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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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For failure to follow instructions we can return to the board. You get time for that versus if we put both charges on and he hasn’t exhausted his Prop 36 they’re going to turn around and cut him loose and give him Prop36.

Some parole agents attest that the parole board caught on to parole agents trying to manipulate the system in the manner described above and adapted accordingly, and say that those methods are no longer successful. Some parole agents interviewed, however, were obviously still having success and were still working the system using the methods described above. Note the striking similarities in adopted response styles between parole agents and law enforcement officers. Whereas law enforcement officers are charging offenders with more crimes in order to disqualify them from Prop36, parole agents are charging them with fewer violations so they can be returned to custody. In both cases, it appears that practitioners at the next stage of the process (prosecutors and the parole board) reacted in ways that nullified officers’ and agents’ attempts to manipulate the system.

In a similar manner, if a parole agent wants their parolee to serve some time behind bars, for detoxification or other behavior modification purposes, they will arrest them on a violation and delay the violation report for several days. According to parole agents, they have up to six days to file a violation report after taking someone into custody and may choose to not file a report at the end of the time period and instead release the parolee. This “shock incarceration” allows the agent to “get the guy’s attention” without formal proceedings or permanent reports.

In summary, parole agents were not burdened with a lot more parolees like probation officers were. The impact on the agency and the staff was minimal to moderate, with the biggest issue being the frustration associated with the new policies and procedures. Overall, parole agents had the same complaints as law enforcement officers and probation officers – that offenders are not taking Prop36 seriously and that the legislation does not adequately take into account the level of criminal sophistication and drug addiction present in the parolee population.

–  –  –

It is apparent that, of all the agencies studied, Prop36 had the most profound impact on the probation department. Diversion estimates generated as a result of this research suggest that approximately 3,400 offenders convicted of eligible drug crimes in Orange County are diverted from custodial sentences each year as a result of Prop36. These offenders, all of whom are sentenced to probation, overwhelmed the department and forced numerous innovations. The same level of innovation was not necessary at the jail or parole offices. Interestingly, practitioners at all the agencies expressed frustration at various failings in the law, including the inclusion of parolees and the inability to hold offenders accountable for their behavior. That frustration resulted, often, in efforts to circumvent the law’s intent.

Summary and Conclusions The impact that Proposition 36 has had on offenders has been influenced by the adaptation methods chosen and employed by practitioners in criminal justice agencies throughout California. This research illustrates, in a very dynamic way, how “law on the books” plays out as “law in action” every day. Similar to previous research (Engen and Steen, 2000; Savelsberg, 1992), findings from the current study reveal that street level bureaucrats at every stage of the criminal justice system found (or invented) ways to circumvent and/or diminish the effect of this law. Law enforcement officers attempted to disqualify offenders by adding non-drug related

–  –  –

proactively trained officers in one police department how to get around the law80.

Judges scheduled frequent monitoring reviews in court and immediately issued arrest warrants for offenders who failed to appear; thereby creatively using the tools at their disposal to order a punishment (shock incarceration) prohibited by Prop36 but deemed necessary by the practitioners involved. Parole agents intentionally violated parolees on non-drug related charges (instead of the also-present drugrelated violations) so that the parole board would allow a parolee to be returned to custody (and not given more opportunities at Prop36).

These coping strategies were widespread, but not universal. They were deliberate reactions to a law that many disliked and most felt was being taken Word on the street is that District Attorneys trained officers in the other departments.

advantage of by drug offenders. In order to understand why some professionals adapted in this way it is necessary to understand the history and intent of the legislation. Proposition 36 was written by drug reformers from the Drug Policy Alliance. It was written with an appreciation for the addiction process and the knowledge that failure is part of recovery. This is why multiple failures (dirty tests, probation violations, etc.) are allowed but punishment for the first few failures is not (Dave Fratello, personal communication, April 20, 2005). It was backed by voters, hopeful but possibly misinformed, who wanted to help the drug-addicted population of California. The premise is good: cure the addiction and good things will follow (less crime, more employment, better parenting, less welfare…). The problem is that many addicted individuals who are arrested by law enforcement have lengthy drug histories that are not easily treated or cured through outpatient treatment. It is true that there are residential programs for Proposition 36 offenders; but unfortunately not enough. This is the backdrop against which criminal justice practitioners operate; intimately familiar with drug addicts, the crimes many commit, the ugliness of addiction, and frustrated that they can’t seem to make a positive impact.





