2002 Regular Session
To: Judiciary A; Appropriations
By: Representative Clarke
AN ACT RELATING TO SUBSTANCE ABUSE TREATMENT PROGRAMS; TO PROVIDE GOALS FOR TREATMENT-BASED DRUG COURT PROGRAMS; TO REQUIRE CIRCUIT COURT DISTRICTS TO ESTABLISH A MODEL OF TREATMENT-BASED DRUG COURT PROGRAMS FOR CERTAIN PURPOSES; TO PROVIDE CRITERIA; TO PROVIDE LEGISLATIVE INTENT; TO PROVIDE CERTAIN PRINCIPLES FOR OPERATING DRUG COURT PROGRAMS; TO PROVIDE FOR INCLUSION OF CERTAIN PROGRAMS IN SUCH DRUG COURT PROGRAMS; TO PROVIDE FOR TRANSFERRING PERSONS ELIGIBLE FOR PARTICIPATION IN DRUG COURT TREATMENT PROGRAMS TO OTHER JURISDICTIONS UNDER CERTAIN CIRCUMSTANCES; TO PROVIDE CRITERIA, REQUIREMENTS AND LIMITATIONS; TO PROVIDE THAT PERSONS CHARGED WITH SPECIFIED CRIMES MAY BE ELIGIBLE FOR ADMISSION INTO A PRETRIAL SUBSTANCE ABUSE PROGRAM; TO PROVIDE FOR A MISDEMEANOR PRETRIAL SUBSTANCE ABUSE EDUCATION AND TREATMENT INTERVENTION PROGRAM; TO PROVIDE FOR ADMITTING CERTAIN PERSONS TO THE PROGRAM UNDER CERTAIN CIRCUMSTANCES; TO PROVIDE FOR DISPOSITION OF PERSONS IN THE PROGRAM; TO PROVIDE CONTRACTING REQUIREMENTS FOR ENTITIES PROVIDING SUCH A PROGRAM; TO AMEND SECTIONS 41-29-149 AND 41-29-150, MISSISSIPPI CODE OF 1972, IN CONFORMITY THERETO; AND FOR RELATED PURPOSES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:
SECTION 1. (1) It is the intent of the Legislature to implement treatment-based drug court programs in each circuit court district in an effort to reduce crime and recidivism, abuse and neglect cases, and family dysfunction by breaking the cycle of addiction which is the most predominant cause of cases entering the justice system. The Legislature recognizes that the integration of judicial supervision, treatment, accountability and sanctions greatly increases the effectiveness of substance abuse treatment. The Legislature also seeks to ensure that there is a coordinated, integrated, and multidisciplinary response to the substance abuse problem in this state, with special attention given to creating partnerships between the public and private sectors and to the coordinated, supported and integrated delivery of multiple-system services for substance abusers, including a multiagency team approach to service delivery.
(2) Each circuit court district shall establish a model of a treatment-based drug court program under which persons in the justice system assessed with a substance abuse problem will be processed in such a manner as to appropriately address the severity of the identified substance abuse problem through treatment plans tailored to the individual needs of the participant. It is the intent of the legislature to encourage the Department of Corrections, the Department of Human Services, the State Department of Health, the Department of Public Safety, and such other agencies, local governments, law enforcement agencies and other interested public or private sources to support the creation and establishment of these problem-solving court programs. Participation in the treatment-based drug court programs does not divest any public or private agency of its responsibility for a child or adult, but allows these agencies to better meet their needs through shared responsibility and resources.
(3) The treatment-based drug court programs shall include therapeutic jurisprudence principles and adhere to the following ten (10) key components, recognized by the Drug Courts Program Office of the Office of Justice Programs of the United States Department of Justice:
(a) Drug court programs integrate alcohol and other drug treatment services with justice system case processing.
(b) Using a nonadversarial approach, prosecution and defense counsel promote public safety while protecting participants' due process rights.
(c) Eligible participants are identified early and promptly placed in the drug court program.
