Zealous Advocacy: The trouble with drug court. It's needed and it works—but there's one major problem.

March 17, 2018


Leslie Dollen
Zenith News

Ask almost anybody working in the criminal justice or social service systems on either side of the bridge, and they’ll give Drug Treatment Court programs a glowing review.

“I’ve seen it change people’s lives,” says St. Louis County Chief Public Defender Dan Lew, who describes the program as “transformative.”

“It’s about lifestyle changes, mental health changes...skills...That’s where it’s at,” says Douglas County District Attorney Mark Fruehauf.

Sergeant Derrick Hughes with the Superior Police Department says Drug Courts “make communities safer, reunite families, and save lives.”

Even participants gush about the program, one telling the Star Tribune that it gave her a sense of purpose she had never felt before. “I’m so grateful for drug court. It gave me the support to live my life.”

And there’s evidence that all these benefits of Drug Court are real—but there remains a significant problem with at least some Drug Court programs: Defense attorneys are not always able to give their clients dedicated and loyal representation, or “zealous advocacy.”

At best, it’s not always clear whether the defense attorney in Drug Court is batting for the defendant—or for the team of professionals who oversee the process. At worst, defense attorneys are sometimes forced to act against the defendant’s interests and/or to violate the defendant’s confidentiality. Both are grave concerns for the client’s rights and the attorney’s ethics.

Formally called “Treatment Court,” Duluth’s program started 15 years ago, and Superior’s 10 years ago. Either before or after sentencing (in Duluth), or only after sentencing (in Superior), a non-violent offender whose addiction has led to criminal activity can be nominated for Treatment Court. The defendant— called the “participant”—is typically headed to prison if s/he does not agree to Treatment Court.

Part litigation and part social work, Treatment Court is governed by a multidisciplinary team that includes a judge, a prosecutor, a public defender, a probation agent, a drug treatment professional, a jail staff member, a case manager, a specialty court coordinator, one or more law enforcement officers, and the participant.

The emphasis is on behavior modification, compassionate support, and the participant’s honesty. “Our judge likes to say...to our participants that, ‘If you can just be honest with us, we can get through this.’ Honesty is at the forefront of what we do,” says Douglas County Case Manager Jennifer Paananen. “Treatment Court is 24/7 for [the participant]... Everything they are doing is part of their treatment. Every action they’re taking, every decision they’re making is part of Treatment Court.”

Treatment Court participation is a significant time commitment, with more than a few honesty-motivators built into the program. There are mandatory support groups, mandatory check-ins with law enforcement, random urine drug screens, and mandatory visits from probation and from their caseworker.

Participants work to complete phases of the program, which can earn them increasing privileges. Successful participants typically graduate in 18 months (Duluth) and commit to at least 12 months (Superior).  

The program is not all-stick-and-no-carrot. It provides tangible help, including bus cards, career and job-hunting advice, financial management, and a GED program—just to name a few.

There is a stick, however. If a participant violates any of the program’s extensive list of rules, they face a sanction hearing, which could result in an earlier imposed curfew or even jail time. After several violations or a major violation, the participant faces a termination hearing, where most members of the multidisciplinary team vote on whether or not to kick the participant out.  

That vote poses an ethical dilemma for the defense attorney, especially in Wisconsin, where the Treatment Court Standards state: “Treatment court participants have the right to be represented by counsel at all stages of the proceedings. Defense counsel as a member of the treatment court team does not represent individual participants.”

The Douglas County program’s policies fail to outline the defense lawyer’s obligations at all. In practice, their role appears to violate Wisconsin’s rule that defense counsel for the Treatment Court team must not represent participants in contested hearings.  

“My role in Treatment Court, or the defense role in Treatment Court, is as a member of the Treatment Court team. Not an advocate for the participant, ok?” says former Chief Public Defender J. Patrick O’Neill, who was on the Superior Treatment Court team until his recent retirement.

[Author’s disclosure: O’Neill is my former supervisor. I worked at the Wisconsin State Public Defender’s Office for over 23 years.]

“The defense bar involved, just like any other team member, discusses candidly the participant, what their concerns are...and votes [on whether] to expel someone from Treatment Court. Now if a participant wishes, [the] defense attorney team member can advocate on behalf of that participant in the context of...an expulsion hearing, sanction hearing, etc.”

This arrangement could be quite confusing if you are a lawyer, let alone for the participant, who may not trust the public defender-cum-defense attorney, who is now in the awkward position of team-member-turned-advocate-turned-back-into-team-member.  

“It’s really tricky,” says O’Neill. “Because you’re advocating for them in the context of drug treatment court, but it’s not quite the same attorney-client relationship that you have with a client who either you were appointed...or hired to represent. Because after that particular proceeding within the context of Drug Court concludes, then I’m still just a member of the team. I don’t have an ongoing duty with respect to that participant other than if, down the road, there’s another proceeding, at which they’re entitled to an advocate. If they choose, I can advocate for them that time as well.”

“Is it a problem? Yes,” say Douglas County Judge Kelly Thimm, who is currently on the Superior Treatment Court team. “If [the participant] want[s] representation, and our public defender is willing to do that, there’s going to be a conversation...‘I’m part of the team, but I’m also here if you want adversary counsel’...If they’re not comfortable having the Drug Court defense lawyer do it, we’ll make other arrangements.”

