Tuesday, January 31, 2012

Termination from Drug Court: What Process is Due?

The defendant in People v. Peck, 2011 NY Slip Op 09376, was a drug court participant whose contract included a provision that he was not to be arrested while enrolled in the program.  He entered drug court with the agreement that his class D felony would be reduced to a misdemeanor with the sentence of a conditional discharge upon successful completion of the program.  Failure to complete the program would result in a sentence of 1-3 years in state prison.  Nearly one year later, while still participating in the program, Mr. Peck was arrested and charged with two misdemeanor offenses.  He denied any involvement in the crimes for which he was charged.  Without conducting any sort of inquiry into the legitimacy of the arrest, the acting county court judge sentenced Peck to state prison.  Relying on precedent established in People v. Fiammegta, 14 NY3d 90,  the Fourth Department ruled that, “the court erred in failing to ‘carry out an inquiry of sufficient depth to satisfy itself that there was a legitimate basis’ for defendant’s termination from the drug treatment court program.”  The court also cited People v. Outley, 80 NY2d at 713, indicating that before removing a defendant from drug court, it must be determined whether the new arrest is “without foundation.”

Peck’s drug court contract and participation pre-dated the enactment of article 216.  As a result, the limited due process requirements of Fiammegta and Outley applied.  However, article 216 requires a higher level of due process when a court considers whether a defendant violated a condition of his or her release under the judicial diversion program.  In such case the statutute provides for a “summary hearing consistent with due process and sufficient to satisfy the court that the defendant has in fact violated the condition. (CPL § 216.05(9)(b)).

One might argue that this higher standard should apply, not only to article 216 cases, but to all DTAP and non-judicial diversion drug court cases, relying upon the legislative intent expressed in article 216 that a higher level of judicial inquiry is required for determining violation of program conditions in all treatment court types of cases.  

Although not mentioned in the decision, it should be noted that both charges resulting from this defendant’s arrest while he was a participant in drug court were subsequently dismissed.  They were, as Peck had tried to explain to the Judge, simply unfounded.  Sadly, Peck had already served out his prison term.  The only recourse left was for the Appellate Division to remit the case to county court to determine whether the defendant should be allowed to withdraw his plea to a felony and plead guilty to a misdemeanor.

One further lesson might be extracted from Peck.  An arrest, of course, is nothing more than an accusation.  Anyone can be arrested, sometimes without any cause whatsoever.  It is preposterous that a defendant whould be removed from much needed treatment, merely because of an arrest.   Such a condition has no place in a treatment court contract. Counsel should object to any contract that contains such a provision.  Instead, counsel should request that the contract be amdended to include the same language that is suggested in CPL § 216.05(5) -  “refrain from engaging in criminal behavior”.  

Wednesday, January 18, 2012

The First Department Strengthens the Presumption in Favor of Resentencing in Class B Felony Drug Cases

A motion for resentencing made pursuant to CPL § 440.46 shall be granted unless “substantial justice” dictates otherwise (see Section 23 of Chapter 738 of the Laws of 2004).  As such, there is a strong presumption in favor of resentencing.  With their recent decision in People v. Cephas, 90 AD3d 557, the First Department built upon their decision in People v. Milton and reinforced this presumption.  In Milton, the court ruled that failure to complete a drug treatment program was not a sufficient reason to deny a resentencing motion, citing to the 2009 DLRA’s purpose of ameliorating harsh sentences.  The court’s decision in Cephas supports the notion that a motion for resentencing should not be denied based only on the defendant’s failures or bad acts which occurred before the offense for which resentencing is sought was ever committed. 

The county court judge denied the defendant’s motion for resentencing citing his long criminal history and the fact that he had relapsed into drugs and crime despite completing substance abuse programs during prior incarcerations.  In a unanimous reversal of the lower court’s decision, the First Department pointed to the defendant’s achievements following his B felony drug conviction including the completion of substance abuse programs, favorable evaluations from corrections officials, and his acceptance into a two-year residential treatment program indicating that these factors outweighed the defendant’s criminal history.  This decision reinforces the argument that the granting of resentencing for B felony offenders serving indeterminate sentences should be the norm, not the exception.  It should prove helpful to attorneys filing § 440.46 motions for clients with extensive criminal histories. 

