) (“The main
purpose of drug courts is to use the authority of the courts to reduce crime by changing defendants’ drug-using behavior.”).
34. U.S. DEPT. OF JUSTICE, OFFICE OF JUSTICE PROGRAMS, DRUG COURTS: THE SECOND DECADE 3 (2006).
35. Trent Oram and Kara Gleckker, An Analysis of the Constitutional Issues Implicated in Drug Courts, 42 IDAHO L. Rev. 471, 47576 (2006).
36. DRUG COURTS: OVERVIEW OF GROWTH, CHARACTERISTICS, AND RESULTS, supra n. 33, at 24.
37. Peggy Fulton Hora & Theodore Stalcup, Drug Treatment Courts in the Twenty-First Century: The Evolution of the Revolution

The Criminal Costs of Treatment and the Case for Reform

61

Endnotes

62

in Problem-Solving Courts, 42 GA. L. REV. 717, 725-26 (2008); Douglas B. Marlowe, Testimony at 2952-53.
38. Douglas B. Marlowe, Testimony at 2953; see also C. West Huddleston, III, et al., Painting the Current Picture: A National Report Card on Drug Courts and Other Problem-Solving Court Programs in the United States at 4 (2008), available at
http://www.ndci.org/publications/paintingcurrentpicture.pdf (observing that “today only 7 percent of adult drug courts are diversionary
programs compared to 59 percent which are strictly post-conviction”).
39. Hora & Stalcup, supra note 37, at 725.
40. Douglas B. Marlowe, Testimony at 2953.
41. Hora & Stalcup, supra note 37, at 725. For example, all the courts in Maricopa County are post-conviction. Participants have
been placed on probation and have “zero choice” about enrollment. Dan Carrion, Testimony at 616-17.
42. Excluded from this summary are those programs created by voter initiative in Arizona and California. With nearly 65 percent
of the vote in 1996, the citizens of Arizona enacted Proposition 200, entitled “The Drug Medicalization, Prevention, and Control Act of
1996.” Michael M. O’Hear, When Voters Choose the Sentence: The Drug Policy Initiatives in Arizona, California, Ohio, and Michigan,
14 FED. SENT. REP. 337 (2002). The central feature of Proposition 200 required “any person who is convicted of the personal possession
or use of a controlled substance” be placed on probation instead of incarceration and required to undergo drug treatment under court supervision. Id. Following in the footsteps of Arizona, 61 percent of the Californian voters approved Proposition 36 in 2000. Id. at 338. Similar to the Arizona proposition, mandatory probation was offered in lieu of incarceration for those drug offenders that qualified. Those
arrested for drug possession for personal use qualified, while those convicted of possession of a controlled substance for sale, production, or manufacturing were excluded. Id.
43. Hora & Stalcup, supra note 37, at 789.
44. See Timing of Admission and Discovery Issues, infra.
45. O’Hear, supra note 22, at 824.
46. See infra notes 331-35 and accompanying text.
47. Clara Hernandez, Testimony at 1934; Hon. Jeffrey Rosinek, Testimony at 427 (discussing a participant who remained four and
a half years).
48. Clara Hernandez, Testimony at 1934.
49. GAO, supra note 33, at 24.
50. Id. at 25.
51. Id. at 24.
52. Goldkamp, supra note 23, at 115.
53. Hora, supra note 26 at 483-84.
54. Id. at 484.
55. See Immigrants, infra.
56. Barbara E. Smith, Introduction to Special Issue, 17 JUST. SYS. J. v, viii (1994).
57. Id.
58. O’Hear, supra note 22, at 824.
59. Id.
60. Thomas F. Asbury, Spiritual Outputs Approach to Rehabilitation: Alternative Sentencing Theory, 3 FLA. COASTAL L.J. 41, 4849 (2001).
61. Id.
62. Id.
63. O’Hear, supra note 22, at 824.
64. Daniel M. Filler & Austin E. Smith, The New Rehabilitation, 91 IOWA L. REV. 951, 967 (2006).
65. Hon. Jeffrey Rosinek, Testimony at 411.
66. Gary Butchen, Testimony at 1480.
67. Id.
68. Monica Holmes, Testimony at 1384.
69. Huddleston, supra note 38, at 3.
70. Dan Abrahamson, Testimony at 125.
71. Huddleston, supra note 38, at 4 (observing that “today only 7 percent of adult drug courts are diversionary programs compared
to 59 percent which are strictly post conviction”).
72. Mae Quinn, Testimony at 2164 (“We never hear from the defendants who failed out. We never have gotten data collected from
them to say, hey, what was told to you by your lawyer, what were you thinking about when you went into this court, and how has it affected you now in terms of your desire to stay clean ? . . . .”).
73. Marc Mauer, The Changing Racial Dynamics of the War on Drugs at 1, 9 (2009), available at http://sentencingproject.org/Admin/Documents/publications/dp_raceanddrugs.pdf.
74. Josh Bowers, Contraindicated Drug Courts, 55 UCLA L. REV. 783, 803-04 (2008) (discussing “aging out”).
75. National Association of Criminal Defense Lawyers, Board Resolution to End War on Drugs, supra note 3.
76. Editorial, The War On Drugs Is Lost, NATIONAL REVIEW, Feb. 12, 1996, available at http://www.nationalreview.com/12feb96/drug.html.
77. National Association of Criminal Defense Lawyers, Board Resolution to End War on Drugs, supra note 3.

America’s Problem-Solving Courts:

