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BJA Drug Court Technical Assistance ProjectDRUG COURT JUDICIAL LEADERSHIP INITIATIVETO ENHANCE ESSENTIAL JUSTICE SYSTEM/PUBLIC HEALTH PARTNERSHIPSVOLUME ONE IMPLEMENTATION GUIDEJanuary 2016This report was prepared under the auspices of the Bureau of Justice Assistance (BJA) Drug Courts Technical Assistance Project at American University, Washington, D.C. This project was supported by Grant No. 2012-DC-BX-K005 awarded to American University by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Office of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Office of Juvenile Justice and Delinquency Prevention, and the Office for Victims of Crime. Points of view or opinions in this document are those of the authors and do not represent the official position or policies of the U.S. Department of Justice.BJA Drug Court Technical Assistance ProjectDRUG COURT JUDICIAL LEADERSHIP INITIATIVETO ENHANCE ESSENTIAL JUSTICE SYSTEM/PUBLIC HEALTH ARTNERSHIPSVOLUME ONE IMPLEMENTATION GUIDE DRUG COURT JUDICIAL LEADERSHIP INITIATIVE COMMITTEE MEMBERSJudge Robert Ziemian (Ret.), Boston, Massachusetts, ChairJudge Michael Barrasse, Lackawanna Co. (Scranton), Penn.Joel Bennett, Travis County (Austin), TexasJudge Eric J. Bloch, Multnomah County (Portland), OregonJudge Kevin Burke, Hennepin Co. (Minneapolis), MinnesotaJudge Jeri Cohen, Dade County (Miami), FloridaBrenda Desmond, Missoula, MontanaHartwell Dowling, Augusta, MaineJudge William Dressel (ret.), Reno, Nevada\Judge Jeffrey Ford, Champaign County, (Urbana), IllinoisJudge Dennis Fuchs (Ret.), Salt Lake City, UtahJudge Richard Gebelein (Ret.), Wilmington, DelawareDr. Richard Grimm, Pensacola, FloridaJudge Harl Haas (Ret.)* Multnomah County (Portland), OregonJudge Peggy Hora (Ret.), Alameda County (Hayward), CaliforniaJames Hennings, Multnomah County (Portland), OregonJudge Jamey Hueston, Baltimore, MarylandJudge Ronald Ibarra, Kailua-Kona, HawaiiRoberta Leis, Boson, MassachusettsJudge Brian MacKenzie (Ret.), Oakland, MichiganJudge Stephen Manley, Santa Clara County (San Jose), CaliforniaJudge John Parnham (Ret.), Pensacola, FloridaJudge Louis Presenza (Ret.), Philadelphia, PennsylvaniaJudge Robert Russell, Buffalo, New YorkJudge William Schma (Ret.), Kalamazoo, MichiganMichael Schrunk, Multnomah County (Portland), OregonJudge John Schwartz (ret.), Rochester, New YorkYvonne Segars, Newark, New JerseyJudge Margaret Spencer, Richmond, VirginiaJudge Mark Spitzer, Grant County (Marion), IndianaJudge Mary Hogan-Sullivan, Dedham, Massachusetts Judge Ronald Wilper (Ret.), Fourth Judicial District (Ada, Boise, Elmore and Valley Counties), IdahoJudge John A. Zottola, Allegheny County (Pittsburgh), Pennsylvania.*Died September 21, 2013BJA Drug Court Technical Assistance ProjectDRUG COURT JUDICIAL LEADERSHIP INITIATIVETO ENHANCE ESSENTIAL JUSTICE SYSTEM/PUBLIC HEALTH ARTNERSHIPSVOLUME ONE: IMPLEMENTATION GUIDEINTRODUCTION: THE EVOLVING ROLE OF THE DRUG COURT JUDGETimes are changing on many levels and the role of the judge is no exception.With increasing evidence of the high percentage of defendants in the criminal caseloads of U.S. courts being substance users with associated mental health disorders fueling their criminal conduct, many judicial system officials have recognized that the effective – as well as efficient -- handling of these cases requires a collaborative effort of the justice system with the public health/mental health system(s) and related agencies, working together under the authority of and facilitated by the court –through a “drug court” approach. Given this evolving situation, the leadership role of the drug court judge in this multi-faceted justice/public health system environment becomes vital – and now more important than ever. Judges play a unique role in their communities as public leaders and often, by their mere presence, can assemble and influence other leaders to action. ?Much has been written about the leadership role judges need to play generally within the court system and the larger justice system within which the court functions. Developing and sustaining drug courts, however, may likely require a more expansive leadership role of the judge than in a non-drug court setting in order to engage the public health, community, and other partner agencies who traditionally have rarely worked collaboratively together, as well as to proactively address the ever-changing legal and public health context in which drug courts must function. Drug courts also rely on services from many sectors and can only be sustained through the ongoing leadership which the court must provide to engage these entities and sustain the collaboration necessary to make drug courts work over the long term. The judge’s leadership role is also critical in keeping the drug court team focused on the purposes and ideals, as well as the therapeutic purposes, of the Drug Court. Without this continual therapeutic focus, it is, easy to slip back?into the traditional paradigm, especially with personnel turnover. ? The Drug Court Judicial Leadership Initiative has been launched to provide drug court judges with practical guidance in carrying out the critical elements of this leadership role, both inside and outside of the courthouse. The Initiative grew out of the experience of the BJA Drug Court Technical Assistance Project at American University in providing technical assistance to over 500 adult drug courts in the U.S. which highlighted critical issues outside of the courtroom calling for the drug court judge’s active involvement. These have entailed an array of situations requiring the drug court judges to ensure that the program operated as intended, that evidence based services were provided by all disciplines involved, that participants’ constitutional rights were protected, that all involved with the drug court program were accountable – service providers as well as participants -- and that the drug court program itself could continue and develop despite changes in the leadership of key agencies, available funding, sentencing practices, justice system priorities, and the many other variables that play into the sustainability of a drug court program. The “Drug Court Judicial Leadership” Initiative is framed by twelve “Guiding Principles” drafted and endorsed by a committee of drug court judges from over 20 states. The Principles focus on four organizational areas in which the drug court judge’s leadership is critical: (1) Leadership of the drug court team to ensure adherence to evidence based practices and national standards, including protection of participants’ constitutional rights; (2) Leadership vis a vis service providers to ensure that evidence based treatment and related services are being provided in all components by all service providers; (3) Leadership of the program vis a vis the community to expand and promote understanding of the complex elements of the disease of addiction and its effect on cognitive and other functions, the services the drug court performs, and the community resources and support needed to sustain the program; and (4) Leadership and oversight of the internal administration of the program to ensure a solid management infrastructure and the collection and use of data to monitor the program’s outreach and services to ensure that all eligible defendants who need drug court services receive them.Underlying the “Drug Court Judicial Leadership” Initiative and the twelve “Guiding Principles” is the recognition that drug courts are court programs and they must comport with all applicable constitutional and ethical standards that apply to the criminal court process generally. The Canons of Judicial Ethics apply to the judge whether he/she is functioning in a drug court setting or a non-drug court setting. The following sections of this “Implementation Guide” provide an overview of the “Guiding Principles” underlying the Judicial Leadership Initiative, with commentary, followed by a discussion of selected issues of particular import that can commonly arise in a drug court program daily – as well as over the longer term -- and which are particularly important for the leadership of the drug court judge to address. Part Two of the “Implementation Guide” provides a series of scenarios that illustrate situations that can frequently