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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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Drug offenders sentenced to Proposition 36 are initially adjudicated in a panel court (felony or misdemeanor – depending on offense type), just like all other offenders in Orange County. If the offender is convicted of a qualifying non-violent drug possession offense, and is not disqualified by past criminal history or a concurrent non-drug offense, he/she can be sentenced to Proposition 36 (three years probation with a condition of participation in and completion of a drug treatment program). Offenders are given the option of participating and must agree to the terms and conditions prior to being sentenced to Proposition 36 diversion. Most offenders, greater than 95% based on practitioner estimates, choose to participate and are sentenced accordingly.

Upon official Proposition 36 sentencing, an offender is instructed to (1) report to probation, (2) get signed up for treatment through the Health Care Agency, and (3)

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convicted of a felony drug possession offense, he or she will report to department C58 at Central Superior Court (the sole felony Prop36 court in the county) and will continue to be monitored in this courtroom the entire time he or she is on Prop36 probation. If the offender is convicted of a misdemeanor drug possession offense, he or she will report to one of several misdemeanor Prop36 courts throughout the county.

Approximately 80% of Proposition 36 offenders in Orange County61 are convicted of felonies and supervised in C58 at Central Superior Court.

Felony offenders report to C58 two weeks after being sentenced to Prop36 probation for a progress review. During the progress review, the judge verifies that the defendant met with probation and enrolled in treatment and has been attending their daily meetings and completed the other tasks required by the court (for example, providing a DNA sample). If the defendant successfully accomplishes all the tasks ordered by the court, the judge will typically order the defendant to appear for a monitoring review in three months. If not, the judge will order the defendant to appear within a shorter timeframe to provide the necessary documentation proving compliance. Depending on the offender, additional monitoring reviews will be scheduled at least quarterly62. During a monitoring review, the judge “will find out Defendant is given a specific date/place to report. Typically misdemeanor defendants have one progress review 2 weeks after being sentenced to Prop36 but are not regularly monitored by the court.

The proportion of felony/misdemeanor cases varies by county.

Originally all Prop36 offenders saw the judge at least quarterly for monitoring reviews until treatment was completed, however judges found that low level offenders with good support systems did not where they are in treatment, are they in good standing at treatment, is there a problem with the treatment, are they missing meetings, is there something going on where they may need to be bumped up” (Confidential Informant EZJ, personal communication).

For the few offenders who do not violate probation and make adequate progress in treatment, this is the only time they see the judge. Once treatment is completed, a successful defendant will not appear in court again until they petition the court to dismiss their original case (upon successful completion of treatment and supervision).

Theoretically, a defendant could complete treatment within a year and have their case dismissed within 18 months if they do all that the court requires.

Most offenders do not succeed the first time through according to practitioners.

Most offenders violate probation at least once and usually two or three times. These offenders are in court much more frequently – pleading to violations and reporting for monitoring reviews. Offenders with one Prop36 probation violation or with a state prison prior will have monitoring reviews scheduled at least every 90 days and sometimes more frequently depending on what the judge feels the individual offender needs. Anyone with two violations or other problems that affect their ability to do the program (e.g. physical or mental health problems, or affiliation with criminal gangs) are monitored more closely, at least every 60 days and sometimes every 14, 30, or 45 days.

The law allows offenders three violations before they are terminated from Prop36 probation. The court may revoke probation for non-drug violations of probation and for new offenses that are not drug related. Prior to Proposition 36, most significantly benefit from monitoring reviews and thus eliminated reviews for offenders they found did not need them and instead focused their time on the bulk of offenders who did benefit from them.

offenders convicted of a felony drug possession offense were sentenced to 30, 60, or 90 days in jail and three years on probation. As a result of Prop36, judges can no longer sentence offenders to prison or jail for their original possession offense nor for any drug-related violations of Prop36 probation (including new drug offenses). It is not until the third violation that an offender can be terminated from Prop36 without their permission and sentenced to jail or prison. How much time an offender is sentenced to after being terminated from Prop36 depends on the reason for the third violation, but is typically 90 days in jail63. Most offenders on Prop36 will appear before the court on two probation violations (often involving new charges) and quarterly monitoring reviews while on probation.





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Prop36 had several distinct effects on the court system. At the pre-trial stage, it increased the use of plea bargaining at early stages and decreased the number of preliminary hearings. It decreased the percent of cases that went to trial and affected sentences for original drug crimes as well as violations. It also radically increased the amount of cases that return to court post-conviction, for violations and reviews.

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More Plea Bargains The two main effects of Proposition 36 on pre-trial activities were: more plea bargains and fewer preliminary hearings. Practitioners anticipated an increase in plea bargains because, as one pointed out, “Proposition 36 is a good deal (for drug Sentencing for probation violations involving new offenses is tricky and depends on whether the new charge is drug-related or not as well as whether the offender has prior prison terms. Table5.1 on page 151 illustrates how sentencing changed for most drug offenders after Proposition 36.

offenders); they can’t do any better” (meaning that Prop36 is the lightest sentence an offender could hope to receive) (Confidential Informant, personal communication).

Because the law mandated a customary, non-custodial sentence, offenders are less likely to contest the charges against them and more likely to accept the DA’s (now standard) offer of probation with treatment (aka Prop36). Hence, offenders are more likely to plea bargain their case prior to the preliminary hearing now.