Front line officers tasked with public safety are among the first to see the positive and negative repercussions of Proposition 36. Their frustrations are based on their daily reality of arresting drug addicted persons for burglaries, identity theft, and other crimes; processing their cases in court, or supervising them on probation or parole. They see offenders with a high level of addiction, in need of residential treatment, who are being sent to outpatient treatment while continuing to live in their same neighborhood with their same friends that are (often times) poor influences and who may also be using narcotics. Though law enforcement officers do not articulate the issue in these terms, they see the results of the mismatch between offender need and treatment provided on a regular basis, as do judges, lawyers, probation officers, and parole agents. Practitioners understand the hope that voters had when enacting Proposition 36; but based on their experiences, they do not believe that Proposition 36 works for most offenders. In the words of one law enforcement officer, “It was a good idea on paper but you know it’s like the person that makes blueprints to build a house who’s never swung a hammer and the guy that builds the house says what the heck, how’s he going to do that?.” This view is not entirely unwarranted. Foremost, when one compares Proposition 36 to the four characteristics of successful treatment programs identified by Marlowe (2003) it falls short in two key areas: close supervision and monitoring of offenders; and swift and certain punishment for non-compliance that do not require formal hearings. Moreover, the law has had a profound impact on several Orange County criminal justice agencies. The number of offenders completely overwhelmed the probation department as well as the superior court, not to mention the network of treatment providers in Orange County. Finally, the funding provided by Proposition 36 has been insufficient to provide adequate treatment or supervision to offenders enrolled in the program. Even though healthcare, probation, and the court wanted to provide the best treatment and supervision possible, they were unable to; in large part due to inadequate funding. An Orange County Grand Jury Report (2003) found that insufficient funding was a large problem in the Orange County and that agencies tasked with implementing Prop36 had to absorb additional costs associated with the program. The financial situation absolutely exacerbated the problems encountered in Orange County, especially for the probation department and the Health Care Agency.

The authors of the legislation asked for $120 million for implementation of Proposition 36 throughout the state. This amount was not based on an estimate of the projected costs to provide treatment and supervision to the 36,000 offenders expected to be diverted each year; but rather represented the amount that, based on public opinion polls, the sponsors of the bill believed voters would be willing to support (Bill Zimmerman, 2005 International Drug Policy Reform Conference, November 10, 2005). The overarching problem is that these offenders are much more severely addicted than was expected and they need more intensive – and thus more expensive – treatment. Hence, inadequate funding adversely affected both supervision and treatment and with that, the overall success of Prop36. Sponsors of the legislation contend that they were surprised by the level of addiction severity displayed by Prop36 clients and underestimated the funding required to treat and supervise these offenders (Bill Zimmerman, 2005 International Drug Policy Reform Conference, November 10, 2005); however it is a conundrum to this researcher why the high level of addiction exhibited by these offenders took so many people (including Orange County’s implementation team) by surprise. Only the police officers consistently said “this is exactly the population we expected.”

IMPACTS ON THE CRIMINAL JUSTICE SYSTEM AND OFFENDERS

Beyond the complaints, frustration, and fiscal constraints that inhibited proper treatment and supervision, Proposition 36 has had several positive benefits for the criminal justice system as well as offenders. To begin with, the legislation has improved collaboration between criminal justice agencies and treatment providers and in fact has initiated it on a large scale. Furthermore, Prop36 has provided substance abuse treatment for more than 24,000 offenders in Orange County (140,000 statewide), many of whom would not have sought treatment on their own, either for financial or other personal reasons (including denial).

Moreover, it diverts an estimated 3,400 offenders per year in Orange County from incarceration and the associated negative repercussions. Of course, only about 500 Orange County offenders per year are diverted from the most deleterious prison terms, the rest are diverted from short jail sentences, which arguably have fewer long-term harmful effects.

It appears likely that Prop36 has had a net widening effect on drug arrests.

Despite some law enforcement officers’ contentions that arresting some drug offenders is a waste of time, it is clear that arrests for several Prop36-eligible crimes increased after Prop36 (possession of dangerous drugs, possession of narcotics, and under the influence). Time series analyses indicate that Proposition 36 was a contributing factor to the increase in arrests; though it was most certainly not the only important factor. Unfortunately, this research was not designed to address this finding and thus cannot rule out rival explanations for why these drug arrests increased (ex. more drug users, more officers on the street, changes in offender behavior).

Moreover, offenders are also more likely to be charged with the additional, non-drug crimes present at the time of arrest than they were before the law. What impact these additional charges have on offenders during plea bargaining or sentencing is unclear. The object of adding these also-present, non-drug misdemeanors is to disqualify offenders from participating in Prop36. Research suggests however, that attorneys are dismissing the charges in order to allow offenders to plea bargain to Prop36. Some practitioners stated that some offenders who failed Prop36 and were removed from the program due to numerous violations may have spent more time in jail as a result of trying (and failing) Prop36 than if they had not attempted treatment at all. Current research could not validate this contention, but it is possible that future research could reveal if this is (or was) the case.

On the flip side, data indicate that more offenders are convicted of misdemeanor drug offenses, despite being arrested for felony crimes. It appears that negotiating the level of crime down to a misdemeanor may have replaced negotiating the length of jail time in the plea bargaining process. This is an important finding and a significant effect because individuals with a felony conviction must report the conviction on all employment applications for a stipulated time period, whereas it is unnecessary to disclose misdemeanor convictions. This particular change could have profound impacts for some offenders as they search for future employment. In all, Prop36 has had both positive and negative effects on offenders in Orange County.

–  –  –

Proposition 36 is one of the most, if not the most, wide-reaching pieces of criminal justices legislation passed in the United States in recent years. As such, there are aspects of Prop36 that worked well and there are aspects that could be enhanced. In the words of one probation officer, “I think that it has not reached the potential that it still can. Prop36 still has a significant, significant potential to positively serve the criminal justice system, to reduce crime rates, and to help get people sober. It hasn’t reached that yet.” (Confidential Informant DDA, personal communication). Practitioners offered several ideas to improve Proposition 36.



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