«From Inception to Implementation: How SACPA has affected the Case Processing and Sentencing of Drug Offenders in One California County DISSERTATION ...»
The LAO correctly pointed out that these savings could be offset by some diverted offenders who may commit crime while receiving treatment and supervision in the community. Some of these offenders might be sentenced to prison for a new offense, which would decrease some of the cost savings.
Researchers at RAND reviewed the Legislative Analyst’s Office evaluation to determine the potential effect of the legislation (Riley et al., 2000) on local and state government. RAND researchers anticipated that the law would change how prosecutors, defense attorneys and defendants behave in regards to charges and plea bargaining (Riley et al., 2000). They concluded that the LAO prison diversion estimate was reasonable, but the potential impact of the law very much depends on how different criminal justice actors implement the law and how many offenders currently sentenced to prison for drug possession would be eligible for diversion through Proposition 36. Riley et al. (2000) point to prosecutors contention that most drug offenders currently in prison for “simple possession” would not qualify for diversion through Proposition 36 due to an extensive or serious past criminal history or because they plea bargained their current charge down from a more serious charge.
Research by Caulkins and Chandler (2006) support the supposition made by Riley et al. (2000). They analyzed the 1997 Prison Inmate Survey and found that only 17% of prisoners incarcerated for “drug possession” were charged with possession from the beginning (all the others had either been convicted of “possession with intent to distribute” (akin to “sales”) or plea bargained their original charge down to “possession”) (Caulkins and Chandler, 2006). Of the 17% of offenders originally charged with “possession,” 40% of them were repeat offenders who were subject to sentencing enhancements based on their prior record (Caulkins and Chandler, 2006).
Thus it would appear that approximately 10% of offenders in prison for “possession” could be eligible for Proposition 36 diversion.
Response to the law is expected to vary by county as well as by actor. Studies of “Three Strikes” legislation showed dramatic differences in implementation and charging practices of prosecutors by county. This is important because the cost savings of the legislation is primarily dependent upon the number of offenders diverted from prison (and jail) and to a lesser degree on how many of those diverted offenders commit crimes while on probation in the community (Riley et al., 2000).
Based on prior studies, Riley et al. (2000) predicted that some diverted offenders would engage in criminal activity while free in the community, and this criminal activity would represent an increase in the amount of crime they would have committed if they had been incarcerated.
Another prediction study, by Auerhahn (2004) used data-validated dynamic systems simulation modeling to predict the effect of Proposition 36 on drug offenders in California. Her method involved constructing a computer simulation model of the criminal justice system, and then comparing it against and fitting it to actual historical time-series data. Using this method she predicted both the drug offender population and the general inmate population would continue to increase regardless of Proposition 36 but that the rate of growth would be a little slower as a result of SACPA. She estimated that due to SACPA, the drug offender population would be 7% smaller and the general population would be 2% to 3% smaller than it would have otherwise been over the period 2000- 2020 (Auerhahn, 2004). Although the percentage of drug offenders with two or more prior convictions was stable between 1980 and 1998; she found that the percent of incarcerated drug offenders with a violent prior conviction rose from 6% in 1980 to 36% in 1998 (Auerhahn, 2004).
Based on her findings, she forecasted that both the percentage of drug offenders with a violent prior and the percentage of drug offenders with two or more priors would be higher than it otherwise would have been as a result of SACPA. Additionally, she expected the percentage of incarcerated drug offenders with no priors to decrease more with implementation of the law than if the law were not implemented (Auerhahn, 2004). Auerhahn predicted the drug offenders in prison after Proposition 36 would be more serious offenders with lengthier or more violent criminal pasts than the drug offenders in prison in 2000. This is logical, as lower-level offenders (those without a serious past) should be the ones diverted away from prison through SACPA and as a result drug offenders with a serious past would make up a larger proportion of drug offenders in prison.
