MISSISSIPPI LEGISLATURE

1998 Regular Session

To: Judiciary; Juvenile Justice

By: Senator(s) Smith

AN ACT TO ENACT THE MISSISSIPPI DRUG TREATMENT COURT PILOT PROGRAM; TO PROVIDE THE GOAL OF THE DRUG TREATMENT COURTS; TO PROVIDE FOR THE APPOINTMENT AND SALARY OF DRUG TREATMENT COURT JUDGES; TO PROVIDE FOR THE APPOINTMENT AND SALARY OF ASSISTANT DISTRICT ATTORNEYS TO PROSECUTE CASES IN THE DRUG TREATMENT COURTS; TO PROVIDE FOR FUNDING FOR ASSISTANT PUBLIC DEFENDERS TO DEFEND CASES IN THE DRUG TREATMENT COURTS; TO PROVIDE JURISDICTION OF THE DRUG TREATMENT COURTS; TO ENACT GUIDELINES AND REQUIREMENTS; TO ENACT LIMITATIONS; TO PROVIDE THAT CRIMINAL PROCEEDINGS WILL BE STAYED DURING THE PENDENCY OF TREATMENT IN OR EVALUATION FOR DRUG TREATMENT COURT; TO PROVIDE FOR RESUMPTION OF CRIMINAL PROCEEDINGS UNDER CERTAIN CIRCUMSTANCES; TO PROVIDE FOR OUTCOME IN EVENT OF SUCCESSFUL COMPLETION OF TREATMENT; TO PROVIDE FOR A DEFENDANT'S CONTRIBUTION TO THE COST OF TREATMENT; TO REQUIRE THE ADMINISTRATIVE OFFICE OF COURTS TO EVALUATE AND REPORT ON THE PROGRAM; TO PROVIDE THAT A NON-PUBLIC RECORD SHALL BE MAINTAINED; AND FOR RELATED PURPOSES. 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. This act shall be known and may be cited as the "Mississippi Drug Treatment Court Pilot Program Act."

SECTION 2. (1) There is hereby established the Drug Treatment Court Pilot Program. The pilot program shall consist of five (5) drug treatment courts which shall constitute a separate division of the circuit courts of DeSoto, Washington, Hinds, Rankin and Harrison Counties. The pilot program shall begin on July 1, 1998, and terminate on June 30, 2002.

(2) The goal of the drug treatment courts shall include without limitation the following:

(a) To reduce alcoholism and drug abuse and dependency among offenders;

(b) To reduce recidivism;

(c) To reduce the drug-related court workload;

(d) To increase the personal, familial and societal accountability of offenders;

(e) To promote effective interaction and use of resources between criminal justice personnel and community agencies; and

(f) To reduce the overcrowding of prisons.

(3) (a) The Chief Justice of the Mississippi Supreme Court, with the advice and consent of a majority of the justices of the Mississippi Supreme Court, shall appoint a drug treatment court judge to serve in each of the pilot program courts, with any vacancy occurring in such office to be filled by similar appointment by the Chief Justice. To be eligible for appointment, a person must possess the qualifications required for a circuit judge, although a judge who was retired at the polls from his most recent service shall not be eligible for appointment in a county of the district in which he served prior to his defeat. A judge appointed pursuant to this section shall take the oath of office and shall, for the duration of his appointment, enjoy the full power and authority of the office of drug treatment court judge. The annual salary of each drug treatment court judge shall be Seventy-eight Thousand Five Hundred Dollars ($78,500.00).