78. Common Sense for Drug Policy, available at http://www.csdp.org/publicservice/zogby2007.htm.
79. How to Stop the Drug Wars, THE ECONOMIST, Mar. 5, 2009, available at http://www.economist.com/opinion/displaystory.cfm?story_id=13237193.
80. Jeffrey A. Miron, The Budgetary Implications of Marijuana Prohibition (2005), available at http://economics.about.com/gi/dynamic/offsite.htm?zi=1/XJ&sdn=economics&cdn=education&tm=29&gps=474_262_1276_629&f=00&su=p649.3.336.ip_&tt=2&bt=1
&bts=1&zu=http%3A//www.prohibitioncosts.org/mironreport.html.
81. Common Sense for Drug Policy, available at http://www.csdp.org/ads/dutch2.htm.
82. Id.
83. European Monitoring Center for Drugs and Drug Addition, 2007 Annual Report: The State of the Drugs Problem in Europe at
41 (2007), available at http://www.emcdda.europa.eu/attachements.cfm/att_44705_EN_TDAC07001ENC.pdf.
84. Glenn Greenwald, Drug Decriminalization in Portugal: Lessons for Creating Fair and Successful Drug Policies at 2 (2009),
available at http://www.cato.org/pubs/wtpapers/greenwald_whitepaper.pdf. Decriminalization subjects those using or possessing drugs
to police intervention, although “they are treated as purely administrative violations, to be processed in a noncriminal proceeding.” Id.
This differs from legalization, in which no prohibitions of any kind are imposed or depenalization, in that decriminalization excludes imprisonment as a sanction but continues to allow for fines, probation, and police records. Id.
85. Id. at 9.
86. Id. at 11, 15.
87. See generally Obama Addresses Marijuana Question in Online Town Hall, available at http://latimesblogs.latimes.com/technology/2009/03/obama-addresses.html.
88. See supra note 42 (describing Arizona Proposition 200 and California Proposition 36).
89. Law Enforcement Against Prohibition, available at http://leap.cc/cms/index.php?name=Content&pid=2.
90. Gary Fields, White House Czar Calls for End to “War on Drugs,” WALL ST. J., May 14, 2009, at A3, available at http://online.wsj.com/article/SB124225891527617397.html.
91. Id.
92. See generally Bob Curley, Obama’s First Drug Budget Fails to Shift Priorities, Join Together, May 29, 2009, available at
http://www.jointogether.org/news/features/2009/obamas-first-drug-budget.html.
93. In his August 3, 2009, remarks to the ABA, Attorney General Holder emphasized: “Getting smart on crime requires talking
openly about which policies have worked and which have not. And we have to do so without worrying about being labeled as too soft
or too hard on crime.” available at http://www.usdoj.gov/ag/speeches/2009/ag-speech-090803.html. In addition, Senator Webb recently
proposed a “top-to-bottom review of our entire criminal justice system.” The Commission would be charged with proposing “wide-ranging reforms designed to . . . restructure our approach to drug policy . . . .” http://webb.senate.gov/email/incardocs/FactSheeti.pdf.
94. Bowers, supra note 74, at 798-801; see generally Steve Meyer, Testimony at 1673 (explaining that in Dane County, Wisconsin,
“[t]he district attorney is the gatekeeper. You can’t get in without them saying a-okay”).
95. See infra notes 97-109 and accompanying text.
96. See generally Role of Defense Counsel and Ethical Concerns, infra.
97. See generally Hon. John Creuzot, Testimony at 2003 (explaining that defendants with prior felony convictions are excluded in
Dallas).
98. N.Y. STATE COMM’N ON SENTENCING REFORM, THE FUTURE OF SENTENCING IN NEW YORK STATE: RECOMMENDATIONS FOR REFORM
88 (2009), available at http://criminaljustice.state.ny.us/pio/csr_report2-2009.pdf.
99. Nick Fontana, Testimony at 833-34.
100. Paul DeWolfe, Testimony, at 2251.
101. See, e.g., Julia Leighton, Testimony at 2246 (discussing the District of Columbia).
102. Questionnaire response 27, question 8.
103. See generally Caroline S. Cooper, 2000 Drug Court Survey Report, Executive Summary 21 (2001) available at http://spa.american.edu/justice/publications/execsum.pdf. Federal funding became available to drug courts with the passage of the Omnibus Crime Control and Safe Streets Act of 1994, which authorized the Attorney General to make grants to states, localities, and tribal authorities to
establish drug courts for nonviolent drug offenders. 42 U.S.C. § 3769 (1994).
104. 42 U.S.C. § 3797u-2 (including amendments made by the Second Chance Act of 2007, Pub. L. No. 110-199; see also
http://www.ojp.usdoj.gov/BJA/grant/09DrugCourtResearchSol.pdf (BJA grant solicitation).
105. Robert Hooker, Testimony at 651-52.
106. Id. at 645. There are many other restrictions throughout the country. In Brooklyn, the District Attorney will not consent to
treatment in many types of drug cases including “those involving search warrants, drug sales during school hours near school property,
drug sales inside a location, and drug sales occurring through the use of a beeper.” Brooklyn Treatment Court: Policies and Procedures
at 3, available at http://www.nycourts.gov/courts/2jd/brooklyntreatment/policies.pdf.
107. Ryan King, Testimony at 1727.
108. Peter Banys, Testimony at 71.
109. Ben Kempinen, Testimony at 1603.
110. Robert Hooker, Testimony at 645.
111. Tim Murray, Testimony at 2602.

The Criminal Costs of Treatment and the Case for Reform

63

Endnotes

64

112. Vicki Ashley, Testimony at 1993; Dee Hobbs, Testimony at 1993.
113. People v. Cisneros, 100 Cal. Rptr. 2d 784, 788-89 (Cal. Ct. App. 2000).
114. New York State Unified Court System, Office of Drug Treatment Programs, RECOMMENDED PRACTICES FOR NEW YORK STATE
CRIMINAL DRUG TREATMENT COURTS 17 (draft version of report, on file with NACDL).
115. Douglas B. Marlowe, Testimony at 2416.
116. Id. at 2417.
117. Id. at 2424-25.
118. The White House, Civil Rights, available at http://www.whitehouse.gov/agenda/civil_rights/.
119. Douglas Marlowe, Testimony, at 2966 (observing that 60 or 70 percent of first-time offenders never re-offend and that the National Association of Drug Court Professionals “didn’t tell Obama, ‘We need more drug courts for first-time offenders’”).
120. Hon. Tom Bower, Testimony at 1758.
121. Id. at 1755.
122. Id. at 1756.
123. Hon. Lisa Stark, Testimony at 1760.
124. Jeff Jeffery, Testimony at 2807.
125. Id. at 2810.
126. Rhonda Reagan, Testimony at 2814.
127. Id. at 2816.
128. Candice Singer, Testimony at 2820.
129. See, e.g., Robert Hooker, Testimony at 651; Ryan King, Testimony at 1727.
130. Daniel Abrahamson, Testimony at 108.
131. Nick Fontana, Testimony at 837-38.
132. John Chisholm, Testimony at 1734.
133. A less appealing but still worthwhile option would be empowering individual judges to make admission decisions. A New
York Task Force recently proposed a “Judicial Diversion” model in which the prosecutor could offer input but the judge makes the ultimate decision. N.Y. STATE COMM’N, supra note 98, at 118.
134. Douglas Marlowe, Testimony at 2983.
135. Id.
136. New York State Unified Court System, supra note 114 at 16.
137. Id.
138. Risk assessments are widely used “to identify appropriate individuals for diversion placement.” National Association of Pretrial Services Agencies, PRETRIAL DIVERSION IN THE 21ST CENTURY: A NATIONAL SURVEY OF PRETRIAL DIVERSION PROGRAMS AND PRACTICES at 16 (2009). The Task Force did not have an opportunity to hear from risk assessment experts.
139. Gerianne Abriano, Testimony at 1128.
140. Nestor Ferreiro, Testimony at 1124.
141. The Dade County judge suggested that defendants who enter drug court have 21 days to try it out “because at arraignment if
you want to get out, you get out no matter what.” Hon. Jeffrey Rosinek, Testimony at 456. After defendants sign a waiver, however, “[t]he
only way they get out is if they’re clean.” Id.
142. Questionnaire response 267, question 13.
143. See page 27 (discussing the provision of discovery in Philadelphia).
144. Keith Farmer, Testimony at 1828. See also Jessica Skemp, Testimony at 1829; Michael Steuer, Testimony at 1830.
145. Steve Meyer, Testimony at 1686.
146. Id. at 1687.
147. Jeanette Kinard, Testimony at 1912.
148. Hon. Nanette Warner, Testimony at 787.
149. Bruce Chalk, Testimony at 787.
150. Questionnaire response 171, question 8.
151. Nestor Ferriero & Gerianne Abriano, Testimony at 1128-29.
152. See Decriminalization: The Smart, Fair, Economical, and Effective Alternative, supra (discussing decriminalization).
153. Hora, supra note 26, at 483-84.
154. See Role of Defense Counsel and Ethical Concerns, infra.
155. http://www.letsmakeadeal.com/.
156. See Role of Defense Counsel and Ethical Concerns, infra.
157. Douglas B. Marlowe, Testimony at 2953.
158. Id.
159. Jeffery Fagan, Testimony at 930.
160. Robin Steinberg, Testimony at 958.
161. Id. at 959.
162. Id.

