Report: America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform
From: THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
From the Introduction:
The first drug court opened in Miami in 1989, offering drug treatment as an alternative to incarceration. Today there are more than 2,000 drug courts and hundreds of other courts labeled as problem-solving. The proliferation of these courts has occurred with limited involvement or even engagement of the criminal defense bar. Some defenders were reluctant to become involved in courts that dramatically altered their roles;
others were not asked to participate. In many cities, the reticence and exclusion continues today. Because these courts raise fundamental concerns about the function of the criminal
justice system, the due process rights of clients, and ethical obligations of counsel, the criminal defense bar must play an active and meaningful role in the discussion of problemsolving
In 2007, the National Association of Criminal Defense Lawyers established a Task Force on Problem-Solving Courts to assess the extent to which these increasingly popular courts impact fundamental rights. Made up of seven experienced criminal defense lawyers from across the country, the Task Force was asked to conduct an extensive inquiry into problem-solving courts, make findings regarding the practices in those courts, and develop recommendations for ensuring that the courts meet constitutional standards of fairness and due process. This report represents the culmination of the Task Force’s efforts. Drawing upon the testimony of well over 100 witnesses at seven hearings, a comprehensive review of existing literature and studies, an Internet questionnaire of practitioners and hours of discussion and debate, this report details the procedures utilized in problem-solving courts, highlights best practices, and makes recommendations for change.
* Treating substance abuse as a public health issue rather than a criminal justice one;
* Opening admission criteria to all those who need, want and request treatment;
* Enforcing greater transparency in admission practices and relying on expert assessments, not merely the judgment of prosecutors;
* Prohibiting the requirement of guilty pleas as the price of admission;
* Urging greater involvement of the defense bar to create programs that preserve the rights of the accused;
* Considering the ethical obligations of defense lawyers to their client even if they choose court-directed treatment; and
* Opening a serious national discussion on decriminalizing low-level drug use.