17 th Annual MADCP Conference May 24, 2015 14 th Amendment 1st - - PowerPoint PPT Presentation

Presented by James Whiteside and Souder Tate

17th Annual MADCP Conference May 24, 2015

 1st Amendment

 Religion  Association

 4th Amendment

 Search & Seizure  Drug & Alcohol

Testing

14th Amendment

 Due Process

 Sanctions  Termination  Revocation  Judicial Impartiality  Right to Counsel

 Equal Protection

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

 A treatment court is centered in a small

community with a few AA/NA meetings, a Celebrate Recovery group at a local church, but no secular alternatives.

 Can you mandate attendance at a self-help

group even though no secular alternatives are available?

 Decision to turn our lives over

to God (Step 3);



Confess to God the nature of

• ur wrongs (Step 5);

 Humbly ask God to remove

• ur short comings (Step 7);

 By prayer and meditation

improve our conscious contact with God (Step 11).

 Law is well-settled that ordering a

participant to attend AA/NA is a violation

• f the Establishment of Religion Clause.

 AA/NA attendance CANNOT be ordered as

condition of probation, drug court or early re-entry from prison.

 Violating this principle can result in a loss of

immunity and personal liability.

 Parole officer lost qualified immunity by forcing AA on

Buddhist - Inouye v. Kemna, 504 F.3d 705 (9th Cir. 2007).

 DOC’s use of program involving serenity prayer and

religious mediation in early release criteria violates 1st

• Amend. - Jackson v. Nixon, 747 F.3d 537 (8th Cir. 2014);

 Drug Court program manager and drug court consultant

held liable for referral to faith based program where they knew participant objected and when the program denied the participant the opportunity to practice his chosen faith –Catholicism) - Hanas v. Inner City Christian Outreach, Inc., 542 F. Supp. 2d 683 (E.D. Mich. 2008);



Forcing atheist into 12 step religious based program = settlement w/ State paying $1M & treatment agency $925K - Hazle v. Crofoot, 727 F.3d 983 (9th Cir. 2013).



No Establishment Clause violation where DUI probationer had choice over program, including self-help programs that are not premised or monotheistic deity - O’Conner v. California, 855 F. Supp. 303, 308 (C. D. Calif. 1994)



No violation where Defendant participated in chemical dependency class that included AA/NA because the program provided alternatives - In re Garcia, 24 P.3d 1091, 106 Wash.

• App. 625 (Ct. App. 2001)



A state supported non-coercive, non-rewarding faith based program is an unconstitutional First Amendment establishment clause violation where an alternative is not available - Americans United for Separation v. PRISON

• FELLOW. MINISTRIES, 509 F.3d 406 (8th Cir. 2007).

• Smart Recovery

 www.smartrecovery.org

• Rational Recovery

 www.rational.org

• LifeRing Secular Recovery

 www.unhooked.com

• Secular Organizations for

Sobriety (SOS)

• www.secularhumanism.org/sos

LifeRing

 Treatment provider is concerned with the

preoccupation certain participants have with rap and hip-hop culture and provides team with a study showing how often this type of music mentions drug use.

 Can you restrict participants from attending a rap

festival in your county if no proof of substance use?

 Can you forbid participants from listening to rap

and hip hop?

 Area and Place restrictions are “Reasonable”

when narrowly drawn:

 Whether the defendant has a compelling need to go

through/to the area;

 A mechanism for supervised entry into the area;  The geographic size of the area restricted; and  The relatedness between the restriction and the

rehabilitation needs of the offender.

 See People v. Rizzo, 842 N.E.2d 727, (2005).

 But see: People v. Beach, 195 Cal. Reptr. 381 (Cal. Ct. App. 1983)

(Banishing defendant from the community were she lived for 24 years unconstitutional); State v. Wright, 739 N.E.2d 1172 (Ohio Ct.

• App. 2000) (Prohibition against entering any place where alcohol is

given away or sold too broad because restricts defendant from grocery stores and vast majority of all residences).

 Association Restrictions generally upheld if:

 related to the crime for which offender was

convicted;

 intended to prevent future criminal conduct, or  bear reasonable relationship to offender’s

rehabilitation.

