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California's Proposition 36 and other State Diversion Programs:
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Fiscal Outlays |
State |
Local | |
|
Substance Abuse Treatment Trust Fund Appropriation |
$120 million annual costs |
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Prison Operations |
$200 million to $250 million annual savings |
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|
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 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 | |
Implementation Issues
Supporters and opponents of Proposition 36 agree that effectively implementing the law will be a challenge for state and county officials. According the LAO, " ... [the] state and counties will face organizational, implementation and funding issues" (6). As part of its 2001 budget analysis, the LAO reported on the initial actions the "key players" have taken to begin the Proposition 36 implementation process and examined a number of ways the state may choose to fund it. Below is a summary.
Funding Measures in Place
The Department of Alcohol and Drug Programs (DADP) established a Substance Abuse Treatment Trust Fund, as required by the law, into which officials deposited a current-year general fund appropriation of $60 million. In keeping with emergency regulations that subsequently were passed, DADP set aside $1.2 million of the money in the fund for administration of Proposition 36; the remainder was allocated to the counties under a distribution formula created by DADP (see table 2 below for amounts) (7).
Counties are required to use the funds to cover the costs of implementing Proposition 36. These costs may include increased probation caseloads, substance abuse treatment, court monitoring of probationers, vocational training, family counseling, literacy training and compliance with state reporting requirements. Counties are not authorized to use funds for offender drug testing, and regulations prohibit them from using the funds for capital outlay projects.
In order to receive funds, DADP regulations required each county board of supervisors to first request the funds and then adopt and submit a board resolution designating a lead agency to be responsible for the administration of all Proposition 36 funds. The rules also required each county to establish a trust fund for its Proposition 36 money (8).
Finally, the rules required each county to submit a Proposition 36 implementation plan to DADP, which must include how the county's alcohol and drug program office, probation department and courts will work together to carry out the law (9). Although the rules do not establish a deadline for counties to submit the plan, DADP asked each county to submit its plan to the state by June 1. Fran Burton, a spokesperson for DADP, says department officials have released information on each county's spending plan.
Potential Problems
Funding issues already have arisen as a potential threat to the success of Proposition 36. Lack of funds, controversial rules about county spending plans, and an inability on the part of state officials to determine that funds are used properly appear to be the most significant concerns among interested parties in the early stages of the law's implementation.
Some critics have argued that the amount of money provided to counties from the Substance Abuse Treatment Trust Fund will be insufficient to expand treatment and probation programs to accommodate newly eligible offenders. In May, the LAO said that it was too early to conclude that county funds would fall short of the necessary levels, but acknowledged that its December 2000 report stated " ... additional resources beyond those appropriated by the measure would be needed in order to implement Proposition 36 in a more intensive and comprehensive way" (10).
The availability of additional resources for Proposition 36, however, appears unlikely. The May 2001 revision of Governor Gray Davis' (D) budget calls for cuts in funding for existing drug treatment services and drug court treatment programs (11). This would be a blow to Proposition 36 advocates, who claim that funding under the measure was intended to be used in addition to existing resources.
Another criticism of the law is that its prohibition on using funds for drug testing weakens the strength of mandated treatment. Some critics argue that without frequent monitoring of an offender's progress--a key component of the drug court model--reliable treatment results cannot be produced.
Finally, early reports on county spending plans have caused concern among some that the law will not be uniformly applied across the state, and that not all counties will use their funds to appropriately enhance substance abuse treatment. Although an official report on all 58 county spending plans has not been produced, treatment advocates are concerned that some counties are choosing to allocate a greater portion of funds to public safety than to treatment.
LAO Recommendations
The LAO recommends a number of funding options that the state of California may pursue to aid its 58 counties in paying for Proposition 36. LAO suggests that the state could provide "modest additional resources" at no net cost to the general fund, either by using non-general fund resources, such as federal funds and private insurance coverage, or by redirecting general fund savings that will accrue to the state as a result of Proposition 36 implementation (12).
In order to provide for " ... more intensive and more comprehensive implementation of Proposition 36," however, the LAO suggests a number of other funding avenues for the state to pursue. These include making use of federal block grant funds and eligibility for California Work Opportunity and Responsibility to Kids (CalWORKs) Services, counting welfare spending as matching funds, and funding drug treatment with Medi-Cal funds and Workforce Investment Act funds. (13)
Table 2. Proposition 36 FY 2000-01 Revised County Allocations and Funds Distribution
March 23, 2001* (14)
|
County |
Total Allocation |
County |
Total Allocation |
|
Alameda |
$2,749,706 |
Orange |
$3,985,452 |
|
Alpine |
$77,442 |
Placer |
$437,586 |
|
Amador |
$116,356 |
Plumas |
$132,080 |
|
Butte |
$371,814 |
Riverside |
$2,116,687 |
|
Calaveras |
$145,809 |
Sacramento |
$2,107,887 |
|
Colusa |
$125,525 |
San Benito |
$126,467 |
|
Contra Costa |
$1,548,107 |
San Bernardino |
$2,778,228 |
|
Del Norte |
$128,526 |
San Diego |
$4,536,627 |
|
El Dorado |
$289,871 |
San Francisco |
$2,298,950 |
|
Fresno |
$1,494,459 |
San Joaquin |
$971,658 |
|
Glenn |
$117,807 |
San Luis Obispo |
$400,046 |
|
Humboldt |
$246,226 |
San Mateo |
$1,097,224 |
|
Imperial |
$358,386 |
Santa Barbara |
$956,481 |
|
Inyo |
$109,277 |
Santa Clara |
$2,491,506 |
|
Kern |
$1,193,083 |
Santa Cruz |
$504,300 |
|
Kings |
$240,237 |
Shasta |
$337,846 |
|
Lake |
$176,805 |
Sierra |
$85,622 |
|
Lassen |
$129,887 |
Siskiyou |
$194,400 |
|
Los Angeles |
$15,721,862 |
Solano |
$623,595 |
|
Madera |
$227,051 |
Sonoma |
$854,555 |
|
Marin |
$391,282 |
Stanislaus |
$734,416 |
|
Mariposa |
$101,759 |
Sutter |
$191,604 |
|
Mendocino |
$232,935 |
Tehama |
$168,333 |
|
Merced |
$367,698 |
Trinity |
$103,693 |
|
Modoc |
$91,743 |
Tulare |
$705,303 |
|
Mono |
$117,900 |
Tuolumne |
$151,087 |
|
Monterey |
$604,038 |
Ventura |
$1,191,503 |
|
Napa |
$254,541 |
Yolo |
$374,530 |
|
Nevada |
$192,185 |
Yuba |
$201,164 |
Source: California Department of Alcohol and Drug Programs, Proposition 36 FY 2000-01 Revised County Allocations and Funds Distribution, March 23, 2001.
Eligibility for Proposition 36 Treatment
Proposition 36 allows judges to order drug treatment rather than jail time for defendants convicted of possession or use crimes. However, Proposition 36 does not mention related crimes, such as possession of drug paraphernalia. The Anaheim city attorney's office appealed several cases in which the charge was possession of drug paraphernalia but not possession of drugs and those in which the defendant was sentenced under Proposition 36 even though they were arrested before July 1, 2001. The appellate case was part of the debate over how broadly Proposition 36 should be interpreted. Proposition 36 applies only to certain types of crimes. The goal of the appeal was to have the appellate court clarify eligible and noneligible offenses. Defense attorneys argued that the appeal went against the spirit of Proposition 36 (15).
Anaheim prosecutors dropped the appeal on August 30, 2001. The city attorney also dropped further appeal on the cases of nine defendants in connection with the issues of possession of drug paraphernalia charges and pre-July 1, 2001 arrests. An August 15, 2001 ruling by the Superior Court Appellate Department against the city upheld misdemeanor trial court judges who extended Proposition 36 to defendants charged before July 1, 2001. The ruling also stated that defendants were eligible for Proposition 36 treatment programs if they were charged with possession of drug paraphernalia but not of possessing drugs. Judges Frank Fasel and Nancy Wieben, who made the ruling, said that the voters' intent would not be fulfilled and there would be absurd results if those arrested only for possession of paraphernalia were denied the same Proposition 36 treatment. Many judges throughout California allow Proposition 36 treatment for drug defendants who were arrested prior to July 1, 2001. The Anaheim city attorney's office was prompted to end the current appeal by judges Fasel's and Stock's ruling. The Orange County district attorney's office argues that the law provides for Proposition 36 treatment for those arrested for possession of drugs and paraphernalia but is silent on those arrested only for possession of paraphernalia, that drug offenders should receive Proposition 36 treatment only if their offenses are specifically listed in the statute, and that the court's ruling incorrectly expands the program. The dropping of the appeal removes a major uncertainty for judges who hear Proposition 36 cases. Those in the public defender's office are pleased that Anaheim dropped the appeal because they feel that the defendants were eligible and the judges were acting consistently with the intent of the law (16).
Preliminary Findings: Data and Early Findings from July 1, 2001 through June 30, 2002
Proposition 36 was implemented in California's 58 counties on July 1, 2001. The Department of Alcohol and Drug Programs (ADP) released Substance Abuse and Crime Prevention Act of 2000 (SACPA - Proposition 36): Second Annual Report to the Legislature in December 2003. The report contains early data and findings from July 1, 2001, through June 30, 2002 (17).
