ONE STEP AT A TIME: REFORMING DRUG DIVERSION PROGRAMS IN CALIFORNIA

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13 Chap. L. Rev. 417 (No PDF)

Chapman Law Review

Winter 2010

Comment

ONE STEP AT A TIME: REFORMING DRUG DIVERSION PROGRAMS IN CALIFORNIA

Megan N. Krebbeks [tippy title=”*” header=”off”]J.D. Candidate 2010, Chapman University School of Law; B.A. 2007, University of Rochester. I would like to thank my parents, John and Barbara Krebbeks, for their constant love and support and my fellow Senior Articles Editors of the Chapman Law Review for their tireless efforts and endless hours of work.[/tippy]

Copyright (c) 2010 Chapman Law Review; Megan N. Krebbeks

Introduction

In 1972, California allowed nonviolent drug offenders to complete treatment and rehabilitation as a substitute for jail time. [tippy title=”1″ header=”off”]Mehgan Porter, Comment, Proposition 36: Ignoring Amenability and Avoiding Accountability, 21 BYU J. Pub. L. 531, 533 (2007).[/tippy] Since then, California has expanded its drug diversion programs [tippy title=”2″ header=”off”]Drug diversion programs divert a drug offender from prison and place him into a treatment program. California Campaign for New Drug Policies, Drug Courts/Deferred Entry and Proposition 36, Nov. 2000, http://www.drugreform.org/prop36/pdf/drugcourts.pdf.[/tippy] in a couple of ways. [tippy title=”3″ header=”off”]California expanded drug diversion programs with the creation of adult drug courts in 1991. California Department of Alcohol and Drug Programs, Fact Sheet: Drug Court Programs, Apr. 2009, available at http://www.adp.ca.gov/FactSheets/DrugCourtPrograms.pdf [hereinafter Fact Sheet: Drug Court Programs]. In 2000, California further expanded drug diversion programs with the passage of the Substance Abuse and Crime Prevention Act of 2000 (Proposition 36). Cal. Penal Code §1210 (Deering 2008).[/tippy] Recently, Californians had an opportunity to expand and improve drug diversion programs by voting in favor of the Nonviolent Offender Rehabilitation Act (hereinafter “Proposition 5”). [tippy title=”4″ header=”off”]The Nonviolent Offender Rehabilitation Act of 2008 appears on the California ballot on the November 2008 election as “Proposition 5.” See generally Proposition 5: Official Title and Summary, available at http://voterguide.sos.ca.gov/past/2008/general/analysis/pdf/prop5-analysis.pdf#analysis [hereinafter Proposition 5 Voter Information Guide] (providing an overview, analysis and full text of Proposition 5).[/tippy] Proposition 5 sought to build upon the foundation laid by the Substance Abuse and Crime Prevention Act of 2000 (hereinafter “Proposition 36”) and also further improve and fund drug diversion programs in California. [tippy title=”5″ header=”off”]Proposition 5, Text of Proposed Laws 86, available at http://voterguide.sos.ca.gov/past/2008/general/text-proposed-laws/text-of-proposed-laws.pdf [hereinafter Text of Proposition 5].[/tippy]

While the existing diversion programs are generally successful, the programs need help to further treatment goals and alleviate the state’s current budgetary and prison population crises. [tippy title=”6″ header=”off”]Id. at 87.[/tippy] Proposition 5 would have helped solve some of these issues. However, on November 4th, Californians voted against Proposition 5 which, for the time being, leaves drug diversion programs in California struggling until new legislation is enacted to solve the current problems. [tippy title=”7″ header=”off”]Statement of Vote: November 4, 2008, General Election, available at http://www.sos.ca.gov/elections/sov/2008_general/sov_complete.pdf.[/tippy] In order for drug diversion to continue to aid California in alleviating prison overpopulation and the budget crisis, California needs legislation much like Proposition 5 that will restructure and adequately fund drug diversion programs, saving money and allowing California to focus on truly dangerous criminals.

Beginning with a general history of drug diversion in the United States, Part I puts this issue in a historical and national context as it delves into how and why drug diversion evolved in the 1960s. It also touches upon the roots of California’s drug diversion programs and introduces the three current programs at work in the California criminal justice system.

Part II describes in detail each drug diversion program currently operating in California. These programs are: Proposition 36, drug court, and deferred entry of judgment. The differences between the three programs are illuminated to enhance the understanding of the drug diversion system in California.

Part III examines the successes and failures of the current drug diversion system. It focuses on Proposition 36 because it encompasses more defendants and resources than drug court and deferred entry of judgment. Part III also discusses areas where the current system needs improvement.

After describing and discussing the current drug diversion system, Part IV introduces the latest effort to reform and update the drug diversion programs in California. It begins with a background of Proposition 5 and describes the changes that Proposition 5 would make to the current programs. Part V then discusses how Proposition 5 could have improved the current diversion programs, mainly through increased funding and organization. Finally, this comment offers a few suggestions explaining why Proposition 5 failed to garner enough support at the polls and proposes how similar legislation could pass in the future.

I. Background

A. History of Drug Diversion Programs in the United States

In 1962, the landmark case of Robinson v. California prompted a change in the United States judicial system’s approach to drug addicted offenders. [tippy title=”8″ header=”off”]Robinson v. California, 370 U.S. 660 (1962).[/tippy] In Robinson, the Supreme Court struck down a California statute which made the status of drug addiction a criminal offense. [tippy title=”9″ header=”off”]Id. at 667.[/tippy] The majority opinion noted that the statute “[was] not one which punishes a person for the use of narcotics, for their purchase, sale or possession . . . [r]ather, we deal with a statute which makes the ‘status’ of narcotic addiction a criminal offense.” [tippy title=”10″ header=”off”]Id. at 666.[/tippy] Building upon this, the court analogized penalizing drug addiction to criminalizing a person’s disease, which would essentially be cruel and unusual punishment under the Eighth and Fourteenth Amendments. [tippy title=”11″ header=”off”]Id.[/tippy] Justice Douglas noted in his concurrence that the statute’s purpose was “not to cure, but to penalize.” [tippy title=”12″ header=”off”]Id. at 676 (Douglas, J., concurring).[/tippy] Robinson helped prove that drug addiction was a disease requiring treatment and not deserving of punishment. [tippy title=”13″ header=”off”]James L. Nolan, Jr., Reinventing Justice: The American Drug Court Movement 35 (2001).[/tippy] In 1966, Congress followed the judiciary’s lead by passing the Narcotic Addict Rehabilitation Act of 1966, [tippy title=”14″ header=”off”]42 U.S.C. §3401 (2006) (establishing the Congressional policy that narcotic addicts should be rehabilitated and returned to society rather than prosecuted).[/tippy] giving courts the authority to sentence drug addicts who violated Federal criminal laws to treatment programs as an alternative to imprisonment. [tippy title=”15″ header=”off”]Nolan, supra note 13, at 35.[/tippy] These two events paved the way for states to handle drug offenders in ways other than incarceration.