develop among the various “stakeholders” which require the drug court judge to take an affirmative leadership position. Each scenario includes questions for discussion and suggested alternative approaches for resolving the issues presented. The Drug Court Judicial Leadership Implementation Guide is intended to be used by drug court programs to promote discussion – and debate-- through the examples provided of the various policy and operational issues relevant to further defining the judicial leadership role that drug court programs require and the various contexts in which it applies. We hope that users of the Guide will add scenarios drawn from their experience so that the Guide can be updated periodically to reflect additional perspectives and contexts in which drug courts function.II. Judicial Leadership Initiative: Guiding PrinciplesWhile the role of the judge in initiating the formation of a Drug Treatment Court may be readily acknowledged, as these programs have become part of the mainstream, we often lose sight of the importance that continued judicial leadership must play in sustaining these programs, keeping the many “moving parts” working together and moving coherently forward. A few aspects of the continued judicial leadership role needed are described below:part one: drug court judicial leadership principles: summaryleadership of the drug court teamThe judge needs to continue to renew the team’s commitment to the mission of the drug court and to assure adherence to the Key Components. As procedures become routine, people often start to lose that sense of mission that was so important in the initial decision to take this path. The judge must promote the team’s understanding of the therapeutic principles underlying the drug court model and their application in a drug treatment court, particularly when the roles of the team members can become blurred as people or personnel change. In that leadership role the judge must reinforce with program personnel and team members the nature of their role and that of the judge. The judge must also ensure that the team receives cross-discipline training, updates regarding best practices, effective responses to behaviors, and training regarding other relevant topics to enhance the program.The Judge and team must develop a working knowledge of all relevant issues, including “addiction”, “trauma”, “mental illness” and other “co-occurring disorders”, “pharmacology”, “criminogenic needs”, and “drug testing”. This knowledge is particularly relevant to responses to the behavior of participants and interpretation of that behavior within the context of the recovery process, and appropriate therapeutic responses. [See Volume II: Curriculum] The judge must provide the leadership to ensure that the Drug Court follows evidence based practices and national standards and protects participants’ constitutional rights. The judge must lead the team in frank discussions about court operations and improvements, as needed. It requires the judge to create an atmosphere inviting opinions from the team and valuing constructive ideas. While the Judge must foster a team concept he/she must not abdicate his/her role as the ultimate “decision maker”ensuring evidence based treatment services The Judge and other team members must be aware of and knowledgeable about the services being provided by the treatment provider(s). Depending upon the services available within each state, the guidance of the single state agency for substance abuse and mental health services may be helpful to ensure that evidence based treatment services are being provided by the treatment provider(s). The judge should ensure that the provider(s) are informed regarding the drug court program mission, goals and requirements as well as expectations for communication, delivery of services and collaboration. The court should also schedule opportunities for specific and regular exchanges among stakeholder agencies and the community.program leadership: external relationships with community leaders to expand and promote drug courts by education and collaborationThe judge must be a leader and an advocate in the criminal justice community to extend the benefits of Drug Courts to all high risk/high need offenders. There is a continuing need for the judge to inform frequently changing criminal justice practitioners about the drug court’s mission and level of support needed to continue its development and growth.VII.Consistent with ethical requirements, the judge should actively promote public understanding of and support for the Drug Court concept in the community, the media and with elected officials.VIII. Consistent with ethical requirements, the judge must also educate representatives of targeted government and community agencies in an effort to obtain their support and garner the resources necessary to maintain and expand Drug Courts. IX. The judge should convene an oversight or advisory committee comprised of community leaders and representatives to provide programmatic support, improve access to services and resources, and to aid in expansion and sustainability of Drug Courts. program leadership: internal administration/ oversightX. The judge must promote ongoing review of the court’s caseload to ensure that its eligibility criteria does not present systemic barriers in its entry process that produces a racial, gender, socio-economic, or cultural disparity in the court's population. The entry process must maximize the program’s outreach and service to the volume and nature of all offenders who need the program’s servicesXI. The judge must ensure that the program operates with consistency and transparency, adheres to its articulated policies and procedures and does so in a manner that is consistent with effective and responsible stewardship of public resources.XII. The judge must ensure that the program conducts routine and periodic monitoring of the status of the program’s operations and services, instituting improvements as necessary, and conducts external evaluations as well. The judge must also ensure that program materials, documents and forms are revised periodically to reflect current practices and operations. PART TWO: COMMENTARY leadership of the drug court teami. The judge needs to continue to renew the team’s commitment to the mission of the drug court and to assure adherence to the key components. As procedures become routine, people often start to lose that sense of mission that was so important in the initial decision to take this mentaryThe court must not let efficiency, in the interest of building capacity; allow the team to lose its sense of mission. Training, graduations, groups/meetings at the courthouse, team sessions, alumni groups are important keys to keeping energy levels up. Visitors to the program from myriad areas should be part of the program’s regular outreach efforts (See Principles VI - IX below, providing the team an opportunity to exhibit the great work taking place in Drug Court, as well. II. The judge must promote the team’s understanding of the therapeutic principles underlying the drug court model and their application in a drug treatment court, particularly when the roles of the team members can become blurred as people or personnel change. In that leadership role the judge must reinforce with program personnel and team members the nature of their role and that of the judge. The judge must also ensure that the team receives cross-discipline training, updates regarding best practices, effective responses to behaviors, and training regarding other relevant topics to enhance the mentaryBalancing the importance of the “Team Concept” against the specific role of members becomes even more difficult when new members inevitably replace old members, and need to get their “footing” in a new unfamiliar setting. Training and cross- training are critical and must be on-going. ?It is important as well to conduct regular team meetings, apart from the staffing, to address program operational/policy issues, using outsiders and/or current staff. ?Employing "evidence based practices" is critical to long term success of our programs. Frequent updates as to “new” as well as “best practices” should be provided on a regular scheduled basis.?III. The Judge and team must develop a working knowledge of all relevant