Frequently Asked Questions about Prop 36
1. Q: What is the full range of offenses covered by Proposition 36? Who is excluded?
A: Beginning July 1, 2001, Prop. 36 generally applies to three classes of people: 1) those with new convictions for drug possession or being under the influence, 2) persons on probation for drug possession or under-the-influence offenses, and 3) persons on parole with no prior convictions for a serious or violent felony.
New convictions: People with new convictions for drug offenses qualify for treatment provided that they are not convicted of sale or manufacture or any non-drug crimes at the same time. Offenders are excluded if they have a prior conviction for a serious or violent felony (a "strike"), unless they have served their prison time and have been out of prison for five years with no felony convictions or misdemeanor convictions involving the threat of violence. Finally, individual offenders may "opt-out" of treatment by formally refusing it, in which case they face sentencing under pre-existing law.
Persons on probation: Once Prop. 36 takes effect, its probation-violation procedures will apply to people previously convicted of a Prop. 36-qualifying drug offense, if they violate a condition of probation deemed to be "drug-related." In essence, this means that some drug offenders who would have qualified for Prop. 36 treatment will get it, instead of facing jail time, if they test positive for drug use or violate other probation conditions. Within two to three years, this category of offenders will simply disappear, once current probation terms expire and all new drug convictions are being processed under Prop. 36.
Nonviolent parole violators: After July 1, 2001, a person on parole who commits a non-violent drug possession offense or who violates a drug-related condition of parole may be eligible for a treatment regimen in the community, instead of return to prison. To qualify, the parolee must have no prior convictions at any time for a serious or violent felony. Parole authorities, rather than the courts, will set monitoring conditions for these parole violators, and will punish violations of the treatment program, up to and including return to prison for serious or repeat violators.
2. Q: What if an offender has been previously convicted of another crime that would not fall under the auspices of Prop. 36? Can he still qualify for diversion?
A: It depends on the nature of the previous offense or offenses. As discussed above, any prior violent or serious felonies disqualify a person for consideration for Prop. 36 treatment. The exception to this rule is when the person has served the associated prison time and has been free for five years without committing a felony or violent misdemeanor.
Other kinds of prior offenses are not disqualifying when a person comes before the court for a Prop. 36-eligible offense.
Finally, one group of persons - nonviolent parolees - will qualify for Prop. 36 treatment if they violate parole by using or possessing drugs. The person need not be on parole for a Prop. 36 offense. However, the person's criminal history may not include a serious or violent felony conviction.
3. Q: Does the passage of Prop. 36 change drug possession or intent-to-sell laws? Who determines an offender’s intent to sell and the amount that indicates trafficking?
A: Prop. 36 does not directly affect the laws against drug possession or related crimes. It only affects the punishment imposed on persons who meet the criteria for eligibility for treatment instead of jail time. Those who qualify are granted probation and required to complete a treatment program.
Prop. 36 has no effect on persons convicted of drug sales, manufacturing, or possession with intent to sell. They are excluded from treatment under the new law.
Neither Prop. 36 nor current law specifically defines the amounts of drugs that determine a person's intent to sell or distribute those substances. Obviously, very large amounts of drugs will trigger distribution or "intent-to-sell" charges. Prosecutors appear to prefer the flexibility that comes with a discretionary standard - smaller amounts of drugs can be charged as possession-with-intent if there are other circumstances that indicate a person was involved in or planning sales of the drugs in question. The decision is made case-by-case by the prosecutor examining the facts of each offense, and certain facts must be proved to secure a conviction for possession-with-intent. Prosecutorial discretion in such cases will not change under Prop. 36. However, prosecutors may be less likely to offer plea-bargains in cases where drug-dealing is alleged - in such cases, the more serious charge is more likely to be pursued instead of permitting a plea to the lesser offense of possession.
HOW PROP. 36 WORKS
1. Q: What does Prop. 36 "court supervised" treatment entail?
A: Prop. 36 takes effect when a person has been convicted of a drug possession or under-the-influence offense. Instead of ordering jail time, the judge must place that person on probation and require completion of a drug treatment program lasting up to one year. Many counties will use treatment professionals to interview and screen, or "assess," each drug offender to match individuals with treatment programs that are appropriate to their drug use history and treatment needs.
