Criminal Justice Section  

   Criminal Justice Magazine

Criminal Justice Magazine
Fall 2000
Volume 15, Issue 3

Ethical Considerations for Prosecutors in Drug Courts

By Susan P. Weinstein

In the past decade, hundreds of drug courts have been created across the nation to confront and address more adequately the issues surrounding drug abuse and crime. Rather than continue the traditional model, in which defendants who used drugs or committed crimes to maintain their drug use were locked away with no hope of ever obtaining treatment for their problems, courts began to implement an alternate based upon judicially supervised drug treatment. Many practitioners in the criminal justice arena felt that by treating the drug use or addiction of these defendants, the "revolving door" of drug and drug-related crimes could be substantially reduced. This would benefit not only the drug offenders, but also the overburdened court systems, and, of course, society as a whole.

Yet this new paradigm seemed to turn the role of the prosecutor on its head. Rather than putting offenders in prison for the maximum penalties, prosecutors were now being asked to work as court team members to identify offenders who might benefit from drug treatment, to aid in their recovery, and, ultimately, to return them to community behavioral norms. Drug courts seemed to require that prosecutors surrender their advocate’s role, creating some tension with the traditional prosecutor’s ethical duties and practices as delineated in the American Bar Association’s Model Rules of Professional Conduct (ABA Rules) and the ABA Standards for Criminal Justice: Prosecution Function (ABA Standards).

In this article I propose to demonstrate that there is no ethical inconsistency between the prosecutorial function in traditional courts and drug courts.

Genesis of the drug court model

Very few individuals would deny the link between substance abuse and crime. In a 1996 survey of local jail inmates, 55 percent of convicted offenders reported drug use in the month preceding their crimes and 36 percent reported using drugs at the time of their offenses. (Bureau of Justice Statistics, Profile of Jail Inmates, 1996, NJC 164620, Apr. 1998.) Among federal prisoners in 1997, the corollary figures were 45 percent and 22 percent. (Bureau of Justice Statistics, Substance Abuse and Treatment, State and Federal Prisoners, 1997, NJC 172871, Jan. 1999). Sixteen percent of local jail inmates, 16 percent of federal prisoners, and 19 percent of state offenders admitted to committing their offenses to obtain money for drugs. (Bureau of Justice Statistics, Profile of Jail Inmates, 1996, NJC 164620, Apr. 1998; Bureau of Justice Statistics, Substance Abuse and Treatment, State and Federal Prisoners, 1997, NJC 172871, Jan. 1999.) To further reinforce the relationship between drugs and crime, experts tell us that approximately half of felony drug offenders on probation in 1986 were rearrested for another felony within three years. (Bureau of Justice Statistics, Recidivism of Felons on Probation, 1986–1989, Feb. 1992.)

To combat such trends, jurisdictions initially enacted legislation that redefined criminal codes and enhanced penalties for drug possessions and sales. However, these statutes did little, if anything, to reduce drug and drug-related crime, and the nation’s court dockets and prisons became increasingly overloaded. In response, some jurisdictions turned to differentiated case management (DCM) techniques to expedite drug case processing by reducing the time between drug and drug-related arrests and convictions. Although DCM accelerated the processing of serious drug trafficking cases and used resources more efficiently, these efforts did little to confront directly the problems of habitual drug use. Sensing that DCM was not addressing the real drug crime issues, criminal justice professionals began to focus on innovative strategies to break the cycle of addiction and crime—and drug courts began to emerge.

Because drug courts have developed mostly at the local level, they vary in many respects, reflecting the unique strengths and resources of individual communities. Many facets of a community are involved in planning and implementing a drug court system, usually including criminal justice practitioners, substance abuse and treatment providers, law enforcement officials, educational and vocational professionals, policymakers and legislators, and community-based, antidrug organizations. Whatever form drug courts take, they all place a targeted population of offenders into treatment programs, relying on regular and frequent drug testing and swift sanctions to force defendants to alter their behaviors so that they will stop committing drug and drug-related crimes.

Drug courts focus specifically on drug abuse and its concomitant crime through intensive treatment overseen closely by judges. By joining the medical-public health treatment community with the legal criminal justice system, the unique resources and skills of each can be put to maximum use, forming a partnership that is able to address adequately the needs of the targeted population—the mostly nonviolent offenders. It is just this special drug-abusing population that the traditional system has not been adequately equipped to handle. That system, through the course of centuries, has been more directed to meting out punishment to defendants who have broken the law.

This coordinated approach to case processing is generally unfamiliar to those with experience in the criminal justice system. Often possessing a "nail ’em and jail ’em" attitude in traditional criminal courts, prosecutors who now practice in drug courts must alter their approach to a more team-oriented one, the common goal of which is to assist offenders in recovery, with the aim of making them law-abiding citizens. A holistic way to treat drug-using offenders, requiring lawyers to examine cases from unconventional vantage points, drug courts raise some interesting ethical concerns not previously confronted by prosecutors—or any drug court team member, for that matter.

