Does the Stewart decision require Tennessee drug court judges to recuse themselves before imposing short jail sanctions on a drug court participant, and do those participants get full probation-revocation due process when facing remedial incarceration?

Subject

Opinion No. 11-10, Drug Court Treatment Programs, January 18, 2011

Plain-English summary

The Tennessee Court of Criminal Appeals decided State v. Brent R. Stewart, 2010 WL 3293920 (Aug. 18, 2010), holding that due process was violated when a judge who had served on a defendant's drug court team later presided over the defendant's probation revocation hearing involving the same conduct. After termination from the program, that judge had received considerable ex parte information about the defendant through team participation and could no longer serve as a neutral and detached arbiter at the revocation proceeding.

The AG was asked how Stewart affects three things in Tennessee drug court treatment programs (DCTPs):

1. Whether the drug court team may discuss infractions and vote on sanctions, up to and including incarceration or termination. Yes. Tenn. Code Ann. § 16-22-104(6) directs the drug court team to develop a coordinated strategy for responding to noncompliance, and the National Association of Drug Court Professionals' Key Components contemplates a continuum of sanctions, including escalating periods of jail confinement. Team discussion and vote are appropriate.
2. Whether a participant facing a brief period of incarceration as a remedial sanction (but not termination) is entitled to a formal probation-revocation hearing with written notice, a hearing, and counsel. No. Brief incarceration as a sanction for noncompliance is an integral part of the drug court model. The drug court framework is nonadversarial, and the participant has waived some formal procedural protections in exchange for the chance at treatment. The participant may always refuse the sanction and exit the program, in which case the participant is returned to the traditional criminal justice system with all constitutional rights, including the right to a probation violation hearing in the sentencing court, restored. Certification criteria still require written operating procedures, explained at orientation, that protect due process.
3. Whether the DCTP judge must recuse before imposing a remedial-incarceration sanction. No. The Stewart rule does not extend to in-program sanctions. The drug court judge is an essential, supervising member of the treatment team and is expected to maintain ongoing interaction with the participant. The collaborative, nonadversarial nature of an in-program sanction does not raise the same neutral-arbiter problem that Stewart identified, which arose only after termination when the judge sat on a punitive probation revocation involving the same conduct.

The AG drew a sharp distinction between two phases. While the participant is in the program, the judge plays a problem-solving role with continuity benefits; brief sanctions are part of treatment. After termination, the judge's prior team involvement becomes a recusal problem because the revocation proceeding is adversarial, punitive, and demands a neutral fact-finder.

Currency note

This opinion was issued in 2011. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Did Stewart say drug courts can't impose any incarceration?

No. Stewart did not address sanctions inside the drug court program. It addressed what happens after the participant is terminated and the case returns to traditional criminal sentencing or probation revocation. Stewart found a due process violation where the same judge who had been on the treatment team presided over the post-termination revocation hearing, because the judge had received considerable ex parte information through the team about the same conduct.

What's the legal basis for letting a drug court judge participate in sanctioning without recusal?

The treatment-court model itself. Tennessee's Drug Control Treatment Act of 2003 (Tenn. Code Ann. §§ 16-22-101 through -114) directs courts to follow the general principles set by the National Association of Drug Court Professionals, which include ongoing judicial interaction as an essential component (§ 16-22-104(7)), a nonadversarial approach (§ 16-22-104(2)), and a coordinated team strategy for responding to noncompliance (§ 16-22-104(6)). The whole structure presumes the same judge stays involved.

If there's no formal hearing for in-program sanctions, what protects the participant?

Three things. First, the participant signed up voluntarily and was on notice that incarceration was a possible sanction. Second, the participant can always decline a sanction and exit the program, which restores all the regular criminal-process rights including a probation revocation hearing in the sentencing court. Third, the program's certification requires written operating procedures that lay out the sanction framework, that are explained during orientation, and that are periodically reinforced (per the 2010 Drug Court Certification Overview from the Tennessee Department of Finance and Administration).

What changes after termination?

Once the participant is terminated, the case typically returns to the regular criminal-process track, often through a probation violation proceeding. At that point the proceeding is adversarial and punitive, and the Stewart court held that due process requires a neutral arbiter who has not received ex parte information from the team about the same conduct. The judge who served on the team must step aside; a different judge must handle the revocation.

So the same judge can put a participant in jail for a few days as a team-voted sanction, but cannot then preside over a revocation hearing if the participant is terminated?

That's the line the AG drew. The first is treatment-team supervision in a nonadversarial framework. The second is adversarial, punitive sentencing that demands an unbiased fact-finder.

