News Room

Proposition 36 - Treatment not Punishment for Drug Offenders

By Bill Nimmo

California is the second State in the nation to enact by referendum a set of laws that make it mandatory for a judge to sentence a criminal defendant to probation for violation of certain drug offenses (as long as the defendant meets certain eligibility standards). This referendum, known as Proposition 36, creates a comprehensive program that provides treatment for substance abusers rather than punishment.

Prop 36 has a clear and definite purpose: to divert from incarceration into community-based substance abuse treatment programs non-violent defendants, probationers, and parolees charged with simple drug possession or drug offenses. Under Prop 36, a defendant cannot do jail time as part of his/her sentence to Prop 36 drug treatment; in other words, if you receive a Pro 36 drug treatment sentence, you are immediately released from custody. Prop 36 hopes to save hundreds of millions of dollars each year on the incarceration of non-violent drug users who would be better served by community-based treatment. Through treatment, California hopes to reduce drug-related crime and preserve jails and prison cells for serious and violent offenders. California also hopes to improve public health by reducing drug abuse and drug dependence through proven and effective drug treatment strategies. In other words, if you are the non-violent drug offender, this is your chance to not only get a sentence other than custody, but also a way for you to get out of the life of drugs.

It sounds like it would be cheaper to just sentence you to jail or prison. Well, that's what California has done in the past, and the problem has not gone away. With prison and jail overcrowding, California has taken the step to enact a measure that strives not only to reduce the number of persons incarcerated but also prevent these drug crimes from occurring again. Prop 36 didn't come cheap. It had $60 million in startup costs and $120 million in annual costs. With this type of funding going to substance abuse treatment, don't walk away from it. Find out if you are eligible for Prop 36 and get help to get a life away from dugs and jail.

All offenders who are charged with non-violent drug offenses are potentially eligible for a Prop 36 drug treatment program. Placement in a Prop 36 program can offer a lot to a person. California Penal Code section 1210.1 provides: "(a) Notwithstanding any other provision of law, and except as provided for in subdivision (b), any person convicted of a non-violent drug possession offense shall receive probation.

As a condition of probation, the court shall require participation in and completion of an appropriate drug treatment program. The court may also impose, as a condition of probation, vocational training, family counseling, literacy training and/or community service. A court may not impose incarceration as an additional conditions of probation."

As you can see, besides drug treatment, you can receive additional services that will hopefully set you on a course that will never bring you back into our criminal justice system. That initiative, however, is up to you

ARE YOU ELIGIBLE?

First, the charge must be for a nonviolent drug possession offense. This can include simple possession, use, or transportation for personal use of controlled substances. IT DOES NOT INCLUDE possession for sale, production or manufacturing of any controlled substance. Prop 36 sentencing does not apply to the following persons (see Penal Code section 1210.1(b):

Any defendant who previously has been convicted of one or more serious or violent felonies in violation of Penal Code section 667.5© or section 1192.7, unless the nonviolent drug possession offense occurred after a period of five years in which the defendant remained free of both prison custody and the commission of an offense that results in (a) a felony conviction other than a nonviolent drug possession offense, or (b) a misdemeanor conviction involving physical injury or the threat of physical injury to another person.
Any defendant who, in addition to one or more nonviolent drug possession offenses, has been convicted in the same proceeding of a misdemeanor not related to the use of drugs or any felony.
Any defendant who, while using a firearm, unlawfully uses or is under the possession of certain drugs (i.e., cocaine, meth, heroin and others).
Any defendant who refuses drug treatment as a condition of probation.
Any defendant who (a) has two separate convictions for nonviolent drug possession offenses, (b) has participated in two separate courses of drug treatment pursuant to [Prop 36], and (c) is found by the court, by clear and convincing evidence, to be unamenable to any and all forms of available drug treatment.

If you have priors which make you unsure of whether you are eligible for Prop 36 sentencing, ask your attorney. He or she can check the law to see if you can qualify.

Any drug treatment program that intends to provide treatment pursuant to Prop 36 must be so licensed or certified. An acceptable program will include at least one of the following: outpatient treatment, halfway house treatment, narcotic replacement therapy, drug education or prevention courses, and/or limited inpatient or residential drug treatment. Drug treatment under Prop 36 may not exceed twelve months, with an additional six months for aftercare.

Upon being sentenced to Prop 36 drug treatment, the Probation Department has seven days to notify the drug treatment provider of the defendant's placement. The treatment provider has thirty days from that notice to prepare a treatment plan for the offender. Probation will receive a quarterly progress report from the treatment provider. The treatment provider may notify Probation at any time of noncompliance by a person placed in their facility. The defendant may be ordered at the time of sentencing to help contribute to the costs of his/her treatment program.

Some treatment plans may not work for a particular person. A change in treatment plans can be made at any time if the treatment provider notifies the Probation Department that the defendant is not improving with their plan, but believes he/she will be amenable to another treatment program. If the program isn't working for you, take steps to get into one that does! As long as you are committed to helping yourself, there will be others there to help you along.

If you show a pattern of behavior or other indicators that leads your treatment providers to believe that you won't "go with any program," the Probation Department can move to revoke your probation. At the probation revocation hearing, your only chance to stay in treatment is to convince the judge by "clear and convincing evidence" that you are amendable to drug treatment.

WHAT HAPPENS AFTER I SUCCESSFULLY COMPLETE DRUG TREATMENT?

After successfully completing your drug treatment plan, you can petition the court for dismissal of the charges and expungement of the arrest records (there are exceptions that may apply - ask your attorney!). The dismissal of the charges means you can say you were never convicted of the offense, and expungement of arrest records gives you the legal right to say you were never arrested (again, look for the exceptions!). See Penal Code section 1210.1(d) for additional information.

IF I AM SENTENCED TO PROP 36 AND GIVEN PROBATION, WHAT HAPPENS IF I VIOLATE PROBATION?

You can get a second chance at probation, depending upon what it is you did to violate probation. The Prop 36 laws consider that a person attending drug treatment might "slip up" and get arrested again for a simple drug offense. Under Penal Code section 1210.1(e)(3), a defendant who is on Prop 36 probation and who then violates probation by either violating a drug-related condition of probation or is arrested for a nonviolent drug offense shall have a probation revocation hearing. For probation to be revoked, the State must prove the violation as well as prove by a preponderance of the evidence that the defendant poses a danger to the safety of others. If the State can't do that, then probation is not revoked. The violation of probation, however, does not go unpunished. The court may intensify or alter the drug treatment program to help prevent this type of "slip up" from occurring again.

Believe it or not, Prop 36 law also allows for another chance to complete drug treatment if a defendant violates probation a second time by committing a nonviolent drug possession offense or drug-related condition of probation. If the State moves to revoke probation for this second violation, the court will consider not only if the defendant possess a danger to society, but also the defendant's attendance and effort at his/her drug treatment program. The court may either revoke probation or reinstate probation, and further intensify or alter the drug treatment program.

If the court revokes probation, the defendant may be incarcerated pursuant to otherwise applicable law without regard to the Prop 36 sentencing laws.

Parolees are afforded the same privileges for nonviolent drug offenses or drug-related conditions of parole, except parolees only get one "excused" violation for drug use. A second violation, if proven, will revoke parole regardless of the nature of the violation.

If you are charged with a drug-related offense, find out if you are eligible for Prop 36 sentencing. It really is a way for you to take a new direction in life and keep you out of the criminal justice system. The effort on your part will be great, but the rewards are worth it. Good luck!

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