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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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There is some consensus among parole agents that one of the benefits of Proposition 36 is that it opened up more services for parolees. According to these agents, there are more options for treatment and more funding for treatment as a result of Proposition 36. This opinion, while wide-spread, was not universally held by all of the agents interviewed. In fact several agents felt strongly that Prop36 limited the options they had in securing the best treatment option for their parolees because of the complexities of the various funding streams available for parolees Funding Complicates Treatment Options Several agents felt that Prop36 took away their ability to place their clients in the best treatment option for their situation. One of the main issues is that there are various funding sources for treatment and according to parole agents; Prop36 is not always the best option. For example, there are a limited number of residential treatment beds in Orange County and there is often a waiting list for these beds under Prop36. Meanwhile, parole agents have access to the Parolee Services Network (PSN) which also provides for substance abuse treatment through a variety of treatment providers, including residential treatment facilities. This funding option, however, is only available for parolees who are not eligible for Prop36 or have waived their right to Prop36. Thus there could be a residential treatment bed available immediately for a parolee through PSN, but not for that same parolee if they choose to accept Prop36. According to parole agents, the reverse (waiting list for PSN while Prop36 available) does not occur. One treatment provider stated that it could occur, but was less likely because PSN is “less hassle” for the provider and usually pays more79 (Confidential Informant TAL, personal communication). In order to access PSN services, the parolee must waive their right to, or not be eligible for, Prop36. Therefore the situation described above forces parolees to choose between waiting for a bed through Prop36 or getting into treatment immediately through PSN and waiving their right to one of their Prop36 chances.

There’s only a certain amount of SACPA-funded beds for these people in the county. So I can have somebody sitting in the office here saying, “Ok, I really want to do Prop36. I’m going to do it this time” and they’re acknowledging to me, “Oh, I know I’ve got a problem. I’ve got to go to an inpatient treatment program.” … Now they’re going through Prop36, so it’s got to be a SACPA-funded bed.

Well they could be out of SACPA-funded beds right now. So they’re going to put that person on a level one [outpatient]. … So [HCA intake staff] totally changed everything that I’ve worked with [the parolee] here (to start acknowledging they have a problem that they need to go into a treatment bed). Because they don’t have [residential beds] available at that time, they’ll convince [the parolee] to be a level one. I’m thinking, you know, you need to be in a drug treatment program. You can’t stay sober for a day at a time, and This occurs because there are a limited number of treatment providers in Orange County (some of whom are not approved to treat Proposition 36 clients). Each treatment provider has a set number of beds and multiple contracts. So you have, for example, 30 treatment providers with 10 beds each (300 beds total). Each treatment provider has multiple contracts (eg. Prop 36, Parolee Services Network, private medical insurance …). Regardless of who is paying for the person occupying the bed, there are still only 300 beds. As new contracts emerge with better reimbursement or fewer requirements, Prop36 becomes less attractive and fewer beds are available for Prop36 clients.

they’re going to send you to an out-patient bed because that’s what they have available. Whereas non-Prop 36, I may have a bed available through the Parolee Services Network. So it really ties our hands in a lot of cases for doing the best thing possible for this person because of the different funding streams that we have available to us. And it’s a shame because Prop36, rather than being a safety net to get people into treatment, provides an obstacle to give them the best sort of treatment we have to offer and that’s unfortunate.

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According to the parole agents interviewed, they and most of their colleagues do not like Proposition 36. Not only did it impact how agents go about securing treatment for their clients, it created frustration among agents and caused some agents to get creative in order to get their way. In the words of one agent, “Personally, a lot of us, we try to get them excluded from Prop36 as quick as possible. We get them to waive so we don’t have to [deal with it].” (Confidential Informant CDX, personal communication).

Some agents believe that Proposition 36 “took away our power” because parolees know that they will have multiple attempts at Prop36 before being returned to prison. They argue that parolees behave differently knowing that agents cannot arrest them for using or testing dirty. This same argument was made by probation officers as well. In the case of parole, however, the effect of Prop36 is complicated by prison overcrowding, which has affected agents’ ability to return parolees to custody for minor violations.

I think they know that we’re not gonna arrest them and send them back to prison over a one time, two time, maybe three time, four time drug use. They know that they have opportunities at drug treatment.

So I think a lot of them are probably using drugs more knowing that we’re not gonna arrest them for a first time drug use, or second time drug use.

I don’t think they respect us as much as they used to because they get away with so much now and it seems that they get away with a lot more. They know that we can’t just arrest them for [drugs]. I mean, it’s all over the paper; we’re not supposed to be arresting people and that sort of thing. So you know what, I can’t lock up someone because they don’t follow my instructions. They aren’t gonna do that. They’re not gonna allow us to put them in prison for not following my instructions. So that’s where it gets very frustrating for us because it’s kind of like, ‘look this guy doesn’t want treatment, he doesn’t want help, I’m telling him, he’s refusing’, well you still gotta give them more chances.

Proposition 36 frustrates parole agents for several reasons. First, agents are frustrated that parolees get “so many bites at the apple.” Agents find it disconcerting that one person can be given so many opportunities to avoid punishment for their actions. Furthermore, agents argue that parolees are not suitable for Prop36. They contend that parolees have had ample opportunities to get drug treatment and that most of them are too hardened from prison life to benefit from drug treatment. Agents further argue that Prop36 is a waste of money, because the success rate is extremely low for parolees.