B. California’s History With Drug Diversion

After Congress enacted the Narcotic Addict Rehabilitation Act, [tippy title=”16″ header=”off”]42 U.S.C. §3401.[/tippy] California began its foray into drug diversion programs with the codification of sections 1000-1000.4 of the California Penal Code in 1972. [tippy title=”17″ header=”off”]Porter, supra note 1.[/tippy] The court in People v. Superior Court (On Tai Ho) explained that sections 1000-1000.4 “authorize[d] the courts to ‘divert’ from the normal criminal process persons who are formally charged with first-time possession of drugs, have not yet gone to trial, and are found to be suitable for treatment and rehabilitation at the local level.” [tippy title=”18″ header=”off”]People v. Superior Court (On Tai Ho), 520 P.2d 405, 407 (Cal. 1974). The court further stated:
The purpose of such legislation, which has recently been adopted with variations in several of our sister states, is two-fold. First, diversion permits the courts to identify the experimental or tentative user before he becomes deeply involved with drugs, to show him the error of his ways by prompt exposure to educational and counseling programs in his own community, and to restore him to productive citizenship without the lasting stigma of a criminal conviction. Second, reliance on this quick and inexpensive method of disposition, when appropriate, reduces the clogging of the criminal justice system by drug abuse prosecutions and thus enables the courts to devote their limited time and resources to cases requiring full criminal processing.
Id.[/tippy] Sections 1000-1000.4 eventually became known as Deferred Entry of Judgment, [tippy title=”19″ header=”off”]Cal. Penal Code §1000.1 (West 2008) (requiring that in a deferred entry of judgment case, the defendant pleads guilty to the charges and, pending successful completion of a drug treatment program, the charges against the defendant are dismissed).[/tippy] (“DEJ”), when the California legislature amended sections 1000-1000.4 in 1997. [tippy title=”20″ header=”off”]People v. Davis, 93 Cal.Rptr. 2d 905, 907 (Cal. Ct. App. 2000).[/tippy]

Building upon the seeds planted by DEJ, California began its first adult drug court [tippy title=”21″ header=”off”]See California Department of Alcohol and Drug Programs and the Judicial Council of California, Drug Court Partnership Act of 1998 Final Report at 8, Mar. 2002, http://www.adp.ca.gov/DrugCourts/pdf/DCP_FinalReport_March2002.pdf for a definition of drug courts:
Drug courts are a specially designed court calendar, the purposes of which are to achieve a reduction in recidivism and substance abuse among offenders and to increase their likelihood of successful return to the community through early, judicially supervised treatment, mandatory periodic drug testing, and use of appropriate sanctions and other continuous rehabilitation services.[/tippy] program in Alameda County in 1991. [tippy title=”22″ header=”off”]Fact Sheet: Drug Court Programs, supra note 3.[/tippy] By 1996, drug related crimes continued to plague California at an even greater level as California’s rate of incarceration for drug offenses climbed to the highest in the nation at 134 per 100,000 prisoners. [tippy title=”23″ header=”off”]Peter Banys, California Society of Addiction Medicine, Recommendations for Improvements to Proposition 36, at 3 (2007) (presentation for the Little Hoover Commission on Aug. 23, 2007), http://www.csam-asam.org/pdf/misc/Prop36-LDC-2007.pdf (stating that California’s drug incarcerations increased by more than 250 percent during a ten year span from 1986 to 1996).[/tippy] Although California had a program in place to deal with nonviolent drug offenders, [tippy title=”24″ header=”off”]Prior to drug courts, DEJ was the only drug diversion program in California.[/tippy] the amount of offenders overwhelmed the system and California needed an answer. [tippy title=”25″ header=”off”]Banys, supra note 23, at 3 (noting that in 1999, 52.9 percent of new drug imprisonments in California were for possession rather than sale or manufacture).[/tippy] In response to the growing problem, Californians approved Proposition 36 in November of 2000. [tippy title=”26″ header=”off”]42 U.S.C. §1210 (2006); Banys, supra note 23, at 3 (noting that California voters passed Proposition 36 by a vote of 61 percent to 39 percent).[/tippy] Together, DEJ, drug court, and Proposition 36 have provided options for many drug offenders who may otherwise have faced incarceration. In order to more fully understand the current structure of California’s drug diversion programs, an introduction to DEJ, drug court, and Proposition 36 follows.

II. Drug Diversion Programs in California

A. Deferred Entry of Judgment

DEJ allows a nonviolent drug offender to avoid a sentence imposing jail time. [tippy title=”27″ header=”off”]Cal. Penal Code §1000(a) (West 2008) (including offenses eligible for DEJ: use, possession, or under the influence of a controlled substance, unlawful possession of paraphernalia used for unlawfully injecting or smoking a controlled substance, unauthorized possession of marijuana, and unlawfully being present in an area where controlled substances are being used with knowledge of its occurrence).[/tippy] In a DEJ case, the defendant pleads guilty to the charges, waives time for the pronouncement of the judgment, [tippy title=”28″ header=”off”]When a defendant waives time for the pronouncement of the judgment, sentencing is essentially delayed until the defendant completes a drug treatment program; or, if the defendant does not complete the drug treatment program, judgment would be entered upon his failure to do so.[/tippy] and, pending successful completion of a drug treatment program, the sentence will not be imposed and the court will dismiss the charges. [tippy title=”29″ header=”off”]Cal. Penal Code §1000.1(3) (West 2008) (requiring that the drug treatment program must last at least eighteen months).[/tippy] However, if the defendant does not complete the treatment program, or the court deems the defendant no longer suitable for DEJ, the court will enter judgment and sentencing will proceed as normal. [tippy title=”30″ header=”off”]Cal. Penal Code §1000.3 (West 2008) (stating that a defendant would be deemed no longer suitable for participation in DEJ if he was performing unsatisfactorily, not benefiting from treatment, or the defendant had been convicted of a misdemeanor showcasing his propensity for violence).[/tippy] Before a court may grant DEJ, the defendant must fulfill certain eligibility requirements. [tippy title=”31″ header=”off”]Cal. Penal Code §1000(a) (West 2008).[/tippy]

First, the defendant’s offense must fall into the listed charges in section 1000(a). [tippy title=”32″ header=”off”]Id. The violations that are eligible for DEJ are: sections 11350, 11357, 11364, 11365, 11377, as well as 11550 of the Health and Safety Code, section 23222(b) of the Vehicle Code, section 11358 of the Health and Safety Code if the marijuana is for personal use, section 11368 of the Health and Safety Code if the drug was procured by a fake prescription and is for the personal use of defendant, section 653(f)(d) of the Penal Code if the solicitation was for acts directed to personal use only, section 381 and 647(f) of the Penal Code if for being under the influence of a controlled substance, and section 4060 of the Business and Professions Code. Id.[/tippy] The defendant must then satisfy six additional requirements making him eligible for DEJ. [tippy title=”33″ header=”off”]Cal. Penal Code §1000(a)(1)-(6) (Deering 2008).[/tippy] These requirements include: 1) that the defendant has no conviction for an offense involving drugs prior to the charged offense; 2) that the charged offense was nonviolent; 3) that there was no violation relating to drugs other than a violation of section 1000; 4) that the defendant has never had probation or parole revoked without completion; 5) that the defendant has not completed or been terminated from diversion or DEJ within five years of the charged offense; and 6) that the defendant has no prior felony conviction within five years of the charged offense. [tippy title=”34″ header=”off”]Id.[/tippy] These requirements severely limit the pool of eligible defendants for participation in DEJ.

Perhaps the most important of these requirements is contained in section 1000(a)(1)–that the defendant has no prior conviction for any offense involving controlled substances. [tippy title=”35″ header=”off”]Cal. Penal Code §1000(a)(1) (Deering 2008).[/tippy] This provision bars all criminals with a drug history other than a first time offender from participation in DEJ. Although eligibility for DEJ requires the satisfaction of many requirements, there are tangible and important benefits to the program. Primarily, that the charges can be dismissed and the arrest expunged from the defendant’s record. [tippy title=”36″ header=”off”]Cal. Penal Code §1000.4(a) (Deering 2008).[/tippy]