(b) Each district attorney of a district containing a county having a drug treatment court under the pilot program shall appoint a full-time assistant district attorney to serve at the

will and pleasure of the district attorney and whose sole duty shall be to prosecute cases in the drug treatment court. Such full-time assistant district attorney shall be separate from and in addition to the legal assistants authorized by Section 25-31-5; however, any such legal assistant is eligible for appointment to the position. The annual salary of each assistant district attorney shall be established by the district attorney and shall be not less than Twenty Thousand Dollars ($20,000.00) nor more than ninety percent (90%) of the salary of the district attorney. (c) The public defender of each county having a drug treatment court under the pilot program shall appoint a full-time assistant public defender to defend cases in the drug treatment court. The Administrative Office of Courts shall pay to the Office of the Public Defender of each of the pilot program counties the annual sum of Eighty-one Thousand Nine Hundred Ninety-six Dollars ($81,996.00) as a monthly grant to be paid in support of the salary, benefits and expenses of such assistant in installments of Six Thousand Eight Hundred Thirty-three Dollars ($6,833.00), or one-twelfth (1/12) thereof, each month of the pilot program that the public defender employs the full-time assistant public defender, with such monthly payments to be proportionately reduced or not paid for any month in which the assistant public defender is not employed or is employed for less than the entire month.

SECTION 3. (1) The jurisdiction of the drug treatment court shall be over those cases assigned to the drug treatment court division by the senior circuit judge.

(2) When an individual is charged with violation of the Mississippi Controlled Substances Act, or where there is a significant relationship between use of drugs or alcohol or both drugs and alcohol and the crime charged, and the district attorney has reason to believe that the individual who is charged suffers from alcohol or drug addiction or both and that it would be in the interest of justice and the community, the district attorney may petition the court that the defendant may be eligible for the drug court diversion program. The court shall advise the defendant that he may be eligible for enrollment in a court-authorized treatment program.

(3) In offering an individual the opportunity to request treatment, the court shall advise the individual of the following:

(a) That if the defendant is accepted into the diversion program, then the defendant must waive the right to a jury trial and the right to a speedy trial. The defendant must enter a plea of guilty to the charge, with the stipulation that the sentencing will be deferred until the time prosecution may be resumed.

(b) That if the defendant requests to undergo treatment and is accepted, the defendant will be placed under the supervision of the drug treatment court for a period of nine (9) months or more.

(c) That during the treatment, the defendant may be confined in a treatment facility or, at the discretion of the court and the treatment provider, the defendant may be released for treatment or supervised aftercare in the community.

(d) That the court may impose any conditions upon the election of treatment that it finds appropriate to completely rehabilitate the defendant.

(e) That the defendant will be required to participate in an alcohol and drug testing program at his own expense, unless the court determines that he is indigent.

(f) That if the defendant completes treatment the charge will be dismissed, but if the defendant does not complete treatment, prosecution of the charge may be resumed or the judge may order that the defendant continue treatment for an additional period.

(4) The defendant has the right to be represented by counsel in any court hearing relating to diversion, during negotiations for diversion, and at the time of the execution of the diversion agreement, although the defendant may knowingly and intelligently waive the right to counsel.

(5) If the defendant elects to undergo treatment, a stay will be granted in the criminal proceedings and the court shall order an examination of the defendant by one of the court's designated treatment providers to determine whether the defendant is eligible for a treatment program. If the defendant is eligible, he must plead guilty to the charge before entering the diversion program.

(6) The designated treatment provider shall examine the defendant and report to the court the results of the examination and recommend whether the defendant is eligible for the diversion program. The defendant should only be considered for treatment in the designated program if the examiner believes that the defendant suffers from alcoholism or a drug addiction or both or is in danger of becoming addicted or dependant and is likely to be rehabilitated through treatment.

The court is to inform the defendant that the examiner or district attorney can request that the defendant provide the following information to the court: prior criminal charges, education, work experience and training, family, residence in the community, medical history, including any psychiatric or psychological treatment or counseling, and other information relating to the diversion program.

(7) In determining whether diversion of a defendant would be in the interest of justice and of benefit to the defendant and the community, the judge and district attorney should also consider:

(a) The nature of the crime charged and the circumstances surrounding it;

(b) Any special characteristics or circumstances of the defendant;

(c) Whether the defendant is a first-time offender of an alcohol or drug related offense and if the defendant has previously participated in this or a similar diversion program;

(d) Whether there is a probability that the defendant will cooperate with and benefit from diversion;

(e) Whether the available diversion program is appropriate to meet the needs of the defendant;

(f) The impact of the diversion of the defendant upon the community:

(g) Recommendations, if any, of the involved law enforcement agency;

(h) Recommendations, if any, of the victim;

(i) Provisions for restitution; and

(j) Any mitigating circumstances.

