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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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Drug Court Drug court, the second model that incorporates drug treatment as a main response to offenders’ behavior within a criminal justice context, built upon the foundational concept of collaboration laid by TASC (Wenzel et al., 2001). It developed out of a necessity to efficiently handle an ever-increasing number of drug offenders, but quickly evolved into a movement focused on rehabilitation rather than expedited offender processing (Goldkamp, White, Robinson, 2001). Like TASC, there is no “single” drug court model; the basic framework involves a collaborative team of courtroom actors (judge, prosecutor, defense attorney, probation officer, and social worker/treatment provider) focused on helping a convicted drug court participant reduce his/her reliance on drugs in a therapeutic judicial setting (rather than an adversarial one). The focus is on rehabilitation, but participation in the program requires the offender to accept responsibility and commit to the entire program (which typically involves several successive stages).

There are ten key elements underlying most drug courts that include, the integration of a continuum of substance abuse treatment and other rehabilitation services with justice system processing in a non-adversarial setting with frequent judicial contact and a coordinated approach to monitoring participants’ compliance (including drug testing) and evaluating participants’ progress toward program goals (Drug Court Program Office, 1997; Hora, 2002). Early identification and placement of eligible participants is important (Hora, 2002), and although drug courts have eligibility requirements that vary by jurisdiction and court; most exclude offenders unwilling to participate or unmotivated to change and those who have committed violent crimes (Bhati, Roman, and Chalfin, 2008; Longshore, et al., 2001; Taxman and Bouffard, 2002).

Components of Successful Criminal Justice Programs for Drug Offenders Research suggests that drug courts are successful at reducing drug use and criminal activity (Belenko, 1998, 2001; Bhati, Roman, & Chalfin, 2008; Deschenes et al., 1995; Goldkamp, White, and Robinson, 2001; Gottfredson, Najaka, and Kearley, 2003; Harrell, 2001; Kalich and Evans, 2006; Spohn et al., 2001; Turner et al., 1999).

However, there is some debate about the actual processes and components that are most responsible for successful outcomes (Goldkamp, White, and Robinson, 2001;

Gottfredson, Najaka, and Kearley, 2003; Kleiman, 2003; Longshore et al., 2001).

Recent efforts have attempted to identify the fundamental aspects of successful drug courts and develop a set of key components (see specifically: Hora, 2002; and Huddleston, et al., 2005; but also: Goldkamp, White, Robinson, 2001; Longshore, et al., 2005; Turner at al., 2002).

Research suggests that effective treatment programs, (1) occur in the community, (2) reward successful completion of treatment by removing criminal justice imposed sanctions (such as imprisonment or conviction), (3) include close monitoring and supervision of offenders, including drug testing and regular progress reports, and (4) include swift and certain punishments for noncompliance that do not require additional, formal hearings (Marlowe, 2003). Additionally, research indicates that both models (TASC and drug court) require conciliatory collaborative relationships between the criminal justice and treatment system actors in order to be effective (Anglin et al., 1999; Drug Courts Program Office, 1997, General Accounting Office, 1995, Peyton and Gossweiler, 2001). Yet research suggests that barriers exist in developing these collaborative linkages (Taxman, 2002; Wenzel, Turner, and Ridgely, 2004). Common obstacles included: staffing shortages, coordinating management information systems and sharing information between agencies, and funding limitations (Wenzel, Turner, and Ridgely, 2004).

In summary, both models (TASC and drug courts) are based on collaboration between criminal justice and treatment agencies and both models attempt to incorporate scientific research for the best results. The differences are in the process and operating framework. It should be noted that both models were considered innovative criminal justice approaches for drug offenders when they were created, and I might argue that treatment as a cost-effective response to drug offenders is still considered a novel approach by many people. Proposition 36 is loosely based on the TASC and drug court models but expands the scope significantly by mandating that all non-violent drug possession offenders convicted in the State of California, regardless of motivation to change or willingness to work the program, receive treatment with a term of probation in lieu of incarceration. It is one of the most widereaching pieces of criminal justice legislation ever passed in California.

