M. Clara Hernandez

Chief Public Defender

Public Defender’s Role in Problem-Solving Courts

  1. What are Problem-Solving Courts?

Problem-Solving Courts were created in response to an overwhelming number of people being arrested and prosecuted for drug related offenses and getting revoked while on probation or reoffending upon release from prison or jail. This revolving door of drug addicted offenders overwhelmed court dockets, overcrowded prisons and jails, and cost taxpayers’ money. To address these problems the treatment Problem-Solving Court model was created.

Problem-Solving Courts are specialized courts that deal with individuals who have a substance abuse problem and/or mental health issuesand who have committed a crime. Problem-Solving Courts require these individuals to get mandatory treatment while also holding them accountable with intensive probation supervision. El Paso County’s Problem-Solving Courts include the SAFPF Re-Entry Drug Court, the DWI Drug Court Intervention and Treatment Program, the Veterans Court, and the Juvenile Special Needs Diversionary Program.

Problem-Solving Courts not only have a positive impact on the individuals within the programs but also on their families and everyone within the community. Clients who successfully complete the programs leave as productive members of society and studies show that 75% of drug court graduates never reoffend again.[1] Clients in the adult Problem-Solving Courts learn the tools they need to overcome their addiction, improve their family relationships, and they are required to receive their GED and obtain employment. Drug Courts have proven to be effective and for reducing crime by up to 45% nationally.[2]

In addition to making our communities safer by reducing crime, Drug Courts save our community valuable resources. Studies have shown that Drug Courts return to the community up to $27 for every $1 invested and save up to $13,000 for every individual they serve.[3] These savings reflect cost-offsets that stem from re-arrest, law enforcement contacts, court hearings, use of jail and prison beds, and reduced foster care placements and healthcare services.[4] Problem-Solving Courts also help alleviate our country’s overpopulated prisons by diverting drug addicted offenders into treatment rather than putting them behind bars.[5] Drug addicted offenders who do not receive treatment are at a higher risk for recidivism.[6]

  1. El Paso County Problem-Solving Courts
  1. SAFPF Re-Entry Drug Court

The 384th District Court’s SAFPF Re-Entry Drug Court provides intensive supervision to offenders transitioning to the community from a Substance Abuse Felony Punishment Facility (SAFPF). SAFPF is a six month intensive residential substance abuse treatment program outside of El Paso County. SAFPF is for individuals who are under felony community supervision and who have been assessed as having a substance abuse problem. The program is supervised by the Texas Department of Corrections and is modeled under a Therapeutic Community Module. Clients in SAFPF receive individual and group counseling and participate in a 12 step program. Generally, participants must complete the SAFPF treatment program before entering the SAFPF Re-Entry Drug Court and are ordered into the program as part of their terms and conditions of probation. However, the team can accept participants who have not been to SAFPF on a case by case basis. Upon completion of the SAFPF treatment program, participants are transitioned to a Transitional Treatment Center (TTC) for a period of 60 to 90 days to allow the client to reintegrate into the community. While at TTC, clients are required to continue with treatment and are allowed to work and visit with family. It is during this period that the SAFPF Re-Entry Drug Court works with the participants.

The SAFPF Re-Entry Drug Court is a 15 to 21 month long program that provides intensive supervision and monitors the participant’s abstinence. The 384th SAFPF Re-Entry Drug Court has been in operation since June of 2003. Since then, the program has served 354 clients and out of those 354 clients, 131 clients have successfully completed the program.[7] For fiscal year 2013, the program served 118 clients and graduated 13 participants.[8] The program currently has 69 participants.[9] Upon successful completion of the Drug Court Program, the judge may order that the client’s probation be terminated early, place the client on a nonreporting status, or the client will continue on regular probation. Nonreporting status means that the client will continue to be subject to the terms and conditions of probation but does not have to report to his or her community supervision officer.