America’s Problem-Solving Courts:

163. Id. at 992.
164. See Concerns About Minorities, the Poor, and Immigrants, infra.
165. This is consistent with the standards adopted by the National Association of Pretrial Services Agencies. See NATIONAL ASSOCIATION OF PRETRIAL SERVICES AGENCIES, PERFORMANCE STANDARDS AND GOALS FOR PRETRIAL DIVERSION/INTERVENTION, Standard 4.3
(2008), available at http://www.napsa.org/publications/diversion_intervention_standards_2008.pdf.
166. See page 16; BUREAU OF JUSTICE ASSISTANCE, DEFINING DRUG COURTS: THE KEY COMPONENTS 5 (2004).
167. National Association of Criminal Defense Lawyers, Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts at 31 (2009).
168. Terrence Walton, Testimony at 2399.
169. See page 27 (summarizing Philadelphia’s drug court).
170. Greg Berman & John Feinblatt, Problem-Solving Courts: A Brief Primer 12-13 (2001), available at http://www.courtinnovation.org/pdf/prob_solv_courts.pdf.
171. In Broward County defendants have litigated motions to suppress and then enrolled in drug court after the motion was denied:
“It’s happened but it’s not supposed to happen.” Hon. Giselle Pollack, Testimony at 291-92; Eric Schwartzeich, Testimony at 293 (“Sometimes they have to go up the chain of command and speak to someone in the State Attorney’s Office to get back into the program.”). In
Brooklyn, enrollment can informally occur at any time. “There are a lot of cases in Brooklyn that don’t end up with a drug treatment option until the day before trial when all of a sudden we get a phone call . . . .” Gerianne Abriano, Testimony at 1132.
172. NATIONAL ASSOCIATION OF PRETRIAL SERVICES AGENCIES, PERFORMANCE STANDARDS AND GOALS FOR PRETRIAL DIVERSION/INTERVENTION, Standard 2.1 (2008).
173. Nestor Ferriero & Gerianne Abriano, Testimony at 1110-11.
174. See page 16; BUREAU OF JUSTICE ASSISTANCE, DEFINING DRUG COURTS: THE KEY COMPONENTS (2004).
175. See generally David Paulus, Testimony at 453 (discussing a hypothetical in which drug court defendant admits to murder while
“cracked out” and concludes “the public would want the prosecutor in that scenario . . . to get that information because it would be relevant to the murder charge”).
176. Mary Defusco, Testimony at 1439.
177. Id. at 1440.
178. Id.
179. Erica Bartlett, Testimony at 1450.
180. Id.
181. Hon. Louis J. Presenza, Testimony at 1457. The court’s caseload is 99 percent felony cases. Id. at 1460.
182. Valerie Raine, Testimony at 1272.
183. Peter Banys, Testimony at 88.
184. See generally Michael W. Finigan, et al., The Impact of a Mature Drug Court Over 10 Years of Operation: Recidivism and Costs
(Final Report) at 52-53 (2007), available at http://www.npcresearch.com/Files/10yr_STOP_Court_Analysis_Final_Report.pdf.
185. Mae C. Quinn, Testimony at 2154.
186. Bowers, supra note 74, at 820.
187. Hon. William Meyer, Testimony at 592-93.
188. Hon. Jeffrey Rosinek, Testimony at 443. Those calls are now taken by a case manager who may call the judge late at night. Id.
at 260 (“It’s now 11:30 on a Saturday night. . . . I’m speaking to this kid’s manager who is speaking to the police trying to stop the arrest
because it’s truly a stupid arrest.”).
189. Bennett Brummer, Testimony at 510.
190. Michael C. Dorf & Jeffrey A. Fagan, Problem Solving Courts: From Innovation to Institutionalization, 40 AM. CRIM. L. REV.
1501, 1510 (2003).
191. Hon. William G. Meyer, Testimony at 591.
192. This is especially troubling when “[t]he treating contractor becomes the judge; in other words, if the treatment facility says the
client is noncooperative, the judge believes it.” Questionnaire response 45, question 8. As a public defender from Nevada explained:
I had a client in Drug Court who used drugs, he said, because he could not cope with the death of his infant. The counselor recommended he attend grief counseling in addition to their substance abuse counseling; my client hated the
grief counseling — it just made him depressed and feeling more helpless, and he asked to quit — the counselor
brought that to the attention of the judge who immediately terminated his participation in the program and sentenced
him to the underlying prison sentence.
Id.
193. MODEL CODE OF JUDICIAL CONDUCT R. 2.9(A)(5) (2007), available at http://www.abanet.org/judicialethics/ABA_MCJC_approved.pdf.
194. MODEL CODE OF JUDICIAL CONDUCT R. 2.9 cmt. 4 (2007).
195. State Adoption of Revised Model Code of Judicial Conduct, http://www.abanet.org/cpr/jclr/map.html; see also BJA Drug Court
Clearinghouse, October 24, 2008, memo on “Ex parte communication in drug court/problem solving court matters and, specifically,
states’ position on Comment 4 under Rule 2.9 ‘Ex Parte Communications’ of the 2007 ABA Model Code of Judicial Conduct” (summarizing responses from Alaska, Arkansas, California, Delaware, Idaho, Indiana, Missouri, and West Virginia).

The Criminal Costs of Treatment and the Case for Reform

65

Endnotes

66

196. Idaho Code of Judicial Conduct, Canon 3B(7), available at http://www.isc.idaho.gov/IdJudicialCodeOfConduct.pdf ; Marion
County, Indiana Local Rule 309, available at http://www.in.gov/judiciary/marion/marion-all-030509.pdf .
197. For example, the Brooklyn Treatment Court has a 25-page handbook for participants, which includes an explanation of such
topics as the court, its rules, treatment phases, sanctions, and graduation. Brooklyn Treatment Court, PARTICIPANT HANDBOOK (on file with
NACDL).
198. Hon. John Creuzot, Testimony at 2014-15.
199. Iowa v. Tovar, 541 U.S. 77, 88 (2004).
200. Id. at 91-94.
201. See Role of Defense Counsel and Ethical Concerns, infra.
202. See Staffings, infra.
203. Hora & Stalcup, supra note 37, at 795-96; Hon. Laura Safer Espinoza, Testimony at 1569 (explaining that counsel “can come
at 9:30 . . . I’m there every morning from like 9:30 to about 10:15 and some of them do stop by”).
204. Ryan S. King & Jill Pasquarella, Drug Courts: A Review of the Evidence at 10 (2009), available at http://www.sentencingproject.org/Admin/Documents/publications/dp_drugcourts.pdf.
205. Mike Rempel, Testimony at 1243-44.
206. Robert Hooker, Testimony at 675.
207. Liesl Nelson, Testimony at 1703 (explaining that termination may occur not because of a specific act or omission of the participant but when the court has “exhausted all resources” in a case).
208. Hon William Meyer, Testimony at 568.
209. IDAHO CODE OF JUDICIAL CONDUCT Canon 3B(7), available at http://www.isc.idaho.gov/IdJudicialCodeOfConduct.pdf.
210. Alexander v. State, 48 P.3d 110, 115 (Okla. Crim. App. 2002).
211. Id.
212. Hon. William G. Meyer, Testimony at 568.
213. See Role of Defense Counsel and Ethical Concerns, infra.
214. See generally Michael Finigan, Testimony at 2667-68 (explaining poor results of a drug court that used short-term rotating
judges, many of whom were disengaged); Finigan & Carey, supra note 184, at 52-53 (“Judges did differ in their success rates in terms
of reducing recidivism, suggesting that drug court results may vary depending on the judges involved…Of great interest is the finding
that judges who had more than one rotation through drug court had better results their second time on the drug court bench.”).
215. Jose Varela, Testimony at 36.
216. Annalisa Mirón, Testimony at 1319.
217. See generally Michael M. O’Hear, Rethinking Drug Courts: Restorative Justice as a Response to Racial Injustice, 20 STAN. L.
& POL’Y REV. 463, 482-83 (2009); Bowers, supra note 74, at 792-93 (summarizing New York data and observing “the typical failing participant [in the Bronx] was sentenced to two-to-six years in prison, which was (at the time of the relevant studies) the maximum sentence
on the maximum drug-court eligible charge”).
218. Annalisa Mirón, Testimony at 1316-17.
219. Id. at 1317.
220. Id.
221. Id. at 1320.
222. Questionnaire response 5, question 8.
223. Questionnaire response 402, question 8.
224. Questionnaire response 379, question 7.
225. Questionnaire response 312, question 7.
226. Questionnaire response 212, question 8.
227. Hora & Stalcup, supra note 37, at 788.
228. Id. at 789.
229. Leon Grizzard, Testimony at 2139.
230. Tamar M. Meekins, Risky Business: Criminal Specialty Courts and the Ethical Obligations of the Zealous Criminal Defender,
12 BERKELEY J. CRIM. L. 75, 76 (2007).
231. See page 16; BUREAU OF JUSTICE ASSISTANCE, DEFINING DRUG COURTS: THE KEY COMPONENTS 3 (2004).
232. Id.
233. Id.
234. Clara Hernandez, Testimony at 1927.
235. NATIONAL DRUG COURT INSTITUTE, Critical Issues for Defense Attorneys in Drug Court, April 2003, at 10.
236. See Timing of Admission and Discovery Issues, supra.
237. Jeanette Kinard, Testimony at 1912.
238. Paul DeWolfe, Testimony at 2229.
239. Richard C. Boldt, Rehabilitative Punishment and the Drug Treatment Court Movement, 76 WASH. U. L.Q. 1205, 1288 (1998).
240. Id.
241. David Dickmann & Elliott Levine, Roles of the Defense Attorney in Drug Treatment Courts, 13 THE WISCONSIN DEFENDER 7
(Summer 2005).

