Note: The Background, Proposal, and Fiscal Effect sections are taken from the LWVCEF In Depth publication, based in part on the Legislative Analyst’s Office analysis included in the Secretary of State’s official Voter Information Guide.

BACKGROUND

Probation and Parole. Both adult and juvenile offenders may be ordered by a court to be placed in supervision in the community. Offenders supervised by county authorities are “on probation,” while offenders who are under community supervision after having completed a prison sentence are “on parole.” State law defines certain drug crimes as “nonviolent drug possession offenses,” which can be either felonies or misdemeanors.

Classes of Crimes. Under current state law, there are three basic kinds of crimes: felonies, misdemeanors, and infractions. A felony, the most severe type of crime, can result in a sentence to state prison, county jail, a fine, supervision on county probation in the community, or some combination of these punishments. Some felonies are designated by statute as violent or serious crimes that can result in additional punishment, such as a longer term in state prison.

Misdemeanors are considered less serious and can result in a jail term, probation, a fine, or release to the community without probation but with certain conditions imposed by the court. State law defines certain drug crimes as “nonviolent drug possession offenses,” which can be either felonies or misdemeanors. Infractions, which include violations of certain traffic laws, do not result in a prison or jail sentence.

State Prison System. The state operates 33 state prisons and other facilities with a combined adult inmate population of about 171,000 as of May 2008. The costs to operate the California Department of Corrections and Rehabilitation (CDCR) in 2008‑09 are estimated to be approximately $10 billion. The average annual cost of incarcerating an inmate is estimated at about $46,000. The state prison system is currently experiencing overcrowding because there are not enough permanent beds available for all inmates.

Existing Drug Treatment Diversion Programs:

• Penal Code Section 1000. Under Penal Code Section 1000 and related statutes, certain drug possession offenders with no prior drug offenses can be diverted to drug education or treatment programs, usually at their own expense, under a “deferred entry of judgment” arrangement. The offender would plead guilty to the possession charge and sentencing is suspended. If, after 18 to 36 months, the offender successfully completes a drug treatment program and stays out of trouble, the charges are dismissed and the offense does not go on his/her record.
• Proposition 36. This ballot measure, passed by the voters in November 2000, established a special drug treatment diversion program for certain offenders who are convicted of specific crimes designated nonviolent drug possession offenses. The offender can be sentenced to probation and treatment instead of prison or jail. Some parole violators are also eligible for Proposition 36 diversion. Proposition 36 limits the imposition of certain sanctions for offenders who violate the conditions of their treatment programs or who commit new drug possession crimes.
• Drug Courts. Under drug court programs, certain offenders charged or convicted with specified crimes can be diverted to treatment in lieu of incarceration. Participants are subject to regular monitoring by the court (as well as by probation officers and drug treatment providers). Judges generally have discretion as to when and how to impose sanctions if participants do not comply with drug program rules or commit new crimes.
  
  

THE PROPOSAL

Proposition 5, the Nonviolent Offender Rehabilitation Act, would make major changes to state law governing the sentencing, parole, and rehabilitation of nonviolent drug offenders. There would be a strong emphasis on providing rehabilitation and counseling services for nonviolent drug offenders both in sentencing and upon parole. In addition, administrative and organizational changes would be made to the California Department of Corrections and Rehabilitation (CDCR) to centralize accountability and governance.

The measure would make changes in the following areas, to be discussed in detail separately below:

1. Expand drug treatment diversion programs for criminal offenders
2. Modify parole supervision procedures and expand parole rehabilitation programs
3. Allow inmates to earn additional time off their prison sentences for participation and performance in rehabilitation programs
4. Reduce certain penalties for marijuana possession
5. Make miscellaneous changes to laws relating to state administration of rehabilitation services.

The measure can be amended only by the voters, or by a legislative statute that is approved by a four-fifths majority of both houses of the Legislature and that furthers the purposes of the measure.

In the event that other criminal justice measures are approved by a majority of voters in this election, and this measure receives a greater number of affirmative votes than any other measure(s), this measure will go into effect and conflicting provisions in the other measure(s) shall be void. If this measure is approved but does not receive a greater number of affirmative votes than the other measure(s), this measure shall take effect only to the extent permitted by law.

The measure contains a severability clause that provides that if any provision of the measure is held invalid or unconstitutional, the remainder of it will continue in effect.

This ballot measure would take effect on July 1, 2009.

Expansion of Drug Treatment Diversion Programs

Proposition 5 would establish a three-track drug treatment diversion program, expanding and largely replacing the three existing drug treatment and diversion programs.