  1. DWI Drug Court Intervention and Treatment Program

County Criminal Court at Law Number Two created the DWI Drug Court Intervention and Treatment Program in November of 2004 to help reduce recidivism among Adult DWI offenders. The DWI Drug Court Program is designed as a 12 month program that requires judicial monitoring, mandatory treatment, and intensive supervision. The duration of the program may be extended depending on the client’s progress. Clients are ordered into this post adjudication program by the court for both misdemeanor and felony DWI cases. Since 2004, the program has accepted 396 clients and has graduated 249 clients.[10] Out of the 249 clients who have successfully completed the program only 24 have re-offended.[11] The program has a 90% success rate and 10% recidivism rate.[12] For fiscal year 2013, the program accepted 40 new participants and graduated 30 clients.[13]Upon successful completion of the DWI Drug Court Program, clients are returned to a “regular” probation caseload, unless the client’s term of probation has expired. Clients convicted of a DWI are not eligible for early probation termination.[14] The program currently has 57 participants.[15]

  1. Veterans Court

The 346th District Court created the Veterans Court to divert veterans or active military participants from the traditional criminal justice system and to provide them with support and rehabilitation through comprehensive substance abuse and/or mental health treatment, education, vocational programs, and community resource referrals for housing, childcare, and transportation, all while being judicially monitored. The Veterans Court Program is a minimum of 18 months long but may be extended depending on the client’s progress. Since August of 2012, the Veterans Court has screened about 76 cases and is currently serving 18 participants.[16] In order to participate in the Veterans Court Program, prospective clients must demonstrate prior military service in combat or hazardous duty which resulted in mental illness that is related to the charged offense.Prospective client must be active military or eligible for VA benefits by receiving an honorable discharge or a general discharge under honorable conditions. Clients must agree to participate in the program and enter a plea of guilty. Clients are then placed on deferred adjudication probation. Upon successful completion of the Veteran’s Court Program, clients are terminated early from probation and the criminal charges against them are dismissed.

  1. Special Needs Diversionary Program

The 65th District Court’s Special Needs Diversionary Program (SNDP) serves the needs of children who are at risk of being removed from their homes due to mental health issues that result in behaviors that make them unmanageable in their home and/or community environments. The program was established to bring intensive services to these kids in their homes and therefore allowing the juvenile to remain in the home. SNDP has served 160 clients since June of 2007 and has graduated 129 clients with an average recidivism rate of 17%.[17] For fiscal year 2013, 95% of clients successfully completed the program.[18] Currently, there are 11 clients in the program.[19] The program is four to six months long and an additional 90 days for aftercare treatment. Juveniles who successfully complete the program can have their probation terminated after the six months or after the 90 days of aftercare treatment rather than remaining on probation until their 18th birthday. To be eligible for SNDP the juvenile must already have been adjudicated and have a Diagnostic and Statistic Manual (DSM) Axis diagnosis other than or in addition to substance abuse, mental retardation, autism, or pervasive developmental disorder. The SNDP team screens prospective clients and votes on whether to accept or decline the case. Reasons for declining a case include habitual runaway history, no mental health diagnosis, or the primary condition being substance dependence. Upon acceptance, a Family Suitability Interview (FSI) is conducted where the program requirements are explained to the juvenile and the parents. The juvenile and the parents must accept the program requirements in order to participate in the program. Once accepted into the program, the juvenile and the parents receive in home counseling services and case management by Pinnacle Social Services, LLC. The counselor, case manager, and probation officer each maintain a minimum of two contacts per week with the juvenile, one of which must be conducted in the home. In addition, the juvenile reports to the court for a status hearing every two weeks.

  1. General Problem-Solving Court Structure

Each Problem-Solving Court has its own structure and policies and procedures; however, they all follow the same general drug court model which consists of a treatment team, phases that the clients must progress through in order to successfully complete the program, mandatory treatment, intensive supervision, sanctions, incentives, staffings, and court hearings. The National Association of Drug Court Professionals and the U.S. Department of Justice’s Office of Justice Programs published 10 guiding principles of operating an effective drug court.[20] The El Paso County Problem-Solving Courts adhere to the following Ten Key Components:

  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 organization to generate local support and enhance drug court effectiveness.
  1. Treatment Team

The treatment team is a group of professionals that closely monitors the client’s treatment and community supervision. The treatment teams typically consist of the judge, program coordinator, Assistant District Attorney, law enforcement officers, treatment providers, and a Deputy Public Defender. The team meets weekly, with the exception of the SNDP which meets biweekly, to discuss the clients’ progress or regress and any other matters that need to be addressed.