This report provides information for the period from July 1, 2001 through June 30, 2002, the first full operational year of the Substance Abuse and Crime Prevention Act of 2000 (SACPA). It incorporates information from the first report and presents findings from the university evaluation, as well as program information from the California Department of Alcohol and Drug Programs (18).
SACPA offers adults covicted of nonviolent drug possession offenses the opportunity for substance abuse treatment instead of incarceration. Treatment must be provided through ADP licensed or certified drug abuse treatment programs (19).
Report Timeframe
Subsequent to approval of the initiative in November 2000 state and county agencies engaged in significant planning and development activities in order to implement the new law on July 1, 2001. During this period, the Department of Alcohol and Drug Programs distributed start-up funds and state-county workgroups developed and put in place processes and procedures needed to begin treating clients in July 2001.
Participation
SACPA participation is voluntary and reflects a positive decision on the part of the offender to engage in treatment through SACPA. Since SACPA only provides services to those convicted of certain drug crimes, individuals who choose not to participate in SACPA must either choose from another available program, such as those available pursuant to Penal Code Section 1000 or through Drug Courts, or choose routine criminal justice processing.
Between July 1, 2001 and June 30, 2002:
- Local courts identified 53,697 offenders as eligible for the program.
- Of the eligible individuals, courts referred 44,043, or 82 percent of the total for assessment.
- Of those individuals referred, 37,437, or 85 percent completed assessment.
- Finally, of those individuals completing assessment 30,469, or 69 percent of those referred from court entered treatment.
SACPA Client Characteristics
Based on self-reports, we identify the following drug use characteristics of the SACPA treatment population after one year of program operation:
- SACPA clients report long drug use histories: Almost 58 percent report at least 11 years of use.
- Fifty-five percent of all SACPA clients report that this is the first time they received treatment services.
- Methamphetamine is the primary drug problem for 50 percent of SACPA clients.
- Cocaine (and crack) is the primary drug problem for another 15 percent of SACPA clients.
- Marijuana, heroin and alcohol are the primary drugs for about 33 percent of SACPA clients--about 11 percent for each drug.
- Approximately 72 percent of the SACPA population was male.
- The largest group of SACPA clients was non-Hispanic Whites (48 percent), followed by Hispanics (31 percent), and African Americans (14 percent).
An analysis of department data for this period indicate SACPA, non-SACPA criminal justice and non-criminal justice client populations are similar in gender distribution, age at admission, and race/ethnicity distribution. SACPA and criminal justice referrals cite methamphetamine as their primary drug, while the non-criminal justice population cited heroin as their primary drug.
Treatment Services
One concern during SACPA implementation was how counties would respond to SACPA treatment needs. Treatment services vary by county. Not all counties offer the full range of services. Most counties offer several treatment modalities, which may include regular and intensive outpatient treatment (with or without medications), short- and long-term residential treatment, both hospital and non-hospital detoxification services, and narcotic replacement therapy.
In addition to variations in the number and types of treatment modalities offered by counties, there are differences in the duration of client treatment episodes. Many factors affect county treatment duration decisions, including available funding, availability of treatment capacity, and appropriate treatment level for that county’s clients. It is important to note that some treatment interventions, such as detoxification, are short duration interventions by design. While not all clients need long-term services, many experts believe that clients who experience a longer treatment episode have better outcomes.
Eighty-six percent of SACPA clients placed in treatment received only outpatient drug-free services. Sixty-five percent of the SACPA outpatient clients remained in treatment for at least 90 days. Of the remaining 14 percent of SACPA clients, 10 percent received treatment in longterm residential treatment facilities, and 43 percent of these SACPA residential clients remained in treatment for at least 90 days. Two percent of the remaining clients received short-term residential treatment, (designed to be no longer than 30 days), and two percent received other short term treatment interventions. Treatment duration rates for SACPA clients were similar to treatment duration rates for non-SACPA clients in publicly funded substance abuse treatment for the same time period.
Capacity and Service Delivery
One concern expressed by proponents of SACPA was that treatment capacity would be inadequate to meet program needs. Of the 1,061 programs that were in operation before November 2000, 663 were licensed residential facilities with 15,927 beds. In addition, 398 programs were certified outpatient programs. In response to SACPA, the treatment community made significant increases in treatment capacity.
Between November 2000 and July 2002, the number of licensed and certified treatment programs increased from 1,061 to 1,592 (a 50% increase overall). Of the new sites, 139 are new licensed residential facilities (a 21 percent increase) with 3,530 residential beds (a 22 percent increase), and 392 are new certified outpatient programs (a 99 percent increase).
Implementation
Developing and implementing the SACPA initiative required eight months of close cooperation by ADP and the counties. Although the State has oversight responsibilities, SACPA is a countyadministered program. As such, county variation in criminal justice policies and practices necessitated many local changes to support successful program implementation. In addition, SACPA required substantial collaboration among criminal justice, treatment, and county administrators. These activities required significant work for staff in each set of programs.
During implementation, county representatives expressed concern about the sufficiency of funding in future State Fiscal Years (SFYs) as programs move to full operation. These concerns centered on treatment costs associated with "high need" offenders who entered SACPA in greater numbers than expected.
Offender Management Strategies
Early reports from counties show considerable variation exists in county offender management strategies for clients who choose to participate in SACPA. Counties developed innovative techniques to promote assessment and treatment access, such as co-location of courts and assessment facilities, and walk-in assessment availability. Most counties also report increased cooperation and interaction between criminal justice agencies and alcohol and drug treatment agencies.
Funding and Expenditures
The SACPA initiative includes annual appropriations of $120 million to support operation of the program. As part of SACPA implementation, ADP developed a county allocation formula in accordance with Health and Safety Code Section 11999.6. This allocation took into account provisions allowing ADP to retain up to one-half of one percent (0.5 percent) of the funds to support the long-term independent evaluation, and up to five percent for state administrative costs. ADP distributed $117 million to counties in SFY 2001/02. Of the SFY 2001/02 allocation, counties spent a total of $88.3 million on treatment and other services to SACPA clients (20).
The Health Policy Tracking Service will continue to monitor the implementation of Proposition 36 obtaining available state-wide information and reports from a select number of counties.
Other State Laws and Programs
Arizona
Arizona voters approved Proposition 200, the Drug Medicalization, Prevention and Control Act, in the state's November 1996 general election, and the law became effective Dec. 7, 1996. The act called for increased drug treatment and education services for drug offenders and the diversion of nonviolent offenders from prison to probation. It also established the Drug Treatment and Education Fund (DTEF), which is administered by the Administrative Office of the Courts (AOC) (21).
In November 2001, the AOC prepared a report, as required by the 1996 law, analyzing the cost avoidance that had resulted from the act and evaluating the effectiveness of the treatment provided to parolees by the DTEF program. The following information is taken from that report, Drug Treatment and Education Fund Annual Report: Fiscal Year 2000.
Drug Treatment Education Fund (DTEF)
Arizona's DTEF is funded by a percentage of state liquor tax revenue. Fifty percent of the money in the fund is used to pay for probationer drug treatment and the remaining 50 percent is provided to the Arizona Parents Commission on Drug Education and Prevention for programs that educate parents about the dangers of substance abuse and increase parental involvement in prevention.
The money provided to local probation departments for treatment programs initially was allocated according to a formula, as required by Proposition 200, based on each county's at-risk population, the number of arrests for possession and sale of drugs, and the number of first-time drug possession and convictions in that county in fiscal year 1996. Treatment programs officially began in January 1997, after each department submitted a plan to the AOC detailing how it would use funds to provide the required treatment.
Arizona Justice Model
According to the AOC report, officials developed the Arizona Justice Model to address the co-occurring problems of substance abuse and criminal conduct among probationers. The idea behind the model is to incorporate "cognitive-behavioral and social learning approaches" with more traditional types of substance abuse treatment to achieve the best results in offenders.
An essential part of this model, says the AOC, is effectively screening and assessing the offender when the offender first enters the system, to determine the severity of his or her problem. This requires cooperation between the treatment provider and the probation system.
Most important to the model, however, according to the AOC report, is the continuum of services that makes use of several different programs, such as Substance Abuse Education Programming for low-risk offenders; Standard and Intensive Outpatient Programming for medium low-risk to medium high-risk offenders; and Day Treatment, Short-Term and Long-Term Residential, for high-risk offenders.
Outcomes
The report found that the program was working as planned in both areas--the state avoided costs and people were effectively treated.
According to the report, in FY 1999 the state avoided $9,994,572 in prison costs and spent $3,663,883.75 on treatment services. Therefore, the state realized net costs avoided (prison costs minus total treatment services) of $6,330,688.25. Moreover, officials concluded that the drug treatment and education funds were adequate to meet the increased demand for treatment services under the diversion program, and that the majority of offenders were completing treatment and passing drug tests. A summary follows of some of the other major findings.
- In FY 1999, 5,397 probationers participated in substance use treatment funded by the DTEF.
- Of those, 5,397 probationers, 1,652 (31 percent) were mandatorily sentenced to probation pursuant to the Act and 3,745 (69 percent) were probationers in need of treatment.
- A total of $3,663,883.75 was expended by adult probation departments throughout the state to provide treatment services to the 5,397 probationers.
