'Get out of jail free card'

While the money for Proposition 36 programming is gone effective July 1, the mandate to sentence and treat qualifying offenders is not — the quintessential rock and a hard place position that leaves San Mateo County and others statewide left to decide whether to use precious general fund resources to fill the gap or find another way to meet the legal requirement.

In San Mateo County, officials are opting to let offenders commit to Proposition 36 and avoid jail but no longer will provide immediate access to programs, in essence, letting them avoid both incarceration and rehabilitation.

"It’s simply a get out of jail free card,” said Chief Deputy District Attorney Steve Wagstaffe.

Steve Kaplan, director of alcohol and other drug services, said it’s not quite a pass. Offenders will still be directed to treatment but they will be treated as any referral and stuck on the end of the wait list. The lack of dedicated funding means no special treatment unless the individual has a particularly acute need.

"If a provider has a place, they get in. Otherwise, they get a place in line,” Kaplan said.

By a 61 percent majority, California voters passed Proposition 36 in November 2000 on the theory it would save hundreds of millions of dollars by diverting low-level drug offenders from jail into rehabilitation.

Under the law, anyone charged with a nonviolent drug offense like simple possession and no independent offense — driving on a suspended driver’s license is common — can avoid jail. If the offender successfully completes probation, they are released from treatment without follow-up orders and avoid a conviction on their criminal record. Offenders cannot be jailed until the third time they violate probation.

Worries over the fate of Proposition 36 — a controversial mandate even in the best of financial times — intensified when Gov. Arnold Schwarzenegger proposed slashing $108 million for the program which enrolls approximately 36,000 drug offenders statewide.

Rather than wait for the ink to dry on a state budget, local officials took matters in their own hands.

On June 30, Presiding Judge Stephen Hall, Acting Presiding Judge Robert Foiles and Criminal Supervising Judge Mark Forcum issued a joint memo to all involved in the judicial system outlining changes forced by the expected shutoff of funding. While some are administrative — shifting the caseloads and scheduling of drug court among the county’s court branches, for example — others have much more far-reaching implications.

Treatment

San Mateo County has two levels of treatment, the standard and a more intensive version similar to the county’s own drug court program for those who have difficulty succeeding in the first, Kaplan said.

Both are eliminated with Proposition 36 money gone — between $1.8 million and $1.9 million yearly.

The state proposes using some of the federal stimulus money set aside for criminal justice to backfill a bit, but with no California budget in place, alcohol and drug rehabilitation providers don’t know if that will happen. Even if it does, a year of money and an existing fund surplus in the county’s Proposition 36 coffers isn’t really enough to sustain the level of service, Kaplan said.

Kaplan knows the mandate has its detractors but thinks it is "pretty good” to what was in place before — namely, nothing.

"A lot of people would have been jailed. Instead, a lot of people entered treatment and some even began a solid road to recovery,” Kaplan said. "This is a big loss and a real setback.”

Proposition 36 includes both in- and out-patient services.

The county sees approximately 800 to 900 new people annually. A "lot more” are ordered into Proposition 36 but never show up for treatment, leaving the justice system to deal with them when picked up again, Kaplan said.

The average Proposition 36 stay is 78 days and standard treatment is 90 days.

Of those who participate in Proposition 36 treatment, 75 percent stayed at least 30 days while 84 percent of the overall population reaches that goal. Approximately 50 percent successfully complete a program which is about the same as the non-Proposition 36 population, Kaplan said.

"We think that’s pretty good,” he said. "The thing is nobody gets cured here but success is that they did what was expected, they participated in the program and had a clean urine test when completed.”

Court

Beginning Aug. 3, Proposition 36 court calendars for all branches are canceled, pushing any felony probation violations and new accompanying criminal cases to the standard Superior Court and redirecting already assigned defendants to drug court calendars.

While court-ordered drug programs are often assumed by the wider public to fall under the umbrella of Proposition 36, not all drug offenders in San Mateo County take that route or are eligible.

The county also handles defendants through its Bridges and Drug Court services — both which advocates say are excellent and which even a 2005 civil grand jury said were preferable to Proposition 36.

Both Bridges and Drug Court are intensive programs open to offenders who may not qualify for Proposition 36.

Bridges participants are screened while in jail and must be a non-violent offender committed to attend regular court reviews, comply with a curfew and submit to random search and seizure.

Drug court also combines treatment — both residential and outpatient — with monitoring. Offenders can have felonies but not crimes involving drug sales.

Neither spare offenders a criminal conviction but drug court is a sentencing alternative. With Proposition 36 gutted to a shell of its former self, Wagstaffe said there is little reason for somebody only looking to avoid jail to opt for the county’s more rigorous programming.

"The only reason to go to something like drug court is for those who really do want to get over their addiction,” Wagstaffe said.

Probation

All Proposition 36 offenders in San Mateo County are placed on supervised probation regardless of whether the offense is a misdemeanor or non-violent felony, said Cindy Perry, director of adult services for the Probation Department.

Beginning July 1, however, all misdemeanor cases receive court probation which carries no check-in requirements or more intense level of monitoring to ensure they are attending treatment and not re-offending.

Proposition 36 funded 2.5 deputy probation officers but, without that money, the department isn’t certain what is going to happen.

The department doesn’t want to lay anybody off but also doesn’t have the money to fund the positions which run approximately $80,000 to $90,000 each.

"It’s a quandary,” Perry said. "The law doesn’t change so there will be less dedicated services and larger caseloads.”

The felonies will be absorbed into the larger caseloads, which average about 150 to 200 per officer, she said.

While supervised, the level will be minor because each of the approximately 1,000 Proposition 36 cases will be just one of many.

And with court probation, Wagstaffe said there is ample room for violations to go unchecked.

There is also little alternative.

Proposition 36 isn’t going away even if it is unfunded. Offenders will now simply be processed and released with an admonishment to behave until a treatment slot opens up.

There is nothing else to give them, Wagstaffe said.

"As [District Attorney] Jim Fox told the supervisors during the budget hearings, it’s another step in the legalization of drugs,” Wagstaffe said.

The future

Both Perry and Kaplan aren’t particularly hopeful the state’s budget situation will improve and Proposition 36 funding return any time soon, let alone this September when the San Mateo County Board of Supervisors adopts its final recommended budget.

For now, "it’s a wait and see,” Kaplan said.

"Even if funding is possible at best it’s no more than half of what we currently get and we don’t know what the court may or may not be required to do to receive the funding,” he said.

In the meantime, Perry said the Probation Department has its hands pretty full continuing its ongoing caseload, shuffling the Proposition 36 cases and preparing for what might come.

"Everything is still on the table,” she said.

With Proposition 36 reduced to a paper designation and county resources stretched, is there still a point to even charging the cases?

Wagstaffe said yes.

"We still get a conviction on record and if there are three violations we can still punish them in regular court,” he said. "Our main job is to hold people accountable regardless of what the state does or doesn’t do.”

Michelle Durand can be reached by e-mail: michelle@smdailyjournal.com or by phone: (650) 344-5200 ext. 102.