America’s Problem-Solving Courts:

242. For example, in Dallas County defendants first participate in an orientation during which they observe drug court proceedings
and talk with participants. Hon. John Creuzot, Testimony at 2014-15.
243. Adam Mansky, Testimony at 1008-09.
244. Josh Bowers, Testimony at 2701.
245. Id. at 2702.
246. See generally Sarah Mayer, Testimony at 2134. Other witnesses spoke in favor of developing guidelines to help lawyers counsel clients about entry into drug court. Barry Wax, Testimony at 346.
247. Barry Wax, Transcript at 348-49.
248. Bowers, supra note 74, at 820.
249. See generally Adam Mansky, Testimony at 1008-09.
250. See History and Evolution of Drug Courts, supra; Liesl Nelson, Testimony at 1694 (discussing weekly appearances before the
judge during the first six months).
251. Jeff Thoma, Testimony at 172.
252. Douglas B. Marlowe, Testimony at 2493.
253. Id. at 2493-94.
254. Id. at 2494.
255. Questionnaire response 370, question 10.
256. Mae C. Quinn, Testimony at 2157; questionnaire response 246, question 10 (“I did not attend staffing meetings [b]ecause I was
not allowed to.”).
257. Hon. Laura Safer Espinoza, Testimony at 1533-34.
258. Id. at 1566-67.
259. Hon. Michael Rankin, Testimony at 2772.
260. See generally Howard Finkelstein, Testimony at 381-82 (discussing caseloads for public defenders).
261. See Caseload Concerns, infra.
262. Paul DeWolfe, Testimony at 2295.
263. Hon. Laura Safer Espinoza, Testimony at 1567.
264. Tamar M. Meekins, “Specialized Justice”: The Over-Emergence of Specialty Courts and the Threat of a New Criminal Defense Paradigm, 40 SUFFOLK U. L. REV. 1, 9 (2006).
265. Jean Koh Peters, Concrete Strategies for Managing Ethically-Based Conflicts Between Children’s Lawyers and Consulting Social Workers Who Serve the Same Client, 1 KY. CHILD. RTS. J. 15, 18 (1991).
266. Id.
267. Tamar Ezer, Delivery of Legal Services to Children in the Boston Area, 8 U.C. DAVIS J. JUV. L. & POL’Y 95, 147 (2004).
268. Id.
269. Donald H. Stone, Giving a Voice to the Silent Mentally Ill Client: An Empirical Study of the Role of Counsel in the Civil Commitment Hearing, 70 UMKC L.R. 603, 617-18 (2002).
270. Michael L. Perlin, et al., Therapeutic Jurisprudence and the Civil Rights of Institutionalized Mentally Disabled Persons: Hopeless Oxymoron or Path to Redemption?, 1 PSYCHOL. PUB. POL’Y & L. 80, 117 (1995).
271. Paul DeWolfe, Testimony at 2230 (explaining that counsel’s advocacy in staffings must be for “the stated interest of the client,
despite pressure to be a team player concerned with the best interests of the client”).
272. Martin Guggenheim, The Right to Be Represented but Not Heard: Reflections on Legal Representations for Children, 59 N.Y.U.
L. REV. 76, 81 (1984).
273. Questionnaire response 352, question 8.
274. Meekins, supra note 264, at 38.
275. Questionnaire response 361, question 8.
276. See generally Hon. John Creuzot, Testimony at 2018.
277. See generally Hon. Elisabeth Earle, Testimony at 2140 (observing that counsel “has usually either talked to the participants or
is going to when they get there”).
278. Gerianne Abriano, Testimony at 1102.
279. Id.
280. Ben Kempinen, Testimony at 1612.
281. Id.
282. Sandy Lonergen, Testimony at 451.
283. Judge Judy H. Kluger, Panelist, The Impact of Problem Solving on the Lawyer’s Role and Ethics, 29 FORDHAM URB. L.J. 1892,
1893 (2002) (recounting situations where “prosecutors congratulat[e] defendants who were doing well and defense attorneys agree that
maybe a few nights in jail would be just the thing to make sure that their client stays clean”).
284. See generally MODEL RULES OF PROF’L CONDUCT (2007) (Preamble).
285. Mae C. Quinn, Whose Team Am I on Anyway? Musings of a Public Defender About Drug Treatment Court Practice, 26 N.Y.U.
REV. L. & SOC. CHANGE 37, 71 (2000-01).
286. Jeff Thoma, Testimony at 178.

