Maine's drug court program allows some people facing drug charges to participate in a special treatment oriented court. Defendants plead guilty, are supervised by probation and given a "good sentence" and a "bad sentence." If they successfully complete the program they receive the good sentence, if they are unsuccessful, you get the idea. The drug court team consists of a probation officer prosecutor, treatment providers and the judge. The team does not include the defendant's attorney or the defendant themselves. The team meets frequently to consider an individual's progress through the program, occasionally imposing lesser sanctions including short jail sentences. Ultimately, the team may consider whether an individual should be terminated from the program and given the "bad sentence."
A recent case, Arnold Gross v. State of Maine challenges this fundamental structure. Arnold Gross pled guilty to unlawful trafficking in scheduled drugs, a class B felony. He was admitted to drug court with a good sentence of fully suspended prison time and probation, his bad sentence was four years in prison. After several months in the program he violated his conditions by having contact with a prohibited person. At the termination hearing Mr. Gross and his attorney were heard on the record and argued against termination. The drug court team then met so that probation, treatment, the prosecutor and the judge could discuss the case off the record. Defense counsel was excluded from those conversations. Proceedings on the record resumed and the court announced the decision to terminate Mr. Gross and sentence him to four years in prison.
Gross filed a petition for post conviction review and the reviewing judge found that this procedure violates due process. The judge reasoned that, at the most basic level, due process requires:
- Written notice of the alleged conduct the triggers termination
- Disclosure to the defendant of the evidence against him
- The opportunity to be heard in person and to present evidence
- The right to confront and cross-examine adverse witnesses
- A neutral and detached hearing body
- A statement by the court indicating the reasons for its ruling
- Representation by counsel
Constitutional requirements not satisfied by Maine's ProcessThe drug court structure creates several problems. First the process creates a risk of judicial impartiality since:
the drug court judge becomes extremely familiar with the lives of each participant, and in some circumstances, the judge could have a personal knowledge of facts that would be relevant to a later termination hearing. At the termination hearing, the judge could also be called upon to evaluate the wisdom of validity of prior collaborative decision in which that judge participated.Second, the defendant's confrontation rights and judicial partiality are further compromised since, as a team member, the judge regularly communicates with other team members about the defendant's progress. These communications are not disclosed to the defense, their validity can't be challenged and there's no opportunity to cross-examine witnesses on these specific issues.
Third, the drug court judge becomes aware of the team's general attitude about the defendant and also about the other team member's ultimate opinion as to whether a participant should be terminated. This awareness comes not from the termination proceedings but from the judge's participation in team meetings. This further promotes bias and compromises the defendants confrontation rights.
Justice Anderson found that this process creates a legitimate risk of due process violation. The court opined that termination proceeding should be handled by a judge who is not part of the drug court team, ordered the revocation and four year sentence vacated, and remained the case for proceedings in front of an impartial judge.
What's the Impact?The decision is just a Superior Court Order so it's not statewide precedent. Still, it certainly suggests that the whole state is doing it wrong. If the recommended procedures are followed, Drug Court gets significantly more expensive with a second judge needed for termination, and arguably for lesser sanctions. It's a great decision for the defense who have historically seen drug court as a slow boat to the bad sentence. Maybe impartial judging will put the thing back on track, or maybe courts will decided to throw the baby out with the bathwater rather than fix the problem.
In discussing this case with other attorneys familiar with Bangor Drug Court, I have learned two interesting things:
- Justice Anderson who wrote this decision, vacated the 4 year sentence and remanded the case to go before an independent judge is the drug court judge who sentenced Mr. Gross to four years!
- The State will be appealing the decision to the Maine Supreme Court.