B. Drug Courts

The first drug court in California welcomed clients [tippy title=”37″ header=”off”]Offenders in drug court are routinely referred to as clients, rather than defendants or offenders. This trend reflects the overall ideology of drug court as a therapeutic and ameliorative program, rather than one based simply in punitive measures.[/tippy] in 1991. [tippy title=”38″ header=”off”]Fact Sheet: Drug Court Programs, supra note 3.[/tippy] In a drug court, “[T]he emphasis shifts away from placing blame and administering appropriate punishment, toward identifying the underlying causes of the offending behavior, and working to address those causes through treatment.” [tippy title=”39″ header=”off”]Sara Steen, West Coast Drug Courts: Getting Offenders Morally Involved in the Criminal Justice Process, in Drug Courts: In Theory and In Practice 51, 54 (James L. Nolan, Jr. ed., 2002).[/tippy] Rather than serving jail time, an offender in drug court participates in a court-monitored treatment program. [tippy title=”40″ header=”off”]Nolan, supra note 13, at 39.[/tippy] A defendant’s opportunity to participate in a drug court depends on the existence of a drug court within the county in which he committed his crime. [tippy title=”41″ header=”off”]Fact Sheet: Drug Court Programs, supra note 3 (reporting that in April of 2009 all but five counties in California had an adult drug court; counties without drug courts are: Alpine, Colusa, Imperial, Mono, and Trinity).[/tippy] Counties are not required to have drug court programs; rather, section 1000.5 of the California Penal Code grants the authority to the presiding judge of a superior court to establish a drug court program. [tippy title=”42″ header=”off”]Cal. Penal Code §1000.5(a) (Deering 2008).[/tippy] Each county’s drug court is run according to standards set by the presiding judge in the county, or a judge appointed by the presiding judge, along with the district attorney and public defender. [tippy title=”43″ header=”off”]Id.[/tippy] For example, in Los Angeles County the standards require that the defendant have no prior convictions involving violence or the sale, manufacturing, or trafficking of drugs. [tippy title=”44″ header=”off”]Standards & Practices, Los Angeles County Drug Court Program, May 23, 2006.[/tippy] County drug programs also typically have a mission statement that outlines the goals and hopes of the program in rehabilitating its participants. [tippy title=”45″ header=”off”]The Los Angeles County Drug Court Program’s mission statement is:
The mission of the Los Angeles County Drug Court Programs is to provide the non-violent substance abuse defendant who recognizes his/her problem and voluntarily chooses to enter into a contract with a court-supervised treatment program and participate in all phases of treatment an opportunity to improve his/her quality of life and possibly further benefit by the reduction and/or dismissal of criminal charges.
Id.[/tippy]

Drug courts in California use several different models, one of which is the pre-plea model of diversion. [tippy title=”46″ header=”off”]Fact Sheet: Drug Court Programs, supra note 3.[/tippy] When a defendant is arrested and charged with a nonviolent drug offense, and drug court is an available option, a defendant must be deemed suitable for participation in drug court through an intake interview done by a member of the drug court team. [tippy title=”47″ header=”off”]Glade F. Roper & James E. Lessenger, Drug Court Organization and Operations, in Drug Courts: A New Approach to Treatment and Rehabilitation 284, 290-91 (James E. Lessenger & Glade F. Roper eds., 2007).[/tippy] If the defendant is found suitable, it is ultimately the defendant’s choice if he wants to opt into the drug court program as opposed to enduring the traditional punishment. [tippy title=”48″ header=”off”]Steen, supra note 39, at 51-52.[/tippy] In court, the defendant does not enter a plea of guilty, and criminal proceedings are suspended pending successful completion of drug court. [tippy title=”49″ header=”off”]Cal. Penal Code §1000.5(a) (Deering 2008).[/tippy] A drug court program typically consists of:

[A] regimen of graduated sanctions and rewards, individual and group therapy, urine analysis testing commensurate with treatment needs, close court monitoring and supervision of progress, educational or vocational counseling as appropriate, and other requirements as agreed to by the presiding judge or his or her designee, the district attorney, and the public defender. [tippy title=”50″ header=”off”]Id.[/tippy]

If the defendant satisfactorily completes the drug court program, the criminal charges will be dismissed and the arrest will be deemed to have never occurred. [tippy title=”51″ header=”off”]Cal. Penal Code §1000.5(b) (Deering 2008).[/tippy] However, if the court finds that the defendant is not performing satisfactorily, or has subsequently engaged in or been convicted of certain types of criminal conduct, the court will then reinstate the criminal charges. [tippy title=”52″ header=”off”]Id.[/tippy]

C. Proposition 36

Proposition 36 is California’s most recent drug diversion program. [tippy title=”53″ header=”off”]Cal. Penal Code §1210 (Deering 2008).[/tippy] Arising in response to issues with the existing diversion programs, [tippy title=”54″ header=”off”]The problem with the existing system was that there was a lack of legislation requiring the diversion of a defendant from jail and into a treatment program. Porter, supra note 1, at 534.[/tippy] the California legislature enacted Proposition 36. [tippy title=”55″ header=”off”]Id. See also Gregory A. Forest, Comment, Proposition 36 Eligibility: Are Courts and Prosecutors Following or Frustrating the Will of Voters?, 36 McGeorge L. Rev. 627, 639-40 & nn.109-10 (2005) (discussing how Proposition 36 requires an offender eligible for Proposition 36 treatment be given probation, not be sent to prison).[/tippy] Section 1210.1 requires “any person convicted of a nonviolent drug possession offense [to] receive probation.” [tippy title=”56″ header=”off”]Cal. Penal Code §1210.1(a) (Deering 2008).[/tippy] As a condition and requirement of probation, the defendant must complete a drug treatment program. [tippy title=”57″ header=”off”]Id.[/tippy] A key difference between previous diversion programs and Proposition 36 is the point in the judicial process at which the defendant is assigned to a treatment program. [tippy title=”58″ header=”off”]Cal. Penal Code §1000 (Deering 2008) (stating that a defendant enters DEJ after a guilty plea); §1000.5(a) (stating that a defendant enters drug court before entering a plea); §1210.1(a) (stating that a defendant enters a treatment program after conviction).[/tippy] Unlike DEJ and drug court, Proposition 36 participants enter a treatment program post-conviction. [tippy title=”59″ header=”off”]Cal. Penal Code §1210.1(a) (Deering 2008).[/tippy]

A defendant eligible for Proposition 36 has a conviction for a nonviolent drug possession offense. [tippy title=”60″ header=”off”]Id.[/tippy] As defined by the California Penal Code, a nonviolent drug possession offense is

the unlawful personal use, possession for personal use, or transportation for personal use of any controlled substance identified in [Sections 11054-58] of the Health and Safety Code, or the offense of being under the influence of a controlled substance in violation of Section 11550 of the Health and Safety Code. The term ‘nonviolent drug possession offense’ does not include the possession for sale, production, or manufacturing of any controlled substance. [tippy title=”61″ header=”off”]Cal. Penal Code §1210(a) (Deering 2008). The court in People v. Goldberg noted that “[t]he manifest purpose behind Proposition 36 was to divert into treatment those persons whose only offenses were nonviolent drug possession offenses.” People v. Goldberg, 105 Cal. App. 4th 1202, 1208 (Cal. Ct. App. 2003).[/tippy]

In addition to the conviction, the defendant must fulfill certain prerequisites specified by Penal Code section 1210.1. [tippy title=”62″ header=”off”]Cal. Penal Code §1210.1(b)(1)-(5) (Deering 2008) (specifying that in order to qualify for Proposition 36, a defendant may not fall under the following categories: (1)defendants who were previously convicted of one or more violent felonies, unless the non-violent drug possession occurred after a period of five years in which the defendant was free of prison custody and the commission of the felony, or a misdemeanor conviction involving physical injury or the threat of physical injury to another; (2) defendants who are convicted of a non-drug related misdemeanor in the same proceeding as the non-violent drug possession offense; (3)defendants who were armed with a deadly weapon, with the intent to use the deadly weapon, while in possession of or under the influence of a controlled substance; (4) defendants who refuse drug treatment as a condition of probation; (5) defendants who have two separate convictions for non-violent drug possession offenses and have participated in two separate courses of drug treatment and have been found by the court to be unamenable to treatment).[/tippy]