The Criminal Costs of Treatment and the Case for Reform

67

Endnotes

68

287. Id.
288. Id. at 178-79.
289. MODEL RULES OF PROF’L CONDUCT R. 1.2 (2007).
290. See MODEL RULES OF PROF’L CONDUCT (2007) (Preamble and Scope).
291. MODEL RULES OF PROF’L CONDUCT R. 1.6 (2007). The rule also includes other limited circumstances that do not include drug
court proceedings.
292. MODEL RULES OF PROF’L CONDUCT R. 1.6 cmt. 2 (2007).
293. As noted above, sometimes prosecutors argue for no jail time when the defense member of the team argues for jail. See, e.g.,
Gerianne Abriano, Testimony at 1102.
294. See page 16; BUREAU OF JUSTICE ASSISTANCE, DEFINING DRUG COURTS: THE KEY COMPONENTS 3 (2004).
295. A lawyer from Kentucky explained,
If I get someone in Drug Court, they are on their own in all further proceedings and I am not allowed to attend the
Drug Court sessions that involve my client. They have no advocate to speak for them against whatever the Drug Court
Committee decides with regard to their case. And, if they are tossed from Drug Court because of too many problems
or violations, that is when I get notice to re-appear for sentencing. I will have no idea what has happened and will
be in the dark and unable to argue effectively against imprisonment.
Questionnaire response 79, question 8. As a lawyer from Florida put it, “we are not invited as attorneys to participate. Once the client
enrolls, I am out of the case.” Questionnaire response 260, question 10.
296. Hora & Stalcup, supra note 37, at 795.
297. Hon. Laura Safer Espinoza, Testimony at 1567.
298. Hon. Jeffrey Rosinek, Testimony at 404.
299. Peter F. Rose, Testimony at 2288. Hon. Carey Hyatt, Testimony at 632 (observing that retained counsel appear in court “kind
of like, oh, my God, what is this?” Public defenders must then do “a little tutorial to the private bar right there in court.”).
300. See page 16; BUREAU OF JUSTICE ASSISTANCE, DEFINING DRUG COURTS: THE KEY COMPONENTS 3 (2004).
301. Barry Wax, Testimony at 339.
302. Candice Singer, Testimony at 2822.
303. Jose Varela, Testimony at 27-28.
304. Mary Helen McNeal, Unbundling and Law School Clinics: Where’s the Pedagogy?, 7 CLINICAL L. REV. 341, 343 (2001).
305. Hon. Judith L. Kreeger, To Bundle or Unbundle? That Is the Question, 40 FAM. CT. REV. 87, 89 (2002).
306. Jeff Thoma, Testimony at 166 (observing that retained counsel are welcome in drug court but “almost never” appear); Robert
Hooker, Testimony at 647 (noting that the Pima County Public Defender’s Office takes over cases of private bar once a client is enrolled
in drug court).
307. Hon. Kathy Foster, Testimony at 1863 (“There is a role for the private bar, just none of them care to take it very often.”). As
one private lawyer explained, if participants are “going to their meetings, dropping clean urine, there’s really not much of a role for defense counsel. . . . If they tell me they have a dirty urine, then I go to court with them.” David Markus, Testimony at 476.
308. Hon. Joel Bennett, Testimony at 2016.
309. Dee Hobbs, Testimony at 1984.
310. Cf. Barry Wax, Testimony at 340-41 (explaining that requiring appearances would be “tortious interference with a business relationship or something like that” but emphasizing he would not take a standard retainer for a drug court case when he merely spends a
couple of hours advising a client about possible entry into drug court).
311. Hon. Fern Fisher-Brandveen & Rochelle Klempner, Unbundled Legal Services: Untying the Bundle in New York State, 29
FORDHAM URB. L.J. 1107, 1115 (2002).
312. Id.
313. Hon. Jeffrey Rosinek, Testimony at 443-44.
314. Dan Carrion, Testimony at 628-29 (noting the court is an “open system” in which public defenders represent “whatever clients
are in the court”); Robin Steinberg, Testimony at 957 (observing “the pending caseloads are growing and growing and growing. These
cases simply never go away”).
315. ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 06-441 at 3 (2006), available at
http://www.abanet.org/cpr/06_441.pdf.
316. US DOJ, OFFICE OF JUSTICE PROGRAMS, KEEPING DEFENDER WORKLOADS MANAGEABLE 8 (2001) (quoting National Advisory
Commission on Criminal Justice Standards and Goals, Task Force on Courts at 186 (1973)).
317. Id. at 11.
318. Id. at 11-12.
319. ABA Comm. on Ethics and Prof’l Responsibility, Formal Op. 06-441 at 6 (2006).
320. Id. at 4. On August 3, 2009, after the Task Force had completed this report, the ABA House of Delegates approved Recommendation 119, which adopted Eight Guidelines of Public Defense Related to Excessive Workloads. Those guidelines build upon Formal Opinion 06-441 while providing “the kind of detailed action plan . . . to which those providing public defense should adhere as
they seek to comply with their professional responsibilities.”
321. Norman Lefstein & Georgia Vagenas, Restraining Excessive Defender Caseloads: The ABA Ethics Committee Requires Ac-

America’s Problem-Solving Courts:

tion, THE CHAMPION, Dec. 2006, at 12.
322. In re Order on Prosecution of Criminal Appeals by the Tenth Judicial Circuit Public Defender, 561 So.2d 1130, 1135 (Fla. 1990).
More recently, a Florida appellate court reversed a trial court’s order permitting a public defender’s office to decline representation in all
future third-degree felony cases. State v. Public Defender, Eleventh Judicial Circuit, No. 3D08-2272 (May 13, 2009), 2009 WL 1311014
(Fla. Dist. Ct. App. 2009).
323. In re Order on Prosecution, 561 So.2d at 1135.
324. In re Order on Motions to Withdraw Filed by Tenth Circuit Public Defender, 612 So.2d 597 (Fla. Dist. Ct. App. 1992).
325. Ben Kempinen, Testimony at 1588.
326. Some states have gone so far as to codify the noncourtroom nature of drug court. See, e.g., TENN. CODE ANN. § 16-22103(3) (West 2009) (“Any disagreements are to be resolved prior to court, and not in front of the participants.”).
327. Peter F. Rose, Testimony at 2206.
328. Dickmann & Levine, supra note 241, at 5.
329. Austine Long, Testimony at 1296.
330. See generally Julia Leighton, Testimony at 2247.
331. Accompanying this rule is commentary that suggests that a lawyer “should pursue a matter on behalf of a client despite opposition, obstruction, or personal inconvenience to the lawyer, and may take whatever lawful and ethical measures are required to vindicate a client’s cause or endeavor. A lawyer should act with commitment and dedication to the interests of the client and with zeal in
advocacy upon the client’s behalf.” MODEL RULES OF PROF’L CONDUCT R. 1.3 cmt. 1 (2007).
332. Questionnaire response 377, question 17.
333. Hon. Michael Rankin, Testimony at 2774.
334. See History and Evolution of Modern Drug Courts, supra.
335. BUREAU OF JUSTICE ASSISTANCE, DEFINING DRUG COURTS: THE KEY COMPONENTS 3 (2004) (“For consistency and stability in
the early stages of drug court operations, the judge, prosecutor, and court-appointed defense counsel should be assigned to the drug court
for a sufficient period of time to build a sense of teamwork and to reinforce a nonadversarial atmosphere.”).
336. Julia Leighton, Testimony at 2220.
337. Mae C. Quinn, Testimony at 2155.
338. Paul DeWolfe, Testimony at 2292-93.
339. MODEL RULES OF PROF’L CONDUCT (2007) (Preamble).
340. Sarah Mayer, Testimony at 2134. A prosecutor explained when defendants with private counsel enroll in drug court, the clients
“sign a Motion to Substitute Counsel, which then goes to our contract attorney. The contract attorney is nonadversarial.” Dee Hobbs, Testimony at 1960-61.
341. Liesl Nelson, Testimony at 1703.
342. San Diego Superior Court Adult Drug Court Program, Participant Contract, available at http://www.dcpi.ncjrs.gov/dcpi/dcpi_adult.html#pc;
Charleston County Adult Drug Court Treatment Program, Basic Understanding, Waivers, and Agreements, available at
http://www.dcpi.ncjrs.gov/dcpi/dcpi_adult.html#pc;
Syracuse
Community
Treatment
Court
Contract,
available
at
http://www.dcpi.ncjrs.gov/dcpi/dcpi_adult.html#pc; Weld County Drug Court Participant Contract, available at http://www.courts.state.co.us/userfiles/File/Court_Probation/19th_Judicial_District/ADC_Participant_Contract.pdf; Williamson County DWI/Drug Court Program, available at
http://www.wilcogov.org/LinkClick.aspx?fileticket=zjM1VnbiMPo%3D&tabid=678&mid=2037&language=en-US; Client Contract 22nd Judicial
District of Louisiana, available at http://www.dcpi.ncjrs.gov/dcpi/dcpi_adult.html#pc; Superior Court of Dawson County, State of Georgia, Drug Court
Contract, available at http://www.dcpi.ncjrs.gov/dcpi/dcpi_adult.html#pc; Sixteenth Judicial Circuit Drug Court Treatment Program, Drug Treatment
Program Agreement of Participation, available at http://spa.american.edu/justice/document_center.php; Boone County Drug Court Entry Questionnaire,
available at http://spa.american.edu/justice/document_center.php; Bernalillo County Metropolitan DWI/Drug Court General Condition of Release,
available at http://www.dcpi.ncjrs.gov/dcpi/dcpi_adult.html#pc; In the Superior Court of State of Washington for Yakima County, Drug Court Contract
and Order Establishing Court Costs, available at http://www.yakimacounty.us/superiorcourt/Forms/DrugCourt/Drug%20Court%20Program%20Contract%20Revised%20%20January%202007pdf.pdf; Lancaster County Court of Common Pleas Adult Probation & Parole Services, Adult Drug Court
Participant Contract, available at http://www.co.lancaster.pa.us/courts/lib/courts/apps/drugcourt/drugcourtparticipantcontract.pdf; Berrin County, Drug
Court Voluntary Diversion Program Sample Document, available at http://spa.american.edu/justice/document_center.php; Escambia County, Florida
Drug Court Treatment Program Participation Agreement, available at http://spa.american.edu/justice/document_center.php; 17th Judicial Circuit of
Florida, MDCP, available at http://www.17th.flcourts.org/VI-06-1-2_Misdemeanor_Drug_Court_01-26-0666.pdf; Sacramento Superior and Municipal Courts, Drug Court Contract, available at http://spa.american.edu/justice/document_center.php; St. Johns County Adult Treatment Program Participation Application and Disclosure, available at http://www.dcpi.ncjrs.gov/dcpi/dcpi_adult.html#pc.
343. St. Johns County Adult Treatment Program Participation Application and Disclosure, available at
http://www.dcpi.ncjrs.gov/dcpi/dcpi_adult.html#pc.
344. San Diego Superior Court Adult Drug Court Program, Participant Contract, available at
http://www.dcpi.ncjrs.gov/dcpi/dcpi_adult.html#pc.
345. Syracuse Community Treatment Court Contract, available at http://www.dcpi.ncjrs.gov/dcpi/dcpi_adult.html#pc.
346. Charleston County Adult Drug Court Treatment Program, Basic Understanding, Waivers, and Agreements, available at
http://www.dcpi.ncjrs.gov/dcpi/dcpi_adult.html#pc.
347. Hon. Jo Ann Ferdinand, Testimony at 1169.

