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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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practitioners, this changed how judges sentence offenders for probation violations and new charges related to drug use by dramatically decreasing the amount of time offenders spend behind bars for violations and new charges (see Table 5.1). For example, before Prop36, offenders would be sentenced to 16 months in prison after their third violation, now they will not be sentenced to prison until their fifth (or later) violation. Depending upon which side one is on, this can be viewed as a positive outcome, or a negative one66. Some practitioners, however, assert that a few offenders are sentenced more harshly when failing out of Prop36 than they would have if they had just taken the jail time in the beginning (at sentencing for their original crime). It is unknown whether this is still a problem, but research suggests that stiffer sentences occurred more frequently at the beginning of Prop36, before the “standards” shown in Table 5.1 were established.

What has been disappointing about Prop36 is that when a … client has failed Prop36, sometimes the judge treats it as multiple probation violations and ends up sending the client for a longer jail sentence than they originally would have had, or in some cases to state prison usually the lower-term sentence, say out in sixteen months.…Sometimes people fail the drug treatment and end up with longer sentences than if they hadn’t tried them at all. (Attorney) Practitioners claimed that some offenders are unmotivated to comply with the rules and work the program because they view the repercussions for non-compliance/failure to be inconsequential.

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Report Backs All offenders are required to report to court when they violate a term of their probation or when they commit a new crime. Proposition 36 offenders are no different; they simply violate probation and are caught committing new crimes more frequently than other types of offenders. This is because there are a lot of rules to comply with in Prop36 and according to practitioners, drug addicted individuals find it difficult to adhere to all the requirements (numerous treatment group meetings, drug testing, probation officer meetings, etc). In addition, the court takes a more active role in monitoring program compliance with this population than it does with other populations, save drug court and other collaborative courts participants. The large number of report backs increased the workload for judges, court staff, public defenders, city attorneys, and presumably district attorneys as well.

The most typical sentence would be a 90 day-sentence, the client would negotiate a plea to something, be served a 90-day sentence, and we had a couple of court appearances with those cases and then they were finished. After Prop36, those cases were subject to continuous report back appearances in C58 (Prop36 court), so the workload increased. (Attorney) The bad part is, is that so many of these cases come back when the person fails to make their points or comes in with a dirty test or picks up a new drug related offense that they get diverted on or excuse me, re-referred Prop36 on. So we’re handling the cases multiple times down the line; after the people have pled guilty. (Attorney) A few of them (drug cases) might [have] come back for probation violations under the old system if they tested dirty or violated probation, or allegedly did something. But because they’re in Prop36 and they’re being more closely monitored, because they’re going to treatment … those cases tend to come back much more frequently than they would have under the old system. (Attorney) Because these cases are re-handled so frequently attorneys report that they end up spending more time on the cases than was customary before Prop36 became law. So, whatever time was saved by fewer hearings or trials or earlier plea bargains is expended with the added time devoted to report backs. One practitioner estimated that attorneys spend two hours more on standard drug possession cases now (including all the report backs) than they did prior to Proposition 36. In addition to the increased time involved, each agency had to create a new system to handle the case files of all these defendants. It required new (or adapted) filing systems and case handling procedures as well as dedicated staff. Proposition 36 funding allowed some agencies to hire more personnel; but other agencies had to absorb the extra workload without added resources. Re-handling cases on such a large scale required agency-wide procedural changes and workload increases that had to be addressed by each agency.

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The sentencing and post-sentencing changes dictated by Proposition 36 led to obligatory changes in some court procedures and created unexpected changes in other courts in the system as well. For example, unlike other cases in the criminal court system, Prop36 cases are re-handled multiple times due to report backs and frequent probation and court violations. A new courtroom, devoted solely to Proposition 36 cases, was created in order to handle this extra workload. The court encountered challenges as it struggled to accommodate the volume of offenders as well as the seriousness of their addiction problems. Eventually, two programs (Intensive Twelve-Ten and Dual Diagnosis Court) were created to deal with the difficult-to-treat Prop36 clients. Moreover, Orange County struggled as Proposition 36 decreased participation in, and changed the makeup of, existing drug courts in the county.

Prop36 Court Created Orange County anticipated multiple report-backs and designed its response around the issue by creating one specific court to handle the cases. Department C58 (a.k.a. Prop36 Court), located in the central superior courthouse, has three public defenders, a district attorney, a probation officer, a health care worker, and a judge, as well as a court clerk, an assistant court clerk and a courtroom assistant. It is a very busy and chaotic court. The first time I visited the court, I was struck by how crowded it was, not only with defendants in the gallery (it was standing room only for at least an hour and probably closer to two hours) but also with the entire courtroom staff that was required to process all of the cases on the calendar. In fact, the court averages 100-120 cases each day and sometimes handles as many as 150.

