Superior Court Drug Intervention Program ( SCDIP ) Overview for Defense Attorneys

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1 Superior Court Drug Intervention Program ( SCDIP ) Overview for Defense Attorneys By Sloan Johnston, PDS Staff Attorney Mobile: ; sjohnston@pdsdc.org What is Drug Court? SCDIP is a problem-solving court that oversees sanction-and-incentive based treatment for people with substance abuse disorders requiring at least intensive outpatient treatment ( IOP ). Licensed clinicians from D.C. s Pretrial Services Agency ( PSA ) supervise SCDIP participants and oversee the provision of treatment services, which may include inpatient treatment readiness programming at the Reentry & Sanction Center (28 days for men; 42 days for women), inpatient detox (5 7 days), residential treatment (for periods of 30, 60 or 90 days), group therapy sessions, individual and group grief/trauma counseling sessions, and referrals for mental health services, transitional housing, employment services, and mentoring programs. While PSA does not administer medication-assisted therapies such as suboxone or methadone directly, individuals who receive such services are eligible to participate in SCDIP. 1 Legal Benefits & Eligibility Requirements The legal benefits to a client from participating in drug court vary depending on 1) the type of case (misdemeanor or felony), and 2) whether the matter is certified to SCDIP pre- or postadjudication. Similarly, the eligibility requirements governing a client s entry into SCDIP vary according to the nature of the charges and the posture of the case. Misdemeanor (Diversion): Many non-violent misdemeanor offenses are eligible for diversion, with the U.S. Attorney s Office for the District of Columbia ( USAO ) agreeing to nolle prosequi charges upon successful completion of the program. o The USAO determines eligibility for diversion based on a number of factors, including the client s criminal history. See Ex. A (USAO Misdemeanor Diversion Information Sheet); Ex. B (SCDIP Misdemeanor Eligibility Criteria). Misdemeanor (Post-Adjudication): A client deemed ineligible for diversion by the USAO can still enter SCDIP after entering a guilty plea before his calendar judge. Upon successful completion of SCDIP, the Drug Court Judge will sentence client, giving favorable consideration for program completion. 1 D.C. residents who are interested in enrolling in medication-assisted therapy should contact D.C. s Addiction Prevention and Recovery Administration ( APRA ) for a referral to a community provider. For more information, clients should go to APRA s Assessment & Referral Center at 70 N Street, NE, or call (202)

2 Felony with Amended Sentencing Agreement ( ASA ): Client pleads guilty to a felony offense pursuant to an ASA, which provides that upon successful completion of SCDIP, the felony plea will be vacated and judgment entered on a lesser-included misdemeanor offense. The Drug Court Judge will sentence client on the misdemeanor count. o The USAO determines eligibility for an ASA based on the client s criminal history. See Ex. C (2014 USAO Memorandum re: Proposed Protocols for Amended Sentencing Agreements in Drug Court). o Do not assume your client will qualify for an ASA! Under the USAO s protocols, ASAs are not available to clients who, among other things, (1) are currently charged with a PCP-related offense, (2) have a prior conviction for a crime of violence, (3) has been convicted of/on papers for a felony and/or more than 2 misdemeanors in the past 10 years, (4) have more than 1 pending felony case. o Begin by asking the assigned prosecutor whether client is eligible for an ASA; if the answer is yes, you should make a record before the calendar judge that client is entering SCDIP pursuant to an ASA. Felony without ASA: Felony cases where client is not eligible for an ASA should be certified to SCDIP post-adjudication, i.e., after client enters a guilty plea before his calendar judge. o The USAO determines which felony cases are eligible for SCDIP based on a number of factors, including the client s criminal history. See Ex. D (SCDIP Felony Eligibility Criteria). o Upon client s graduation from SCDIP, the Drug Court Judge will impose sentence, giving favorable consideration for program completion. Notwithstanding the applicable sentencing guidelines, the Drug Court Judge generally imposes probation to be supervised by CSOSA s STAR-HIDTA unit, with the possibility of early termination at the CSO s recommendation. o If client is discharged from SCDIP before completion, his case will be certified back to the calendar judge for sentencing. o Client needs to understand he will be left with a felony conviction on his permanent record (unless he is eligible for & receives the benefit of the Youth Rehabilitation Act). 2

