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«From Inception to Implementation: How SACPA has affected the Case Processing and Sentencing of Drug Offenders in One California County DISSERTATION ...»

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Law enforcement officers contend that offenders are “not hiding [their drugs] as much. They don’t care if they get popped” (Confidential Informant, personal communication) because Proposition 36 removed the sanctions for drug crimes and probation violations. Officers are frustrated because they feel that Prop36 sends a message to offenders that drug use is no big deal. Law enforcement officers view drug possession as a serious crime for several reasons, including, as several officers pointed out, “it is a felony.” As far as offense seriousness is connected to punishment, officers feel that Prop36 sends the message that drug possession is not a serious crime because the sentence offenders receive (probation and treatment) is not sufficiently punitive. Officers want a stricter law, with some teeth and bite.

The frustration is that these people are offending multiple times and they are not getting anything compared to if they spray painted a wall multiple times.

You can’t expect any change in regards to offenders because there is no accountability, there is not punishment or penalty for repeat offenders.

I see the drug problem getting worse and worse because of the amount of opportunities we give people to turn themselves around and they don’t because there are no harsh punishments anymore.

The way you teach anybody is through sanctions. Whether they are positive or negative, whatever they are. Human beings require sanctions to learn. Prop36 doesn’t work.

The people who are career dopers… these are the guys who watch and keep an eye on the current laws and what our sentence recommendations are and as soon as we passed Prop36 and did all this diversion, the dopers started running amuck because there was no penalty for them.

Essentially, the guys who are on this are the ones doing all the other crimes because they have to support their habit. If you make it more strict and specific and enforce it that way, it will give us a little bit more of a hope instead of knowing that all our hard work is being pissed down the drain.

Furthermore, many officers are discouraged by this perceived lack of punishment because they feel their hard work is no longer validated. Officers, like most workers, want to know the work they do is important and appreciated. They derive satisfaction when their efforts are acknowledged. For officers, one of the main ways they derive satisfaction is when the courts endorse their arrests and offenders are suitably punished (preferably with a sentence involving incarceration). Because Proposition 36 changed how offenders are punished, it also inadvertently changed how officers feel about the work they do as it involves drug possession arrests.

I think the frustration is the fact that people are out there, officers are out there doing hard work arresting people, taking these people off the streets, and in return they’re not seeing anything that’s being done in the justice system, as far as seeing them go to jail for an amount of time. I think that’s the frustration… I mean I can only speak for myself, but that’s the frustration that I have. …So I think the frustration goes back to getting these people off the streets and not getting anything in return as far as justice being served.

What’s frustrating is we’ve got a stack of [arrest reports] out there which represents thousands of man hours spent following these people, catching these people, doing the reports, going to court and everything else and they just prop them anyway. What’s the sense of me doing it?

If tonight at 6:00 I’m working on an 11377 [possession of a dangerous drug] report that I know is not going to go anywhere, don’t you think I would rather be at my son’s open house? That stuff gets into play here.

Hey, why would I spend all this freaking time putting an airtight case together when the DA is just going to say “prop, prop, prop.” It takes them three seconds which just took me three hours and a weekend away from my family, doing follow-up…If you let all the dopers go down here, pretty soon the cops are going to be like “why do it?” Isn’t there something better I can be doing with my time? Cause the courts don’t care.

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According to officers, offenders are not deterred from possessing drugs because they don’t perceive probation to be a significant punishment; offenders see Proposition 36 only as “a chance to get out of jail,” not as a punishment or a chance to get clean. Furthermore, officers argue that many offenders do not take Proposition 36 seriously because there are so many allowances for failure. For example, most offenders are aware that they may have multiple Prop36 cases at a given time and that the court has limited ability to punish them, besides send them to additional classes.

They also realize that they can violate probation three times before the judge can revoke their Proposition 36 sentence and send them to jail. Officers strongly believe that “it is not a big enough slap on the hand for them to be deterred from doing what they were doing” (Confidential Informant, personal communication).

First time offenders before Prop36 were worried, “Oh, my gosh I’m going to jail.” Now you’re riding a free pass. I might go to jail tonight but tomorrow I’ll be out because of the new law. That is all it really did. It’s a slap on the hand. Go to class. Do it again, get another slap on the hand. Do it again, get another slap on the hand until finally they say “ok, that is enough.” You’ve been slapped too many times.

It increased arrests for drug crime because it [drug possession] is not taken seriously by the crooks. They know that if they are Prop36 eligible thet all they have to do is attend class. They also know that if they don’t attend the class, they’ll have a warrant for their arrest, they’ll go to court. The judge will ask, why didn’t they attend their Prop36 class? They’ll give some excuse. The judge asks “will you attend your class?” The offender says “yes, I’ll attend my class.” Then they get released.44 Yea, I don’t think it is doing what it intended to do which is put someone in, get them off drugs and they would go back on the streets and be productive, a productive citizen. But it looks like the crooks know “Well I’ll get Prop36 and go to a few classes and no jail time.” So it might even have an adverse affect.… [Because there is] no jail time hanging over their head and know they’ll go to a rehab instead. I think they are less worried about being arrested.

I think it has had a negative effect because it is a get out of jail free card. Some guy gets pinched and they think “I don’t really give a shit.

I’ll do a day or two in jail and I’ll Prop36 and get out and I’m good to go. I can go on with my normal life.”... They are not worried about doing jail time because they’ll Prop36 and go to classes and counseling.

They’ll be out the next day.