1. Track I. Offenders charged with nonviolent drug possession offenses, with no prior violent or serious offenses, could enter into a deferred entry of judgment arrangement with the court that does not require probation supervision. Similar to Penal Code Section 1000, an offender who completes the assigned drug treatment program and stays out of trouble would have the charges against him/her dismissed. Also, rather than the offender paying for the cost of the treatment program, the state funds these programs.
2. Track II. A modified form of Proposition 36, this track would generally divert offenders convicted of a nonviolent drug possession offense to treatment and probation for up to a year (with a maximum of 24 months if extensions are granted). Offenders cannot participate if convicted of a violent or serious felony during the prior five years. Offenders with five or more offenses in the prior 30 months are not eligible.
3. Track III. This is similar to existing state-funded drug court programs for adult felons. This track generally provides treatment and probation supervision in lieu of incarceration in prison or jail for up to 18 months (with a maximum of 24 if extensions are granted). In general, judges would be provided discretion as to which offenders would be admitted.

Offenders who fail in Track I may be shifted to Track II; Track II failures may be shifted to Track III.

General Effect of Changes. In general, the new Tracks I, II, and III would expand the types of offenders who are eligible for diversion, and expand and intensify the services provided to offenders mainly by increasing the funding available to pay for them. While participants in existing Penal Code Section 1000 programs must usually pay the out-of-pocket cost of their drug treatment, this measure generally provides funding to counties for participants in treatment under Track I, as well as other tracks.

Offenders in all three tracks would generally receive the same types of drug treatment services that assessments determined they needed. This could include treatment in clinics or residential facilities, the dispensing of medication such as methadone, or the provision of mental health services.

However, the three tracks would vary in eligibility requirements, period of participation, level of supervision, and when and how sanctions, such as incarceration in prison or jail, could be imposed on offenders who violate drug treatment diversion program rules or commit new drug-related offenses. The measure permits offenders who have failed in Track I to be shifted to Track II, where they may face more severe sanctions. Similarly, offenders who have failed in Track II may be moved to Track III, where more severe sanctions would be possible. This measure would also require follow-up hearings in court when an offender fails to begin assigned treatment.

Funding Provisions. The 2007-08 Budget Act appropriated $100 million from the General Fund to the Substance Abuse Treatment Trust Fund (SATTF), initially created by Proposition 36 to support treatment programs and other activities. This measure appropriates $150 million from the General Fund to the SATTF for the second half of 2008-09 and $460 million in 2009-10, to increase annually thereafter with adjustments for the cost of living and population. After set-asides for administrative and program costs, 15 percent of the remainder is designated for Track I programs, 60 percent for Track II programs, and 10 percent for Track III programs.

A new 23-member state Treatment Diversion Oversight and Accountability Commission would be established to set program rules governing the use and distribution of SATTF funds and collection of data for required evaluations of the programs and funding needs. The state and counties are generally prohibited from using SATTF funds to replace funds currently used for substance abuse treatment programs, and other available public and private funding must be used when possible to pay for treatment before SATTF monies are used for treatment services.

Juvenile Treatment Program. Proposition 5 would create a new county-operated program for nonviolent youth under age 18 deemed to be at risk of committing future drug offenses. The program would receive a set share of SATTF funding (15 percent, after deduction of implementation costs) that would be allocated to counties and could be used for specified purposes, including drug treatment, mental health medication and counseling, family therapy, educational stipends for higher education, employment stipends and transportation services.

Changes to State Parole and Rehabilitation Programs:

Parole Terms. The parole terms for certain offenders convicted of drug or nonviolent property crimes would be shortened. They would serve six months on parole and could be placed on an additional six months of parole if they failed to complete an appropriate rehabilitation program offered to them during the first six months. Meanwhile, parole terms for certain other offenders would become longer. Any offender whose most recent prison sentence was for a violent or serious felony would serve five years on parole instead of the current three years.

Revocation for Parole Violators. Parole violations would be divided into three types—technical violations, misdemeanors, and felonies. Certain parolees who commit technical or misdemeanor parole violations would not have their parole revoked and would not be returned to state prison. Some of those parolees may face punishment, such as more frequent drug testing, community work assignments, or jail time. Other parolees who are considered high risk or who have a violent or serious offense on their record would have their parole revoked and could be sent to prison for a technical or misdemeanor parole violation. Parolees with felony parole violations would have their parole revoked and be returned to prison.

Expansion of Parolee Rehabilitation Programs. Rehabilitation programs for inmates, parolees, and offenders discharged from parole would be expanded. All inmates not serving life terms must be provided with rehabilitation programs beginning at least 90 days before release from prison. Offenders may request up to a year of rehabilitation services within a year after their discharge from parole. The services will be provided by county probation departments, but all operational costs would be reimbursed by the CDCR.

Other Parole System Changes. Other changes created by this measure include: (1) creation of a new 21-member Parole Reform Oversight and Accountability Board with authority over rehabilitation programs and parole policies; (2) CDCR directed to pay counties providing drug diversion treatment for parolees; (3) establishment by CDCR of pilot programs similar to drug courts for diversion of parole violators; and (4) parolees must receive notice of alleged parole violations at a Board of Prison Hearings hearing held within three business days of being taken into custody.

