Drug courts look to treat offenders’ behavior and addiction

PART THREE OF A THREE-PART SERIES

Judge F.G. Rockwell III sat in his black robe at the front of courtroom five in Chesterfield Circuit Court on Sept. 16.

“What are you studying right now?” he asked Tyler Addison Beall, who is taking classes at John Tyler Community College.

“Right now is post-impressionism,” Beall said.

“You skipped the Renaissance?” the judge asked. “Post-impressionism. That would be …”

“After impressionism,” Beall said with a smile.

The other defendants in the courtroom laughed.

“Somebody hit him,” Rockwell said jokingly as he added he probably deserved that. “I’m thinking who that would be.”

“Vincent Van Gogh,” Beall said before listing other painters and artists his class was studying.

Beall said he’s also taking drawing and photography classes.

Rockwell asked him if he knew Spike Jonze, a co-founder of a skateboarding company and the director of “Where the Wild Things Are.” Beall said he heard of Jonze and the film. But he said he hadn’t read the book.

“Read it,” Rockwell said. “Then we’ll talk.”

“Is that really an assignment?” Beall asked.

“It’ll take you 30 seconds,” the judge replied.

“If it’s going to take 30 seconds, how are they going to make a movie out of it?” Beall said.

Laughter again.

Their conversation ran more like a son teasing his father than a man guilty of possession of ecstasy standing before a circuit court judge. The only formalities of the Chesterfield/Colonial Heights Adult Drug Court are the setting, the judge’s robe and the defendants’ dress clothes.

Drug courts are a treatment-based alternative to prison time. The courts utilize a teamwork mentality between representatives of the court, probation, treatment and law enforcement. They work to correct defendants’ behavior and treat their addiction to transition repeat offenders from chronic wards of the state to members of the community.

Crack cocaine addictions brought half of the adult and family participants to the state’s drug courts, according to a 2009 study by the Virginia Supreme Court.

‘A revolving door’

The first drug court was founded in Miami in 1989. Since then, jurisdictions have organized more than 2,300 drug courts based on four different models: adult, juvenile, family and DUI.

In Virginia, Roanoke started the state’s first drug court in 1995. It covers the city and county of Roanoke and the city of Salem. Virginia has 15 adult drug courts, eight juvenile drug courts, three family courts and one DUI court.

Chesterfield drug court heard its first case in 2000.

“At the time in our community, we had very few sentencing options,” said Tara Kunkel, the administrator for the Chesterfield court. “The judges were seeing more and more that the legal system was becoming a revolving door.”

Each drug court operates independently and creates its own specific rules. But the guidelines for entering a drug court, punishments for breaking the court’s rules and rewards for finishing the court are similar.

Offenders can enter drug court if they are charged with nonviolent drug possession or property crime offenses if the crime’s motive was to fund the defendant’s addiction. The local commonwealth’s attorney also has to approve the defendant’s participation.

In the Chesterfield drug court, the defendant has to face drug possession or possession with intent to distribute; grand larceny; obtaining drugs by fraud; felony petit larceny; credit card theft, fraud or forgery; or forging and uttering to qualify for the jurisdiction’s drug court.

They have to acknowledge their dependency on drugs or alcohol, and they have to meet qualifications for substance abuse or dependence as defined by the Diagnostic and Statistical Manual of Mental Disorders.

Kunkel said defendants who face violent charges, sexual assaults and large-scale drug distribution are not allowed into the program.

The defendant pleads guilty to his or her charge and signs a plea agreement before entering the program. In Chesterfield, defendants’ felony charges are dropped when they finish drug court. If they fail though, they are sentenced between six months and 10 years of prison time for each charge.

Participants in Chesterfield’s program go through five phases before graduating. In phase one, they come to drug court every week to talk with the judge, begin individual and group treatment and are required to work at least 30 hours a week or enroll full time in school. If a participant can’t find employment, they volunteer at the landfill in Chesterfield County.

“All of our clients start out on house arrest,” Kunkel said.

Everything tapers off from there.

“By the time they’re in phase five, our goal is to have them living and working in the community with little checks on them, proving they can live without the structure,” Kunkel said.