Upon successful completion of the drug treatment program and compliance with the terms of the defendant’s probation, the court dismisses the indictment, and the arrest and conviction are deemed to have never occurred. [tippy title=”63″ header=”off”]Cal. Penal Code §1210.1(e)(1) (Deering 2008).[/tippy] Defendants essentially have three chances at getting their case dismissed, as section 1210.1(f)(3)(C) provides three opportunities for a defendant to complete the requirements of Proposition 36. [tippy title=”64″ header=”off”]Cal. Penal Code §1210.1(f)(3)(C) (Deering 2008).[/tippy] If the defendant fails to complete a drug treatment program or comply with probation, the probation can be modified or revoked and the defendant will be incarcerated according to his conviction. [tippy title=”65″ header=”off”]Cal. Penal Code §1210.1(f)(1) (Deering 2008).[/tippy]

III. Advantages and Disadvantages of the Status Quo

A. Success of the Current Drug Diversion System

Proposition 36 and drug courts provide the majority of the statistics for evaluating the success of drug diversion programs in California. Because DEJ is limited to a small amount of offenders due to its statutory requirements, [tippy title=”66″ header=”off”]See supra note 33 and accompanying text.[/tippy] it does not affect as many drug offenders as Proposition 36 and drug courts, and consequently will not be analyzed to the same extent as the aforementioned programs. In its sixth year of operation (July 2006-June 2007), approximately 34,702 offenders were placed in Proposition 36 treatment. [tippy title=”67″ header=”off”]UCLA Integrated Substance Abuse Programs, Evaluation of Proposition 36: The Substance Abuse and Crime Prevention Act of 2000 Report 19 (2008), http://www.adp.cahwnet.gov/SACPA/PDF/2008_Final_Report.pdf [hereinafter UCLA Report 2008].[/tippy] Estimates place drug court populations between 3,000 and 4,000 people. [tippy title=”68″ header=”off”]Drug Policy Alliance, Comparing Dug Courts and Prop. 36 1 http://www.prop36.org/pdf/summary_comparison.pdf (last visited Jan. 11, 2008). Because there is a lack of statewide data on drug courts, the drug court population can only be estimated. Id. See also Banys, supra note 23, at 4 (noting that drug courts in California handle only about 3 percent of at-risk offenders).[/tippy]

Proposition 36 treats the largest amount of nonviolent drug offenders in California. [tippy title=”69″ header=”off”]In 2006-2007, 48,996 offenders were referred to Proposition 36, 41,925 offenders were assessed, and 34,702 offenders were placed into treatment. UCLA Report 2008, supra note 67, at 19.[/tippy] Due to its size, Proposition 36 has the ability to make the most significant impact upon the California budget and criminal justice system. Since Proposition 36 passed in 2000 and came into effect in 2001, the drug possession prison population in California prisons has fallen. [tippy title=”70″ header=”off”]Scott Ehlers & Jason Ziedenberg, Justice Policy Institute, Proposition 36: Five Years Later 4 (2006), http://www.csam-asam.org/pdf/misc/Prop36-fiveyearslater.pdf (noting that the number of drug offenders in California prisons went from 19,736 in December of 2000 to 14,325 in December of 2005).[/tippy] Not only has Proposition 36 decreased the drug possession prison population, Proposition 36 also stunted the overall prison population growth in California. [tippy title=”71″ header=”off”]Id. at 8.[/tippy] Before the passage of Proposition 36, the California Department of Corrections projected that the prison population would reach 180,000 by June of 2005. [tippy title=”72″ header=”off”]Id.[/tippy] In June 2005, four years after the implementation of Proposition 36, the prison population was just over 164,000, and ended the year at 166,000, well below the projected 180,000. [tippy title=”73″ header=”off”]Id.[/tippy] While Proposition 36 reduced prison populations during its first few years of existence, it also had a hand in reducing violent crimes in California. [tippy title=”74″ header=”off”]Id. at 14.[/tippy] Between 2000 and 2004, the violent crime rate in California dropped 11.2 percent. [tippy title=”75″ header=”off”]Id. (noting that violent crime rate drop in California exceeded the national violent crime rate drop by 3 percent).[/tippy] The effect of Proposition 36 on California’s prisons and crime rates cannot go unnoticed.

Proposition 36 has also resulted in a number of financial benefits to California since its inception. [tippy title=”76″ header=”off”]UCLA Report 2008, supra note 67, at 218, 223, 227.[/tippy] By reducing the amount of prisoners in the prison system, Proposition 36 saved California over $350 million in the past eight years. [tippy title=”77″ header=”off”]Ehlers & Ziedenberg, supra note 70, at 24 (estimating based on the assumptions that the offenders diverted from prison would have served the average prison sentence for drug possession, 1.48 years, at the cost of incarceration for a single inmate in the year of 2005).[/tippy] Along with the savings from a decreased amount of prison admissions, California has been able to put off the costly venture of constructing new prisons. [tippy title=”78″ header=”off”]Id. at 25.[/tippy] The California Legislative Analyst’s Office noted in February of 1999 that:

[T]he state will run out of bed space by as soon as 2001 and would need additional space for as many as 27,000 inmates by June 30, 2004. That is the equivalent of five to six state-operated prisons carrying a one-time construction cost of $1.6 billion and annual ongoing operational costs of more than $500 million. [tippy title=”79″ header=”off”]Id. (citing the California Legislative Analyst’s Office, Feb. 16, 1999).[/tippy]

California has constructed only one prison since the passage of Proposition 36, and that prison received approval prior to Proposition 36. [tippy title=”80″ header=”off”]Id. (noting that only one prison has been built since the passage of Proposition 36, the Kern Valley State Prison, which had been approved for construction prior to the passage of Proposition 36).[/tippy]

Along with saving state money in terms of prisons and the amount of prisoners, Proposition 36 saves money for California based on participants in the program. [tippy title=”81″ header=”off”]UCLA Report 2008, supra note 67, at 225-27.[/tippy] For each dollar allocated to Proposition 36, the program generates two dollars of savings. [tippy title=”82″ header=”off”]Id. at 225.[/tippy] In addition, for each offender who completes Proposition 36 treatment, the state saves $5,836, approximately four dollars for every one dollar spent. [tippy title=”83″ header=”off”]Id. at 227 (noting that much of the savings originate from avoiding incarceration costs).[/tippy] Furthermore, Proposition 36 saves California money even when an offender does not enter treatment, or fails to complete it. [tippy title=”84″ header=”off”]Id.[/tippy] Offenders referred to Proposition 36 but who do not enter treatment save approximately $4,037, [tippy title=”85″ header=”off”]Id.[/tippy] and offenders who fail to complete Proposition 36 treatment save approximately $1,792. [tippy title=”86″ header=”off”]Id.[/tippy] Simply comparing the costs of drug treatment compared to the cost of incarceration proves the money-saving achievements of Proposition 36. Currently, the average yearly cost per inmate in a California prison is $49,000. [tippy title=”87″ header=”off”]California Department of Corrections and Rehabilitation, Fourth Quarter 2008 Facts and Figures, http://www.cdcr.ca.gov/Divisions_Boards/Adult_Operations/Facts_and_Figures.html (last visited Jan. 19, 2010) (reporting that with a prison population of 171,085, the cost of incarceration for all prisoners is over $10 billion) [hereinafter Facts and Figures].[/tippy] The average cost for a drug treatment program ranges from $1,800 to $6,800 per client. [tippy title=”88″ header=”off”]Drug Courts/Deferred Entry and Proposition 36, supra note 2.[/tippy]

