Analysis by the Legislative Analyst

OVERVIEW

This measure changes state law so that certain adult offenders who use or possess illegal drugs would receive drug treatment and supervision in the community, rather than being sent to prison or jail or supervised in the community, generally without drug treatment. The measure also provides state funds to counties to operate the drug treatment programs.

The most significant provisions of the measure and their fiscal effects are discussed below.

BACKGROUND

Three Types of Crimes. Under current state law, there are three kinds of crimes: felonies, misdemeanors, and infractions.

A felony is the most severe type of crime and can result in a sentence in state prison or county jail, a fine, or supervision on county probation in the community. Current law classifies some felonies as "violent" or "serious." The state's "Three Strikes and You're Out" law provides longer prison sentences, in some cases 25 years to life, for offenders who have prior convictions for violent or serious felonies.

Misdemeanors are considered less serious and can result in a jail term, probation, a fine, or release to the community without probation but with certain conditions imposed by the court. Infractions, which include violations of certain traffic laws, cannot result in a prison or jail sentence.

Drug Offenses. State law generally makes it a crime to possess, use, or be under the influence of certain drugs, including marijuana, cocaine, heroin, and methamphetamine.

Some drug-related offenses are classified as felonies and some as misdemeanors. Whether a drug-related crime is classified as a felony or misdemeanor, as well as the punishment imposed upon conviction, depends primarily upon the specific substance found to be in the possession of an offender. Drug offenses are not classified by law as violent or serious offenses.

State law generally provides more severe punishment for offenders convicted of possessing illegal drugs for sale rather than for their own personal use. Probation Violators. With some exceptions, an offender convicted of drug use or possession can be sentenced to county probation supervision in the community instead of jail or prison, or to probation supervision after a term in jail. A probationer found to have committed a new crime while on probation such as using or possessing an illegal drug, or who violated any condition of probation, could be sent to state prison or county jail by the courts.

Parole Violators. After release from prison, an offender imprisoned for felony drug possession is subject to up to three years of state parole supervision in the community. A parolee who commits a new crime, such as using or possessing an illegal drug, could be returned to prison by the courts based on new criminal charges, or by the administrative action of the Board of Prison Terms based on a finding of a parole violation.

PROPOSAL

   Drug Offenders Convicted in Court

Changes in Sentencing Law. Under this proposition, effective July 1, 2001, an offender convicted of a "nonviolent drug possession offense" would generally be sentenced to probation, instead of state prison, county jail, or probation without drug treatment. As a condition of probation, the offender would be required to complete a drug treatment program.

The measure defines a nonviolent drug possession offense as a felony or misdemeanor criminal charge for being under the influence of illegal drugs or for possessing, using, or transporting illegal drugs for personal use. The definition excludes cases involving possessing for sale, producing, or manufacturing of illegal drugs.

Offenders convicted of nonviolent drug possession offenses would be sentenced by the court for up to one year of drug treatment in the community and up to six additional months of follow-up care. The drug treatment programs must be licensed and certified by the state and could include various types of treatment methods, including residential and outpatient services and replacement of narcotics with medications, such as methadone. A court could require offenders to participate in vocational training, family counseling, literacy training or community service, and could impose other probation conditions. The measure requires that offenders who are reasonably able to do so help pay for their own drug treatment.

Some Offenders Excluded. This measure specifies that certain offenders would be excluded from its provisions and thus could be sentenced by a court to a state prison, county jail, or probation without drug treatment. This would be the case for an offender who refused drug treatment, or who possessed or was under the influence of certain (although not all) illegal drugs while using a firearm. This measure also excludes offenders convicted in the same court proceeding of a misdemeanor unrelated to drug use or any felony other than a nonviolent drug possession offense. Also, an offender who had two or more times failed the drug treatment programs required under this measure, and who was found by the court to be "unamenable" to any form of drug treatment, would be sentenced to 30 days in county jail.

In addition, offenders with one or more violent or serious felonies on their record, and thus subject to longer prison sentences under the Three Strikes law, would not be sentenced under this measure to probation and drug treatment, unless certain conditions existed. Specifically, during the five years before he or she committed a nonviolent drug possession offense, the offender (1) had not been in prison, (2) had not been convicted of a felony (other than nonviolent drug possession), and (3) had not been convicted of any misdemeanor involving injury or threat of injury to another person.

Court Petitions. An offender placed on probation who successfully completes drug treatment and complies with his or her probation conditions could petition the court to dismiss the charges and to have that arrest considered, with some exceptions, to have never occurred.

Sanctions. An offender sentenced by a court to participate in and complete a drug treatment program under this measure would only be subject to certain sanctions if it were determined that he or she was unamenable to treatment or had violated a condition of probation. The sanctions could include being moved to an alternative or more intensive form of drug treatment, revocation of probation, and incarceration in prison or jail. In some cases involving repeat drug-related violations, return to prison or jail would be mandatory.

   Parole Violators

Changes in Parole Revocation. Under this proposition, effective July 1, 2001, a parole violator found to have committed a nonviolent drug possession offense or to have violated any drug-related condition of parole would generally be required to complete a drug treatment program in the community, instead of being returned to state prison. The Board of Prison Terms could require parole violators to participate in and complete up to one year of drug treatment and up to six additional months of follow-up care.

Parolees could also be required to participate in vocational training, family counseling, or literacy training. Parolees reasonably able to do so could be required to help pay for their own drug treatment. Some Parole Violators Excluded. Under the measure, the Board of Prison Terms could continue to send to prison any parole violator who refused drug treatment, or had been convicted of a violent or serious felony. The measure also excludes parole violators who committed a misdemeanor unrelated to the use of drugs or any felony at the same time as a nonviolent drug possession offense.

