Aging Drug Program Fails Test of Time : Pressure On to Revamp Lenient Diversion Plan

The year was 1972, and the flower children were experimenting with drugs. Some people figured this fancy would pass, that it was all part of the “hippie era” and would wane when rebellious behavior went out of vogue.

Into this milieu stepped the California Legislature, passing a law allowing first-time offenders caught with small amounts of drugs to avoid prosecution and instead be diverted into rehabilitative treatment programs.

Signed by then-Gov. Ronald Reagan, the law’s benefits were touted as twofold: the courts would avoid the expense and labor of trying casual users, and the offenders would get help with their habit and be spared the lifelong stigma of a criminal record.

Today, the program in San Diego County is widely viewed as a disappointment.

Only Half Take Required Classes

Of those who qualify, just half complete the eight hours of classes required by the court--and many of them do so only after they are granted a second or third chance by a judge.

The county Probation Department is so overworked--each of four probation officers juggles about 850 cases--that timely monitoring for compliance is impossible. As a result, six months may pass before authorities learn if an offender failed to enroll in a treatment class as ordered.

Although the law requires probation officials to screen candidates to determine their suitability for diversion into drug treatment, that simply does not happen in San Diego. As a result, chronic addicts often wind up in a program that experts agree is ill-equipped to handle their complex problems.

Frustrated by such defects, the San Diego County district attorney’s office is pushing for an overhaul of the system, which some critics ridicule as a penalty no stiffer than traffic school.

Guilty Plea Would Be Required

Under a proposal supported by prosecutors and endorsed by the Board of Supervisors, the 1972 law would be amended to require that offenders enter a guilty plea before they are allowed into the program. Upon completion of the mandatory education sessions, criminal charges would be dismissed. The newly formed model would resemble the system used in federal court.

Proponents of this change argue that a guilty plea is the incentive drug users need to follow through with the court-ordered treatment. They also note that if a person fails to complete the diversion program, the district attorney--armed with a guilty plea--will have a far easier time prosecuting him.

“Contrary to its intent, this program has been used as a ploy by individuals who are not motivated to change their life styles and see it as an opportunity to get one free bite at the apple,” said William Holman, chief of the district attorney’s narcotics division. “The guilty plea will provide the hammer we need and the motivation they need to complete the program.”

But some judges and defense attorneys--while acknowledging that changes are needed--believe the solution favored by prosecutors is a wrongheaded overreaction to the program’s shortcomings.

For starters, these critics warn that the requirement of a guilty plea could wreak havoc on the chronically overcrowded criminal justice system, flooding it with hundreds of cases that are now plucked out under the diversion program.

“It’s unrealistic to expect defense attorneys to roll over and plead their clients guilty to get them diverted. That just won’t happen,” said Linda Brown, a deputy public defender who served on a task force that studied the diversion system. “They’re going to litigate. They’re going to look into the search and seizure issues, look at the arrest. . . . That means motions and hearings. That means the courts and jails will be clogged with these cases.”

Moreover, because the drug education program is self-supporting--participants pay a $100 fee to enroll--county costs would increase markedly if cases diverted under the existing system instead go to trial, opponents of the change predict.

Perhaps the greatest concern of many defense lawyers is that, under the new proposal, the criminal record of those who complete drug diversion would not be sealed. Therefore, the record could be used in subsequent prosecutions and offenders would have to disclose their arrests if questioned by state or local licensing agencies or if running for public office.

“So the whole purpose of the program--to keep them out of the criminal justice system and save them from having this mistake on their record for an entire career--would be lost,” Louis Katz, a veteran defense lawyer, said. “It seems to me the ‘Say No to Drugs’ people stampeded somebody and this just wasn’t considered carefully.”

‘Baby Out With Bathwater’

Katz and others do not quarrel with those who say the existing system needs help. But they believe a handful of relatively minor steps could be taken to give it more teeth. In the view of Stephen Blake, a consultant to the defense bar who has twice served on committees studying the diversion program, the district attorney’s proposal amounts to “throwing the baby out with the bathwater.”

“I understand there are complaints about the program and agree it’s not a great success,” San Diego Superior Court Judge Norbert Ehrenfreund said. “But I feel the problems can be addressed by tightening the administration and setting standards. Requiring a plea of guilty before diversion will not accomplish the intended result.”

When adopted in the early 1970s, penal code section 1000 was aimed at the experimenter--the college kid caught with a joint whose interest in “toking” was likely to fade quickly after a dose of drug education and the threat of prosecution.

To qualify, an offender must have possessed a small quantity of drugs only for personal use; must have had no previous drug conviction; must not have been diverted during the previous five years; must have had no felony conviction in the prior five years; and must not have committed a crime involving violence. A candidate’s eligibility is determined by prosecutors.

Initially, the program appeared to run smoothly in San Diego, attorneys and judges recall. Most of those diverted were arrested for possessing small amounts of marijuana, and the probation department apparently screened many of them to ensure they were suitable for diversion, as the statute requires.

But in 1976, the law was amended. Possession of heroin, cocaine and amphetamines was added to the list of divertable offenses.

“That changed the color of the program, and we seemed to get a lot more serious offenders after that,” said Katy Lancaster, a veteran probation officer who oversees the drug diversion program. It also prompted a rise in those funneled into diversion and an increased workload for the Probation Department, which has been hit hard by staff cuts in recent years.

Gradually, the program developed a reputation in the legal community as excessively lenient. While it remained a viable option for those ready to get off drugs, many attorneys and judges viewed it as an ineffective system easily manipulated by hard-core users.