Proposition 36 also provides benefits to both the state and its participants as participants in Proposition 36 receive valuable education and information for changing their addictive behaviors and recovering from drug addiction. [tippy title=”89″ header=”off”]See Hundreds of Prop 36 Graduates Form Chain of Recovery at State Capitol, Celebrate Program’s Success, Prop36.org, Apr. 18, 2007, http://www.prop36.org/pr041807.html.[/tippy] The California Society of Addiction Medicine found that “nearly three out of four clients entering [Proposition] 36 treatment make substantial progress and reach positive outcomes.” [tippy title=”90″ header=”off”]Proposition 36 Revisited, 30 Cal. Soc’y of Addiction Med. 1 (Spring 2005), http://www.csam-asam.org/pdf/misc/Spring2005.pdf (noting that while some offenders may not complete treatment, they receive what is called a “standard dose” of treatment, meaning that they spend the same amount of time in treatment as those who complete treatment).[/tippy] 34.4 percent of offenders complete Proposition 36 treatment with positive results. [tippy title=”91″ header=”off”]Id.[/tippy] As of April 2007, over 70,000 offenders have graduated from Proposition 36 treatment. [tippy title=”92″ header=”off”]Prop36.org, supra note 89. See also Dave Fratello, Jail Won’t Cure Drug Users, L.A. Times, July 17, 2006, at B11 (acknowledging that Proposition 36 not only saves money, but also saves lives).[/tippy] Graduates of Proposition 36 often credit the program with changing and saving their lives. [tippy title=”93″ header=”off”]Substance Abuse and Crime Prevention Act of 2000, Success Stories, http://www.prop36.org/successStories_TammyB.php (last visited Nov. 16, 2009) (reporting that a graduate of Proposition 36 wrote that Proposition 36 allowed her “to become a parent again, a daughter, a sister, an aunt, a cousin, a neighbor”).[/tippy]

While Proposition 36 has successfully treated a large group of substance abuse offenders, drug courts have also found success, albeit with a smaller proportion of drug offenders. [tippy title=”94″ header=”off”]See Proposition 36 Revisited, supra note 90.[/tippy] Drug courts have a completion rate of 55 percent statewide, [tippy title=”95″ header=”off”]Id. See also California Department of Alcohol and Drug Programs, Comprehensive Drug Court Implementation Act of 1999, Final Report to the Legislature March 2005 9 (2005), http://www.adp.cahwnet.gov/DrugCourts/pdf/CDCI_FinalReportToLegislature_March2005.pdf (reporting that in June 2004, of the 6,966 adult offenders who exited the drug court program for the previous year, 3,849 successfully completed drug court treatment).[/tippy] but also deal with a significantly smaller portion of nonviolent drug offenders as compared to Proposition 36. [tippy title=”96″ header=”off”]See supra note 68 and accompanying text. See also Banys, supra note 23, at 4 (noting that drug courts in California handle only about 3 percent of at-risk offenders).[/tippy] While drug courts serve a small amount of offenders, they are still capable of saving significant amounts of taxpayer dollars. [tippy title=”97″ header=”off”]Drug Courts/Deferred Entry and Proposition 36, supra note 2.[/tippy] One year in jail for a single offender costs $49,000, [tippy title=”98″ header=”off”]Facts and Figures, supra note 87.[/tippy] while the cost of a full drug treatment program averages $3,000 per client. [tippy title=”99″ header=”off”]C. West Huddleston, III, Douglas B. Marlowe, & Rachel Casebolt, National Drug Court Institute, Painting the Current Picture: A National Report Card on Drug Courts and Other Problem-Solving Court Programs in the United States, at 8 (May 2008) [hereinafter Painting the Current Picture] available at http://www.ndci.org/publications.html.[/tippy] Over the long term, drug courts save California an average of $11,000 per client. [tippy title=”100″ header=”off”]Id.[/tippy] In total, drug courts save California over $18 million dollars per year, proving that money spent on drug courts is a sound investment. [tippy title=”101″ header=”off”]See Caitlin Liu, Drug Courts Worth the Cost, Report Says, L.A. Times, Apr. 16, 2003, at B3.[/tippy]

B. Where the Current System Needs Improvement

In spite of the successes of the current drug diversion programs, [tippy title=”102″ header=”off”]These programs are DEJ, Proposition 36, and drug courts.[/tippy] the system is not perfect, and California is still burdened with high prison populations, [tippy title=”103″ header=”off”]The population in California prisons as of the fourth quarter in 2008 was 171,085. Facts and Figures, supra note 87.[/tippy] a budget crisis, [tippy title=”104″ header=”off”]George Skelton, Lavish spending not the culprit, L.A. Times, Dec. 25, 2008, at B1.[/tippy] and a general need for coordination between the current diversion programs. [tippy title=”105″ header=”off”]Currently, deferred entry of judgment, proposition 36, and drug courts are not linked by a statutory law.[/tippy] Funding issues threaten the ability of drug diversion programs to effectively operate and provide valuable services for California. [tippy title=”106″ header=”off”]Banys, supra note 23, at 10.[/tippy] Decreased funding for treatment programs often results in limited treatment options for offenders with varying needs. [tippy title=”107″ header=”off”]Judith Appel, Glenn Backes, & Jeremy Robbins, Drug Policy Alliance, California’s Proposition 36: A Success Rip for Refinement and Replication, 3 Criminology & Pub. Pol’y 585, 589 (2004), available at http://www.drugpolicy.org/docUploads/CPP410_Appel_1st.pdf.[/tippy]

When Proposition 36 became law, funding provisions accompanied it in the form of the Substance Abuse Treatment Trust Fund. [tippy title=”108″ header=”off”]Highlights of Proposition 36, (Feb. 20, 2001), http://www.courtinfo.ca.gov/programs/drugcourts/documents/highlights.pdf.[/tippy] The trust fund provided for an initial $60 million for the fiscal year of 2000-2001 and $120 million for the following years ending in 2005-2006. [tippy title=”109″ header=”off”]Id.[/tippy] After the end of the 2005-2006 fiscal year, re-funding Proposition 36 proved to be a contentious issue in the California legislature. [tippy title=”110″ header=”off”]Proposition 36 Revisited, supra note 90.[/tippy] Supporters of Proposition 36 fought for a budget increase but were defeated. [tippy title=”111″ header=”off”]Porter, supra note 1, at 551 & n.114 (discussing the failure of Senate Bill 1137 which would have added $25 million to Proposition 36 funds).[/tippy] Funding for Proposition 36 remained at $120 million. [tippy title=”112″ header=”off”]Id.[/tippy] In 2006-2007, although requests for increased funding were made, Governor Schwarzenegger threatened to reduce funding to the original amount of funding, $60 million. [tippy title=”113″ header=”off”]Prop36.org, About Prop 36, http://www.prop36.org/about.html (last visited Nov. 16, 2009).[/tippy] Through the Offender Treatment Program, [tippy title=”114″ header=”off”]The Offender Treatment Program was established in 2006-2007 to enhance the Substance Abuse and Crime Prevention Act. Substance Abuse and Crime Prevention Act (SACPA), California Department of Alcohol and Drug Programs, http://www.adp.state.ca.us/SACPA/index.shtml (last visited Nov. 16, 2009).[/tippy] an additional $20 million was available for 2006-2007, but only for counties with the ability to match the funds. [tippy title=”115″ header=”off”]Banys, supra note 23, at 10.[/tippy] While funding for Proposition 36 has remained essentially the same throughout its existence, [tippy title=”116″ header=”off”]About Prop 36, supra note 113.[/tippy] the demonstrated need for more funding cannot be ignored. [tippy title=”117″ header=”off”]A UCLA study on Proposition 36 estimated that the minimum amount of necessary funding was $230 million, while a survey of counties revealed that the actual need was $270 million. Banys, supra note 23, at 10.[/tippy] Since the enactment of Proposition 36, purchasing power has decreased 25 percent due to inflation; simply stated, $120 million dollars will not buy the same treatment as it bought in 2001. [tippy title=”118″ header=”off”]Id. See also NORA and Treatment, Drug Policy Alliance Network, http://www.prop5yes.com/wp/wp-content/uploads/fact-sheets/nora-treatment.pdf (last visited January 22, 2010) (noting that funding is not adequate for the 35,000 clients who enter Proposition 36 each year).[/tippy]

