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We don’t really have rapists and murderers driving around our cities here everyday. When you’re talking about arrests that really can affect public safety everyday, DUI’s and this kind of stuff [11550’s] is very significant; DUI’s in particular. I believe when officers started seeing no penalty, in their mind, no penalty coming out of an 11550 arrest you started seeing that go bye-bye. They kind of felt it was a waste of time.
Why am I going to do this if all they’re going to do is send them to some counseling program that they are going to fail out of? That’s the way the officers look at it. That’s the cynical side of law enforcement.
This response is dependent on the officer as well as the department. Officers at one large police department that has its own jail (which employs nurses) stated that they still arrest a lot of people for H&S11550 (under the influence). These officers “Foot test” is a term used by officers to indicate they destroyed the small amount of drugs (usually marijuana) the offender had in their possession in the field by stepping on it (rendering it useless).
Offenders are not arrested for possession in such instances. In California, marijuana possession is a misdemeanor punishable by a $100 fine.
stated that having nurses at the jail makes under the influence arrests easier and less time consuming for the officer, which makes them more likely to arrest and use it as a crime control tool.
The field-training officers are really training their guys on how to do the 11550 arrests. The guys are in and out in an hour, real quick. … It’s gonna [sic] be a cite-release anyways, [but] at least it gets them off the street and stops what they’re doing. There’s a reason they [offenders] were out at 3 in the morning. They [officers] see it as a kind of means to an end. It at least gets them [offenders] off the street. They won’t be released for 6 hrs, until they sober up from our place. It at least maybe allows you further investigation, too, as to what they may have been involved in. Our culture looks at that [under the influence arrest] as a resource for us. We [officers] all know, the majority of us know, they’re [offenders] not going to be getting any time on it. It’s just a resource for us for possibly bigger things. I equate it to a pretext [traffic] stop in law enforcement, with probable cause for a stop, it’s the same. It’s a pretext arrest.
Proposition 36 deters some officers from making narcotics arrests but officers also admitted that it increases the number of law violations offenders likely to be sentenced under Proposition 36, are charged with. Officers learned within the first year of the law that offenders arrested for a non-drug misdemeanor or felony crime along with their drug possession charge are theoretically disqualified from Proposition 36 sentencing. Some officers openly acknowledge that because of Proposition 36 they charge every law violation present at the time of arrest to prevent an offender from being eligible for Proposition 3648.
Law enforcement officers, as is well documented, have a tremendous amount of discretion whether to charge a person with a crime and what crime(s) to charge a There is some indication that Deputy District Attorneys have adapted to this practice by dismissing the additional charges and allowing offenders to plea guilty to possession in order to take advantage of Proposition 36 sentencing.
person with. Very often in the course of an arrest, an officer will find multiple law violations. Some officers use their discretion to charge a person with every offense the person committed. Other officers use their discretion to charge a person with only the most serious crimes and give the offender “a break” on one or more minor law violations. For example, a driver is pulled over by a law enforcement officer and found to be driving on a suspended license and in possession of a user amount of methamphetamine. Many officers will ignore the “driving on a suspended license” charge because it is a misdemeanor and would not add any jail time to a conviction for felony possession of a controlled substance. “It’s like adding insult to injury” stated one officer. This changed after Proposition 36. Now, those officers who were formerly inclined to “let the minor stuff go,” do not. They charge the offender with everything they can; to decrease the likelihood that the offender will be offered Proposition 36.
Now you are looking for those additional charges, the 14601 [driving on a suspended license], the 470 [fraud], the 148 [false information to a peace officer] so that you can make the 11550 [possession of a controlled substance] charges stick. Those are gold now.
The only thing I’ve changed is that I will try to find some other charge.
I’m not saying make something up but try to find some other violation of the law besides the drugs. …There is usually more, and in the past I wouldn’t charge them with it. I would just charge them with the narcotics possession violation because that is a felony and that typically used to do the job of putting them in jail for awhile, at least for a little while. Now it doesn’t. So now I’ll try to find some other type of charge, say possession of a switchblade or something else to go along with it that holds them and doesn’t make them eligible for that diversion.
[For example] driving on a suspended license, a lot of these people [drug offenders] don’t have licenses and in the old days we would overlook it. But now, there’s your non-drug misdemeanor right there so we’ll tag them with 14601, driving with a suspended license and hopefully the D.A. doesn’t drop it and that will void the Prop36.
You realize you want to put every nail in that coffin of your arrest as you can. You charge them with everything you can because if something falls out through the court process … you want to have all those factors in there because if one falls out, you want the others to fall back on.
It creates a nightmare because you certainly have to make a lot of additional crimes that you didn’t have to in the past stick to make Prop36 go away.
It took us a while to learn to, I don’t want to say learn to work the system, but, a lot of the smaller misdemeanors, non-drug misdemeanors that we were overlooking, that, “hey, we got a good felony here, let’s just go with that [because] it’s a stronger case.” Well now we’ve changed to, ‘let’s tack ‘em with everything’ and if there’s one non-drug misdemeanor or felony on there that’s gonna [sic] void their chance of Prop36. So we started changing our tactics. It doesn’t apply in all cases but that’s the only thing we can do on the enforcement end. And of course it’s still up to the D.A. whether they want to file those charges or not.