issues, including “addiction”, “trauma”, “mental illness” and other “co-occurring disorders”, “pharmacology” “criminogenic needs”, and “drug testing”. This knowledge is particularly relevant to and “drug testing”. This knowledge is particularly relevant to responses to the behavior of participants and interpretation of that behavior within the context of the recovery process, and appropriate therapeutic responses. commentaryAssignment to the Drug Court often introduces new, complicated concepts that many new Drug Court Judges have no experience with, where others on the team (treatment, probation, case managers, etc.) and contributors not on the team (doctors, psychiatrists, nurses, health care workers, etc.) have greater knowledge/ experience. ?The need for training in many areas again is obviously critically important, but this is where a judge must be able to listen, evaluate (and make decisions) in a very difficult environment where he/she may not be the most knowledgeable person in the room on all the relevant issues, a tough ego-threatening exercise.While not appropriate for all participants, Medication Assisted Treatment (MAT) should be available in all drug courts. Training and T.A. is often necessary to overcome resistance from the criminal justice system, treatment community, and other institutions as well. Relevant issues include the cost, making Medicaid funding available in each state, "weaning"/withdrawal, and ensuring an adequate infrastructure to ensure coordination between the prescribing physicians and the drug court program of services and supervision. IV. The judge must provide the leadership to ensure that the Drug Court follows evidence based practices and National Standards and protects participants’ constitutional rights. The judge must lead the team in frank discussions about court operations and improvements, as needed. It requires the judge to create an atmosphere inviting opinions from the team and valuing constructive ideas. While the Judge must foster a team concept he/she must not abdicate his/her role as the ultimate “decision maker”commentaryA major issue that appears to permeate some Drug Courts across the country is "voting” on decisions regarding acceptance of an otherwise eligible participant into the drug court program or terminating a participant. ?Although insuring that frank discussions are welcome and encouraged, that cannot lead to a “voting system” for ultimate court decisions. ?It is an ethical violation for a judge to allow a vote to control a judicial decision. A corollary to this issue is whether a decision by the Judge should be made prior to the defendant having the opportunity to be heard in the court session. The judge should not make a final decision until the participant is heard. A judge may allow a vote of all team members, (the judge not participating) that can serve as advisory with the judge taking it into consideration, along with all of the evidence presented, when coming to an independent determination.ensuring evidence based treatment serviceV.The Judge and other team members must be aware of and knowledgeable about the services being provided by the treatment provider(s). Depending upon the services available within each state, the guidance of the single state agency for substance abuse and mental health services may be helpful to ensure that evidence based treatment services are being provided by the treatment provider(s). The judge should ensure that the provider(s) are informed regarding the drug court program mission, goals and requirements as well as expectations for communication, delivery of services and collaboration. The court should also schedule opportunities for specific and regular exchanges among stakeholder agencies and the mentaryIt is difficult for the judge to make a determination in an area far removed from the regular course of business. Issues that must be addressed include: ascertaining the cost of services and availability of services, obtaining expert help, whether from a single state agency or some other "expert" agency that one trusts, (in-house or other) to monitor services; making "treatment" part of the team; as well as having a Quality Assurance process in place. Service providers change over time and it is essential that the judge ensure that treatment quality is continually maintained and that a Quality Assurance program is continually in place. program leadership: external relationships with community leaders to expand and promote drug courts by education and collaborationVI. The judge must be a leader and an advocate in the criminal justice community to extend the benefits of Drug Courts to all high risk/high need offenders. There is a continuing need for the judge to inform frequently changing criminal justice practitioners about the drug court’s mission and level of support needed to continue its development and growth and ensure that it is serving all eligible offenders who need the drug court mentaryRelevant issues that require the leadership of the judge to facilitate resolution are numerous, a few of which are listed below.(1) ?To establish and maintain a thriving Drug Court, support of the administrative part of the Judiciary, whether they are Chief Justices, Presiding Justices, Court Administrators depending on the structure of a particular jurisdiction, is essential. Given all the problems of decreasing budgets for the Judicial Branch, it is a continuing problem and a?constant struggle to maintain funding and support.(2) ?The support of the prosecutor is also essential for the program generally and, particularly, for serving the “High Risk/High Need” offenders. To obtain initial support from the prosecutor, particularly those who are elected, programs often agree to the D.A. serving as “gatekeeper” for the program. As part of this concession, however, the judge, as leader, should press the prosecutor to allow “high risk/high need” offenders into the program since it will likely be easily documented in most, if not all, jurisdictions that these individuals are not responding to the sanctions of the traditional adjudication process and continue to commit crime. ?Possible other options are to replace the use of an absolute “veto power” of the prosecutor with the practice in court of "placing an objection on behalf of the DA “on the record”, as well as targeting a High Risk/ High Need population for the Drug Court VOP's (probation violations). ?Many well run courts that provide close supervision respond quickly to "failures" of defendants on traditional probation by referring them promptly to Drug Court rather than incarceration. (3) ?In many courts there is resistance from the defense bar (often constitutional objections), probation, court clerks, etc. based on increased work load and other competing priorities. ?Technical Assistance and/or focused training on a particular problem, unique to a jurisdiction is imperative. (4) ?Membership of the team. ?The latest research suggests that having law enforcement as part of the team may increase the program’s effectiveness by providing information on individual participants and assisting with supervision. ?Participant of law enforcement members can also ameliorate “public safety” criticism. However, the police should not have veto power over “entry” and should not be privy to confidential information that may emerge in a staffing. Other agencies may also contribute to the services the team is able to provide, with the same caveats.