Best Practices: Defender Participation in Treatment Courts
Defender Participation in Treatment CourtsDRAFT
National Legal Aid & Defender Association
American Council of Chief Defenders
Best Practices Committee
The following are draft recommendations and commentary regarding the role of public defenders in treatment courts.
I. Introduction
This report sets forth general recommendations for defender programs (including assigned-counsel systems) and for individual defense attorneys regarding treatment courts. Treatment courtstypically conduct frequent review hearings to oversee treatment for drug abuse, alcohol abuse, or mental disorders. The courts offer participants the opportunity to obtain a lesser sentence or dismissal of charges upon successful completion of the treatment program. The treatment-court model “calls for collaboration among various components of the criminal justice and substance abuse treatment systems to combine the coercive power of the court with effective and scientifically based treatment practices.”[1]
The collaborative aspects of treatment courts often include the participation of a public defender or other defense attorney on a treatment-court team. As a team member, the defense attorney may have the opportunity to improve justice policy by expanding opportunities for clients to have their social issues addressed effectively and to have their cases dismissed or reduced. However, the non-traditional role of team member also raises ethical and practical questions regarding the boundaries of this collaborative role and the traditional adversarial role of defense counsel.[2]
Representatives of defender programs should participate in all aspects of treatment courts to ensure that these courts treat clients fairly and follow effective and therapeutic procedures. This report summarizes the three main areas for defense participation in a treatment court: development of the court, participation on the team operating the court, and representation of clients as adversary counsel. The report also discusses in the Appendix the following specific and recurring issues: Eligibility Criteria, Potential Negative Consequences for Participants, Confidentiality of Information, and Defense Representative’s Role in Decisions about Individual Participants.
Managers of indigent-defense providers often serve as the institutional representatives of the interests of defendants on a treatment-court team. This role is referred to as the “defense representative” in the balance of this report, and depending on the features of the jurisdiction, the role may also be fulfilled by a staff defender, a private attorney, or a representative of a bar association.[3] The defense representative should know the local justice system sufficiently to assess the benefits and risks of a proposed or existing treatment court. The defense representative should also communicate regularly with the defense bar regarding the treatment court’s policies and practices.
The differences between the roles of defense representative and adversary counsel are discussed in detail below. Practical and ethical challengesoften arise if the same person serves both as the defense representative on a treatment-court team and as adversary counsel for individual defendants in the court. Thus, when possible, the defense representative should refrain from serving in these two roles simultaneously. If the unique circumstances of a jurisdiction require an attorney to serve in these roles simultaneously, he or she should clearly communicate with clients regarding the attorney’s responsibilities as a member of the court team.
II. Importance of Defense Participation in Treatment Courts
Principle 8 of the ABA Ten Principles of a Public Defense Delivery System recommends that “[p]ublic defense should participate as an equal partner in improving the justice system.” Although a wide variation exists in the attributes and policies of treatment courts, national studies show that when operated effectively, treatment courts can benefit individual defendants and the broader community by helping individuals overcome issues often linked to criminal behavior.[4]
A large percentage of defendants in the criminal justice system have a history of irresponsible use of drugs or alcohol.[5] Many others suffer from mental disorders,[6] and some have multiple treatment needs.[7] Specialized treatment courts have shown the potential to reduce recidivism by combining regular court reviews with intensive treatment and case management.[8] These courts are also able to keep defendants in the community instead of serving substantial terms of incarceration.
Generally, these courts are operated by a team comprising representatives of several agencies. For example, a treatment-court team often includes a judge, prosecutor, probation agent, social worker, public defender, and law enforcement officer. “Active defender participation in all phases of the drug court, from design to operation, makes it more likely that the program will be client-oriented.”[9]
A resolution of the National Association of Drug Court Professionals also supports the participation of a defense representative in the development and operation of drug courts. This resolution identifies eligibility criteria, selection of treatment providers, confidentiality, and other court policies as proper topics for defender input.[10]
III. Participation of Defense Representative in Development of a Treatment Court
Defense representatives are often participants in the planning for and development of a treatment court.[11] This participation may result from membership in a criminal justice coordinating council or from formation of a local ad hoc work group interested in a treatment court. Some grant applications require that planning group include a defense representative. Defense participation is important to help shape the court to have a therapeutic focus, rather than a punitive focus.[12] To make the court client-oriented, the defense representative should address such issues as eligibility criteria, application and admission process, access to treatment and other services, court expectations and procedures, incentives and sanctions, and confidentiality of information that court officials learn about participants in the treatment-court context(see Appendix for further discussion of these specific aspects of a treatment court).