The Criminal Costs of Treatment and the Case for Reform

69

Endnotes

70

348. Bennett Brummer, Testimony at 520.
349. Bruce Winick, Testimony at 216 (“[Y]ou should not rush these things so quickly, and you should have adequate time and resources and opportunity for the kind of counseling that we all know should occur between attorney and client. . . .”).
350. Dickmann & Levine, supra note 241, at 7.
351. Private counsel must decide at the outset of a drug case whether they are in for the long haul or not at all. Dumping clients at
the doorstep of drug court—to fend for themselves or possibly be picked up by an overburdened public defender—is not an option,
whether written into an agreement or not.
352. Tim Murray, Testimony at 2603-04 (“Unfortunately, one of the aspects of drug court, undeniably, is the element of theater. It’s
a big part. We didn’t realize it when we started, but the drug courts are great theater.”).
353. Cf. IDAHO CODE OF JUDICIAL CONDUCT Canon 3B(7) (addressing ex parte communications).
354. Julia Leighton, Testimony at 2306.
355. Meekins, supra note 264, at 52.
356. See page 16. State statutes that have adopted the Ten Key Components or otherwise conflict with the role of defense counsel
as a zealous advocate should similarly be amended. See, e.g., TENN. CODE ANN. § 16-22-103(3) (West 2009) (“Any disagreements are to
be resolved prior to court, and not in front of the participants.”).
357. BUREAU OF JUSTICE ASSISTANCE, DEFINING DRUG COURTS: THE KEY COMPONENTS 3 (2004).
358. Id. at 5.
359. Terrence Walton, Testimony at 2399.
360. Berman & Feinblatt, supra note 170, at 12-13.
361. Hon. Giselle Pollack, Testimony at 284 (observing it was “[v]ery important that the defense attorney and the state attorney [were]
invited to all the planning meetings when you’re planning this court”).
362. See pages 27 and 48.
363. Tim Jeffries, Testimony at 2174; Hon. William G. Meyer, Testimony at 590.
364. Specialized training is especially important in the area of immigration consequences. See, e.g., Manny Vargas, Testimony at
2925-26. A number of resources are available as well. http://www.immigrantdefenseproject.org/webPages/crimJustice.htm (representing
immigrant defendants in New York). A national manual will soon be available through the Defending Immigrants Partnership. Manny
Vargas, Testimony at 2937.
365. STANDARDS FOR CRIMINAL JUSTICE PROVIDING DEFENSE SERVICES 5-1.1 (1992).
366. Scott Wallace & David Carroll, The Implementation and Impact of Indigent Defense Standards, 31 S.U.L. REV. 245, 263
(2004).
367. Overturning a conviction on ineffective representation grounds, a federal court illustrated the serious issues that arise from the
lack of an attorney-client relationship with horizontal representation:
[P]etitioner was assigned Legal Aid counsel and an attorney named Richter, whom he never saw again, spoke
to him hurriedly on that occasion. Petitioner was remanded then, and has been locked up ever since.
From the morning of October 18 until December 15, no lawyer came to speak to petitioner about his plight. He
was indicted on November 1. . . . Thereafter, he came to court several times to hear that his case was being postponed,
evidently ‘represented’ for these purposes by a series of Legal Aid attorneys, but never having an opportunity to
consult with any of them.
On March 11, 1968, a Legal Aid attorney, whose name we do not know, handled a calendar call of petitioner’s
case and told him that a new staff attorney, William Harrison, had been assigned to represent him. According to the
pertinent court record, petitioner’s case was marked ‘ready’ for trial at the time of that March 11 call, but neither Mr.
Harrison nor anyone else even supposedly knowledgeable was present to handle the matter, and another of many adjournments was ordered.
Still unaware of what, if anything, was being done for him, petitioner drafted a paper for move of relief [sic] of
the Legal Aid Society and assignment of different counsel. He wrote: ‘I have been locked up for five months and each
time I come back to court I have another lawyer handling my case.’ At the cursory oral hearing of his motion on March
22, 1968, asked why he was dissatisfied, petitioner said: ‘It seems to me that they are not interested at all.’
Richard Klein, The Emperor Gideon Has No Clothes: The Empty Promise of the Constitutional Right to Effective Assistance of
Counsel, 13 HASTINGS CONST. L. Q. 625, 677-78 (1986) (quoting United States ex rel. Thomas v. Zelker, 332 F. Supp. 595, 596-98
(S.D.N.Y. 1971)).
368. Paul S. Petterson, Indigent Defense, CHAMPION, July 1997, at 35.
369. Klein, supra note 367, at 678. Questionnaire response 352, question 8 (“The right to counsel is seriously undermined when the
court attempts to have just one defense attorney of the court’s choosing assigned to all drug court cases.”).
370. Lisa Schreibersdorf, Testimony at 964, 965.
371. See generally Hon. Larry Gist, Testimony at 1898.
372. Howard Finkelstein, Testimony at 366; see also Hon. Judy Harris Kluger, Testimony at 871 (“Problem-solving courts shouldn’t
be the assignment of the least experienced lawyers; it should be an assignment for the best.”).
373. Howard Finkelstein, Testimony at 366.
374. Douglas B. Marlowe, Testimony at 2466.

America’s Problem-Solving Courts:

375. Howard Finkelstein, Testimony at 366; Erica Bartlett, Testimony at 1441.
376. The Constitution Project, Justice Denied: America’s Continuing Neglect of Our Constitutional Right to Counsel (2009), available at http://tcpjusticedenied.org/.
377. Hon. Michael Rankin, Testimony at 2793-94 (noting that drug court team staffing meetings are not used in the District of Columbia).
378. Douglas B. Marlowe, Testimony at 2428.
379. Hon. William Meyer, Testimony at 592.
380. Id.
381. The Task Force is unaware of programs that allow defendants to attend staffing meetings, much less studies of the efficacy of
such an approach.
382. Jeff Thoma, Testimony at 172.
383. Questionnaire response 332, question 10. As a Texas public defender explained, “some decisions (like sanctions or promotions)
are based on the staff members’ feelings and speculations, rather than a dispassionate investigation of the circumstances.” Questionnaire
response 432, question 8. Moreover, “when the staff members are discussing cases, sometimes they ‘pile up’ the worst speculations about
the participant without considering the participant’s side of the story.” Id.
384. Ryan King, Testimony at 1719.
385. Tony Thompson, Testimony at 896.
386. Id.
387. O’Hear, supra note 217, at 483.
388. Morris B. Hoffman, The Drug Court Scandal, 78 N.C. L. REV. 1437, 1505 (2000).
389. Id. at 1503.
390. See generally Marc Mauer & Ryan S. King, Uneven Justice: State Rates of Incarceration by Race and Ethnicity (2007), available at http://www.sentencingproject.org/Admin/Documents/publications/rd_stateratesofincbyraceandethnicity.pdf.
391. Gerald Uelmen, et al., Substance Abuse and Crime Prevention Act of 2000 Progress Report, Mar. 2002, at 14, available at
http://www.prop36.org/pdf/SACPA.pdf.
392. Robert Hooker, Testimony at 645.
393. Hon. Jeffery Rosinek, Testimony at 405.
394. Ana Yanez-Correa, Testimony at 2058 (explaining that data would have to be compiled county by county in Texas).
395. Filler & Smith, supra note 64, at 989.
396. Questionnaire response 95, question 15.
397. Questionnaire response 321, question 17.
398. O’Hear, supra note 217, at 479.
399. Id.
400. Josh Bowers, Testimony at 2734.
401. O’Hear, supra note 217, at 480.
402. Id. at 481. A recent study showed a 21.6 percent decrease in the number of African Americans incarcerated in state prisons for
drug offenses between 1999 and 2005 while the number of Caucasians increased by 42.6 percent. Marc Mauer, The Changing Racial Dynamics of the War on Drugs at 3 (2009), available at http://sentencingproject.org/Admin/Documents/publications/dp_raceanddrugs.pdf.
The disparities, however, are still significant and troubling.
403. Dee Hobbs, Testimony at 1995-96 (“Transportation is a huge issue”).
404. Questionnaire response 136, question 17.
405. See generally Questionnaire response 199, question 17 (“In my rural county, unless a participant has reliable transportation,
there is little chance of meeting the requirements of the court.”).
406. Questionnaire response 97, question 17; accord Questionnaire response 206, question 17 (“Many of my poorest clients or
clients without means of transportation will not be able to participate and therefore are not in drug court by personal choice and sometimes because the [j]udge will see this as a problem and will discourage the referral.”).
407. Questionnaire response 160, question 17.
408. Id.
409. Id.
410. Questionnaire response 202, question 15.
411. Questionnaire response 18, question 17.
412. Id.
413. Questionnaire response 373, question 15.
414. Manny Vargas, Testimony at 2905, 2907; In re Roldan-Santoyo, 22 I. & N. Dec. 512 (Interim Decision), 1999 WL 126433
(B.I.A. 1999); cf. N.Y. Crim. Proc. Law § 160.60 (McKinney 2004) (“the arrest and prosecution shall be deemed a nullity and the accused shall be restored, in contemplation of law, to the status he occupied before the arrest and prosecution”). Convictions for some offenses, such as the simple possession of marijuana, do not have immigration consequences. 8 U.S.C. § 1227(a)(2)(B)(i) (2006).
415. 8 U.S.C. § 1101(a)(48)(A).
416. Manny Vargas, Testimony at 2909.

The Criminal Costs of Treatment and the Case for Reform

71

Endnotes

72

417. Id. at 2917.
418. Questionnaire response 428, question 8.
419. NATIONAL INSTITUTE OF JUSTICE, THE REBIRTH OF REHABILITATION: PROMISE AND PERILS OF DRUG COURTS 5 (2000), available
at http://www.ncjrs.gov/pdffiles1/nij/181412.pdf.
420. Clara Hernandez, Testimony at 1934.
421. Hon. Kathryn Foster, Testimony at 1856.
422. Keith Farmer, Testimony at 1835.
423. Id.
424. John Chisholm, Testimony at 1736-37.
425. Hon. Kathryn Foster, Testimony at 1854.
426. Alina Das, Immigrants and Problem-Solving Courts, 33 CRIM. JUST. REV. 308, 321 (2008).
427. Tova Indritz, Six Immigration-Related Ideas for the New Administration and Congress, THE CHAMPION Jan. 2009, at 53.
428. This training can and should include immigration experts, such as those at the Immigration Defense Project. Manny Vargas,
Testimony at 2921.
429. Manny Vargas, Testimony at 2926.
430. See Decriminalization: The Smart, Fair, Economical, and Effective Alternative, supra.
431. Peter F. Rose, Testimony at 2203.
432. See Features of Modern Drug Courts, supra.
433. Clara Hernandez, Testimony at 1934; Hon. Jeffrey Rosinek, Testimony at 427 (discussing a participant who remained four and
a half years).
434. Leonard Noisette, Testimony at 952 (explaining it is best to “get your client out of the system as fast as you humanly can because no good will come from it”).
435. Robin Steinberg, Testimony at 957.
436. Leonard Noisette, Testimony at 944-45.
437. Tony Thompson, Testimony at 900.
438. Josh Bowers, Testimony at 2700. See also Jonathan Simon, GOVERNING THROUGH CRIME (Oxford Press 2007).
439. Josh Bowers, Testimony at 2698.
440. Robert Hooker, Testimony at 640. See also David Gonzalez, Testimony at 1930-31; Jeanette Kinard, Testimony at 1931.
441. Hon. Laura Safer Espinoza, Testimony at 1546.
442. Id. at 1545; Clara Hernandez, Testimony at 1932.
443. Candice Singer, Testimony at 2842.
444. The Pew Center on the States, One in 31: The Long Reach of American Corrections at 1 (2009), available at http://www.pewcenteronthestates.org/uploadedFiles/PSPP_1in31_report_FINAL_WEB_2-27-09.pdf.
445. Id. at 2 (explaining that supervising an individual on probation costs only a few dollars per day while incarceration costs approximately $79 each day).
446. The White House, Civil Rights, available at http://www.whitehouse.gov/agenda/civil_rights.
447. Douglas Marlowe, Testimony, at 2966 (observing that 60 or 70 percent of first-time offenders never re-offend and that the National Association of Drug Court Professionals “didn’t tell Obama, ‘We need more drug courts for first time offenders’”).
448. Peter Banys, Testimony at 70.
449. Id. at 72.
450. Tim Murray, Testimony at 2603.
451. Id. at 2616.
452. Hon. Lisa Stark, Testimony at 1760.
453. Tim Murray, Testimony at 2616.
454. Douglas B. Marlowe, Testimony at 2421; Howard Finkelstein, Testimony at 396-97 (“It’s a stupid court. . . . It’s like eight
months, 10 months. . . . It’s a waste of resources.”).
455. See generally DeMatteo, supra note 20, at 123; Marlowe, supra note 20, at 4.
456. DeMatteo, supra note 20, at 123.
457. Patrick McGee, Testimony at 2591.
458. TENN. CODE ANN. § 40-15-105(a)(1)(B)(i)(a)-(b) (West 2009). Diversion rests in the discretion of the prosecutor, but any denial
must be explained in writing focusing on delineated factors such as the defendant’s criminal record, social history, and amenability to correction. A denial may be appealed to the trial court and then the appellate courts. See, e.g., State v. Curry, 988 S.W.2d 153 (Tenn. 1999)
(affirming the trial court’s conclusion that diversion had been improperly denied).
459. Spurgeon Kennedy, Testimony at 2397.
460. Id.
461. John Chisholm, Testimony at 1730.
462. Craig Mastantuono, Testimony at 1634.
463. Dawn Rablin, Testimony at 1639.
464. Id. at 1649.