Ethical issues in a new paradigm

Although drug courts do not require prosecutors to surrender their established advocate’s role, they nonetheless force prosecutors to expand this position to meet the courts’ unique structure. Some prosecutors may perceive that broadening their prosecutorial role in this manner runs counter to the ethical dictates of the ABA Rules and ABA Standards, but this view is myopic and clearly false.

The preamble to the ABA Rules states that the rules "should be interpreted with reference to the purposes of legal representation and of the law itself." Thus, although a prosecutor in a drug court, as in a traditional court, continues to represent the state with zeal, protecting the public and keeping its people safe, he or she must also be concerned with offenders’ rehabilitative well-being, freeing them from the reliance on drugs that brought them into the criminal justice system. Oftentimes, this means that the prosecutor, while zealously enforcing the law, may be obligated to forgo prosecution. In addition, ABA Standard 3–3.8 effectively defines the appropriate interactions between the prosecutor and the drug court, noncriminal dispositions being among the most critical. Determining what charge to attach to a defendant may unfairly preclude him or her from the drug court. These two situations—forgoing prosecution and exercising discretion in leveling charges—elicit some interesting issues that prosecutors have not had to address before the creation of drug courts. A number of other ethical issues certainly do arise, but these two most often concern drug court prosecutors and this article will only focus on them.

Forgoing prosecution

Any drug treatment provider will affirm that during the recovery process relapse is almost always inevitable. (John Marr, "Recovery-Relapse Cycle," Presented at the National Drug Court Institute’s Comprehensive Drug Court Prosecutors’ Training, Williamsburg, Va., Sept. 1999.) Relapse is defined as "a breakdown or setback in a person’s attempt to change or modify behavior." (G.A. Marlatt & J.R. Gordon, Relapse Prevention (1985).) Old, addictive behaviors rarely change with a single pounding of the gavel. Of course, drug court prosecutors are required to know and understand that dynamic. As ABA Standards 3–2.3 and 3–2.6 require prosecutors to demonstrate high standards of professional skill and attend thorough training on specific subjects, prosecutors in drug court should be experienced practitioners with in-depth knowledge of addiction and substance abuse issues. It’s likely that during treatment while under the court’s supervision, defendants may very well use drugs or commit other illegal acts.

Ethical issues arise when a defendant either tests positive for his or her drug of choice (or any other illegal substance) or admits, even without a positive test result, in open court that he or she engaged in illegal activity while away from the drug court. The question arises: Should the prosecutor file new charges for the offender’s noncompliant and otherwise illegal behavior? If this defendant ultimately is terminated from the drug court, may the prosecutor then use evidence of the criminal behavior in subsequent proceedings against the defendant?

According to ABA Standard 3–3.1, only in limited circumstances may a prosecutor agree not to prosecute prospective criminal activity. Under this guideline, then, drug court prosecutors should not make open-ended promises of leniency to defense counsel and their clients. Nonetheless, the standard does not prohibit prosecutors from giving their assurances to drug court offenders that information obtained in drug court proceedings will not be used against them. Because the crux of drug court is trust—that is, honest and open dialogue among all drug court team members and between the defendant and the judge—such assurances are acceptable if they do not grant dispensation for future crimes but merely restrict the use of certain information in prosecuting those crimes. After all, prosecutors in the traditional setting exercise ordinary prosecutorial discretion when deciding whether or not to bring charges against an arrestee.

More specifically, ABA Standard 3–1.2 generally describes the prosecutor’s role as one including the "duty of the prosecutor to seek justice, not merely to convict." In the drug court context, "seek[ing] justice" may be characterized as assisting the defendant in the quest for a drug-free life, enabling him or her to live as a productive, crime-free individual. Thus, in a situation where a defendant tests positive for heroin and admits to depression over his or her mother’s failing health and a wish to "escape," the admitted use of the illegal substance—and, thus, an admission of breaking the law—need not be addressed by an additional criminal charge. Instead, the prosecutor may ask the judge to sanction the defendant in such a way as to deter any future relapses, thereby assisting in the offender’s recovery and ultimately protecting the public from the threat of future criminal activity from that individual.

To assist prosecutors in meeting their ethical duties, many jurisdictions use memoranda of understanding (MOU) that delineate the role of each team member and that member’s office and the rules by which such team members must abide. Among other things, a MOU should incorporate an agreement that the prosecutor’s office will not use information obtained in the drug court to prosecute an offender. Of course, some exceptions to this are necessary, but their substance is beyond the scope of this article. For more information on MOUs, see National Drug Court Institute, Excerpts from a Treatise on Ethics and Confidentiality in Drug Courts: Federal Confidentiality Laws and How They Affect Drug Court Practitioner (Apr. 1999).

Presuming that representatives of each discipline on the drug court team were involved in the planning of the drug court and the development of the MOU, prosecutors should feel comfortable with the fact that any "releases" from prosecution are with respect to the recovery process only and do not condone the illegal behavior of defendants. Specifically, the issue of what prosecutors can and will do with evidence related to alcohol and other drug use—e.g., for impeachment purposes at a subsequent trial—should be clearly delineated in the MOU. ( See ABA Standard 3–5.6.) In accordance with ABA Standard 3–2.5, drug court prosecutors also should have a handbook that details office policies with respect to drug court. These handbooks should address issues including the drug court eligibility requirements, the schedule of sanctions and incentives, and circumstances for termination.