Another area where Proposition 36 could use help lies with a group of defendants who are particularly difficult to treat. [tippy title=”119″ header=”off”]These types of defendants are those who refuse treatment, those who do not show up to treatment, and those who are inherently at more of a risk than the average defendant. Banys, supra note 23, at 8.[/tippy] These defendants, identified by the term “criminal recidivists,” [tippy title=”120″ header=”off”]Id.[/tippy] should be handled differently by Proposition 36 as compared to the average Proposition 36 participant. Criminal recidivists are those defendants with five or more convictions in the past thirty months. [tippy title=”121″ header=”off”]Id.[/tippy] Using up ten times the resources as the average defendant, criminal recidivists place an undue burden on the system. [tippy title=”122″ header=”off”]See id.[/tippy] While only a small portion of Proposition 36 defendants are criminal recidivists, [tippy title=”123″ header=”off”]Id.[/tippy] the amount of valuable resources consumed by recidivists is a waste. These defendants need to be handled differently as they pose unique and different challenges to the Proposition 36 system. [tippy title=”124″ header=”off”]One suggestion that seems prudent is to place the criminal recidivists directly into a drug court rather than into Proposition 36 treatment. Id. at 8-9.[/tippy]

While the success of the current drug diversion system cannot be diminished, it is important to recognize that improvements can always be made and as California changes, the drug diversion system must change along with it. Motivated by a need for greater organization and improved funding, the Nonviolent Offender Rehabilitation Act, also known as Proposition 5, was introduced to take Proposition 36, DEJ, and drug courts to the next level.

IV. The Nonviolent Offender Rehabilitation Act of 2008

A. Background of Proposition 5

The three drug diversion programs in California have never functioned together in a coordinated effort to alleviate substance abuse. [tippy title=”125″ header=”off”]Id. at 2, 4. See supra note 120 and accompanying text.[/tippy] The Nonviolent Offender Rehabilitation Act of 2008, [tippy title=”126″ header=”off”]The Nonviolent Offender Rehabilitation Act of 2008 appears on the California ballot on the November 4th 2008 election as “Proposition 5.” See Text of Proposition 5, supra note 5, at 86.[/tippy] sought to fluidly combine the three existing drug diversion programs in California for the first time. [tippy title=”127″ header=”off”]See id.[/tippy] Proposition 5 was meant to be a “major reorientation of state policies to provide greater rehabilitation, accountability and treatment options for youth, nonviolent offenders and nonviolent prisoners and parolees.” [tippy title=”128″ header=”off”]Id.[/tippy] While DEJ, Proposition 36, and drug courts would have remained a part of Proposition 5 in practice, Proposition 5 sought to bring the programs together and create guidelines and standards that would universally apply and create a system in which drug offenders could seamlessly transfer from one program to another. [tippy title=”129″ header=”off”]Proposition 5 Voter Information Guide, supra note 4.[/tippy]

Proposition 5 created a three-track system designed to provide clarity in determining eligibility and appropriateness in terms of treatment level. [tippy title=”130″ header=”off”]Id. (reporting that Track I is the lowest level of treatment and oversight while Track III comprises the highest level of treatment and oversight).[/tippy] The three tracks sought to “expand the types of offenders who are eligible for diversion, and expand and intensify the services provided to offenders mainly by increasing the funding available to pay for them.” [tippy title=”131″ header=”off”]Id.[/tippy] In addition to revamping the drug diversion programs, Proposition 5 sought to introduce funding provisions designed to better support drug diversion and rehabilitation programs in California. [tippy title=”132″ header=”off”]Id.[/tippy]

Funding for the three drug diversion programs in California exist independent of each other. [tippy title=”133″ header=”off”]DEJ, Proposition 36, and drug courts all received their funding through different sources. Id.[/tippy] Proposition 36 received its funding from the Substance Abuse and Crime Prevention Act. [tippy title=”134″ header=”off”]Cal. Health & Safety Code §11999.4 (Deering 2009) (stating that The Substance Abuse Treatment Trust Fund was established to carry out the purpose of Proposition 36).[/tippy] Defendants in DEJ often paid for their own treatment programs, [tippy title=”135″ header=”off”]Proposition 5 Voter Information Guide, supra note 4.[/tippy] and drug courts relied on funding from the state independent of any Proposition 36 funds. [tippy title=”136″ header=”off”]Drug Courts are funded through the California Department of Alcohol and Drug Programs and any county appropriations. California Department of Alcohol and Drug Programs, Laws & Regulations: California Drug Courts, http://www.adp.ca.gov/DrugCourts/laws.shtml (last visited Jan. 25, 2010).[/tippy] This often resulted in all three programs being underfunded. [tippy title=”137″ header=”off”]See supra note 106 and accompanying text.[/tippy] Proposition 5 sought to improve the funding of drug diversion programs through annually allocating $460,000,000 to improve and expand treatment programs. [tippy title=”138″ header=”off”]Proposition 5 Voter Information Guide, supra note 4.[/tippy] In terms of division amongst the three tracks, 15 percent of the funds were apportioned to Track I, 60 percent to Track II, and 10 percent to Track III. [tippy title=”139″ header=”off”]Text of Proposition 5, supra note 5, at 103.[/tippy]

Track I of Proposition 5 essentially resembled DEJ. [tippy title=”140″ header=”off”]The title of Track I is “Treatment Diversion with Deferred Entry of Judgment.” Id. at 90.[/tippy] Eligible offenders for Track I were those charged with a nonviolent drug possession offense. [tippy title=”141″ header=”off”]Id. at 90-91.[/tippy] Offenders with a current or prior conviction for a violent or serious felony, an offender with a prior conviction for any felony within the past five years, or an offender charged with a non-drug related offense in conjunction with the nonviolent drug possession offense would have been excluded from Track I. [tippy title=”142″ header=”off”]Id. at 91. Although a judge has the discretion to allow an ineligible offender to participate in Track I, if the only reason for ineligibility is that the offender has a concurrent charge for another offense, the court may determine that it is in the interest of the defendant and in the furtherance of justice to permit deferred entry of judgment.[/tippy] However, unlike DEJ where a defendant is ineligible if he has a prior conviction for any offense involving controlled substances, [tippy title=”143″ header=”off”]Cal. Penal Code §1000(a)(1) (Deering 2008).[/tippy] a defendant was eligible for Track I if he had one prior conviction for a nonviolent drug possession offense. [tippy title=”144″ header=”off”]Text of Proposition 5, supra note 5, at 91.[/tippy] Similar to DEJ, the defendant’s participation in Track I was designed to last approximately six to eighteen months, [tippy title=”145″ header=”off”]Id.[/tippy] and after successful completion of the treatment program the criminal charges would be dismissed and the case records and files permanently sealed. [tippy title=”146″ header=”off”]Id.[/tippy] If a defendant failed to begin treatment in Track I, judgment would be entered and the defendant would then be transferred to Track II treatment. [tippy title=”147″ header=”off”]Id.[/tippy]