(d) Drug court programs provide access to a continuum of alcohol, drug and other related treatment and rehabilitation services.
(e) Abstinence is monitored by frequent testing for alcohol and other drugs.
(f) A coordinated strategy governs drug court program responses to participants' compliance.
(g) Ongoing judicial interaction with each drug court program participant is essential.
(h) Monitoring and evaluation measure the achievement of program goals and gauge program effectiveness.
(i) Continuing interdisciplinary education promotes effective drug court program planning, implementation and operations.
(j) Forging partnerships among drug court promotes, public agencies and community-based organizations generates local support and enhances drug court program effectiveness.
(4) Treatment-based drug court programs may include pretrial intervention programs.
(5) (a) The Mississippi Association of Drug Court Program Professionals is created. The membership of the association may consist of drug court program practitioners who comprise the multidisciplinary drug court program team, including, but not limited to, judges, district attorneys, defense counsel, drug court program coordinators, probation officers, law enforcement officers, members of the academic community and treatment professionals. Membership in the association shall be voluntary.
(b) The association shall annually elect a chair whose duty is to solicit recommendations from members on issues relating to the expansion, operation and institutionalization of drug court programs. The chair is responsible for providing the association's recommendations to the Administrative Office of Courts, and shall submit a report each year, on or before October 1, to the Administrative Office of Courts.
SECTION 2. (1) Any person eligible for participation in a drug court treatment program pursuant to Section 3 of this act may be eligible to have the case transferred to a county other than that in which the charge arose if the drug court program agrees and if the following conditions are met:
(a) The authorized representative of the drug court program of the county requesting to transfer the case shall consult with the authorized representative of the drug court program in the county to which transfer is desired.
(b) If approval for transfer is received from all parties, the trial court shall enter a transfer order directing the clerk to transfer the case to the county which has accepted the defendant into its drug court program.
(c) The transfer order shall include a copy of the probable cause affidavit, any charging documents in the case, all reports, witness statements, test results, evidence lists and other documents in the case, the defendant's mailing address and phone number and the defendant's written consent to abide by the rules and procedures of the receiving county's drug court program.
(d) After the transfer takes place, the clerk shall set the matter for a hearing before the drug court program judge and the court shall ensure the defendant's entry into the drug court program.
(e) The jurisdiction to which the case has been transferred shall dispose of the case pursuant to Section 3 of this act. If the defendant does not complete the drug court program successfully, the case shall be prosecuted as determined by the state attorneys of the sending and receiving counties.
SECTION 3. (1) Notwithstanding any provisions of this section, a person who is charged with purchase or possession of a controlled substance, tampering with evidence, solicitation for purchase, obtaining a prescription by fraud and who has not been charged with a crime, involving violence, including, but not limited to, murder, sexual battery, robbery, car jacking, home-invasion robbery, or any other crime involving violence and who has not previously been convicted of a felony nor been admitted to a felony pretrial program, is eligible for admission into a pretrial substance abuse education and treatment intervention program approved by the senior judge of the circuit court district, for a period of not less than one (1) year in duration, upon motion of either party or the courts own motion, except:
(a) If a defendant was previously offered admission to a pretrial substance abuse education and treatment intervention program at any time prior to trial and the defendant rejected that offer on the record, then the court or the district attorney may deny the defendant's admission to such a program.
(b) If the district attorney believes that the facts and circumstances of the case suggest the defendant's involvement in the dealing and selling of controlled substances, the court shall hold a preadmission hearing. If the district attorney establishes, by a preponderance of the evidence at such hearing, that the defendant was involved in the dealing or selling of controlled substances, the court shall deny the defendant's admission into a pretrial intervention program.
(2) The senior judge in each circuit court district may appoint an advisory committee for the pretrial intervention program composed of the senior judge, or his or her designee, who shall serve as chair; the district attorney, the public defendant and the program administrator, or their designees; and such other persons as the chair deems appropriate. The advisory committee may not designate any defendant eligible for a pretrial intervention program for any offense not listed under subsection (1) of this section without the district attorney's recommendation and approval. The committee may also include persons representing any other agencies to which persons released to the pretrial intervention program may be referred.