Does this opinion bind drug courts?

AG opinions are persuasive authority, not binding precedent. Courts retain ultimate authority over what due process requires. But the AG's analysis aligns the in-program sanctions practice with the express statutory framework and with Stewart's specific reasoning (which focused on post-termination revocation), and would be persuasive to a court analyzing the question.

Background and statutory framework

Tennessee's drug courts operate under the Drug Control Treatment Act of 2003, Tenn. Code Ann. §§ 16-22-101 through -114, which authorizes drug court treatment programs (DCTPs). The Act defines a DCTP as a program created within the state that follows the general principles in § 16-22-104 and is established by the judge of a court exercising criminal jurisdiction or a juvenile court judge. Tenn. Code Ann. § 16-22-103(2). The legislative purpose is "to reduce the incidence of drug use, drug addiction and crimes committed as a result of drug use and drug addiction." Tenn. Code Ann. § 16-22-102(a).

The General Assembly directed drug courts to follow the general principles "as established by the National Association of Drug Court Professionals, Drug Court Standards Committee." Tenn. Code Ann. § 16-22-104. The NADCP's Defining Drug Courts: The Key Components (U.S. Dep't of Justice, Bureau of Justice Assistance 1997) lays out the operating framework that Tennessee adopted by reference.

Key features baked into the statute:

• Nonadversarial team approach: Prosecutors and defense counsel work as a team using a nonadversarial approach. Tenn. Code Ann. § 16-22-104(2).
• Active judicial role: The judge leads the drug court team and is expected to have ongoing interaction with each drug court participant as an essential component of the program. Tenn. Code Ann. § 16-22-104(7).
• Coordinated noncompliance strategy: The team develops a coordinated strategy for responding to noncompliance. Tenn. Code Ann. § 16-22-104(6).

Operationally, certain drug cases are processed through drug court after a plea of guilty. The defendant signs a contract requiring intensive therapy and periodic appearances. Sanctions for violations include incarceration and dismissal from the program. The team typically includes a judge, a prosecutor, defense counsel, probation authorities, a law enforcement representative, and treatment professionals.

On the due process question, the AG worked through Stewart's reasoning: in that case, the trial court judge who participated on the defendant's drug court team later presided over the defendant's probation revocation proceeding after termination, when the violations or conduct at issue in both forums involved the same or related subject matter. The Court of Criminal Appeals found that the judge had stepped beyond the traditionally independent and objective arbiter role, was expected to play an active role in the participant's drug treatment, and had received a considerable amount of ex parte communication that could impact the subsequent revocation decision. Due process required that the post-termination revocation be reviewed by a neutral and detached arbiter, not the team judge.

The AG distinguished Stewart on three grounds for in-program sanctions:

1. The sanction is imposed inside a nonadversarial, treatment-oriented framework with knowing, voluntary consent from the participant.
2. The participant can decline the sanction and exit, restoring all regular criminal-process rights.
3. Certification requirements demand written operating procedures that protect due process and that the program orientation and ongoing reminders disclose those procedures to the participant.

Combined with the statutory expectation of continuous judicial supervision, those features avoid the constitutional problem that arose in Stewart's post-termination revocation context.

Citations

• Tenn. Code Ann. §§ 16-22-101 through -114 (Drug Control Treatment Act of 2003)
• Tenn. Code Ann. § 16-22-102(a) (purpose of drug courts)
• Tenn. Code Ann. § 16-22-103(2) (DCTP definition)
• Tenn. Code Ann. § 16-22-104 (general principles, NADCP standards)
• Tenn. Code Ann. § 16-22-104(2) (nonadversarial team approach)
• Tenn. Code Ann. § 16-22-104(6) (coordinated noncompliance strategy)
• Tenn. Code Ann. § 16-22-104(7) (ongoing judicial interaction)
• State v. Brent R. Stewart, No. W2009-00980-CCA-R3-CD, 2010 WL 3293920 (Tenn. Crim. App. Aug. 18, 2010)
• National Association of Drug Court Professionals, Defining Drug Courts: The Key Components (U.S. Dep't of Justice, Bureau of Justice Assistance 1997)
• Tennessee Department of Finance and Administration, 2010 Drug Court Certification Overview
• Peggy Fulton Hora, Drug Treatment Courts in the Twenty-First Century: the Evolution of the Revolution in Problem-Solving Courts, 42 Ga. L. Rev. 717 (2008)