Auerhahn (2004) found only limited support for claims made by SACPA supporters that it would dramatically reduce prison populations. Her prediction was that the incarcerated drug offender population would continue to rise an estimated 60% over 20 years with implementation. This is in comparison to her estimate of a 70% rise over the next 20 years without implementation. According to her analysis, drug offenders would continue to represent approximately 30% of incarcerated offenders (Auerhahn, 2004). In her estimation, SACPA would further decelerate the rate of growth of the prison population, however it would not dramatically change the number of drug offenders in prison nor how the criminal justice system operates (Auerhahn, 2004).
Preliminary Outcome Studies The imprisonment rate for drug offenders in California declined from 64 per 100,000 population in 2000 (the year prior to SACPA implementation) to 50 per 100,000 population in 2001 (the year SACPA took effect), with most of this accounted for by fewer incarcerated possession offenders (Males, Macallair, and Jamison, 2002).
Admissions of drug possession offenders to prison also declined 30% between 2000 and 2001 (Males, Macallair, and Jamison, 2002). Males and his colleagues attributed this entire decrease to SACPA. While this was an impressive drop, they failed to investigate the decline in context. For example, they did not discuss the corresponding 7.6% drop in sales/manufacturing drug admissions during the same period (offenses which are not eligible for SACPA diversion), nor did they discuss the overall trend of declining admissions of drug offenders to state prison since 1998 – before the passage of SACPA.
Two more recent studies also examined prison admission trends and determined that Proposition 36 reduced the number of drug offenders in prison for simple possession (Bailey and Hayes, 2006; Ehlers and Ziedenberg, 2006). Bailey and Hayes (2006) estimated there were 10,000 fewer drug offenders in prison from 2000-2005 as a result of SACPA. In addition to crediting SACPA with the declining prison population, they credited it with changing the composition of prisoners serving time. They found that the proportion of prisoners incarcerated for a violent offense noticeably increased at the same time that the proportion of offenders serving time for drug offenses declined (Bailey and Hayes, 2006).
Ehlers and Ziedenberg (2006) also concluded that the legislation decreased the prison population. They estimated that 14,616 fewer offenders served time in California prisons for drug possession from 2001-2004 as a result of SACPA based on a comparison of the number of new admissions of drug offenders to prison before and after SACPA went into effect. It is significant to note that their estimate of the number of offenders diverted from prison (14,616 offenders over three years) is far less than the number predicted by the California Legislative Analyst’s Office (72,000 over three years) (LAO, 2000). Moreover, they also observed that the actual prison population had approximately 16,000 fewer inmates in 2005 than was projected to be the case in 2000 (Ehlers and Ziedenberg, 2006). There is no doubt that the California prison population decreased between 2000 and 2005, the only questions are whether SACPA is entirely responsible for the decline or whether other factors played a role, and how many SACPA offenders would have received prison sentences if SACPA were not law.
In addition to fewer prisoners, Ehlers and Ziedenberg estimated that 45,534 fewer drug offenders were sentenced to probation with jail between 2001-2006 (Ehlers and Ziedenberg, 2006). According to these researchers from the Justice Policy Institute, the number of new felon admissions for drug possession was 32% lower in 2004 than it was in 2000, prior to the passage of Proposition 36; and the number of parole violators returned to prison for a new term declined 20% during the same time period (Ehlers and Ziedenberg, 2006). They also compared the drug possession imprisonment trend in California to six other states with large prison populations and found that the decline in drug possession admissions in California was larger than any other state in the analysis, both in number and proportion of the prison population (Ehlers and Ziedenberg, 2006). These are important findings, but an interrupted time series model is really needed to be able to say with much certainty that these changes can likely be attributed to SACPA.
Policies implemented at the local level are not implemented in the same manner in every locale (Percival, 2004; Klein et al. 2004; Riley et al. 2000; Hser et al., 2003; Males et al., 2002). Therefore, diversity in implementation of Proposition 36 within California’s 58 counties is not only anticipated, it is expected (Longshore et al.