- As of the end of FY 2000, 4,027 of the 5,397 probationers ended treatment and of these, 54% complied with the treatment requirements.
- Standard outpatient treatment was the most frequently used treatment intervention (65 percent).
- The average substance abuse treatment cost per probationer who entered treatment during fiscal year 2000 was $678.87.
- As a result of this Act, the most realistic prison cost avoidance is estimated to be $9,994,572 during fiscal year 2000.
Recidivism data were not reported for FY 2000 because not enough time had elapsed since program inception for data collection to accurately reflect recidivism rates.
Alabama
In 1985, the Court Referral Officer Program (CRO Program) began as one method of reducing the devastating problem of drunk driving. It was a pilot program to assist judges in early identification and placement of DUI offenders. In April 1990, the Alabama Legislature unanimously passed the Mandatory Treatment Act of 1990 (MTA). The purpose of the MTA, as stated in Section 12-23-2, is "To establish a specialized Court Referral Officer Program to promote the evaluation, education and rehabilitation of persons whose use or dependency on alcohol and drugs directly or indirectly contributed to the commission of an offense for which they were convicted in state or municipal courts and to establish mandatory alcohol and drug abuse treatment programs to provide treatment and rehabilitation for these identified offenders." Court referral officers (CROs) have provided services to defendants in a broader spectrum of cases related to alcohol and drug use or abuse since the implementation of the MTA. From 1990 to 2000, CROs evaluated, referred, monitored and provided drug screening services for more than 150,000 defendants. This program is governed by the Administrative Office of Courts (AOC) (22).
The Court Referral Officer Program (CRO Program)
CROs provide a thorough evaluation using the operational screening criteria (OSC) and validated testing instruments and make appropriate recommendations for each defendant. This information ensures that the court will place each defendant in the most appropriate program to supplement traditional judicial sanctions. When a judge offers the choice of jail or help for an offender's drinking or drug problem, it can be one of the simplest yet most effective means of increasing the likelihood that the offender will not return to court on later substance abuse-related charges. Local court referral programs were developed to provide education and treatment for defendants with alcohol and drug abuse-related offenses. These programs were designed not to replace judicial sanctions, but to be used in conjunction with court orders (23).
The goal of the CRO is to promote the education and rehabilitation of court-ordered defendants. The program uses a systems approach to assist courts in managing cases by networking all available state and community resources. The CRO reduces recidivism in cases associated with alcohol and other drugs through the use of Level I/Level II education programs and treatment programs. Specific problems exhibited by defendants may be overcome by using other community resources, such as driver education, anger management, adult education, etc. Defendants assess their problems related to substance use or abuse and get appropriate help to change their lifestyles and avoid recidivism because of the requirement to complete the court referral program. To determine the nature and extent of sanctions needed and to handle the imposition of such supplemental sanctions, the judge uses professional assistance from the CRO. The CRO provides evaluation, screening, an individualized case plan and monitoring for each defendant; technical assistance for judges, clerks, probation officers, law enforcement officers, substance abuse treatment centers and others; assistance in the establishment of guidelines for the CRO Program; and collaboration with national and other state organizations and the judicial system (24).
Under Section 12-23-4(a) of the MTA, the AOC has the legislatively mandated responsibility to establish and certify court referral programs (CRPs) and CROs in Alabama. Section 12-23-4(b) establishes the duties and requirements of the CRO, and section 12-23-4(a) establishes supervision by the administrative director of courts and judges of the circuit. Section 12-23-4(a) of the MTA states that, "Court Referral Officers shall work under the general supervision and direction of the administrative office of courts and the judges of the circuit to which they are assigned." To establish and maintain CRO services of the highest quality, the AOC has adopted rules and regulations that would avoid any appearance of a conflict of interest or impropriety that may place courts, the CRO or the sponsoring agency in a defensive posture. The CRO maintains a professional relationship with the courts, the defendant and court referral agencies and adheres at all times to the regulations and standards (25).
Drug Testing Program
Section 12-23-7 of the MTA states that "Any person who is convicted of an alcohol or drug-related offense and who is placed on probation or parole shall be required to participate in an alcohol or drug testing program at his own expense, unless he is determined to be indigent." The law requires these defendants to submit to drug testing. If convicted defendants fail to comply with the court referral program's drug testing, then CROs should request that judges place those defendants on probation for a minimum of one year with a lengthy suspended sentence (six months is suggested). Section 12-23-4(b)(8) of the MTA states that a CRO will "collect and report information to the courts concerning results of urine screens, drug testing or other appropriate evaluative measures" (26).
Court Referral Diversion Program
When the Alabama Legislature passed the MTA, pretrial diversion from alcohol and drug prosecution was instituted. Section 12-23-5 of the MTA states that "Any person arrested or charged with the violation of a controlled substance offense as set forth in Sections 13A-12-212, 13A-12-213 or 13A-12-214 may file a request with the district attorney having jurisdiction over the offense to enroll in a drug abuse treatment program in lieu of undergoing prosecution. Admission to such treatment program and deferral of prosecution may be granted at the discretion of the district attorney. The office of prosecution services shall establish guidelines, which shall be used by the prosecutor in evaluating the request for diversion from the criminal justice system into rehabilitation." A defendant who is determined to be eligible for the CRO Diversion Program must complete a drug or alcohol testing program (27).
A defendant or his or her attorney must file a petition with the court requesting to file an application for diversion with the Office of the District Attorney in order to qualify for the diversion program. According to the MTA, the prosecutor shall initiate charges against a defendant if he or she fails to complete treatment and pay the required costs. The diversion program is not intended to allow defendants to elude punishment. Only defendants with alcohol and other drugs of abuse (AODA) problems may use this opportunity to seek and receive help (28).
At least two testing instruments should be used to address AODA. It is essential that drug screening in the diversion program be random. CROs must take great care in the documentation and case management of all diversion defendants and must follow policies and procedures. The needs of the applicant will dictate the level of treatment and monitoring. According to AOC policy, the minimum length of time that a defendant must participate in the diversion program is one year (29).
Section 12-23-6 states that "At a minimum, every defendant who is not referred directly to drug or alcohol treatment shall be required to complete an alcohol and drug education program certified by the Administrative Office of Courts" (30).
Outcomes
Ed Stevens, J.D., Ph.D., Department of Criminal Justice and Social Sciences, and Henry M. Findly, Ph.D., Department of Marketing Management and Economics, of Troy State University submitted a report entitled An Evaluation of the Alabama Administrative Office of Courts' Court Referral Officer Program in September, 2000. The following outcome data is taken from that report.
A review of survey results of 284 former CRO Program participants produced the following results:
- 80 percent report that the program has made a difference in their lives.
- 75 percent do not feel that they currently have a drug problem and a similar number report that they have solved their drug problem.
- 62 percent report not drinking any alcohol since completing their respective treatment programs.
- 96 percent state that they are no longer using illegal substances on a weekly basis.
- 90 percent reported no arrests at all after completing the program.
- 82 percent report fewer overall legal problems.
- 79 percent state that their family relationships have improved since entering the program.
- 66 percent feel that their friendships have greatly improved.
- 62 percent feel that their health problems have been significantly reduced.
- 78 percent are presently employed.
- 31 percent state that their current job is better than one they had before entering treatment.
- 56 percent feel that their particular job situation has improved.
Participants in the Level III program reported a significantly higher improvement in their job situation and that they have a better job than the one they possessed prior to program entry. Significantly higher gains in improvement with their friendships also were reported by Level III participants. Level III participants have the lowest alcohol consumption and substance abuse after treatment than those who graduated from levels I and II.
Very few differences were seen in the results for all former program participants and individuals who had completed the treatment program more than one year ago. This suggests that the results of the CRO treatment program are of long-term duration. Arrests and convictions were significantly higher for those who completed the program at least 12 months ago. The individuals who had been out of the program for more than one year were significantly less likely to be employed and significantly less likely to feel that the program had helped them.
A review of survey results of 128 judges who work with CROs in Alabama circuit, district and municipal courts produced the following results.
- 75 percent were overwhelmingly supportive of the program and do not believe the program should be discontinued or modified in any way.
- 25 percent want to enhance and extend the program, primarily through the addition of more CROs.
- 90 percent indicate satisfaction with the CRO program; a similar percentage feel that the program is effective and is necessary to ensure proper functioning of the current Alabama court system.
- 80 percent of the comments by judges indicated that CROs are essential in fighting alcohol and drug abuse in Alabama.
- 90 percent report an excellent working relationship with the CROs with whom they work.
- 87 percent of the judges feel that the cases now are processed promptly or very fast as compared to only 39 percent before the beginning of the CRO program.
- 28 percent report a greater than 60 percent increase in court efficiency.
- 55 percent indicate that most, if not all, fines were paid before the program implementation as compared to 85 percent under the CRO program.
- 87 percent feel that the CRO program is a necessary part of the criminal justice system.
The judges reported that a conflict of interest exists because the CROs are working for the same people who attend their classes. This is a matter of serious concern because it may affect the effectiveness and credibility of the CRO Program.
All CROs were asked to complete a questionnaire and to rank the factors they felt were strengths and weaknesses of the program. The following are the results from the 44 CROs that responded.
