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WHO QUALIFIES
- Q:
What is the full range of offenses covered
by Proposition 36? Who is excluded?
- Q:
What if an offender has been previously
convicted of another crime that would
not fall under the auspices of Prop.
36? Can he still qualify for diversion?
- Q:
Will the passage of Prop. 36 change
drug possession or intent-to-sell laws?
Who determines an offender’s intent
to sell and the amount that indicates
trafficking?
HOW PROP. 36 WORKS
- Q:
What does Prop. 36 "court supervised"
treatment entail?
- Q:
What happens if an offender violates
probation granted under Prop. 36?
- Q:
What options and tools do judges really
have?
DRUG TREATMENT
- Q:
Does California have the capacity now
to offer treatment to all the people
who will qualify under Prop. 36?
- Q:
What are the minimum requirements for
drug treatment facilities under Prop.
36?
- Q:
What counts as "drug treatment"
under Prop. 36?
- Q:
Do additional life-skills and counseling
services qualify as drug treatment?
Are such programs entitled to receive
Prop. 36 funds?
- Q:
Who licenses treatment facilities? What
is the process? Who would a potential
provider contact?
FUNDING
- Q: Who
will allocate Prop.36 funds?
- Q: How
will the funds be allocated?
- Q: Where
will Prop. 36 funds come from? Do these
funds merely replace existing appropriations?
- Q: Is
$120 million per year going to be enough?
Is more money available?
- Q: What
factors might influence the actual expenses
under Prop. 36?
URINE TESTING
- Q:
Why wasn’t funding for urine testing
included in Prop. 36?
- Q:
Will urine testing be required of Prop.
36 offenders? If so, how will it be
paid for?
EVALUATING SUCCESS
OR FAILURE
- Q:
How will the public learn whether Prop.
36 is working? Who is responsible for
collecting data and reporting on progress?
SECOND
YEAR EVALUATION
- Q:
What if an offender is caught before
July 1?
A: Prop. 36 is not
retroactive, and therefore, generally
Prop. 36 will not apply to offenses
before its effective date. However,
the date of conviction or sentencing,
not the date of arrest, determines
a person's eligibility. Therefore,
a person arrested on June 15, 2001,
but convicted or sentenced after July
1, would be eligible for treatment.
Some persons whose offenses predate
the initiative will still be affected
by the new law. See the sections below
on probation and parole violations.
Return to top
WHO QUALIFIES
- Q:
What is the full range of offenses covered
by Proposition 36? Who is excluded?
A: Beginning July
1, 2001, Prop. 36 generally applies
to three classes of people: 1) those
with new convictions for drug possession
or being under the influence, 2) persons
on probation for drug possession or
under-the-influence offenses, and
3) persons on parole with no prior
convictions for a serious or violent
felony.
New convictions: People with
new convictions for drug offenses
qualify for treatment provided that
they are not convicted of sale or
manufacture or any non-drug crimes
at the same time. Offenders are excluded
if they have a prior conviction for
a serious or violent felony (a "strike"),
unless they have served their prison
time and have been out of prison for
five years with no felony convictions
or misdemeanor convictions involving
the threat of violence. Finally, individual
offenders may "opt-out"
of treatment by formally refusing
it, in which case they face sentencing
under pre-existing law.
Persons on probation: Once
Prop. 36 takes effect, its probation-violation
procedures will apply to people previously
convicted of a Prop. 36-qualifying
drug offense, if they violate a condition
of probation deemed to be "drug-related."
In essence, this means that some drug
offenders who would have qualified
for Prop. 36 treatment will get it,
instead of facing jail time, if they
test positive for drug use or violate
other probation conditions. Within
two to three years, this category
of offenders will simply disappear,
once current probation terms expire
and all new drug convictions are being
processed under Prop. 36.
Nonviolent parole violators:
After July 1, 2001, a person on parole
who commits a non-violent drug possession
offense or who violates a drug-related
condition of parole may be eligible
for a treatment regimen in the community,
instead of return to prison. To qualify,
the parolee must have no prior convictions
at any time for a serious or violent
felony. Parole authorities, rather
than the courts, will set monitoring
conditions for these parole violators,
and will punish violations of the
treatment program, up to and including
return to prison for serious or repeat
violators.
Return to top
- Q:
What if an offender has been previously
convicted of another crime that would
not fall under the auspices of Prop.
36? Can he still qualify for diversion?
A: It depends on
the nature of the previous offense
or offenses. As discussed above, any
prior violent or serious felonies
disqualify a person for consideration
for Prop. 36 treatment. The exception
to this rule is when the person has
served the associated prison time
and has been free for five years without
committing a felony or violent misdemeanor.