The defense representative must work with representatives of other agencies in the planning and development of a treatment court (the court, prosecution, law enforcement, probation and parole, and social services are ordinarily represented on a treatment-court team). Thus, although the defense representative can influence the standards and procedures adopted for the court, the team must reach a consensus.
Ultimately, for the defense representative to recommend the treatment court for consideration by the defense bar in individual cases, the court must present potential benefits to defendants when compared to other resolutionof their cases (litigation or negotiation under pre-existing procedures and penalty structures). If the court has this beneficial potential (for example, it provides both treatment services and the potential to earn dismissal or substantial reduction of charges), defense attorneys and their clients can assess this potential on a case-by-case basis to determine whether to seek admission to the treatment court. Conversely, if efforts to work in a collaborative manner are ultimately unsuccessful in developing a therapeutic court program with significant potential to help clients, the defense representative should withdraw from further participation as a member of the treatment-court team.[13]
Written policies and other documents are important to provide consistency and fairness in the treatment court’s operations.[14] Written informational materials can assist the defense representative in training other defense attorneys about the treatment court. Standard forms should address waivers and authorizations that defendants are required to sign as a condition of participating in the court.[15]
IV. Participation of Defense Representative in Treatment-Court Operations
Defense representatives often serve as members of a treatment-court team that oversees ongoing court operations.[16] If the planning phase has resulted in standards and procedures that benefit clients, the defense representative’s main goal on the treatment team may be to ensure that the court adheres to these standards and procedures (while continuously evaluating the court’s benefits to clients and looking for areas for improvement). If the court’s framework does not provide significant benefits to clients, however, the defense representative may need to insist upon substantial changes in the court’s operations before he or she agrees to serve on the team.
If the same defense representative serves on the planning team and the operations team, the transition from one role to the other may be relatively seamless. The representative will generally understand the perspectives of the other team members and the reasons behind the written standards and procedures. Conversely, a defense representative without the experience on the planning team may lack this base of knowledge and may need to learn enough information to evaluate the beneficial potential for indigent clients.
Changes in treatment-court personnel, such as a new judge or prosecutor, can result in significant changes in court operations. Thus, the defense representative may have an opportunity to promote improvements in court procedures, but may also need to advocate against proposals that dilute the court’s effectiveness.
The responsibilities of the treatment-court team may include the selection of treatment providers, admission of participants into the court, review of participants’ progress, and regular staffing meetings before each court session. At the staffing meetings, the team generally reviews how each participant has done since his or her last court date and recommends to the court what action to take or what topics to address with each participant.[17]
For participants who are doing well, the court action will generally consist of a positive progress report, a brief conversation between the judge and the participant, and scheduling of the next court date.[18] The participant may be eligible for modest rewards for his or her positive report, such as a longer interval between court hearings (many treatment-courts have three specified phases for participants, each characterized by its own frequency of hearings and/or drug tests[19]). A participant who has violated the court’s rules may face a sanction, which could be ineligibility for an incentive, community service work, extra drug or alcohol testing, or brief confinement in jail.[20]
The defense representative, although not serving in the role of adversary counsel for each participant, can and should advocate generally for court practices that benefit participants. For example, the defense representative should advocate for a broad array of supportive services, including help with transportation, housing, and education, to assist indigent participants. Similarly, the defense representative should advocate for adherence to policies that protect participants and can seek to amend the court’s policies and operations to serve participants better.[21]
The defense representative should advocate for policies of graduated sanctions and rewards that recognize the high incidence of relapse during treatment programs.[22] In the team meetings that often precede the court’s review hearings, the defense representative should point out mitigating factors and should suggest potential sanctions other than incarceration.
The defense representative (or another spokesperson for the jurisdiction’s indigent-defense provider) should train the local defense bar regarding treatment courts.[23] The goals of training should be ensure that attorneys are aware of the potential advantages and disadvantages that these courts may have for a client. Specific topics should include eligibility criteria and processes, legal consequences of successfully completing treatment (and of failure to complete treatment), and general policies and procedures of the court. The defense representative should encourage defense attorneys to contact him or her for specific information as needed. The defense representative should also encourage attorneys to observe at least one session of the treatment court to understand the review sessions that their clients will attend if admitted to the program.