- The CRO self-assessment results are as follows.
- The average caseload for CROs is 140 clients per month.
- CROs make an average of 305 client contacts per month.
- CROs appear in court an average of 73 times per year.
- During the past four years, the average number of new case referrals per CRO was 26.3 per month.
- During the past four years, the average number of participant monitoring sessions per CRO was 54.5 per month.
- The closeness of CROs' relationships with city courts was in the 50 percent to 60 percent range.
- The closeness of CROs' relationships with Circuit Courts was in the 70 percent to 80 percent range.
CROs ranked the major strengths of the program as follows.
- The fact that they are able to provide treatment to those who might not seek it;
- CROs provide people with ways to recover from alcohol and drug addiction;
- They provide offenders with ways to create support systems; and
- Court Referral Officers are able to provide support for judges and alternatives to the incarceration of program participants.
CROs ranked the major weakness of the program as follows.
- Poor follow-up with clients;
- Too much paperwork without computers to assist;
- A lack of support for their efforts from judges or the courts; and
- Low CRO compensation and employment benefits.
A recidivism study using questionnaires completed by 224 former program participants yielded the following recidivism data.
- 197 had no alcohol or drug-related offenses subsequent to completing the program.
- 12.1 percent recidivism rate for individuals completing the CRO Program in 1996 to 1999.
These results were compared with the results of a 1990 Auburn University study. That study compared recidivism rates in counties that already had implemented the CRO Program with rates in counties that did not yet have the program. Those results then were time-adjusted so that the amount of time that defendants had in which to commit crimes was equalized. That yielded recidivism rates of 17.1 percent raw data for those who completed CRO, 25.2 percent raw data for those who did not participate in CRO, 18.4 percent time-adjusted data for those who completed CRO and 19.3 percent time-adjusted data for those who did not participate in CRO.
The researchers then examined how many of the individuals who began the CRO Program completed it and broke down those results according to race, gender, age groups and prior criminal history. The results are as follows.
- The percentage of blacks who did not complete the program is almost twice as large as the percentage of Caucasians who did not complete it.
- No significant relationship was found between the gender of a participant in the CRO Program and whether the participant completed the program.
- No significant relationship was found between the age of a participant in the CRO Program and that participant's age.
- The more convictions a program participant had prior to entering the program, the less likely it was that he or she would complete the program.
The researchers broke down recidivism rates according to race, gender and age. No significant interaction with recidivism was found with respect to any of these demographic variables.
They also broke down recidivism rates according to treatment level. The results are as follows.
- 8.1 percent of the program participants assigned to Level I recidivated.
- 9.9 percent of the participants assigned to Level II recidivated.
- 22.4 percent of the participants assigned to Level III recidivated.
Legislative and Policy Activity in 2001
During the 2001 legislative session, many state legislatures considered bills that would enhance treatment options for people convicted of drug and alcohol related offenses or for people at risk for becoming involved with the criminal justice system. Most of the measures that were enacted either provide for treatment as an alternative to incarceration for nonviolent offenders or provide increased access to treatment for those who already are serving prison time. In addition, several states passed laws to expand drug court programs. An overview of notable 2001 state laws follows.
In May 2001, Governor Jeb Bush (R) signed two bills into law that will expand access to treatment for substance abuse in Florida.
The first measure (House Bill 199) provides for the implementation of treatment-based drug courts in each of the state's judicial circuits. The bill's authors say their goal is to reduce " ... crime and recidivism, abuse and neglect cases, and family dysfunction by breaking the cycle of addiction which is the most predominant cause of cases entering the justice system."
The new law directs each judicial circuit to establish a model of a treatment-based drug court, through which people in the justice system who are assessed with a substance abuse problem will be placed in treatment programs tailored to their individual needs. Drug court models may be established in the misdemeanor, felony, family, delinquency, and dependency divisions of the judicial circuits, as long as they include therapeutic jurisprudence principles and adhere to the 10 key components recognized by the U.S. Department of Justice and adopted by the Florida Supreme Court Treatment-Based Drug Court Steering Committee.
The law also establishes the Florida Association of Drug Court Professionals, who will make recommendations to the state Supreme Court Treatment-Based Drug Court Steering Committee each year, on or before October 1, beginning in 2002.
A second new Florida law (Senate Bill 912) amends state statutes on criminal rehabilitation, particularly for those who have committed substance abuse-related offenses. The measure, which creates the Addiction-Recovery Supervision Program Act, includes a number of treatment provisions, some of which are listed below.
- Gives the Department of Corrections additional responsibilities for assisting released inmates in their transition into the community;
- Mandates and expands substance abuse treatment for offenders;
- Expands faith-based initiatives for offenders;
- Provides post-release supervision for certain drug-addicted inmates;
- Provides privately operated transition housing assistance programs for released inmates;
- Requires two members on the Statewide Drug Policy Council to have expertise in faith-based substance abuse treatment services and requires the council to make recommendations about drug court expansion; and
- Provides an appropriation of $5 million.
Members of the Hawaii Legislature adopted a resolution (Senate Concurrent Resolution 62) to improve inmate rehabilitation programs. The resolution directs the State Department of Public Safety to implement programs of restorative justice and establish wellness centers to reduce the rate of incarceration and increase opportunities for inmate rehabilitation, particularly among native Hawaiians.
According to the measure, “ … the Director of Public Safety has stated that eighty to ninety percent of Hawaii prisoners have substance abuse problems, and that twenty-five percent of the people who entered prison in 1999 did not commit new crimes but failed substance abuse urine tests while on probation or parole.” With that in mind, lawmakers request that the Department of Public Safety take the following actions.
- Review and implement alternatives to transferring inmates from Hawaii, particularly native Hawaiians, to U.S. mainland correctional facilities;
- Establish restorative justice programs and wellness centers on each island to assist inmates in the process of rehabilitation to return to their communities without resorting to substance abuse or other destructive behaviors;
- Review alternatives to mandatory sentencing laws and incarceration for those who are in need of treatment for substance abuse and related problems;
The resolution directs the Department of Public Safety to report its findings and recommendations, including any proposed legislation, to the legislature no later than 20 days before the convening of the Regular Session of 2002 convenes.
In his 2001 state-of-the state address, Governor Ben Cayetano (D) announced plans to introduce a more substantial drug-law reform measure, saying "It's time for a shift in philosophy here in Hawaii. Therefore, I will submit legislation that will mandate treatment instead of punishment for non-violent, first-time offenders." The governor noted the success of Arizona's law, as well as his belief in the potential success of Proposition 36 in California. Legislation to this effect, however, failed to pass both chambers of the Hawaii Legislature.
Lawmakers in Idaho expanded the state's drug court system in 2001. Senate Bill 1171, signed by Governor Dirk Kempthorne (R) in April 2001, authorizes the district court in each county to establish a drug court program and stipulates that each program must include a regimen of graduated sanctions and rewards, substance abuse treatment, close court monitoring and supervision of progress, and educational or vocational counseling.
The new law provides that no person has a right to be admitted into a drug court program; rather, the individual drug court will determine each candidate's eligibility through a substance abuse assessment and a “criminogenic” risk assessment. No person will be eligible to participate in drug court program if:
- That person is charged with, has pled or has been adjudicated or found guilty of a violent felony or a felony in which the person used a firearm or deadly weapon.
- The person is charged with, has pled or been found guilty of a felony in which the person committed, attempted to commit, conspired to commit, or intended to commit a sex offense.
The law gives the state Supreme Court responsibility for administering all appropriations from the Legislature for drug courts, and it directs the Supreme Court to establish a drug court coordinating committee to oversee the programs. It also directs each district court to annually evaluate its drug court program's effectiveness and provide a report to the Supreme Court. A report evaluating the effectiveness of all drug courts in the state will be submitted to the governor and to the Legislature at the start of each legislative session.
Two new related laws provide funding for drug court programs and offender treatment. Senate Bill 1230 appropriates $170,000 to the Idaho Supreme Court for youth courts and community-based programs in the judicial districts that address tobacco use and substance abuse.
Senate Bill 1257 appropriates $576,000 for substance abuse treatment for participants in drug courts and $2.5 million to the Department of Correction to increase the percentage of inmates who receive substance abuse treatment from 30 percent to 80 percent. In addition, the law allocates $3.2 million to the Department of Health and Welfare for community-based treatment and prevention programs throughout the state.
In New Mexico, where Governor Gary Johnson (R) is an ardent supporter of drug law reform, the Legislature approved a comprehensive substance abuse treatment law that includes funding for treatment enhancements within the correctional system.
Senate Bill 628 directs the Corrections Department, in consultation with the Department of Health, to implement a residential evaluation and treatment center at an existing prison facility for selected nonviolent prisoners and parole violators. The Corrections Department is to incorporate substance abuse treatment with community reintegration programs as an alternative to prison for selected offenders with pretrial, probation, parole or technical parole violation status. According to the law, the programs will identify and effectively trace substance abusers in the criminal justice system and minimize the potential for repeat offenses and prison time served.
Funding for the programs will come from the state's tobacco settlement program fund. The measure appropriates $2 million to the Corrections Department and stipulates that $500,000 is to be used to implement the residential evaluation and treatment center. The law appropriates $1 million to the Department of Health to provide coordinated substance abuse and treatment services and community reintegration programs for those under supervision and parole of the Corrections Department.