Other kinds of prior offenses are
not disqualifying when a person comes
before the court for a Prop. 36-eligible
offense.
Finally, one group of persons - nonviolent
parolees - will qualify for Prop.
36 treatment if they violate parole
by using or possessing drugs. The
person need not be on parole for a
Prop. 36 offense. However, the person's
criminal history may not include a
serious or violent felony conviction.
Return to top
- Q:
Does the passage of Prop. 36 change
drug possession or intent-to-sell laws?
Who determines an offender’s intent
to sell and the amount that indicates
trafficking?
A: Prop. 36 does
not directly affect the laws against
drug possession or related crimes.
It only affects the punishment imposed
on persons who meet the criteria for
eligibility for treatment instead
of jail time. Those who qualify are
granted probation and required to
complete a treatment program.
Prop. 36 has no effect on persons
convicted of drug sales, manufacturing,
or possession with intent to sell.
They are excluded from treatment under
the new law.
Neither Prop. 36 nor current law specifically
defines the amounts of drugs that
determine a person's intent to sell
or distribute those substances. Obviously,
very large amounts of drugs will trigger
distribution or "intent-to-sell"
charges. Prosecutors appear to prefer
the flexibility that comes with a
discretionary standard - smaller amounts
of drugs can be charged as possession-with-intent
if there are other circumstances that
indicate a person was involved in
or planning sales of the drugs in
question. The decision is made case-by-case
by the prosecutor examining the facts
of each offense, and certain facts
must be proved to secure a conviction
for possession-with-intent. Prosecutorial
discretion in such cases will not
change under Prop. 36. However, prosecutors
may be less likely to offer plea-bargains
in cases where drug-dealing is alleged
- in such cases, the more serious
charge is more likely to be pursued
instead of permitting a plea to the
lesser offense of possession.
Return to top
HOW PROP. 36 WORKS
- Q:
What does Prop. 36 "court supervised"
treatment entail?
A: Prop. 36 takes
effect when a person has been convicted
of a drug possession or under-the-influence
offense. Instead of ordering jail
time, the judge must place that person
on probation and require completion
of a drug treatment program lasting
up to one year. Many counties will
use treatment professionals to interview
and screen, or "assess,"
each drug offender to match individuals
with treatment programs that are appropriate
to their drug use history and treatment
needs.
The judge may set any range of conditions
of probation to monitor the offender's
progress. These may include regular
check-ins with a probation officer
or court appearances, a requirement
to pay a share of treatment costs,
drug testing and other restrictions
on the person's place of residence,
associations, or lifestyle.
If the offender violates any of the
court's conditions, he or she faces
the risk of having probation violated
or revoked. Otherwise, the treatment
provider selected by the court will
provide regular progress reports through
the required course of treatment.
At the end of the required treatment
regimen, the offender may petition
the court to dismiss the drug charges.
If the court finds that the person
complied with the probation conditions
and that treatment was "successful,"
charges may be dismissed, and the
defendant will be obliged to disclose
the fact that he or she was arrested
only in certain specified circumstances.
Return to top
- Q:
What happens if an offender violates
probation granted under Prop. 36?
A: Prop. 36 defines
two kinds of probation violations:
drug-related violations such as relapse,
and non-drug-related violations. A
person whose violation is not directly
related to drug use - such as failure
to check in with a probation officer,
or defiance of other conditions -
can have probation terminated at once
and can be incarcerated for one to
three years.
For drug-related violations, Prop.
36 spells out a process in which the
consequences vary based on the severity
and number of violations. For the
first violation, the most common consequence
will be that the court will order
the person into a more restrictive
treatment program. If, however, the
court finds that the person is "a
danger to the safety of others,"
that person can have probation revoked
immediately.
Upon a second violation, the court
again has the option of transferring
the offender to a more rigorous treatment
program. But the court may also revoke
probation using a simpler standard
- that the defendant has proved to
be "unamenable to treatment."
If the defendant stays in treatment
after two drug-related violations
have been considered by the court,
and a third violation is proved, the
protections of Prop. 36 disappear,
and the person faces sentencing under
preexisting law, which allows incarceration
for one to three years.
Return to top
- Q:
What options and tools do judges really
have?
A: Judges have a
great deal of flexibility to handle
each drug offender differently under
Prop. 36. The range of treatment options
may vary from county to county, along
with caseloads in each program. The
judge can set any range of probation
conditions, from the relatively modest
requirement that the defendant not
be re-arrested during the probation
period, through the other extreme
- heavy monitoring by the court and
probation department, along with regular
drug testing.