(5) The court must develop mechanisms to identify the universe of defendants who need drug court services, evidenced both from repeated contacts with the system and through substance abuse and mental health assessments, and work to expand the capacity of the drug court to serve these individuals through additional dockets, expanded services, and/ or other mechanisms.VII. Consistent with ethical requirements, the judge should actively promote public understanding of and support for the Drug Court concept in the community, the media and with elected mentary\Although ethical issues are critical areas to navigate, they are generally jurisdiction specific and must be decided by individual judges in each jurisdiction. As discussed earlier in Principle One, obtaining support from the community is important from a financial perspective as well as public policy perspective since drug courts are dealing with issues that affect most community members directly or indirectly. It is also important for maintaining the enthusiasm and engagement of the team. At the same time, although an open door and welcoming attitude is important, client privacy issues in the treatment environment must also be complied with. VIII. Consistent with ethical requirements, the judge must also educate representatives of targeted government and community agencies in an effort to obtain their support and garner the resources necessary to maintain and expand Drug Courts. commentary(1) ?Ethical considerations are just as important here as in Principle Seven, and generally jurisdiction specific. ?The one exception in this area might be the difference between those applicable to elected vs. appointed judges, where elected Judges may have more freedom to act. (2) ?Having the targeted audience visit the court is essential to obtaining support because it is very difficult to simply describe the Drug Court and how it differs from a traditional approach. ??Graduations are important, but the everyday Drug Court process is often more important to "getting out the message". It is important to allow visitors to see both good results as well as the court’s prompt response to bad results.IX. The judge should convene an oversight or advisory committee comprised of community leaders and representatives to provide programmatic support and to improve access to services and resources to aid in expansion and sustainability of Drug Courts. commentaryAlthough judicial constraints may prohibit Judges from participation, developing a 501 (3) type of entity or alternative option can be very useful for long term sustainability. They are both avenues to raise money and obtain community participation. ?Having an active oversight/advisory committee is key to obtaining support as well as an avenue to local ancillary support; resources, housing, job training leading to jobs, etc. ?Again, getting the committee members to visit the program on a regular basis is critical.program leadership: internaladministration/ oversightX. The judge must promote ongoing review of the court’s caseload to ensure that its eligibility criteria does not have systemic barriers in its entry process that produces a racial, gender, socio-economic, or cultural disparity in the court's population. The entry process must maximize the program’s outreach and service to the volume and nature of all offenders who need the program’s servicescommentary Many important issues/questions must be addressed requiring the judge’s leadership skills. These include determining whether.(1) ?The Drug Court population reflects the demographics of the community;(2) ?Treatment is available for specific populations, i.e. women, persons with co-occurring diagnoses, trauma, etc. and if not, whether the unavailability of these services adversely impacts the multi-dimensional nature of the population being served;(3)The program is responsive to the culture of the population targeted for services(4) ?There are structural or institutional impediments, for example “veto problem” that prevents the program from reaching maximum strength? ?(5) ?The program grants/denies entry to individuals based on subjective projections of the likelihood of their success; ?Most Drug Court candidates are manipulative at best. ?All who fit the criteria should be admitted.XI. The judge must ensure that the program operates with consistency and transparency, adheres to its articulated policies and procedures and does so in a manner that is consistent with effective and responsible stewardship of public mentary The program should conduct regular program monitoring to be sure the program is operating as intended, anticipated services are, in fact, being provided, and outcomes sought are occurring. The program should also be open to self-examination, and changing (tweaking) procedures on a regular basis, as well as instituting more substantial changes in response to new research, treatment payment changes (ACA), changes in the political landscape, and/or deficiencies with existing service providers. XII. The judge must ensure that the program conducts routine and periodic monitoring of the status of the program’s operations and services, instituting improvements as necessary, and conducts external evaluations as well. The judge should also ensure that program materials, documents and forms are revised periodically to reflect current practices and operations. commentary (1)The Drug Court judge must ensure that evaluative data is maintained and analyzed regularly to ensure that the program is on course as well as to enable it to document its success. Program materials (manuals, participant information, etc.) must be current to ensure that the program operates with the same consistency of procedures as the traditional court process --not always the case when new team members come aboard.iii. leadership issues of special import for the drug court judge’s attentionDrug court programs operate as dockets within the criminal justice system and therefore require that all of the constitutional and ethical rules that apply to criminal cases also apply to drug court cases. While the “team” aspect of the drug court process and the nonadversarial nature of the drug court hearing may deflect attention to these critical issues, the drug court judge must be continually attune to the myriad of legal and ethical guidelines that bear on the handling of each drug court case. The following are examples of issues – many of which are inter-related -- that come up regularly calling for the leadership skills of the drug court judge, as he/she works with the team and other involved agencies:OPERATIONAL ISSUES THAT SURFACE REGULARLYpromoting a therapeutic vs. punitive orientation for the programThe drug court model germinated from a recognition by judges – many of whom were former prosecutors -- that a substantial number of defendants driving criminal court dockets were involved with the justice system as a result of drug use and that the traditional approach of using incarceration as a response was not only futile but fueling a “revolving door” through which defendants continually reentered the court and corrections system, each time with escalating sentence exposure because of their prior conviction(s), and often increasingly serious offenses. These early drug court judges also recognized that addiction was a disease, and, although the full dimensions of the disease were not yet known, the disease was amenable to treatment and that effective treatment provided in close collaboration with the court’s strict oversight could promote recovery of addicted defendants who had been involved with drugs for many years. An additional premise of the drug court model is that a major focus of the program should be upon keeping defendants in treatment – the longer they are engaged in treatment, the better their chances are for recovery. Since the early drug courts were implemented we have learned a great deal about the complex mental, physical, social and other consequences of the disease of addiction, its effect(s) on cognitive functioning, associated mental health problems, and its many other ramifications on the physical health and wellbeing of the individual afflicted, his/her family relationships, employment, educational status, and other indicators of social functioning. These “lessons learned” reinforced the critical importance of ensuring that that all aspects of the drug court program are therapeutically oriented, and not simply a reincarnation of the traditional punitive process that has characterized previous justice system approaches for dealing with drug offenders and, which both research and experience has shown to be not only ineffective but to be counterproductive. (See extensive body of emerging research documenting the effect of incarceration on persons with substance abuse and mental health disorders, including significant rates of reported suicide.Issues for the Drug Court Judge:To ensure that:The program provides a consistent and therapeutically oriented structure for participants that promotes recovery;Initial orientation and ongoing training is provided for each team member involved with the drug court on the critical paradigm