PUBLIC DEFENDER CALLS VENUES UNCONSTITUTIONAL

Defendants in So-Called Problem-Solving Courts Denied Due Process,
Official Says

Drug courts, a forum designed to give addicted offenders a second
chance, are under attack in Maryland -- and not by prosecutors.

The state's public defender says Maryland's drug courts give judges
too much power and defendants too little protection, and yesterday
she argued to the state's high court that the tribunals are not constitutional.

Public Defender Nancy S. Forster told the Court of Appeals that
judges should not shed impartiality by sitting down with prosecutors,
social workers and defense attorneys to try to help a defendant. She
argued that judges should not be permitted to send a defendant to
jail again and again without a full hearing each time, as she said
judges in the drug courts do.

"There is no due process in drug treatment court," she said.

The case is the first legal challenge to the state's drug courts, and
the arguments spurred a lively exchange about so-called
problem-solving courts, which have become common in Maryland and
across the country, with 41 in Maryland and more than 2,000 nationwide.

The state attorney general's office, which represents the courts,
says they do not infringe on drug court defendants' individual rights.

Started in Florida two decades ago and rooted in the idea that
providing treatment to some defendants may be better for them and for
the community, drug courts have spawned similar courts for everything
from truancy to mental illness.

Where ordinary criminal courts are adversarial, proceedings in
problem-solving courts are supposed to be collaborative. Judges,
prosecutors, social workers and defense lawyers work together to
determine what's best for the defendant and the community. Defendants
volunteer to have their cases handled in such courts rather than in
ordinary courts; the charges that make a defendant eligible vary from
jurisdiction to jurisdiction.

Maryland's first drug court was established in Baltimore in 1994.
Calvert, Charles, Montgomery, Prince George's and St. Mary's counties
have juvenile drug courts, and Montgomery and Prince George's have
drug courts for adults as well.

In the appeals case, Robert Calvin Brown III pleaded guilty in a
Baltimore drug court to heroin charges and was sentenced to 20 years
in prison, almost all of which was suspended. The judge placed Brown
on probation for three years and ordered him into drug treatment as a
condition of probation.

After being bounced from several treatment programs and being
sanctioned with jail stays of 14 and 35 days, the judge decided that
Brown wasn't complying with the drug court agreement. He revoked
Brown's probation and sentenced him to eight years in prison.

The issue of the rights of individual defendants in drug courts drew
more pointed questions from several of the judges. Judge Joseph F.
Murphy Jr. noted that a judge's talking to one party without the
other party being present, which might happen in a drug court case,
has raised due-process concerns in other sorts of criminal
proceedings. "Can you do that without violating the defendant's
rights?" he asked Assistant Attorney General Michelle W. Cole.

As they have become more common, drug courts and problem-solving
courts have faced questions about their effectiveness and about
defendants' rights and judges' roles.

"They are trying to move into the mainstream and become more
institutionalized," said Greg Berman, a proponent of problem-solving
courts and director of the Center for Court Innovation in New York.
"As that happens, you're naturally going to attract more attention
and more of these questions."

For critics of such courts, the challenge in Maryland is welcome.
"It's about time," said Mae C. Quinn, a University of Tennessee law
professor and a former public defender in New York who has written
extensively about drug courts. "These courts have been operating
largely between the cracks of the law for a long time."