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A Prosecutor’s View of Proposition 36

Here are two recent typical press releases from the DA’s office:

• Sandy Lee Cooper, 31, of Willits, was sentenced on May 27 to 4 years 8 months in state prison at the California Rehab Center. She was found guilty of two counts of meth possession for sale, a felony while on bail for a pending felony. She was arrested in January at a Willits motel and bailed out while she was on Prop 36 treatment probation for two other earlier drug cases. She pled guilty to the possession for sale, but was arrested before she could be sentenced, then arrested again in March for possession of 3/4 ounce for purpose of sale. Ms. Cooper is a divorced mother of three children under 10 who live with their father. She’s been using meth for 16 years.

• Teresa Diane Moore Gallups, 49, of Willits. A probation search turned up 1/8 ounce of meth for sale plus paraphernalia and packaging. She told probation she used the meth to support her habit and had been using since she was 13. Ms. Gallups also told probation that she had completed several rehab programs but was unable to stop using.

Matt Finnegan is the Mendo District Attorney’s Office’s primary Proposition 36 (aka “1210 court”) prosecutor. I spoke with him recently about his experience with Proposition 36, California’s “Substance Abuse and Crime Prevention Act” which was passed by 61% of California voters in November 2000.

Finnegan: Drug court began in 1996 in Mendocino County. Proposition 36 was implemented here in July of 2001. It’s also called 1210 court for Section 1210 of the penal code. Anyone arrested for violation of 11550 or 11377 — non-violent possession or under the influence — if that person hasn’t failed other programs or no other charges are involved then they’re eligible for Proposition 36, or 1210 court. Commissioner Dave Basner runs the 1210 court. The other judges didn’t want it; it consumes a lot of time dealing with a lot of petty stuff. 

Say you’re arrested for 11550 or 11377 — typically meth, not for marijuana; most marijuana people don’t enter Prop 36 for marijuana in Mendocino County. 

You’re arrested and in custody. If you’re charged and eligible for 1210 court you have a choice. You can plead guilty or not guilty. If you’re 1210 eligible and you choose treatment you have to be released from custody that day! You’re gonna be told to report to Probation to sign up for drug treatment classes, testing, meetings and quite a few other probation terms (job training, literacy training, Narcotics Anonymous, etc.). 

If you decline treatment saying you don’t want to go into that program, then you face traditional sentencing, typically 90 days in jail. 

To go into Prop 36, you have to plead guilty to the charged offense. 

There are several ways to get out of jail. 

When you’re arrested, you have choices. If you’ve never been arrested, and have no felony convictions, you’re probably eligible for PC 1000, deferred entry of judgment. You’re ineligible for PC 1000 if you have recent priors or additional charges. PC 1000 basically gives you one freebie. It was in place before Prop 36. Prior arrests mean nothing, only prior convictions. If you succeed in PC 1000 the charges are dropped and you don’t accumulate a conviction and you don’t accumulate priors. But there’s a time limit. PC 1000 can’t be used again for five years. It only applies to certain minor offenses. Drug sales, manufacturing, etc. — you’re not eligible. Cultivation or cultivation for sale is not eligible either. 

If you’re arrested for use or under the influence, you can plead not guilty right away and set a trial. If you’re PC 1000 eligible, you’ll get out of jail and get referred to the Alcohol and Other Drugs (AODP) office where you have to sign up for a modest program and go through the classes for 12 to 18 months. If that’s completed the charges are dismissed. If you fail, you would come back to court when AODP or probation sends something to the court saying you didn’t show up or tested dirty. 

When you get out of jail you sign a promise to appear for an initial assessment at AODP. If you show, they do an initial assessment and your program depends on how much you can snow or shine on the AODP. 

If you’re not eligible for PC 1000, you’re probably eligible for Proposition 36 where you get a couple more chances. But those are formal chances on probation. For example, if you test dirty during the initial months, AODP will tell you informally and you’ll have to do more or more frequent stuff for them or you might restart the program. By the time you get violated and sent to court you’ve already screwed up several times. 

Prop 36 involves a minimum of 18 months. So say you were first arrested in 2001 for possession or under the influence of meth; that’s very typical. First it will have taken you five or six months to get kicked out of PC 1000. Then you go up to main court. A Public Defender will represent you. You say you want treatment because you’re an addict. 