shift – from a punitive to a therapeutic approach – which the drug court program model introduces.A key focus of the program is upon promoting Participant Retention -- keeping participants in treatment, tailoring treatment services to the changing situations and crises participants may experience, with termination a last resort and only when no treatment options exist. tasks for the Drug Court Team:To ensure:Use of a scheme of “Incentives and Sanctions” that reflects a consistent and therapeutic (e.g., not punitive) approachThat the “Incentives and Sanctions” scheme supports the therapeutic behavioral modification strategies drug courts need to employ to sustain recovery, promote desistance, and address situations of continuing or new drug use or other incidents of noncompliance.The “Incentives and Sanctions” scheme is grounded in the recognition that:Addiction is a chronic disease, frequently characterized by episodes of relapse, which requires -- and responds to -- both acute (e.g., provided during the course of drug court participation) and aftercare/continuing care services;Episodes of relapse require therapeutic responses; episodes of willful violations of program requirements require a sanction which should be therapeutic if at all possible (writing an essay, etc.); and The concepts of proximal” vs. “distal” behaviors is key to effectively promoting recovery of drug using defendants. Participants cannot be expected to become fully compliant with drug court requirements the moment they enter the drug court, particularly after years of drug use and the cognitive and other disabilities resulting, let alone the dysfunctional lifestyles most have led. The concept of “proximal” and “distal” behaviors -- e.g., behaviors that can reasonably be expected when the participant enters the program vs. behaviors that cannot reasonably be anticipated until the participant has progressed in his/her recovery -- must be imbedded in all drug court policies and processes. (See Douglas Marlowe. “Behavior Modification in Drug Courts: 101”. Clarifying the roles of team membersDrug court team members represent a diversity of disciplines, each with special applicable standards of practice, and operating procedures that are applied to the drug court program. Involvement in the drug court provides the opportunity for each team member to contribute the expertise of their respective discipline to the services of the drug court; it does not, however, change their role. The prosecutor provides the perspective of the prosecutor; the treatment professional provides the perspective of the treatment services; etc. It is important that each team member’s role in the drug court be defined and documented.Issues for the Drug Court Judge:To ensure that:The role and functions of the critical services provided by the non-court agencies comprising the “team” are adequately performed, recognizing that often they have had little, if any, experience in working collaboratively together as a drug court program requires; and The necessary partnerships among these agencies are established to assure that the various “moving parts” involved are aligned with the overall drug court mission. This coordination and oversight by the drug court judge and clear definition of roles and functions are critical to sustaining the effectiveness of the drug court program. tasks for the Drug Court Team:To ensure:Clear definition – and adherence – to roles, documented in the program manual, Memorandum of Understanding (MOUs) among stakeholder agencies, and the subject of ongoing training and cross-training. As new team members are assigned, orientation regarding their specific function in the drug court – different from their function(s) in their nondrug court position(s) – is critical as is training as to the mission and goals of the drug court. ensuring that treatment services are evidence based Effective treatment services are the core of a drug court program, without which the program is ineffective. While judges are not treatment providers, they need to know enough about treatment services to be able to ask the right questions, be knowledgeable about relevant diagnostic processes (e.g., assessments, level of care, etc.) and approaches that should be used for effectively treating the range of individuals in their respective drug court program. They also must require the necessary reporting and other information needed to make informed decisions regarding the services participants need and the program’s response to their progress in the program.New research findings regarding the treatment of substance use disorders, associated mental health conditions and brain and cognitive functioning are being published regularly and what might have been accepted “best practice” earlier in the program’s development may no longer be relevant. The drug court judge must continually work to ensure that the program’s treatment services reflect the continually developing body of knowledge and experience that is shaping substance use treatment and the panoply of associated mental health and related conditions the drug court must address. Issues for the Drug Court Judge:To ensure that Evidence based treatment and other needed services are being provided to adequately address the needs of each participant;The right treatment is going to the right participant; andThe treatment services provided are adequate to address the continuum of participant needs and consistent with national standards and current research findings.tasks for the Drug Court Team:To ensure thatRelevant training and cross-training is provided regularly so that everyone is “on the same page” regarding the key elements of substance abuse treatment services the program must provide, including diagnostic processes (e.g., screening and assessment), determining the level of care needed, and ensuring that an appropriate continuum of services is available to address the substance use and related needs of participants. The treatment services are characterized by:intensive, outpatient services for 10-14 monthsthe separation of “high risk/high need” participants from lower risk/lower need participants in treatment sessions;the use of manualized curriculums that are delivered with fidelity (e.g., not modified);the availability of medication assisted treatment (MAT) and integration with the drug court’s psycho-social services, as appropriate;aftercare/continuing care services integrated in the drug court treatment plan that can continue once the individual completes the drug court, including the development of relationships with the recovery community;case management services to address ancillary needs (e.g., housing, medical, education, employment, transportation, etc.);individualized treatment plans; the one size fits all” approach is totally inadequate.Frequent, random drug testing is used to monitor the effectiveness of the treatment plan, with “positive” drug test results prompting reassessment of the treatment plan and consideration of potential modifications that may be needed, along with any sanctions that may be appropriate.protecting Participants’ Constitutional RightsAs noted earlier, drug courts function within the criminal court context and all applicable constitutional and other rights to which defendants are entitled in criminal matters apply equally to defendants in a drug court. The relaxation of the formality regarding the setting for the drug court hearing vs. a traditional criminal court hearing does not trigger a relaxation of other aspects of the criminal case process. Issues for the Drug Court Judge:To ensure that:Participants are provided with legal representation throughout their period of drug court participation; and Participants’ constitutional and relevant statutory rights are protected throughout the course of their participation in the drug court.tasks for the Drug Court Team:Conducting ongoing review of program policies and procedures to ensure compliance with constitutional and statutory requirements applicable to the criminal case process generally.To ensure that:Participants understand the requirements of the program and the various components in which they participate; and Mechanisms for providing participants with program information take into account (1) the cognitive impairments of at least some participants