Answering the call: drug courts in South Dakota.

• Author: Eckrich, Jerome

1. INTRODUCTION

   In 1989, Florida became the first state in the union to implement a drug court. In 2007, South Dakota became the last. On July 1, 2007, South Dakota launched its first drug court--the Northern Hills Drug Court ("NHDC") of the Fourth Judicial Circuit. Based in Sturgis, SD, NHDC's success helped launch two more drug courts--in Pierre and Sioux Falls.

   The term "drug court" is a misnomer. "Problem-solving" court better describes the court's function and intent. Communities develop a "problem-solving" court unique to their problems and their resources. For example, the first drug court in Miami, Florida was created to combat the major influx of cocaine into South Florida. In South Dakota, the Sixth Circuit's Stop DUI program was created as a problem-solving court to handle felony drunk drivers.

   As of December 31, 2009, there were 2,459 drug courts in the United States, including adult, DWI, juvenile, family, tribal, campus, and veteran treatment courts. In addition, there were 1,189 problem-solving courts other than drug courts including truancy, mental health, domestic violence, child support, homelessness, prostitution, gun, parole violation and gambling courts. This article uses the term drug court to describe problem-solving courts in general. Although SD entered the field late, it benefited from the experience and the expertise of other states. (1)

   This article attempts to do three things: (1) describe the history of South Dakota's drug courts, (2) provide an overview of the drug court model, including an empirical demonstration of NHDC's successful outcomes, and (3) survey some of the evolving legal issues unique to drug courts.

2. THE HISTORY OF DRUG COURTS IN SOUTH DAKOTA

   In 2005, faced with skyrocketing methamphetamine use coupled with substantial incarceration costs, the South Dakota criminal justice system was overwhelmed. Opportunities to reduce recidivism for the addicted were few. The classic sentencing theory--punishment and isolation--was doing nothing to change the behavior of the addicted.

   Beginning in mid-2005 a volunteer steering committee was formed to explore the possibility of creating a drug court in South Dakota's Fourth Circuit. (2) Following approval by Chief Justice David Gilbertson, the steering committee spent the next two years laying the groundwork for creation of the Northern Hills Drug Court. In 2006, a grant was obtained that provided the necessary funding for the nascent drug court. In July 2007, NHDC was founded and in September 2007 it accepted its first participant.

   Originally, the NHDC served South Dakota's Fourth Circuit. In 2010-2011, the NHDC was expanded to include the Seventh Circuit. This combination allowed the Seventh Circuit judges to sentence felony drug offenders into NHDC. As of December 19, 2011, the NHDC had accepted forty-eight participants.

   Two additional communities, Pierre and Sioux Falls, have answered the call for a problem-solving court. In 2007, under the leadership of Judge (now Justice) Loft Wilbur, the Pierre/Ft. Pierre community tackled the felony drunk-driving problem with its Stop DUI program. As of December 31, 2011, the Stop DUI court has accepted a total of thirty-four participants.

   The most recent entry is the Sioux Falls drug court initiated by Circuit Court Judge Patricia Riepel. The Second Circuit Drug court, in operation since 2010, targets the multiple offenders, drug abusers who, but for drug court, are prison bound.

   2012, however, ushers in a new era. In recognition of SD's success with the drug court model, the legislature, with endorsement from the Governor's office, appropriated funds to add two DUI courts. This will bring the total number to five problem-solving courts in the state of South Dakota. The Unified Judicial System hopes to implement expansion with the goal to have a DUI court and a drug court in each circuit within the next five to six years.

3. THE NHDC MODEL

   1. THE DRUG COURT TEAM AND THEIR GAME PLAN

      The drug court protocol dashes the "traditional" model of criminal procedure. The drug court--though administered by and supervised under the SD Unified Judicial System--could not operate without a drug court "team." The judge is the central figure on the team. The judge's role, however, is enhanced by the other team members comprised of the local sheriff and state's attorney, three court service officers, defense counsel and the treatment provider. This multi-disciplinary team brings varied experience and expertise together to coordinate an individualized case plan for each participant.

      The NHDC operates on its own docket. The team meets prior to weekly court sessions. During these meetings the team makes recommendations and proposes ideas to the judge that are unique to each participant's circumstances.

      The participants appear in their "Sunday best" to report their activities, answer the judge's questions, or respond to issues or concerns raised by the team. Weekly court sessions ensure participants face immediate consequences for behavior. Sanctions include immediate jail time or loss of privileges. Rewards range from promotion to a higher less restrictive level of supervision to small gift certificates.

      The Unified Judicial Service's Drug Court Intensive Supervision Program establishes minimum contact standards for participants. Standards include at least twelve field face-to-face contacts per month, six random curfew checks per month, eight collateral contacts per month, daily phone contact, a minimum of three random urinalysis ("UA") each week, and curfews commensurate with the participant's program level. (3) Other initial requirements include at least nine hours of treatment per week and, if appropriate to the participant, attendance at Narcotics or Alcoholics Anonymous meetings. Each participant is required to have or to obtain a job. Those without a job perform community service until they secure employment.

      Individual case service plans may include mental health counseling, anger management, or parenting classes. The drug court also maintains on-going relationships with local housing authorities, the Department of Social Services programs, the South Dakota Department of Labor, and local businesses.

   2. DESCRIPTION OF PROGRAM PARTICIPANTS AND ELIGIBILITY REQUIREMENTS

      The Northern Hills Drug Court focuses on the non-violent, adult felony offender who abuses controlled substances, including methamphetamine. The typical defendant could be described as having "one foot" in the penitentiary and participation in the drug court program is the only remaining alternative to a prison term. The minimum eligibility requirements to participate in the NHDC include: (1) felony charges substantially related to the abuse of or dependence upon a controlled substance, (2) approval by the state's attorney, (3) Fourth or Seventh Judicial Circuit jurisdiction, (4) a completed NHDC application, (5) timely completion of the required drug evaluation, (6) DSM IV diagnosis of abuse or dependence upon a controlled substance, (7) a DSM IV diagnosis not exclusively for prescription drug abuse, (8) at least 18 years of age, (9) reside within a reasonable proximity of Sturgis, (10) no history of violent crimes, (11) screened and accepted by the Drug Court Team, (12) a guilty plea to the charged felony with acceptance of responsibility, and (13) a sentence to Drug Court as a probation condition.

   3. ENTERING DRUG COURT

      In the NHDC the following scenario is typical:

      An individual is arrested, usually for possession of a controlled substance.

      The state's attorney, court services officer and/or defense counsel identify the defendant to be a potential drug court candidate because of drug abuse or addiction. As part of a plea agreement the defendant agrees to plead guilty to a felony. The plea agreement is conditioned upon several things, including (1) violating no laws prior to sentencing, and (2) application to and acceptance to the drug court. (4)

      As part of the initial evaluation process, the treatment provider prescreens the candidate. If the evaluation finds drug abuse or dependence and the defendant otherwise meets the general eligibility requirements, a guilty plea is entered. Typically, a pre-sentence investigation ("PSI") is commenced; in some instances with the defendant's permission, the PSI is commenced prior to the guilty plea.

      Prior to sentencing, the defendant continues to be represented by the defendant's own counsel. In addition, the defendant has the benefit of a defense attorney. The team attorney reviews and explains the drug court process including a consent form which contractually obligates the drug court participant to waive various statutory and constitutional rights including search and seizure rights. The NHDC is voluntary. If a defendant chooses not to participate, (s)he does not enter the program.

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