Track II treatment was similar to Proposition 36. [tippy title=”148″ header=”off”]Like Proposition 36, Track II is the middle level of treatment and oversight. Id. at 86.[/tippy] Under the eligibility requirements of Track II, a defendant is convicted of a nonviolent drug possession offense and sentenced to treatment and probation. [tippy title=”149″ header=”off”]Id. at 92.[/tippy] Defendants considered ineligible are those with previous convictions for a violent and serious crime, [tippy title=”150″ header=”off”]Id. (stating that unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction other than a nonviolent drug possession offense, or a misdemeanor conviction involving physical injury or the threat of physical injury to another person).[/tippy] those in possession of certain drugs while armed with a deadly weapon, [tippy title=”151″ header=”off”]Id.[/tippy] those with five or more convictions for any types of offenses in the prior thirty months, [tippy title=”152″ header=”off”]Id. (stating that a defendant ineligible for Track II solely on this basis will be eligible for Track III treatment diversion).[/tippy] a defendant convicted of other felonies or misdemeanors at the same time as a new drug charge, [tippy title=”153″ header=”off”]Id. (stating that with respect to a misdemeanor conviction, a judge may allow an offender to participate in Track II treatment diversion).[/tippy] a defendant with two separate convictions for nonviolent drug possession offenses and participation in two separate courses of drug treatment and is found by the court to be unamenable to any and all forms of drug treatment, [tippy title=”154″ header=”off”]Id. (requiring the court to find this by clear and convincing proof).[/tippy] and a defendant who refuses drug treatment as a condition of probation. [tippy title=”155″ header=”off”]Id.[/tippy] If a defendant’s probation is terminated due to the failure to begin treatment, the defendant could be transferred to Track III treatment at the discretion of the court. [tippy title=”156″ header=”off”]Id.[/tippy] A defendant’s probation under Track II can also be revoked due to the commission of a new crime that is not a nonviolent drug possession offense or by violating a non-drug related condition of probation. [tippy title=”157″ header=”off”]Id. at 93.[/tippy] The court then has the discretion of sentencing the defendant to Track III diversion treatment or to incarceration in county jail for no longer than one year. [tippy title=”158″ header=”off”]Id.[/tippy]

However, if the defendant violates probation by committing a nonviolent drug possession offense or a misdemeanor for simple possession or the use of drugs or drug paraphernalia, the court will conduct a hearing to determine whether probation should be revoked. [tippy title=”159″ header=”off”]Id.[/tippy] The court should only revoke probation in situations where the alleged violation is proven and the state can prove by a preponderance of the evidence that the defendant poses a danger to others. [tippy title=”160″ header=”off”]Id.[/tippy] If the court does not revoke probation, it can either intensify or change the drug treatment plan and also impose a graduated sanction. [tippy title=”161″ header=”off”]Id.[/tippy] Similar to Proposition 36, [tippy title=”162″ header=”off”]Cal. Penal Code §1210.1(f)(3) (Deering 2008) (allowing a defendant essentially three opportunities under Proposition 36 to get his case dismissed).[/tippy] a defendant has a few chances under Track II to complete drug treatment before termination from the program. [tippy title=”163″ header=”off”]Text of Proposition 5, supra note 5, at 94.[/tippy] If a defendant has for the second or third time potentially violated probation, the court will hold a hearing to determine whether probation should be revoked. [tippy title=”164″ header=”off”]Id.[/tippy]

The most intense and supervised program in Proposition 5 was Track III. [tippy title=”165″ header=”off”]Id. at 95.[/tippy] Track III brought drug courts into the statutory scheme of Proposition 5. [tippy title=”166″ header=”off”]Id. at 100.[/tippy] Proposition 5 sought to “strengthen California’s drug courts by adequately funding those courts, permitting those courts to fashion their own eligibility criteria and operating procedures, and holding them accountable by requiring those courts, for the first time, to systematically collect and report data regarding their budgets, expenditures, and treatment outcomes.” [tippy title=”167″ header=”off”]Id. at 88.[/tippy] Defendants eligible for Track III were offenders who committed a nonviolent drug possession offense but were ineligible for Track II, a defendant who participated unsuccessfully in Track II, or a defendant who committed a nonviolent offense and appeared to have a serious problem with substance abuse or addiction. [tippy title=”168″ header=”off”]Id. at 95.[/tippy] Proposition 5 increased the funding of drug courts to nearly double the current amount. [tippy title=”169″ header=”off”]The current funding for drug courts is approximately $24 million and through Proposition 5, that amount will increase to $45 million. NORA and Drug Courts, Yes on Proposition 5 the Nonviolent Offender and Rehabilitation Act, http://www.prop5yes.com/wp/wp-content/uploads/fact-sheet/nora-drug-courts.pdf.[/tippy] This would have provided the adequate funding that drug courts require to function properly.

Along with creating the three-track system, Proposition 5 also included provisions that would have changed parole rules. [tippy title=”170″ header=”off”]Proposition 5 Voter Information Guide, supra note 4, at 33.[/tippy] Proposition 5 sought to make changes to state parole programs including new limits on parole terms and new rules for the revocation of parole violators. [tippy title=”171″ header=”off”]Id.[/tippy] Proposition 5 would have reduced the amount of parole for some offenders to six months, [tippy title=”172″ header=”off”]Offenders who would receive a reduced parole term include those whose most recent term in prison was for a drug or nonviolent property crime and no serious, violent, gang, or sex crimes on his record. Id.[/tippy] and increased parole terms for an offender whose most recent term in prison was for a violent or serious felony. [tippy title=”173″ header=”off”]Parole would be increased from 3 to 5 years for these offenders. Id.[/tippy] Along with different parole terms, Proposition 5 would have created a Parole Reform Oversight and Accountability Board to set state parole policies and to direct rehabilitation programs. [tippy title=”174″ header=”off”]Id. at 34.[/tippy] Proposition 5 thus enveloped two areas of change for the California criminal justice system–diversion programs and parole reforms. [tippy title=”175″ header=”off”]Id. at 30.[/tippy]

B. How Proposition 5 Could Have Improved the Status Quo

Had Proposition 5 passed, the drug diversion system in California would have changed for the better. First, Proposition 5 would have brought all three drug diversion programs under one umbrella. [tippy title=”176″ header=”off”]Text of Proposition 5, supra note 5, at 87.[/tippy] The significance of this would have been that instead of failing out of DEJ or Proposition 36, a defendant could simply be transferred to a higher level of treatment. This would correct the criminal recidivist issue with Proposition 36. [tippy title=”177″ header=”off”]Banys, supra note 23, at 4.[/tippy] In section 17(f)(6) of the proposed text of Proposition 5 a defendant is ineligible for Track II treatment if that defendant, in the previous 30 months, has five or more convictions for any offense. [tippy title=”178″ header=”off”]Text of Proposition 5, supra note 5, at 92.[/tippy] These defendants, the criminal recidivists who plagued Proposition 36 with their excessive consumption of funds, [tippy title=”179″ header=”off”]See Banys, supra note 23, at 8.[/tippy] would be immediately eligible for Track III treatment. [tippy title=”180″ header=”off”]Text of Proposition 5, supra note 5, at 92.[/tippy] This provision would identify at-risk defendants and appropriately place them in a higher and more intensive level of treatment.

Proposition 5 also sought to properly fund drug diversion programs. [tippy title=”181″ header=”off”]Id. at 101.[/tippy] As previously discussed, drug diversion programs cannot function at their most efficient level unless there is adequate funding. [tippy title=”182″ header=”off”]See Banys, supra note 23, at 10.[/tippy] Since the initial funding for Proposition 36 expired in 2006, [tippy title=”183″ header=”off”]Highlights of Proposition 36, supra note 108, at 3.[/tippy] requests for increases in funding have been denied, much to the detriment of the program. [tippy title=”184″ header=”off”]About Prop 36, supra note 113.[/tippy] While Proposition 5 allocated $460,000,000 to improve and expand treatment programs, it could have also saved California over $1 billion. [tippy title=”185″ header=”off”]Proposition 5 Voter Information Guide, supra note 4 at 30.[/tippy] Proposition 5’s funding provisions could also increase access to drug treatment programs. In DEJ, defendants often are required to pay for their own treatment and this excluded many who could not afford the funds for treatment. [tippy title=”186″ header=”off”]NORA 5 and Treatment, supra note 118.[/tippy] Proposition 5 allocates more funds to Track I and gives access to treatment programs for people who previously could not participate due to financial restrictions. [tippy title=”187″ header=”off”]Id.[/tippy] As Proposition 36 proved to be a worthwhile investment, [tippy title=”188″ header=”off”]See UCLA Report 2008, supra note 67, at 225.[/tippy] it seems that Proposition 5 would also have been a sound investment in terms of the drug diversion programs.