Sentence Credits for Rehabilitation

Under current law, certain prison inmates who participate in work, training or education programs may receive credits that reduce the total prison time the inmate must serve. Such inmates may receive one day off their sentence for each day they participate in such programs. Offenders who agree to participate in such programs but are not yet assigned to one may receive up to one day in credits for every three days they are in that situation.

Proposition 5 would change the law to permit some inmates sentenced for certain drug or nonviolent property offenses to earn more credits to reduce their prison sentences. The new Parole Reform Oversight and Accountability Board would be authorized to award such additional credits based on factors such as the inmate showing progress in completing rehabilitation programs. Such additional credits cannot be awarded to any inmate ever convicted of a violent or serious felony or certain sex crimes.

Changes in Marijuana Possession Penalties

Under current law, generally the possession of less than 28.5 grams of marijuana by either an adult or a minor is punishable by a fine of up to $100, but not jail time. Possession of greater amounts, or repeat offenses, may result in a jail sentence, larger fines, or both. Proposition 5 would change the law to make the possession of less than 28.5 grams of marijuana by either an adult or a minor an infraction (similar to a traffic ticket), rather than a misdemeanor. Current fines for adults would remain the same, but additional penalties would be limited to no more than the amount of the base fine. For example, a $100 fine would remain the same, but additional penalties on top of that could not exceed an additional $100. All fines must be deposited in a special fund to support the new youth programs created by this measure. Minors would no longer be subject to a fine for a first offense, but would be required to complete a drug education program.

Additional Changes to State Law

Proposition 5 would make additional miscellaneous changes to state law, related mainly to state administration of rehabilitation.

These changes include: (1) reorganizing the way in which the CDCR’s rehabilitation and parole programs are administered; (2) establishing a new, second secretary of the CDCR and a chief deputy warden for rehabilitation at each prison; (3) expanding the Board of Prison Hearings from 17 to 29 commissioners; (4) requiring county jails to provide materials and strategies on drug overdose awareness and prevention to all inmates prior to their release; and (5) providing adults in drug treatment programs (except parolees) with mental health services using funding from Proposition 63, which expanded community mental health services.

FISCAL EFFECT

The Legislative Analyst’s Office indicates that the exact cost to the state of Proposition 5 is dependent upon how this measure is interpreted and implemented. There would be fiscal impacts with the potential expansion of programs and administration of the drug treatment and other services provided for eligible offenders.

State Operating Costs: Total state operating costs could potentially exceed $1 billion annually.

As noted earlier, the measure would appropriate $150 million from the General Fund to the SATTF for the second half of 2008-09 and $460 million in 2009-10, to increase annually thereafter with adjustments for the cost of living and population, to support the three-track drug treatment diversion program. The state would discontinue funding for three existing drug treatment and diversion programs and in effect fold them into the new system. The 2009-2010 funding level for the new programs would be more than $300 million greater than the 2007-08 General Fund appropriations for the programs they would largely replace.

In addition, anticipated expenditures for inmate and parole rehabilitation programs would result in an increase of several hundred million dollars annually in state costs for expanded rehabilitation programs, to be paid for primarily from the General Fund. Required reimbursement by the state to the counties for parolee drug treatment services may add to state operating costs.

State Operating Savings: Total state operating savings could potentially exceed $1 billion annually.

Most of those savings would be attributable to savings over time in prison and parole costs resulting from the following: (1) diversion of offenders from prisons to treatment programs, (2) exclusion of some parole violators from state prison, (3) reduction in prison time due to expansion in credits, and (4) reduction in time of parole supervision for certain drug and nonviolent offenders.

State Capital Outlay Savings: There could be net savings on state capital outlay costs exceeding $2.5 billion, resulting from lower prison construction costs due to a reduction in the inmate population. Those savings may be partially offset by costs for increased prison rehabilitation programs.

County Operations Costs and Funding: Increases in county costs for new drug treatment diversion programs and juvenile programs would probably be in line with increased state funding. There may be unknown increases and reductions in county operating costs and revenue.

Summary: In summary, increased state costs could exceed $1 billion for the expansion of drug treatment and rehabilitation programs. Savings to the state could exceed $1 billion due to reduced prison and parole operating costs. Capital outlay savings for prison facilities could exceed $2.5 billion.

LEAGUE POSITIONS AND DISCUSSION

The League’s support for Proposition 5 is based on the aspects of the initiative that relate to juvenile justice, on which the League has well-established positions.

Under the LWVC Juvenile Justice/Dependency position, the League supports a juvenile justice/dependency system that rehabilitates juvenile offenders by promoting the safety and well-being of children and helping to prepare them for productive participation in society (Position in Brief).