(8) In order to be eligible for the diversion program:

(a) The defendant cannot have previously participated in this program or a similar treatment program in this or another state;

(b) The charged crime cannot be a crime of violence, including domestic violence, and the defendant must not have a record of two (2) or more convictions for any crimes of violence;

(c) Other criminal proceedings alleging commission of a felony cannot be pending against the defendant;

(d) If the defendant is on probation or parole, the approval of his probation officer for the defendant to be admitted into the diversion program must first be obtained. Objection of the probation officer constitutes an absolute veto of the defendant's entrance into the diversion program;

(e) The charged crime cannot be a charge of driving under the influence of alcohol or any other drug if it resulted in personal injury or death to another person.

(9) (a) If, based on the examiner's report and the recommendations of the district attorney and the defense counsel, the court finds that the defendant should be enrolled in a diversion program, the court, upon the defendant pleading guilty to the charge against him, will order that the stay be continued and will admit the defendant into a diversion program, the terms of which will be dictated by the court.

(b) If the court does not find that the defendant is qualified for enrollment, the judge should enter a brief statement for the record of the reasons for denying enrollment. The stay will thereupon be lifted and the criminal prosecution shall resume.

(c) The drug treatment court has complete discretion in deciding which defendants are eligible for the program.

SECTION 4. (1) The terms of each diversion agreement should be decided by the judge, district attorney and the examiner. The defendant must agree to enter the program, sign a diversion agreement stating the terms and conditions of his program, and waive his rights to a speedy trial and trial by jury. The defendant must plead guilty to the charge in order to be eligible for the diversion program.

(2) Any diversion agreement entered into in lieu of further criminal proceedings shall include:

(a) A provision that, if the defendant fulfills the obligations of the agreement in the judgment of the court, the criminal charges will be dismissed either with prejudice or without prejudice at the judge's discretion.

(b) A waiver by the defendant of all rights under the laws or constitutions of Mississippi or the United States to a speedy trial and to trial by jury.

(c) The defendant's full name.

(d) The defendant's full name at the time the complaint was filed, if different.

(e) The defendant's sex, race and date of birth.

(f) The crime with which the defendant is charged.

(g) The date the complaint was filed.

(h) The court with which the agreement was filed.

(i) A stipulation of the facts upon which the charge was based, as agreed to by the defendant and the district attorney, and a provision that if the defendant fails to fulfill the terms of the specific diversion agreement and the criminal proceedings on the complaint are resumed, that the proceedings, including any proceedings of appeal, shall be conducted on the record of the stipulation of facts relating to the complaint.

(j) That the defendant will be required to pay a probation supervision fee.

(k) That in cases where applicable the defendant will be required to pay restitution to the victim.

(l) That once the defendant is receiving treatment as an outpatient or living in a halfway house, he will try, to the best of his ability, to obtain gainful employment.

(3) A divertee shall pay the cost of the treatment program to which he is assigned and the cost of any additional supervision that may be required, to the extent of his financial resources.

If the divertee does not have the financial resources to pay all the related costs of the diversion program, the court:

(a) Shall, to the extent practicable, arrange for the divertee to be assigned to a program at a facility that receives a sufficient amount of federal or state funding to offset the remainder of the costs; and

(b) May order the divertee to perform supervised work for the benefit of the community in lieu of paying the remainder of the costs relating to his treatment and supervision. The work must be performed for and under the supervising authority of a county, municipality or other political subdivision or agency of the State of Mississippi or a charitable organization that renders service to the community or its residents.

SECTION 5. (1) Criminal charges will be stayed while the divertee is enrolled in or being evaluated for the diversion program. As long as the divertee follows the conditions of his agreement, the stay will be effective. At the end of the diversion period, the district attorney, on advice of both the person providing the divertee's treatment and the divertee's probation officer, can recommend that:

(a) The prosecution resume because the divertee has not successfully completed the treatment and has violated its conditions;

(b) The divertee continue the program; or

(c) The charges against the divertee be dismissed with or without prejudice because he has successfully completed all the conditions of his treatment agreement.

