«From Inception to Implementation: How SACPA has affected the Case Processing and Sentencing of Drug Offenders in One California County DISSERTATION ...»
Compassionate judges and practitioners took the initiative and went out of their way to create programs within the criminal justice system with the offenders needs in mind. It was not necessarily easy to get these intensive programs off the ground – it took convincing, cajoling and creativity to find the funding, the resources, as well as the time to devote to these special cases. Yet, in speaking with the judges who initiated these programs, it is obvious that they derive a great deal of satisfaction watching these offenders make progress and they take great pride in watching them succeed.
Some of the people that were in my Prop36 mental health court developed a co-occurring disorders meeting for NA. So they opened their own meeting and they give each other rides and go to that meeting. And it’s a legitimate outside meeting, other people go to it too, but they started it. Which is pretty cool, yeah, very, very cool.
(Judge) And they’ve all been very successful it’s been wonderful to see these clients be able to turn their lives around. In fact yesterday we had a graduation of a gal who’d been in Prop36, she was bipolar diagnosed at 16, been in and out of mental institutions all her life, either lived on the streets or with her mother, lots of suicide attempts, and she had 2 years in my court, she graduated yesterday and her mother came in and said, “you saw things in my daughter that I never saw, you saw she could be successful, she now has her own apartment, she takes her meds, she’s been clean and sober, she has a job, she pays all her bills”, and her mother never thought that she’d be an independent person who could live independently. (Judge) Decreased Drug Court Participation When Proposition 36 was on the ballot many drug court judges throughout the state came out against it for several reasons, including the fear that it would decrease participation in drug courts. This is exactly what happened in Orange County. Not only did it decrease participation, it also changed the makeup of offenders in drug courts throughout the county. By the end of 2002, only one and a half years after Prop36 inception, more than half of all new drug court admissions had failed out of Prop36 before enrolling in drug court (see Table 5.2). By 2005, fully ¾ of all people admitted to drug court had previously failed out of Prop36.
According to practitioners, offenders in drug court are now more serious offenders than was the case before Prop36 went into effect.
Two bad things happened. One is, we lost good clients who are the type of clients who’d do well in drug court. And that was really, really sad for us to lose those clients. The second devastating thing that happened to drug court is that now the clients that are getting in drug court are those clients that had a higher degree of criminality, significantly higher degree of criminality and they are the ones that wanted drug court because they had more to lose. They were looking at more jail time because maybe they had prison priors or they had…other cases they were on probation for. So we started getting a different kind of client when we started building up drug court again.
And that client has a higher degree of criminality. There’s a direct correlation between the degree of criminality and the success and recidivism. So now…our statistics in drug court have plummeted in terms of our recidivism, once we started getting this new Prop36 crowd of higher criminality. So it’s been devastating on the best program we’ve ever had in the criminal justice system. As well as not serving the people who are in it [drug court] well. (Judge) When Prop36 passed, the number of participants in drug court temporarily declined. And the reason was people who may have otherwise gone to drug court were now going into Prop36. But within the first year, it became obvious that in dealing with Prop36 failures, one option we had was to steer them towards a drug court.
If they were otherwise eligible for drug court and they still wanted treatment and they simply couldn’t make it in Prop36, they were allowed to apply then they were evaluated for admission into drug court. And a significant number of drug court entrants, people who entered drug court after Prop36, more than half were Prop36 failures.
So drug court began to be filled with people who were Prop36 failures and many of them succeed to the same degree as if they had come in straight from their offense. (Attorney)
The fact that Prop36 temporarily lowered drug court participation and detoured drug court eligible and suitable clients into a less intensive program without the components necessary for proven success frustrated some court practitioners. Some practitioners felt the Prop36 detour made offenders more amenable to treatment (because they were tired of the process), but others felt strongly that it made it more difficult for offenders to succeed, since they had two more years of “screwing around.” Court staff have plans to do a study of recidivism between the two groups of drug court participants (Prop36 fallouts and not) to see if there is any difference; unfortunately results will not be ready for at least a year.
The Public Defender’s Office (PDO) took an active role in shaping Orange County’s response to Proposition 36. Agency representatives spent enormous amounts of time in various meetings with representatives from other agencies within the county prior to and during the inception process. Representatives also attended numerous meetings throughout the state in the early years. Thus, in this respect the workload increase was top heavy (at least for the few representatives who were integral in the early planning stages).
Beyond the initial planning and implementation, the workload for the Public Defender’s office increased moderately as a result of the case processing and sentencing changes that accompanied the passage of Proposition 36. Agency workload increased by seven attorneys and three support staff; but the office was only able to add three and a half attorneys and one support staff. The additional workload was absorbed by everyone doing a little more. Although the new law required many changes that increased the amount of work to be done, the sustained workload increase was primarily a result of the added advisement time and the new court that needed to be staffed (C58) to handle the report backs.
