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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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If offenders are being diverted from prison as a result of Prop36, we would expect to see more serious offenders on probation after the law. The data are consistent with this finding, and suggest that offenders on probation for Prop36eligible offenses after the law are different than the same population before the law, but not profoundly so. Overall, the risk and needs data suggest that probationers after the law are better adjusted with fewer needs than before the law, but that they have higher risk scores and are more criminally involved and likely more sophisticated than offenders prior to the law. Beyond quantifying the change before and after Prop36, it is important to recognize that the population of offenders on probation is not representative of “typical illicit drug users” that are not involved in the criminal justice system (as was the contention of law enforcement officers); and furthermore, that probation officers are dealing with a very difficult and highly drug addicted population, as evidenced by the finding that 80% of these probationers have severe enough drug addiction problems that they report that their drug addiction is a serious disruption to their life.

The county has not been able to devote as many resources to the program as it had wanted to. Probation supervisors had grand plans for Proposition 36 offenders – plans to provide services that would help them to “get clean” and succeed. Unfortunately, that vision did not materialize, because there were too many offenders to handle with the staffing available and because the offenders had much higher levels of addiction than was expected or that could be accommodated with the money provided by the state.

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If the diversion estimates calculated in this study are correct, approximately 7,600 Orange County drug possession offenders over the course of four years (11,600 if “under the influence” offenders are included) were spared a semi-lengthy stay in jail as a result of Proposition 36. Jail staff, however, contend that there was no observable impact on the jail population as a result of Proposition 36. Is this possible? If so, what might account for a situation in which there are significantly fewer drug offenders sentenced to jail for drug possession offenses but for that impact to be negligible on the physical jail and the staff who operate it? This section will investigate several hypotheses.

Unfortunately, there are no data on exactly how many fewer drug offenders are in jail as a result of Proposition 36; the best available estimate is the one presented in the first section of this chapter. There was, however, an evaluation of the potential impact of the legislation conducted by analysts at the Orange County Jail prior to implementation. The analysts estimated that between 7% and 25% of the average daily population (ADP) of the jail would be booked on a Prop36 qualifying offense and would be eligible for diversion through Proposition 36 (Davis, Cockrum-Kirkey, and Rowlett, 2001). If this estimate is correct, the overall impact of Proposition 36 would be to reduce the total jail population by between 850 and 3,700 offenders per year (based on an average daily population of the jail of 14,512).

The estimate calculated in this paper suggests that approximately 7,600 drug possession offenders over the course of four years were diverted from jail as a result of Proposition 36. This is approximately 1,900 offenders per year. Most of these drug possession offenders would have been sentenced to 60 or 90 days in jail and would have served between 45 and 70 days (based on earning good time credits).

Based on offenders serving approximately 2 months (60 days), a reasonable estimate would be that there are approximately 315 fewer inmates in the jail on any given day as a result of Proposition 36. This equals a net reduction in the average daily population of only 2.2%, which is arguably not very noticeable. This estimate, however, is limited in that it does not include “under the influence,” “possession of paraphernalia,” and some other Prop36 eligible offenses. Including these other offenses would likely increase the expected reduction by at least half78. Thus, based on rough estimates, jail staff should have seen a reduction in the ADP of approximately 4%; which is arguably not dramatic.

Another possibility is that the jail has not observed a reduction in the number of inmates because there have been significantly more arrests for drug crimes since the implementation of Proposition 36 (refer to Figures 4.1, 4.2, and 4.3 in chapter 4) and more arrests leads to more inmates. Although there may have been a dramatic reduction in the number of inmates sentenced for drug possession crimes immediately upon inception of Prop36, it is possible that the memory of that impact has been replaced with the more recent experience of more inmates. Table 6.4 supports this hypothesis by illustrating that the number of inmates has risen dramatically since 2003. Furthermore, interviews with jail personnel took place This estimate is based on 170-300 ‘under the influence” arrests per month (2,500 per year) in Orange County. The customary sentence for these offenders prior to Prop36 was 90 days in jail with probation.

during 2007 (six years after the law was implemented), and locating personnel who had knowledge of the law and its possible impact years earlier proved difficult because most deputies (including supervisors) spend only a few years working in

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interviewed had experience with jail operations that spanned the entire six year period of Prop36. So it is likely that jail deputies do not have any idea how many offenders are in the jail at any given time and that is why there was no observable impact.

Table 6.4: Number of Drug Possession Offenders Sentenced to Jail Annually, 1995-2006

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Besides arrests for new offenses, an increase in the number of arrest warrants could explain why jail staff did not notice any change in the inmate population due to Proposition 36. Although I was not able to verify that the number of warrants for probation violations and failure to appear in court issued for drug possession offenders increased after Prop36, practitioners at every agency that participated in the current research project believed that the number of warrants increased as a result of Prop36. Probation officers state they are writing more warrants, judges state that they are issuing more warrants for failure to appear in court, law enforcement officers contend they are arresting more drug offenders for warrants and jailers think they are booking more people for warrants. This observation would coincide with probation officers’ contentions that the offenders on Prop36 are not taking probation seriously and re-offend and/or violate probation regularly, and with judges’ observations that most offenders have two or more violations before they complete Prop36 (or are removed from the program). More warrants would indicate a more transitory population of drug offenders than prior to the law, as these offenders spend only a few days in jail in comparison to sentenced offenders before the law who would spend a month or more behind bars. Thus it is quite possible that there are more offenders being booked on a regular basis as a result of Prop36, but that these offenders are spending fewer days in jail than they would have prior to the law.