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Despite the explosion of criminal justice legislation passed in recent years, few policies have been examined for criminal justice system, agency, or actor impact and no study to date has considered the effect of a single policy change on all components of a criminal justice system in the United States. Studying policy impact is important and understanding agency response to legislation should be a priority. As Petersilia pointed out ten years ago, We need to move away from the fragmentary studies of individual agencies and toward more comprehensive assessment of how probation departments and other justice agencies influence one another and together influence crime. Decisions made in one agency have dramatic workload and cost implications for other justice agencies for later decisions... to date, these systemic effects have not been well studied, and much benefit is likely to come from examining how various policy initiatives affect criminal justice agencies, individually, and collectively. Petersilia, 1997 as cited in (Auerhahn, 2007) The criminal justice system is often described as a “nonsystem” composed of “loosely coupled”, inter-related agencies (Cohen, March, & Olsen, 1972; Feeley, 1983; Hagan, 1989). Each component has its own goals and responsibilities; yet change that occurs at one stage can have profound implications for agencies and actors at other stages (Katz & Kahn, 1978; Parsons, 1951). Most studies of crime policy have focused on the effect on crime or criminals and not on system response to legislation. Some exceptions include studies of: California’s “three-strikes” legislation (Johnson & Saint-Germain, 2005; Zimring, Hawkins, & Kamin, 2001);

California’s 17.P.C. amendment (Meeker & Pontell, 1985); California’s hate crime legislation (Jenness and Grattet, 2005), public drunkenness decriminalization laws (Aaronson, Dienes, and Musheno, 1981, 1984), and other sentencing reforms (Engan and Steen, 2000; Feeley, 1983; Ulmer, Kurlychek, and Kramer, 2007). These policies have been studied for specific system effects, but none, to the author’s knowledge has investigated how a change in criminal justice policy has been implemented on the ground level – by practitioners at all stages of a criminal justice system.

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Criminal justice policies enacted at the state level (through the legislature or popular vote) are almost always implemented at the local level. This is because most policy changes involve local criminal justice actors enforcing and implementing the new rules. These agencies, particularly law enforcement agencies, play a critical role in implementing policy (Aaronson et al., 1981; Goldstein, 1977; McCleary, 1978) as they are the ones who translate the “law-on-the-books” into the “law-in-action” (Jenness and Grattet, 2005). Jenness and Grattet (2005) refer to law enforcement agencies as the “law-in-between” because law enforcement agencies form the bridge between law-on-the-books (legislation) and law-in-action (implementation) when it comes to criminal justice policy. Agencies in this location not only enforce law; they make law by setting standards and exercising discretion in ways that shape local norms and influence practices (Breyer, 1982; Kagan, 1978; McCleary, 1978).

As “street-level bureaucrats,” criminal justice actors have a tremendous amount of discretion (Lipsky, 1980) and can often choose to act in ways that either facilitate or hinder the implementation of a new law, policy, or organizational change (Bayley and Shearing, 2001; Engen and Steen, 2000; Jenness and Grattet, 2005).

Research has found that law enforcement officers and others in the criminal justice sector tend to be distrustful and often are resistant to such changes (Skolnick, 1966/1994; Skolnick and Bayley, 1986; Trojanowicz and Bucereaux, 1990). This resistance can affect the implementation of new laws and ultimately alter the actual impact the legislation has (Bayley and Shearing, 2001), especially if it is perceived to be in competition with organizational or individual goals (Aaronson et al., 1981).

Only a handful of studies have examined street level bureaucracy as it relates to criminal justice policy (Aaronson, Dienes, and Musheno, 1981; Engen and Steen, 2000; Jenness and Grattet, 2005; Kramer and Ulmer, 2002; Ulmer, Kurlychek, and Kramer, 2007). Studies suggest that local agency buy-in is one of the key factors in determining whether and how a given criminal law is enforced (Aaronson, Dienes, Musheno, 1984; Jenness and Grattet, 2005; Walker and Katz, 1995). Jenness and Grattet (2005) argue that organizational “perviousness” (the degree to which an organization is susceptible to environmental influence and how well the innovation aligns with organizational customs and philosophy) determines whether legislation passed at the state level will be adopted by a local agency. Aaronson et al. (1981: 88) found, “a common response of street-level personnel is to reformulate public policy goals by developing informal norms, practices, and routines of exercising discretion that sometimes adjust and at other times clearly violate the aims of codified law.” They also noted that “negative perceptions of mandated policy change are likely to be more intense when implementation of the change requires sharing of work and responsibilities with another relatively autonomous public service bureaucracy” (Aaronson et al., 1981: 88). This finding may be important for the current study, as Proposition 36 expanded collaborations between two distinct public agencies – criminal justice (specifically court and probation personnel) and public health.

