An Overview of West Virginia’s

Drug Courts

Division of

Probation Services Supreme Court of Appeals of WV

ADULT DRUG COURT

WHAT IS ADULT DRUG COURT

A special court docket designed to achieve a reduction in recidivism and substance abuse

among targeted offenders and to increase the likelihood of successful habilitation through intense judicially supervised treatment,

mandatory random drug testing, community supervision, and use of

appropriate sanctions, incentives, and other rehabilitative services guided by

the 10 key components.

In January 2012, The Adult Drug Courts became part of the Division of Probation Services.

Director of the Division: Michael B. Lacy

Deputy Director for the Drug Courts: Lora J. Maynard

Quality Assurance and Field Support Coordinator: Sean M. Noland

Counsel to the Division: Robert L. McKinney, II

Currently, 28 ADC programs which include 36 courts and serve 49 counties.

WV Division of Probation Services

10 KEY COMPONENTS As identified by the U.S. Department of Justice and codified

in West Virginia Code § 62-15-2(23)

1. Drug Courts integrate alcohol and other drug treatment services with justice system processing.

2. Using a non-adversarial approach, prosecution, and defense counsel promote public safety while protecting participants Due Process Rights.

3. Eligible participants are identified early and promptly placed in the drug court program.

10 KEY COMPONENTS cont…

4. Drug Courts provide access to a continuum of alcohol, drug and related treatment and rehabilitation services.

5. Abstinence is monitored by frequent alcohol and other drug testing.

6. A coordinated strategy governs drug court responses to participants compliance.

7. Ongoing judicial interaction with each drug court participant is essential.

10 KEY COMPONENTS cont….

8. Monitoring and evaluations measure the achievement of program goals and gauge effectiveness.

9. Continuing interdisciplinary education promotes effective drug court planning, implementation, and operations.

10. Forging partnerships among drug courts, public agencies, and community based organizations generates local support and enhances drug court program effectiveness.

Pursuant to statute (West Virginia Code § 62-15-2(9), may include the following individuals (or their designees): The Drug Court Circuit Judge, who shall serve as chair

The Prosecutor

A Public Defender

The Drug Court Probation Officer

A member of the criminal defense bar

The Circuit Clerk

The Day Report Center Director

Representative of law enforcement

One or more substance use treatment providers

Corrections representative

“…and any such other person or persons the chair deems appropriate.” (recommend a Medical Doctor if possible)

The Local Advisory Committee

Work to ensure quality, efficiency, and fairness in planning, implementing, and operating drug courts serving the jurisdiction

Work to ensure the provision of a full continuum of

services for drug court participants Interact with the larger community to inform

and educate about Adult Drug Court

Interact with the larger community to identify and secure community participation and support for Adult Drug Court

Duties of the Local Advisory

Committee

Pursuant to statute (West Virginia Code, § 62-15-2(6)), shall include the following individuals: The Drug Court Judge

The Prosecutor

A Public Defender or member of the criminal defense Bar

A representative from the Day Report Center or community corrections program

A law enforcement officer

The Adult Drug Court Probation Officer

A representative from a circuit court probation office (in practice, this is usually the Chief Probation Officer)

One or more substance use treatment providers

“…and any other person selected by the drug court team.”

The Drug Court Team (commonly referred to as the Treatment Team)

Conduct a staffing prior to each drug court session to discuss and provide updated information to the court regarding drug offenders

Recommend appropriate sanctions or incentives to be applied based on participants’ progress or lack thereof.

Participate in interdisciplinary education as to the values, goals, and operating procedures of both the treatment and justice system components

Review the efficacy of current treatment modalities and recommend and approve changes in treatment as need for change arises or if certain modalities do not have the desired effect. Any changes in treatment must be evidence based, and effectiveness or lack

thereof should be closely monitored by the team.

Duties of the Drug Court Team

Phase I: Stabilization and Begin Intensive Treatment Phase

Phase II: Intensive Treatment Phase

Phase III: Reintegration

Graduation & Aftercare

Overview of Drug Court Phases

Targeted Charges (based upon the following factors):

Offenses typically committed by the substance-using population

Offenses the prosecutor deems admissible from a public safety perspective

Offenses the defense bar deems serious enough to consider drug court as an alternative to traditional case processing

Offenses that carry longer alternative periods of incarceration

Adult Drug courts should seek to serve those with the most severe alcohol and/or substance use disorders

Admissions should be based on whether or not treatment can be offered that is appropriate for the participants’ clinical level of use

Eligible participants are identified early and promptly placed in the drug court program

Eligibility

West Virginia Code, § 62-15-6: an offender is NOT eligible for participation in the drug court program if:

The underlying offense involves a felony crime of violence,

unless there is a specific treatment program available to address the needs of violent offenders;

The underlying offense involves an offense that requires registration as a sex offender pursuant to West Virginia Code § 15-12-1, et seq.

