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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 goal of the current research project is to determine how drug offender case processing and sentencing patterns changed as a result of SACPA and to examine how the criminal justice system responded to this legislation. While SACPA is expected to dramatically change how drug offenders are handled in California, it’s potential impact depends heavily on two issues (1) how many offenders sentenced to prison for drug possession prior to SACPA are eligible for diversion through the law and (2) how different criminal justice actors implement the law (Riley et al., 2000). The current research addresses both of these issues, diversion and criminal justice system response. While we know that approximately 200,000 offenders qualified for SACPA in the first four years of the law (Longshore et al., 2006), we do not know how the Non-violent drug possession offenses include unlawful possession, use, or transportation for personal use violations of Health and Safety Code sections 11054, 11055, 11056, 11057, 11058, as well as being under the influence of a controlled substance according to section 11550 (Proposition 36, Section 4).

system adjusted to procedural changes or how many offenders sentenced under SACPA would have gone to prison prior to the law.

Diversion According to the Text of Proposition 36, the purpose and intent of the Substance Abuse and Crime Prevention Act (SACPA) is three-fold: (1) to divert nonviolent drug offenders from incarceration, (2) “to halt the wasteful expenditure of hundreds of millions of dollars each year on the incarceration-and re-incarceration-of non-violent drug users,” and (3) “to enhance public safety by reducing drug-related crime and preserving jails and prison cells for serious and violent offenders and to improve the public health by reducing drug abuse and drug dependence” (Proposition 36, Section 3). Note the primary focus of SACPA is on decreasing the use of incarceration, not on treating the offender. Decreasing incarceration is mentioned three times as a purpose of the bill whereas improving public health is mentioned only once, almost as a sidebar. This bill is clearly focused on drug use as a burden on the criminal justice system not as a burden on the health care system.2 Diversion from incarceration is a worthy goal, particularly when cumulative, year over year, benefits are calculated. The LAO estimated 24,000 drug offenders would be diverted from prison, 12,000 would be diverted from jails and there would be 9,500 fewer parolees annually as a result of SACPA3. If the LAO diversion estimates are correct, by 2008, there should be over 100,000 drug offenders who escaped a prison sentence they were bound for, prior to SACPA. There should be This was confirmed through an interview with Dave Fratello, a co-author of the legislation.

The 24,000 fewer prison admissions results from fewer new admissions and fewer drug-related parolee revocations, the 9,500 fewer parolees results from the number of offenders who will never serve a prison sentence and thus will not be subject to parole.

100,000 fewer ex-convicts trying to re-enter society at the end of their sentences; and 100,000 drug users who received treatment. The potential social benefits to these offenders and their families and communities are immense, though currently unmeasurable. This legislation has enormous potential for long-term, positive benefits for numerous offenders, but before any positive social benefits (or negative repercussions) of this legislation can be estimated, it must first be determined how many offenders have actually been diverted.

Early reports from UCLA indicate that 150,000 offenders accepted SACPA and entered treatment in the first four years of the law (Longshore et al, 2006).

However, the question remains whether all 150,000 of these offenders would have been sentenced to jail or prison if SACPA were not law. It is doubtful that most of these offenders would have gone to prison for two reasons. First, as prosecutors contend, there are few offenders in prison for simple possession; many of the offenders incarcerated for this crime plea-bargained down from a more serious, nonSACPA-eligible, offense. Second, although the number of drug arrests in California increased exponentially in the past twenty five years, the proportion of offenders sentenced to prison for a felony drug offense has never been more than 30% (Gardiner, 2004). In fact, the majority (55% - 85%)4 of offenders convicted of a felony drug offense in California historically have been sentenced to probation with jail, not prison or jail. So the question is how many drug offenders have been diverted from prison or jail as a result of this law? This study is the first to address this particularly important issue using interrupted time series analysis.

The proportion of convicted drug offenders sentenced to probation with jail is historically stable within individual counties, but varies considerably between counties in the state.

Criminal Justice System Response It is important to know whether intended offenders have been diverted;

however, it is also important to understand how this law impacted criminal justice system professionals and organizations. This law affected a large proportion of California’s drugs offenders; therefore we would also expect to find noticeable impacts on agencies throughout the criminal justice system. Furthermore, because this legislation was introduced by drug reformers, a group often pitted against criminal justice practitioners, and because the proposition was opposed, vehemently in some cases, by certain criminal justice groups (judges, district attorneys, and law enforcement), it is particularly important to examine how criminal justice actors and agencies carried out the legislation, especially to understand how various practices changed to facilitate or hinder the intent or impact of the law. It is also a lesson in inter-agency coordination, as county criminal justice and health care agencies (with competing interests) struggled to implement the new law without a playbook.





Not only does Proposition 36 symbolize a dramatic paradigm shift in drug policy, it represents a unique opportunity to examine how such laws play out on the ground level by criminal justice professionals and to identify the intended and unintended consequences on agencies and actors within the criminal justice system.

As Welsh and Pontell note, “there is great potential for understanding systems operations and outcomes in those contexts where the surrounding political environment has mandated departures from normal criminal justice operations” (Welsh & Pontell, 1991): p.75). Proposition 36 represents just such a “mandated departure” context.

Important as outsider reform Not only is Proposition 36 noteworthy for its potential impact, it is also an important example of outsider reform. The framers of this initiative are a group of drug reformers, not prison reformers, or government spending watchdogs, criminal justice practitioners or politicians. This is important because there has been only one other piece of “outsider” criminal justice sentencing legislation passed in the State of California, and that was the Three Strikes initiative in 1994 (Zimring, Hawkins, and Kamin, 2001). However, unlike the “Three Strikes” initiative which, I contend, was “tough enough” to have been introduced by politicians (and eventually was passed by the legislature prior to the popular vote), Proposition 36 had to come from outside politics because politicians, as a group, were still too afraid of being labeled “soft on crime” to author or sponsor any legislation not considered “tough on crime” (Zimring, Hawkins, and Kamin, 2001; Beckett, 1997).