resulting from their drug use; and (2) other educational, developmental or other limitations of at least some participants. Protecting The Confidentiality of Information Relating To Participants’ Drug Use And Treatment and other information disclosed during the course of a participant’s drug court participation that may involve others Disclosure of confidential information relating to a drug court participant should be limited to information that is essential for the treatment, supervision and other services the drug court is providing and consistent with statutory provisions as well as participant waivers that are applicable. The provisions of 42 C.F. R , prohibit the disclosure of information relating to an individual’s treatment for substance use disorders except under limited prescribed circumstances. For drug court purposes, these include the voluntary waiver by the individual to permit disclosure of information to specifically designated individuals for the purpose of formulating recommendations relevant to the individual’s treatment services discussed at the staffing. Drug court staffings provide the judge with the informed guidance needed to constructively monitor the participant’s progress in the drug court and promote the effectiveness of the treatment and other services being provided. It is not uncommon for discussions at the staffing to refer to others closely related to the participant whose conduct or situation -- which may involve various illegal activity -- is relevant to the services and/or supervision the drug court is providing. The information disclosed during these discussions should also be protected and not used for any purpose other than for addressing the participant’s treatment and supervision needs – a situation making it all the more important that the individuals participating in the staffing are limited to those performing these functions, that they execute agreements acknowledging obligations to maintain confidentiality and prohibit redisclosure and/or use of any information disclosed at the drug court hearing regarding the participant as well as others.The judge must also be cognizant of the importance of protecting confidential information disclosed at the staffing during the subsequent drug court hearing which is open to the public.Issues for the Drug Court Judge: To:Determine who should attend staffings and have access to confidential participant information;Ensure safeguards against subsequent disclosure, redisclosure and/or use of confidential information disclosed at the drug court staffing;Ensure that confidential information is not disclosed at the drug court hearing, which is a public proceeding; and Ensuring that the disclosure of confidential information is limited to information that is directly relevant to the treatment and supervision of the drug court participant. Require all attendees at the staffing to execute agreements acknowledging the prohibitions on the use and/or disclosure of information disclosed at the staffing.Situations are not always clear-cut and, for the drug court hearing to be therapeutic it must discuss issues the participant is facing. These may involve matters covered by confidentiality laws, but they may nevertheless still need to be addressed in court.tasks for the Drug Court Team:Ensure adherence to confidentiality requirements relating to disclosure and redisclosure of confidential information Ensure that attendance at the staffing is limited to those who are directly involved with making recommendations regarding the individual’s treatment and other conditions for program participation – generally the judge, prosecutor, defense counsel, treatment representative and possibly probation or other entity providing supervision. Limit the information provided at the staffing to what is directly relevant to the treatment planning and supervision of the drug court participant.Avoid references to others with whom the participant may have relationships and/or disclosing information regarding others that would not normally be disclosed except for the participant’s involvement in the drug court unless directly related to the treatment planning and supervision of the participant. Ensure MOU’s exist with stakeholder agencies regarding use of information disclosed at the staffing and prohibiting both its disclosure as well as its use for any purposes other than the formulation and enhancement(s), as appropriate, of the treatment and supervision services for the drug court participant.Drug Court Decisions: The Judge Vs. The ”Team” Drug courts use a “team” approach to provide expert advisory guidance to the drug court judge on appropriate therapeutic responses to participant progress and the decisions the judge must make regarding each participant. While the team may or may not reach consensus in terms of its recommendations, it can provide valuable advisory perspective for the judge nevertheless. Ultimate decisions regarding each participant must, however, be made by the drug court judge.Issues for the Drug Court Judge:To ensureThat all decisions by the Court relating to a drug court participant are made by the judge, based on his/her independent assessment of relevant facts and other issues, taking into account the recommendations of the team, the totality of the circumstances, as well as the testimony of the participant. While valuable information is exchanged during the staffing, the judge should defer any final decision until after the participant has an opportunity to be heard at the review hearing.tasks for the Drug Court Team:To ensure that:All relevant information regarding a participant, including drug test results, is promptly and continuously provided to the judge so that he/she is fully informed of all developments relating to the progress of each participant.Decisions regarding program eligibility are transparent and consistent with the eligibility criteria established by the court. . ex parte communicationsRule 2.9: Ex Parte Communications of the ABA Model Code of Judicial Conduct provides:(A) A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers, concerning a pending* or impending matter.”Supporting Comment, more recently added, provides:“….. [4] A judge may initiate, permit, or consider ex parte communications expressly authorized by law, such as when serving on therapeutic or problem-solving courts, mental health courts, or drug courts. In this capacity, judges may assume a more interactive role with parties, treatment providers, probation officers, social workers, and others.”…..During the past several years, a number of states courts have amended their state Canons to carve out an exception to the ex parte provisions for problem solving courts, as long as all parties are notified of the communication and efforts to include all parties in addressing it are made promptly. Issues for the Drug Court Judge:To ensure that:The program’s policies re ex parte communications are documented in the Drug Court Program Manual as well as in Memorandum of Agreement with stakeholder agencies. Procedures are in place re staffngs and court hearings if prosecution or defense are not presentWhat happens if either the defense or the prosecution do not appear at a staffing or at a hearing? Most drug courts have taken the position that, as long as both parties have been notified of the event, the court can proceed even if one or more of the parties is not present. The program’s policy should be incorporated into a Memorandum of Understanding (MOU) with the prosecutor and defense offices. In situations where drug courts are dealing primarily with individual attorneys rather than an organized public defender office, this policy should be noted prominently in the contract or agreement with the attorney or in whatever other documents will provide the defense attorney adequate notice of this policy.tasks for the Drug Court Team:To ensure:All information relating to a participant’s progress is promptly communicated to the prosecution and defense and other drug court team members. With multiple agencies involved in most drug court programs, information regarding a participant should be distributed promptly to prosecution and defense as well as the court. Procedures should be incorporated in the Drug Court Operations manual documenting this policy and distributed