Court Petitions. Unlike drug offenders placed on probation by the courts, parolees would not be eligible under this measure to submit petitions for dismissal of the charges or to have their arrest considered to have never occurred.

Sanctions. Parolees who fail to comply with their drug treatment requirements or violate their conditions of parole would only be subject to sanctions similar to those for drug offenders on probation, including modification of their drug treatment program or revocation of parole and return to state prison.

   Other Provisions

The measure provides state funds to counties to implement the measure and requires a study of its effectiveness and fiscal impact. County governments would be directed to report specified information on the implementation and effectiveness of the drug treatment programs to the state, and their expenditures would be subject to audits by the state.

FISCAL EFFECT

This measure would have significant fiscal effects upon both state and local governments. The major effects are discussed below.

   Individual Fiscal Components

State Prison System. This measure would result in savings to the state prison system. This is because as many as 24,000 nonviolent drug possession offenders per year would be diverted to drug treatment in the community instead of being sent to state prison. Because many of these offenders would otherwise have served only a few months in prison, we estimate as many as 11,000 fewer prison beds would be needed at any given time. Consequently, state prison operating costs would be reduced by between $200 million to $250 million annually within several years after implementation of this measure.

The estimate reflects a range of potential savings because of (1) differences in how counties would implement the measure and the effectiveness of the treatment programs they would establish, (2) possible changes in the way prosecutors and judges handle drug cases, such as changes in plea bargaining practices, and (3) uncertainty about the number of Three Strikes cases affected by the measure. These savings would be partly offset to the extent that the offenders diverted to the community under this measure later commit additional crimes that result in their commitment to state prison.

Assuming that growth in the inmate population would have otherwise continued, the state would also be able to delay the construction of additional prison beds as a result of this measure. This would result in a one-time avoidance of capital outlay costs of between $450 million and $550 million in the long term.

State Parole System. This measure would divert a significant number of offenders from entering state custody as prison inmates. Thus, fewer offenders would eventually be released from state prison to state parole supervision, resulting in a savings to the state. We estimate that the initiative would result in a net caseload reduction of as many as 9,500 parolees and a net state savings of up to $25 million annually for parole operations.

County Jails. We estimate that the provisions in this measure barring jail terms for nonviolent drug possession offenses would divert about 12,000 eligible offenders annually from jail sentences to probation supervision and drug treatment in the community. This would result in about $40 million annual net savings to county governments on a statewide basis, within several years after implementation of the measure. These savings would decline to the extent that jail beds no longer needed for drug possession offenders were used for other criminals who are now being released early because of a lack of jail space.

Treatment Trust Fund. This measure appropriates $60 million from the state General Fund for the 2000–01 fiscal year, and $120 million each year thereafter concluding with the 2005–06 fiscal year, to a Substance Abuse Treatment Trust Fund. After 2005–06, funding contributions from the General Fund to the trust fund would be decided annually by the Legislature and Governor.

The money placed in the trust fund would be allocated each year to county governments to offset their costs of implementing this measure, including increased probation caseloads, substance abuse treatment, court monitoring of probationers, vocational training, family counseling, literacy training, and compliance with the state reporting requirements. None of the money could be used for drug testing of offenders.

Fees Paid by Offenders. This measure authorizes the courts and the Board of Prison Terms to require eligible offenders to contribute to the cost of their drug treatment programs. The amount of revenues generated from charging such fees to offenders is unknown but would probably amount to several million dollars annually on a statewide basis within several years after implementation of the measure.

Trial Court Impacts. This measure would probably result in significant ongoing annual savings for the court system because fewer offenders facing nonviolent drug possession charges would contest those charges at trial. The combined savings to the state and county governments for trial court, prosecution, and indigent defense counsel costs would probably amount to several million dollars annually on a statewide basis within several years after implementation of the measure. However, the savings to the state could be offset by an unknown, but probably small, amount for additional court costs to monitor treatment compliance by diverted offenders.

Other Drug Treatment Effects. To the extent that the additional drug treatment services provided under this measure are effective in reducing substance abuse, state and local governments could experience savings for health care, public assistance, and law enforcement programs. The amount of such potential savings is unknown.

   Summary of Fiscal Effects

This measure is likely to result in net savings to the state after several years of between $100 million and $150 million annually due primarily to lower costs for prison operations. Assuming inmate population growth would have otherwise continued, the state would also be able to delay the construction of additional prison beds for a one-time avoidance of capital outlay costs of between $450 million and $550 million in the long term. Counties would probably experience net savings of about $40 million annually due primarily to a lower jail population.

A summary of the fiscal effects of the measure is shown in Figure 1.

Figure 1.

Proposition 36 Summary of Fiscal Effects of Major Provisions a
	State	Local
Substance Abuse Treatment Trust Fund Appropriation	$120 million annual costs.
Prison operations	$200 million to $250 million annual savings.
Prison construction	$450 million to $550 million one-time cost avoidance.
Parole operations	$25 million annual savings.
Jail operations		$40 million annual savings statewide.
Fees paid by offenders		Potentially several million dollars in annual revenues statewide.
Trial courts, prosecution, public defense	Potentially several million dollars in annual savings.	Potentially several million dollars in annual savings statewide.
Total Fiscal Impact	$100 million to $150 million annual net savings; $450 million to $550 million one-time cost avoidance.	About $40 million in annual net savings statewide.
a Within several years after implementation of the measure.

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	Analysis by the Legislative Analyst
	Argument in Favor of Proposition 36
	Rebuttal to Argument in Favor of Proposition 36
	Argument Against Proposition 36
	Rebuttal to Argument Against Proposition 36