Additional court decisions on the issue of “substantial justice” in CPL § 440.46 resentencing cases can be found on our website at: http://www.communityalternatives.org/publications/substantialJustice.html

Wednesday, January 4, 2012

Treatment Court Judges Should Embrace the Use of Medically Assisted Treatment (MAT) in their Courts

In New York City in 2010, nearly one-quarter, or 21.8% of defendants admitted to treatment court identified heroin (an opiate) as their drug of choice.  For the rest of New York, that number is only slightly lower at 17.9%.  The good news for these individuals is that there are medications that have been proven to be very effective at treating opioid addiction.  The bad news is that many treatment court judges refuse to utilize this proven means of treatment, and even go so far as to deny treatment court admission to  defendants who are currently being treated with one of these medications.  The Legal Action Center recently released an article titled, “Legality of Denying Access to Medication Assisted Treatmentin the Criminal Justice System.”  The article goes beyond failure to use medication assisted treatment (MAT) in treatment court, indicating that MAT should be available to individuals at all stages of the criminal justice system, including prison.  The Legal Action Center posits that to deny opiate-addicted individuals MAT violates their 8th Amendment rights (prohibiting cruel and unusual punishment) and their 14th Amendment rights (guaranteeing due process).  While these legal arguments may have to be utilized in the long-term to compel criminal justice actors to use MAT, our hope is that the failure to use it in treatment court can be reversed in the short-term by educating judges as to the efficacy of these medications, how they work, and how the benefits of MAT outweigh the risks. 

The two medications commonly administered to treat those suffering from an opioid addiction are methadone and buprenorphine (often sold under the trade names Subutex and Suboxone).  These medications normalize brain chemistry, block the euphoric effects of opioids, and relieve physiological cravings. The use of these medications has been studied extensively, and over 300 published studies confirm MAT is both safe and clinically effective for opioid dependence.  Using MAT to safely and effectively treat heroin addiction not only reduces drug arrests and crimes related to heroin abuse, but also reduces the spread of diseases and viruses such as HIV, which are often acquired through the use of shared needles. 

                Not surprisingly, given its proven effectiveness, the National Association of Drug Court Professionals has strongly recommended the use of MAT in drug courts.  California has gone as far as to pass a law prohibiting judges from banning opioid replacement therapy.  Notably, this law was passed after a drug court participant died of a heroin overdose because the judge ordered him to stop taking methadone.  This tragedy highlights how dangerous it can be to remove individuals from MAT.  Despite this danger, several judges routinely require defendants to detoxify from methadone or buprenorphine treatment as a condition of receiving an alternative to incarceration such as treatment court, even if doing so goes against the advice of a treating physician.  This course of action leaves defendants destined to fail: one study found that 82% of patients who had left methadone treatment relapsed to heroin addiction within 12 months.[1]
                Treatment court judges who are opposed to MAT commonly express the belief that this form of treatment merely substitutes one addiction with another.  Indeed, an Albany County drug court judge stated that he would not allow drug court participants to receive MAT because he “believes in recovery.”  Similarly, other judges believe that being addicted to methadone or buprenorphine is “like” being addicted to heroin and that any addiction is unacceptable.  Implicit in these beliefs is the notion that addiction is a “moral failing” rather than a medical problem amenable to medical treatment.  These beliefs also ignore the enormous difference between an active heroin addiction and the medical use of methadone or buprenorphine.  Heroin is remarkably different from both methadone and buprenorphine: while heroin induces intense euphoric effects, methadone and buprenorphine have only moderate effects that quickly disappear as the individual develops a tolerance.  MAT is not used to “get high,” but instead to treat withdrawal symptoms and relieve cravings. 

                To be sure, MAT does not “cure” an addiction to heroin.  Rather, it is a “corrective approach,” or a tool to help a person manage the incredibly intense symptoms and cravings associated with withdrawing from heroin. Using medication as a corrective approach has long been accepted in the treatment of other medical and mental health problems, and there is no legitimate reason that MAT should be considered differently.  In fact, long-term methadone maintenance is, “a medically safe, nontoxic treatment with minor, mostly transitory side effects, found mainly during the induction phase of treatment.”1  As such, it appears that the only potential downside of MAT is the fear that individuals prescribed methadone or buprenorphine will distribute them to others in the community, a practice the research calls “diversion.”  Judges however should be aware that primary addiction to these medications is rare since they do not produce the sharp euphoria that heroin does.  Thus, the “diverted” medication is not be used to “achieve a high,” but instead to treat the withdrawal symptoms of other individuals addicted to heroin.  In other words – even when diverted, the MAT medications are being taken for their originally prescribed purpose. Naturally, greater acceptance and availability of MAT treatment would diminish diversion, and allow those who need MAT to obtain it in a safe and controlled environment under the supervision of treatment professionals.   

                In sum, the use of methadone or buprenorphine in conjunction with traditional substance abuse treatment has proven to be the most effective method of treating opioid addicted individuals.  Treatment court judges interested in reducing crime, increasing public safety and promoting healthier communities should embrace MAT as a part their treatment programs.  For more information about MAT and the legality of denying MAT to individuals in the criminal justice system, I encourage you to read the two articles linked to below.

(Herman Joseph, Ph.D., Sharon Stancliff, M.D., and John Langrod, Ph.D.)

[1] Herman Joseph, Ph.D. et al: Methadone Maintenance Treatment (MMT): A Review of Historical and Clinical Issues.