Originally the judge assigned to Prop36 court wanted to run it like a pseudodrug court, in which offenders were closely monitored and held accountable for improving their lives by consistent courtroom staff that were familiar to the offenders70. The judge initially assigned to Prop36 court scheduled frequent monitoring reviews and required everyone to get a job (if they did not comply, he ordered them to perform 40 hours of community service per week). “I gave them 30 A true drug court model in which there is low staff to client ratio, graduated sanctions, and close supervision was never expected due to resource constraints.

days to get a job. If you get a job, something’s going right. That would help me monitor where probation couldn’t. ‘Come back; show me you’re still working.’ If you’re working the same job for 30 days, something’s going right in your life. I’ll work with you on that” (Confidential Informant EVC, personal communication).

Unfortunately this high level of individual attention did not last for long because violation hearings and monitoring reviews quickly consumed the court calendar.

We tried to [take a holistic approach like drug court] with Prop36, but fairly early on, the court was overwhelmed with just problem cases. They couldn’t bring people back for ‘Okay, you’ve got jobs, [or] if [they] applied for jobs, show me that, at least the applications.

Okay, you’ve got 30 days to go out and find a job, even if you’re working at McDonald’s down the street, you need to find some sort of job’. Judge X was doing a lot of that in the beginning, but pretty soon it became clearer the case load was overwhelming, so he wasn’t able to do as much of that…. Which is unfortunate because I think the success rate would be higher if we had more resources.

(Probation Officer) The initial report back concept that Judge X had was more like Drug Court, where people were asked about seeking jobs, asked about their treatment, that sort of thing, with regular report backs every couple of weeks or so. The caseload exploded and was so large that within a relatively short period of time C58 became more of a probation violation kind of court. So people who were doing well in treatment, we wouldn’t see them in court because we had so many clients, just in general, that a calendar would be full of cases where there was some problem with treatment or some other problem that required court intervention other than simply progress reviews. So that court became more of a problem-solving court rather than a monitoring court.... The people who were doing well soon were no longer coming back to court. The court couldn’t afford the time to say ‘Okay, come back in two weeks, we’ll see how you’re doing with your job search’. (Attorney) The idea behind monitoring reviews is that most Prop36 offenders need encouragement and someone to hold them accountable. The court, though, was overwhelmed by the surprisingly large number of Prop36 offenders and their high levels of addiction. In the words of one practitioner, “I think it was highly unexpected when they passed it, that the degree of criminality and the degree of addiction would be as great as it was.” So, rather than employ a one-size-fits-all approach, Prop36 court judges tried to adapt and tailor the program (specifically the number of court appearances) to individual offenders. For example, some offenders do not significantly benefit from frequent monitoring reviews – they do fine without them. On the other hand, parolees and other defendants with prior prison experience, as well as other defendants with mental or physical health issues, and those who have violated their probation are seen more frequently than defendants characterized as low-risk or low-need. Judges attempted to monitor offenders as closely as possible in order to improve the likelihood of success for each offender.

If I felt like there was an issue or problem, I’d have them back soon.

If I thought they were smooth, moving along, getting good reports, clean testing, I’d say, “You bought extra time for coming back.”… 90 days [between monitoring reviews] was typical. If there was a problem, it could be anywhere from a day to two weeks to 30 days to 60 days. I’d just throw out what seemed appropriate based upon the circumstance. (Judge) Because the way we’ve had to deal with this is you can’t do all these monitoring reviews because you’ve got that wide net…you’ve got a lot of people that just sort of blew off PC1000 for whatever stupid reason, they figure yeah what’s the big deal, so now they’re in Prop36 and they may not be really drug dependant and they would benefit had they only gone and paid attention to PC1000 so we have to deal with them and its really pointless to keep bringing them back and taking up court time to deal with them. (Judge) You’re sort of sifting and re-sifting and re-sifting and keeping them all on sort of different appearance tracks. Depending upon how they’re doing. So that’s sort of how we do it and you know I think it would probably be ideal if you just had the time to chat with everybody all day. (Judge) Of course, “the more often you have them back, the larger your calendars are” (Confidential Informant EBI, personal communication). This was a problem because of the sheer number of people on Prop36 probation and because Orange County only has resources to staff one felony Prop36 court. Individualized scheduling was not only logical, it was necessary to control the court calendar and keep it manageable (albeit very busy). For example, if the calendar was over booked the judge could schedule a monitoring review in 21 or 30 days instead of 14 days. Alternatively, he could eliminate monitoring reviews entirely for offenders progressing well in the program. It is a continuous balancing act – trying to bring offenders back as often as necessary to support program compliance without overburdening the court staff.

The main purpose of the monitoring reviews is to hold offenders accountable and encourage program compliance. Without monitoring reviews, some offenders will not do the things they are required to do by law (e.g. go to treatment).

However, from a judges’ standpoint, this is also where they have power over defendants. Although Proposition 36 specifically prohibits incarceration for drugrelated violations, it does not preclude a judge from issuing a warrant for a person’s arrest if they fail to appear in court as ordered. If an offender is scheduled for a hearing or review in court and fails to appear, a judge will issue a warrant for the individual’s arrest. Once caught by law enforcement, the person is jailed until their court appearance (one to four days later, depending on the time and the day they are arrested). Issuing such warrants serves the purpose of forcing shock incarceration on offenders not complying with Prop36 and is one method judges have to get around this restriction in the law.

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