Did Prop 47 Doom Drug Diversions?

Drug courts relied on the hammer of a felony to get defendants into drug treatment programs, where success meant dismissal of the charges. Will some defendants now simply plead guilty to a misdemeanor, opting for a short stay in the county jail instead?

In November 2014, California voters approved Proposition 47, the "Reduced Penalties for Some Crimes" initiative (also known as the Safe Neighborhoods and Schools Act). The initiative reduced most nonserious and nonviolent property and drug crimes from felonies to misdemeanors.

Known informally as "Prop 47," the initiative was supported by a variety of politicians, community organizations, and law enforcement agencies, and passed by nearly 60% of the public vote. The legislation seeks to address a number of issues plaguing the criminal justice system, primarily the vast overcrowding of California’s jails and prisons.

Among other things, the legislation fundamentally alters the way the state must now handle nonviolent drug possession cases, and has the potential to have a tremendous impact on the rehabilitation and recovery programs currently available to eligible offenders.

What is Proposition 47?

Prop 47 reclassifies (from a felony to a misdemeanor) offenses involving the personal use of most illegal drugs, as well as shoplifting, grand theft, receiving stolen property, forgery, fraud, and writing a bad check (for the property and fraud crimes, the value of stolen material must be less than $950).

The legislation is retroactive, allowing those who have completely served their sentences (including any post-release supervision) to ask the sentencing court to designate their felony conviction as a misdemeanor -- no matter how old the conviction. And, for those defendants currently serving a jail or prison sentence (or for someone on parole, probation or community supervision), the initiative allows them to ask the court to recall the sentence and resentence them as misdemeanants.

As to the latter group, above, before reduction can take place, a sentencing court must evaluate a defendant’s criminal history and risk of reoffending, in order to assess whether the person poses a public threat if released. It does not provide relief for defendants with prior convictions for murder, rape, or certain sex or gun offenses.

The revenue saved by the initiative’s implementation (estimated at $150 to $250 million) will be distributed in part to educational, mental health, and substance abuse programs.

For more details on Proposition 47, see Resentencing Under California's Proposition 47.

California's Drug Diversion System

Prior to the enactment of Proposition 47, a possession of illegal drugs for personal use case was prosecuted either as a misdemeanor or felony, depending on the type and amount of the drug involved. If the person met certain qualifying conditions (depending on circumstances of the offense and background of the offender), he or she could be eligible for participation in a diversion program.

California drug courts (there are over 220 in the state) offer an alternative to criminal prosecution and incarceration for nonviolent drug offenses. Existing since the 1990s, drug courts have traditionally been used to place substance-abusing offenders in specialized treatment programs. California Penal Code section 1000 provides for a deferred entry of judgment, which means that a sentencing court will postpone an entry of judgment until the offender completes a qualified drug program. If the program is completed successfully, the charge is dismissed in its entirety. In a similar vein, Proposition 36 (passed by California’s voters in 2000) mandates that certain offenders—including those convicted of drug possession—will serve time in a drug treatment program, as opposed to in a jail or prison. If the individual successfully completes the treatment program, he or she can petition to have the conviction dismissed.

Drug courts have long been lauded as a cheaper and more effective way for courts to address the issue of addiction. The program uses a collaborative approach among offenders, the court, attorneys, and treatment staff. Successful drug court programs reduce criminal recidivism and increase a participant’s likelihood of rehabilitation, because there's a serious consequence to refusal or failure: the alternative to a drug treatment program is incarceration and a resulting felony record. As a result, offenders have a very real and immediate incentive to participate in and complete the treatment program. Drug treatment programs provide the structure and accountability necessary to overcome addiction, under the constant threat of legal sanction.

The Effect of Proposition 47 on Drug Diversion Cases

With drug possession reclassified as a misdemeanor, the maximum possible punishment is a year in jail (and the reality is that most offenders will be released after serving far less time than that, if any time at all). However, empirical evidence demonstrates that drug treatment programs are most successful when the participant commits to it for at least nine to twelve full months. This time period provides the structure and accountability required for the addict to recover, as well as time to learn the skills necessary to become a productive member of society.

The majority of offenders eligible for a drug diversion program will also be the offenders eligible for Proposition 47 relief. While the court system still can, and will, refer drug possession offenders to these types of treatment programs, their attendance is not compulsory and there is no judicial consequence for failing to complete treatment or refusing it altogether. With incentives to avoid extensive jail or prison time as well as a felony on one’s record both gone, the motivation to accept treatment (and ongoing monitoring and judicial scrutiny) may go with it.

Despite the fact that the legislation has been in existence for about only a few months as of this writing, drug courts across the state are already seeing it have a tremendous impact. For example, in San Diego County in the first few weeks after the proposition went into effect, almost every offender whose crimes were reduced to misdemeanors pursuant to Proposition 47 relief plead guilty(rather than participating in a drug diversion program and attending treatment). In Solano county in February 2015, drug court participation dropped by 35%; in San Bernardino, attendancehas dropped to 59% of pre-47 levels.

Some drug courts are now considering the possibility of restructuring their programs, aiming their services at alternative populations such as addicts charged with felonies not eligible for misdemeanor reductions.

The fear of many analysts and practitioners is that Proposition 47 will create a revolving door to the judicial system—individuals who escape both incarceration and treatment are more likely to reoffend. Drug use rarely exists in a vacuum. Addicts often engage in other illegal behavior—minor crimes such as petty theft as well as major crimes like armed robbery—in order to financially support their habit. Without the kind of intervention that drug court provides, the potential for more serious crimes to be committed by non-incarcerated addicts increases.

It is too soon to tell what the long-lasting impact of Proposition 47 will be, but a restructure of the drug diversion system’s traditional approach of providing services to addicted offenders is certainly inevitable. Revenue generated by the initiative is to be directed in large part to substance abuse treatment, but the question remains—what will actually convince people to accept treatment?

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