THE QUESTION Should California modify its sentencing law so that adult offenders convicted of nonviolent drug offenses are sent to drug treatment programs instead of prison or county jail, so long as sale, production or manufacture of controlled substances is not involved? PROVISIONS This measure:
BACKGROUND AND ANALYSIS This initiative does not address all drug-related crime. It speaks only to sentencing for non-violent drug possession crime. The Legislative Analyst explains, "State law generally makes it a crime to illegally possess, use, or be under the influence of specific drugs, including marijuana, cocaine, heroin, or methamphetamine, as well as certain medicines obtained without a physician's prescription." Classification of crimes Felonies, misdemeanors and infractions are three classifications of crime at present. Drug related crimes can be classified either as felonies or misdemeanors and depend mainly on the substance found in the offender's possession. Felonies are further classified as violent, serious, or neither violent nor serious. And "state law differentiates between felons who are convicted of possessing illegal drugs for personal use and those convicted of possessing illegal drugs for the purposes of selling them to another party." (LAO) In general sentencing for a felony is more severe than for a misdemeanor. Sentences for felonies include prison or jail, a fine, or supervision of probation in the community. Sentences for misdemeanors include a jail term, a fine, probation, or release to the community under court-imposed conditions other than probation. Violent felonies include murder, robbery of a residence using a deadly or dangerous weapon, rape and other sex offenses. Serious felonies include all of those and some others, such as burglary of a residence. Felony drug possession is classified as non-violent, non-serious. Recent history of drug-related crimes According to a recent study by the Justice Policy Institute, from 1980-1997 the number of people in the United States entering prison for violent offenses doubled, non-violent offenses tripled and drug offenses increased 11-fold. The study further shows that in California the percentage of citizens locked up for drug offenses is higher than in any other state. In 1994 the California Legislature and the voters passed statutes known as the "Three Strikes and You're Out" law. This measure applies to drug possession felonies as well as to other felonies. Offenders with one previous serious or violent felony conviction must be given twice the usual sentence for any new felony conviction. Offenders with two or more previous serious or violent felony convictions must be given at least 25 years to life for any new felony. A California State Department of Corrections report dated March 2000 shows that, of the 61,771 yearly parole violators, 48% were returned behind bars for drug possession. Some believe that these people need medical rather than criminal treatment. Drug treatment programs in the prison system appear to be seriously inadequate. The establishment of diversion systems is a recent trend in managing drug possession cases. One is the Drug Court System. A team approach is used. Working together, judges, prosecutors, defense counsel and treatment specialists advise a program to help the offenders deal with their substance abuse problems. After a guilty plea, the offender is permitted to avoid trial and jail by entering a rehabilitation program. The guilty plea, as an acknowledgment of misconduct, is considered by some to be an important element for a person's recovery. Other inducements to a long term change in behavior are regular drug tests, regular check-ins with judges and immediate sanctions for backsliding; these may include short periods in jail--usually 1 to 7 days--and then return to the rehabilitation program. Drug Courts exist in 45 counties for a total of 101 in the state. Criteria for admission vary greatly by county. At least 4,862 people are currently in these programs, as against some 37,000 (1998-figure) persons in prison or jail for felony drug possession. Another diversion system is PC-1000, Deferred Entry of Judgement. At the judge's discretion certain offenders are chosen to be sent to treatment. This is a tool used by different judges in different ways, and no judgement is entered. Hence, not much can be said about the numbers involved in the system. These diversion systems will likely continue, since some persons diverted through them might not be eligible for diversion through Proposition 36. Effects of Proposition 36 Passage of Proposition 36 would bring new funds into treatment services--an annual appropriation of $120 million. This money could not be spent for drug testing. However, nothing in the proposition would prevent the continuation of state and federal funding for drug tests on probationers, drug-court clients, and parolees. Though the proposition does not require drug testing, judges in each individual case can order it as a condition of probation. However, if an offender has two or more adversarial court proceedings, he/she would be required for revocation of probation and consequently would be incarcerated. Under Proposition 36, offenders would be assigned to one of a variety of treatment programs, provided the program was a licensed and/or certified community drug treatment program. The initiative states that among these could be outpatient treatment, half-way house treatment, narcotic replacement therapy, drug education or prevention courses, and/or limited inpatient or residential drug treatment to address special detoxification, relapse situations or severe dependence. The community drug treatment programs must agree to conform to local government zoning ordinances and development agreements. Programs offered in a prison or jail facility are not eligible for Proposition 36 funding. The court could also impose as an additional condition of probation participation in vocational training, family counseling, literacy training and/or community service. These conditions would be aimed at making the offender better able to maintain a stable job and family situation. FISCAL EFFECT The Legislative Analyst estimates this measure will have significant fiscal effects:
In summary, there is a projected net annual saving to the state of between $100 million and $150 million, a one-time avoidance of capital outlay costs of between $450 million and $550 million, and a net annual saving of $40 million to the combined counties. IMPACT OF YES OR NO VOTE A YES vote means: Adult non-violent drug possession offenders - including parolees - must be placed on probation and entered into a drug treatment program, as long as sale, production, or the manufacturing of drugs is not included in the offense. A NO vote means: the state can continue to send Adult non-violent drug possession offenders to jail or prison. At the same time judges may continue to divert offenders to treatment through systems already in place. SUPPORTERS SAY
OPPONENTS SAY
SUPPORT AND OPPOSITION The official ballot arguments in favor are signed by Peter Banys, President, California Society of Addiction Medicine; Richard Polanco, Majority Leader of California State Senate; Kay McVay, President, California Nurses Association. The official ballot arguments in opposition are signed by John T. Schwarzlose, President, Betty Ford Center; Alan M. Crogan, President, Chief Probation Officers of California; Thomas J. Orloff, President, California District Attorneys Association. For more information: Supporters: California Campaign for New Drug Policies, 310-394-2952;
Web site www.drugreform.org Opponents: Californians United Against Drug Abuse/Sponsored by Law Enforcement, Drug Treatment Professionals, Healthcare, Crime Victims and Taxpayers-No on 36. 800-995-3221; Web site www.noonprop36.com
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