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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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My pitch to everyone was, if you choose to continue to use, I won’t get you on a new charge, I’ll get you on the failure to appear. You just won’t show up because you know when you’re getting high you don’t care to show up to your meeting. You don’t care to show up to probation. You don’t care to do your AA and NA. You don’t care to come to court. What I’ll do is I’ll end up issuing a warrant for you and I’ll get you that way. I won’t catch you using, I’ll catch you for not doing what you’re supposed to be doing. (Judge) The more things you schedule, the quicker you catch them. That’s where you really have power with Prop36. When judges say, “We don’t have power to incarcerate.” Schedule something. Just schedule something and see if they show up. If they’re showing up, then more power to them. They’re making it. They’re making a step and that’s a big thing if they can make a step. If you have any suspicion, bring them back. Bring them back the next day. (Judge) The above quotes articulate how judges, as street-level bureaucrats, circumvent the law. Just like police officers, who began charging the additional, also-present non-drug misdemeanors in order to disqualify offenders from Prop36 sentencing; judges used the tools of their trade to circumvent the portion of the law they disagreed with and had some control over. It is interesting that, practitioners at every stage of the criminal justice system (though not every agency) honed in on the unique methods they had available to them to circumvent the legislation.

Judges seemed to appreciate the intent of Proposition 36 and worked hard to identify the offenders who were trying to get sober (even if they were messing up occasionally) from those who were completely unmotivated and simply working the system to stay out of jail. When asked how to improve the legislation, judges often said they wanted more discretion to keep offenders in the program, beyond the maximum three violations. They used the tools at their disposal to legally achieve the outcome they desired (in this case shock incarceration). “There [are] so many tools if you want to lock people up, if that’s your desire. What we hopefully have is a balance” (Confidential Informant, personal communication). It is interesting that judges did not circumvent the law in order to undermine it (like law enforcement officers), but rather to introduce a component they believed would improve its success. Ultimately, however, the power judges have in this respect is almost completely conditioned on the offender’s behavior. If the offender appears in court, the judge cannot issue an arrest warrant, even if they did skip treatment, test dirty, and fail to communicate with their probation officer.

Challenging Population Practitioners in Prop36 court are challenged by the wide range of offenders they find themselves serving. “We have everybody from the homeless and the poor to some people who are paying for very high end residential treatment facilities” (Confidential Informant EZJ, personal communication). Most, but not all, offenders have serious addictions. Furthermore, many, despite having serious long term addictions are entering the criminal justice system for the first time as a result of Prop36. This supports the net widening theory proposed in chapter four.

One of the things I thought was significant in Orange County is (sic) that…75% of the people that came thru Prop36 were new probationers. I thought after a year we would catch all the drug addicts and be done, and we’d just be recycling the same people. But for 4 years consistently, 75% of the people are (sic) new probationers. That means they haven’t had probation in the past.

That means they’re new to the system. We were catching new people all the time. (Judge) In contrast to these new people were the offenders who had long criminal histories that did not qualify for Prop36, yet were being sentenced to it. One of the common complaints I heard from practitioners at every stage of the criminal justice system was that sophisticated career criminals were being allowed to enroll in Proposition 36, despite being disqualified due to their past criminal history. Unlike the “they’re not deserving” argument articulated by law enforcement officers, judges (as well as treatment professionals and probation officers) familiar with Prop36 and drug treatment stated that these offenders are not suitable for Prop36 and furthermore that their presence negatively impacts the non-criminally sophisticated users enrolled in Prop36. Even though these offenders represent no more than 25% of all Prop36 offenders in Orange County, they have captured the attention of most practitioners. Whether this is because they utilize a disproportionate amount of court services or because they are noticeably more disruptive, negative, or hard to treat, is unknown. For whatever reason, practitioners throughout the system feel that this population causes problems for other offenders as well as some practitioners.

Several hypotheses were offered for why Orange County appears to have this issue. Some practitioners familiar with Prop36 offenders believe that some felony panel court judges have such highly favorable views of drug treatment that they think everyone should be given the opportunity to participate. What the felony panel court judges do not understand, according to other practitioners working with Prop36 clients, is that Prop36 is not a drug court and not everyone is suitable for the program. Prop36 was intended for non-criminally sophisticated addicts, not career criminals who also suffer from addiction.

I think part of the problem we face in Orange County is sometimes a cavalier attitude by judges in the pleading courts, by just putting everybody in Prop36 because they feel everybody deserves drug treatment… I don’t think anybody knows much about Prop36, I don’t think they look at it, I don’t think they read it. (Courtroom Practitioner) We’ve also had the situation where a judge in one of the branch courts may say ‘I think this person is eligible, I’ll put them in Prop36’, case comes to C58 and it’s clear they’re not eligible. DA objects and [the judge] will eliminate him from the program.

(Attorney) Other theories articulated by practitioners throughout the criminal justice system place the blame on district attorneys, saying that DA’s assigned to felony panel courts are (1) overworked and making mistakes, (2) under-educated about Prop36, and/or (3) trying to improve their conviction rate. Given that drug arrests increased significantly in the years after Prop36 was implemented, the most likely explanation is that D.A.’s are feeling significant pressure to resolve cases quickly71.

