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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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Figure 6.2: Estimated Number of Orange County Drug Possession Offenders Diverted From Incarceration for the Years 2001 and 2003-2005

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Source: California Criminal Justice Statistics Center (CJSC). 2002 data are missing due to a data entry error at CJSC that affected the OBTS database.

Figure 6.2 visually demonstrates how Orange County offenders convicted of felony drug possession offenses between 2001 and 2005 (excluding 2002) were actually sentenced and how they would have been sentenced if Prop36 had not become law.

It presents each drug possession offense separately. Between 2001 and 2005 (excluding 2002) there were a total of 16,283 offenders convicted of drug possession offenses in Orange County (see Table 6.2). Of these 16,283 offenders, 5,625 were given custodial sentences (prison, jail, probation with jail, or California Rehabilitation Center) and 10,658 were given non-custodial sentences (probation or fine).

Table 6.2: Estimated Number of Orange County Drug Possession Offenders1 Sentenced During 2001 and 2003-20052, With and Without Proposition 36 as Law

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One key question is how many offenders would have been given a custodial sentence if Prop36 had not become law? Utilizing sentencing information contained in Table 6.1, Table 6.2 displays the estimated number of offenders who would have been sentenced to each of the possible sanctions if Prop36 had not become law by applying pre-Prop36 percentages to the actual number of people convicted of drug possession offenses between 2001 and 2005 (excluding 2002). This provides as estimate of the number of people who would have been sentenced to each sanction if Prop36 had not become law. As Table 6.2 demonstrates, we would have expected 15,163 offenders to have been given custodial sanctions between 2001 and 2005 (excluding 2002) if Prop36 had not become law.

Hence, an estimated 9,538 Orange County drug possession offenders were diverted from sentences involving local or state incarceration between 2001 and 2005 (excluding 2002) as a result of Proposition 36; approximately 2,400 per year.

The vast majority (7,600) of these offenders were diverted from short jail sentences, rather than long prison terms. Nevertheless, approximately 2,000 drug possession offenders convicted in Orange County were diverted from prison as a result of Proposition 36. Consequently there are approximately 500 fewer offenders going to prison and 1,900 fewer offenders going to jail each year as a result of Proposition

36. This is not insignificant; however it still does not take the other Prop36-eligible crimes into account.

While it would be difficult to calculate a diversion estimate for transportation and paraphernalia convictions, we can estimate the number of offenders convicted of “under the influence” and diverted from incarceration.

Police and judges concur that the standard sentence for “under the influence” convictions in the years leading up to Prop36 was 90 days in jail and three years on probation. For this reason and because prison and CRC are not sentencing options in misdemeanor cases, it is logical to estimate that more than 80% of offenders would have received a probation with jail or jail sentence prior to implementation of Prop36. Given that the other offenders (not sentenced to jail or probation with jail) had to be sentenced to either probation or a fine, we would expect that between 40% and 60% of offenders would have been diverted from incarceration as a result of Prop36 (see Figure 6.3). The number of under the influence arrests averaged 2,400 per year in the years since Prop36 was implemented. Using the more conservative 40% diversion estimate presented above suggests that approximately 1,000 offenders convicted of “under the influence” are diverted each year in Orange County. The more liberal 60% estimate would place the number of under the influence offenders diverted at 1,500 per year.

Figure 6.3: Estimated Number of Orange County Offenders1 Sentenced to Custodial and Non-Custodial Sanctions Each Year for “Under the Influence of a Controlled Substance” With and Without Proposition 36 as Law

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Estimate based on information provided by judges and law enforcement officers.

Estimate based on 36% of felony possession offenders that received custodial sanctions post Prop36. It is acknowledged that felony possession sentences are not ideal comparisons for misdemeanor under the influence sentences.

Estimate based on under the influence arrest data provided by CJSC.

By combining these two estimates (drug possession and under the influence) we can postulate that approximately 3,400 offenders convicted of Prop36-eligible drug offenses in Orange County are diverted from incarceration each year as a result of Proposition 36 (2,400 possession offenders and 1,000 under the influence offenders). Note that this last estimate still does not take into account paraphernalia or transportation convictions which could increase the total diversion estimate by about 10%. All together, it is estimated that approximately 20,400 Orange County drug offenders (convicted of possession and under the influence) have been diverted from incarceration in the six years since Proposition 36 was implemented73.

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All of these offenders sentenced under Proposition 36 are sentenced to probation. As of December 2007, 6 ½ years after inception of the law, 24,000 individuals had been placed on Prop36 probation by Orange County courts (Orange County Probation Department, PC1210 Monthly Report, December, 2007). During the first three years of the law (2001-2004), the probation department received an average of 325 new Prop36 probationers each month (Hilger, 2007—unpublished PC1210 monthly report). This was a large increase over the number of new

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offenders overwhelmed the Orange County Probation Department (OCPD) and challenged the department in unexpected ways. It caused backlogs, strained the staff, and forced innovation.

Technically, this is an estimate of the number of cases diverted rather than the number of individuals diverted because it would be expected that some individuals would have been convicted multiple times.