I think it’s the public saying jail’s not the answer, well yeah maybe it’s not the answer but at the same time, you can’t force somebody into treatment, you can’t force them to stop using drugs if they don’t want to. So with Prop36, we have to offer it. But most of the people who go through it don’t complete it and I’d say absolutely the majority of my caseload does not complete Prop36 drug treatment program and the ones that do, it’s usually because they’re ready, they want it. They want to change and they would have come to me anyway. They would have gotten into some sort of program anyway whether or not Prop36 was intact or not.

I think it’s inappropriate for the parolees, and I think it’s inappropriate because I think it gives a false sense of security to the population. I think it’s too expensive to waste this type of money. I think it is duplication of services because a lot of times if the courts give him prop, we give him prop, so we’re using up our bites, we call it “bites of apple.” We’re using up their bites. I don’t know what the studies are showing, but most of my people eventually get a term and go back to prison.

Why is this not working? I know that my friend that did probation said that in the beginning “It took a year and a half for me to get one person to successfully complete Prop36.” That’s probation. She even had problems with probationers getting through it. She goes, “I remember I just wanted to hug the guy that finally made it through. I was so excited. I had one finally go through it and succeed.” I go, “Yeah, I don’t think I’ve had any. I might have had some that completed but they’re still using.” The reason I dislike it is because it’s an expensive way to do it because you’re giving people the same old chances over and over.

On the other hand, I like it because it gives more opportunities, but I don’t know if it’s cost-effective because I’ve had so many people fail at it that I wonder if we’re just not spinning our wheels with these people.

Parole agents reacted to the frustration brought on by Prop36 in a similar manner as some law enforcement officers; they circumvented the system in order to achieve their desired outcome. Adaptation strategies similar to law enforcement officers were observed amongst parole agents who stated that they employ several strategies to circumvent the law. First, agents may encourage parolees to waive their rights to Prop36. Additionally, agents choose whether or not to violate a parolee based on a complex decision tree centered around what they expect the parole board to do and what they want the parole board to do.

Agents view Prop36 as a hassle and a hindrance to proper supervision and try to get parolees to use up or waive their two chances at Prop36 as quickly as possible. How does a parole agent encourage a parolee to waive their right to Prop36? Parole agents convince parolees that it is in their best interest to waive using three main selling points. First, agents point out that they are able to “COP” (Continue On Parole) the parolee’s drug charge (e.g. a dirty test) if they waive their Prop36. The parolee is “continued on parole” on the drug charge, meaning the agent puts a note in the parolee’s file that they were admonished for the violation and that appropriate action was taken (for example the parolee went to treatment through PSN); but, the violation is not reported to the parole board and thus does not become part of the parolee’s permanent record. Since the violation does not go to the board the parolee remains eligible for early release (at 13 months). If the drug violation was reported to the board then the drug charge would be recorded as a violation and the parolee would no longer be eligible for early discharge from parole. It is similar for parolees who are arrested by law enforcement for drug possession, but in this case, they must successfully complete Prop36 on the new charge in order for there to be no permanent record of the conviction.

It’s to your benefit if you waive. … If [he] waives …we’re going to allow for a local adjudication [of the drug offense]. Then he’s got the opportunity to complete the Prop36 program and have that case dismissed; which means there’s no more record of that being against him. But if I send him to Prop36, then I’ve got to send that action on to the board [of prison terms]. … So if [the parolee] is successful with Prop36 and dismissed that local case, we allow for local adjudication so it doesn’t go to the board and then we have the option to discharge them at the unit level in 13 months. So the board never sees the case.

The way they do the thing local, they give Prop 36 for a possession.

If they deny doing it with me, they have the opportunity then to finish treatment, have that case dismissed, I COP [continue on parole] them, they’re still eligible for early discharge on parole because they got COP’d on that case so they can go to the board and so that maybe, they have a chance to hit a homer. Ok the bad part of that then is when they violate probation. They get a new case, that’s going to be saddled on forever, now they’re PBWT, they’re going back to prison.

The second selling point is dual-supervision. Parolees that participate in Prop36 are dually supervised by probation and parole, which means they have a probation officer, in addition to a parole officer, to report to. Agents recognize that dual reporting is a hassle and use it as a selling point to encourage parolees to waive their right to Prop36. Finally, though possibly less motivating than the previous selling points, is the availability of services issue. If a parolee enrolls in Prop36, he/she needs to use Prop36 services which are sometimes limited, and cannot utilize PSN for treatment.

Not all agents encourage their parolees to waive their rights to Prop36.

Some agents have had experiences in which the board gave a parolee Prop36 even after the parolee twice waived his rights to it. They would rather not “mess around with it” and just have their parolees go through their two chances at Prop36 as quickly as possible. As one agent said, “If I’m on my game, which I’m supposed to be, I’m done within two months” (Confidential Informant CQA), meaning most of her parolees have already used up both of their chances at Prop36 within two months of being released from prison. Parole agents do not like Prop36; the agents’ goal, regardless of whether they encourage waivers, is to get rid of Prop36 quickly so they can supervise their parolees as was customary before the law.

Besides circumventing the system through waivers, parole agents described methods they use to return a parolee to custody when the parole board is unlikely to approve the return. Specifically, if a parolee has a drug-related violation and a nondrug-related violation, some parole agents will write the parolee up on the non-drug violation and not on the drug violation, so that the board does not have the option of Prop36 and instead will be more likely to return the parolee to prison on the nondrug related violation.

[In order to have them returned to custody] we have to continue them on parole for the drug offense and send them back to the board for the non-drug violation, but truly I try to get them to waive twice as soon as possible. Then basically I don’t have to worry about it any longer and I can really supervise the case how it needs to be supervised.

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