SECTION 4. (1) A person who is charged with a misdemeanor for possession of a controlled substance or drug paraphernalia, and who has not previously been convicted of a felony nor been admitted to a pretrial program, is eligible for admission into a misdemeanor pretrial substance abuse education and treatment intervention program approved by the senior judge of the circuit court district, for a period based on the program requirements and the treatment plan for the offender, upon motion of either party or the court's own motion, except, if the district attorney believes the facts and circumstances of the case suggest the defendant is involved in dealing and selling controlled substances, the court shall hold a preadmission hearing. If the district attorney establishes, by a preponderance of the evidence at such hearing, that the defendant was involved in dealing or selling controlled substances, the court shall deny the defendant's admission into the pretrial intervention program.
(2) At the end of the pretrial intervention period, the court shall consider the recommendation of the treatment program and the recommendation of the district attorney as to disposition of the pending charges. The court shall determine, by written finding, whether the defendant successfully completed the pretrial intervention program.
(a) If the court finds that the defendant has not successfully completed the pretrial intervention program, the court may order the person to continue in education and treatment or return the charges to the criminal docket for prosecution.
(b) The court shall dismiss the charges upon finding that the defendant has successfully completed the pretrial intervention program.
(3) Any public or private entity providing a pretrial substance abuse education and treatment program under this section shall contract with the county or appropriate governmental entity.
SECTION 5. Section 41-29-149, Mississippi Code of 1972, is amended as follows:
41-29-149. (a) Regardless of the penalties provided heretofore for the violation of any section or portion of this article, the judge of the court of jurisdiction of any defendant may, in his discretion, suspend such penalty, penalties, or portions thereof, or place such defendant in a treatment-based drug court program as provided by Sections 1 through 4 of House Bill No. , 2002 Regular Session, for any person charged with a first offense.
(b) A person convicted under this article or under any prior law superseded by this article for a violation of the law regarding controlled substances shall be eligible for parole just as in any other criminal conviction as provided by Section 47-7-3.
(c) Any person who was convicted and/or who is still serving a sentence in the Mississippi State Penitentiary for a first offense under any prior law superseded by this article may petition the court of original jurisdiction for resentencing under the provisions of this article.
(d) Any person previously indicted under a prior law for violation of any law regarding controlled substances but not yet sentenced shall be sentenced under the provisions of this article provided that the sentence imposed is not greater than that provided under said prior law.
(e) For the purposes of the sentencing provisions of this article, a first offense shall be deemed to be and include any offense, offenses, act or acts prohibited by said law, or any prior law superseded by said law, committed prior to a first indictment under said law or under prior law superseded by said law.
SECTION 6. Section 41-29-150, Mississippi Code of 1972, is amended as follows:
41-29-150. (a) Any person convicted under Section 41-29-139 may be required, in the discretion of the court, as a part of the sentence otherwise imposed, or in lieu of imprisonment in cases of probation or suspension of sentence, to attend a course of instruction conducted by the bureau, the State Board of Health, or any similar agency, on the effects, medically, psychologically and socially, of the misuse of controlled substances or a treatment-based drug court program as provided by Sections 1 through 4 of House Bill No. , 2002 Regular Session. Said course may be conducted at any correctional institution, detention center or hospital, or at any center or treatment facility established for the purpose of education and rehabilitation of those persons committed because of abuse of controlled substances.
(b) Any person convicted under Section 41-29-139 who is found to be dependent upon or addicted to any controlled substance shall be required, as a part of the sentence otherwise imposed, or in lieu of imprisonment in cases of parole, probation or suspension of sentence, to receive medical treatment for such dependency or addiction or attend a treatment-based drug court program. The regimen of medical treatment may include confinement in a medical facility of any correctional institution, detention center or hospital, or at any center or facility established for treatment of those persons committed because of a dependence or addiction to controlled substances.