The offender has a prior felony conviction in this state or another state for a felony crime of violence;

The offender has a previous conviction, in this state or another state for an offense that requires registration as a sex offender pursuant to West Virginia Code § 15-12-1, et seq.

Disqualifying factors

Referrals

If you have a client that you would like to be considered for admission to an ADC:

Review the case and make sure your client is not ineligible, either due to the pending offense, or criminal history.

If not ineligible, contact the ADCPO.

NOTE: There is no right to Drug Court. West Virginia Code § 62-15-4(i).

JUVENILE DRUG COURT

Is Juvenile Drug Court the same as

Adult Drug Courts?

No!

It is basically the same concept but the eligibility criteria, practice, treatment, environment and even the case flow is different.

Philosophy of JDC is early intervention not addiction.

Guided by the 16 Strategies

Guiding Principles The Governing Principles of Juvenile Drug Courts (JDC’s) are the 16

Strategies: Strategy 1: Collaborative Planning Strategy 2: Teamwork Strategy 3: Clearly Defined Target Population and Eligibility Criteria Strategy 4: Judicial Involvement and Supervision Strategy 5: Monitoring and Evaluation Strategy 6: Community Partnerships Strategy 7: Comprehensive Treatment Planning Strategy 8: Developmentally Appropriate Services Strategy 9: Gender-Appropriate Services Strategy 10: Cultural Competence Strategy 11: Focus on Strengths Strategy 12: Family Engagement Strategy 13: Educational Linkages Strategy 14: Drug Testing Strategy 15: Goal-Oriented Incentives and Sanctions Strategy 16: Confidentiality

Motivational Philosophy The guiding principles in Juvenile Drug Court are

treatment and accountability.

WV Juvenile Drug Courts are designed and operated consistent with the development and rehabilitative needs of the juveniles (§49-4-703).

The decision to divert a substance abusing juvenile offender in the JDC program is a decision to prioritize the treatment (with accountability) of the offender ahead of punishment of the offender.

This is a change from the general criminal model, which has proven insufficient in addressing substance abusing and dependent offenders.

Existing JDC’s OPERATIONAL:

Wayne County (2007) Logan County (2009)

Mercer County (2009) Hancock/Brooke (2010) Boone/Lincoln (2010)

Monongalia County (2010) Randolph County (2010)

Wood County (2010) Putnam County (2010)

Kanawha (2012) Harrison (2012)

McDowell (2012)

Ohio (2014)

Raleigh (2015)

Eligible youth are referred by a magistrate (as a

juvenile referee), probation officer, judge, school personnel, law enforcement officer, parent, or DHHR for participation in the Juvenile Drug Court program.

NOTE: a juvenile must have committed an

underlying chargeable offense (a basis for a petition) and there must be someone who is willing to file the petition if necessary to be eligible for the JDC.

CASE ASSIGNMENTS

ENTRY LEVELS

Pre-petition Diversion. The JDCPO receives a referral or complaint based upon a chargeable offense without a juvenile petition. Participation is voluntary by the youth and parent/guardian following a dual assessment and determination of eligibility for admission to the Juvenile Drug Court.

Signed, but non-filed petition. The JDCPO receives a signed petition that has not been formally filed and is being held in abeyance pending the youth’s participation in the JDC. Participation is voluntary by the youth and parent/guardian following a dual assessment and determination of eligibility for admission to the Juvenile Drug Court.

Entry Levels Cont’d

Filed petition (Pre-Adjudication). A petition is filed, but it has not proceeded through the court system and/or the Judge makes a referral prior to adjudication. Participation is voluntary by the youth and parent/guardian.

Filed petition (Post-Adjudication). The Judge can make referral to JDC following adjudication, but prior to a disposition. Participation may be voluntary or non-voluntary by the youth and parent/guardian. At completion of JDC, the petition may be dismissed. If the youth refuses the program or is terminated, the youth would return to Court for disposition.