They’re sitting there bragging about it. “Yeah, I’ll be out in two days on Prop36 so I’ll see you then.” And they’re snubbing their noses at the system.

Although this officer admittedly had never observed Prop36 court, he described the process accurately.

When I first started, when you arrested somebody for under the influence … it was 90 days, period no questions asked…. If you were under the influence, you’re gone; and that was a major, in my opinion, that was a major deterrent. People kept their drug use in shadows.

They kept it indoors. They knew they didn’t want to walk around in the mall loaded. They didn’t want to walk down the street high because they knew I’m going away for 90 days and I can do nothing about it. That’s changed tremendously. People walk down the street thinking nothing of it now, just high as a kite45.

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Officers admit they do not know much about the treatment requirements but argue that the treatment provided is inadequate for these offenders, based on their experience. Some also worry about the consequences of placing the few young,

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professionals strongly believe that coerced treatment does not work; despite research evidence to the contrary (Hepburn & Harvey, 2007; Young & Belenko, 2002).

I think it helps a small percentage, a very small percentage of the people who go through Prop36. Maybe first time offenders, recreational users, young, impressionable people – I think it might help them. But the day to day people we deal with – they think it is a joke.

They are getting free passes because of it. I think it is just going to get worse.

The problem is that when it was sold to the voters, they were selling it as a rehabilitation act; they’re going to get rehabilitated. The truth is no one is going to quit until they hit rock bottom and they are not getting any jail time so they are not hitting rock bottom.

They are hanging out with the same people, they are not changing their environment and they are not hitting rock bottom.

I think probably one percent of the population who are addicts, maybe it’s helped. But we’re seeing these people over and over and you’re arresting these people and they’re saying “oh no problem, I’ll get Informal conversations with a drug addicts support this statement and in fact suggest addicts are, in some cases purposely high in public, subconsciously hoping to get arrested so someone will force them to go to treatment (and pay for it).

Prop36” and they’re actually saying that. These criminals know more about Prop36 than we do, and I find that amazing.

However, one astute officer noted that although very few offenders he knew turned their lives around, “I’m sure it works for some people. But I don’t see those people come back. I never have to chase those people down so I don’t see them.

They are just kind of out of sight, out of mind” (Confidential Informant, personal communication). This officer makes an excellent point; that treatment could be working for some offenders and officers just don’t see the offenders it has helped and instead focus their attention on the folks they see everyday, those for whom Proposition 36 is not working. So it is entirely possible that Proposition 36 is effective for a higher proportion of offenders than law enforcers give it credit for helping.

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This high level of frustration leads some officers to purposely change their arresting behavior. Specifically, some officers state that they are now arresting fewer people for being “under the influence of a controlled substance.” Also, some officers state that they are adding additional charges in the hope of disqualifying potentially eligible offenders from Proposition 36 diversion. This involves charging the accompanying misdemeanor crimes that, before Proposition 36, would have been ignored; but it also includes taking extra time to investigate evidence of ancillary crimes. This response is not completely unexpected, as Aaronson et al. (1981: 88) found “a common response of street-level personnel is to reformulate public policy Preliminary results and prior studies on police discretion (Chappell, MacDonald, & Manz, 2006) suggest this may be partly a function of size and philosophy of department. Future analysis will reveal if this is true.

goals by developing informal norms, practices, and routines of exercising discretion that sometimes adjust and at other times clearly violate the aims of codified law.”

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Officers are frustrated because they feel the time they put into effecting a narcotics arrest is wasted since it does not result in a jail sentence. They point out that it takes several hours to investigate possible drug activity, write the report, book the offender and complete any other necessary actions (such as booking evidence, having blood drawn, or going to the hospital to get a medical clearance for the jail). Patrol officers expressed frustration that they are doing their job (getting offenders off the streets) but the court system (due to Proposition 36) is not supporting their efforts.

Some officers believe that if they make a good felony arrest, the offender should spend time in jail (not only for the sake of punishment but also of incapacitation – so they are not out committing more crime). As previously discussed, officers derive personal satisfaction from seeing the court validate their efforts by punishing an offender for the crime they committed. This disappointment, or perceived loss of validation, combined with the effort required to effect a drug arrest, has driven some officers away from making narcotics arrests, in particular “under the influence of a controlled substance” arrests.

It turned a lot of people who aren’t dope cops completely away from dope arrests … It takes a lot of work to put together a self-generated narcotics arrest. It is not easy. You have to develop your probable cause, everything has to be in line, you have to find the time during [your shift] between calls to do it, and realize while you’re doing it that you’re also screwing over your beat partners because you are going out-of-service for this proactive activity and it takes up a lot of time and a lot of effort, and you’re probably looking at a hospital run because a lot of these narcotics users have medical issues so you are looking at tying yourself up at least 3-4 hours during [your shift] and then writing the report afterwards as well. So you take that type of effort to make a narcotics arrest and then you turn around and tell the cops “just to let you know, he’s going to get Prop36 and that is all he is going to get.” It’s frustrating. It turns a lot of cops away from dope.

Under the influence is a lot of paperwork. You are talking one hour minimum of just “evals” and documenting your notes. On top of the other hour or two of writing the report and other stuff, you’ve got blood tech stuff and all that work so they can get Prop36 and go use again.

What’s the use?

It is a waste of time. It is almost not worth making drug arrests because they don’t have any penalties attached to it.

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But that is the biggest complaint, officers have a general feeling that it is a waste of time and I think that is why our 11550s [under the influence arrests] went down. People feel that ah, it’s not worth it.

People view it as an arrest that takes some effort to accomplish.

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