Oregon passed legislation that supports efforts to reduce drug related crime, integrate local criminal justice and drug treatment strategies, and provide enhanced funding for community based drug treatment programs. The development of Senate Bill 914 was influenced by a growing body of research supporting coordinated drug treatment and supervision as a more effective policy to address drug abuse and crime than official punishment alone. The legislation requires local criminal justice and drug treatment planning groups to develop a comprehensive local strategy to integrate drug treatment into the criminal justice system for non-violent felony drug offenders and certain property offenders (31).
Senate Bill 914, along with two companion bills related to civil and criminal asset forfeiture (HB 2429 and HB 3642), dedicates a portion of state and local asset forfeiture to drug treatment. State forfeiture proceeds dedicated to this effort will be administered by the Department of Human Services, Office of Mental Health and Addiction Services and will be used to help counties carry out their plans (32).
Senate Bill 914 was sponsored by Senator Ryan Deckert of Washington County, Oregon and was signed into law by Governor John Kitzhaber on July 27, 2001. A work group including representatives from state and local law enforcement, treatment, judiciary, the courts, and the Governor’s Office developed the legislation through a collaborative process. This legislation had bipartisan support passing both the Oregon House and Senate unanimously. The Oregon Department of Human Services, Office of Mental Health and Addiction Services is the lead state agency responsible for implementing the legislation and is currently developing educational materials and planning guidelines to assist local planning groups (33).
Oregon has demonstrated leadership in the area of providing innovative and research based treatment alternatives to addicted offenders. The Multnomah County Oregon S.T.O.P. (Sanctions, Treatment, Opportunity, Progress) Program was the second ‘drug treatment court’ model implemented in the United States in the late 1980’s. According to a recent Oregon Judicial Department survey, there are currently twelve (12) adult drug treatment courts and an additional eight (8) in the planning stages. Drug treatment courts provide close supervision and drug treatment alternatives to non-violent drug offenders, providing the opportunity to participate in chemical dependency treatment. These models include rigorous abstinence monitoring, ongoing judicial oversight, and a coordinated strategy that governs responses to compliance or noncompliance with the program. A number of studies have been conducted locally and nationally demonstrating the drug treatment court model’s successful impact on reducing drug related crime and associated criminal justice and healthcare costs (34).
Team case management models have also been implemented in some Oregon jurisdictions whereby professionals from drug treatment, community justice and other human service providers work together with the drug involved offender to develop a plan for community based treatment and supervision (35).Language in Senate Bill 914 provides flexibility to local planners to develop models that best fit local priorities and resources. Unlike California’s Proposition 36 which is prescriptive regarding handling of drug cases and use of funds allocated to support the initiative, Oregon’s legislation allows local jurisdictions to evaluate local priorities and build plans based on local strengths and needs (36).
On March 1, 2001, Governor Jim Geringer (R) signed a bill (House Bill 82) that authorizes the state Department of Health to oversee the establishment of a system of local drug courts. The law requires drug court programs to meet five goals:
- Reduce alcoholism and other drug dependency among offenders;
- Reduce recidivism rates in both drug use and criminal activity;
- Reduce the drug related court workload;
- Increase the personal, familial and societal accountability of offenders; and
- Promote effective interaction and use of resources among criminal justice personnel, state agencies and community agencies.
It also creates a drug court account within the state special revenue fund and appropriates $1.5 million from the general fund to the account. Those funds will be directed to individual drug courts in amounts up to $200,000 each fiscal year.
To be eligible for state funding, local drug courts must meet a number of criteria specified in the new law. Criteria include integrating substance abuse treatment services with the justice system case processing, providing access to a continuum of substance abuse related treatment and rehabilitation services, and monitoring long-term abstinence by frequent drug and alcohol testing. House Bill 82 became effective July 1, 2001.
Related Studies
In March, Arkansas lawmakers adopted a resolution (House Resolution 1014) that directs the House and Senate Interim Committees on Judiciary to conduct a study concerning long-term drug treatment of criminal offenders who are addicted to methamphetamine or crack cocaine.
The measure also requests that the director of the Department of Community Punishment file a report with the committees by Sept. 1, 2001, concerning the department's programs to provide long-term drug treatment of criminal offenders who are addicted to methamphetamine or crack cocaine. The report should include 1) a description of the drug treatment program and options used by the department; 2) a list of the facilities used in the treatment program; 3) the number of offenders in each facility who are participating in the long-term treatment program; 4) the number and categories of treatment staff utilized by the program; 5) the average length of treatment; 6) the recidivism rate; and 7) any recommendations to improve the department's drug treatment of criminal offenders who are addicted to methamphetamine or crack cocaine.
In North Dakota, the legislature adopted a resolution (Senate Concurrent Resolution 4018) that directs the Legislative Council to study the mandatory minimum sentence requirements of the North Dakota Century Code and the mandatory minimum sentencing laws from other states and the federal government relating to drug offenders and report its findings and recommendations to the 58th Legislative Assembly (January 2003).
The Texas Legislature passed a law directing the Texas Council on Offenders with Mental Impairments to conduct a study and develop a comprehensive plan for juveniles with mental health and substance abuse disorders who are involved or are at risk of becoming involved in the juvenile justice system. The plan, due by Dec. 1, 2001, is to address:
- A process to define and identify juveniles with mental health and substance abuse disorders who come in contact with the juvenile justice system;
- A process to improve the coordination and communication among local and state entities;
- A review of mental health and substance abuse interventions that have proven to be effective for juvenile offenders, including an analysis of community-based, residential, institutional and aftercare treatment services and early intervention for young children at high risk of involvement in the juvenile justice system; and
- A review of applicable federal, state and local policy, procedure, rules, regulations, and financial or programmatic barriers that may affect the development and implementation of a comprehensive juvenile justice plan.
The new Texas law also authorizes the council to establish pilot programs—building on successful efforts in communities—to address prevention, intervention and continuity of care for juveniles with mental health and substance abuse disorders.
Virginia lawmakers also adopted a resolution with the goal of learning more about treatment options for offenders. Senate Joint Resolution 440 directs the Joint Commission on Behavioral Health Care, in conjunction with the Virginia State Crime Commission and the Virginia Commission on Youth, to study treatment options for offenders who have mental illness or substance abuse disorders.
In conducting the study, the Commission will examine 1) the incidence of mental illness and substance abuse among offenders; 2) the current system for delivering mental health and substance abuse services, including assessment, treatment, post-release, and follow-up; 3) model treatment programs for offenders; 4) the costs and benefits of private versus public treatment services; 5) the need for specialized training of local law enforcement and court personnel to identify and handle offenders with mental illness and substance abuse disorders; and 6) funding, sources of funding, and legislation required to ensure adequate assessment and treatment services.
The Joint Commission on Behavioral Health Care will provide a progress report concerning the study to the Senate Committee on Finance and the House Committee on Appropriations, and it must complete its work in time to submit its findings and recommendations by Nov. 30, 2001, to the Governor and the 2002 Session of the General Assembly.
Failed Ballot Measure--Massachusetts
California was not the only state to place a diversion initiative on the ballot in the November 2000 general election. In Massachusetts, voters rejected (52 percent to 48 percent) an initiative that would have created a Drug Treatment Trust Fund, similar to California's, to be used for the treatment of drug-addicted offenders (37).
Specifically, the treatment program created by the law would have been available to those charged with a first or second offense of manufacturing, distributing or dispensing a controlled substance; or possessing a controlled substance with the intent to do any of those things; or trafficking 14 grams to 28 grams of cocaine. Those who are at risk of becoming drug dependent would have been allowed to request that the court allow them to enter the program. Criminal charges would be dismissed for those who successfully completed the treatment program (38).
Money in the fund would have been used in addition to existing state drug treatment funds, rather than replacing those funds. Revenue in the fund was to be generated by fines paid under the state's criminal drug laws, money forfeited due to its use in connection with drug crimes, and the proceeds from selling property forfeited due to its use in connection with drug crimes (39).
Federal Activity
On January 23, 2001, Senator Barbara Boxer (D-Calif.) introduced a bill that would reward states that place nonviolent drug offenders in substance abuse treatment programs instead of prison. The Treatment on Demand Assistance Act (Senate 160), would authorize an additional $125 million per year for five years to provide matching grants to those states and would double federal funding to all states for drug treatment to $6 billion by FY 2006. Senator Boxer's bill was read twice and referred to the Committee on Health, Education, Labor, and Pensions.
On May 8, 2001, Senator Boxer introduced another bill for the Treatment on Demand Assistance Act (Senate 843). This bill was read twice and referred to the Committee on Health, Education, Labor, and Pensions.
On May 17, 2001, Representative Calvin M. Dooley (D-Calif.) introduced a companion bill in the House for the Treatment on Demand Assistance Act (House 1896). This bill was referred to the Committee on Energy and Commerce, and in addition to the Committee on the Judiciary, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned. It was also referred to House Energy and Commerce and later referred to the Subcommittee on Health. The bill was also referred to House Judiciary and later referred to the Subcommittee on Crime.
Legislative and Policy Activity in 2002
On May 21, 2002, Governor Jane Dee Hull (R) signed a bill (House Bill 2313), which provides that a county may use its transaction privilege tax to increase drug court admissions to include preadjudicated defendants and expanding drug court jurisdiction.