As noted in the following section, treatment-court participants are often not represented by adversary counsel at the court’s review hearings. Participants frequently have questions and concerns that they may prefer to share with the defense representative rather than with the judge or with treatment providers. The defense representative should support participants by providing them with information about court procedures and by encouraging them in their efforts to complete the treatment-court program.
V. Scope of Adversary Representation Provided to Treatment-Court Participants
In most treatment courts, a defendant’s participation in the court follows a negotiated agreement such as a plea agreement or a diversion agreement.[24] If the defendant successfully completes the treatment program, the charge is often reduced or dismissed.[25] An indigent defendant is eligible for appointment of an attorney on the underlying charge, who may negotiate on the client’s behalf regarding participation in the treatment court (although the appointment is not for the specific purpose of seeking admission to the treatment court, the attorney advises the client of this option as part of representation on the pending charge). However, the appointment may end upon the client’s formal acceptance into the treatment court, and in most treatment courts, the attorney does not attend the court’s regular review hearings[26].
Because of differences among both the structure of defender programs and the procedures of treatment courts, local practices vary regarding the availability of appointed counsel throughout an individual defendant’s participation in a treatment court. The defense representative (or another spokesperson for the jurisdiction’s indigent-defense provider) should communicate to the local defense bar, to prospective participants in the treatment court, and to other justice agencies information regarding the scope of adversary representation that attorneys appointed for the indigent will provide in the treatment court.[27] This communication should include providing access to materials such as policy manuals participant contracts, and authorization forms for release of treatment information.
Preferably, treatment-court participants should have access to adversary counsel throughout the process. They may not need to consult frequently with counsel, especially when they are progressing well in their treatment programs. However, their conduct in treatment and in the court hearings can affect the ultimate disposition of their cases, as well as their status in the treatment court from week to week. Therefore, the ability to consult confidentially with adversary counsel is potentially valuable.
Two major reasons explain why adversary representation does not generally occur at review hearings in a treatment court, even when the defendant faces a sanction for non-compliance. First, resource limitations prevent many defender programs from providing adversary counsel at the numerous review hearings. Second, a formal adversarial hearing runs counter to the court’s collaborative approach (see Sections I.-II., above, regarding the composition of a typical treatment-court team).[28] Nonetheless, treatment courts should not discourage attendance and participation of adversary counsel.[29]
Defendants should be advised if a defense representative is present at each session of the treatment court in his or her role as a member of the court team, rather than as adversary counsel for each individual defendant.[30] Although an attorney who has served for a long time on a treatment-court team may understand his or her non-traditional role at the review hearings, he or she should ensure that defendants understand whether they have the assistance of adversary counsel at these hearings (and, if so, whether they need to make a specific request for counsel before a hearing). If the court is not treating defendants fairly at the review hearings, the defense representative should seek improvements in the court process and should advise the defense bar of the concerns about the court’s actions.[31]
Treatment courts often have participants sign a contract when they apply to participate. The contract typically notifies participants that they are waiving the right to have counsel present during review hearings.[32] Nonetheless, the attorney who served as adversary counsel on the underlying case should remain available to answer his or her client’s questions.[33]
A major distinction exists between an ordinary review hearing and an expulsion hearing. The latter generally occurs only after a participant has failed repeatedly to comply with treatment expectations or has been imprisoned for a new violation (and thus will not be available for community-based treatment). Thus, although a defendant might not be provided adversary counsel to argue against imposition of a lesser sanction, he or she should be eligible to have adversary counsel appointed for an expulsion hearing and for a sentencing hearing following expulsion.
VI. Adversary Counsel and Treatment Courts
Defense counsel should be reasonably knowledgeable about treatment courts operating in the jurisdiction where they practice.[34] This knowledge should include a general understanding of the criteria for eligibility, the requirements for successful completion of the treatment program, and the likely consequences for failure to complete the program.
Defense counsel should be familiar with a wide range of potential dispositions that may benefit his or her clients. Thus, knowledge about a local treatment court is a specific example of the attorney’s general obligation to investigate potential ways of resolving cases to his or her clients’ benefit.[35] The attorney need not have an encyclopedic knowledge of the specific details of the potential treatment programs offered or available through the court, but should have general knowledge and should be able to respond to reasonable questions from clients about the treatment court. The attorney may wish to communicate with the defense representative on the treatment team regardingspecific questions.
In advising a client about potential participation in a drug court, defense counsel should provide competent and zealous representation, which should include reasonable factual investigation, consideration of potential legal and factual defenses, consideration of other dispositional alternatives, and communication with the client about the potential advantages and disadvantages of the treatment court.[36]