3 The Admissions Process Admissions to SCDIP take place on Tuesday and Thursday of each week. Clients should be instructed to check in with the court clerk of Courtroom 213 by 9:50 a.m. Starting promptly at 10 a.m., a PSA representative conducts a program orientation in one of Courtroom 213 s witness rooms, providing an overview of the program s rules and requirements, and advising each client of his treatment recommendation as determined by the Addiction Severity Index ( ASI ). 2 Clients who arrive after 10 a.m. will have to wait for their case to be called (usually at the end of the calendar) to set a new admission date. Clients should be aware that the entire admission process can take as long as 3-4 hours, depending on the length of the calendar and the number of people being admitted. Before being formally admitted to SCDIP, clients must review and sign the SCDIP contract. See Ex. E (SCDIP Contract). A client who has reservations about signing the contract and/or entering SCDIP can either: (1) decline admission and request to have his case certified back to his calendar judge, or (2) ask to continue his admission so he can consult with his calendar attorney. The Drug Court Defense Attorney meets briefly with clients to answer questions about the program, and to provide a laminated Information Card with important phone numbers, lab hours, testing tips. See Ex. F (Copy of Double-sided Information Card). Following brief introductory remarks from the Drug Court Judge, clients must (1) report to C-301 to update their release orders, (2) report to C-220 to submit a placement test and receive their color for random testing, and (3) report to the 9 th Floor of 633 Indiana Ave., NW, to meet their new PSO. Generally, it is not necessary for a calendar attorney to be present for his or her client s admission to SCDIP. However, if a calendar attorney anticipates difficulty with the admission process such as when a client has expressed uncertainty or reluctance about entering treatment it is helpful if the calendar attorney can be available around 11:00 a.m. to address any concerns that may arise. If the calendar attorney is unavailable, he is encouraged to communicate any pertinent information to the Drug Court Defense Attorney prior to the client s admission date. Drug Court Operations As of July 2015, Drug Court generally is in session from 10 a.m. to 12:30 p.m., Monday through Friday, in Courtroom 213. Judge Gregory Jackson currently presides over Drug Court, and AUSA Terry Keeney is the Drug Court Prosecutor. A Staff Attorney with the Public Defender Service acts as the designated Drug Court Defense Attorney. Starting at 9:15 a.m., the Drug Court Judge, prosecutor, defense attorney, chemist, and PSA officers meet in the jury room behind Courtroom 213 to discuss cases on that day s calendar. The court clerk begins calling the calendar at approximately 10 a.m., and court continues until all cases on the calendar have been heard. Barring emergencies, Drug Court generally does not operate in the afternoon. 2 The ASI is a structured interview lasting approximately 45 to 60 minutes. To be considered current, the ASI must have been conducted less than 6 months prior to client s admission to SCDIP. 3

4 Potential Barriers to Entering and/or Succeeding in SCDIP When evaluating whether a client would benefit from Drug Court, calendar attorneys should be aware of circumstances that may preclude admission to and/or successful participation in SCDIP. Such red flags include: Has the client previously been approved for a higher level of pre-trial supervision, such as PSA s Specialized Supervision Unit ( SSU ) or High Intensity Supervision Program ( HISP )? If the ASI recommends inpatient treatment, is client unable or unwilling to enter residential treatment for the recommended time period? Does client have a chronic medical condition for which he takes mind-altering prescription medication (such as medical marijuana or opiates) on a long-term basis, and is client unwilling/unable to explore alternative methods of pain management? Does client live outside D.C., such that it would be financially burdensome or unduly time-consuming for him to travel downtown 3 5 per week for treatment groups and random drug testing? Does client lack access to a phone or not have adequate funds to pay for transportation to/from groups and drug testing? Does client have cognitive limitations that would make it difficult for him to comply with complex reporting requirements? 4