 State v. Allen, 634 S.E.2d 653, 370 S.C. 88 (2006)

State v. Hearn, 128 P.3d 139 (Wash. App. 2006) (Prohibition against associating with known drug users constitutional because it directly relates to the crime for which defendant convicted)



Condition prohibiting contact with “persons of disreputable character” needs to be more specific as to types of individuals or specific individuals contemplated in order to give probationer fair warning - Jones v. State, 41 P.3d 1247 (Wyo. 2002);



Delegating to probation officer unconditional and unlimited authority to regulate contact between husband and wife is unduly restrictive of liberty - Dawson v. State, 894 P.2d 672 (Alaska Ct.

• App. 1995); but see People v. Jungers, 127 Cal. App.4th 698 (Cal.

App 2005) (probation condition prohibiting contact with wife upheld where wife was victim of assault);



Court denied probation where probationer completed drug court knowing she could not associate with felons, yet, after drug court, again associated with felons. Court noted that probationer “put herself back in a position to be involved with people that she was already trained and educated on through Drug Court not to be with.” - Malone v. State, 2012 Ark. App. 280, (2012).

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 Participant is in drug court as special

condition of probation and has signed a waiver giving consent to the search of his residence, vehicle or person without probable cause or reasonable suspicion. Does this violate the 4th Amendment?



Probationers do not enjoy the absolute liberty to which every citizen is entitled. Morrissey v. Brewer, 408 U. S. 471 (1972)



Warrantless search of probationer’s residence was “reasonable” within meaning of Fourth Amendment because conducted pursuant to detailed administrative regulations related to

• probation. Griffin v. Wisconsin, 483 U.S. 868 (1987)



Probationer has diminished expectation of privacy. Warrantless search of probationer’s residence supported by reasonable suspicion and authorized by a condition of probation was reasonable within meaning of Fourth Amendment. Neither a warrant or probable cause required. Because search was supported by individualized suspicion, Court did not consider whether a suspicionless search by LEO would be reasonable. United States v. Knights, 534 U.S. 112 (2001)

 Samson required to sign search waiver as a condition for

• parole. LEO stopped Samson knowing he was on parole

and believing (incorrectly) there was a warrant for his

• arrest. Found drugs.

 Search upheld based solely on mandatory search waiver

required as condition for parole. Reasonable suspicion not required.

 Goes further than Knights because does not make a

finding of reasonableness, but search cannot be for harassment

 Participant is in drug court pre-plea

diversion and has signed a waiver giving consent to the search of his residence, vehicle or person without probable cause

• r reasonable suspicion. Does this violate

the 4th Amendment?

 Terry v. Superior Court, 86 Cal. Rptr. 2d 653,

653 (Cal. Ct. App. 1999) 4th Amendment waiver is an improper condition in diversion case, without statutory authority.

 In re York, 40 Cal. Rptr. 2d 308, 308 (Cal. 1995)

4th Amendment waiver is an improper condition in diversion case, without statutory authority.

 United States v. Scott, 450 F.3d 863, 863 (9th

• Cir. 2006) Search waiver is probably improper

when a person is on bond.

 You institute a drug court readiness program and

as a condition of pre-trial release, you require any person who has been arrested for drug possession

• r use and /or DWI to undergo random drug

urine screens and breath tests. Is this a violation of the 4th Amendment?

 Can you require any person who has been arrested

for drug possession or use and /or DWI to submit to a RANT? If so, what safeguards should be in place to ensure all constitutional rights are protected?

 No violation of Fourth Amendment by

conducting drug/alcohol testing or ordering defendant not to consume alcohol or drugs if reasonably related to underlying crime or future

• criminality. People v. Beal, 60 Cal. App. 4th 84

(Ct. App. 1997); United States v. Knights, 534 U.S. 112 (2001).

 Court can require testing to see if defendant

following court order.

 Strickland v. State, 686 SE 2d 486 (Ga. App.

2009). (Court-imposed ignition interlock device as condition of pretrial release proper where defendant had three prior DWIs, blew .326% in pending case because it rationally related to public safety.)

… No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection

• f the laws.

 After a new laws violation, the decision is

made at staffing to terminate Bob from drug

• court. This is announced at Bob’s next

appearance in drug court, and his case is set for a revocation hearing. Is the failure to provide Bob a termination hearing a violation

• f his right to due process?