(2) (a) If a divertee violates any of the conditions of his treatment agreement, or appears to be performing unsatisfactorily in the assigned program, or if it appears that the divertee is not benefiting from education, treatment or rehabilitation, either the treatment provider, probation officer or the district attorney may move the court for a hearing to determine whether the divertee should remain in the program or if he should be removed from the program. If at the hearing the moving party can show sufficient proof that the divertee has violated his treatment agreement and has not shown a willingness to submit to rehabilitation, the divertee should be removed from the program or his treatment agreement should be changed to meet the divertee's specific needs.

(b) If the court finds that the divertee should be removed from the diversion program, then the stay in the criminal proceedings will be lifted, and the defendant will be sentenced in accordance with his guilty plea. The court may enter an adjudication of guilt and proceed as otherwise provided.

(c) If a divertee fails to complete the program, and is thereafter sentenced to imprisonment for the offense, he is entitled to credit for the time served on the diversion program.

(d) At any time and for any appropriate reason, the divertee, his probation officer, his treatment provider or the district attorney may petition the court to reconsider, suspend or modify its order for rehabilitation or treatment of the divertee.

(3) The appropriate drug treatment provider or program shall report to the district attorney at any periodic reporting period the court requires, and whenever the divertee's treatment is changed from an inpatient to an outpatient basis, is transferred to another treatment center or program, fails to submit to or follow the prescribed rehabilitation or treatment, becomes a discipline problem, is rehabilitated, or obtains the maximum benefits of rehabilitation or treatment.

SECTION 6. Upon successful completion of the treatment program and its terms and conditions, the court, after receiving the recommendation from the district attorney, shall vacate the judgment of conviction and dismiss the criminal proceedings against the divertee.

SECTION 7. (1) Discharge and dismissal under this act is not a conviction for the purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the additional penalties imposed for second or subsequent convictions. There may be only one (1) discharge and dismissal under this act. This record shall be furnished to a court or law enforcement agency upon request for the purposes of showing that a defendant in a criminal action alleging the possession or use of alcohol, or a violation of the controlled substance law, has already once utilized this act.

(2) Upon successful completion of a diversion program, the arrest upon which the diversion was based shall be deemed never to have occurred. The divertee may indicate in response to any question concerning his prior criminal record that he was not arrested or diverted for such offense. The non-public record pertaining to an arrest resulting in successful completion of a diversion program shall not, without the divertee's consent, be used in any way which could result in the denial of any employment, benefit, license or certificate.

SECTION 8. Nothing contained in this act shall confer a right or an expectation of a right to treatment for a defendant or offender within the criminal justice system.

SECTION 9. Each divertee shall contribute to the cost of substance abuse treatment received in the drug treatment court program based upon guidelines developed by that drug treatment court in consultation with the Administrative Office of Courts.

SECTION 10. The Administrative Office of Courts shall develop a method of evaluation so that the effectiveness of the drug court treatment pilot program can be measured. These evaluations will be compiled every quarter and sent to the Administrative Office of Courts.

SECTION 11. A non-public record of the fact that an individual has participated in a diversion program shall be sent to the office of the Attorney General and shall be made available upon request to any district attorney who subsequently considers diversion of such individual.

SECTION 12. At such time that a defendant's case is diverted, any bail bond or undertaking or deposit in lieu thereof on file by or on behalf of the defendant for that charge shall be satisfied and the court shall enter an order so directing.

SECTION 13. The Attorney General of the State of Mississippi is hereby directed to submit this act, immediately upon approval by the Governor, or upon approval by the Legislature subsequent to a veto, to the Attorney General of the United States or to the United States District Court for the District of Columbia in accordance with the provisions of the Voting Rights Act of 1965, as amended and extended.

SECTION 14. This act shall take effect and be in force from and after July 1, 1998, or the date it is effectuated under Section 5 of the Voting Rights Act of 1965, as amended and extended, whichever is later.