C. What Caused the Failure of Proposition 5?

After Proposition 36 passed by a 61 percent to 39 percent margin in 2000, [tippy title=”189″ header=”off”]Banys, supra note 23, at 3.[/tippy] it may have seemed obvious that an electorate, which had previously supported drug diversion, would show the same support for similar legislation. However, eight years after Proposition 36, Californians proved that theory wrong as Proposition 5 failed to win at the polls. [tippy title=”190″ header=”off”]The results of Proposition 5 were almost the exact opposite of the results for Proposition 36 as Proposition 5 was defeated 59.7 percent to 39.3 percent. Election Results supra note 7. Proposition 36 was passed by 61 percent to 39 percent. Banys, supra note 23, at 3.[/tippy] A variety of reasons may account for Proposition 5’s failure, including anti-Proposition 5 propaganda and voter discomfort with the parole sections of Proposition 5. [tippy title=”191″ header=”off”]See, e.g., Editorial Endorsements 2008, Good intentions, but …, L.A. Times, Sept. 26, 2008, http://articles.latimes.com/2008/sep/26/opinion/ed-5prop26.[/tippy]

The parole sections of Proposition 5 may have been the driving force behind Proposition 5’s failure. Proposition 5 is essentially a double-edged sword for fighting prison overcrowding and budget concerns. On one side is the nonviolent offender rehabilitation portion which seeks to initially keep offenders out of prison. [tippy title=”192″ header=”off”]Proposition 5 Voter Information Guide, supra note 4 at 86.[/tippy] On the other side are the proposed changes to the state parole and probation system. [tippy title=”193″ header=”off”]Id.[/tippy] Because Californians overwhelmingly supported Proposition 36, [tippy title=”194″ header=”off”]See supra note 26 and accompanying text.[/tippy] they may have supported Proposition 5’s drug rehabilitation, if not for the parole provisions.

The parole section may have alienated voters in a couple of ways. First, voters may have been averse to allowing criminals to serve shorter terms of parole. The parole provisions of Proposition 5 would have decreased parole terms for certain offenders. [tippy title=”195″ header=”off”]The offenders who would receive shorter parole terms are offenders whose most recent term in prison was for a nonviolent drug possession or nonviolent property crime and without a serious, violent, gang related, or sex crime on their record. Proposition 5 Voter Information Guide, supra note 4 at 33.[/tippy] Voters also may not have felt comfortable with the “minimum supervision” provisions of Proposition 5. [tippy title=”196″ header=”off”]These provisions provided for parolees to be placed on parole for six months. Id.[/tippy] This may have made voters feel as though parolees would not be adequately monitored and supervised. Along with actual changes to parole terms, voters may have been apprehensive to green-light a piece of legislation that created two new state agencies for parole and treatment oversight. [tippy title=”197″ header=”off”]Proposition 5 sought to create the Treatment Diversion Oversight and Accountability Commission and Parole Reform Oversight and Accountability Board. Text of Proposition 5, supra note 5, at 98, 102.[/tippy] In a year where the budget crisis was at the forefront of almost every citizen’s mind, [tippy title=”198″ header=”off”]See, e.g., Skelton, supra note 104.[/tippy] it was a difficult time to propose the creation of new agencies requiring serious amounts of funding.

Along with the alienating effect of the parole provisions of Proposition 5, the anti-Proposition 5 campaign likely repelled many voters. Many opponents and advertisements against Proposition 5 argued that it was a “drug dealer’s bill of rights” [tippy title=”199″ header=”off”]Jeff Denham, Prop 5: Drug Dealer’s Bill of Rights, Flashreport.org, Oct. 20, 2008, http://www.flashreport.org/featured-columnslibrary0b.php?faID=2008102002091010.[/tippy] and would give criminals a “get-out-of-jail-free” card. [tippy title=”200″ header=”off”]See Proposition 5 Voter Information guide, supra note 4, for a summary of arguments against Proposition 5 and rebuttals to arguments in favor of Proposition 5.[/tippy] Casting Proposition 5 in this light made it appear that Proposition 5 would allow violent criminals and drug dealers to roam free. However, simply reading the text of Proposition 5 shows that these statements are untrue.

The very first, and most important, requirement for participation in the three-track system of Proposition 5 is that the defendant is charged with or convicted of a nonviolent drug possession offense. [tippy title=”201″ header=”off”]Text of Proposition 5, supra note 5, at 89.[/tippy] Proposition 5 defines a nonviolent drug possession offense as “the unlawful personal use, possession for personal use, or transportation for personal use, or being under the influence, of any controlled substance . . . the term nonviolent drug possession offense does not include the possession for sale, transportation for sale, production, or manufacturing of any controlled substance.” [tippy title=”202″ header=”off”]Id.[/tippy] Through its definition of a nonviolent drug possession offense, Proposition 5 clearly excludes drug dealers or offenders who have committed a violent crime. Because most voters likely did not read the actual text of Proposition 5, and voted against it based on the propaganda on television or on websites, the anti-Proposition 5 campaign may have deceived uninformed voters to vote against Proposition 5.

D. Proposition 5 Failed–Now What?

Eight years after Proposition 36 changed the way the criminal justice system dealt with nonviolent drug offenders, California had a chance to further improve and expand the treatment programs that have had over 70,000 success stories. [tippy title=”203″ header=”off”]Hundreds of Prop 36 Graduate, supra note 89.[/tippy] Because voters did not approve Proposition 5, California faces the budget and prison crises without a plan for solving these problems. [tippy title=”204″ header=”off”]Ethan Nadelmann, Prop. 5 vs. the Prison-Industrial Complex, L.A. Times, Nov. 3, 2008, http://www.latimes.com/news/opinion/la-oew-nadelman3-2008nov03,0,3924232.story.[/tippy] While Proposition 36 has had success in diverting nonviolent drug offenders from prisons, Proposition 36 and the other drug diversion programs need improvements in order to function properly and provide benefits to California. Proposition 5 would have made significant progress for the current drug diversion system. [tippy title=”205″ header=”off”]See discussion supra Part IV.B.[/tippy] Even though Proposition 5 failed to pass in November of 2008, the issue cannot be put on the back burner.

Advocates for the reform of the current drug diversion programs in California should continue to propose legislation that brings together Proposition 36, DEJ, and drug courts. This legislation should also seek to better fund the drug diversion programs as they have proven their worth to California’s economy by saving taxpayer’s money. [tippy title=”206″ header=”off”]See discussion supra Part III.A.[/tippy] However, in the future, legislation seeking to reform and improve the drug diversion system should remain separate from efforts to change the parole system. The two-part nature of Proposition 5 likely contributed to its defeat as the parole provisions may have alienated voters who in the past had supported nonviolent offender rehabilitation (through the support of Proposition 36). Proposition 5 may have been an example of legislation attempting to do too much at once. Perhaps separating drug rehabilitation and parole reforms would make it easier for one, or both, types of reforms to pass.

Conclusion

California’s history of drug diversion programs has not been without challenges and hardships. In times of great financial strife, it is even more difficult to convince voters to allocate resources toward rehabilitation programs. However, the diversion programs in California have proven their value and are worthy of improvements and increased funding. In order for voters to approve future reforms, it is imperative to drum up the same support that voters showed for Proposition 36 in 2000. [tippy title=”207″ header=”off”]See supra note 26.[/tippy] This could be accomplished through attempting to pass the nonviolent offender rehabilitation provisions of Proposition 5, without the hindering effects of the parole sections. Like the path toward recovery from substance abuse, progress is made one step at a time, and it would be wise for legislation seeking to reform the diversion programs in California to follow a similar course.