 What if Bob is in drug court on a post-plea pre-

disposition?

 Procedural protections are due under the due

process clause when the defendant will potentially suffer a loss to a recognized liberty or property right under the 14th Amendment.

 If due process applies, the question remains

what process is due.

 Fuentes v. Shevin, 407 U.S. 67 (1972); Morrissey v.

Brewer, 408 U.S. 471 (1972).

 P/C determination  Written Notice of claimed violations  Right to Appear  Disclosure of Evidence against probationer  Cross-Exam and call witnesses  Independent magistrate  Written findings-reasons  Right to Counsel, if mandated by the state

Gagnon v. Scarpelli, 411 U.S. 778, 781-782 (1973).

 Same due process requirements apply to

termination as probation revocation

 Termination in diversion court requires a hearing - People v.

Anderson, 833 N.E.2d 390 (Ill. App. Ct. 2005)

 Drug Court participant entitled to same minimal due process

as parolee or probationer - State v. Workman, 22 Neb. App. 223 (2014)

 Drug court program participants are entitled to the same due

process protections as persons facing termination of parole or probation - State v. Shambley, 281 Neb. 317 (2011)

 “Unilateral” termination from drug court was harmless in

light of full blown evidentiary hearing on probation revocation - Tennessee v. Creech, Court of Criminal Appeals

• f Tennessee at Nashville (2013)



If the participant denies the factual basis of the alleged violation:

 Will defendant potentially suffer loss of a recognized liberty

• r property right at the sanction hearing? (e.g. JAIL)

 If the answer is “Yes”, then the due process clause is

implicated.

 (But, is it REALLY about the factual basis or a dispute about

recommended sanction?)



If due process is implicated, the issue becomes to what type of due process hearing is the participant entitled?

 Intermediate sanctions do not implicate the same due

process concerns as in termination hearings – State v. Rogers, 170 P. 3d 881 (Idaho 2007)



Staley v State, 851 So.2d 805 (Fla. Dist. Cr. App. 2003). (Cannot waive right to contest revocation/termination and proceed directly to sentencing because not possible to prospectively waive the right to object to a violation that has not yet occurred)



State v. LaPlaca, 27 A.3d 719 (2011) (Impossible for participant to knowingly and intelligently waive all prospective rights when facts giving rise to the waive rights had yet to occur.)



State v. Rogers, 170 P. 3d 881, 881 (Idaho 2007) (Holding that termination hearings required in drug courts, at least where defendant pled guilty and sentence deferred, reversing Court of Appeals decision that held that due process concerns were met by terms of drug court contract)



People v. McCaslin, No. 2-13-0571 (Ill. App. Ct. Dec. 11, 2014) (Defendant waived his right to appeal as part of entry to drug court, so appeal from termination from drug court dismissed)



Laxton v. State, 256 S.W.3d 518 (2007) (holding that drug court participant was not entitled to “sanction” jail time as credit when drug court revoked and defendant sentenced because such credit not included in contract);



State v. Akers, 188 P.3d 417 (2008) (Jury trial waiver ok)



State v, Fox, 2013 S.D. 40 (2013) (deferred prosecution agreement in which defendant gives up right to voluntarily enter plea of his choice unenforceable)



Robinson v Ignacio, 360 F.3d 1044 (9th Cir. 2004) (Defendant who has waived right to counsel may re-assert that right)

 The test is “would the facts, as asserted, lead

an objective reasonable observer to question the judge’s impartiality?” U.S. v. Ayala, 289 F.3d 16, 27 (1st Cir. 2002)



Requiring a judge to act as drug court team member, evaluator, monitor and final adjudicator in a termination proceeding could compromise impartiality. Therefore, if an application to terminate a drug court participant is filed, and the defendant files a motion to disqualify the drug court judge, the defendant’s request should be

• granted. Alexander v. State, 48 P. 3d 110 (Okla. 2002).