The judge may set any range of conditions of probation to monitor the offender's progress. These may include regular check-ins with a probation officer or court appearances, a requirement to pay a share of treatment costs, drug testing and other restrictions on the person's place of residence, associations, or lifestyle.
If the offender violates any of the court's conditions, he or she faces the risk of having probation violated or revoked. Otherwise, the treatment provider selected by the court will provide regular progress reports through the required course of treatment.
At the end of the required treatment regimen, the offender may petition the court to dismiss the drug charges. If the court finds that the person complied with the probation conditions and that treatment was "successful," charges may be dismissed, and the defendant will be obliged to disclose the fact that he or she was arrested only in certain specified circumstances.
2. Q: What happens if an offender violates probation granted under Prop. 36?
A: Prop. 36 defines two kinds of probation violations: drug-related violations such as relapse, and non-drug-related violations. A person whose violation is not directly related to drug use - such as failure to check in with a probation officer, or defiance of other conditions - can have probation terminated at once and can be incarcerated for one to three years.
For drug-related violations, Prop. 36 spells out a process in which the consequences vary based on the severity and number of violations. For the first violation, the most common consequence will be that the court will order the person into a more restrictive treatment program. If, however, the court finds that the person is "a danger to the safety of others," that person can have probation revoked immediately.
Upon a second violation, the court again has the option of transferring the offender to a more rigorous treatment program. But the court may also revoke probation using a simpler standard - that the defendant has proved to be "unamenable to treatment."
If the defendant stays in treatment after two drug-related violations have been considered by the court, and a third violation is proved, the protections of Prop. 36 disappear, and the person faces sentencing under preexisting law, which allows incarceration for one to three years.
3. Q: What options and tools do judges really have?
A: Judges have a great deal of flexibility to handle each drug offender differently under Prop. 36. The range of treatment options may vary from county to county, along with caseloads in each program. The judge can set any range of probation conditions, from the relatively modest requirement that the defendant not be re-arrested during the probation period, through the other extreme - heavy monitoring by the court and probation department, along with regular drug testing.
If there is a probation violation, the judge can respond in several ways. The judge can impose sanctions, change the person's required treatment program, tighten probation conditions, or even revoke probation and drop the person out of Prop. 36 treatment entirely.
Defendants who hope to have their drug charges dismissed will need to impress the judge with their compliance with the court's orders, because, after completing treatment, the defendant must apply to the sentencing judge to receive that benefit. This dynamic enhances the judge's authority with the offender throughout the course of treatment.
1. Q: Does California have the capacity to offer treatment to all the people who will qualify under Prop. 36?
A: The law anticipated the need to add many more treatment slots. State and county governments expanded capacity with the funds provided by Proposition 36.
2. Q: What are the minimum requirements for drug treatment facilities under Prop. 36?
A: Programs must be "licensed and/or certified" to receive Prop. 36 funds or defendants processed under the new law. They may not be offered within a prison or jail facility.
Licensing and certification are currently provided by the state and counties, as well as private organizations such as the California Association of Alcoholism and Drug Abuse Counselors. The state Department of Alcohol and Drug Programs may establish uniform state standards, or local governments could devise their own standards and require programs within their reach to meet those standards.
3. Q: What counts as "drug treatment" under Prop. 36?
A: Besides the licensing/certification requirement, a program may include one or more of the following: outpatient treatment, half-way house treatment, narcotic replacement therapy (such as methadone and similar substances), drug education or prevention courses, detox, or limited inpatient treatment. These categories can embrace a wide variety of treatment modalities. Prop. 36 sponsors encourage each county to maintain a diversity of treatment services to meet the different kinds of needs of each community.
4. Q: Do additional life-skills and counseling services qualify as drug treatment? Are such programs entitled to receive Prop. 36 funds?
A: Support services do not qualify as drug treatment by themselves, though judges may require defendants to complete literacy training, vocational training or family counseling programs in addition to drug treatment.
When required for a Prop. 36 defendant, these programs may be paid for out of the funds provided by the initiative.
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