FIRST, PROTECT DRUG COURT

Controversy Over Drug Patch Shouldn't Scuttle An Effective Program. Solicitor Should Find a Compromise, If Needed

Thirteenth Circuit Solicitor Bob Ariail should not let the challenges
lodged against the reliability of the drug patch destroy an innovative
brand of restorative justice he, ironically, built.

A judge will soon decide if the drug patch is too unreliable and unfairly
subjects Drug Court participants to jail. Ariail says if Circuit Judge
Charles Simmons sides with three defendants challenging the patch, the
future of Drug Court is jeopardy.

Not only does Ariail believe the patch is reliable, but he thinks giving
Drug Court participants the power to challenge the program undermines its
effectiveness. He sees this as a bad precedent that would weaken what has
worked - a rigorous program that allows few missteps.

Still, our solicitor should expect that defense attorneys will behave as
defense attorneys do. They're simply challenging the evidence that could
result in a client doing jail time. And he must recognize that the
controversy surrounding the reliability and soundness of the drug patch
will continue to be an issue so long as there are other testing measures
that are tougher to contaminate. A ruling, especially one upholding the
patch, should settle the issue. But if there is a ruling against the patch,
there is no reason Drug Court could not continue by testing either hair or
urine.

The solicitor is right about one thing: the evidentiary standard in Drug
Court is altogether different from criminal court. There is no question of
guilt or innocence to be settled because the participants have already
pleaded guilty as a condition of entry into the program.

Still, there's something unsettling in jailing someone based, in part or in
whole, on a test that may be unreliable. Ariail points out that no one is
jailed after one positive test. Those Drug Court failures do so after
violating a number of conduct standards. But even if a false positive is
the proverbial "final straw" and not the sole determining factor, defense
attorneys have a compelling argument.

Ariail deserves credit for forming what is the most extensive and
successful Drug Court in South Carolina, an 18-month program that is a
model for others to follow. It would be a shame if the program ended.

If Judge Simmons determines that the patch is too unreliable, Ariail should
look into adopting another test. He has said publicly that cost isn't an
issue - the patch is actually much more expensive than urine tests. But
unlike urine, the patch is useful because it can detect drug use over
longer periods, up to two weeks. Urine samples can only detect drug use
that has occurred within about three days of the test.

The solicitor, understandably, doesn't want to make that trade-off. Nor
does he want anyone else forcing him into it. But if that's the only choice
between keeping and scrapping the program, it's the choice he must make.