If there is a probation violation,
the judge can respond in several ways.
The judge can impose sanctions, change
the person's required treatment program,
tighten probation conditions, or even
revoke probation and drop the person
out of Prop. 36 treatment entirely.
Defendants who hope to have their
drug charges dismissed will need to
impress the judge with their compliance
with the court's orders, because,
after completing treatment, the defendant
must apply to the sentencing judge
to receive that benefit. This dynamic
enhances the judge's authority with
the offender throughout the course
of treatment.
Return to top
DRUG TREATMENT
- Q:
Does California have the capacity to
offer treatment to all the people who
will qualify under Prop. 36?
A: The law anticipated
the need to add many more treatment
slots. State and county governments
expanded capacity with the funds provided
by Proposition 36.
Return to top
- Q:
What are the minimum requirements for
drug treatment facilities under Prop.
36?
A: Programs must
be "licensed and/or certified"
to receive Prop. 36 funds or defendants
processed under the new law. They
may not be offered within a prison
or jail facility.
Licensing and certification are currently
provided by the state and counties,
as well as private organizations such
as the California Association of Alcoholism
and Drug Abuse Counselors. The state
Department of Alcohol and Drug Programs
may establish uniform state standards,
or local governments could devise
their own standards and require programs
within their reach to meet those standards.
Return to top
- Q:
What counts as "drug treatment"
under Prop. 36?
A: Besides the licensing/certification
requirement, a program may include
one or more of the following: outpatient
treatment, half-way house treatment,
narcotic replacement therapy (such
as methadone and similar substances),
drug education or prevention courses,
detox, or limited inpatient treatment.
These categories can embrace a wide
variety of treatment modalities. Prop.
36 sponsors encourage each county
to maintain a diversity of treatment
services to meet the different kinds
of needs of each community.
Return to top
- Q:
Do additional life-skills and counseling
services qualify as drug treatment?
Are such programs entitled to receive
Prop. 36 funds?
A: Support services
do not qualify as drug treatment by
themselves, though judges may require
defendants to complete literacy training,
vocational training or family counseling
programs in addition to drug treatment.
When required for a Prop. 36 defendant,
these programs may be paid for out
of the funds provided by the initiative.
Return to top
- Q:
Who licenses treatment facilities? What
is the process? Who would a potential
provider contact?
A: The state Department
of Alcohol and Drug Programs currently
licenses drug treatment facilities
and provides certification of certain
kinds of facilities.
In response to Prop. 36, the department
is re-evaluating its licensing and
certification processes, and it may
develop new regulations in the near
future. For this reason, any potential
treatment provider should be directly
in contact with the department: Department
of Alcohol and Drug Programs, 1700
K Street, Sacramento, CA, 95814, (916)
322-2911, fax: (916) 323-0659.
return to top
FUNDING
- Q:
Who will allocate Prop.36 funds?
A: The state Department
of Alcohol and Drug Programs (ADP)
is the lead agency for Prop. 36 implementation,
and therefore it receives the initial
appropriations each year from the
state's General Fund. After the first
$60 million was allocated to prepare
for the first defendants coming into
the system July 1, 2001, an additional
$120 million is appropriated each
year for the next five years.
Return to top
- Q:
How will the funds be allocated?
A: Prop. 36 requires
that ADP use a "fair and equitable
distribution formula" that is
meant to approximate the need for
these funds in each county. ADP must
consider such factors as per capita
arrests for drug possession and drug
treatment caseload. If ADP determines
that a particular county is not adequately
meeting the need for treatment, the
state agency may initiate a direct
contract with a provider to offer
treatment in that county.
return to top
- Q:
Where will Prop. 36 funds come from?
Do these funds merely replace existing
appropriations?
A: Prop. 36 mandates
a direct annual appropriation from
the state's General Fund each year
without reference to the annual budget
process. This means that none of its
funds are subject to legislative or
gubernatorial approval until the measure's
five-and-one-half-year fixed appropriations
expire, concluding with the 2005-2006
fiscal year.
Prop. 36 contains a "non-supplantation"
clause that stipulates that its funds
cannot be used, according to the new
law, "to supplant funds from
any existing fund source or mechanism
currently used to provide substance
abuse treatment." In other words,
these new funds must be added to any
preexisting funds, not used to replace
them. If there are cutbacks in certain
areas of drug treatment services in
a future year, there is a possible
avenue for litigation to restore previous
levels of funding.
Return to top
- Q:
Is $120 million per year enough? Is
more money available?
A: An October 2000
estimate by the RAND Corporation suggested
that between $92 million and $114
million would be needed to pay for
all of the treatment necessitated
by the law.