Entry Levels Cont’d

Disposition. After adjudication, the Circuit Court Judge may order the youth to participate in the JDC as a part of formal disposition, typically as a condition of probation. Participation is non-voluntary by youth and parent/guardian. When the youth completes the program, the Judge would discharge the youth from the JDC program and may or may not discharge the youth from regular probation at this point. If the Judge chooses to continue regular probation, aftercare services by the JDCPO could be ordered for a period of up to six months. If the youth fails to complete the JDC program, the youth would return to Circuit Court for modification of the earlier dispositional order. In addition, this entry level would include post-dispositional referrals from a probation officer.

Program Phases Minimum phase lengths for all JDC: Phase I – can be completed in 6 weeks Phase II – can be completed in 12 weeks Phase III – can be completed in 8 weeks Phase IV – can be completed in 2 weeks – Preparation for

Graduation

*The minimum program length is 28 weeks. The average program length is 32 weeks but may vary according to the youth’s success in the program. Program participants must complete each phase in order to graduate the program. **Community Service will be used as a sanction throughout the program, but may also be a required program component as determined by the local JDC program. When used as a program component it should be meaningful for the participant and the community to differentiate from a sanction. ***If a local JDC program wishes to establish phase length standards which exceed the minimum 28 weeks set in this protocol, a written formal request with justification must be submitted to the Deputy Director for Drug Courts for review and approval.

• Juveniles 10-17 years old

• Non-violent misdemeanor or felony offenders or drug/alcohol related status offenses. (Non-violent offense is defined as: an act that does not involve the use of a weapon or firearm; or an act that does not result in serious bodily injury to the victim necessitating medical treatment and may include, but is not limited to, an act of assault or battery). A juvenile with a previous violent offense(s) may be considered

for admission to the juvenile drug court program on a case-by-case basis by the treatment team.

• Youth whose psychosocial assessments demonstrate substance abuse or high risk for substance abuse/dependency. (Note: Youth assessed with an addiction may be more appropriate for in-patient treatment first followed by a possible referral to the JDC program after completion and discharge from the in-patient treatment program).

Target Population

• Youth charged with delivery of controlled substance offenses are not necessarily prohibited from the program; however, the treatment team must closely review the assessment results and the recommendation from the treatment professional to determine the origin of the behavior and whether the program can adequately address the needs of the individual youth. It is strongly recommended these referrals be handled on a case-by-case basis and caution be used in determining the appropriateness of each youth for admission to the program.

• JDC participants who drop-out or terminated are not necessarily prohibited from a second opportunity in the program. A new referral should be made and considered on a case-by-case basis by the Tx team. However, a second opportunity to participate in the JDC is prohibited for a former JDC graduate.

• NO previous adjudications for a sex offense

Target Population Cont’d

Referrals

If you have a client that you would like to be considered for admission to an JDC:

Review the case and make sure your client is not ineligible and appears consistent with the target population.

Consider whether the juvenile has a family member capable of participating in the program.

Contact the JDCPO.

CONFIDENTIALITY

The laws governing the confidentiality of many of the records maintained by Adult Drug Courts are set forth in: Federal Regulations governing the confidentiality of substance and alcohol abuse treatment records (42 C.F.R. Part 2)

The Health Insurance Portability and Accountability Act (HIPAA) regulations (45 CFR Part 160, Part 164, Subparts A and E), while not applicable to Drug Court programs, does apply to treatment providers

Legal Framework of Drug Court

Confidentiality Requirements

The most significant legal authority governing confidentiality in drug courts is set forth in the Federal Regulations at 42 CFR Part 2

These regulations were adopted to protect the confidentiality of Alcohol and Substance Use Disorder Treatment records

Covered information acquired by affected programs is confidential, subject to exceptions set forth in the statute and accompanying regulations

Treatment information is defined as all records and information relating to “the identity, diagnosis, prognosis, or treatment of any patient” in a substance use disorder program

42 CFR Part 2

While information defined as confidential by these regulations may be communicated as needed within the Drug Courts, disclosure outside the Drug Courts are permissible mainly in the following situations:

With the voluntary and informed written consent of the participant

In response to a valid Court Order

In certain exigent situations, such as to medical personnel to the extent necessary to meet a bona fide medical emergency

Permissible Disclosures Under

42 CFR Part 2

Exigent disclosures include:

Disclosures in order to report crimes on the premises or crimes against the Drug Court staff

Disclosures to medical personnel to the extent necessary to meet a bona fide medical emergency

Disclosures must be made when necessary to comply with state child abuse and neglect laws

Permissible Disclosures (Cont’d)

As noted above, where a participant consents, an ADC may disclose confidential information about a participant.