to all agencies involved. ensuring that participant fees are reasonable and not a barrier restricting program access In many drug courts, participants are charged fees by a variety of service providers – the drug court program itself, the entity that conducts drug testing, probation, treatment, supervision, and others. A common comment from participants is that they were not informed of the totality of fees required and, upon inquiry of program officials, many judges and coordinators are not aware of the totality of fees imposed. Whatever fees are charged should be reasonable, tailored to the situation of each participant, and, most importantly, not create a barrier so that those who need the drug court cannot participate. Issues for the Drug Court Judge:To ensureThe Court has readily available the full schedule of fees participants are required to payRequired fees are reasonable and not a barrier to participation In appropriate situations, reduce or waive participant fee obligations. The judge must be aware of all financial burdens placed on participants (e.g. fines, restitution, child support, etc.) and consider acting in the interests of justice and of the success of participants to waive or reduce such fines in appropriate situations that are within his/her power to modify.tasks for the Drug Court Team:Compile information on all fees service providers charge participants, determine their reasonableness, propose alternative service providers if necessary to reduce fees and ensure that whatever fees are determined necessary do not bar otherwise eligible participants from participating in the drug court, Propose/develop mechanisms for adapting fee schedules to individual participant situation(s), including sliding fee schedules, and opportunities to satisfy fee requirements through community service. ******The situations cited above are but a few of those that emerge regularly in a drug court program requiring the judge’s leadership to address. The leadership of the drug court judge is also essential to address the broader policy issues that affect the viability of drug court programs and the ever-changing local environments in which they must function. Changing prosecutorial priorities, statutory provisions, resource availability, leadership in stakeholder agencies are but a few of the additional “moving parts” that must be factored in to sustaining drug courts over the longer term. The following are examples of the broader, systemic issues critical to sustaining drug courts over time that also require the leadership of the drug court judge in addressing.sustaining the drug court program over the long termGENERAL CONSIDERATIONS:developing and sustaining necessary partnerships “outside of the courtroom”Drug courts rely on the active involvement of multiple agencies – justice, public health, housing, educational, social service, and many others—to address the substance use and myriad of other social issues which criminal defendants bring to the court. The Drug Court judge must ensure that relationships with these agencies are not only developed but continually nurtured to ensure the active partnerships drug courts require, particularly as change in agency leadership and priorities occur.The Drug Court Judicial assignment: How long should it be?Discussion as to the appropriate length of the drug court judicial assignment has generally focused on the length of time necessary for the judge to establish a rapport with the participants and the team. Little attention, however, has been given to the time needed to develop and sustain the relationships of the court with partner agencies and ensure the performance of other functions (data collection, evaluation, program oversight and management, etc.) to provide – and sustain -- the necessary infrastructure for the program to function and to be sustained over the long term. How long should the drug court judicial assignment be? Long enough to ensure that:the necessary multi-agency as well as internal infrastructure for the drug court is in place – and continually fine-tuned –as the changing environment in which the drug court functions may require; andthe credibility and necessary working relationships of the court are well established and continually enhanced, as needed, to promote the ongoing multi-agency collaboration needed to address policy and operational issues as they occur; Each jurisdiction needs to determine how best to provide the judicial leadership the drug court requires, including the nature of the drug court judicial assignment. A number of options can be considered, such as designating one judge to serve as the overall “drug court administrative judge” for a multi-year period, with other judges assigned for shorter periods to hear the drug court docket, designating one judge to serve in both functions, or combinations of these approaches. transition planning for successor drug court judgesDrug Courts are court programs and it is the courts’ responsibility to sustain them. From the day the judge starts, he/she has to be thinking about who will be their replacement, and when. ? Passing on the drug court judicial assignment introduces complexities in terms of subject matter, management, and skills not associated with other types of judicial assignments. Succession planning for drug court judicial assignments requires attention to policies, processes, interagency relationships, as well as substantive knowledge that should be addressed in a formal transition plan that is implemented long before a successor judge takes over the assignment.POLICY AND OPERATIONAL ISSUESEnsuring a systematic and transparent process for identifying ALL drug court eligible participantsThe early drug courts – which focused primarily on identying eligible participants at the “front end” – e.g., shortly after arrest -- utilized screening mechanisms that reviewed the cases of all drug court eligible arrestees based on articulated eligibility criteria. As programs shifted to a post adjudication and probation model, systematic screening practices gave way to ad hoc referrals from a variety of sources –a prosecutor, probation officer, judge, defense attorney, and others. The result has been that many potentially eligible participants do not necessarily get screened for the drug court and the demographics of the drug court population do not necessarily reflect those of the arrestee population. Drug Courts are public programs which need to be open to all who qualify as long as resources are available to provide the needed services. The judge is in a special leadership position to ensure that the processes for identying drug court eligible participants are transparent and systematic.Issues for the Drug Court Judge:To ensure:A systematic process is in place for screening all potentially drug court eligible defendants as soon as possible after arrest, or probation violation; and All who qualify for the drug court are accepted into the program, tailoring services to their individual needs. tasks for the Drug Court Team:To ensure:That the screening, assessment, and service delivery processes for the drug court are consistent, transparent, and documented;The demographics of the drug court population is consistent with those of the population of arrestees who fall within the target population for the drug court.Constructively engaging the prosecutor/ promoting drug courts as options at the “front-end” as well as the “back end”The early drug courts began with strong prosecutorial support – Janet Reno in Miami, Michael Schrunk in Portland, for example - - and applied the concept at the front end – e.g., shortly after arrest. This approach had many advantages, including prompt entry of the defendant into treatment and development of expedited procedures for handling drug court cases which avoided the time and resources required for traditional case processing (e.g., motions hearings, trials, etc.). Over time, and for a number of reasons unrelated to the merits, the drug court model became increasingly employed at the “back end” – often many months after the traditional adjudication process was finished and the individual was either sentenced to probation or actually already on probation and was violating probation requirements. Although this shift promoted substantial expansion of drug court services