You’re bumped up into 1210 court which is a little more intense than PC 1000. A probation officer is assigned on top of AODP. There’s treatment, meetings, classes, testing, evaluations, assessments. 

You’re on formal probation. The probation officer has control over you too. You must keep in contact, you’re subject to search, you must call and send in letters proving accomplishments, etc. So you have to work with both offices. If you pass the AODP program you’re put into an aftercare program with probation where you also have to complete community service and pay fines and fees and stay in contact. You don’t get out of Prop 36 probation until everything is complete. If you don’t do the community service you’ll be contacted. You have to finish all the terms. 

You can be violated for non-community service even after you’re finished with AODP. Commissioner Basner will find you in violation of probation if you admit a violation or if the Probation Officer testifies to the failure. 

Community service is not much help anyway. Nobody really monitors it. Probation and AODP just basically do a checklist, they’re not really determining if the person is off drugs. The monitoring is nitpicky, not treatment. So they mostly violate people on administrative things. Not sending in a letter; no contact with probation or AODP; not enough attendance at a program. 

By law you get three violations of probation before you’re kicked out of Proposition 36. The Probation department will violate you for non-compliance and send you to court, but AODP can be lax because they really think they’re going to fix people. In theory. They give you extra chances without violating you. Many of the AODP people are former addicts, by the way. So you can spend six months failing out of PC 1000, then after three months or more your 1210 probation is violated, and you’re referred back to AODP and probation for yet more intense treatment. You have to meet Probation again and set up a new, more intense program. For the second violation, it’s the same thing — back to an even more intense program. Mostly it has to do with showing up. If you show up to most of your classes and meetings, it will be quite a while before you’re violated. Finally, the third violation can be up to a year and a half later. Then probation is terminated and you’re referred back to main court. 

Your original 11550 charge would now be the 90-day minimum jail sentence. Your Public Defender can say that you need treatment so we’d like a referral to the drug court. So you’re referred to drug court if you can pay the $3,900. The criteria is subjective. There’s a core group of grant-funded people who run the drug court and decide who’s eligible, they’re part of the court system, not AODP. This could be up to two more years. 

People do finish the PC 1000. Recreational users, typically. All you have to do is not show up to your interview high, attend a few weekly meetings… You’re declared a success — on paper. And you might really be. But success rates are based on attendance and completion, not whether you’re off drugs. 

If your original offense was just a misdemeanor they don’t usually put you in drug court. Drug court is much more intense. It’s for people who would probably sentenced to a state prison term. You meet with the court every week. Probation is assigned. AODP is assigned. They will demand a lot more of your life. Most defense attorneys will say that if you only have a misdemeanor it’s not worth signing up for formal probation just for that charge. Drug court is more inconvenient than jail over a longer period, especially if you live outside of Ukiah. 

The problem with Prop 36 and drug court is that it’s punitive. If you’re really seeking treatment your punishment should not have to do with your evaluation for Prop 36 or drug court. If we’re really trying to fix people’s habits, we can’t base it just on avoiding punishment. 

As far as I know nobody ever talks to the family about a defendant’s problems or their rehab. Technically the family is not a “victim” of the crime. So the DA’s office doesn’t contact them. You need the defendant’s permission to talk to the family about the details of treatment. It’s all confidential. Family members and the public do not have access to the cases or the files without client/defendant permission. Friends and family usually won’t get the time of day. 

So at this point after failure out of Prop 36 if you still have the problem or you don’t want to go to jail you go for a drug court evaluation. If you’re rejected, it’s back to Department H in front of Judge Henry Nelson. Now you can take your 90 days in jail (with 60 served) with some ordinary probation on top of it. But then your public defender may ask for day for day credit in a residential treatment program — Primary Purpose or the like. Sometimes it’s granted, sometimes not. Lately Nelson’s not as inclined to approve that. 