Source

• Landing page: https://www.tn.gov/attorneygeneral/opinions.html
• Original PDF: https://www.tn.gov/content/dam/tn/attorneygeneral/documents/ops/2011/op11-010.pdf

Original opinion text

Drug Court Treatment Programs

QUESTIONS

In State v. Brent R. Stewart, No. W2009-00980-CCA-R3-CD, 2010 WL 3293920 (Tenn. Crim. App. Aug. 18, 2010), the Court of Criminal Appeals held that a defendant, who was part of a Drug Court Treatment Program (DCTP), was denied his due process rights when the judge presiding over his probation revocation hearing had previously served as a member of his drug court team and had received ex parte information regarding the defendant's conduct at issue by virtue of prior involvement. In light of that opinion, the following questions have arisen:

1. Can a drug court team discuss sanctions for infractions committed by a participant and decide by vote on the appropriate punishments, including, but not limited to: additional community service, additional meetings, incarceration for a finite period of time, or termination from the program?

2. Is a DCTP participant who, because of his failure to comply with basic program requirements, is facing a period of incarceration, but not termination from the program, entitled to

a. written notice of the claimed violation?
b. a probation violation hearing?
c. representation by counsel?

3. Must the judge who presides over the DCTP team recuse himself and appoint a different judge to determine sanctions for a participant who is facing a period of incarceration for noncompliance, but not termination from the DCTP?

OPINIONS

1. Yes.

2.
a. No.
b. No.
c. No.

3. No.

ANALYSIS

1. The "Drug Control Treatment Act of 2003" authorized drug court treatment programs in Tennessee. Tenn. Code Ann. §§ 16-22-101 through -114 (2009 & Supp. 2010). A "drug court treatment program" (DCTP) is defined as "any drug court treatment program created within the state that follows the general principles referenced in § 16-22-104 and that is established by the judge of a court in this state exercising criminal jurisdiction or by the judge of a juvenile court." Tenn. Code Ann. § 16-22-103(2). The General Assembly intended for drug courts to operate in accordance with the general principles "as established by the National Association of Drug Court Professionals, Drug Court Standards Committee." Tenn. Code Ann. § 16-22-104.

Under a DCTP, certain drug cases will be processed through a drug court after a plea of guilty. Thereafter, the defendants will enter into contracts requiring them to undergo intensive therapy and appear periodically in drug court. The sanctions for violations include incarceration and dismissal from the program.

The purpose of a drug court is to "reduce the incidence of drug use, drug addiction and crimes committed as a result of drug use and drug addiction." Tenn. Code Ann. § 16-22-102(a). Under the Act, a "drug court" is not a "court" in the jurisprudential sense; it is a treatment program and an extension of the court that establishes it. In most drug court programs, eligible participants are sent to drug court in lieu of the traditional criminal justice system. National Association of Drug Court Professionals, What Are Drug Courts?, available at http://www.nadcp.org (visited Oct. 12, 2010). The program uses a team, which includes a judge, a prosecutor, defense counsel, probation authorities, a law enforcement representative, and treatment professionals, to assist and encourage defendants to accept help in overcoming their addictions. The National Association of Drug Court Professionals, Drug Court Standards Committee, Defining Drug Courts: The Key Components (U.S. Dep't of Justice, Bureau of Justice Assistance 1997) (hereafter "Defining Drug Courts"). To achieve the goals of the DCTP, prosecution and defense counsel are directed to work together as a team and "use a nonadversarial approach." Tenn. Code Ann. § 16-22-104(2). The judge is the leader of the drug court team and is expected to have "ongoing . . . interaction with each drug court participant as an essential component of the program." Tenn. Code Ann. § 16-22-104(7). The drug court team is directed to develop a coordinated strategy for responding to noncompliance by a participant. Tenn. Code Ann. § 16-22-104(6). This coordinated strategy can include a continuum of sanctions, such as warnings from the bench, demotion to earlier steps in the program, increased monitoring, community service, fines, and "escalating periods of jail confinement." Defining Drug Courts at 14. The DCTP team must develop standards that "emphasize[ ] the predictability, certainty, and swiftness of [the] application" of sanctions, while allowing for program flexibility and the tailoring of different responses to fit the demographics and needs of each individual and jurisdiction. Id. Accordingly, it would be entirely appropriate for a treatment team to discuss infractions committed by a participant and to decide by vote which sanction(s) to recommend for a noncomplying participant.

2. Your next three questions focus on due process concerns when a DCTP participant is facing incarceration, but not termination from the program, as a sanction for noncompliance and will be addressed together to avoid duplicative answers.

