Presented by James Whiteside and Souder Tate
17th Annual MADCP Conference
May 24, 2015

1st Amendment


Religion
Association
14th Amendment
 Due Process



4th Amendment



Search & Seizure
Drug & Alcohol
Testing



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
our wrongs (Step 5);
Humbly ask God to remove
our 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
of 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

•
Rational Recovery

•
•
www.rational.org
LifeRing Secular Recovery

•
www.smartrecovery.org
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
or 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
or 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
of 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
of his right to due process?
What if Bob is in drug court on a post-plea predisposition?


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
of Tennessee at Nashville (2013)

If the participant denies the factual basis of the alleged
violation:




Will defendant potentially suffer loss of a recognized liberty
or 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
of Arizona (September 20, 2012)
UNPUBLISHED
6. State v. Rogers, 170 P. 3d 881
(Idaho 2007)
Recusal Required
1. State v. Stewart, W2009-00980-CCAR3-CD (Tenn. Crim. App. 8-182010)(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 antidepressant. 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
of 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