The consent must contain the following: The name of the ADC program;

The name or title of the individual or organization to whom the disclosure will be made;

The participant’s name;

The purpose of the disclosure;

How much & what kind of information will be disclosed;

The signature of the participant;

The date the consent was signed; and,

The date or condition upon which the consent will expire. This date or condition must not be longer than would be reasonably necessary for the consent to serve its purpose.

Consents

An Order permitting the disclosure of confidential information about a participant will be appropriate where a Court has made the following findings:

Where the information to be disclosed is a confidential communication made by a participant to ADC personnel in the course of diagnosis, treatment, or referral for treatment, in order to disclose such information, the Court must find:

The disclosure is necessary to protect against an existing threat of death or serious bodily injury; or

The disclosure is necessary to an investigation or prosecution of an “extremely serious crime,” such as homicide, rape, kidnapping, armed robbery, assault with a deadly weapon, or child abuse or neglect; or

The disclosure is made in connection with litigation or an administrative proceeding in which the participant has offered testimony or other evidence relating to the confidential communication.

Orders

Where the information to be disclosed constitutes patient records for noncriminal purposes, the Court must find, after a procedurally complex and involved process (designed to safeguard confidential documents pending the Court’s ruling):

Other ways of obtaining the information are not available or would not be effective; and

The need for the disclosure and public interest outweigh the potential injury to the patient and the doctor-patient relationship.

Orders, Continued

Where the information to be disclosed constitutes patient records for criminal purposes, the Court must find:

The crime involved is extremely serious; and

The records must be reasonably likely to disclose information of substantial value to the investigation/prosecution; and

Other ways of obtaining the information are not available or would not be effective; and

The need for the disclosure and public interest outweigh the potential injury to the patient and the doctor-patient relationship; and

If law enforcement is seeking the disclosure, then the Participant must have the representation of independent counsel.

Orders, Continued

Seeking an Order

Application

The party seeking the Order must have a legally recognized interest in the disclosure

The application may be filed separately or as part of a pending civil action

The application must use a fictitious name, such as John Doe, to refer to any patient and may not contain or otherwise disclose any patient identifying information unless the patient is the applicant or has given a written consent (meeting the requirements of these regulations) to disclosure or the court has ordered the record of the proceeding sealed from public scrutiny

Seeking an Order, Cont’d

The drug court participant and drug court program must be given:

Adequate notice in a manner which will not disclose patient identifying information to other persons; and

An opportunity to file a written response to the application, or to appear in person, for the limited purpose of providing evidence on the statutory and regulatory criteria for the issuance of the court order.

Seeking an Order, Cont’d

Hearing

Any oral argument, review of evidence, or hearing on the application must be held in the judge’s chambers or in some manner which ensures that patient identifying information is not disclosed to anyone other than a party to the proceeding, the drug court participant, or drug court program, unless the participant requests an open hearing

The proceeding may include an examination by the judge of the patient records referred to in the application.

DUE PROCESS

Termination

Equivalent to Probation Revocation

Requirements:

Written notice of claimed violations (the reasonability of notice may vary depending on the severity of the sanction to be imposed: the more severe the sanction, the more notice should be provided);

Disclosure of the evidence against him or her;

An opportunity to be heard and present evidence;

The right to confront and cross-examine witnesses; and,

A neutral hearing officer (this will usually be the ADC Judge).

Discussion of Right to Counsel

Sanctions By consent of the participant, with consultation of counsel,

sanctions (including incarceration) are imposed by consensus of a non-adversarial, multidisciplinary Treatment Team Process

While participants’ counsel are not typically part of this process, the Treatment Team must include a defense attorney, whose role is to safeguard the interests of the participants, including due process protections

As noted above, all participants consent to this process, with advice of counsel

If incarceration is used as best practices direct (infrequent and of short duration), then this process is unlikely to violate participants’ due process rights

CONTACT INFORMATION

Lora J. Maynard, Deputy Director for Drug Courts, Division of Probation Services, (304) 558-0145 or Lora.Maynard@courtswv.gov

Sean Noland, Drug Court Quality Assurance & Field Support Coordinator, Division of Probation Services, (304) 558-0145 or Sean.Noland@courtswv.gov

Rob McKinney, Counsel, Division of Probation Services, (304) 558-0145 or Robert.McKinney@courtswv.gov