That structure includes sanctions for failed drug tests, missed treatment sessions and court appearances, according to Chesterfield’s adult drug court contract. Punishment for a first offense ranges from three to 10 days in jail. The fourth failed drug test or no show will land a defendant in jail for 10 to 28 days. For the fifth and sixth offense, the participant is at the judge’s discretion. And a seventh offense kicks the defendant out of the program and into prison for the amount of time listed in the plea agreement.

On Sept. 16, Judge Rockwell sent two participants to jail: one for 24 hours, the other for 11 days.

Phase five includes less required treatment, though participants can receive as much as they want, and random drug testing.

On average, defendants finish adult drug court in about a year and six months, according to a 2009 study of drug courts in the state by the Virginia Supreme Court

Redefining courtroom relationships

The drug court model alters the traditional roles of defense counsel, prosecutors and the judge. They work together as a team, along with probation officers, police and treatment providers, to get participants clean.

Representatives from each of those groups meet in Chesterfield before each drug court session.

On Sept. 16, they gathered in a back room of the circuit court at 7:30 a.m. Shelves holding the Code of Virginia in leather-bound volumes surrounded them while they sat at a glossy, wooden table.

Judge Rockwell went through each case file as everyone updated him on each defendant’s status. He tossed the bright yellow folders onto the grayish blue carpet beside him when they finished a file. They smacked loudly as each file hit the folders already lying on the floor.

They talked about everything that affected their participants: jobs, family deaths, sanctions, housing, motivation and character qualities.

“The program consumes their lives if it’s done correctly,” said Larry Hogan, deputy commonwealth’s attorney for Chesterfield County.

The staff meeting prepares the judge and guides his interaction with drug court defendants during their chat later that morning.

During the conversations on Sept. 16, Rockwell asked Justin William Jarrell about a surgery his mother underwent to remove a tumor.

“I’m beginning to accept that there’s not anything I can do for her,” Jarrell said.

“That’s life, you can’t change some things,” Rockwell said. “You wish you can, but you can’t.”

He asked David Benjamin Felker about his brother. Felker told the judge he was worried about him.

“I checked Twitter,” Felker said. “And he’s in Vegas.”

“How’s he getting money?” the judge asked.

“Credit cards,” Felker responded. “He’s basically living off his credit cards.”

“You’ve got all these people here,” Rockwell said, referring to the treatment providers and other drug court participants. “Talk about it.”

The judge asked Lisa Marie Lafland about a scare she had after someone left a bag of marijuana in her car. Lafland is in phase four of the program and hopes move to phase five by next month.

“My first reaction was my life could have been over,” she said. “No state police officer is going to believe that (story) from someone who’s got four priors.”

Rockwell asked what she did with the drugs.

Lafland said she threw them out of the car.

“You should judge from that how much you’ve grown,” Rockwell said. “I’m glad you survived that Lisa.”

‘Dangerous implications’

A Government Accountability Office study of drug courts throughout the country raised some concerns about the courts’ effectiveness.

Drug courts can be “an effective means to deal with some offenders,” according to the report; but the review shed “little light on the specific aspects of these programs that are linked to positive recidivism outcomes.” The study also found that evidence of participant’s relapse to substance abuse is “limited and mixed.”

Mae C. Quinn, a professor of law and coordinator of the Civil Justice Clinic at Washington University in St. Louis, has written extensively about drug courts, citing other concerns in her articles.

Quinn said defense attorneys’ new responsibilities, harsher sentences for failing drug court, the proceeding’s informality and the lack of consistency between drug court models all raise questions about the strategies that make drug courts effective and challenge the courts’ legality.

The courts put defense attorneys in a unique position.

“It creates a new role without a change in the legal standards for lawyers,” she said.

Quinn said that defense attorneys have a duty to “zealously represent their client” and serve as advocates for the defendant, but the drug court model asks them to be a team player instead.

Defense attorneys who participate in drug courts now have to wrestle with new issues of representation. For instance, is it the defense attorneys’ duty to prove that a client needs treatment? Should they advise a client to downplay mental health problems or drug addictions that would screen them out of drug court? Should they advise a client against drug court if they think the client will fail out and face a longer prison sentence than the defendant would receive from a traditional court?