Recusal Not Required

• 1. State v. Belyea, 999 A.2d 1080

(N.H. 2010)

• 2. Mary Ford v. Kentucky, ((2010)
• 3. Grayson v. Kentucky, (2012)

UNPUBLISHED

• 4. Arizona v. Tatlow, No. 1 CA-CR

11-0593, Court of Appeals of Arizona, (December 4, 2012)

• 5. Arizona v. Perez Cano, No. 1

CA-CR 11-0473 Court of Appeals

• f Arizona (September 20, 2012)

UNPUBLISHED

• 6. State v. Rogers, 170 P. 3d 881

(Idaho 2007)

Recusal Required

• 1. State v. Stewart, W2009-00980-CCA-

R3-CD (Tenn. Crim. App. 8-18- 2010)(UNPUBLISHED)

 John enters drug court after 120 ITC for probation

violation in another county. After numerous violations, John sent to another 120 and returns to drug court. John relapses within a month after

• return. Termination hearing set with

recommendation for revocation and execution of

• sentence. Prior to revocation hearing, John

diagnosed w/ depression and prescribed anti-

• depressant. W/in 2 weeks, he is noticeably happier,

begins marriage counseling and receives promotion and raise at work. Also, NO further positive UAs.

 Based on the above, is it a due process violation to

terminate John from drug court?

 Mother’s substance abuse a direct result of her mental

health condition. She had a history of significant trauma leading her to self-medicate. This was a situation which could not be corrected "solely through the efforts of Mother" without "medical, psychiatric, and psychological intervention."

 Where three Individualized Service Plans failed to

adequately address Mother’s mental health condition, termination of her parental rights based upon a failure to correct conditions not correctly identified and/or addressed by DHS constituted a violation of Mother’s substantive due process rights.

In all criminal prosecutions, the accused shall enjoy the right...to have the Assistance of Counsel for his defence.

 Indigent participant has been scheduled for

termination hearing and informed of his right to hire counsel. Judge states on record that he will not appoint public defender because issues in the case are not complex.

 Is this sufficient to meet 6th/14th Amendment

requirements of due process and right to counsel?

 If not, what additional steps should the Court take

to ensure these rights are met?

 What if this is a sanction hearing rather than for

termination?



Right to Counsel applies to the States through the 14th Amendment – Gideon v. Wainwright, 372 U.S. 335 (1963);



Accused entitled to effective assistance of attorney who plays role necessary to ensure the trial is fair - Strickland v. Washington, 466 U.S. 668 (1984), STATE EX REL. MISSOURI PUBLIC DEFENDER COMM. v. Waters, 370 S.W.3d 592 (Mo. 2012);



Right to counsel extends to all felony and misdemeanor prosecutions where incarceration is actually imposed - Argersinger v Hamlin, 407 U.S. 25, 40 (1972);



6th Amendment guarantees right to counsel at all critical stages of the criminal proceedings after initiation of adversarial judicial proceedings. United States v. Wade, 388 U.S. 218 (1967); Brewer v. Williams, 430 U.S. 387, 401 (1977).



Plea negotiations are a critical stage - Missouri v. Frye, 132 S.

• Ct. 1399, 566 U.S (2012)



Sentencing hearing is a critical stage and counsel should be present, absent a waiver, Mempa v. Rhay, 389 U.S. 128 (1967), State v. Thomas, 659 N.W.2 217 (Iowa 2003);



Probation and parole revocations are NOT a critical stage under Federal Constitution, but most states require counsel at probation revocation proceedings if defendant requests - Gagnon v Scarpelli, 411 U.S. 778, 787 (1973); but see State v. Kouba, 709 N.W.2d 299, 299 (Minn. Ct. App. 2006) (a modification of the terms of probation is a critical stage of the proceedings where the modification adds significant terms to probation).

 Notice and Opportunity to be heard  Whether revocation is warranted under all the

circumstances

 At least 5 days’ notice of right to request

appointment of counsel

 If probationer requests counsel, judge shall

determine if necessary to protect probationer’s due process rights.

 If judge determines not necessary, must state

the grounds for the decision in the record.

 Section 600.042.4 “The director and defenders

shall provide legal services to an eligible person … (3) Who is charged with a violation of probation when it has been determined by a judge that the appointment of counsel is necessary to protect the person’s due process rights under section 559.036



State ex rel. Missouri Public Defender Comm‘n. v. Pratte, 298 S.W.3d 870 (Mo. 2009) (Public Defender cannot exclude entire category of cases);



State ex rel. Missouri Public Defender Commission v. Waters, No. SC91150 (Mo. July 31, 2012).



