Until Further Order Of The Court (Update)

Q. How long does a 48-hour hold last in drug court?

A. 154 Days.

At some point in every system, there is a dependency on human beings.  Whenever a system depends on human beings, there is the potential for failure.  Destiny Hoffman found that out the hard way, serving 154 days before a prosecutor, reviewing old cases, somehow noticed that she was still incarcerated.  From the Clark County, Indiana, News and Tribune:

A participant of the Clark County Drug Court Treatment Program sentenced to 48 hours in the Clark County jail was released from the facility Thursday — 154 days after being placed behind bars.

Destiny Hoffman, 34, Jeffersonville, was ordered to serve two days in jail on Aug. 22 by Clark County Circuit Court No. 2 Judge Jerry Jacobi.

Judge Jacobi presided over a drug court, a concept beloved by those who believe more strongly in therapeutic justice than due process or right to counsel.  The protections of the legal system are “relaxed” in exchange for a focus on rehabilitation rather than incarceration.  Of course, that doesn’t mean a defendant can’t be tossed in the clink for dirty urine.

The sentence came after Hoffman provided a diluted drug screen result, a violation of the drug court program, which Jacobi oversees.

Jacobi instructed the Clark County Sheriff’s Office through a bond notice to hold Hoffman under no bond and for her “to be held until further order of the court.”

The story provides no details on how Hoffman came to appear before Judge Jacobi without counsel.  Most likely, she appeared for a routine urine screening, came up dirty and was hustled into the courtroom by a matron with a snarl.  The judge likely did his best scared straight impression and dropped the gavel.  That’ll learn her, he thought to himself as he wondered what he would be served for dinner that night.

“Until further order of the court” is a common phrase, an open-ended invitation for the gang to show up at the designated time, hear lecture 2.0 and get another chance.  Maybe the court clerk neglected to put it on the calendar. Maybe the clerk forgot to contact Hoffman’s lawyer, Nathan Masingo, to let him know his client had been locked up. Maybe the clerk was supposed to prepare and send out an order to all involved about what happened in court that day.

According to court records, after Hoffman’s two-day jail sentence, she was to be “[held] pending evaluation and treatment recommendation,” but that evaluation or recommendation never took place.

Records show Jacobi ordered Hoffman’s incarceration without a hearing or legal counsel.

Drug court is the black hole of the legal system. The theory is to do good for defendants, to treat their addiction as an illness in need of rehabilitation rather than criminal conduct in need of imprisonment.  Conceptually, it’s a very positive step for defendants whose crime was caused by drug addiction.

But to gain the benefit of the altered focus, something has to give, and that something is the rigors of due process. It ranges from the ability to challenge the allegations against a defendant (after all, a person can’t possibly be drug addicted, in need of rehabilitation and innocent of the particular allegations against them) to the loosey-goosiness of defendants showing up for a tox-screen without anyone there to protect them it something goes awry.

The reason is simple: once a defendant enters the drug court program, the lawyer’s job is presumed to be done. After all, no one could possibly entertain the notion that a defendant could fall off the wagon, come in dirty, piss off the judge and wind up back in jail.  Well, maybe.

“An attorney should have been appointed for her,” Masingo said, had a hearing taken place after the drug court program violation that led to Hoffman’s loss of liberty. “What should of happened is I should have been reappointed to the case. I had no knowledge that she was even back in jail.”

Masingo explained that after an offender enters the drug court program, public defenders withdraw from the then-drug court particpant’s case, but when a person faces incarceration, legal representation should be provided.

But Judge Jacobi didn’t bother. Masingo wasn’t notified. No other lawyer was assigned. No hearing was held, because who needs a hearing when the judge knows what he’s going to do regardless, and who needs a lawyer if there isn’t going to be a hearing?

So in Hoffman went, until further order from the court.  And the Judge and his staff patted themselves on the back that day for a job well-done, and went home. Hoffman was forgotten, and so she and the jail awaited further order of the court.

Eventually, a prosecutor noticed a file with a missing body. This calls out for a bit more explanation, but the article fails to explain.  Perhaps there is a check mark for when a body goes in, but no check mark for when the body comes out.

In any event, to her credit, prosecutor Michaelia Gilbert acted immediately to end the 152-day screw up.  There is now an investigation as to culpability for Hoffman’s imprisonment of “two drug court program employees, Susan Knoebel and Jeremy Snelling,” who apparently found their ministerial task of transmitting and tracking the wrongful orders of the court unworthy of their time and attention.  Destiny Hoffman was unworthy of their time and attention.

“I can’t explain it,” Masingo said about how Hoffman ended up in jail so long. “It is something the court should have known about. Obviously, it fell off their docket, and they just forgot about it.

“For the last several months,” he added, “she has been sitting in jail without counsel and without knowing what is going on.”

In real court, things don’t fall off the docket. That’s because there is a lawyer responsible for defending the person, and a date when the case is back in court. In drug court, there is a black hole, and only a judge and court personnel know about it.

Hoffman was released after a hearing before Judge Steven Fleece, but he asked her a curious question:

When the judge asked Hoffman, who wore a green jumpsuit and rubber sandals, why she didn’t notify officials of her unlawful incarceration, she declined to comment.

Notify officials?  It’s a good question, but then, officials can be funny about inmates informing them that they should really be released already. And wasn’t that the court’s job anyway?

Update:  Via Radley Balko, it appears that Destiny Hoffman wasn’t the first drug court defendant to enjoy a little extra time on the public dole:

The News and Tribune reports Jason Ray O’Connor of Jeffersonville was released from the Clark County Jail on Friday after serving 215 days. He was ordered to spend 30 days behind bars last June.

While the details are sparse, it clearly wasn’t just destiny.


H/T ABA Journal

11 comments on “Until Further Order Of The Court (Update)

  1. Gritsforbreakfast

    How exactly is this different from somebody who shows up to a meeting with a probation officer without a lawyer and is jailed for a dirty UA? After all, “once a defendant enters the drug court program is put on probation, the lawyer’s job is presumed to be done. After all, no one could possibly entertain the notion that a defendant could fall off the wagon, come in dirty, piss off the judge and wind up back in jail.” What’s the difference?

    1. SHG Post author

      It’s not, as far as the potential of being lost in the hole. The difference is that probation reflects the potential for violation after sentence after receiving due process. He knows which side of the adversarial system he’s on. The other gave it away because the system is there to save him from himself, and chose to give away due process in exchange for help, which ended up being the black hole.

  2. PaulaMarie Susi

    Appalling. In the EDNY we have a standing Probation Officer, Federal Defender and Prosecutor assigned to the drug court that day. No one ever appears without counsel. period.

    1. SHG Post author

      I can’t imagine this ever happening in a federal court anywhere. Local courts are a completely different story.

  3. stavro375

    Stories like this make me wonder if we’ve all forgotten why drug use was criminalized in the first place. Nixon must have had said *something* to convince America to declare War on Drugs, wasn’t there something about preventing addiction and helping the most vulnerable in there somewhere?

    Stories like this also remind me of an old saying… “the bureaucracy is expanding to meet the needs of the expanding bureaucracy.” The War on Drugs passed that point a while ago, the War on Terror is nearing the tipping point of existing only to benefit its warriors… in retrospect, America really needs to stop declaring wars against entities incapable of surrendering.

  4. Anonsters

    While the details are sparse, it clearly wasn’t just destiny.

    For that, sirrah, I’m pretty sure you deserve a scheduled 2-day stint in the clink that lasts 200+ days.

    (P.S. It actually took me more than 2 seconds to think of the answer to the question _ x 1 = one. O tempora! O mores!)

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