to “high risk/high need” participants, it also was accompanied by a reduced prosecutorial role in drug courts, frequently to one of a “gatekeeper”, thereby foregoing the vigorous leadership needed to keep these programs energized and effective and achieving the benefits of “front-end” services. There are many options for implementing this approach, ranging from a specialized track to which drug court eligible participants are assigned shortly after arrest, (the practice introduced by Miami, Portland and other early drug courts) to an early defense petition/motion to the court for acceptance into the drug court program. In the latter approach, it has not been uncommon for the court to accept a participant in the drug court over the prosecutor’s objection if it is entered into the record. In addition to the substantive benefits of this approach, the efficiencies that can result from establishing a separate expedited drug court “track” for cases identified for the drug court shortly after arrest are significant for the prosecutor, the court, the public defender, law enforcement, and others.Issues for the Drug Court Judge: To explore with the prosecutor and defense counsel the feasibility and potential application of referrals to drug court at the front end – e.g., for defendants shortly after arrest – as well as the back end, if appropriate, and assess the current case process to determine how this approach might be implemented. tasks for the Drug Court Team:To determine;How the present caseflow system can be modified to promote drug court referrals at the “front end” – particularly the procedures for initial screening of defendants following arrest and referral to the drug court program.Refining Sentencing Approaches to enhance the impact of drug court-provided mandated treatment and ancillary services As drug courts increasingly target offenders who are “high risk” and “high need”, they may need to include defendants who, by virtue of their current offense and/or criminal history, may necessarily receive a sentence of some period of incarceration. In these situations, the judge should explore the feasibility of “split sentencing” if permitted in their jurisdiction – e.g., imposing an initial period of incarceration followed by a period of probation after release, with a condition of the probation being to participate in the drug court. If split sentencing is feasible – generally only in jurisdictions where the sentence of incarceration is to a local jail and the court retains jurisdiction following release -- the drug court judge should expand existing partnerships to include the correctional institution where drug court-eligible participants are sent to coordinate services provided in the institution with those that can be provided by the drug court once the defendant is released, particularly treatment plans that can begin while defendants are incarcerated and continue seamlessly after their release to the drug court. Issues for the Drug Court Judge:To explore:Split sentencing and/or other options that can promote involvement of defendants in the drug court program following release from incarceration, If feasible developing a relationship with the head of the correctional institution where defendants will be committed to coordinate the institutional services provided for the defendant while incarcerated with those that provided by the drug court once he/she is released. Refining the drug court “process” to include – if permitted by the correctional institution --periodic review hearings at the correctional institution by the judge with defendants while they are incarcerated to provide the judicial oversight and interaction that can establish a foundation for their subsequent participation in the drug court upon their release. tasks for the Drug Court Team:If split sentencing or a similar option is feasible:Expand the initial screening and assessment process for identifying drug court-eligible participants to ensure that defendants who may likely receive a sentence of incarceration but might be otherwise eligible for the drug court program are identified early in the process; andDevelop an integrated treatment plan for each participant, including the potential use of Medication Assisted Treatment (MAT), that can begin prior to the defendant’s commitment to the institution and continue following release in as seamless a manner as possible.Synchronizing the drug court model with Sentencing Reform efforts underwayThe success of the drug court model, with its focus on treatment and holistic services, vs. lengthy sentences of incarceration is fueling major sentencing reform that may, inadvertently, result in removing the “carrot” that has engaged some defendants to participate in drug courts. Those who are involved in the criminal justice system know all too well that reducing sentences for nonviolent drug users – beneficial in many ways -- does not sweep away the problems of drug use and crime that has been the focus of drug courts and which continue unabated. The challenge for drug courts is to re-tool, as necessary, to continue to engage and effectively serve the “high risk/high need” participants who urgently need the supervised treatment and ancillary services only drug courts provide. The leadership of the drug court judge in constructively addressing these developments is crucial.The leadership role and skills of the drug court judge are crucial in actively involving both criminal justice stakeholders and the larger community to assess the implications of sentencing reform proposals on the present drug court structure, modifications that may be needed to continue the drug court’s viability in light of these changes, and alternative collaborative approaches for moving forward. There are a number of options to consider, including, in appropriate situations, developing multi-track programs and those which address the “collateral consequences” of a criminal record. ? Issues for the Drug Court Judge:To engage criminal justice and other community stakeholders in refining the drug court model so that it provides a range of options tailored to the sentencing environment in which it may function.tasks for the Drug Court Team:Working with the drug court judge to develop constructive approaches for “re-tooling” the drug court model in the jurisdiction and making available the necessary resources from their respective agencies to implement it. Volume Two presents a Curriculum for applying the Guiding Principles to practice in the wide range of jurisdictional environments and contexts in which drug courts function.BJA Drug Court Technical Assistance ProjectVOLUME TWO: CURRICULUM/CASE SCENARIOSDRUG COURT JUDICIAL LEADERSHIP INITIATIVE:TO ENHANCE JUSTICE SYSTEM/PUBLIC HEALTH ARTNERSHIPSLearning OBJECTIVES -PRELIMINARY DRAFTNote: Learning objectives answer the question “what should the participants be able to do as a result of the session?” they begin with active verbs [organize, design, produce, discuss, define, develop, distinguish, etc.] not general statements [know, appreciate, understand, etc.]. However, they focus on the “fundamentals” in terms of knowledge, skill, or attitudes that the participants need when they leave the session.After these sessions participants will be able to:1. Explain the judge’s role as leader of the drug court team [discuss the roles of drug court team members, and the importance of a non-adversarial environment and cross-discipline training2. Explain the importance of adherence to the 10 key components and evidence based practices3. Identify administrative policies and procedures essential to the operation of effective and efficient drug court programs4. Within the ethical constraints of your jurisdiction, define the judge’s leadership role as an advocate, educator, and collaborator in all relevant communities5. Discuss the need to be knowledgeable of relevant issues and factors that impact appropriate responses to participant behaviors and participant success6. Clarify the judge’s role in working collaboratively with team members in a non-adversarial setting, while maintaining respected doctrines such as due process, equal protection, judicial independence, and judicial discretion. [case studies being developed/pilot tested] ................
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