First, inform indigent participant of right to request appointed counsel;



Second, presumptively, counsel should be appointed if participant claims that (1) he has not committed the alleged violation, OR (2) even if the violation is uncontested, substantial reasons exist which justify or mitigate the violation and make revocation inappropriate, and the reasons are complex or otherwise difficult to develop or present;



Third, the judge should consider, especially in doubtful cases, whether participant can speak effectively for himself; and



Fourth, if request for counsel is refused, the grounds for the refusal should be stated succinctly in the record.



State ex rel. Boyle v. Sutherland, 77 S.W.3d 736 (Mo. Ct. App. 2002).

 Ten Key Components  Evidence-based practices  Risk, Needs, Responsivity and RANT  Incentives and Sanctions  Addiction and Pharmacology  Gender, Age and Cultural Issues  Constitutional and Ethical Issues  Policies and Procedures of your own Court

“It is essential that lawyers educate themselves as to … drug court programs. Only then can they effectively advise their clients. It is equally important for the institutions that educate future lawyers, as well as those that educate the other disciplines that play vital roles in the drug court process to incorporate drug courts into their curricula. For lawyers to do otherwise is for them to become legal

• dinosaurs. To ignore the need to learn about the drug

court process is to ignore the evolution of the justice system.”

State v. Smith, 840 So.2d 404 (2003)

 Entry into Drug Court  Sanction Hearing  Termination Hearing  Probation Revocation Hearing

 Suspended Execution of Sentence  Suspended Imposition of Sentence  Post-plea Diversion  Pre-plea Diversion

 Participant enters drug court pre-plea and pursuant

to a written drug court contract. Although he has struggled with honesty and attendance in the past, he is improving. However, he continues to relapse. Participant’s case is discussed at staffing. The consensus is to give participant another chance, and judge agrees. However, the prosecutor states her intention to withdraw the deferred prosecution.

 Can prosecutor do this? Are there any constitutional

limits on the prosecutor?

 Would it make a difference if post-plea diversion?



Lack of a drug court diversion program in county does not treat defendant unfairly or unequally, as compared to other defendants, because all defendants in that county do not have access to a drug diversion program - Lomont v. State, 852 N.E.2d 1002 (2006)



Local rule allowing prosecutor to make initial determinations

• f drug court eligibility is not an unconstitutional delegation of

judicial power to the prosecutor, and the separation of powers doctrine is not violated. State v. Waldenberg, 301 P.3d 41 (2013)



Defendant not denied due process or other constitutional rights when rejected for drug court because he was taking strong narcotic medicines which would interfere with his ability to participate in the drug court program - People v. Ray Earl Webb, No. D056735 (Court of Appeals of California, Fourth District, Division One, March 15, 2011) UNPUBLISHED.



A criminal defendant granted deferred entry of judgment may not be terminated from diversion based solely on inability to pay program fees - People v. Trask, 191 Cal. App. 4th 387 (Ct.

• App. 2010);



Termination from drug court for non-payment of fees assessed pursuant to statute not permitted without finding that defendant had ability to pay - PEOPLE v. WILLIAM ANDREW HENRY, C067258, Court of Appeals of California (July 17, 2012) UNPUBLISHED;



No equal protection violation in allowing DWI court graduates and participants the opportunity to obtain limited driving privileges while denying same opportunity to non-participants because it is rationally related to legitimate state interest of protecting public from drunken drivers - Amick v. Director of Revenue, 428 S.W.3d 638 (Mo. 2014)



Provide a secular alternative to AA and written choice



Place and Area restrictions rationally related to rehabilitation



Written, knowing 4th Amendment waiver



Provide Due Process protections at termination hearing



Provide Due Process protections at sanctions hearing if participant denies factual basis & jail a possible sanction



Provide equal access to drug court participation



Allow participant to recuse judge at revocation hearing, OR include in a written waiver



Ensure entry into treatment court and any waivers are knowingly, voluntarily and intelligently given.

 Constitutional and Other Legal Issues in

Drug Court: a Webliography, by Ret. Judge William G. Meyer (last updated 1/5/15)

 http://www.ndcrc.org/content/constitutional

• and-other-legal-issues-drug-court

 OR

 http://www.ndci.org/law