For example, a lawyer who is not on the team could be appointed to represent a participant who is uncomfortable with the public defender’s dual role.

However, the participant’s right to counsel does not seem to be adequately protected. Douglas County mandates that a participant waive the right to have their attorney present at anything but termination hearings, and nudges them towards the public defender.  

Appendix C of Douglas County’s manual, a form participants must sign, states: “I agree to waive my right to have my attorney of record present. I understand that my case may be discussed without my attorney. I understand the Public Defender will have a representative at all Drug Court hearings and I may consult with [that] representative at any time.”

An integral part of the attorney-client relationship is client confidentiality. Unless a client willingly authorizes disclosure, a lot of what the client says and a lot of information about their case is “privileged”—a strict privacy that fosters trust and allows the client and lawyer to build their case together.

But Superior Treatment Court mandates a waiver of confidentiality for participants. From Appendix A of the manual: “I hereby authorize...the public defender’s office...to communicate to [other team members] information pertinent to Drug Court participation.”  

If a participant later rescinds this authorization, they get kicked out of Drug Court.

It’s not unreasonable to expect participants to waive some rights in order to take advantage of the privilege of Treatment Courts. Plea agreements work the same way, where clients might waive their right to appeal or even their right to a trial in exchange for a benefit.

But Douglas County mandates a blanket waiver of confidentiality by the participant, and explicitly grants the defense attorney authority to report a participant’s drug use or criminal violations.

The Treatment Court in Duluth does not appear to present these same problems. The defense lawyer on the Treatment Court team, for example, is required to act as the participant’s advocate at all times.

From the St. Louis County manual: “The public defender will actively participate as defense counsel [emphasis mine] by advocating for the participant during staffing and court proceedings in a non-adversarial manner, assisting...the treatment process for the participant. The defense attorney represents and counsels the defendant in all court proceedings. The defense attorney is interested in promoting not only the legal rights but also the health and wellbeing of the defendant. At the same time, the defense attorney always makes the defendant’s constitutional rights the primary concern.”

“We are [their] lawyer and here to zealously advocate for the client’s wishes,” says Chief Public Defender Dan Lew. “We do not advocate for sanctions and do not vote to sanction a client. We advocate for opportunities at treatment, recovery, and better lives rather than jail...We oppose termination from the program unless the client wishes to be terminated.”

There’s little doubt that Drug Courts are badly needed. Last year, Douglas County had 82 child welfare cases, most of which involved drug abuse—a new record, according to District Attorney Mark Fruehauf. “I think we eclipsed 2016’s total...by April or May.”

And there’s little doubt that Drug Courts work. According to US Justice Department data, drug court reduces felony re-arrest by 17 to 26 percent more than comparable probationers. Drug court saves taxpayers an average $1,392 per-participant compared to prosecution ($6,744, if you factor in lowered recidivism costs, and $12,218 if you include victimization costs).

The book Good Courts: The Case for Problem-Solving Justice, by Greg Berman and John Feinblatt, describes what it was like before drug courts from the perspective of a judge:

At about 4 a.m., a defendant came before me charged with possession of...heroin. He had a conviction record approximately one-inch thick with at least 30 prior arrests for drug possession. The district attorney asked for 30 days’ jail, while the defense attorney asked for 10 days.
I said, “Why don’t we do drug treatment?”
They said, “It’s not available.  
I said, “I know there’s no treatment at four o’clock in the morning, but there must be some program where the defendant can go when the regular court opens.”
They said, “No, there is no treatment available.”

I remember thinking, “What difference does 30 days in jail or 10 days in jail really make? The defendant needs detox and a long-term residential drug program. Until that’s the sentence, we might as well reserve his jail bed now for his next stay”

I was frustrated because [the jail sentence was] a failure. A failure for the defendant, because he was addicted going into jail and would be addicted coming out; for the community, because the sentence does not address the real issue that brought the defendant to the court, and because he was probably committing crimes to support his action and would continue this behavior once he was released; and for the court, because the defendant would be coming back again and again, doing life in prison, 30 days at a time.

But at least locally, especially in Wisconsin, Drug Court doesn’t fare so well in protecting the rights of defendants and the ethical obligations of defense attorneys. Fortunately, the professionals in the local Drug Court system are committed to working on that.

“As the Treatment Court model has changed,” says Judge Thimm, “we’re trying to hone down what works, what doesn’t work. That’s become a point of tension...We’re finding out how important it is for due process in these cases. Not that we didn’t know, but we’re getting, I guess, better at it.”

Former Public Defender Pat O’Neill thinks the problem needs to be addressed by state statute, “clearly defining the responsibility...of defense counsel in the Treatment Court process [and] defining rules proscribing what prosecutors can and cannot do in the context of the treatment court process.”

Drug Courts are in dire need of funding, employers willing to hire participants, and mentors willing to work with them. If you want to help, call Dan Lew at 218-733-1027 or Dave Longsdorf at 715-395-1304.

Leslie Dollen is a Legal Studies instructor at UW-Superior, and a community activist.

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