  1. Phases

Phases are the steps that the client must progress through in order to successfully complete the program. Each Problem-Solving Court has implemented the duration of their program, how many phases their program will have, and the requirements for advancement and completion of each phase. Generally, Problem-Solving Courts have three or four phases that focus on detoxification, stabilization, and aftercare. The client’s duration in each phase depends on the client’s progress. If the client completes all phase requirements he or she advances to the next phase. However, if the client is non-compliant with the program requirements or violates the terms and conditions of his or her probation, the client may be moved back a phase, have to restart a phase, or restart the entire program. Once the client successfully completes all of the program phases, he or she graduates from the program. To recognize the client’s achievement, a graduation ceremony is held and the client receives a certificate of completion.

If a client is unsuccessfully discharged from the program, the court may pursue customary modifications or revocation of probation proceedings. A client may be unsuccessfully discharged from the program if the client voluntarily terminates his or her participation in the program, the judge removes the client as a result of a new offense, the various levels of sanctions have been employed, the client refuses to comply with the program rules, or the client becomes a supervision risk. In the event that the District Attorney files a motion to revoke, the court must then appoint counsel for the client.

  1. Mandatory Treatment

Clients in Problem-Solving Courts are all required to get treatment from a licensed treatment provider. Once a client is admitted into the program, he or she will get a clinical evaluation to determine what their treatment plan will be. A client will be assigned to residential, intensive outpatient, or supportive outpatient treatment based upon their clinical assessment. Moreover, some participants are required to attend trauma counseling, marriage counseling, family counseling, or parenting classes as part of their treatment.

  1. Intensive Supervision

Clients in Problem-Solving Courts are placed on intensive supervision, in which more stringent reporting requirements and conditions are placed on the client than if he or she was on regular probation. Generally, clients are required to report weekly to their community supervision officer and the judge while they are on phase one, report bi-weekly while on phase two, and either continue reporting biweekly or once a month while on phase three. Clients receive random home visits and are subject to random alcohol and drug testing. The treatment team monitors if the client is attending all required counseling sessions, is being medication compliant if required to ingest medications, and is in compliance with other program and probation requirements.

  1. Sanctions and Incentives

Problem-Solving Courts are behavior modification programs. Clients receive incentives for accomplishments and escalating sanctions for infractions. An incentive for progressing through the phases includes not having to report weekly or bi-weekly to the court and community supervision officer, while incentives for successfully completing the program may include early termination of probation and/or a dismissal if on deferred adjudication probation. Each court has implemented its own sanction matrix to deal with any infractions. In the Problem-Solving Courts, the purpose in applying sanctions is to motivate behavior change and not to punish.

  1. Staffings

Staffings are meetings that are held prior to each court hearing where the treatment teams discusses the client’s progress or regress, treatment plan, any violations and disciplinary actions that need to be addressed if at all, and any other matters that need to be addressed. Because infractions and sanctions are discussed during these meetings and the client is not present, it is imperative for the Public Defender to be present at these meetings as he or she is frequently the client’s only voice.In preparation for these meetings and court hearings, the Public Defender must read treatment and surveillance reports and talk to his or her client if there is an alleged violation. The treatment team members make their recommendations to the judge and all final decisions rest solely with the judge. Problem-Solving Courts abandon the traditional adversarial model and favor a system where the primary goals are the client’s sobriety and public safety. However, the treatment team’s decisions are at times conflicting with that of the client’s wishes putting the defense attorney in a quandary. In the traditional criminal justice system, the defense attorney is required to zealously advocate for this his or her client’s stated interest. However, the drug court model challenges this duty by requiring the defense attorney to be a member of the treatment team and share the team’s primary goal of doing what is in the client’s best interest in aiding the client with overcoming his or her addiction. However, even in the drug court context defense attorneys must abide by their ethical obligations and advocate for their client’s stated interest even if it’s in conflict with what is in their best interest such as going into residential treatment. Pursing the client’s stated interest is compelled by Rule 1.2 of the Texas Disciplinary Rules of Professional Conduct. The rule states that an attorney “shall abide by a client's decisionsconcerning the objectives and general methods of representation….” Therefore,the defense attorney should always discuss with the team what the client’s stated interest is even though their stated interest may not always be what is in their best interest. Because all of the teams decisions are made during staffing and the client is not present during these meetings, it is critical that the Public Defender be present to state the client’s perception of the situation and wishes so that team is able to make an informed decision and recommendation to the judge and to ensure that the client’s constitutional and statutory rights are not violated.