(c) Those persons previously convicted of a felony under Section 41-29-139 and who are now confined at the Mississippi State Hospital at Whitfield, Mississippi, or at the East Mississippi State Hospital at Meridian, Mississippi, for the term of their sentence shall remain under the jurisdiction of the Mississippi Department of Corrections and shall be required to abide by all reasonable rules and regulations promulgated by the director and staff of said institutions and of the Department of Corrections. Any persons so confined who shall refuse to abide by said rules or who attempt an escape or who shall escape shall be transferred to the State Penitentiary or to a county jail, where appropriate, to serve the remainder of the term of imprisonment; this provision shall not preclude prosecution and conviction for escape from said institutions.
(d) (1) If any person who has not previously been convicted of violating Section 41-29-139, or the laws of the United States or of another state relating to narcotic drugs, stimulant or depressant substances, other controlled substances or marihuana is found to be guilty of a violation of subsection (c) or (d) of Section 41-29-139, after trial or upon a plea of guilty, the court may, without entering a judgment of guilty and with the consent of such person, defer further proceedings and place him on probation upon such reasonable conditions as it may require and for such period, not to exceed three (3) years, as the court may prescribe. Upon violation of a condition of the probation, the court may enter an adjudication of guilt and proceed as otherwise provided. The court may, in its discretion, dismiss the proceedings against such person and discharge him from probation before the expiration of the maximum period prescribed for such person's probation. If during the period of his probation such person does not violate any of the conditions of the probation, then upon expiration of such period the court shall discharge such person and dismiss the proceedings against him. Discharge and dismissal under this subsection shall be without court adjudication of guilt, but a nonpublic record thereof shall be retained by the bureau solely for the purpose of use by the courts in determining whether or not, in subsequent proceedings, such person qualifies under this subsection. Such discharge or dismissal shall not be deemed a conviction for purposes of disqualifications or disabilities imposed by law upon conviction of a crime, including the penalties prescribed under this article for second or subsequent conviction, or for any other purpose. Discharge and dismissal under this subsection may occur only once with respect to any person; and
(2) Upon the dismissal of such person and discharge of proceedings against him under paragraph (1) of this subsection, or with respect to a person who has been convicted and adjudged guilty of an offense under subsection (c) or (d) of Section 41-29-139, or for possession of narcotics, stimulants, depressants, hallucinogens, marihuana, other controlled substances or paraphernalia under prior laws of this state, such person, if he had not reached his twenty-sixth birthday at the time of the offense, may apply to the court for an order to expunge from all official records, other than the nonpublic records to be retained by the bureau under paragraph (1) of this subsection, all recordation relating to his arrest, indictment, trial, finding of guilty, and dismissal and discharge pursuant to this section. If the court determines, after hearing, that such person was dismissed and the proceedings against him discharged and that he had not reached his twenty-sixth birthday at the time of the offense, or that such person had satisfactorily served his sentence or period of probation and parole, and that he had not reached his twenty-sixth birthday at the time of the offense, it shall enter such order. The effect of such order shall be to restore such person, in the contemplation of the law, to the status he occupied before such arrest or indictment. No person as to whom such order has been entered shall be held thereafter under any provision of any law to be guilty of perjury or otherwise giving a false statement by reason of his failures to recite or acknowledge such arrest, or indictment or trial in response to any inquiry made of him for any purpose.
(e) Every person who has been or may hereafter be convicted of a felony offense under Section 41-29-139 and sentenced under Section 41-29-150(c) shall be under the jurisdiction of the Mississippi Department of Corrections.
(f) It shall be unlawful for any person confined under the provisions of subsection (b) or (c) of this section to escape or attempt to escape from said institution, and upon conviction said person shall be guilty of a felony and shall be imprisoned for a term not to exceed two (2) years.
(g) It is the intent and purpose of the Legislature to promote the rehabilitation of persons convicted of offenses under the Uniform Controlled Substances Law.
SECTION 7. This act shall take effect and be in force from and after July 1, 2002.