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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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First, practitioners are united in their belief that further restrictions should be placed on who is able to take advantage of Proposition 36. Next, they believe that judges should have the ability to order shock incarceration for offenders not complying with the rules of treatment and/or probation. Additionally, practitioners feel strongly that treatment needs to be more intensive. Furthermore, in order to make any significant improvements to this law, additional resources will be required to allow for appropriate treatment and adequate supervision. Finally but less importantly, law enforcement officers articulated that periodic updates during patrol briefings by criminal justice practitioners involved in Prop36 (such as the court or probation) may improve their buy-in to the program and help them to feel more like they are part of the solution (rather than the clean-up crew). I will consider each of these suggestions in turn.

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Judges and other practitioners want more discretion as to who is allowed to participate. Not only do judges want criminally sophisticated offenders with long rap sheets who are unsuitable for treatment out of the program, they also want the ability to keep offenders in the program beyond the third violation if they are making progress. All parolees and almost all offenders with strikes are already ineligible for Prop36; however practitioners also want the ability to exclude offenders who have several past convictions, especially those who have served time in prison. They want to place additional restrictions on the criminal history component and only offer Prop36 in special cases to offenders with more than one prison term. These offenders would need to articulate to the court a strong desire to participate in treatment and a willingness to work the program.

You should have the discretion to keep people who are progressing in treatment and not be saddled with the 3rd violation. I think you still need to have the discretion to exclude people for a non-drug related offense because again, you are going to have people when you look at the totality of their background, you see how well they were doing or how badly, their record, then [be able to say] ‘no’, because again you’re going to want to be able to keep people in who can use treatment and you can only do that by excluding the others who aren’t using treatment. [Judge] And the health care people were complaining and still do that those worn prison people come in there and basically swear and cuss and have a bad attitude and it’s like a bad apple in the Prop36 barrel that the public had no idea was going to be there. And that’s another problem I mean, for starters to clean this thing up they need to get rid of all of those violent people. They don’t belong in that program. If they want to do something special for them, fine do it. But don’t put them in there and mix them with this other proposition. [Judge] That’s another thing that’s difficult. Sometimes the folks who have a large history are the people who finally wake up and go, “I just wasted the last four years of my life and I need help.” I don’t want to disqualify that person that has that attitude. But it’s really difficult to get into the mind of that person that’s taking the deal that wants Prop36, because we don’t really know exactly what’s in their minds.

How do you benefit as many people that actually want the help and disqualify the folks that don’t want the help? [Probation Officer]

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As might be expected, several court practitioners believe graduated sanctions for probation violations would improve program compliance amongst Prop36 defendants. Their position is based on experience with this population and the belief that graduated sanctions (including but not limited to the use of shock incarceration) are necessary to encourage sobriety and persuade offenders to comply with program rules81. Practitioners complain that Prop36 offenders do not take the program seriously because there are almost no sanctions for noncompliance.

Treatment providers interviewed agreed and said that just as failure is a part of recovery, so too are sanctions for misbehavior.

[P]eople were going into Prop36 thinking it was a joke, they would say, “oh, well” to the officers on the street, …so they went in with this mindset, knowing they couldn’t go into custody, knowing there were no repercussions for their conduct so naturally when you go in with a mindset like that and you’re already an addict, you’re not gonna (sic) do well and they didn’t. [Parole Agent?] If you’re going to force somebody to do something against their will, there’s got to be a consequence for not doing it. If the judge and court is the ultimate authority, but you don’t give them any authority to do anything, then what’s the point? [Probation Officer] Best practices research on substance abuse treatment with criminal justice involved individuals supports this contention (Marlowe, 2003).

That’s probably the single most important thing that they should be doing is sanctioning…. I think short-term custody. We call it “dunking,” dunking them back in to give them a taste of the loss of freedom again. They have to lose something. That’s what I mean when I say investing in their recovery financially. They have to lose something in order to get the message they can’t continue to do what they’ve been doing. [Treatment Provider] Based on the interviews conducted, it is clear that the judges involved in Prop36 in the county are well respected amongst their peers and among other courtroom workgroup actors and that these judges are level-headed and thoughtful about how to improve the lives of addicted persons in the criminal justice system.

In fact, it was mostly other practitioners, not judges that recommended this change to improve the success of Prop36.

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“I would increase the resources available to give people the treatment that they actually need and not what we can afford.” (Confidential Informant AFT, personal communication). Practitioners at all stages want to see the treatment component strengthened. Several practitioners mentioned that the treatment provided needs to more closely match the offender’s addiction severity. They complain that offenders are frequently provided outpatient treatment when residential treatment would be more suitable. Most recognize that it is a matter of funding and beyond the control of the Health Care Agency, but argue that the success of Prop36 is dependent on increasing funding for treatment. According to an Orange County Grand Jury Report (2003), there were only 106 funded residential treatment beds in the entire county in 2003. More than 3,000 offenders are sentenced to Prop36 in Orange County each year, and according to this report, only 412 can get into residential treatment in a given year!

Poor treatment or insufficient treatment makes an addict worse, not better. It makes them worse because it feeds their denial: It’s not their problem, it’s somebody else’s problem. …. I just think the best chance to get well is a very intensive treatment the first shot out. I think the lower level programs like PC1000 and even Prop36, they’re not sufficient to get their attention. They’re not intensive enough.