5 Overview of SCDIP Requirements SCDIP is a demanding program. To be successful in SCDIP, a client must be willing and able physically, mentally, and financially to participate in a highly-structured treatment program under close supervision of PSA and the Court. SCDIP takes a minimum of six (6) months to complete. However, most participants take between 9 12 months to meet the graduation requirements, which are summarized in detail in the SCDIP contract. Graduation/Phase Progression ceremonies are held on the third Wednesday of each month. SCDIP consists of four (4) phases, each of which has different requirements (see chart below). Phases 1, 2, and 3 can be completed in six (6) weeks, barring any missed groups or drug testing infractions. Phase 4 takes a minimum of six (6) weeks to complete, and can take up to nine (9) weeks, depending on when graduation falls. Participants are subject to random drug testing for the duration of the program, which requires calling a hotline daily Monday through Saturday to see if one has to test. Phase Required # of PSA Treatment Groups ** Duration/Frequency of PSA Treatment Groups 3 days per week 3 days per week 2 days per week 1 day per week Consecutive Negative Drug Tests PSO Check-Ins Court Reviews 100% of scheduled tests Monthly* Bi-weekly + 100% of scheduled tests Monthly* Monthly + 100% of scheduled tests Monthly* Monthly + 100% of scheduled tests Monthly* Monthly + * All defendants must check in with their assigned PSO once each month, at minimum. PSOs may increase the frequency of check-ins, as deemed clinically appropriate. + PSOs or the Drug Court Judge may require more frequent court appearances if a client is not in compliance with program requirements. ** Defendants in Phase IV must attend 12 PSA STARS groups and 6 outside AA/NA meetings, to be completed weekly throughout the phase. Phase IV lasts a minimum of six weeks long, and the defendant must attend at least one AA/NA meeting each week throughout Phase IV. Initial Treatment Recommendation In order to be eligible to participate in SCDIP, a client must have a current Addiction Severity Index ( ASI ) recommendation of at least intensive outpatient treatment ( IOP ). Because SCDIP is a voluntary program, clients who choose to enter SCDIP are expected to abide by the ASI treatment recommendation. Thus, if a client with an ASI recommending 5

6 residential treatment enters Drug Court, the expectation is that the client is willing and able to participate in residential treatment. Under limited circumstances such as when a client is employed and is consistently testing negative PSA may permit a client to remain in IOP despite an ASI recommendation of inpatient treatment. However, clients need to understand that such situations are the exception rather than the rule. Sanctions & Incentives In August of 2014, SCDIP implemented a new system of sanctions & incentives. The new system is more complex than the previous 4-level sanction scheme, and gives considerably more discretion to PSOs. Incentives: Clients receive incentives for having stellar court reports (i.e., attending all groups & not incurring any drug testing infractions during a review period), attending a certain number of treatment groups, and/or progressing to the next phase of the program, etc. Available incentives include: verbal or written recognition, various trinkets (inspirational quotes, ink pens, key chains, day planners, fitness journals), and transportation awards (2 bus tokens or SmartTrip card). Sanctions: Under the new scheme, it takes longer for individuals to get to jail sanctions, but more conduct is subject to sanctions. Infractions are subject to graduated sanctions, which include verbal warnings from the PSO or Drug Court Judge, workbook assignments, redirection groups at PSA, enhanced treatment, attending self-help meetings in the community, Jury Box days (sitting in the jury box while court is in session), Cell Block days (sitting in the cell block while court is in session), and up to 4 nights in jail. Three (3) categories of problem behaviors are subject to sanctions: Infraction Type Sanctionable conduct Treatment Attendance Unexcused absence from full day of treatment activities Unexcused absence from scheduled clinical session Drug/Alcohol Use ( DTI )** Court/Supervision Reporting Did not report for scheduled test ( DNR ); insufficient sample; unable to submit; bogus sample; testing positive for new use of drugs/alcohol; waterloaded sample. Missing or arriving late to court date; Coming to court dressed inappropriately; or Missing or arriving late to supervision check-ins with PSO. **Note: Unless a DTI is excused by the judge, client has to restart whatever treatment phase he is currently in (or if in P4, he is demoted to beginning of P3), as of the date of the DTI. Stated differently, groups do not carry over: if client incurs a sanction for a DTI after accruing 34 of the 36 treatment groups needed to progress to P2, the 34 groups are wiped out and he restarts P1. 6