On September 13, 2002, Governor Gray Davis (D) signed a bill (Senate Bill 1447), which provides that reimbursement paid to a narcotic treatment program provider by a county for services provided to clients pursuant to Proposition 36, and for which the client is not liable for paying, does not constitute a usual and customary charge to the general public.
On June 5, 2002, Governor Jeb Bush (R) signed a bill (Senate Bill 570), which creates a 2-year community-based program in Pinellas County and Hillsborough County that shall include early intervention for a person convicted of prostitution, as defined in section 796.07(1)(a), Florida Statutes. Any person convicted two or more times under section 796.07, Florida Statutes, shall undergo screening and evaluation for substance abuse prior to sentencing. After screening and evaluation for substance abuse, the person shall enter into a court-authorized substance abuse treatment program, if recommended.
The proposed program shall be called Project HOPE (Healthy Options Promoting Esteem). Project HOPE shall provide services that include intake and screening, initial drug screening and urinalysis tests, psychosocial assessments, case management, short-term supportive counseling, community referrals, and referrals to residential and nonresidential drug treatment.
On June 7, 2002, Governor Benjamin J. Cayetano (D) signed a bill (Senate Bill 1188), which provides diversion for first-time nonviolent drug offenders. Hawaii had a lengthy public debate about whether drug addicts deserve treatment more than incarceration. About 85 percent of Hawaii's approximately 5,200 prison inmates have drug problems. Governor Cayetano has pushed in recent years for more drug treatment programs, especially for prison inmates. He proposed bills to repeal a law imposing mandatory jail time for some offenses involving crystal methamphetamine, and to require treatment instead for first-time nonviolent drug offenders under a system modeled after programs in Arizona and California. House and Senate Judiciary committees initially killed those measures, saying they would conflict with the state's Drug Court Program, which allows offenders to avoid prison by successfully completing drug treatment.
On April 30, 2002, the House and Senate adopted the conference committee version of Senate Bill 1188. The law will divert nonviolent, first-time offenders to drug treatment programs instead of sending them to prison. Groups who backed the measure included the Drug Policy Forum of Hawaii and the Community Alliance on Prisons. Proponents of the measure told lawmakers that drug treatment programs cost half the amount of keeping someone in prison.
The bill had the support of Health Director Bruce Anderson and Public Safety Director Ted Sakai. As approved, the bill requires judges to sentence people convicted of drug possession to probation and drug treatment. This applies to people with criminal records who are "non-violent," so long as they were never convicted of a previous drug offense. It is up to state judges to determine which convicts are considered "non-violent" after assessing the prisoner's criminal history, the circumstances of the drug offense and any other relevant factors. Under the bill, people cannot be considered "non-violent" if they were convicted of a violent felony in the past five years, but the judges decide who else might be eligible. Although the Legislature did make $2.2 million available for drug treatment for people on probation, parole or awaiting trial, that is not expected to be nearly enough money to provide treatment to all who need it. The bill does not specifically say what happens when judges are required to sentence people to treatment, but no treatment slots are available.
The act shall take effect on July 1, 2002.
On March 28, 2002, Governor Frank O'Bannon (D) signed a bill (Senate Bill 323), which provides that a court having felony, misdemeanor or juvenile jurisdiction in a city or county may establish a drug court under the court's operation. A court establishing a drug court under this chapter may establish uniform rules and may make special orders and rules as necessary. A drug court established under this chapter and accompanying services are open only to individuals over whom the court that established the drug court has jurisdiction.
A drug court established under this chapter may provide a range of necessary intervention, treatment and rehabilitation services for eligible individuals. A drug court established under this chapter may not provide direct treatment or rehabilitation services unless certain exceptions are met.
On March 25, 2002, Governor John Engler (R) signed a bill (House Bill 4859), which amends the existing diversion law. If an individual is placed on probation without a judgment of guilt for a drug possession or drug use offense, and then is discharged and the proceedings are dismissed upon fulfillment of the terms and conditions, the department of state police shall retain a nonpublic record of the arrest and discharge or dismissal, which shall be furnished to the state department of corrections or a law enforcement agency, upon the department's or law enforcement agency's request, for employment purposes only.
On June 12, 2002, Governor Howard Dean, M.D. (D) signed a bill (House Bill 213), which establishes a pilot project, creating drug court initiative committees, for the purpose of developing an approach to provide accountability, assessment and suitable services for persons who have been charged with committing a crime or a delinquent act, and who have a substance abuse problem. Such an approach shall be applicable to defendants of any age, but there shall be an emphasis on providing coordinated services for youth under the age of 21. Committees shall be located in Chittenden, Rutland and Bennington counties, and the court administrator shall select up to three additional counties to participate in the project.
On April 1, 2002, Governor Gary Locke (D) signed a bill (House Bill 2338), which gives nonviolent offenders the choice of completing a treatment program or facing conviction and a prison term—those who fail automatically receive jail or prison time—and reduces sentences for certain manufacture, delivery or drug possession offenses.
On March 13, 2002, Governor Jim Geringer (R) signed a bill (House Bill 59), which provides that in addition to those funds appropriated to the drug court account the department may accept, and shall deposit to the account, any gifts, contributions, donations, grants or federal funds specifically given to the department for the benefit of the drug courts or treatment providers in Wyoming.
Ballot Initiatives
The Campaign for New Drug Policies (CNDP), which was behind the success of California's Proposition 36, targeted Ohio and the District of Columbia for ballot issues in November 2002. CNDP's Executive Director Bill Zimmerman said that Ohio and the District of Columbia were targeted because they allow ballot initiatives and are heavily populated. He said that, "Ultimately this problem can only be solved for the nation through congressional action so it is important for us to demonstrate that there is public demand for drug reform that crosses the entire nation" (40).
District of Columbia
CNDP's District of Columbia proposal, "Treatment Instead of Jail for Certain Non-Violent Drug Offenders Initiative of 2002," passed in November 2002. The initiative "will:
- Provide substance abuse treatment instead of conviction or imprisonment to eligible non-violent, first- or second-time defendants charged with illegal possession or use of drugs, except those classified as Schedule I drugs under the federal Controlled Substances Act (including marijuana);
- Provide a plan for rehabilitation to individuals accepted for substance abuse treatment;
- Provide for dismissal of legal proceedings for defendants upon successful completion of the treatment program.
This initiative establishes an office within the Department of Health to settle disputes regarding treatment. This initiative does not reduce penalties associated with any criminal offense."
Failed Ballot Measure--Ohio
CNDP's Ohio proposal, which failed, would have mandated treatment over incarceration for nonviolent first- and second-time drug offenders. Zimmerman said that April polling showed that well over half of Ohioans favored the proposal (41).
Stacey Frohnapfel, Ohio Department of Alcohol and Drug Addiction Services, said that it would be "a step back for Ohio" to implement an initiative patterned after California's Proposition 36. She said that the number of drug offenders in the state-run treatment programs has increased from 43,000 annually in 1989 to 100,000 annually in 2000. The state's network of courts with specific drug-case duties also has increased dramatically in the past decade, from one in 1989 to 42 today. Frohnapfel said that, "We would like to continue to grow the drug court system, which has resulted in cost savings and fewer jail days and less prison time." She said that drug users often are motivated to clean up their acts by the threat of doing prison time (42).
Zimmerman argues that Ohio is not doing enough. He said that he " ... think[s] that there's a difference between making progress and a program actually working. If Ohio is still sending 3,000 people a year to prison for nonviolent drug use, then it's not working" (43).
Director Reginald Wilkinson, Ohio Department of Rehabilitation and Correction, disagrees. He said that the reason most low-level drug offenders wind up in prison is that they become a nuisance to the court by repeatedly violating the conditions of their parole. Wilkinson said that he is " ... relatively confident that we would have a lot more than 3,000 people coming in here if we weren't doing what we're doing" (44).Supporters collected signatures in the amount of 10 percent of the votes cast in the last gubernatorial election--around 335,000--but the proposal was voted down on the ballot (45).
Legislative and Policy Activity in 2003
On April 10, 2003, Governor Mike Huckabee (R) signed a bill (House Bill 2353), which authorizes each judicial district of this state to establish a drug court program under this act, which may be preadjudication or postadjudication subject to availability of funds. Drug court programs shall not be available to any defendant having a pending violent criminal charge against them. Eligible offenses may further be restricted by the rules of the specific drug court program. Nothing in this act shall require a drug court to consider or accept every offender with a treatable condition or addiction, regardless of the fact that the controlling offense is eligible for consideration in the program. Any offender who is determined not appropriate for the drug court program shall be prosecuted as provided by law. Drug court programs may require a separate judicial processing system differing in practice and design from the traditional adversarial criminal prosecution and trial systems. This act shall become effective on July 1, 2003.
On August 9, 2003, Governor Gray Davis (D) signed a bill (Assembly Bill 1752), which requires counties to focus drug court programs serving adult offenders on defendants who have been convicted of felonies and placed on probation, conditioned on their participation in the drug court program; requires existing pre-plea drug courts to focus on prison-bound offenders who may not be eligible for Proposition 36; requires participating counties to report cost avoidance data; and prohibits counties from redirecting funds to dependency, juvenile or pre-plea drug courts.
