The Decreasing Participation in Drug Diversion Programs

A story relayed a few months ago in the newspaper provided interesting insight into just how the controversial Prop 47 had changed day-to-day procedures within the LAPD. As many will remember, Proposition 47 turned certain felonies, like drug possession, into misdemeanors, with the corresponding promise that dollars saved on locking up drug users would be put into treatment.

Two officers had detained a homeless man who had set up a rough encampment under a freeway underpass. While one officer carefully watched the handcuffed man, the other officer gingerly rummaged under a grimy mattress, presumably the homeless man’s sleeping accommodations. This search yielded two needles and a glass pipe with a small amount of methamphetamine inside. Prior to Prop 47, the homeless man would have been hauled off to jail to face a felony charge.

But with Prop 47 now the law of the land, the officer merely issued an admonishment to the would-be offender to stay out of trouble. The officers then drove off in their patrol car. A citation could have been issued, but such citations are held in high disregard by both law enforcement and would be recipients as they seemly carry little or no jail time or any other real consequence. Prior to Prop 47, those who possessed even small amounts faced felonies and/or full commitment to a drug diversion program.

As a practical matter, it seems this attitude towards minor narcotics possession is commonly held by law enforcement in the county. Officers contend larger amounts are just as vigorously charged as they always have been.Narcotics arrests have dropped by 30% in the city of Los Angeles and 48% in areas patrolled by the L.A. County Sheriff’s Department, as busy police officers decide that the time needed to process a minor case is not worth it.

Criticism of this new situation comes from all corners, with even some strongly pro-Prop 47 supporters recognizing that some offenders now facing misdemeanors simply choose jail time over any commitment to a drug diversion program.

Offenders know that early release from jail has become almost a given in Los Angeles since 1988, when a federal judge allowed sentenced inmates to be let out early as a temporary solution to overcrowding.Many inmates have been freed after serving only 10% of their time.

For their part, law enforcement officials say they have lost the ability to deal with offenders, many of who steal to support their habits.A 2006 Los Angeles Times investigation found that nearly 16,000 were rearrested for new offenses committed during the time they should have been finishing out their sentences instead of being out on early release. Supporting the viewpoint that early released offenders contribute to increased crime rates is a noticeable uptick in property crime in both the areas patrolled by the sheriff’s department and within the city of LA after Prop 47 was passed.

Just how much of this increased crime is directly attributable to addicts trying to support their habits is debatable, yet the argument is frequently used by critics of Prop 47.

California’s Drug Diversion System

Even some drug addicts and their relatives admit that the new law allows troubled individuals to hurt themselves and steal with little consequence. There is also the concern that whether those now being issued misdemeanor citations are missing out on drug treatment that could turn their lives around.They point out that the previous system had offered at least the possibility that a drug addict might have a chance at redemption through California’s Drug Diversion System, administered by what are widely known as “Drug Courts.”

Drug courts have long been regarded as a cheaper, more effective alternative to prison sentences for those who struggle with addiction and who face felony charges, as they normally would have been prior to Prop 47. For most offenders, participation in a diversion program was a desirable choice over incarceration and a felony record.

These drug courts (there are over 220 in the state) offer an alternative to criminal prosecution and incarceration for nonviolent drug offenses. Existing since the 1990s, drug courts have traditionally been used to place substance-abusing offenders in specialized treatment programs.

Prior to the enactment of Proposition 47, a possession of illegal drugs for personal use case was prosecuted either as a misdemeanor or felony, depending on the type and amount of the drug involved. If the person met certain qualifying conditions (depending on circumstances of the offense and background of the offender), he or she could be eligible for participation in a diversion program.

Drug courts have been recognized as a cheaper and more effective way for courts to address the issue of addiction. The key to their success is the utilization of a collaborative approach wherein judges, prosecutors, public defenders and law enforcement work together alongside probation officers and treatment providers to identify addicted individuals who have become involved in the justice system, address their clinical needs through intense treatment, and ensure compliance through rigorous monitoring and supervision.

Successful drug court programs have been shown to reduce criminal recidivism and increase a participant’s likelihood of rehabilitation, because there’s a serious consequence to refusal or failure: the alternative to a drug treatment program is incarceration and a resulting felony record. As a result, offenders have a very real and immediate incentive to participate in and complete the treatment program. Drug treatment programs provide the structure and accountability necessary to overcome addiction, under the constant threat of legal sanction.

The Effect of Proposition 47 on Drug Diversion Cases

Effective as the drug courts have proven to be, they are rapidly becoming under used as drug addicts have found to their delight that their possession charges are misdemeanors under Prop 47. With drug possession reclassified as a misdemeanor, the maximum possible punishment is a year in jail and, as noted above, the reality is that most offenders will be released after serving far less time than that, if any time at all.

Thus, most possession offenders have little to lose by accepting the jail time. Though the majority of offenders remain eligible for a drug diversion program, they are typically are also eligible for Proposition 47 relief. While the court system still can, and will, refer drug possession offenders to these types of treatment programs, their attendance is not compulsory and there is no judicial consequence for failing to complete treatment or refusing it altogether. With incentives to avoid extensive jail or prison time as well as a felony on one’s record both gone, the motivation to accept treatment (and ongoing monitoring and judicial scrutiny) may go with it.

Orange County’s drug court is a good example of the trend of decreasing participation in the state’s drug diversion programs under Prop 47. Before Proposition 47, Orange County would see between 50 to 80 applications for drug court every month.In the first few months after the initiative passed, the county’s drug courts received just 12 applications. In Los Angeles County, new admissions dropped 50 percent.

Despite the fact that the legislation has been in existence for about eight or nine months, drug courts across the state are already seeing it have a tremendous impact. For example, in San Diego County in the first few weeks after the proposition went into effect, almost every offender whose crimes were reduced to misdemeanors pursuant to Proposition 47 relief plead guilty (rather than participating in a drug diversion program and attending treatment). In Solano County in February 2015, drug court participation dropped by 35%; in San Bernardino, attendance has dropped to 59% of pre-47 levels.

Some drug courts are now considering the possibility of restructuring their programs, aiming their services at alternative populations such as addicts charged with felonies not eligible for misdemeanor reductions.

The fear of many analysts and practitioners is that Proposition 47 will create a new class of individuals who escape both incarceration and treatment and are thus more likely to re-offend. These individuals represent a high probability of ongoing criminal behavior because drug use rarely exists in a vacuum. Addicts often engage in other illegal behavior, minor crimes such as petty theft as well as major crimes like armed robbery, in order to financially support their habit. Without the kind of intervention that drug court provides, the potential for more serious crimes to be committed by non-incarcerated addicts increases.

Time will tell what the long-lasting impact of Proposition 47 will be, but developing meaningful incentive for increased participation in the drug diversion system seems like an approach to be explored. If any revenue is to be generated by Prop 47 to sustain the substance abuse treatment, the question of what will actually convince people to accept treatment must be answered.

Daniel R. Perlman, Esq.

Law Offices of Daniel R. Perlman