There are many in law enforcement who claim that Proposition 47 reshapes criminal law to allow for drug addicts who commit crimes, outside of being in possession or under the influence of a controlled substance, to receive reduced sentences. While it does allow for reduced sentences for thefts under $950 committed by nonviolent offenders the law applies equally regardless of whether the person is a drug addict or not. The primary point of contention is that Proposition 47 makes the possession of controlled substances for personal use misdemeanors and not felonies. While many law enforcement officials and others believe this. It is important to distinguish fact from fiction as to what Proposition 47 does and does not do.
For instance, the Alliance for a Safer California, not only alleges that the Proposition allows for drug addicts to get away with their crimes, but it also claims that it undermines addicts attempts to maintain their sobriety, stating Prop 47 will seriously harm efforts to help drug-addicted criminals get sober. The National Association of Drug Court Professionals (NADCP), the nation’s leading organization working to help criminal addicts break the cycle of drug abuse, strongly opposed Prop 47. The NADCP warned that “Proposition 47 provides for virtually no accountability, supervision or treatment for addicted offeenders…Proposition 47 removes the legal incentive for seriously addicted offenders to seek treatment…Proposition 47 turns a blind eye to over two decades of research and practice that demonstrates addicted offenders need structure and accountability in addition to treatment to become sober…”[i]
While the NADCP claims that Proposition 47 provides for virtually no accountability, supervision or treatment for addicted offenders and removes their ‘legal incentive’ to receive treatment, it fails to state the one thing that the Proposition does, which is to reduce possession of an illegal controlled substance from a felony to a misdemeanor. The arguments regarding the supervision and legal incentive are carefully worded, as all they mean is that the law will allow non-violent offenders who pose no risk to their communities to be treated more like drug addicts with health problems and less like criminals. Of course, the “no risk” is a crap shoot, but that is what we pay judges and attorneys for. To battle out who fits and who does not.
The NADCP makes no mention of the court-mandated treatment programs that are already in place, and have allowed first-time and repeat drug offenders to obtain some treatment instead of jail time. These provisions include Penal Code Section 1000, which allows for diversion for first-time offenders charged with any drug offense, including simple possession (possession for personal use under certain amounts) of an illegal controlled substance.[ii] Penal Code Section 1000 allows for a deferred entry of judgment to be made for 18 months. Offenders must not be convicted of another crime during that time and must complete a class. Those who complete the program may come back to court after 18 months to have the charges against them dismissed. Those who complete the Penal Code Section 1000 Deferred Entry of Judgment program will have no record of a conviction.
California has also had mandated rehabilitation in place since Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, passed by California voters in the 2000 election.[iii] Referred to simply as “Prop. 36” by prosecutors and criminal defense attorneys alike, the program allows for those charged with misdemeanor offenses, such as possession of drug paraphernalia (like a meth pipe or syringes), or being under the influence of a control substance, to obtain some form of rehabilitation in lieu of being sentenced to jail for their offenses. And it allows for multiple violations of its probationary terms while they try to complete the program. Want to see a bored or frustrated prosecutor? Watch them in drug court.
Like Proposition 47, Proposition 36 exempts violent criminals from its coverage. It exempts:
Defendants who have been incarcerated within the last five years for a serious or violent felony offense.
Defendants convicted in the same proceeding of a non-drug related misdemeanor or felony.
Defendants who, during the commission of the offense, were in possession of a firearm and, at the same time, were either in possession of or under the influence of cocaine, heroin, methamphetamine or phencyclidine (PCP).
Defendants who refuse treatment.
Defendants who have two separate drug-related convictions, and have participated in Prop 36 twice before, and who are found by the court by clear and convincing evidence to be unamenable to any and all forms of available drug treatment. In such cases the defendant shall be sentenced to 30 days in jail.[iv]
Unfortunately, the type of treatment that Proposition 36 provides is insufficient to address the severity of many addicts’ addictions. Typically over a third of people provided with rehabilitation never show up for treatment, and only around a third, or less, of initial participants complete the program.[v] Most, come back to court after ‘dirty’ tests. These offenders may commit two such offenses and stay in the program, but after the third, they are terminated from the program and a sentence for the initial offense may be imposed.[vi]
Based upon the concerns of some of our friends we will be back again tomorrow with a Part 3 in which I address some of the concerns expressed by a former colleague and take a look at how certain circles are using Proposition 47 for propaganda purposes. We will also take a look at Prop. 47’s biggest flaw: the unexplainable change in the standards for theft of a firearm.