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Drug Courts – A Viable Alternative to Criminal Adjudication and Incarceration?

June 24th, 2014 · No Comments

Drug courts are specialized, court-administered programs designed to provide treatment options for addicted offenders in the criminal justice system.  There are over 2800 drug courts operating in all 50 states and U.S. territories; more than half serve adults with substance addiction and dependency. Other drug courts treat juvenile, veteran, and tribal offenders (as well as other targeted populations), but for the purpose of this article we will focus on adult offenders.

The first drug court was established in 1989 in Miami-Dade County, Florida.  Courts there and elsewhere determined that the era’s popular “war on drugs” policies were failing to impact the number and cost of drug-related crimes.  The focus of law enforcement to reduce drug use and distribution by escalating arrest and incarceration rates slowly shifted to reducing the demand for drugs by offering court-based treatment options for addicted offenders.   The drug court movement supports diversion of these offenders into treatment programs designed to eliminate their chemical dependency, thereby reducing the demand and incidence of drug-related offenses.

Across the country, drug courts are administered by local courts with jurisdiction over criminal matters.  They are not actual “courts” in the traditional sense but diversion programs offered within the court system as an alternative to criminal adjudication.  The staff often includes a multidisciplinary team of legal professionals, social service and treatment providers operating under the direction and oversight of a specially-trained judge.  To see the type of professionals who staff the Benton County, Oregon Adult Drug Treatment Court, click here.

Drug court programs vary by duration, eligibility criteria, treatment services, supervision and monitoring standards, and program compliance.  In terms of duration, drug court programs can range from six months to two years, depending on location and resources available.  For example, in Coconino County, Arizona, the program lasts twelve months and offers standard drug court services: substance abuse evaluation and treatment, individual counseling, recovery support groups, and routine and random urinalysis tests in addition to judicial monitoring.  Participants in drug courts must successfully  complete the entire program and remain drug and arrest-free for a specified period of time, typically established by the supervising court or a governing state authority.

Eligibility criteria is also set by state authority (the legislature or an oversight agency), or by  local court administration.  In Miami-Dade County, the site of the first drug court, participation is governed by statute.  Only certain types of offenders are targeted for inclusion; this is true for all drug court programs.  Generally speaking, defendants must be charged with a non-violent, drug-related offense, and test positive for drugs or have an established history of substance abuse at the time of arrest.

There are two tracks for enrollment in drug court: pre-trial diversion and post-plea participation. With pre-trial diversion or deferred prosecution, as it is called in some jurisdictions, an offender who meets the eligibility criteria can be diverted into drug court before entering a plea.  Upon successful completion of the program, criminal charges will be dismissed.   In a post-plea arrangement, the offender must plead guilty to the criminal charges, but sentencing will be deferred or suspended pending completion of the program. Successful completion will close the case without imposition of a sentence or term of probation, or expunge the record altogether.  To see an example of enrollment in a post-plea drug court program, click here to read about the Sacramento County Drug Court.

What if the offender does not successfully complete the treatment program?  In most cases, enrollment is terminated and the defendant is returned to court custody to face the criminal charges that were deferred or suspended.   However, depending upon the nature of noncompliance with the drug court rules, the offender may be allowed to stay in the program but face other sanctions imposed by the supervising judge or clinical staff.  For example, if an offender refuses to submit to a drug screen or misses an appointment, he or she might be subject to more frequent or random test screenings.  Alternatively, if an offender relapses and tests positive after testing clean on multiple screenings, he or she may be ordered to attend additional treatment or counseling sessions.  The supervising judge may require enhanced status hearings to more closely monitor the individual’s progress, or direct the staff to reevaluate treatment levels.  Click here to see examples of sanctions imposed on noncompliant drug court participants in the Douglas County, Nebraska Drug Court.  There are progressive sanctions that can be imposed before program participation is revoked.

