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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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The impact is the community pays for it. I get yelled at constantly by the community. You’re the police. You arrested him. Why is he out?

... Yes, I did arrest him. But the courts let him out. … That’s what the people voted for.

I think we know how to get around the law. I think what the problem is, that we deal mostly [with], and most of your narcotics units are dealing with, community issues and you will have a whole neighborhood complaining about one individual and we repeatedly arrest him, repeatedly, and they are constantly diverted, giving him Prop36.

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Almost all officers stated that they or other officers they know have changed arrest tactics as a result of Proposition 36. The big question nevertheless, is: did Proposition 36 affect the number of people arrested for SACPA-eligible crimes?

When asked this question directly, some officers said “yes,” some said “no,” and others admitted they had no idea. Throughout the interviews, though, officers repeatedly argued that Proposition 36 has had several observable (and possibly testable) effects: (1) the same drug offenders are re-arrested more frequently than prior to Prop36, (2) drug offenders are not afraid to carry drugs or be under the influence while out in public, (3) officers are less inclined to make “under the influence” arrests, (4) officers are tacking additional charges on to drug possession arrests in order to disqualify offenders from Prop36 diversion and (5) there are fewer confidential informants.

Figure 4.1 shows the annual number of felony drug arrests in Orange County by category for the years 1995 to 2006.

It includes all felony drug crimes, regardless of SACPA-eligibility. Similarly, Figure 4.2 (below) depicts the annual number of misdemeanor drug arrests in Orange County by category, regardless of SACPAeligibility. These figures are useful because some of the categories contain several SACPA-eligible offenses and other categories contain few/no SACPA-eligible crimes.

One question I proposed to answer was whether Proposition 36 had any impact on law enforcement releases. Originally it was thought that this statistic would provide a reasonable gauge of the number of confidential informants working for law enforcement agencies. Research revealed that, because it is used in so many different situations, it is not a reliable indicator of CI participation. Therefore, this question is moot and will not be addressed.

Comparing the categories with many SACPA-eligible arrests to categories with few SACPA-eligible arrests isolates the effect of SACPA on various drug crime categories. As only categories with many SACPA-eligible offenses and arrests should be affected by the passage of the legislation. There should be no discernable effect on those drug categories with few/no SACPA-eligible offenses.

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categories (Figure 4.1) are not Prop36-eligible51. As expected, there is no indication that Prop36 had any impact on arrests in either of two these categories. The number of Felony Marijuana contains predominately sales offenses (which are not SACPA-eligible) and Felony Other Drugs contains 46 offense codes, only a few of which are SACPA-eligible (such as possession of paraphernalia) (CJSC, 2002).

arrests for felony marijuana offenses remained relatively stable, with a slight downward trend and arrests for offenses in the felony other drugs category declined from 247 in 1998 to 59 in 2006.

The felony drug categories most affected by Prop36 are felony narcotics and felony dangerous drugs – the categories that contain arrests for felony possession offenses. These categories show different arrest patterns. The number of arrests for felony dangerous drug offenses (mainly possession of methamphetamine and ecstasy) increased from 1999 through 2005, with particularly significant gains (15% and 20% increases respectively from 2001 –2002 and 2002-2003) in the years immediately following Prop36 implementation. At the same time, the chart shows that the number of arrests for felony narcotics (mostly possession of cocaine, crack, and heroin) declined from 1995 to 2002.

During interviews, many law enforcement officers were shown a graph similar to the one above and asked if they had any insight on the trends and if so, to comment on what they thought might explain the different arrest patterns52. According to officers, a few things likely account for the patterns, (1) some users switched from cocaine and/or heroin to methamphetamine and ecstasy; (2) new users are using methamphetamine and ecstasy; and/or (3) methamphetamine users are being rearrested more frequently.

Some may argue that such an exercise is futile and pointless because officers are on the ground level and are unable to discern county level trends. I disagree because this argument, while valid, discounts officers’ ability to recognize trends in their own patrolling area and city. Officers share information routinely during patrol briefings and throughout their shift. For this reason, I contend that the exercise is useful in that it points the researcher to potential hypotheses. It is then up to the researcher to ascertain the plausibility and value of each hypothesis offered.

I think there are more users, but that’s [2001-2003] a dramatic spike.

You’re not going to see that dramatic a spike just because there’s [sic] that many more new users. I think it’s a combo. New users and these are the re-arrests [pointing to the 2001-2004 period]. Same people getting arrested over and over again.





I look at this probably different than you. Everybody’s afraid of getting caught [pointing at 1995-97], everybody’s afraid of getting caught [pointing at 1997-99] and now [pointing at 2001-02] all of the sudden every doper on the street knows “hey dude I’m good for three”.

This jump here, this peak you’re seeing here is the end result to the revolving door. These people have probably burned through all of their Prop36 chances and are back out. And one person is arrested how many times now? You’re re-arresting the same people and so that’s what’s generating the numbers. Without looking at charts or at stats but just based on what I’m seeing, our drug arrests are up from… well, I can’t say about incarceration rates but I know that we’re arresting more people.

What could fall in here [1999-2004 dangerous drugs] is ecstasy becoming more popular.… Right around this period 2000-04, the rave parties were at a peak.

Right about the time Prop36 and everybody on the dopers’ side knows that they are not going to go away for their first offense, their second offense, their third offense; it’s going to take much longer. I think you found people who became lax at hiding it from us because they know once they get caught they’ve got a couple ‘oops’ before they are going to start doing hard time.

And heroin is on the come-back, marijuana is just as high as it ever was, if not getting more prevalent, mushrooms and ecstasy are also coming back, in our area we haven’t seen much acid, not much P.C.P., Peyote or any of that stuff, but mainly in my area, that’s not what’s getting to ‘em. In [x city] we’re getting killed with heroin like you wouldn’t believe [in 2007].