Proposition 36 is also unlike Drug Treatment Courts, which came from inside the criminal justice system, specifically the courts, as a response to the increasing number of drug-using defendants resulting from the war on drugs. Drug treatment courts were developed out of a need to process an ever-increasing number of offenders arrested as a result of the war on drugs (Hora, 2002). Growing caseloads resulted in system capacity issues; the court system was unable to accommodate the growing number of drug offenders who seemed to re-enter the court system with increasing frequency. Thus drug treatment courts were a response to a recognized system capacity issue within the criminal justice system; whereas Proposition 36 was based on public opinion polls commissioned and analyzed by drug reformers who responded with almost “made-to-order” legislation that both addressed the incarceration problem in California and voters desires for more appropriate and humane drug policies.

Proposition 36 is an example of democracy in action.

Historical significance Additionally, this law is interesting and important from a historical perspective because it is a radical departure from the previous “get tough” legislation passed by California voters on several recent occasions. For example, in March 1995 voters passed the infamous “Three Strikes and You’re Out” law which created and/or increased mandatory minimum sentences for habitual offenders up to 25 years to life5.

In March 1996 voters increased the penalties for drive-by shootings and carjackings6.

In 1998, voters took away good time credits7 for anyone serving prison time for killing a law enforcement officer. In March 2000 voters passed Proposition 21 which increased penalties and waivers for juvenile offenders. The focus and scope of these laws varied; however, the message was clear – the public wanted retribution from offenders for the crimes they committed.

In the middle of passing tough on crime legislation, voters passed Proposition 215 in November 1996 with a 56% majority, authorizing the use of marijuana for medicinal purposes. The only other legislation passed by the voters that was not more punitive than the law it was replacing was Proposition 36 in November 2000. Why now? Why after years of supporting “get tougher” policies, did the public decide that The fact that this bill was passed and signed by then-Governor Wilson in its original form is a testament to the wrangling politicians and political parties did to be considered the “toughest” politician/party on crime (for a discussion, see Zimring, Hawkins, and Kamin, 2001).

These were two, very tough sentencing policies and both passed with an overwhelming majority (72% supported Three Strikes and 85% supported the carjacking and drive-by shooting initiatives).

Good time credits are earned by prisoners for every day they serve without having any behavior problems. The purpose is to encourage good behavior through the incentive of a reduced sentence.

a tempered, therapeutic, and rehabilitative approach to drug offenders is appropriate and desirable? The answer might be “changing sensibilities”, as Tonry (2004) calls it, a shift in outlook and opinion by a large segment of society, in this case, Californians.

Proposition 36 represented a unique moment in history for many reasons, but mainly because the voters were ready for a change from the failing drug war and expensive incarceration. It addressed the public’s desire to decrease the prison population (and thus the expense of prison) by focusing on a “safe” group of offenders – drug addicts.

The simple fact that Proposition 36 was supported by 61% of voting Californians in an era of “get tough” policies makes this very interesting legislation to study from a historical perspective and within a historical context.

Dissertation Organization The purpose of the dissertation is twofold: (1) to determine how drug offender sentencing patterns changed as a result of SACPA; and (2) to learn how one criminal justice system responded to this legislation. Toward this end, this dissertation describes how the criminal justice system in one county adapted to a law that affected the processing of approximately 36,000 offenders per year statewide; and illuminates the mechanisms in place that allowed the county criminal justice agencies to adapt to the massive changes required. It also utilizes time series analysis to interpret changes in case processing and sentencing trends that may have resulted from the implementation of SACPA.

Chapter 1 contains a review of the relevant literatures on Proposition 36, policy implementation analysis, drugs and crime, street level bureaucrats and discretion within the criminal justice system. Chapter 2 presents the research questions and describes the methodology used in the current study. Chapter 3 explains the law and reveals Orange County’s experience implementing Proposition 36. Chapter 4 discusses the various impacts of Proposition 36 on law enforcement officers and agencies, including high levels of frustration amongst officers, changes in officers’ arrest practices and exercise of discretion with drug offenders as well as other important effects.

Chapter 5 describes the impact on the courts and courtroom workgroup members, including judges, city attorneys, and public defenders. Chapter 6 describes the sentencing changes that occurred, estimates the number of offenders diverted from incarceration as a result of Proposition 36, and explores the impact that these changes had on corrections agencies and actors in Orange County. The changes included: a probation department that was overwhelmed by an unexpectedly large number of offenders; a jail that did not appear to notice any effect; an overcrowded prison system that got some, though not much, breathing room; and parole officers who were as frustrated as the cops. Finally, chapter 7 brings it all together with a summary of the main findings, conclusions about the lessons learned, suggestions for improving Proposition 36 and ideas for future research.

THE LAW AND THE LITERATURE

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Prior to July 1, 2001, most non-violent drug possession offenders were sentenced to 30, 60, or 90 days in jail and three years on probation. In addition to this customary sentence, there were two drug diversion programs available to judges and offenders in California (both of which are still in effect): PC1000 and special drug courts. PC1000 is a pre-plea diversion program that allows drug offenders to attend treatment in lieu of jail for their very first drug offense, provided they have no arrests for felonies in the prior five years. If successful, the offender’s case is dismissed. It is meant for the true “first timer.” Offenders eligible for PC1000 generally accept it because it is the least onerous of all drug diversion programs (Proposition 36 included).



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