On April 14, 2003, Governor Dirk Kempthorne (R) signed a bill (House Bill 335), which amends Section 37-2738, Idaho Code. Prior to the sentencing for certain drug crimes, Section 37-2738, Idaho Code, provides for a substance abuse evaluation of the defendant for the assistance of the sentencing judge in determining whether substance abuse treatment should be ordered as part of the sentence. Presently, an evaluation must be obtained in every case for the purpose of deciding whether treatment of the defendant is indicated. As a matter of judicial economy, judges who handle these cases believe that in an appropriate case these evaluations are unnecessary and may be dispensed with if the sentencing judge has sufficient information to make an informed decision concerning whether or not a rehabilitative treatment program should be ordered. For example, a criminogenic risk needs assessment is already required before entry into drug courts and the judge has a comprehensive pre-sentence investigation report in felony alcohol and drug cases. Often, the defendant's past record of drug offenses will be dispositive concerning an appropriate sentence. The amendment to Section 37-2738, Idaho Code, made by the bill provides that with respect to certain drug offenses committed by first-time offenders of the drug laws, the court may waive the evaluation if there is no information before the court which suggests that the defendant regularly abuses drugs or is in need of treatment. The judge may also waive an evaluation if the defendant has within 12 months of sentencing been evaluated for this purpose.
On April 14, 2003, Gov. Kempthorne also signed House Bill 369, which provides for a two percent (2%) surcharge on the sale of all liquor through the Liquor Dispensary in order to provide an ongoing dedicated source of funding for Drug Courts and Family Court Services in the Judicial Branch. Section 23-217(a), Idaho Code, has become obsolete in the day-today operations of the Dispensary's approach to pricing products. Section 23-217 (b), Idaho Code, is still relevant because it provides for the 5% markdown on the sale of liquor to all licensees, but has an incorrect reference to code Section 23- 902e. A correction is included in this legislation. This bill basically takes advantage of current Idaho Code to create a new provision to provide funding for court services without disrupting any other distributions from the Liquor Control Fund.
On April 21, 2003, Governor Kathleen Sebelius (D) signed a bill (Senate Bill 123), which would sentence some drug offenders to treatment instead of prison. Senate Bill 123 makes major changes in the Kansas criminal law relating to penalties for possession of illegal drugs and the state’s sentencing policies relating to these crimes. The bill establishes a non-prison sentence or sanction of drug abuse treatment, and amends the current criminal statutes related to drug possessions to reduce all criminal penalties involving illegal drug possession regardless of the second, third, or subsequent possession conviction to a level 4 drug offense. Supporters have lauded the bill as a progressive way to rehabilitate drug addicts and reduce the number of non-violent drug offenders taking up space in the state's prisons, which is rapidly approaching its capacity.
On May 13, 2003, Governor Robert Ehrlich (R) signed a bill (Senate Bill 427), which provides that if the court places on probation a defendant who has been convicted of a violation of Section 21-902 of the Transportation Article or Section 2-503, Section 2-504, Section 2-505, Section 2-506, or Section 3-211 of the Criminal Law Article, the court shall require as a condition that the defendant participate in an alcohol or drug treatment or education program approved by the Department of Health and Mental Hygiene, unless the court finds and states on the record that the interests of the defendant and the public do not require the imposition of this condition.
When the crime for which the judgment is being stayed is for a violation of Section 21-902 of the Transportation Article or Section 2-503, Section 2-504, Section 2-505, Section 2-506, or Section 3-211 of the Criminal Law Article, the court shall impose a period of probation and, as a condition of the probation, shall require the defendant to participate in an alcohol or drug treatment or education program approved by the Department of Health and Mental Hygiene, unless the court finds and states on the record that the interests of the defendant and the public do not require the imposition of this condition.
On April 19, 2003, Governor Ronnie Musgrove (D) signed a bill (Senate Bill 2605), which provides that the Administrative Office of Courts shall be responsible for certification and monitoring of local drug courts according to standards promulgated by the State Drug Courts Advisory Committee. The State Drug Courts Advisory Committee is established to develop and periodically update proposed statewide evaluation plans and models for monitoring all critical aspects of drug courts. Each individual drug court judge may establish rules and may make special orders and rules as necessary that do not conflict with rules promulgated by the Supreme Court. Each individual drug court is responsible for the administration of the drug and alcohol intervention component of that court. Any inpatient treatment or inpatient detoxification program ordered by the court shall be certified by the Department of Mental Health, other appropriate state agency or the equivalent agency of another state. As a condition of participation in a drug court, a participant may be required to undergo a chemical test or a series of chemical tests as specified by the drug court. A person does not have a right to participate in drug court under this act. If the participant completes all requirements imposed upon him by the drug court, including the payment of fines and fees assessed, the charge and prosecution shall be dismissed. If the defendant or participant was sentenced at the time of entry of plea of guilty, the successful completion of the drug court order and other requirements of probation or suspension of sentence will result in the record of the criminal conviction or adjudication being expunged. However, no expunction of any implied consent violation shall be allowed. This act shall take effect and be in force from and after July 1, 2003.
On March 27, 2003, Governor John Hoeven (R) signed a bill (House Bill 1191), which amends existing law. Existing law states that the following provisions are only effective through July 31, 2003. This bill deletes that date restriction, making these provisions permanent law. This bill also deletes the provisions that will be effective after July 31, 2003. A person convicted of driving under the influence must be sentenced in accordance with this subsection. For purposes of this subsection, unless the context otherwise requires, "drug court program" means a district court-supervised treatment program approved by the supreme court which combines judicial supervision with alcohol and drug testing and chemical addiction treatment in a licensed treatment program. The supreme court may adopt rules, including rules of procedure, for drug courts and the drug court program.
On May 5, 2003, Governor Brad Henry (D) signed a bill (Senate Bill 817), which amends 47 O.S. 2001, Section 11-902, as last amended by Section 38 of Enrolled House Bill No. 1816 of the 1st Session of the 49th Oklahoma Legislature, which relates to driving under influence of intoxicating substance. Requires certain assessment and evaluation upon conviction. Provides treatment as an alternative to criminal penalties for misdemeanor offense. Requires treatment in addition to felony penalties. Provides for fee for certain assessment and evaluation. States instruction hours for certain courses.
On June 4, 2003, Governor James H. Douglas (R) signed a bill (House Bill 206), which establishes a pilot project creating drug court initiative committees for the purpose of developing an approach to provide accountability, assessment, and suitable services for persons who have been charged with committing a crime or a delinquent act and who have a substance abuse problem. Such an approach shall be applicable to defendants of any age, but there shall be an emphasis on providing coordinated services for youth under the age of 21. Committees shall be located in Chittenden, Rutland , and Bennington counties, and the court administrator may select up to three additional counties to participate in the project. On or before January 15 each year, the court administrator shall report to the general assembly on the progress and outcomes of each committee on achieving the goals of the pilot project. This section shall sunset on March 1, 2007.
On March 6, 2003, Governor Dave Freudenthal (D) signed a bill (House Bill 205), which amends W.S. 5-9-134 by adding the following language:
Notwithstanding any other provision of law, the probation period for a defendant whose disposition includes participation in a substance abuse treatment program or a drug court may exceed the maximum term of imprisonment established for the offense, but shall not exceed two (2) years. The court shall conduct, on at least a monthly basis, a review on the progress of a defendant sentenced to treatment under this section. The review may be conducted in a manner the court deems appropriate, but shall include receiving regular progress reports from the treatment provider.
The bill also amends W.S. 5-10-107 by creating a new subsection (c) as follows:
(c) The judge who presides over the drug court shall inform the eligible participant prior to acceptance into the drug court program that the eligible participant may be subject to a term of probation that exceeds the maximum term of imprisonment established for the offense as provided in W.S. 5-9-134.
This act is effective July 1, 2003.
Legislative and Policy Activity in 2004
On May 13, 2004, Governor Sonny Perdue (R) signed a bill (Senate Bill 502), which enables the court to order a conditional discharge for individuals convicted of nonviolent property crimes related to their addiction to a controlled substance or alcohol.
On April 30, 2004, the Hawaii legislature overrode Governor Linda Lingle (R) veto of a bill (House Bill 2003), which states that the Hawaii paroling authority may require a paroled prisoner to undergo and complete a substance abuse treatment program when the paroled prisoner has committed a violation of the terms and conditions of parole involving possession or use, not including to distributing or manufacturing any dangerous drug. If the paroled prisoner fails to complete the substance abuse treatment program and the Hawaii paroling authority determines that the paroled prisoner cannot benefit from any substance abuse program, the paroled prisoner shall be subject to revocation of parole and return to incarceration.
On April 30, 2004, a bill (House Bill 2004) became law without Governor Linda Lingle’s (R) signature, which appropriates out of the general revenues of the State of Hawaii the sum of $1,200,000 or so much thereof as may be necessary for fiscal year 2004-2005 for the drug courts to expand their programs, including juvenile and family drug court.
On March 23, 2004, Governor Dirk Kempthorne (R) signed a bill (House Bill 571), which will close a "loophole" in the law regarding Drug Court Participation Fees. The proposed law is intended to ensure that all participants are accountable for the costs and fees that were incurred during their participation in the program.