Then there’s 11550(c) another option which preceded Prop 36. It allows you to do jail time in a residential treatment program if approved by the judge. There’s some technical difference between the two. Again, you have to pay as much as you can. Personal Support Group in Lake County is one of the residential programs. Some of these programs are not state certified or supervised. They get grant cash for each addict they take in, kind of like group homes. They can be quite a money maker. That’s sort of a final option, but it’s not happening much lately because courts are realizing that multiple non-compliance is a bad sign and they’ll give up on trying to force treatment on you. 

No bail is required to get out of jail and into Prop 36. Just claim you want it. Prop 36 mandates that. You can’t hold somebody in custody if they want Prop 36 treatment. The judge has no choice. 

In fact, there’s not much choice for the regular addict who’s in jail. You’re in an orange jumpsuit. You get the standard 30-second pep talk from the Public Defender. You’re told you can go into Prop 36, and most defendants know what that means — out of jail now. Or you can plead not guilty and we’ll set it for trial. In that case, your public defender will ask the judge to release you on your own recognizance and you might or might not be. It depends on where you live, if you’re a flight risk, the nature of the charges, family support, etc. If you do that there will be up to seven more court dates — motions, pre-trial conferences, arraignment, trial, sentencing, etc. 

The basic under-the-influence conviction requires 90 days in jail, which is a long time if you haven’t been to jail before. 

So there are at least three different programs which can keep you out of jail before you return to where you were 18 months earlier. Then if you fail, and most people do, you’re finally sentenced to the 90 days in jail which you could have chosen in the first place. 

Meeting all these treatment program requirements in Mendocino County is tough. I don’t think more than 5-10% finish. More people do finish the less strict PC 1000. 

Prop 36 is very centralized. If you’re from an outlying area you’re going to have trouble making it to Ukiah meetings with Probation. For a lot of people the program is set up for failure. If you’re a fuck-up, you can’t do it. But you can give excuses about personal problems. If you just make phone calls and promise to comply later and sound sincere, you’ll probably get continued or extended. 

Sometimes people will just disappear for six months or more. They come back and start over with a new case. If you make no contact with the Prop 36 program people you can be kicked out without three violations. Probation would be terminated quickly for non-contact. But if you end up arrested again, you might still be allowed back in.

Most people don’t succeed with these program requirements, and that’s in terms of doing what they have to do. They’re extended or continued in the program, and all the while they’re considered caseload and the basis of more grant fund collections for AODP and Probation and sometimes drug court. 

More experienced drug criminals with a rap sheet usually just opt for jail. They don’t want Probation hounding them. They don’t want to be subject to search. They don’t want probation. They choose to stay in jail. For some people it’s better for their lifestyle to serve 30 more days in jail and not be on warrantless search either. And, there are no fines or fees to pay. Once they’re outta jail and stay off the law enforcement radar or stay clean and are not arrested, they don’t have any programs to do. Of course, if they need treatment they won’t get it through the court. You can get treatment from private sources if you want it and can pay for it. It depends on how much and what kind of treatment will work for you.

I have a case now where AODP referred the guy back to probation. He’s non-compliant — “defendant failed to attend.” Previously he had to get the court to force him back into the program. Now he says probation is a hardship and he requests to be removed from 1210 and sentenced traditionally. He’s had it. “I can just do my time,” he’s written to the judge. “I’m not going to get through this.” He has four previous non-compliances. But these compliance problems are not apparent when he’s in custody. He’s told, “Just take the treatment and you’re out today!” That’s a pretty easy car to sell. 

You can be signing up for a pain in the ass program which you’ll screw up and end up in jail anyway. The Public Defender has no motivation to tell them that at the time. They won’t say, “I think you should stay in jail because I don’t think you’re ready for treatment.”

Here’s another case: The woman plead to meth possession. She went away with PC 1000. Then there’s a parole violation filed by probation. “The defendant fails to appear.” She’s arrested again, gets one of her 1210 strikes and is referred back to 1210 court. So somewhere she dropped out of PC 1000 and went to Prop 36. And didn’t comply with it either. A bench warrant is issued. She won’t show on her own. She’s done nothing, so she’ll be kicked out quickly. But for a year she’s done nothing, other than failing to appear. So she gets sentenced to jail a year later. 

A lot of arrests of Prop 36 enrollees are charged as probation violations and if it’s simple possession, the jail might just kick them out on cite and release, especially if they’re crowded. No bail is required. 

