Should Defense Lawyers Encourage Drug Court Participation?

Following up on my last post regarding Steven Erickson’s critique of Drug Courts, let’s look at another part of his paper “The Drug Court Fraud” and his objections:

By their very design, drug courts diminish the zealous advocacy role of defense counsel by encouraging a “treatment team” approach to drug offenders. Thus, rather than defending clients, defense attorneys are supposed to assist the court into coercing defendants into participation and reporting to the “team” whether the client has made progress on their sobriety. Besides the obvious dismissal of the attorney-client privilege, such approaches effectively eliminate the role of defense counsel as traditionally understood for centuries in American jurisprudence.

Wow. I know this is harsh, but I’ve rarely seen such hogwash from a self proclaimed expert.

First, participation in Drug Courts is 100% voluntary. Folks arrested for controlled substance violations are always free to defend themselves in criminal court. That the government threatens addicts with incarceration if they don’t enter treatment might properly be labeled coercive, but then again, that comes from the prosecutor not the defense lawyer.

Second, there is no abrogation of the attorney client privilege that I have ever seen involved in Drug Court programs. My experience is limited to the Travis County SHORT program, but I’d like to know exactly what Erickson thinks he is talking about here.

While there’s no Doctor-Patient privilege in criminal cases in Texas, the rule reads (in part):

RULE 509. PHYSICIAN-PATIENT PRIVILEGE

(b) Limited Privilege in Criminal Proceedings. There is no physician-patient privilege in criminal proceedings. However, a communication to any person involved in the treatment or examination of alcohol or drug abuse by a person being treated voluntarily or being examined for admission to treatment for alcohol or drug abuse is not admissible in a criminal proceeding.

Anything my client says in Drug Court regarding prior drug use is specifically made inadmissible by statute under Texas law, and I’d bet there is a similar rule in most other states. Public policy demands that users be allowed to seek treatment, without worrying that what they say will be used against them. Perhaps Erickson is unaware of this rule, despite the J.D. after his name.

Finally, yes, my role as counselor-at-law sometimes becomes just counselor when I am helping those accused of possessing various illegal substances. But I can assure you, almost all of my Austin clients are thrilled to know that there is at least the potential there to keep them out of felony court all together. After all, we can always do it the old fashioned way: go fight the case in district court.

(Also read Kim Hunt's post at Corrections Sentencing for more analysis of Erickson's paper.)

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