2002; Hser et al., 2003). Percival (2004) examined local political preferences and other local contextual characteristics, such as politics, community needs, and socioeconomic factors, to determine if they impacted how a county implemented Proposition 36. He found that counties considered “tough on drugs” were 4.1 times more likely to incarcerate offenders for low-level drug possession during the first two years of SACPA than counties lenient on drug offenders (Percival, 2004). He also discovered very little change in incarceration rates of low-level drug offenders in these tough counties before and after SACPA, in comparison to more lenient counties.
However, one of the issues with his analysis is his measure of “tough on drugs.” He ranked counties according to their “tough on drugs” stance into three categories. His ranking was based on the average number of incarcerations per 1,000 persons for all drug offenses for the period 1996-1999 in each county. The problem is that those counties which incarcerated the most offenders before the law will, ceteris paribus, continue to incarcerate the most offenders after the new law.
Effects on the Treatment System Percival also found that political ideology (conservative, moderate, liberal) made a difference in how the county implemented Proposition 36, specifically in terms of treatment quality. In particular he noted that, after accounting for other factors (such as drug problem severity, drug treatment expenditures, and socioeconomic status of the county), liberal counties added more residential treatment facilities during the first year of SACPA (2001-2002) than did conservative counties (Percival, 2004).
Furthermore, a Justice Policy Institute study that supported this supposition found that the number of treatment facilities in California increased by 26%; unfortunately however, the number of clients increased by 34% (Ehlers and Ziedenberg, 2006) so strain on the treatment system became more pronounced, instead of less pronounced.
Interestingly, the number of treatment facilities throughout the rest of the United States declined about 2.6% during the same time period.
Hser et al. (2003) investigated how Proposition 36 affected the drug treatment system and patient outcomes during the first year after implementation in five focus counties. They found that Proposition 36 clients were more likely to be male, employed full-time, users of methamphetamine or marijuana, first-time admissions, and treated in outpatient programs than their sample of non-Proposition 36 clients.
Furthermore, they discovered that treatment admissions overall increased in each of their five sample counties (except San Francisco) after Proposition 36 was implemented (Hser et al., 2003). In a follow-up study, they found evidence that nonProposition 36 clients may have been displaced as a result of Proposition 36. Hser et al. (2007) found that relatively few new facilities were created to deal with the demand brought on by Proposition 36. They also found self-referrals and non-Proposition 36 criminal justice referrals declined from 2002-2003, while Proposition 36 referrals increased (Hser et al., 2007). These findings indicate that county treatment systems encountered mild to severe system capacity issues associated with providing services to the large volume of offenders seeking treatment as a condition of diversion and that the likely result was displacement of non-Proposition 36 clients (Hser et al., 2007).
Moreover, several studies found that SACPA clients had extensive drug use histories (Hser et al., 2003; Goyer and Emigh, 2003; Longshore et al.; 2004). Wiley et al., (2004) found that the client prediction models used in Santa Clara County to predict the needs of Proposition 36 offenders prior to implementation were not accurate and required treatment staff and probation officials to scramble and adjust to more seriously involved SACPA clients than they expected. In San Diego County, the average first-year SACPA client had been arrested 4.6 times in the past, was unemployed, and was addicted to methamphetamine or crack cocaine and 7% needed mental health treatment in addition to substance abuse treatment (Goyer and Emigh, 2003). Research has found the need for intensive treatment (e.g. residential placement) was high for SACPA clients (Goyer and Emigh, 2003); but the supply was not adequate (California LAO, 1999), particularly for dually-diagnosed offenders.
Farabee et al. (2004) found that SACPA clients with severe drug problems were significantly less likely to receive treatment in residential programs than were noncriminal justice system clients of similar drug severity. This is a key finding which, as the current study reveals, has significant repercussions for offenders and practitioners.
Statewide Evaluation Proposition 36 mandated a long term study encompassing annual evaluations of the “effectiveness and financial impact” of the policy and programs. UCLA Integrated Substance Abuse Program conducted the statewide evaluation of SACPA.