In addition to staffing Prop36 court, the Public Defender’s Office also had to set up procedures for processing the files of felony Prop36 cases that are monitored in C58. Case files need to be stored and filed in a place and manner that allows them to be quickly accessed for three years (or until the client has completed probation). Typically, case files for the cases tried in branch courts are filed in the branch court offices; now those felony Prop36 cases need to be transferred to the central office so they are accessible to C58 public defenders quickly. In addition, the cases that were originally settled in central court also have to be easily accessible for report-backs. Filling staff are much busier pulling cases than they were in the past, a result of the numerous and frequent report backs.
The PDO also had to draft documents to give to defendants explaining Proposition 36, where they need to go, and how to get there. For example, if a defendant agrees to Prop36 diversion, the public defender will give them paperwork and a checklist telling them they need to report to probation within two days and then to Healthcare to enroll in treatment. These documents have to have clear instructions as well as directions, so the defendant will not get lost. The PD also needed to create a document that spells out all the rules of Prop36 and all the things that are required to stay in the program. This is all part of the advisement that occurs between the attorney and the client. The public defender’s office worked closely with probation and healthcare in order to streamline the process, but it all required a lot of time and effort in the beginning to get organized.
Furthermore, Prop36 altered the role of public defenders assigned to C58.
Attorneys in this court act much more like attorneys in collaborative courts (such as drug court or mental health court) in which the actors from the various agencies work together as a team to try and resolve problems. This is in contrast to the typical adversarial courtroom “because there’s a lot less litigation, there’s a lot less trials, and a lot less motion work, a lot less presenting testimony, cross-examination, that kind of thing” (Confidential Informant, personal communication). Prop36 court is “much more an equity situation, meaning that there’s more talk about what ought to be done [with the offender]” (Confidential Informant AFT, personal communication). This can be difficult and not all attorneys are interested in such an assignment. As one practitioner stated, “nobody became a public defender really, to do Prop36, you want to go in and you want to try cases, that’s what you do.
Nobody became a DA to do this semi-touchy feely, they came to try cases.” It is unknown how pervasive this view is and whether line level public defenders see the Prop36 assignment as a punishment, as a reward, or as something in between.
One of the interesting impacts of Prop36 on public defenders is that it changed the makeup of cases that remained on the felony-trial attorneys’ caseloads.
Prior to Prop36 felony-trial attorneys handled a variety of felony trial cases, from low-level drug offenses up to murders. Now, because of Prop36, there are fewer low-level drug cases that go to trial. This leaves a higher percentage of serious cases on the felony-trial attorneys’ caseloads. Having a higher severity of cases increases the stress and emotional toll on attorneys, particularly newer attorneys.
What we found was that … it did increase the level of severity of the cases that remained on the felony-trial calendar for the attorneys that do the felony trials.… [The serious cases that remained are] more stressful…Cases where a defendant is facing a potential life sentence or a multiple-year prison sentence puts more stress on the attorney than the case that, even after a trial, is likely to be a 90 day sentence in county jail. It doesn’t really affect the real experienced attorneys because they’re handling the heavier, more serious cases anyway.
But the younger attorneys who are doing felony trials for the first time, they tend to be doing some of the more serious cases sooner in their career because although most of the drug cases did not come up for trial, enough did so that there were some of those in the caseload of a new felony-panel attorney. Now there are fewer of those kinds of cases and the cases they do have are more serious cases.
(Attorney) The impact of Prop36 on the Public Defender’s Office was moderate at the beginning and minor after a couple years of adapting to the new status quo.
Proposition 36 was not agency-changing in the way it was for the probation department (to be discussed in the next chapter). However, it did require adaptations and a lot of time creating procedures, training staff, and advising clients.
There are only a few City Attorney’s Offices in the state of California that prosecute criminal cases. Anaheim is the only one in Orange County that files criminal charges and this office only handles misdemeanor crimes. Possibly for this reason, the Anaheim City Attorney’s Office (ACAO) did not experience the same workload increase that the PDO did. This is probably because misdemeanor Prop36 offenders, who are monitored in several branch courts throughout the county, are not as closely supervised as felony Prop36 probationers. These offenders are on “informal” probation and are not required to report to court as frequently as felony defendants. They do report back to court, just not as often as felony offenders. This makes the workload more manageable for the lawyers assigned to these cases.
The misdemeanor Prop36 courts also process arraignments, preliminary hearings, and other court matters. For this reason, the attorneys in these courts perform a variety of tasks and are not limited to Prop36 violation cases. This is important in regards to Prop36 adaptation because it allowed the additional workload to be spread over a larger number of attorneys and ensured that no single attorney had their job completely redefined by Proposition 36.
The Anaheim City Attorney’s Office took a very strong negative position on Proposition 36 and proactively trained Anaheim police officers on how to circumvent the law by adding non-drug related charges whenever the elements of another crime were present. In fact, “when we review a case, even when there’s something not charged, we’ll look very carefully to see if there’s other criminal conduct that we might also allege” (Confidential Informant MBA, personal communication). Other practitioners believe this is common practice for attorneys from the DA’s office also. As one practitioner alleged, “fairly early on the DA was actually looking for disqualifying offenses to keep people out of Prop36. And I think that’s happened less in the last few years than it did in the first year or two” (Confidential Informant AFT, personal communication).