Studies of sentencing reforms, in particular the implementation of sentencing guidelines, show that policy goals are often not achieved because they are in competition with the organizational and practical needs of courts and courtroom workgroups (Walker, 1993; Miethe, 1987; Engen and Steen, 2000) or individual courtroom actors’ assessment of what constitutes “justice” (Knapp, 1987; Savelsberg, 1992). For example, Savelsberg noted, “criminal justice actors’ substantive concerns regarding appropriate punishment were manifested in organizational adaptations that largely muted the effect of sentencing guidelines” (Engen and Steen, 2000:1360).

These studies indicate that criminal justice practitioners at all stages use the tools of their trade to circumvent laws they are in disagreement with or to reach desired outcomes not intended by the policy change (Engen and Steen, 2000; Savelsberg, 1992).

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Despite the belief that Proposition 36 represents a major paradigm shift in drug policy and that implementation issues and outcomes are expected to be closely monitored around the country (Klein et al., 2004; Hser et al., 2003), there has been relatively little research on the topic thus far. Of the studies written to date, most have investigated coordination efforts between treatment agencies and criminal justice agencies (Greenberg, 2001; Jett, 2001; Spiegelman, Klein, Miller, & Noble, 2003);

strain on treatment agencies (Hser et al., 2007; Hser et al., 2003; Wiley et al., 2004), or characteristics of offenders (Goyer & Emigh, 2003; Wiley et al., 2004). Three studies on the expected impact of Proposition 36 predicted a decrease in the drug offender population in prison as a result of the law (Auerhahn, 2004; California Legislative Analyst's Office, 2000; Riley et al., 2000). Three studies concluded that the number and rate of offenders serving a prison term for a drug offense had indeed diminished markedly after SACPA took effect in 2001 (Bailey & Hayes, 2006; Ehlers & Ziedenberg, 2006; Males et al., 2002) and four others reported preliminary findings on other criminal justice system, treatment system, or offender outcomes (Cosden et al., 2006; Hilger, Jenkins, & Nafday, 2005; Percival, 2004).

Pre-Passage Prediction Studies The Legislative Analyst’s Office conducted a potential cost/benefit analysis of the law for the California Voter Pamphlet. The report estimated 36,000 offenders annually would be diverted from prison and jail as a result of Proposition 36 (LAO, 2000). Their estimate was based on 24,000 fewer prisoners and 12,000 fewer jail inmates each year. They further estimated that 11,000 fewer prison beds would be needed at any given time for drug possession offenders and those could then be used for other criminals. This would allow the state to postpone the construction of a new prison, saving the state approximately $450-$550 million in construction costs. This cost savings was in addition to the annual $40 million local governments were expected to save in jail and court/trial costs and the annual $100-$150 million state government agencies were expected to save in prison and parole operations after accounting for the additional treatment and program expenditures. However, the estimate of local savings did not take into account the additional costs associated with supervising an additional 36,000 probationers. This was an important omission, as all offenders (including most parolees) sentenced under Proposition 36 are supervised by probation.

Although this policy could potentially save taxpayers in California up to $200 million annually, this is entirely dependent on how the law is implemented in each county in terms of changes in the way drug cases are adjudicated by judges, prosecutors and defendants; as well as treatment program availability and effectiveness; in addition to how many three strikes cases are involved (LAO, 2000).

The LAO report suggested fewer offenders would likely contest their non-violent drug possession offense charge as a result of this law, thus saving trial, prosecution, and potentially indigent counsel costs.

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