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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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Additionally, most counties also operated specialty drug courts prior to Proposition 36 (and continue to do so). Eligibility and suitability requirements for drug courts vary by county but all require a significant level of commitment by drug offenders to treatment and the drug court program. Drug courts, as will be discussed in this chapter, are considered to be successful alternatives to standard criminal justice processing for drug offenders. For this reason and because drug courts require a higher level of commitment than Proposition 36 does, drug court supporters were concerned that Proposition 36 would negatively impact drug courts throughout the state by “diverting drug offenders away from the courts and into unsupervised treatment, and hurt the community by releasing thousands of offenders into short-term or ineffective treatment with no judicial oversight or accountability” (Belenko, 2002:1646; Tauber, J, 2001). In other words, drug court advocates were concerned that drug offenders would opt for the less onerous Proposition 36 over the more involved drug court program, which they viewed more favorably.

Prior to Proposition 36, if an offender was not eligible for PC1000 or drug court (which was most offenders), they were most often sentenced to 30, 60, or 90 days in jail and 3 years on probation. Now most of these offenders are sentenced to probation with treatment but without jail time. Unlike drug courts which require participants to meet both eligibility and suitability criteria, Proposition 36is available to all offenders convicted of a drug possession offense and not disqualified due to prior criminal history or concurrent crimes, regardless of desire for treatment.

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Proposition 36 was written by drug reformers who aimed to decrease the use of incarceration for drug offenders. The ballot initiative was the culmination of several years of research, public opinion polls, and focus groups (Dave Fratello, personal communication, April 20, 2005). Also known as the Substance Abuse and Crime Prevention Act of 2000 (SACPA), Proposition 36 applies to both new offenders and parolees. It added sections 1210, 1210.1 and 1210.5 to the California Penal Code and mandates that all eligible offenders convicted of a “non-violent drug possession offense” be sentenced to probation with a condition of participation in and completion of a drug treatment program. The court may also add vocational training, family counseling, literacy training and/or community service as conditions of probation, but it may not require incarceration as a condition of probation (Proposition 36, Section 5). Drug offenders previously convicted of a serious or violent felony8 are excluded unless they have remained out of prison and have not been convicted of any felony, or certain misdemeanor offenses, within the past five years. Additionally, an offender is ineligible for SACPA diversion if he/she was convicted of a non-drug misdemeanor or any felony at the same time as the non-violent drug possession offense. Offenders who do not agree to participate in treatment are sentenced according to their offense without consideration of SACPA.

Eligible offenders who agree to SACPA diversion are given a suspended sentence. Once the offender successfully completes treatment and probation, he/she may petition the court to dismiss the charges against him/her. “The arrest on which the conviction was based shall be deemed to have never occurred”9 (Proposition 36, Section 5(d)(1)). See Appendix A for a flowchart of Proposition 36 case processing.

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The law also changed procedures for parolees who commit a non-violent drug offense or violate any drug-related condition of parole. Since inception of the law, parolees may no longer have their parole suspended or revoked for drug-related violations or new offenses. Instead, they are required to participate in and complete a drug treatment program. The same exclusions for participation apply to parolees as new offenders. The parolee may however be re-incarcerated if s/he does not comply As defined by California Penal Code sections 667.5(c) or 1192.7.

The exception to this rule is when the offender is applying for employment in a law enforcement capacity, where full disclosure is still required.

with the provisions of the law or refuses treatment ("Substance Abuse and Crime Prevention Act of 2000," 2000), Section 6).

Depending on the drug violation, a parolee may be supervised by parole or by both parole and probation. If a parolee commits a drug-related violation of parole (such as testing positive for drug use), he/she will be offered Proposition 36 treatment through parole and will continue to be supervised only by parole. Every eligible parolee is allowed two opportunities at Proposition 36 treatment through parole. If, however, an eligible parolee is arrested by a law enforcement officer for a new drug crime (such as under the influence or possession of a controlled substance), he/she will have their case adjudicated in court and will be sentenced to Proposition 36 probation, just as any other offender not on parole. In this case, a parolee will be dually supervised by both probation (for the new drug offense) and parole (for the original crime on which he/she was on parole for). Parolees are subject to the same rules and regulations as Proposition 36 participants not on parole.

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Once an offender pleads guilty and accepts Proposition 36 probation, she/he is assessed for individual treatment need by the County Health Care Agency. The offender is assigned the appropriate level of treatment based on the treatment assessment; typically conducted using a standard measure of addiction severity (e.g.,.

ASI) (Longshore et al., 2003). Offenders are placed with a State-approved treatment provider based on their indicated need, location of local providers, and available capacity. Multiple levels of care are available for offenders and vary by county.

In Orange County, the focus of the current study, offenders are assigned to one of three levels of outpatient drug-free treatment (low, medium, high), residential treatment, or narcotic replacement treatment. Outpatient treatment lasts between six and twelve months, depending on the level the offender is assigned to, and includes 24

- 48 group counseling sessions, eight individual counseling sessions and eight weeks of structured relapse prevention, as well as up to six months of aftercare. Participation in a 12-step program may also be required by the judge or treatment professionals.

Residential treatment is highly structured around three treatment phases; it lasts 90 days and includes three months of outpatient treatment after the residential treatment is completed.

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It is well known that the United States is one of the most punitive nations in the world when it comes to punishing criminals (Currie, 1998; Tonry, 2004).