[Treatment Provider] To make it more appropriate we need to have a lot more intensive drug rehabilitation programs available which include live-in, custodial facilities; because if you don’t have that, you certainly don’t have the ability to affect rehabilitation in a meaningful way.

But then, you know, how do they pay for it? [City Attorney] I think the intention was very good, but I think it is a dismal failure because it hasn’t been sufficient. The levels or the intensity hasn’t been sufficient enough to get these people well, and the duration as well…. Treatment should be more intensive and should definitely be using their health insurance coverage. [Treatment Provider] In addition to increasing the number of residential treatment beds, the state should consider sentencing some offenders with serious addiction problems to a secure confinement treatment facility for the first 30 days. Primarily, this would serve a detoxification function for offenders accustomed to using drugs frequently (several times per week to daily). One of the negative repercussions of eliminating jail sentences all together for drug addicted offenders on Prop36 is that some offenders actually benefit from the 30-60-90 days they spend incarcerated. Law enforcement officers and jail deputies describe the physical transformation that many drug offenders make in jail. Officers and deputies contend that many offenders gain weight, look much better, and are significantly more coherent after some time in jail (not using drugs and getting three regular meals a day).

They [Drug offenders] don’t look the same today as when we put them in jail. There is absolutely no doubt that helps the vast majority of them. That is definitely a dry out, by putting them in custody. We don’t see people coming out of jail after an extended period of time looking like they are strung out. [Police Officer] It seems like a few days after they’re here they really start to make the biggest change and then it seems like the longer they’re here, the better they get…. more polite, I want to say more coherent, more respectful of the rules, more understanding of the ramifications if they violate the jail rules. And they, once they’re settled in, they turn out to be good workers, you know, because it’s something to occupy their time and mind, rather than just, you know, the drugs or something. I personally, I think I see a big difference. [Jail Deputy] I’ve had one [offender] where she spent 60 days in jail. She was strung out on heroin. She spent 60 days in jail; and came out clean.

That would have never happened under Prop 36. And the only reason she was in there was because of her traffic violation.

[Narcotics Officer] Recent research supports deputies’ contentions. According to brain researchers studying addiction, it takes the brain 90 days to reset after consuming illicit substances and in some cases of heavy, long term usage, it can take years before the brain functions normally (if ever) (Lemonick, 2007). That is why the standard jail sentence helps to break some of the unhealthy habits and patterns formed over months or years of drug use and allows addicts to gain some clarity on their situation after being drug-free for a period of time. The forced detoxification time prescribed by this option would allow addicts to enter treatment clean and with a higher chance of success. Offenders would be housed in rooms, not cells, and would be expected to participate in meetings and other activities throughout the day.

Facilities would not mimic jails; rather they would be modeled on similar existing facilities that successfully cater to juvenile delinquents with addiction problems in Orange County and elsewhere (such as the Youth Guidance Center) and that subscribe to evidence-based practices shown to work with drug using offenders.

Facilities would be administered by probation departments throughout the state and each would include treatment professionals to coordinate and run the treatment programs.

As part of the intake process, probation officers and treatment professionals would assess each offender’s treatment needs along with their various skills. From there, a successful recovery plan would be developed with the offender’s input, and would include the level and expected duration of treatment required, as well as the inclusion of other services that would improve the offender’s chance of success (high school equivalency program, like skills program, employment services, personal/family counseling, etc.). The goal is to get each offender ready to fully participate in their recovery; which requires (1) getting the offender’s attention so that they recognize that they need to take Prop36 seriously and (2) detoxifying the offender so that they can be coherent and can make good decisions about their recovery plan.

Offenders sentenced to this type of facility would start treatment meetings immediately. This is a significant improvement over the current method which can take days or weeks to get enrolled and get the paperwork processed. This is very important as motivation decreases over time, particularly for individuals coerced into taking action. Such a facility would likely decrease the early warrant rate for no-shows, as offenders would be in a secure confinement facility with all the resources they need (probation officer and treatment professional) on-site82.

Although these facilities would require additional funding, they could potentially pay for themselves in improved success rates.

Deciding upon the proper confinement time should be open for discussion between addiction treatment professionals, probation officers, parole agents, judges, attorneys, jail deputies and possibly law enforcement officers. Defining who gets this intensive treatment will be tough83. It will be a balancing act between helping those in need of detoxification or intense treatment versus causing additional harm to others who are productive citizens, with stable, pro-social support systems, and not in need of this level of treatment. Fairness to all will be an important issue that will need to take center stage, so as to not further privilege high-income offenders or punish low-income offenders.

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Finally, more resources are required to provide the more intensive supervision and monitoring that county practitioners want to provide. Almost every court practitioner interviewed expressed the belief that offenders would do better if the resources were available to provide more intense monitoring and more meaningful contacts with the judge, ala a drug court model. Unfortunately there are simply too many Prop36 defendants to implement a drug court model successfully.

Adding a second felony Prop36 court, however, would relieve some of the burden One other benefit this has is that it would likely increase the perceived severity of the sanction in law enforcement officer’s eyes. This, however, it not a legitimate reason to remove an individual’s freedom. Denying an individual’s freedom for the purpose of someone else’s satisfaction, while currently popular (e.g. retribution), is not a legitimate reason to impose a custodial sanction on lowlevel drug offenders.

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