Quinn said drug courts can hinder a defendants’ right to legal representation when facing charges. The U.S. Supreme Court upheld that right in Gideon v. Wainwright.

“Because there’s this notion that you’re supposed to be a team player, the lawyer is no longer the kind of lawyer envisioned in Gideon,” she said.

Some of those conversations happen during staffing, like the one that the Chesterfield drug court held before the Sept. 16 adult drug court. But in Chesterfield, a representative from the defense bar attends all staffings, Kunkel said. That’s not the case in every drug court.

“I think these courts, the way they operate may present the lawyer and the client with a potentially difficult situation,” she said.

Quinn said that some clients don’t realize they will face a longer sentence if they try the program and fail, instead of going through a traditional court. The incentive to avoid prison time may influence them, also.

“The hammer is a lot heavier than they realize,” she said.

Quinn was one of The Bronx Defenders, which represented clients in the Bronx Treatment Court. She said that if defendants pleaded guilty in the jurisdiction’s traditional court, they would receive one to three years. But if the defendant pleaded into drug court, they could face a minimum of two years and as much as six years if they didn’t finish the program, she said. Studies have shown that half of participants fail out, leaving a group of people doing more time than they would have otherwise, she said.

About 46 percent of adult drug court participants in Virginia fail the program, according to a 2009 study by the Virginia Supreme Court.

She also said the informal proceedings are a stark contrast to traditional court models.

“It becomes this therapy session in public,” she said. “We are changing the model and deciding, without changing the law, to engage in these activities.”

The paternalism involved in drug court models also troubles her, she said.

“It’s one thing to offer treatment in lieu of prosecution,” she said. “But to use the criminal justice system to get involved in peoples’ lives and stay involved …”

Quinn said that every drug court model is different, but added someone could say that about traditional courts as well.

“Every state is permitted to come up with their own system,” she said.

But for the most part, those systems are statutory, meaning defense counsel and prosecutors can point to specific legal codes that dictate court proceedings, she said. Not all drug courts are statutory, and the lack of consistency between courts’ rules makes it hard to determine their best practices.

“And then to say from the top, these are working, we should continue creating these,” Quinn said. “How can we say that when there are thousands of different types?”

Quinn stressed that she is not against innovation.

“I’m against empty innovation,” she said. “Why don’t we set up demo courts in each state to find out what works best?”

The question of drug treatment should be more of a social services question than a legal one, she added.

“Just because a defendant agrees to enter into these courts, I don’t think it should mean the Constitution goes out the window,” she said.

Drug courts should face more accountability, and studies should look more closely at defendants who don’t finish the program.

“If we find a model that works in terms of solving problems and satisfying legal standards, from there we can take them to scale,” Quinn said. “When success is so subjectively measured, (not) by legal norms, by social norms, it has potentially dangerous implications.”

‘The best thing …’

But drug court advocates and participants insist the programs have a positive impact and focus on the successes.

“At some point, you have to decide if we’re going to pay tens of thousands of dollars locking someone up, or are we going to address their addiction,” Hogan said.

Lafland, the phase four participant, said the Chesterfield drug court saved her life.

She landed in drug court with a possession with intent to distribute charge.

Kunkel said that she was the first possession with intent to distribute case that Hogan allowed into drug court. The prosecutor screened Lafland more intensively because of the charge.

“Drug court gave me my son,” she said. “Drug court gave me the tools to fight for custody of my son; it gave me the foundation.”

She got her 7-year-old back in February. Her parents had custody of him for the last three years.

“We just hang out and play board games and stuff, and it’s amazing,” she said.

Lafland now volunteers in the office at her son’s elementary school.

“Before I had custody, when I was using, there was no routine,” she said. “There was no foundation; there was no stability.”

She spent three of the last six years in prison and used drugs while on probation.

Lafland entered drug court in 2007 when her parents, who had custody of her son, stopped answering her letters and phone calls. They had given up on her, she said. She knew then that she had to kick her addiction.

Drug court taught her accountability, stability and how to be a productive mother.

“Drug court is really an in-your-face program,” she said. “It has been a struggle. All the really hard things I had to deal with in the program were the most beneficial.

“It’s the best thing that ever happened to me.”