Drug courts offer addicted offenders an opportunity to receive treatment rather than incarceration.  They receive individualized clinical evaluation, care and counseling, and their progress is monitored via status hearings with judges and treatment staff.  Upon successful completion of drug court, participants have a higher addiction recovery rate than offenders processed through the criminal justice system, and are less likely to re-offend than their adjudicated counterparts, according to multiple legal and social science studies.  To find the drug courts in your area on CourtReference, click on your state, select Self Help and Legal Research from the Resource Category pull-down menu, and scan the listings for drug or treatment courts.

 

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How to Complain About Your Lawyer

May 31st, 2014 · No Comments

This blog has discussed many ways to find a lawyer, from how to decide whether or not you really need a lawyer to evaluating a prospective lawyer by using online resources and checking disciplinary records. In between, we covered ways to find free legal help here and here; lawyer referral services here, here, and here; using lawyers for limited services; even finding legal help during a natural disaster.

After using all these resources – or after getting a recommendation from a friend - you’ve found a lawyer to take your case. So far, so good. But what happens if your lawyer charges a higher fee than you think is warranted, or didn’t do all the work you expected?

Just as bar associations and state agencies can help you find a lawyer, they can help to resolve disputes with your lawyer too. The process is generally called “filing a grievance” and it can be done online in many places.

For serious complaints about your lawyer’s performance, most states have a disciplinary procedure, and in most states it is handled by the highest court in that state. For example, in Pennsylvania it’s the Disciplinary Board of the Supreme Court of Pennsylvania. If you were looking for an attorney and wanted to check his or her disciplinary records, you might have already been to this website. Since this Board handles attorney discipline, you would also go to this website to file a complaint; it even has handy instructions and a complaint form.

Simple disagreement about the amount of a lawyer’s fee are more often handled by the local bar association. Still in Pennsylvania, many county bar associations have a committee to mediate fee disputes, such as those in Dauphin, Lycoming, and Philadelphia Counties. Since more serious ethical and conduct complaints are handled by the state Disciplinary Board, many bar associations’ fee dispute page will direct you to the Disciplinary Board for those issues; see examples from Erie and Montgomery Counties.

Although Pennsylvania’s system is typical, it is by no means universal. In New York, grievances about conduct are handled by regional committees based in Departments of the Appellate Division (New York’s second-highest court), while fee disputes are handled by local offices in each judicial district that are part of the Statewide Fee Dispute Resolution Program.

Texas has a statewide grievance program for conduct issues, handled by the State Bar. Fee disputes are handled by local bar associations or dispute resolution centers; the State Bar has a directory of those agencies, as well as helpful suggestions for resolving your dispute. The Texas State Bar also has a Client-Attorney Assistance Program to help you determine the proper course of action, and even a set of instructions to follow if your lawyer dies, disappears, or becomes disabled.

These are just some of the ways to complain about your lawyer that can be found in CourtReference’s “Legal Aid and Lawyer Referral” category of online resources. They are in that category – along with disciplinary records and all things lawyer-related – so all your questions about lawyers in your state are in one place.

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Adult Guardianship and Conservatorship

May 20th, 2014 · No Comments

We know from demographic studies that the senior population in the United States (age 65+) is anticipated to swell to 71.5 million members by the year 2030.   As this segment of the population grows, so will the need for appointment of conservators and guardians for incapacitated older adults.  When a person is deemed incapable of managing his or her own personal or financial affairs, a court will appoint a conservator or guardian to take control of those decisions.  The scope of responsibility for a conservator or guardian may be limited to financial matters, or may include other aspects of the protected person’s life-health care, shelter, food and security.  For the purpose of this posting, I would like to focus on adults lacking the capacity to handle their own personal and/or financial business. The relationship and duties of a conservator/guardian to a protected older adult will vary from jurisdiction to jurisdiction, but they are governed exclusively by state law.