The bill states that any failure to pay the drug court fee may constitute grounds for termination from drug court by the court, provided this shall not be the exclusive remedy for collection of the fee. If a participant is terminated from the drug court prior to successful completion of the program and a judgment of conviction is entered against the defendant, any unpaid drug court fee shall be ordered by the court in the judgment of conviction.
On March 5, 2004, Governor Dirk Kempthorne (R) signed a bill (Senate Bill 1208), which amends state statutes that authorize the waiver of substance abuse evaluations with respect to certain first-time drug offenses. If the court does not have any reason to believe that a defendant regularly abuses drugs and is in need of treatment, the court may, in its discretion, waive the evaluation.
Should a substance abuse evaluation indicate the need for substance abuse treatment, the evaluation will recommend an appropriate treatment program and recommendations for other suitable alternative treatment programs. The court will take the evaluation into consideration when determining appropriate sentences.
On March 23, 2004, Governor Dirk Kempthorne (R) signed a bill (Senate Bill 1416), which extends the same liability protection and authority of arrest to probation & parole officers supervising drug court participants, as is provided to them while supervising felony probationers and parolees. This bill would halt any attempt on the part of a drug court participant to challenge the legal authority of the officer from carrying out his or her responsibilities to supervise, and if necessary arrest a drug court participant if he violates the conditions of the drug court program. The probation & parole officer is a member of the drug court team led by the judge, and generally includes the treatment provider, the drug court coordinator, the prosecutor, and the defense attorney.
On August 24, 2004 Governor Rod Blagojevich (D) signed a bill (Senate Bill 2654), which adds participation in a drug court in combination with probation as an appropriate disposition for certain felonies and misdemeanors.
On March 17, 2004, Governor Joseph E. Kernan (D) signed a bill (House Bill 1437), which directs each county to establish and operate a community corrections advisory board to coordinate or operate community corrections programs for persons required to participate in a controlled substance rehabilitation program. However, a county is not required to establish and operate a community corrections advisory board if a controlled substance rehabilitation program is operated by the judge of a drug court.
On March 17, 2004, Governor Joseph E. Kernan (D) signed a bill (House Bill 1264), which reforms criminal penalties for those convicted of driving while under the influence of alcohol. The bill allows the court to order the person to receive an assessment of the person's degree of alcohol and drug abuse and, if appropriate, successfully complete an alcohol or drug program in addition to existing criminal punishments.
On April 16, 2004, Governor Kathleen Sebelius (D) signed a bill (Senate Bill 45), which creates the Kansas criminal justice recodification, rehabilitation and restoration project to re-codify the Kansas criminal code. This task includes analyzing the nonprison sanction of certified drug abuse treatment programs for certain offenders and reviewing and recommending steps to enhance the sentence for an offender who is not subject to treatment.
On July 6, 2004, Governor Kathleen Blanco (D) signed a bill (House Bill 549), which provides that on a conviction of a third offense for driving while intoxicated, the offender shall be imprisoned for not less than one year nor more than five years and shall be fined two thousand dollars. Thirty days of the sentence of imprisonment shall be imposed without benefit of probation, parole, or suspension of sentence. The remainder of the sentence of imprisonment shall be suspended and the offender shall be placed on supervised probation with the Department of Public Safety and Corrections, division of probation and parole.
The offender shall be required as a condition of probation to submit to and complete either of the following requirements:
(i) To immediately undergo an evaluation by the Department of Health and Hospitals, office for addictive disorders to determine the nature and extent of the offender's substance abuse disorder and to participate in any treatment plan recommended by the office for addictive disorders, including treatment in an inpatient facility approved by the office for a period of not less than four weeks followed by outpatient treatment services for a period not to exceed twelve months; or
(ii) To participate in substance abuse treatment in an alcohol and drug abuse program provided by a drug division subject to the applicable provisions of R.S. 13:5301 et seq. if the offender is otherwise eligible to participate in such program.
If the offender fails to complete the substance abuse treatment or violates any other condition of probation, his probation may be revoked, and he may be ordered to serve the balance of the sentence of imprisonment, without credit for time served under home incarceration.
Maine
On May 12, 2004, Governor John E. Baldacci (D) signed a bill (House Bill 1409 b), which directs the Administrative Office of the Courts, with the assistance of the Coordinator of Diversion and Rehabilitation Programs to enter into cooperative agreements or contracts with appropriate local, county and state governmental entities and other appropriate organizations and agencies to encourage the development of diversion and rehabilitation programs, and appropriate organizations and agencies for the provision of medical, educational, vocational, social and psychological services, training, counseling, residential care and other rehabilitative services designed to create, improve or coordinate diversion or rehabilitation programs.
On May 11, 2004, Governor Robert L. Ehrlich, Jr. (R) signed two bills (House Bill 295 and Senate Bill 194), which states that a nolle prosequi (an entry made on the record, by which the prosecutor or plaintiff declares that he will proceed no further) with the requirement of substance abuse treatment shall be considered valid under Maryland statutes. The state's attorney may offer a nolle prosequi to a defendant if the defendant qualifies for drug and alcohol treatment. The state's attorney may drop the charges or the court may indefinitely postpone trial. In order to qualify for a nolle prosequi, a defendant must be evaluated for substance abuse under the regulations of the alcohol and drug abuse administration. The evaluation will recommend an appropriate treatment program.
On May 13, 2004, Governor Haley Barbour (R) signed a bill (Senate Bill 2892), which pertains to the drug court fund and the crisis intervention mental health fund in the state treasury. The purpose of the drug court fund shall be to provide supplemental funding to all drug courts in the state. The purpose of the latter fund shall be to provide funding for the seven mental health crisis centers in the state and the Special Treatment Facility located in Harrison County.
On June 15, 2004, Governor Craig Benson (R) signed a bill (Senate Bill 478), which states that in an effort to prevent recidivism of repeat alcohol and drug offenders, the sentencing court may sentence an individual to a conditional or unconditional discharge, or additional alcohol and/or drug treatment and counseling with monitoring by the department of corrections to include random urinalysis if deemed necessary and appropriate.
On April 26, 2004, Governor James E. McGreevey (D) signed a bill (Assembly Bill 2259), which directs all counties, in cooperation with the Division of Alcoholism and Drug Abuse and the commission, to designate and establish on a county or regional basis Intoxicated Driver Resource Centers. These centers shall have the capability of serving as community treatment referral centers and as court monitors of a person's compliance with the ordered treatment, service alternative or community service. All centers established pursuant to this subsection shall be administered by a counselor certified by the Alcohol and Drug Counselor Certification Board of New Jersey or other professional with a minimum of five years' experience in the treatment of alcoholism. All centers shall be required to develop individualized treatment plans for all persons attending the centers; provided that the duration of any ordered treatment or referral shall not exceed one year.
On March 2, 2004, Governor Bill Richardson (D) signed a bill (Senate Bill 144), which amends the sentencing of individuals convicted of driving under the influence.
On March 15, 2004, Governor Olene S. Walker (R) signed a bill (House Bill 174), which amends provisions regarding the Utah forensic mental health facility. It amends state statutes to state that the facility will serve criminally adjudicated persons found guilty and mentally ill or guilty and mentally ill at the time of the offense and undergoing evaluation. The bill also directs the facility to serve persons in the custody of the Division of Substance Abuse and Mental Health for treatment at the Utah State Hospital as a condition of probation or stay of sentence.
On March 22, 2004, Governor Orlene S. Walker (R) singed a bill (Senate Bill 20), which would mandate assessments for those convicted of driving under the influence. "Assessment" means an in-depth clinical interview with a licensed mental health therapist used to determine if a person is in need of substance abuse treatment.
Notes
- California Legislative Analyst's Office (LAO), Analysis of the 2001-2002 Budget Bill: Implementation of Proposition 36 (Sacramento: California LAO, May 2001).
- California LAO, Proposition 36: Drug Treatment Diversion Program, (Sacramento: California LAO, November 2000).
- Ibid.
- Ibid.
- Ibid.
- California LAO, Analysis of the 2001-2002 Budget Bill: Implementation of Proposition 36.
- Ibid.
- Ibid.
- Ibid.
- Ibid.
- California Department of Finance, Governor's Budget, May Revision (Sacramento: California Department of Finance, May 2001).
- Ibid.
- Ibid.
- California Department of Alcohol and Drug Programs (ADP), Proposition 36 FY 2000-01 Revised County Allocations and Funds Distribution (Sacramento: California DADP, March 23, 2001).
- Stuart Pfeifer, "Judges Accused of Misapplying Prop. 36 Terms, Courts: Saying crimes don't fit the new law, Anaheim prosecutors appeal seven rulings that ordered drug treatment, not jail time," Los Angeles Times, July 22, 2001.
- John McDonald, "Anaheim lawyers drop two Prop. 36 appeals: They won't oppose drug-treatment sentences under certain circumstances," Orange County Register, August 31, 2001.
- California ADP, Substance Abuse and Crime Prevention Act of 2000 (SACPA - Proposition 36): Second Annual Report to the Legislature (Sacramento: Calfiornia ADP, December 2003).
- Ibid.
- Ibid.
- Ibid.
- Arizona Supreme Court Administrative Office of the Courts (AOC), Adult Services Division, Drug Tr