It may actually accentuate the effectiveness of pleas …let’s say [the offer is] 90 days in jail on 11550 [under the influence]. Well, if all he had to face was 90 days then the case is not going to resolve. It’s probably going to go to trial or right up to trial. That is typically what happens. But if at the arraignment or pre-trial [conference] he’s offered a non-jail Prop36...then the case will be dismissed. They jump at that [the opportunity to get out of jail]. (Attorney) Fewer Preliminary Hearings Because drug possession cases are resolved more quickly and at earlier stages than was customary prior to the law change there are fewer preliminary hearings as a result. This change has several benefits for courtroom actors, particularly prosecutors.

For example, city attorneys (and presumably district attorneys) spend less time and effort preparing for the preliminary hearing, where they must show probable cause that the defendant committed the crime he/she was accused of. Attorneys also spend less time locating and subpoenaing witnesses for the preliminary hearing. This effect, as we have seen, was also observed by law enforcement officers who stated that they spend less time in court as a result of Prop36. The fact that officers spend less time in court is a direct result of the increased use of plea bargaining prior to the preliminary hearing. Before Prop36 became law, much of the plea bargaining occurred on the day of, or after the preliminary hearing; at which point law enforcement officers would have already received their subpoenas and would have reported to court to testify.

And objectively the good part of Prop36 is that you have more cases resolved at an earlier stage, which requires less effort on the part of the prosecution and the defense. [It] saves costs. We don’t have police officers being subpoenaed and on standby. (Attorney) Undoubtedly, city and district attorneys reap more of the benefits that accompany fewer preliminary hearings. This is because public defenders (and private attorneys) do not have the burden of establishing probable cause; but it is also because these attorneys must spend more time advising clients of their rights and the requirements and the ramifications of Proposition 36 participation. According to one attorney, advisement takes significantly more time than it used to.

Prop36 actually takes longer because there’s a whole litany of things that the attorney needs to advise the client about. So even in a case that settles going into Prop36, it takes longer than a case that in the old days would settle for a 90-day sentence.…The amount of advice that the lawyer has to give these clients is about double or triple what it used to be, whether they want to do Prop36 or not…. It used to take fifteen minutes, probably now it takes thirty to forty minutes [per client].

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Just as there are fewer preliminary hearings, there are also fewer trials as a result of Proposition 36, though not dramatically fewer. Theoretically these two changes (fewer preliminary hearings and trials) should have created more space on the felony panel court calendar for additional cases; however that was not an effect observed by panel court judges. This is probably because, in reality, few drug possession cases went to trial before Prop36 and although there may be even fewer now, the difference is not great. Furthermore, the number of arrests for drug crimes increased dramatically in the years after Prop36, so it is unlikely that judges would feel any relief due to fewer hearings; rather it is more likely that they would feel increased pressure stemming from additional arraignments brought on by more arrests.

An analysis of state criminal justice statistics suggests that both the complaints filed rate and the conviction rate for felony possession64 arrests increased after Proposition 36 was implemented. From 1995 to 2000, the complaints filed rate (the number of complaints filed as a percentage of arrests) averaged 94.5%; after Prop36 it averaged 95.7%. It is unknown whether the increase is directly related to Proposition 36, as 2002 data are missing and it appears the increase is primarily a function of higher complaints filed rates for 2004 and 2005 (96.1% and 97.7% respectively), a couple of years after Proposition 36 took effect.

Conviction rates also increased after Proposition 36 became law. Prior to Proposition 36, an average of 79.8% of drug possession cases filed each year resulted in a conviction. After Proposition 36, an average of 81.6% of drug possession cases filed each year resulted in a conviction; an increase of approximately 2%. Once again, it is unknown whether it is directly related to Prop36 implementation, as factors that would be expected to affect the rate were not taken into consideration (ex. staffing levels, caseload, etc.); however the conviction rate for each post-Prop36 year was higher than any pre-Prop36 year (except one, 1998). The proportion of acquittals remained stable at less than.3% of cases each year. The number of felony drug possession cases filed increased after Prop36 but the number of cases dismissed by the court did not. Time series analysis indicated that the increase in the number of cases Felony possession includes HS11350 and HS11377 arrests.

filed was not due to Proposition 3665. The number of cases dismissed by the court was not statistically significant and thus was not impacted by Proposition 36.

Figure 5.3: Number of Felony Drug Possession Cases Filed and Cases Dismissed in Orange County, 1995 – 2005

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'9 '9 '9 '9 '0 '0 '0 '0 '0

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' ' ' ' offenders, from a typical 30-90 days in jail with three years of probation to three years of probation with the condition of participation in drug treatment. It did not, however, change initial sentences for all drug offenders. As Table 5.1 illustrates, offenders eligible for PC1000 (a pre-plea diversion program for first-time drug offenders) continue to take that option because it is less onerous than Proposition 36 (and the benefits are greater because a conviction is never recorded on the offender’s criminal See Appendix K for a description of time series models and significance levels.

history file, this has particularly significant benefits for immigrants). Meanwhile offenders eligible and suitable for drug court now choose to accept Proposition 36 because, once again, it is less onerous than the alternative (drug court) yet still provides the benefit of no added jail time.

Proposition 36 also prohibited the use of incarceration as a tool to encourage

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