Each state has an established judicial process to create conservatorships and guardianships; the roles are often distinguished by the degree of competency or the type of need demonstrated by the individual to be protected.  Generally speaking, a conservatorship is created when a court grants one person or entity the authority to make financial decisions for another-to manage and protect the assets and property of the incapacitated adult.  A guardianship is created when a court grants one person or entity the responsibility to manage the daily affairs of the incapacitated adult-including all aspects of health and personal care.   State courts may use these terms interchangeably, but the corresponding duties by law are very specific as to scope, duration, accountability and revocability.  For example, find information about guardianships and conservatorships for incapacitated adults in Virginia here.

How are these guardianships/conservatorships initiated?  What safeguards are in place to protect this vulnerable segment of the population?

1) Typically, a petition is submitted to the appropriate court (likely a probate court) in the jurisdiction where the senior resides.  The petition should include evidence supporting the contention that the individual does not possess the mental or physical capacity to make life decisions (e.g., medical affidavits, sworn statements from caretakers or family members). The petition should also identify the person or entity to be appointed guardian (often a relative, health care facility or nursing home administrator, or other interested party).  Click here to see forms to start a guardianship proceeding in California.

2) The court then contacts the allegedly incapacitated person, his or her family, and any other individuals specifically directed by state statute.  The person may have an attorney, and in some states the probate court may offer or appoint counsel.  An investigator may be assigned to gather evidence regarding the individual’s alleged incapacity or disability, or the court can appoint a guardian ad litem to represent the senior’s interests.  The guardian ad litem can advise the person of his or her rights, collect supporting evidence, and make recommendations on behalf of the senior.  Evidence for both parties may include medical and mental health history, community and law enforcement records, and family, friend, neighbor or caretaker testimony.  Click here to view information about the Mendocino County, California probate conservatorship investigation program.

3) If the guardianship is uncontested, the hearing should be brief.  If contested, the judge may request additional evidence and testimony before declaring a finding of competency.  If contested because of the selection of a particular guardian, the judge may order additional hearings or a trial to determine the suitability of the original appointment, or select another candidate.  Usually,  the court prefers the appointment of a family member if available and willing, assuming that no obvious conflict of interest appears.  However, the judge has wide latitude to appoint anyone that he or she deems appropriate to fulfill the duties of conservator or guardian.

4) If the court finds that it is necessary to protect an incapacitated adult, the judge will determine what type of appointment to make.  It may be a limited guardianship or conservatorship, granting decision-making authority over selected areas that the senior can no longer personally manage. Alternatively, the judge can assign a full guardianship over all personal affairs (financial, medical, social, residential, etc.).   The court may also grant an “interim” or “emergency” appointment if the person appears at risk of immediate harm or seems incapable of making life-sustaining decisions.  In that scenario, the guardian or conservator may hold a temporary assignment until a full hearing is scheduled to determine the senior’s competency.

5) ) Once an appointment is made, what safeguards are in place to ensure that the conservator or guardian is executing his or her
duties responsibly and ethically? In most jurisdictions, the conservator or guardian must post a surety bond and submit to an annual review of all records, receipts and accounting ledgers.  If the judge is not satisfied with the documentation, reporting or submission timeline, or overall performance of the guardian or conservator, the court can sanction or remove the guardian for malfeasance.  Also, if the guardianship is no longer necessary, the court can restore the rights to the formerly incapacitated adult upon a showing of competency.  disease, or other forms of dementia) or by physical disability.

As our population ages, we must make guardianship/conservatorship monitoring a priority, not only through the courts but also through other state agency and community channels.  There are prominent national organizations that can provide additional legal information and resources as well:   the American Bar Association; the National Association of Attorneys General; the American Association of Retired Persons, and the National Guardianship Network.  CourtReference can help you find your local probate court by providing contact information for every county in every state, with links to the clerk’s website where available. CourtReference also has additional online resources in the Self Help and Legal Research category; look for links that mention Conservatorship or Guardianship.

 

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