The most popular (though not necessarily the most plausible) reason cited by officers for the remarkable increase in felony dangerous drugs offenses is that the same users are being re-arrested at a record pace. The problem with this hypothesis accounting for the entire felony dangerous drugs trend is (1) many factors influence crime trends that are not accounted for in this simple analysis, and (2) the same pattern should emerge for both (dangerous drugs and narcotics) trends. According to Figure 4.1, this is not what occurred; so there must be more to the story. Another hypothesis offered by some officers is that the laws limiting sales of pseudo-ephedrine in California (and the United States) decreased the number of methamphetamine labs in Orange County. According to officers, labs relocated to Mexico as a result of these laws and product is now hand carried up to Orange County by couriers. The net result of this, according to narcotics officers, is that possession arrests increased while distribution arrests and lab arrests decreased significantly because offenders are carrying meth, but not making it53.

As shown in Figure 4.2, there is no indication that Proposition 36 had any impact on misdemeanor marijuana arrests. Misdemeanor marijuana arrests, which are punishable by a $100 fine and thus not likely to be affected by Proposition 36, increased at a relatively steady pace from 1997 to 2003. There is, however, some evidence that Proposition 36 may have impacted misdemeanor other drugs and misdemeanor dangerous drugs arrests54. Arrests for offenses in the misdemeanor other drugs category (mainly possession of drug paraphernalia, under the influence of a controlled substance, and drunk in public) were stable until 2001, at which point they increased in a pattern similar to arrests for felony dangerous drugs. This is partly the result of more 11550 (under the influence) arrests, but may also be attributable to more misdemeanor rather than felony arrests for possession of paraphernalia. Arrests This is an interesting hypothesis; however, the current research project is not designed, nor able to test it using available data.

Time series analysis was not conducted on either of these series’. The misdemeanor dangerous drugs category does not contain enough arrests per month to make time series analysis useful.

for misdemeanor dangerous drug offenses also appear to have been affected by SACPA. Arrests for misdemeanor dangerous drug offenses fluctuated between 107 and 148 (averaging 126) per year between 1995 and 2001. In 2002, however, arrests for misdemeanor dangerous drug offenses more than doubled to 270 and by 2003 they had increased by more than half again, to 432 in a single year.

Figure 4.2: Orange County Misdemeanor Drug Arrest Trends, 1995 - 2004

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Number of Offenders Arrests per Year factors, none of which can be adequately isolated. Performing time series analysis would yield incomplete results due to the mixed categories (that contain both SACPAeligible and non-SACPA-eligible offenses). The increase in misdemeanor other drugs can be partially, though not wholly, explained by more under the influence arrests.

The change in arrests for misdemeanor dangerous drugs, though small in actual number is very dramatic and worth trying to explain. One possible rationale for both categories is that officers used their discretion to arrest offenders for a misdemeanor section of a violation rather than a felony section. Exercising discretion in this fashion would be consistent with officers’ articulated practice of “cutting a break” to certain offenders (for example, those who are cooperative or are seen as contributing members of society). An officer’s rationale might be that the offender is going to get Prop36 anyway, so they might as well charge them with the misdemeanor section as a courtesy. Prior to Prop36, this courtesy might have taken the form of an arrest on a single charge instead of multiple charges (or no arrest at all). No officer discussed this practice, so it is purely speculation. Furthermore, whereas this hypothesis might explain the small number of additional arrests in the misdemeanor dangerous drugs category, it is not adequate to explain the large number of additional arrests in the misdemeanor other drugs category (even after accounting for additional under the influence arrests).

Another possible explanation is that the California Supreme Court made a decision in 2001 or 2002 regarding the Prop36 eligibility of a particular drug offense in one of the categories and that the decision affected arrests for that crime. A review of appellate cases, however, did not reveal any particular cases that likely would have been responsible for this trend. Furthermore, for this to be plausible, it would require that officers’ became aware of this particular change in policy and adjusted their practices accordingly55. This is theoretically possible, but much less plausible than the first conjecture. Finally, it is feasible, though highly unlikely, that the trend is completely unrelated to Proposition 36 implementation.

Because the above arrest categories include all types of drug arrests, not just SACPA-eligible arrests the figures could be masking some of the effect of SACPA.

Figure 4.3 accounts for this limitation by including only SACPA-eligible arrests, those for felony possession of narcotics, felony possession of dangerous drugs, and misdemeanor under the influence.

The figure is imperfect because is does not contain all SACPA-eligible offenses, only the three offenses that comprise the majority of Prop36 cases in Orange County56.

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illustrates that arrests for possession of narcotics (cocaine, crack, heroin, etc.) were stable and slightly increasing during the late 1990s and that these arrests increased more dramatically beginning in 2003 (or 2002). This is in contrast to the declining trend that one would have expected by looking at Figure 4.1 (all felony narcotics arrests). This is an important point because possession of narcotics data (Figure 4.3), show a different pattern than felony narcotics category data, one that is congruent with (not opposite of) the post-SACPA trend in dangerous drugs. Consequently, narcotics possession data could be interpreted as supporting law enforcement officers’ contention that offenders are being arrested more frequently. Second, the spike in This would require prosecutors or other knowledgeable stakeholders to intentionally train officers on the new case law.

The other offense that accounts for a large percentage of Prop36 cases is HS11364 (possession of paraphernalia). Unfortunately, HS11364 arrests can not be separated from other, non-Prop36 eligible offense codes (Linda Nance, personal communication, March 12, 2008).

arrests for possession of dangerous drugs is much steeper than would be expected looking at Figure 4.1 and indicates a net widening or a faster revolving door effect.

Both of these trends demonstrate the danger in using categorical data to determine policy impact.

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