The pressure on the D.A.’s from increased arrests provides an incentive to dismiss the adjoining non-drug crimes (charged by law enforcement officers to disqualify the offender) in order to settle the case quickly. The increased caseload pressure also, in all likelihood, leads to some mistakes in which an offender’s disqualifying past criminal history is overlooked by DA’s and/or judges in the rush to settle the case. While it is true that D.A.’s are more likely to share law enforcement officers’ negative opinions of offenders and Proposition 36, their need to efficiently resolve I was unable to interview anyone at the DA’s office, however, it is logical to assume that the additional arrests had to have had some impact on DA’s (unless the increase in drug arrests was equaled by declines in arrests for other types of crimes, which is unlikely).

cases likely takes precedence over any personal desire an attorney may have to severely punish a particular drug offender. Hence, there are more self-promoting incentives for prosecutors to drop the additional charges alleged by law enforcement officers when they are confronted with increasing caseloads.

Therefore, in all probability system capacity constraints are driving the results observed. The criminal justice system is composed of a tightly interwoven set of agencies and actors that are independent, yet tied to each other in mutuallydependent ways. System capacity is an underlying mechanism that allows (or forces) the criminal justice system to intuitively expand or contract as capacity changes. Rogue judges and DA’s who are highly favorable toward drug treatment may also contribute to the problem; however the issue is more likely explained by system capacity constraints. Whatever the explanation, the fact is that criminallysophisticated offenders who do not qualify, are in fact enrolled in Prop36 and causing concern for both treatment and criminal justice practitioners.

Moreover, Prop36 clients have presented challenges for court personnel since the law went into effect in 2001. Right from the start, the court has been burdened with many more offenders than they anticipated. Instead of seeing primarily low-level novice users, the court has been inundated with long-term multiple-issues users who frequently lack basic life skills. By and large, these difficult to treat users fall into three categories, (1) inappropriate offenders (criminally sophisticated), (2) long term users with high levels of addiction (the largest proportion of offenders), and (3) mentally disordered offenders (who are unable to adhere to the requirements of Prop36).

We have a lot of two-talented, one-talented, no-talented people coming through here. They have hard lives, hard issues. They have a lot of issues they’re dealing with, low socioeconomic [status], the dual diagnosis issues [mental illness and addiction]. Everyone getting off drugs suffers from depression. They’re unemployed. They don’t have a driver’s license, and we’re expecting them to be fruitful and multiply. They’re going to struggle with that. We’re not seeing the rich people coming thru the court system. They don’t patrol rich people. (Judge) We get a lot of mentally ill people who don’t qualify for any of the other mentally ill boutique courts or specialty courts so we have to deal with them [in Prop36 court]. (Judge) Well when you mix those kind of people [violent offenders] with the PC1000 fallout people, it’s not a good match. It’s not a good match at all. And the health care people were complaining and still do that those worn prison people come in there and basically swear and cuss and have a bad attitude and it’s like a bad apple in the Prop36 barrel that the public had no idea was going to be there. And that’s another problem I mean, for starters to clean this thing up they need to get rid of all of those violent people. They don’t belong in that program [Prop36]. (Judge) Prop36, you can have gang members and [people with] gang ties… as long as they qualify and that’s a huge difference [from drug court] ‘cause [sic] that kind of mentality should not be in your therapy sessions. (Judge) New Programs Understanding the problems of these hard to treat defendants Orange County created two programs, Dual Diagnosis Court (DDC) and Intensive Twelve-Ten (ITT), in an attempt to increase the number of Prop36 offenders who are able to succeed in drug treatment. For example, court personnel noted that offenders with severe mental health issues had trouble complying with Prop36.

When you’re mentally ill you can’t comply with “go here, go there, do this, do that.” I mean cause you’re on the bus and you’re schizophrenic and you think people are gonna [sic] stab you and kill you and it was really sad to see those people going to state prison because they were self-medicating with the drugs and then they couldn’t follow through with the program to get clean. So I asked health care and probation if they would give me some staff and we could try an experimental court with taking those Prop36 clients and using Prop36 funding to see if we could prevent them from going to state prison and it was very, very effective. (Judge) These offenders have unique issues that are best addressed in a court specifically designed for them. DDC was designed for mentally ill offenders who failed out of Prop36 and were facing prison time. It started about a year after Proposition 36 was implemented and has a capacity of 50 offenders. It was the first criminal mental health court in the county. It operates as a collaborative drug court with multiple stages and stringent requirements. The goal is to “prevent the client from coming back into the criminal justice system and to help them reach a state where they are achieving their maximum potential” (Confidential Informant EBQ, personal communication).

Intensive Twelve-Ten was created in January 2007 within C58 for Prop36 defendants who require closer supervision to succeed. It is modeled on drug court and includes a client to staff ratio of 50 to 1. There is one health care provider and one probation officer assigned to the program, both of whom only supervise these defendants. The small staff to client ratio allows for much closer supervision and monitoring, which leads to better compliance and higher success rates. There are only 50 participants in the program at any given time. They all appear in court every Friday or every other Friday morning (depending on each individual’s stage in the program), so they get to know each other and start to support each other.

“They’re like a team. In fact a month or two after we started it up one of the gals came in with an ITT T-shirt. She had a bunch of them printed up for the girls in the sober living home” (Confidential Informant EZJ, personal communication).

According to the judge, approximately 80% of offenders are succeeding in this program. So, what is different about this program and these offenders? “Most all of them are on (their) third violation so I can take them in (sentence them to jail)” (Confidential Informant EZJ). Also, “[t]hey have probation to report to every week, they have health care to report to every week, they’re going to meetings every single day, there’s just an awful lot that’s required of them” (Confidential Informant EZJ). Finally, frequent testing is the key, according to the judge who runs ITT.

Both programs were created to improve the success of drug treatment, keep offenders out of prison (or jail), and help motivated offenders improve their lives.

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