However, drug offenders have historically been a problematic population. What is the most appropriate response to drug use has been debated for years (Anglin and Perrochet, 1998; Tonry and Wilson, 1990). Are drug offenders’ criminals who should be incarcerated, addicts who should be treated, or both? Public opinion tends to move in cycles corresponding to the proportion of the public that uses illegal drugs (Musto, 1973). Tonry (2004) identified the cyclical nature of drug policies by examining the history of U.S. Congress enacted drug policy which illustrated that policies became most punitive when drug abuse was on the decline. For example, he found out that the U.S. Congress enacted mandatory minimum sentences for numerous drug crimes in the 1950s and 1960s (when use was on the decline) only to repeal most of those laws in the 1970s (when it was on the rise) and then enact even more punitive drug policies in the 1980s and early 1990s (when drug use was again on the decline). During and since the “war on drugs” initiated by President Reagan and his administration in the early 1980s the popular response to drug use has been incarceration. In fact, the “war on drugs” during the 1980s and 1990s dramatically increased both the number and rate of drug offenders sentenced to prison in the United States (Blumstein, 2002;

Blumstein & Beck, 1999; Caulkins and Chandler, 2006; Mauer, 2001).

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In spite of our changing policies, research consistently confirms that drug users are more likely than non drug users to engage in crime (either to obtain drugs or as a result of their drug use) (Anglin, Longshore, & Turner, 1999; Condon and Smith, 2003; Inciardi, 1987; MacCoun and Reuter, 1998;) and that drug users commit a disproportionate amount of crime (Chaiken and Chaiken, 1982; Gropper, 1985). The National Institute of Justice’s Arrestee Drug Abuse Monitoring study (ADAM) found that two-thirds of arrestees in a sample of California cities tested positive for drugs at time of arrest (National Institute of Justice, 1999). Many studies have also found that involvement in criminal activity increases as drug use increases and decreases as drug use decreases (Caulkins et al., 1997; Chaiken and Chaiken, 1982; Inciardi, 1987;

Johnson and Wish, 1986). Gropper (1985) found that drug users were four to six times more likely to commit crime when they were using than when they were not using drugs.

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Jofre-Bonet and Sindelar (2001) found that drug treatment reduced drug usage and that reduced drug usage was directly linked to reduced crime. Research also confirmed that substance abuse treatment has been effective at reducing substance use as well as the crime associated with drug use (Belenko, Fagan, and Dumonovsky, 1993; Anglin and Perrochet, 1998; Chaiken and Chaiken, 1990; Chaiken, 1986;

McBride and McCoy, 1993). A California Legislative Analyst’s Office analysis of more than 600 research studies found “substantial evidence that drug addiction treatment [was] effective at reducing substance abuse, crime, and medical costs” (California Legislative Analyst’s Office, 1999).

Prior research revealed that the treatments that were most effective at reducing drug use were also the most effective at reducing future criminal activity and that the offenders who spent the most time in treatment had the greatest reductions in criminal activity ( CALDATA 1992/2000; McClellan et al., 1996; Longshore et al., 2005).

Furthermore, research has confirmed that offenders legally coerced to participate can and do benefit from treatment (Belenko, 1990; Belenko, Fagan, and Dumanovsky, 1994; Hepburn and Harvey, 2007; Miller and Flaherty, 2000; Polcin, 2001).

Numerous research studies have found that community-based substance abuse treatment programs for drug offenders were cost effective, particularly when compared to incarceration (CALDATA, 1992/2000; Aos et al., 2001; Aos, Marna, and Drake, 2006; Bhati, Roman, & Chalfin, 2008; Lipsey and Cullen, 2007; MacKenzie, 2006; McVay, Schiraldi, and Ziedenberg, 2004; Turner, et al., 2002). Yet, the ADAM study revealed that only about 15% of offenders ever received treatment (National Institute of Justice, 1999).

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Two basic program models provide community-based treatment to drug-using offenders in the criminal justice system in hopes of reducing recidivism rates. The first is Treatment Alternatives to Street Crime (TASC) which was developed in the 1970s and had expanded to more than 300 programs in 30 states by 1996 (Anglin, Longshore, and Turner; 1999). The second is the national drug court model which was initially developed in 1989 in Dade County, Florida as a response to system capacity issues related to processing drug offenders in the courts. By 2004, there were more than 1,600 drug courts operating in the United States (Huddleston, 2005).

Treatment Alternatives to Street Crime Treatment Alternatives to Street Crime (TASC) was one of the first successful attempts to coordinate criminal justice and community-based drug treatment agencies with the purpose of getting drug-abusing offenders into substance abuse treatment (Anglin, Longshore, and Turner; 1999; Hser et al., 2003). TASC is considered to be “possibly the best example of programmatic efforts to establish and promote formal coordination between criminal justice and drug treatment within local jurisdictions” (Anglin et al., 1999: 170). According to the model, drug-using offenders are allowed to remain in the community and attend drug treatment in lieu of, or in addition to, criminal justice imposed punishments, or as a pre-trial diversion program.

Essentially, TASC works by linking the criminal justice system with the local treatment system through a third-party case manager that identifies qualified offenders, assesses their needs, connects them to appropriate services, monitors their progress (including the use of sanctions if needed), and provides additional services as necessary until the offender has successfully completed or been terminated from the program (Wenzel, et al., 2001). Evaluations of TASC programs are mixed, but generally positive. Favorable results are linked to strong individual programs (Anglin et al., 1999; Anglin et al., 1996; Hubbard et al., 1989). Anglin et al. (1999) found that the TASC program model was particularly effective for problematic offenders – those with extensive criminal histories or other issues or characteristics that make them especially difficult to treat. Unfortunately federal funding streams that supported TASC programs were withdrawn in the 1980s, which left existing TASC programs searching for funding or being forced to dissolve (Marlowe, 2003).

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