«From Inception to Implementation: How SACPA has affected the Case Processing and Sentencing of Drug Offenders in One California County DISSERTATION ...»
A lot of these cases went to warrant. They weren’t cooperative, and the bad side of not being able to arrest them is they quickly learn that, you know, and so they would blow us off and we still had a workload attached to them. And then they would blow us off and they get rearrested again, so they would pick up another Prop36 case, and they pick up another. It was a mess, it was a real quagmire.
[What was frustrating] was the number to start with, and then it was seeing who the clientele was. We were seeing the same people who had the same kind of background. Before Prop36, these people used to get a 3 year commitment [to probation], felony conviction, 90 days on the first offense. Then they come in, you send him to treatment and if they didn’t do treatment or they were tested dirty, took them back [to court], they got their 180 [days], and if they came back a third time, it was 16 months state prison. All of a sudden, you stop doing that one day [and go] to, “Ok, go to treatment. You don’t go to treatment; I’ll take you back to court.” “What’s going to happen in court?” “They’re going to tell you to go to treatment more. You weren’t going to start with, now you’re going twice as much.” Ok, that makes a lot of sense. That’s the system we have. They don’t go back, so we take them back a second time. “Look pal, you need to go to treatment more than you were going before when you weren’t going, so I’m going to make you go more. If I bring you back [a third time], then we’ll talk about having you kicked off the program.” There’s [sic] no teeth to it. Everybody knows it. That three days they spend in the jail, they talk to other people in jail. “Oh yeah, Prop36, I know that.” Then they tell them all the ways to get around it, or the pluses to it. A lot of them came in [to probation], they knew what was up as much as we did with it.
The main frustration that line level officers have is that they are unable to hold Prop36 offenders accountable for their misbehavior because of the legislative prohibition against sanctions for drug-related violations. According to probation officers, their inability to sanction offenders has led to more offenders not showing up to meetings with their probation officer and/or treatment and not taking probation seriously. Probation officers have the same complaints that law enforcement officers have, namely that there are “no teeth” to this law and that these offenders want to get out of jail, but that many do not really want treatment.
[There were] higher numbers of drug addicts that didn’t take probation seriously. That was an absolute effect and I personally believe that that was a function of the fact that we couldn’t take them into custody, we couldn’t arrest them and things, and they learned that very quickly. They [probation and the court] can’t do this, they can’t do that. So in that sense, that changed the drug offenders that changed the drug addicts. … [T]hat was a huge frustration on the part of the DPOs [Deputy Probation Officers], the Line-Level DPOs, dealing with larger numbers of people that just aren’t serious about it.
It became apparent we weren’t dealing with the college-age kid who had a little bit of meth in his pocket who didn’t have a drug-addiction problem. You were talking about the dumpster-diving, motelhopping, ID-thieving person, that’s their whole life. They’re not interested, I shouldn’t say all but, a vast majority of them aren’t interested in rehabilitation or kicking their habit. They’re interested in getting out of jail. We had any number [who] would come into the office and tell the officer, “Now I have three chances to blow this program before I go to jail, right?” We used to get that. You were faced with that mentality.
Like law enforcement officers, probation officers voiced frustration about the type of offender benefitting from Prop36. Their complaint was not so much that these offenders are undeserving of Prop36, but rather that Prop36 was wasted on them, because so many are unmotivated to rehabilitate. Probation officers contend that money and resources are wasted on individuals who do not want treatment, and in fact that these individuals are taking services away from the people that want treatment and that these, motivated offenders, are the ones losing out because of what some probation officers term “the fatal flaw in the law.” Proposition 36 “assumes that everybody eligible for the program wants to kick their addiction, and that’s simply not the case” (Confidential Informant DLJ, personal communication).
What I think happened was when they pushed this Prop36 out there, they sold it as, “Jail is terrible. How would you like it if your college-age son or daughter got pulled over one night and had a little bag of weed in their pocket and they got thrown in jail over it? You want them to get treatment right?” Well, of course, but that’s not the population that we’re dealing with. We’re dealing with your 20-year heroin addict who don’t [sic] give a shit whether he’s sleeping in the dumpster or the motel. He wants to get high. That’s who clogged up the system.
Yeah, you had your college kid, or your mom, or your dad. …They had something to lose. They were in here and they were in with their suit and tie, and they were, “Yes sir, no sir. Yes ma’am, no ma’am.” There was no problem with those folks. Those folks got parked in the FM [Field Monitored] caseload. They had something to lose, park them over there because you really didn’t think they were a big re-offend on our risk-need score. The people we’d really like to help, who I think it was really intended for, got parked off to the FM caseload because they were pretty much responsible enough that they were going to deal with it and get on with their lives.
Because some of them were like, “This is a waste. Why are we giving this parolee a chance at Prop36 who has been in prison all of his life, who has 30 potential felonies?” The prop should’ve better clearly defined or narrowed, because they did it more towards the offenses and not the population. So that was frustrating, because pretty much everyone who was in prop, at least half of them were veteran [probation] officers. You already get a sense as far as who benefits from certain services and who doesn’t. So it was frustrating to see that we’re wasting money on this one offender. Nothing is going to change, he’s had a juvenile record, he’s an adult, he’s gone to prison, now he’s back. So that was frustrating, in fact it still is, because that hasn’t changed at all.