You can arrest and arrest and arrest and until someone is violated out of Prop 36 he’s going to spend 48 hours in jail before he gets out — that’s the worst he could face. 

You can drag this process out for months and months — just give excuses. Your work schedule conflicts. Your car broke down. Any sort of excuse. It’s sort of a joke, really. 

The idea is ok, but the triage should be much heavier. People who will not benefit from treatment should not be in treatment just because they want out of jail. They’re just taking up treatment space from those who could benefit. But the system holds them in anyway because they are funding units. Prop 36 drags out because there are no immediate consequences. You can’t just send them to jail.

If you’re arrested for possession of less than an ounce of marijuana, you’re technically PC 1000 eligible. But why would you ever do the PC 1000 program if the only thing the court can do is fine you? You can’t go to jail in California for first time simple marijuana possession. You just plead guilty and pay your fine, or enter PC 1000 and have an 18-month treatment program about your marijuana. Which would you do?

If you’re not ready or interested in treatment and you have 90 days to do, it might be better for an addict to just do the 90 days in jail and get over with than go through all these hoops for a year and a half, getting picked up on warrants on various program violations, saying you still want treatment, referred back, screwing it up and again and again. 

Often defendants will just say they’ve had enough of the program. We get those requests fairly often. So there’s an advantage to getting your conviction cleared by just staying in jail and being done with it. Most defense attorneys don’t really know this. The DA’s office doesn’t get to see these people. We can’t advise them. We don’t know the intricacies of what hoops a person will have to go through or what people are told when they first talk to the Public Defender or AODP. Prop 36 is a quick way out of the orange jumpsuit if you accept their treatment. 

But getting out of jail because of Prop 36 is not a real decision, it’s just a way to get out of jail. 

My bottom line is all these resources for treatment should be spent on people who really want treatment, not on people who just want to get out of jail. What good is treatment when the person’s entering it involuntarily and then fucks it up because they’re incompetent or because it’s a hassle or the travel requirements are too burdensome? And if they fail they’re eventually looking at jail anyway. So they become the system’s funding unit for up to two years and many end up in jail after they fail anyway and they haven’t personally benefited. Involuntarily treatment is not very successful. But the treatment people think involuntarily treatment works. 

Most of the time you have to want to quit. The drug treatment people have a self-fulfilling prophecy saying that treatment works because it’s treatment. 

Mostly the treatment is classes, and meetings and testing. I question the testing, too. I know of defendants who avoid the testing, making excuses about why they can’t do it on a certain day or trying to fool it, and then they get arrested on a new drug charge. But they didn’t show up dirty — at least as far as we know. How can that be? Because they’re still using. 

I don’t think they seriously test people. When people are arrested while on the program, and we hear about it, we usually just file a probation violation. And then we violate them again and get them to their third violation and kick them out. Then they go to jail and get it over with. But we have people on Prop 36 showing up in court with as many as four new cases and they haven’t even met with the Probation officer yet! (Once a person is known to be a drug user cops tend to watch them more closely in Mendocino’s small towns.) So there’s four cases to deal with under Prop 36. What’s the point of that? They could get bumped and face jail again, but it could happen after a year or more into the program. The treatment program’s been wasted.

Sometimes they got caught with paraphernalia of their own. But again, they’re not violated for testing dirty. 

Another variation is people who are violated or re-arrested while in the program. They may just be re-eligible and have end up with two parallel cases in the Prop 36 pipeline each with its own conditions and meetings and testing. That’s even tougher.

Funding plays a role in these decisions too. State money is partially based on how many people are in the program or how many a county forecasts will be in the program. 

In effect, people are coerced into the system by funding and fear. And everyone in the system benefits from them being a client. 

Graduating from these programs does not mean you’re clean and sober, it just means you did what you were required to do.

It’s bullshit that people can only get treatment through court orders. If you really want to get help, you might be better off doing your time in jail and getting help of your choosing at your own time when you’re ready to quit — if you can.

This process does not separate the wheat from the chaff. People should be able to control their treatment and really try to get off drugs. 

And in all this you can still use your medicinal marijuana. A serious treatment program would require you to get off all your drugs. Not here. Prop 215 is not consistent with any treatment method.

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