The League believes that efforts to deal with dependency issues and provide juvenile justice should emphasize prevention and early intervention (position 1b).

The state should provide adequate funding, standards and evaluation based on those standards, coordination at the state level, and technical assistance that includes collection and dissemination of information, and should facilitate local coordination. To help increase funding for these efforts, state general fund spending priorities should be reordered, including the diversion of funding for the adult penal system to funding for these programs, and state allocations to counties and cities for these efforts should be increased (position 2a).

Discussion

There are three essential components of Proposition 5 (sometimes known as “NORA”):

1. Treatment diversion programs for adults
2. Prison system and parole reforms
3. Youth-focused substance abuse treatment reforms.

The League of Women Voters’ support for Proposition 5 is based on the aspects of the initiative that relate to juvenile justice.

As part of a comprehensive, common-sense solution to the prison overcrowding crisis, Proposition 5 will create a system of care for at-risk youth by:

1. Dedicating annual funding of at least $65 million per year for youth treatment programs, as well as about $4 million more from fines collected from adults for low-level marijuana offenses
2. Ensuring that the new system of care meets the spectrum of youth needs, including family therapy, mental health interventions, educational and employment stipends, and more
3. Requiring science-based educational programs and counseling, instead of a misdemeanor conviction, for young people found in possession of small amounts of marijuana.

Too often today, young Californians with drug problems get entangled in the juvenile justice system and may even be incarcerated. During the past few years, juvenile arrest rates have increased 39 percent, and yet fewer than 10 percent of adolescents receive substance abuse treatment programs.

Proposition 5 will:

• Create an independent oversight panel, which would have authority over major aspects of the implementation of NORA
• Provide better opportunities for rehabilitation
• Save prison beds by requiring local sanctions, not prison, to punish minor parole violations by nonviolent offenders
• Require that all prisoners receive appropriate treatment prior to release from prison
• Require that all parolees receive appropriate services for up to one year after discharge
• Build on and improve Proposition 36, the voter-approved initiative of 2000 that provided treatment, not jail, for nonviolent drug users
• Link three existing, but disparate, systems of court-supervised treatment programs in order to provide a continuum of care
• Give priority to treatment for people with mental illness and substance abuse problems
• Provide judges with annual training on drug and addiction treatment
• Allow schools and medical doctors to recommend these treatment programs to their students and patients.

The rebuttal to the supporters’ argument was signed by Laura Dean-Mooney, National President, Mothers Against Drunk Driving (MADD); The Honorable Steve Cooley, District Attorney, County of Los Angeles; and Senator Jeff Denham, Co-Chair, People Against the Proposition 5 Deception.

The rebuttal to the opponents’ argument was signed by Judge James P. Gray, Orange County Superior Court; Norm Stamper, former Assistant Chief of Police, San Diego; and Albert Senella, Chief Operating Officer, Tarzana Treatment Centers.

A partial list of other organizations supporting Proposition 5:

Medical/Treatment Organizations:  California Society of Addiction Medicine; California Academy of Family Physicians; California Association of Addiction Recovery Resources; California Association of Alcoholism and Drug Abuse Counselors; County Alcohol and Drug Program Administrators’ Association of California.

Statewide/National Organizations:  California Democratic Party; California State Conference of the NAACP; League of United Latin American Citizens (LULAC); Latino Voters League; National Latino Congreso.

Youth Organizations/Advocates:  Association of Community Human Services Agencies; W. Haywood Burns Institute; Wolfe Center/ Juvenile Justice Network.

Mental Health Organizations:  California Coalition for Ethical Mental Health Care; California Council of Community Mental Health Agencies; Mental Health Association in California.

Faith Organizations:  California Church IMPACT; Progressive Christians Uniting; Southern California Ecumenical Council.

Labor Organizations:  California Labor Federation; American Federation of State, County and Municipal Employees California (AFSCME California); SEIU California State Council.

Legal/Policy Organizations:  American Civil Liberties Union of Northern and Southern California; Center for Health Justice; California Public Defenders Association; Ella Baker Center for Human Rights.

RESOURCES

Linda Craig, LWVC Advocacy Director, legislation@lwvc.org

Julie Rajan, LWVC Social Policy Director, social_policy@lwvc.org

Trudy Schafer, LWVC Senior Director for Program
1107 9th Street, Suite 300, Sacramento 95814
916 442.7215, Fax 916 442.7362,tschafer@lwvc.org

Pat Kuhi, LWVC Juvenile Justice/Dependency Program Director

Joanne Leavitt, LWVC Legislative Consultant, Prevention/Early Intervention

www.prop5yes.com and www.NORAyes.org,2008 NORA Campaign – Yes on 5
213 382.6400

The opponents’ Web site is www.noonproposition5.com

SUMMARY POINTS

Read and distribute a flyer.