If this is the case, the result is more work for jailers, not less. When an offender is booked into jail, an intake interview is conducted to ascertain whether the offender has any gang ties, whether the offender is criminally sophisticated or not, and whether there is any other information that is important to consider when placing the offender in a housing unit. Beyond the intake interview and the classification process, there is a tremendous amount of coordination that must occur to move offenders from the jail to court, from intake to the general population and from institution to institution (be it another Orange County jail facility, an out-ofcounty jail, or one of the prisons in Chino). There are also time constraints that jail personnel must abide by. For example, an inmate may not stay in a detention cell for more than 24 hours – they must be moved to a regular housing area prior to that time – or the county risks violating the inmate’s rights and the possibility of a lawsuit. In this respect, the number of jail beds saved by fewer people serving lengthy sentences is reduced by the number of people booked multiple times, which incidentally increased the workload as well.

Additionally, but unrelated to Proposition 36, the Orange County Jail has also been affected by prison overcrowding in recent years. As the California Department of Corrections and Rehabilitation is under pressure to not exceed a certain capacity, county jails are forced to hold onto inmates awaiting a prison transfer. As one jail supervisor stated, “Sometimes they’ll [California Institute for Men Reception Center in Chino] be crowded to the point they can’t take anybody and they’ll have to either cancel the bus or push them back a couple days. Well, that means we have to hang on to those people, which means we can’t free up that bed space…” (Confidential Informant FJA, personal communication). This is one more reason why jail personnel may not have noticed any impact from Proposition 36; the beds were simply taken up by other offenders, such as those awaiting transfer to state prison.

Although it would seem implausible that the jail was unaffected by Proposition 36, research reveals that to be the consensus among deputies and supervisors in the jail. In reality, the net effect of Proposition 36 was likely trumped by the additional bookings that resulted from new arrests and warrants, as well as the impact from prison overcrowding.

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Proposition 36 not only applies to offenders convicted of new drug possession crimes, it also applies to parolees. In contrast to the Orange County Probation Department which was flooded with new offenders, state parole offices in Orange County experienced very little change as a result of Prop36. Parole agents adapted to the new policies rather easily and the workload impact was relatively minor. The level of frustration experienced by parole agents, however, was fairly significant. Like law enforcement officers, the frustration led some parole agents to attempt to circumvent the system in order to achieve their desired outcome.

Parolees are allowed two attempts at Prop36 for each prison term they serve as well as two attempts for any new drug related crimes they are convicted of.

Thus, unlike probationers who are theoretically limited to three Prop36 failures before they are removed from the program, parolees have many more opportunities to take advantage of Prop36. For example, if a parolee tests positive for drug use in the parole agent’s office, which is a parole violation, the parolee is offered Prop36 probation in lieu of being returned to custody for the violation. The parolee can violate parole twice on narcotics related charges and be allowed to take part in Prop36 treatment. If a parolee serves a new prison term as a result of a new charge (non-drug related), he or she has two more opportunities to participate in Prop36 treatment upon his or her release from prison. In other words, every time a parolee finishes a new prison term, they are eligible for an additional two chances at Prop36 (assuming they did not commit a serious or violent felony). In addition to the opportunities parolees have to take advantage of Prop36 for parole violations, they are also able to be sentenced to Prop36 for new drug-related crimes prosecuted at the local level, provided they are eligible. For example, if a parolee was arrested by law enforcement for possession of narcotics and the case was prosecuted by the Orange County District Attorney’s Office, the parolee could be sentenced to Prop36 probation by the court even after they have used up both of their chances through parole. Thus parolees have at least four chances at Prop36 and often many more.

They get two opportunities at Prop36, through us, each prison term.

We have guys who are 5th, 6th, 7th, termers; they get two opportunities at Prop36 each time they get a new prison term. Plus if they’re arrested on the streets, and they go to court, the courts give them Prop36, that doesn’t count towards our two chances so the courts can give them two to three chances, we still have to give them two chances.

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Parolees on Prop36 are supervised by regular field agents, unlike probationers who are supervised by officers in a designated PC1210 unit. For this reason, the California Department of Corrections and Rehabilitation, Division of Adult Parole Operations did not need to hire any new personnel as a result of Proposition 36. All parole agents were given training on Proposition 36 eligibility criteria, policies, and procedures. Most agents, however, do not need to determine offender eligibility, as that is typically determined by a case classifier shortly before the offender is released from prison. When a parole agent gets a new case (a parolee newly discharged from prison) the file will be labeled with a “P” if the offender is eligible for Prop36. Parolees with two or three strikes are not eligible for Prop36, as they do not meet the five-year washout period that is required for offenders who have been convicted of serious or violent felonies.

Agents state there is some extra paperwork involved with referring parolees to Prop36 services, but that it is not substantial. They also acknowledge there are more things to verify and keep track of with parolees on Prop36 (such as compliance with treatment, etc) but that it is not particularly burdensome. Parole agents, though frustrated by the legislation, view the extra work as “part of the job.”

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