«From Inception to Implementation: How SACPA has affected the Case Processing and Sentencing of Drug Offenders in One California County DISSERTATION ...»
Source: California Criminal Justice Statistics Center (CJSC). 2002 data are missing from possession arrests due to a data entry error at CJSC that affected the OBTS database. Under the influence arrests are reported for 1996-2006 and possession arrests are reported for 1995-2005.
Monthly data are available, however month to month fluctuations make it difficult to visualize long term trends.
interviewed, arrests for under the influence (11550) increased after SACPA. This argues against SACPA having a pseudo-decriminalization effect on under the influence as suggested by officers57. How do we balance law enforcement officers’ contentions that they stopped making under the influence (H&S11550) arrests with data to the contrary? One explanation is that there are more drug offenders under the influence of controlled substances in public spaces (as argued by law enforcers) and police officers, although less inclined to make these arrests, continue to do so because it is their job. Informal conversations with drug addicts confirm that some addicts are more likely now than before Proposition 36 was law to go out into public while under the influence. Thus this is a plausible explanation. It is also possible, that law enforcement officers by and large described what they thought other officers were doing, as opposed to what they actually were doing.
Time series analysis reveals that the impact of Proposition 36 on under the influence arrests was statistically significant but that the impact on drug possession arrests was not statistically significant.58 This means that part of the increase in the under the influence arrest pattern can be attributed to the implementation of Proposition 36, but that the increase in drug possession arrests can not be attributed to Prop36. This finding may seem contrary to expectations given the visual account depicted in Figure 4.3, which shows a dramatic increase in the number of arrests for possession of felony dangerous drugs59. It is important to remember that although time series analysis is considered a quasi-experiment, other factors that are not When officers choose to not arrest for a particular crime, the net effect is de-criminalization of that crime, regardless of officers’ moral views about it.
See Appendix K for a discussion of time series analysis and a description of time series models and significance levels.
This is because arrests increased so dramatically from 2003 to 2005 that the ARIMA model is unable to recognize the change in arrest level as anything but noise. The large amount of noise increases the variance, and thus causes the impact analysis to find a non-significant result, despite the presence of an actual effect.
measured, such as number of police officers on the street or number of officers assigned to full-time narcotics investigation bureaus, can and do influence arrest patterns. For these reasons and others, we cannot estimate how much of the impact can be attributed to SACPA, even though we can visually see there is an impact.
As a result of this research we know that Orange County drug arrests for under the influence of and possession of controlled substances increased and that the increases were partially attributable to Proposition 36. However, it is difficult due to rival hypotheses that are not controlled for, to determine the magnitude of Proposition 36’s impact on these Orange County drug arrests. It is most likely a combination of the explanations provided by officers – more users and users who are not afraid of getting caught and are therefore repeatedly arrested. The amount of the increase attributable to a net widening effect, as opposed to changes in drug trends and/or user behavior, is unclear. Regardless of the reason, however, law enforcement officers are definitely making significantly more arrests for low-level drug crimes, in particular possession offenses in the years since Proposition 36 took effect. This has clear implications for the courts and corrections (these effects will be discussed in subsequent chapters).
Proposition 36 represents a major paradigm shift in drug policy and law enforcement officers do not believe it is working. Law enforcement groups came out against Proposition 36 at the time it was on the ballot, and the overall feeling of law enforcement officers has not changed. By and large, officers are resisting Proposition 36 because they feel it subverts their goals of law enforcement and crime control by allowing career addicts to remain in the community, in their opinion, without punishment and free to commit more crime. Underlying their frustration is a view of drug offenders as criminals (not addicts), a belief that coerced treatment does not work, and a stance that custody is the best response to drug abuse.
This study reveals not just frustration, but active circumvention on the part of some law enforcement officers who admit to changing their arrest practices as a result of Proposition 36. Most officers said they actively seek out other charges in order to disqualify offenders from being diverted through Proposition 36. Also, some officers said they or other officers they know of have decreased, or ceased, making “under the influence” arrests because they no longer feel it is an efficient use of their time or department resources. Only two officers said they would arrest an offender they would not have arrested in the past, just to get them into treatment. These findings are even more remarkable given that Proposition 36 is a sentencing policy that was not intended to affect police behavior.
The desire to circumvent the law stems from a very real issue – one that law enforcement officers are uniquely situated to observe – that many drug abusers are highly addicted criminals. They are criminals who are enmeshed in relationships and environments that are not conducive to rehabilitation or change and leaving these offenders in the community (realistically speaking) “unsupervised,” devoid of direct control agents that encourage (or force) abstinence and without perceived sanctions for their law breaking behavior is not working with this population. Although quantitative data disputes the claim made by officers that they reduced the number of under the influence arrests, the change in perspective nonetheless can be attributed to the Prop36 sanction being perceived as inadequate by officers and to the fact that a felony possession arrest lost much of it’s usefulness as a crime control tool when Prop36 eliminated incapacitative sentences.
What officers know about Proposition 36 was primarily learned “through the grapevine,” either through fellow officers or offenders, and on occasion a district attorney or probation officer. During, or at the conclusion of the interview, many officers asked this researcher if Prop36 was working. They wondered whether their negative perception was correct. Officers complained, “there is no feedback, official memos from the court, stats saying this is how many people we’ve prosecuted, this is how well it’s working, how well it’s not working; nothing.” Interestingly, when asked whether they would be more supportive of Proposition 36 if they saw treatment was working, most officers answered emphatically “Yes.” This suggests law enforcement could get behind the law if it were made more onerous and intensive for offenders; if they saw that their job was becoming easier as a result of addicts being successfully treated (and presumably getting jobs and halting their criminal behaviors).