Perception and Impact of Prop36 on Offender Seriousness The perception among probation officers is that there are more criminally sophisticated and hard core drug addicts on probation as a result of Proposition 36.
But what 36 did do, is it absolutely kept some folks that might otherwise have gotten a lengthy jail sentence or sometimes might have gone to prison, kept them on probation. Absolutely did do that.
So there was a higher percentage of more criminally sophisticated drug offenders that we saw, absolutely. And one of the things that I heard reported to me from the Healthcare agency, and I don’t know if you’d ever have a chance to kind of verify this, is that some of the treatment providers noticed that too, that they have a group now, somebody who might have two or three prison priors, and so they might bring that level of sophistication with them into a drug treatment group across from somebody who got picked up for selling to an undercover, you know, or buying from an undercover cop, who doesn’t have nearly that level of sophistication. That was the experience that Healthcare shared to me that some of their treatment providers were reporting76. So it changed the complexion of the treatment groups.
This was supported through informal conversations with a few treatment providers in Orange County.
The first thing we found is that probation all of a sudden got saddled with new high risk offenders we didn’t have to deal with before because where as these people will go back and get a low-term 16 month state prison sentence, they’re getting released back to the community on probation and now all of a sudden we’ve got a thirdtermer parolee that a probation officer, unarmed, is going to have to go out and supervise.
It is unclear, however, whether this perception is accurate. If the law was effective at diverting offenders from prison (and we know it was to some extent), we would expect to find more serious offenders on probation as a result. The monthly PC1210 report produced by OCPD’s research unit, however, consistently shows that more than half of all new Prop36 probationers are on probation for the first time (in Orange County) as a result of their Prop36 conviction; which suggests that many Prop36 probationers had no or very minimal criminal history prior to their current conviction. Thus they are most likely not “criminally sophisticated.” Of course, some of these offenders may have been on probation in other counties prior to their “first” term of probation in Orange County for Prop36. Nevertheless the law also applies to parolees, most of who have multiple prior convictions and are very likely to be considered “criminally sophisticated.” In order to determine whether probation officers are supervising a more criminally sophisticated and/or hard core drug addict population than prior to the law, data analysis was conducted on the risks/needs profiles of offenders on probation before and after Prop36. Data used for the analysis were taken from the Orange County Probation Department’s Risk and Needs Assessments. Initial assessments are conducted on individuals when they begin a new term of probation.
Follow-up assessments are conducted every twelve months. Because risk/needs assessment data after June 30, 2002 are of questionable quality, the analysis was limited to the first year of Prop36 and to a one year time period before the law. The before-Prop36 results are based on initial assessments conducted on probationers on probation for Prop-36 eligible offenses between January 1, 2000 and December 31,
2000. This time period was chosen so that there would be no overlap with the pilotstudy which began in March 2001. This was done in order to control for the possibility that the pilot-study population differed from either the before or after Prop36 group. The after-Prop36 results are based on initial assessments conducted on probationers on probation for Prop-36 eligible offenses between July 1, 2001 and June 30, 2002. Table 6.3 displays the results of this comparison.
Data analysis reveals a complex story. On the one hand, some findings suggest a more motivated group of drug offenders on probation after Prop36. The percent of offenders who say they are motivated to change increased from 24.3% to 29.9%, which is statistically significant at the p.001 level. Also positive, although not statistically significant, the percent of offenders who were employed for more than seven of the prior 12 months increased from 24.2% to 26.4% and the percent of offenders reporting serious disruptions to their life due to their drug usage slightly declined (from 82.4% to 81.0%).
Viewing these same statistics another way, however, illustrates just how difficult to treat the population of drug offenders on probation is. Over 80% of probationers on probation for Prop36-eligible offenses experience serious disruptions to their life as a result of their drug usage (as opposed to no disruption or minimal disruption). Given this, it is no surprise that most of the drug users on probation are not employed regularly. Fully 57% of probationers on probation for Prop36-eligible offenses were unemployed for more than seven of the prior 12 months. In fact, 15% of male offenders are classified as “unemployable” by their probation officer. This is an important finding; as a recent Occupational Safety and Health Administration (OSHA) study found that most illicit drug users are employed full-time (Larson, et al., 2007). The juxtaposition of the two studies suggest that drug offenders ensconced in the criminal justice system are different than “typical” (read “not involved in the criminal justice system”) illicit drug users.
All of the other statistics support the hypothesis that Prop36-eligible drug offenders on probation are slightly more serious after Prop36 than before. Table 6.3 shows that the percent of offenders on probation for Prop36-eligible offenses that have a past criminal history, meaning this is not their first offense, increased after the law.
The percent of offenders with two or more previous felony convictions also increased after the law, 16.9% v. 23.9% (p.001). Additionally, the percent of offenders that had a prior term of probation was higher after Prop36 than it was prior to the law change (65.7% v. 70.3%; p.01); as was the percent of offenders who had at least one prior probation violation (59.8% v. 64.2%; p.01).
Furthermore, the percent of offenders classified as “high-risk” was higher after the law than before (59.4% v. 63.1%; p05). All of these point to a more serious offender than was on probation for a drug related offense prior to the law. Still, only 10% of offenders have been convicted of a felony-persons or felony-property offense. The vast majority of offenders have only been convicted of drug-related offenses.
1/1/2000 – 12/31/2000 was selected as the one year pre-Prop36 period so that there was no overlap with the pilot study population that began probation in approximately March 2001.