Drug Diversion Program Participation and Prop 47

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Drug Diversion Program Participation and Prop 47

A few months ago a newspaper article about the Los Angeles Police Department gave an interesting insight into the controversy about how Prop 47 has changed the day-to-day procedures of police departments.  

Prop 47 Changes Felonies to Misdemeanors

With the passage of Prop 47, certain felonies, such as drug possession, became misdemeanors instead. This promised to save money by putting drug users into treatment programs instead of locking them up.

The newspaper article reported that two LAPD officers detained a homeless man. The man had set up an encampment under a local freeway underpass. After the man was handcuffed, one officer watched him while the other carefully rummaged through the man’s belonging, including a grimy mattress he supposedly used to sleep on. The officer’s search discovered two needles plus a glass pipe still filled with a small amount of methamphetamine. Before the passage of Prop 47, this homeless man would be facing a felony charge and been arrested and taken to jail.

Now that Prop 47 is the law in California, the officer just gave the man an admonishment to try and stay out of trouble. Then the officers drove off, leaving the man to his under-freeway homeless encampment. Although they could have issued a citation, these types of citations are usually disregarded by recipients as well as law enforcement since they don’t involve jail time or other significant consequences. Before Prop 47, possession of even small amounts of drugs were charged with felonies and/or a sentence to enter a drug diversion program.

Law Enforcement and Attitudes Toward Prop 47

Practically speaking, this common attitude about minor narcotics possession is held in the county by law enforcement. Officers state that people found with larger amounts of drugs are still charged as vigorously as they’ve been in the past. In Los Angeles, arrests for narcotics have dropped by 30%, and 48% in other areas the LAPD patrol. Police officers busy with other calls tend to decide it’s not worth the time spent to process minor narcotics cases.

There is a lot of criticism about this. Even people who are strongly for Prop 47 realize some offenders who are now just facing misdemeanor charges will choose to go to jail rather than make a commitment to enter a drug diversion program.

Drug offenders realize that since 1988 early jail release has been a common practice since a federal judge permitted inmates to be released early as a temporary solution to the problem of jail overcrowding. The result of this is that many inmates only serve approximately 10% of their time before being freed. So, by choosing jail over committing to a drug diversion program they are almost assured of being released early and therefore not having to deal with a drug treatment program.

Law enforcement officials believe they’ve lost their ability to deal with drug offenders, many of whom steal in order to support their drug habits. An investigation by the LA Times in 2006 discovered almost 16,000 drug offenders were rearrested due to committing new offenses during the time period of their sentences, if they had not been released early. To support this viewpoint, offenders released early have contributed to a noticeable increase in property crime rates since Prop 47 was passed.

Although it may be debatable as far as how much of this increased crime rate can be attributable directly to drug addicts, this is a frequently used arguments by Prop 47 critics.  

Diversion Drug System in California and Prop 47

Drug addicts themselves even admit Prop 47’s new laws permit troubled individual to steal and injure themselves with little if any consequence. One of the concerns is that people who are now issued misdemeanor citations instead of felony citations are missing the opportunity to treat their drug addictions in order to turn their lives around. Prior to Prop 47 there was the possibility of redemption for drug addicts through California’s Drug Diversion System, which is administered by what is known as “Drug Courts.”

Drug Courts and Prop 47

For a long time prior to Prop 47 it was felt that drug courts were a cheaper and more effective alternative than prison sentences for people struggling with drug addition and who are facing felony charges. When it came to most offenders, if was felt that participation in some type of drug diversion program was a more desirable option instead of jail and a felony record.

With over 220 drug courts in California, they offer non-violent drug offenders with an alternative to jail and criminal prosecution. Since the 1990’s, these courts have traditionally placed substance abusers in specialized drug treatment programs.

Before Prop 47 was voted into law, possessing illegal drugs for personal use case was either prosecuted as misdemeanor or a felony, which depended on the type of drug involved and its amount. Based on the offense circumstances and the person’s background, if they met certain conditions they could qualify to be eligible to participate in a drug diversion program.

It’s recognized that drug courts are a cheaper and effective way of addressing the issue of addition by the courts. They are successful because they use a collaborative approach where law enforcement, public defenders, judges, prosecutors, probation officers, and providers of drug treatment programs work together to identify addicts involved in the justice system to address what their needs are using intense treatment in order to make sure they comply using rigorous monitoring as well as supervision.

It’s been shown that successful drug court treatment programs have reduced criminal recidivism and increased the likelihood of rehabilitation for the participant. The refusal or failure has the serious consequence of jail time and a felony record. Because of this, drug offenders have the immediate incentive to participate and complete the offered drug treatment program. These types of programs provide structure and accountability, plus the constant threat of legal sanction, that drug addicts need to overcome their addiction.

Prop 47’s Effect on Drug Diversion Cases

While drug courts have been proven to be effective, they are not used as often since drug addicts have discovered that under Prop 47 their drug possession charges are now misdemeanors instead of felonies. Since drug possession has been reclassified as misdemeanors, the maximum punishment possible is a year behind bars, although most offenders are released before serving their time, if they server any time at all, due to jail overcrowding.

Therefore, most drug possession offenders don’t have much to lose by choosing jail time over a drug treatment program. Most of the offenders are still eligible for drug treatment programs, and they are also eligible for relief under Prop 47. The court system can, and will, still refer drug offenders to treatment programs, but their attendance is not compulsory and there are legal consequence if they fail to complete the treatment or refuse it altogether. Without the incentive to try and avoid extensive time in jail or prison, plus having a felony record, there isn’t much motivation to accept the option of a drug treatment program, with the judicial scrutiny and monitoring that goes with it.

A good example of the decreasing participation trend for the state’s drug treatment diversion programs under Prop 47 is the Orange County’s drug court. Before the passage of Prop 47, between 50-80 applications were made every month for Orange County drug court. Within a few months after it’s passage, applications dropped to about 12 application. Similarly, admission in Los Angeles County dropped 50%.

Even though Prop 47 legislation has only existed for about nine months, the state’s drug courts continue to see a tremendous impact. A few weeks after it went into effect in San Diego County, just about every drug offender whose charges were reduced from felonies to misdemeanors pleaded guilty rather than opting to participate in drug treatment programs. In February, 2015, Solano County drug court participation dropped 35%, and San Bernardino dropped to 59% compared to the levels they were before Prop 47.

Considering these drops in participation, some drug courts have been considering the idea of restructuring their programs to focus on services to alternative populations like addicts with felonies who aren’t eligible to have their charges reduced to misdemeanors.

Many analysis and practitioners are afraid that Prop 47 will create a new class of addicts who evade incarceration as well as treatment, with the result that they will be arrested for further, and perhaps more violent, offenses. These individuals are representative of the high probability that they’ll be involved in ongoing criminal behavior in order to facilitate their drug addiction. Addicts frequently engage in illegal behavior and crimes such as petty theft, major crimes such as armed robbery, and even murder, to financially support their drug habit.

Without drug intervention programs and treatments that drug courts provides, the potential for the commission of more serious crimes exist as addicts who don’t go to jail or has reduced sentences due to overcrowding increases.

Sevens Legal, APC
Criminal Defense Attorneys
3555 4th Ave.
San Diego, CA 92103
Phone: (619) 297-2800

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