The new law does permit additional
claims on its funds. Courts and probation
departments may seek reimbursement
for some new costs they incur handling
Prop. 36 defendants. However, it would
be a violation of the intent of Prop.
36 if these costs took precedence
over costs associated with treatment.
Sponsors of Prop. 36 take the position
that five-sixths (83%) of the measure's
$120 million-per-year allocation must
go to providing treatment services,
with the same ratio applied at each
county level.
Return to top
- Q:
What factors might influence the actual
expenses under Prop. 36?
A: The RAND cost
models assume that a quarter or more
of the individuals receiving treatment
would receive the most expensive form
- long-term residential treatment.
As this assumption indicates, choices
made at the county level could greatly
affect the actual costs of Prop. 36.
An unknown amount of the new costs
will be covered by the individuals
required to seek treatment, due to
a provision allowing judges to insist
that offenders who can reasonably
afford to must pay some or all of
their own treatment costs. In its
own evaluation, the Office of the
Legislative Analyst simply estimated
this pay-your-own-way provision would
offset state and county treatment
costs by several million dollars per
year.
Perhaps the greatest factor will be
the actual number of offenders coming
into the system each year. This could
vary from the Legislative Analyst's
projection of 36,000 people per year
for a number of reasons. Prosecutors
might reduce the number of offenders
charged only with drug possession
and therefore eligible for Prop. 36
treatment. A larger than expected
number of first-time felony offenders
or misdemeanor drug possession offenders
might opt for treatment, rather than
refusing treatment and taking the
punishment provided under preexisting
law. The choices made by individual
offenders will naturally affect the
number entering treatment.
Finally, one bill pending in Sacramento
could eliminate the possibility of
any low-level marijuana offenders
being considered for Prop. 36 treatment.
SB 791, by Sen. Bruce McPherson (R-Salinas),
would reduce the offense of possession
less than one ounce of marijuana from
a misdemeanor with a maximum $100
fine to an infraction with a $100
fine for the first two offenses in
any two-year period. Though many such
marijuana offenders are already expected
to refuse Prop. 36 treatment, SB 791
would virtually guarantee this outcome
for all those who possess less than
one ounce. (SB 791 passed on the Senate
floor 23-13 on June 4.)
return to top
URINE TESTING
- Q:
Why wasn’t funding for urine testing
included in Prop. 36?
A: The sponsors of
Prop. 36 believed that urine testing
was too often being substituted for
quality drug treatment within the
criminal justice system. Given current
practices, the sponsors feared that
the new money provided by Prop. 36
would be overwhelmingly directed to
monitoring offenders with urine testing,
rather than being used to build the
treatment infrastructure in California,
as was intended. For this reason,
the $120 million appropriated by Prop.
36 is directed to providing treatment
services and not urine testing.
Return to top
- Q:
Will urine testing be required of Prop.
36 offenders? If so, how will it be
paid for?
A: Judges can order
urine testing of Prop. 36 offenders.
The testing can be required as a condition
of probation. The actual tests could
be conducted by the treatment provider,
probation department, or court staff
- or some mixture of these - depending
on the judge's order.
On April 2, 2001, Gov. Gray Davis
announced the availability of $11.9
million in new federal funds that
would be distributed to counties to
pay for the costs of drug testing
of Prop. 36 offenders, as well as
for some other purposes. Also, pending
now in the legislature is SB 223,
a bill that would add another $18
million per year for additional drug
testing of Prop. 36 offenders. (SB
223 passed on the Senate floor 35-2
on June 6.)
return to top
EVALUATING SUCCESS
OR FAILURE
- Q:
How will the public learn whether Prop.
36 is working? Who is responsible for
collecting data and reporting on progress?
A: Prop. 36 requires
both annual and long-term studies
of its effectiveness. The annual study
will be published by the lead agency
implementing Prop. 36, the Department
of Alcohol and Drug Programs (ADP).
That department contracted with UCLA
through its Integrated Substance Abuse
Project for a long-term Evaluation
of the new law. For more information
see: www.medsch.ucla.edu/som/npi/DARC/sa/prop36/Prop36.htm.
Each year, counties will be required
to report basic data to the state
- the number of Prop. 36 offenders,
the kinds of treatment programs they
enter, and the completion or failure
rates of these offenders. The department
will compile these data into a public
report that will also evaluate the
implementation process, any reduced
social costs attributable to the initiative,
and other impacts or issues.
For more information
on data collection and evaluation,
see: http://www.adp.cahwnet.gov/SACPA/prop36.shtml
(see "Evaluation")
SECOND
YEAR EVALUATION
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