The units most affected by Proposition 36 were the assessment unit and the PC121074 supervision unit. The four biggest issues that OCPD had to resolve were the result of the unforeseen volume of offenders. First, the assessment unit could not keep up with the large number of offenders that needed to be assessed and classified each month. Second, probation officers were unable to adequately supervise Prop36 probationers because their caseloads were prohibitively large (they averaged 250 cases per probation officer). Third, the number of warrants for probation violations (not showing to meetings, etc.) was very high and added to the already excessive workload. Fourth, drug testing the large volume of Prop36 offenders on a regular basis posed several challenges.

The probation department had to innovate in order to accommodate all of the additional probationers brought in by Proposition 36. The innovations were clearly driven by necessity, as probation officers and other department employees describe the first couple of years of Proposition 36 as extremely stressful and chaotic.

Employees developed several inventive solutions to the problems presented by Prop36. The following sections will discuss each of the problems encountered and describe the strategies employed to address each one.

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During the first few years of the law, new Prop36 probationers accounted for approximately 45% of all new probationers each month (Confidential Informant DDA, personal communication). At the time Prop36 was implemented, the Orange County Probation Department had a separate adult assessment unit that assessed the Probation staff refer to Prop36 as “PC1210,” after the penal code established by Proposition 36.

risks and needs of all new adult probationers and assigned new probationers to the proper supervision unit and supervision level. There were 18 probation officers assigned to this unit, of which two were fully devoted to Prop36 cases when Proposition 36 first began. The two officers in the assessment unit assigned to Prop36 cases “quickly got overwhelmed” (Confidential Informant DDA).

In order to adapt to the workload pressures, supervisors adjusted staff responsibilities. Within several months, every one of the eighteen officers in the assessment unit was working on Prop36 cases, “because otherwise there was no way we were going to keep up with the flow” (Confidential Informant DDA). Despite the staff increase, the eighteen officers were unable to perform full assessments on every new probationer due to time constraints. During the summer of 2002, one year into the law, the assessment officers began performing mini-assessments instead of full assessments on Prop36 probationers as a way to save time. The problem was confounded because the county C.E.O. refused to allow the probation department to spend county funds on Proposition 36 related expenses.

Eventually, a supervisor made the decision to add more staff to help with Prop36 assessments. “Over the course of probably two years I had to add four more Probation Officers to those eighteen, and these weren’t Prop36 funded, I had to rob from other places just to manage that workload” (Confidential Informant DDA, personal communication). In the fall of 2003, partly due to the impact that Proposition 36 had on the department, OCPD went through a department-wide reorganization and the assessment unit was disbanded. As a result, it became the responsibility of each supervisory unit to conduct risk/needs assessments and assign new probationers to the appropriate probation officer and level of supervision. This change had the net effect of increasing the workload on the PC1210 unit probation officers (as well as all other field supervision unit officers).

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In response to Proposition 36, OCPD created two PC1210 supervision units dedicated to supervising Prop36 probationers. At inception, each unit had eleven staff (one Supervising Probation Officer, nine Deputy Probation Officers, and one clerical staff), for a total of 22 staff assigned to Prop36 cases. With few exceptions, almost all Prop36 probationers were (and are) assigned to a probation officer in one of these two units. The exceptions are Prop36 individuals who are required to register as sex offenders, those with a history of domestic violence, hard core gang members and very high risk probationers with extensive histories of violence (such as parolees).

The department chose to separate Prop36 probationers from the general population because “there were so many nuances associated with the law; [such as] when you can violate them that were completely contrary to the way probation officers normally handle their caseload. We felt for quality control purposes, we needed to have specific caseloads where those people [probation officers] could be given intensive training to understand [the law]” (Confidential Informant DDA, personal communication). In addition to the unique legal rules, this assignment is distinctive from others in the department because officers have additional court progress reporting requirements and because officers must work closely with collaborative partners throughout the term of an offender’s probation.

The single most significant impact of Proposition 36 on the probation department was the effect it had on individual probation officers’ caseloads.

Because the nuances of the law (eg. treatment requirements, reporting requirements, special rules regarding violations) obligated the probation department to have specially trained staff supervise Prop36 clients, “one-quarter of the officers in the department were supervising one-half of all the cases” (Confidential Informant DLJ, personal communication). The officers in the PC1210 units were overburdened with work and emotionally stressed as a result. Officers accustomed to supervising 100 cases prior to the law had caseloads of up to 300 offenders after the law. This unmanageable caseload prohibited officers from going into the field to check on their clients or providing any meaningful services (or supervision).

[T]he department didn’t anticipate the amount of cases we were going to get. They were completely overwhelmed when the program first started. …Each officer had 250-300 cases. As a probation officer, you can’t manage that many cases. You can put out fires on each individual case as you find out about it, but there is no active supervision there because you just can’t handle 250 people and their cases.

It was overwhelming for them [probation officers]. It was overwhelming for me; just about everybody here because we were turning in 80-100 court reports per month and all of them had to funnel through me.

The other thing was our officers couldn’t get out to the field to do field work because they had so much paperwork to do. There was [sic] just so many cases.

As a supervisor, we were just managing numbers. We were trying to deal with the overwhelming amount of numbers we were getting.

It’s also a new program, so you’re dealing all the collaborative [partners], healthcare agency, all the treatment providers. All of that was going on at once.

Probation officers struggled to stay current with the required paperwork and the large caseload sizes affected the quality of work produced by probation officers in the PC1210 units at the beginning as well. This, although minor in the overall discussion of impact, was one aspect of Prop36 that affected other members of the probation department on a somewhat regular basis.

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