Impact on the Court System and Courtroom Actors Unlike law enforcement officers, courtroom actors expected significant organizational and procedural changes to result from Proposition 36. Because it was intended to change how the court sentences non-violent drug offenders, managers and key employees of agencies responsible for criminal justice case processing functions anticipated workload changes that would require additional staffing as well as the creation of new policies and procedures. They did not, however, anticipate the large number of offenders qualified for Proposition 36 diversion, the level of criminal sophistication displayed by some Prop36 offenders, or the amount of Prop36 offenders with co-occurring mental disorders. Each of these unanticipated outcomes had implications for how the court adjusted to the legislation. This chapter will (1) acquaint the reader with case processing procedures for offenders arrested on Proposition 36 eligible offenses; (2) detail the impact of Proposition 36 on the court system at each stage of the court process; and (3) explain how each agency (superior court, public defender’s office, city attorney’s office) adapted to the legislation.
HOW A DRUG CASE PROCESSES THROUGH THE COURT SYSTEMThe court system is the second stage in the criminal justice process. It is in this stage that cases against criminal defendants are adjudicated and convicted offenders are sentenced to a variety of punishments. The process is somewhat complicated and governed by a series of complex rules and laws intended to protect each individual’s due process rights. This section will describe the various steps in the court process for individuals charged with drug crimes and explain how these processes have (or have not) changed as a result of Proposition 36.
Figure 5.1 (below) depicts a simplified version of the criminal justice process by phase.
The process generally starts with an arrest by law enforcement. It is followed by a determination of guilt or innocence in the court (the shaded section).
Finally, court-imposed sanctions are carried out by corrections agencies (county probation departments, county jails, and the California Department of Corrections and Rehabilitation).
Figure 5.1: California Criminal Justice System Process for Adult Felony Defendants
Most offenders arrested for a felony drug offense are booked into jail upon arrest. While some offenders are offered and do post bail, others remain in jail until their arraignment (within 48 hours of arrest – unless the arrest occurred on a weekend). The initial arraignment is the offender’s first appearance before a judge (and is considered the first event in the pre-trial process, see Figure 5.2). During the initial arraignment, the judge explains the charges to the defendant, appoints a public defender (if necessary), and sets bail or releases the defendant on his own recognizance. A defendant can enter a plea at this time, but it is not very common.
Also, a district attorney can choose to not file charges against the defendant, in which case the defendant is released with no further action against him/her. This too, is uncommon. Figure 5.2 provides a visual representation of the court process for drug offenders (felony case processing is in the top box).
If a defendant pleads not guilty to a felony drug charge, a preliminary hearing is held. This is the second event that occurs during the pre-trial phase of case processing. At this hearing the district attorney must show evidence that there is probable cause that the defendant committed the felony for which she/he was arrested and should be brought to trial. If the judge decides that there is enough evidence to proceed, the defendant will be arraigned on information (the third step). At this arraignment, the defendant will be formally charged, have his/her rights explained, and will enter a plea (not guilty or guilty). If the defendant pleads guilty, the judge can sentence the offender immediately or delay sentencing in order for the probation department to prepare a pre-sentencing report. If the defendant pleads not guilty, he/she has the right to a trial within 60 days (unless he/she waives that right). Most drug possession cases get settled at, or before, the information arraignment by plea bargaining that occurs between the district attorney and the defendant’s attorney. Less than 10% of felony drug cases go to trial, and most of those cases involve sales.
Figure 5.2: Sequence of Events During Pre-Trial Stage of Court Process
As can be seen in Figure 5.2 above, the process is much simpler for offenders charged with misdemeanor drug crimes. Offenders arrested for a misdemeanor “under the influence” charge will typically spend only a few hours in jail (until they sober up enough to be released). Offenders arrested on other misdemeanor drug charges (for example, possession of paraphernalia) may spend the entire time before their
misdemeanor crimes are booked (photographed and fingerprinted) and released from the local police department and given a notice to appear for their court arraignment.
Offenders charged with misdemeanors will only be arraigned once and there is no preliminary hearing. At the arraignment, bail will be set (if the offender is still in custody), he/she will be informed of the charges against him/her and appointed a lawyer (if necessary). The defendant will also enter a plea at this hearing. If the defendant pleads guilty, the judge can sentence him/her immediately or order a presentence report from probation. If the defendant pleads not guilty then the judge will set a date for a pre-trial conference between the attorneys and the judge in hopes of resolving the case without going to trial. If an agreement can not be reached, a trial date is set. Very few (less than 5%) misdemeanor drug cases go to trial.
The case processing steps that offenders go through (as described above) did not change as a result of Proposition 36; but what did change was the proportion of cases that are settled earlier in the process, the sentences that offenders receive, and the number of times a Prop36 offender must report to court post- conviction. These changes have had an enormous impact on the court, courtroom workgroup staff and attorney’s offices tasked with prosecuting or defending drug offenders. The section below describes in detail, how an offender sentenced to Prop36 probation experiences the court process throughout his/her time in Prop36 probation.