All drug court treatment programs in Tennessee must operate according to the general principles outlined in Tenn. Code Ann. § 16-22-104. The general principles include a requirement that the drug courts integrate treatment services with justice system case processing and use ongoing judicial interaction with each drug court participant as an essential component of the program. Beyond these general principles, the Act provides little guidance regarding the operation of drug courts, including the procedure to follow when imposing sanctions. In general, under the drug court model, participants are asked to waive some of their rights in exchange for the opportunity to receive treatment and avoid incarceration. A defendant who has voluntarily entered the drug treatment court alternative may still decide to refuse sanctions and leave the program. The defendant would then return to the traditional criminal justice system, with all his or her constitutional rights reinstated, including the right to a probation violation hearing in the sentencing court.

Brief periods of incarceration for noncompliance with the terms of the treatment program are an integral part of drug treatment courts. Defining Drug Courts at 14. However, there is no requirement for a formal hearing with written notice and representation by counsel when the drug court team determines that a remedial period of incarceration is necessary to ensure the participant's future compliance and successful completion of the program. This is in keeping with the general principles of the drug court treatment act, which emphasize the use of a nonadversarial approach and flexibility in responses to participant's successes or infractions. Id. Moreover, because the DCTP team has agreed in advance that incarceration is an available sanction, and the participant has knowingly and voluntarily consented to this process when he or she enrolled in the program, a formal adversarial hearing with written notice and representation by counsel is not required. See Peggy Fulton Hora, Drug Treatment Courts in the Twenty-First Century: the Evolution of the Revolution in Problem-Solving Courts, 42 Ga. L. Rev. 717, 762 (2008). Despite this, the certification criteria for DCTP in Tennessee include a requirement that the program have written operating procedures that protect the participants' due process rights. Department of Finance and Administration, 2010 Drug Court Certification Overview. The operating procedures must address the program's plan for imposing sanctions, including procedures for reporting noncompliance. The procedures should be explained to the participant and provided in writing during program orientation. Additionally, periodic reminders of responses to compliance and noncompliance should be given throughout the program. Id. Such safeguards protect a participant from a denial of due process.

3. There is no requirement for the judge who presides over the DCTP team to recuse himself and appoint a different judge to determine sanctions for a participant who is facing a period of incarceration for noncompliance. In Stewart, the Court of Criminal Appeals held that the Due Process Clause bars a trial court judge who participated on the defendant's drug court team from presiding over that defendant's probation revocation proceeding after the defendant has been terminated from the program "when the violations or conduct at issue in both forums involves the same or related subject matter." Id. at 1. The court reached this conclusion after examining the role of the judge in the drug court treatment program, which requires him to "step beyond [the] traditionally independent and objective arbiter role[ ]." Id. at 5. The judge is also expected to "play an active role in the [participant's] drug treatment process." Id. at 6. The court was also concerned that the judge, during the treatment process, receives a "considerable amount of ex parte communication" from and about the participant that could impact the decision in the subsequent probation revocation hearing. Id. at 8-9. From all this, the court determined that the defendant's due process right to a neutral hearing body was "violated when his probation revocation case [was] reviewed by something other than a 'neutral and detached' arbiter." Id. at *5.

Based on the unique nature and design of drug courts, it is our opinion that the holding in Stewart does not extend to proceedings to impose sanctions in the DCTP, even when the participant is facing a deprivation of his liberty. The judge is an essential member of the treatment team and is expected to maintain an active, supervising role on the team. The program guidelines require frequent and ongoing judicial interaction with each drug court participant. Defining Drug Courts at 15. To maintain continuity in the treatment process, the same judge should be involved in the participant's drug court appearances, thereby reducing the chance of inconsistent rulings that could be detrimental to the participant's treatment. See Hora, supra, 42 Ga. L. Rev. at 763. The collaborative, nonadversarial nature of a decision to impose sanctions in a DCTP, including remedial incarceration, does not raise the same due process concerns that were present in Stewart, where, after termination from the DCTP, the defendant faced punitive incarceration imposed by the judge who had participated on his DCTP team. See id. at 771-788 (discussing judicial discretion in drug courts, including the effectiveness of "regular and immediate delivery of sanctions and incentives").

ROBERT E. COOPER, JR.
Attorney General and Reporter

GORDON W. SMITH
Associate Solicitor General

RACHEL E. WILLIS
Senior Counsel

Requested by:
The Honorable Jerry Woodall
District Attorney General
26th Judicial District
Post Office Box 2825
Jackson, Tennessee 38302