America’s Problem-Solving Courts:

465. Id. at 1640.
466. Id. at 1643.
467. Barbara Due, Testimony at 1646.
468. Id. at 1645.
469. Robin Dorman, Testimony at 1647 (“There are some exceptions. It is not a hard-and-fast rule.”).
470. Craig Mastantuono, Testimony at 1636.
471. Hon. Carl Ashley, Testimony at 1622-23; Craig Mastanuono, Testimony at 1636.
472. Greg Mastantuono, Testimony at 1655.
473. Dawn Rablin, Testimony at 1658.
474. Craig Mastantuono, Testimony at 1630.
475. John Chisholm, Testimony at 1736-37.
476. See, e.g., Hon. John Bozza, Testimony at 2323.
477. Dan Abrahamson, Testimony at 100.
478. Hon. Larry Gist, Testimony at 1885, 1889-90.
479. N.Y. STATE COMM’N, supra note 98, at 93.
480. Id.
481. See, e.g., Hon. Louis J. Presenza, Testimony at 1465.
482. Keith Farmer, Testimony at 1828; Ben Kempinen, Testimony at 1604.
483. See generally Hoffman, supra note 388, at 1509.
484. Richard Baron, Testimony at 481, 487 (“I’ve had clients that really were at the wrong place, wrong time, got busted for possession, and they weren’t drug addicts, yet they have to go through the entire system, urine, go to meetings, and it’s unfortunate that’s the way
it is.”). As one public defender aptly explained, “Nobody has ever done that interview and said, ‘You don’t need our services. Go and be
well.’ Everybody’s got a problem.” Howard Finkelstein, Testimony at 396.
485. Hoffman, supra note 388, at 1471.
486. Hon. Laura Safer Espinoza, Testimony at 1547; see also Bowers, supra note 74, at 797-98 (discussing the “Dealer’s Game” in
which “prosecutors and court personnel in New York City did almost nothing to ensure that treatment offers went to the addicted”).
487. See, e.g., Laurie Ekstrand, Testimony at 2407; Mae Quinn, Testimony at 2164 (“We never hear from the defendants who failed
out. We never have gotten data collected from them to say, hey, what was told to you by your lawyer, what were you thinking about when
you went into this court, and how has it affected you now in terms of your desire to stay clean . . . .”).
488. Tim Murray, Testimony at 2602.
489. Douglas B. Marlowe, Testimony at 2504.
490. Steven Belenko, Research on Drug Courts: A Critical Review 2001 Update at 53 (2001), available at http://www.drugpolicy.org/docUploads/2001drugcourts.pdf.
491. US GAO, supra note 33, at 70-72 (1997).
492. Id.; Mae Quinn, Testimony at 2164.
493. See Role of Defense Counsel and Ethical Concerns, supra.
494. Dr. Douglas Marlowe mentioned some of these and other topics in an e-mail to the Task Force on February 3, 2009. The e-mail
is on file with NACDL.
495 Howard Finkelstein, Testimony at 357, 360; Hon. Ginger Lerner-Wren, Testimony at 240, 242.
496. Judge Ginger Lerner-Wren, Broward’s Mental Health Court: An Innovative Approach to the Mentally Disabled in the Criminal
Justice System (2000), available at http://www.ncsconline.org/WC/Publications/KIS_ProSol_Trends99-00_FlaMentalPub.pdf.
497. Id.
498. Andrea M. Odegaard, Therapeutic Jurisprudence: The Impact of Mental Health Courts on the Criminal Justice System, 83 N.D.
L. REV. 225, 237 (2007).
499. Meekins, supra note 264, at 24-25.
500. See, e.g., Hon. David Crain, Testimony at 2075.
501. Id. at 2076-77.
502. Mental Health Courts and the Trend Toward a Rehabilitative Justice System, 121 HARV. L. REV. 1168, 1171 (2008).
503. Id. at 1171-72.
504. Hon. Ginger Lerner-Wren, Testimony at 251.
505. Lisa Schreibersdorf, Testimony at 963.
506. See, e.g., Jeanette Kinard, Testimony at 1903, 1937; Hon. Kristin Wade, Testimony at 2088.
507. Stacey M. Faraci, Slip Slidin’ Away? Will Our Nation’s Mental Health Court Experiment Diminish the Rights of the Mentally Ill?,
22 Quinnipiac L. Rev. 811, 828-29 (2004); US DOJ, EMERGING JUDICIAL STRATEGIES FOR THE MENTALLY ILL IN THE CRIMINAL CASELOAD
viii (2000).
508. Mental Health Courts, supra note 502, at 1171. For example, the mental health court in Pima County includes meetings with
the defendant, “possibly defendant’s family members, the treatment providers, the probation officer, and a Public Defender.” Hon. Nanette
Warner, Testimony at 770. It appears a staffing meeting without the defendant sometimes occurs prior to court proceedings. Id. at 805 (“[T]he
attorneys participate, both of them, the providers, and sometimes even go into court and ask the probationer about it, but most of the time

The Criminal Costs of Treatment and the Case for Reform

73

Endnotes

74

we make the decision . . . .”).
509. Howard Finkelstein, Testimony at 363.
510. Hon. Kristin Wade, Testimony at 2089.
511. Nina Carlow, Testimony at 1120. The potential sentence on the charge in some cases has been as high as 20 years to life. Nina
Carlow, Testimony at 1121.
512. Hon. Nanette Warner, Testimony at 764.
513. Hon. Michael Mery, Testimony at 2117.
514. Hon. Nanette Warner, Testimony at 765.
515. Barry Wax, Testimony at 318.
516. Jeanette Kinard, Testimony at 1904.
517. Jason Steans, Testimony at 1964.
518. Odegaard, supra note 498, at 250-51.
519. Id.
520. Gregory L. Acquaviva, Mental Health Courts: No Longer Experimental, 36 SETON HALL L. REV. 971, 990-91 (2006).
521. Hon. Ginger Lerner-Wren, Testimony at 254, 256.
522. Id. at 245. This does not always result in a dismissal, however, which is a separate issue that requires prosecutorial approval. Hon.
Ginger Lerner-Wren, Testimony at 263-64; Howard Finkelstein, Testimony at 372 (“The state attorney is really the one who gets to
choose.”).
523. Hon. Kristin Wade, Testimony at 2089.
524. Tammy Wray, Testimony at 729.
525. Id. at 730.
526. Hon. Michael Mery, Testimony at 2119.
527. Howard Finkelstein, Testimony at 360.
528. Bruce Winick, Testimony at 222 (observing police should be trained “not to arrest these people. They do not belong in the criminal justice system”); Doug Brawley, Testimony at 369 (observing “what we need most is people not even entering into the criminal justice system”).
529. In Memphis, the “Crisis Intervention Team (CIT) program is a community partnership working with mental health consumers
and family members.” Its self-described “goal is to set a standard of excellence for our officers with respect to treatment of individuals with
mental illness.” available at http://www.cityofmemphis.org/framework.aspx?page=302.
530. Barry Wax, Testimony at 318.
531. Ira Burnim, Testimony at 1428.
532. Hon. Ginger Lerner-Wren, Testimony at 240.
533. Howard Finkelstein, Testimony at 360.
534. Jeanette Kinard, Testimony at 1941.
535. Id. at 1941-42.
536. See, e.g., Hon. Ginger Lerner-Wren, Testimony at 250-51.
537. Hon. Jack Peyton, Testimony at 701 (explaining that participants in mental health court charged with a subsequent domestic violence offense no longer qualify).
538. Hon. Michael Mery, Testimony at 2083.
539. See Criteria and Eligibility for Admission, supra.
540. Faraci, supra note 507, at 852-53.
541. Mental Health Courts, supra note 502, at 1171.
542. US DOJ, supra note 507, at xi.
543. Odegaard, supra note 498, at 253.
544. US DOJ, supra, note 507, at xi.
545. Howard Finkelstein, Testimony at 370.
546. Id. at 372.
547. Robert Lerman, Testimony at 759-760 (“I don’t see that as much of a problem in the mental health court as I do in drug court.
That’s where, at least in our drug court, it tends to slip. . . . [W]e’re part of a team, and then they start to forget, that role, of the attorneys
. . . .”).
548. Jeanette Kinard, Testimony at 1904.

America’s Problem-Solving Courts:

Appendix available at www.nacdl.org/drugcourts

N A TI ON A L A S SO C I A TI ON O F
C R I M I N A L D E FE N S E L A W Y E RS

1660 L Street NW, 12th Floor
Washington, DC 20036

Phone: 202-872-8600; Fax: 202-872-8690

http://www.nacdl.org

 

 

PLN Subscribe Now Ad
Advertise here
PLN Subscribe Now Ad