This is a clear indication that some officers consider Proposition 36 when arresting an offender for drug violations and actively try to circumvent the law. The rationales espoused suggest that officers feel that Proposition 36 goes against their goals as law enforcement officers. The general feeling of many law enforcement
officers is summed up by this narcotics officer who states:
I train them on how to look for things to not make Prop36 work. If I can help the patrol officer understand that if we can look for an associated crime or a more serious charge that is going to make this Prop36 ineligible then they are not going to get Prop36 and they are going to jail. If we can arrest him on a more serious drug offense such as possession for sales or transport then let’s do that because that way they will not get Prop36 and they will go to jail. The reason I am saying this is, I’m not trying to be a jerk, I don’t have some ill will toward these people, but what we see is that these people who are using drugs are not just drug users, they’re committing crimes. They are also stealing and committing crimes to support their habits and the best way
There are many forces at play in the criminal justice system and actors at one stage have only limited power on the process and outcome. Police officers admit that while they may try to circumvent the law by charging an offender with multiple crimes in order to disqualify the offender from Prop36, district attorneys often dismiss those additional charges in order to allow offenders to plea and accept Prop36 diversion. They acknowledge that they only have discretion up through the point of arrest. After the arrest discretion shifts to district attorneys, at which point law enforcement officers are (essentially) powerless to affect the ultimate outcome (whether an offender is offered Prop36 or not). This knowledge, coupled with an understanding of the D.A.’s job, has led law enforcement officers to adapt to the D.A.’s behavior as well as the law.
[Stacking charges] was much more prominent at the beginning of Prop36. Tack on the non-drug crime, that way they’re no longer eligible for Prop36. At least that was the thinking then. But I think they’ve just, of course, it didn’t really work. [The DA] would work around them. Other times they’ll drop the possession of burglary tools along with the drugs, they’ll drop that so now they’re eligible for Prop36 and just keep the straight possession case. I know that others were thinking early on, I don’t know if that still is [the case]. …Cops aren’t gonna [sic] be able to manipulate the court system. The court system’s gonna [sic] do whatever it does.
I just think that if the courts want the person on Prop36, they’re gonna [sic] find a way to do it. And whatever the officer does at the time [is not going to matter], unless they have something … that the court’s not going to be able to ignore. But usually when you’re talking low level misdemeanor charges, they (DA’s) can add or drop any of the charges that they want. Make it fit whatever they want.
The situation described by these officers was brought up by several of the officers interviewed. Some claimed that Deputy District Attorneys (DDA) told them how to circumvent the law (by adding additional charges) in the beginning only to drop the charges in order to allow an offender to plea to Prop36 diversion later. Some officers attributed DA’s actions to their desire for high conviction rates, but most officers recognized that it was more likely that high caseloads necessitated resolving cases quickly (which coincidentally served to bolster their conviction rate).
A very small minority (approximately 5%) of officers stated that, in addition to a plethora of other factors, they consider Proposition 36 in their decision whether to arrest a person because of the treatment component. These officers stated they would arrest a person in order to get them into treatment if they felt the offender would benefit. In the words of one of these officers, Their [the offender’s] attitude towards the whole thing in general. Are they honest? Are they forthright? Are they just totally denying they have a problem? Then the whole “I’m going to help you” comes into play with me personally. People are just playing drug addict and deny it. This is my personal way of saying, “Hey, at least I’m going to mandate you some help.” (Same officer) The only way it impacts whether I arrest somebody or not is I know that they’re going to get some sort of treatment. There’ll be times where somebody who maybe has a decent standing in the community. They’re actually giving something back to this community. They actually have a job. Maybe just partying a little too hard, got in with the wrong crowd. Maybe really young, 17-18 years old. Maybe that person I could’ve had an impact [on], maybe just a conversation, maybe calling mom and dad out there. Now I know that if I arrest this person, they’re actually going to get some help. Maybe somebody before where I could’ve said, “Nah, I’m not going arrest you. This is your first offense, no criminal history.” I’d legitimately believe them for whatever reason that this is their first time or second time, they’re experimenting. That may be a person, “Hey, call mom and dad, let them know what’s going on,” and kind of handled it that way, by not involving the courts. Now I know, hey this is an option that if I arrest them, they will get treatment. That’s something that parents too, or loved ones, husbands and wives, “Hey, if I arrest her now, she is going to be mandated by the courts to get help.” “Oh, really? Please do that then.” Before, I couldn’t say that. I’d have to say, at least what I knew, “You need to go and seek your own help.” So that’s a positive impact on it, I guess.
It was unclear in the interviews whether the officers actually had arrested individuals specifically to get them treatment, or if these officers spoke theoretically. If they spoke based on their experience of having arrested individuals they would not have arrested in the past (for the sake of treatment), it would indicate a possible net widening effect. Depending on the number of officers who reacted in this way (arresting more people), or how often officers took this action, it could have significant implications. This would be an important finding; however, results from interviews suggest that the magnitude is likely quite small.
Of course, some officers that were interviewed stated that they do not consider sentencing when arresting someone. Some, particularly those with a long time on the job, feel strongly that their job is public safety and law enforcement. They do not concern themselves with punishment, either because they have been on the job long enough to have gained some perspective or learned to distance themselves emotionally from the rest of the criminal justice process.
I don’t think about Prop36 when I’m arresting somebody. The only time when I think about Prop36 is… when you arrest somebody and you see him walking down the street three days later and you ask him what happened and he says he got Prop36’d and you think “what a load of crap this is.” That is the only time I think about Prop36. I don’t think about Prop36 when I’m arresting some guy and do I really want to spend three hours on this guy because he’s under the influence when he is just going to get two hours? To be honest, it’s not about Prop36.