Discretion in the charging decision

ABA Standards 3–3.4, 3–3.8, and 3–3.9 are particularly important to the issue of charging. The need to address cases quickly is particularly acute in drug courts because the urgency of the criminal proceeding often compels a substance abuser to obtain treatment. For this reason, prosecutors should seek to expedite charging and drug court screening. Prosecutors also must be aware of the effect that their charges may have on an offender’s eligibility for drug court.

Specifically, prosecutors should not deliberately overcharge suspects—a common practice in traditional courts—either to exclude them from drug court or to enhance prosecutors’ leverage in the drug court admissions process. Moreover, prosecutors should consider forgoing charges that might be appropriate in more traditional circumstances if those charges would render a potential candidate ineligible for drug court. For example, offenses carrying mandatory minimum sentences, like possession in a school zone, will often bar drug court participation, especially in postplea jurisdictions. This produces the result that poor and minority offenders in urban areas with a high density of schools and public housing are more often precluded from entering drug court than suburban drug offenders. Prosecutors should be sensitive to the disparate impact of these laws and review such matters with an eye toward whether cases truly had any connection to the schools.

The process of accelerating drug court admissions will vary depending on the drug court model in use. In pretrial diversion jurisdictions, appropriate cases should be referred to drug court as soon as they are filed, subject to withdrawal from the program if lab tests prove negative. In postplea jurisdictions, immediate referral is not possible, but prosecutors should keep an open eye for suitable drug court candidates and handle their cases to enhance their prospects for entering drug courts.

Drug courts should have written criteria for eligibility, and prosecutors should prepare written policies for charging suspects who might qualify for drug court. Such policies are preferable to ad hoc screening processes because the latter would likely overlook appropriate drug court candidates, divert unsuitable offenders to drug court, and generally raise an appearance of bias in drug court selection. Written policies also eliminate a basis for claims of racial or ethnic discrimination in prosecution decisions.

Another concern is that prosecutors in drug courts will use "net-widening" tactics—that is, charge more offenders than typical to bring individuals into the drug court who would otherwise be slapped on the wrist by the traditional criminal justice system. Such tactics include charging petty offenses (1) that ordinarily would not be prosecuted, (2) for which prosecutors lack sufficient evidence, and (3) based on decidedly inadmissible evidence. We must ensure that behavior that previously was not criminal is not now treated as criminal for drug court admissions. In light of the serious consequences that can arise from criminal charges or convictions, even for offenders who successfully complete diversionary programs, prosecutors must take extra precautions with respect to these practices and stay within their ethical boundaries.


With almost 700 drug courts in existence or being planned in the United States, the drug court concept is becoming institutionalized in the American criminal court system. (National Association of Drug Court Professionals, Facts on Drug Courts and Drug Court Systems (May 2000).) Drug court programs have enabled allied professionals to break the cycle of drug addiction and crime by removing the addiction and habitual behaviors that contribute to offenders’ criminal behaviors. After successfully completing a drug court program, offenders can become responsible members of society, able to function productively. Traditional prosecution does not address the social dysfunction that has a strong correlation to drug abuse. At best, defendants are referred to treatment programs or special skills classes without regular monitoring, absent a violation of probation. In contrast, drug courts employ well-structured treatment regimens along with numerous, comprehensive ancillary service programs to address the underlying personal problems of drug users and promote their long-term maintenance in society. The merger of the best practices of the medical-public health and the legal criminal justice system in a coordinated endeavor may become the most effective means of true rehabilitation and, at the same time, reduce criminal offenses. ( See generally Steven Belenko, Research on Drug Courts: A Critical Review (Columbia University National Center on Addiction and Substance Abuse, June 1998).)

Drug courts make sense. The ethical issues facing prosecutors in traditional courtrooms do not differ greatly from those in drug courts. In both, lawyers are ethically responsible to uphold the ABA Rules and ABA Standards. Moreover, in accordance with ABA Standard 3–1.2, drug courts uphold the prosecutor’s duty to "seek to reform and improve the administration of justice." Although the unique structure of drug courts may present some special challenges to those who practice in them, there are no ethical issues with which prosecutors are confronted that do not strictly fit within the structure of the ABA Rules and ABA Standards. With some specialized training and some keen awareness on the part of drug court prosecutors, these court officers can remain zealous advocates of the state, tough law enforcers, and protectors of the public safety. Simultaneous-ly, prosecutors can be a part of the solution, stopping the revolving door of drug abuse and crime that has plagued America for decades.

Susan P. Weinstein is chief counsel for the National Association of Drug Court Professionals (NADCP) and the National Drug Court Institute (NDCI). She is also responsible for comprehensive training curricula for drug court prosecutors and public defenders, the treatise on confidentiality and ethical issues in drug court, and the Congress of State Drug Court Associations. The author is a former lawyer in the criminal prosecution division of the American Prosecutors Research Institute/National District Attorneys Association (APRI/NDAA) and the Criminal Appeals Division of the Office of the Attorney General in Baltimore, Maryland.

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