In 1987, a task force composed of judges, defense attorneys, drug educators, probation officials and others was formed to study the program’s effectiveness. The panel concluded that it was providing a “significant service” to the criminal justice system and to defendants--2,280 of whom were diverted into treatment in 1986, the most recent year for which statistics were available.

But in its August, 1987, report, the task force also cited a laundry list of problems besetting the program and doled out a hearty supply of recommendations for improvement.

Among the key flaws identified by the panel was the failure of the Probation Department to screen candidates for “suitability” prior to their diversion into one of six treatment programs that contract with the county to provide the service. The screening is required by state law, and its absence in San Diego--where judges automatically divert those eligible--prevents control over the type of clients referred, the task force said.

Monitoring of whether a client enrolls and finishes the eight hours of educational sessions--which an offender has 6 to 12 months to complete--is also poor, the panel found. Typically, people who are diverted but fail to enroll in treatment classes are “lost” for six months--until probation officers notify the court and criminal proceedings are reinstituted. The only contact probation officials have with the offenders is by mail or telephone.

Concern was also expressed about people who fail to follow through with treatment on their first opportunity and are given another shot by the court. Lancaster said she had no figures on how frequently this happens, but she conceded that some offenders are referred as many as three times.

In addition, the task force found there is no long-term tracking of clients to evaluate the ultimate effectiveness of the drug treatment, no central base of statistics, poor communication among agencies, and no quality control over the type of programs providing the services.

Among improvements recommended by the task force were increasing the length of the required education to 12 hours, standardization of the curriculum used, and creation of a processing fee for offenders to allow probation officers to screen those eligible.

About the only thing the task force did not recommend was requiring a guilty plea for those seeking diversion.

As the task force labored, the county’s preoccupation with the drug problem was growing, based in part on San Diego Assn. of Government studies showing a dramatic correlation between crime and narcotics. The studies show that, in July, 84% of the newly booked inmates of the downtown County Jail tested positive for some drug. That was up from 66% in June, 1987.

Cognizant of such alarming statistics, a group known as the Justice Staff Administration Council began examining the diversion program early this year. The group includes Dist. Atty. Edwin Miller, Sheriff John Duffy, Chief Probation Officer Cecil Steppe and the head of the San Diego city attorney’s criminal division, Stuart H. Swett.

This committee, members say, came to believe that the only way to induce offenders to complete their court-mandated drug treatment sessions was to require them to admit their guilt first.

“The chemical abuser is typically a con man of the highest order and will say or do whatever is necessary to survive,” Steppe said. “I’m not saying everyone diverted is of that ilk. But this proposal was viewed as a way of hedging against the bet.”

The prime concern voiced by prosecutors was that, because of a time lag, their case against a given offender is weakened or falls apart entirely if he fails to complete diversion and is returned to court.

“If a person fails the program, it can be months or a year before criminal proceedings are reinstituted against them,” said Swett, who favors abolishing the diversion program altogether. “By that time, witnesses’ memories fade, police officers transfer out of the area” and preserving the narcotics needed as evidence is often a problem.

Such obstacles, prosecutors and judges said, often prompt the reduction of a case from a felony to a misdemeanor--or to the outright dismissal of charges.

The committee’s proposal for a guilty plea requirement quickly won the favor of the Board of Supervisors, which approved a resolution urging the County Supervisors Assn. of California to support legislation that would accomplish the change--and make other modifications. The association’s general assembly meets in San Diego next month and is scheduled to discuss the request. Meanwhile, local supervisors are looking for a state legislator to introduce a bill next year.

News of the supervisors’ action began rippling through the defense bar just several weeks ago, and immediately attorneys began protesting both the proposed change and the fact that their opinion was not sought. Phil Harry, the acting public defender at the time, was on the Justice Staff Administration Council and said he raised concerns about the proposal. But apparently, he was outvoted and no input was solicited from private defense attorneys.

Most judges agree that the program is in dire need of help, but they have mixed opinions about the proposed change.

San Diego Municipal Judge Peter Riddle said the diversion program “needs to be tightened up” because “some of the defendants I see just do not take it seriously.” Riddle predicted that requiring a guilty plea of offenders would “get their attention.” But he declined to take a position on the issue before learning more about its impact on the courts and jails.

In North County, judges have attempted to track those diverted into treatment programs, and they say the results are discouraging. Municipal Judge David Ryan said 75% of those sent to the educational classes in North County either never enroll or drop out.

“Now, that’s a real lousy rate, and I’m pretty comfortable saying that the county’s programs emphasizing recovery through education are just not working,” Ryan said. “Many of these folks are serious addicts, and we’re deluding ourselves if we think eight hours of education is helping them.”

Ryan said he was initially skeptical of the guilty plea requirement but now favors it: “Drug abusers tend to be people who just slough off their addiction. Maybe this is a way to get at that attitude.”

In the South Bay, Municipal Judge Susan Finlay said the historic assumption that each first-time offender can be handled in the same way by the same treatment programs “has wasted a lot of resources and amounted to spitting in the wind.”

“Eight hours for a person who is injecting heroin and has tracks on his arms doesn’t even touch the surface,” Finlay said.

But requiring a guilty plea is not going to solve that problem, she said. Rather, “what we need is a multitiered system that can provide help for everyone from the peripheral user on up to the serious addict.”

Watching the brouhaha from the sidelines are those who run the programs providing drug treatment to offenders. Jeanne McAlister, executive director of the largest such agency, conceded that eight hours of classroom lectures from a social worker or other expert probably won’t prompt an addict to straighten up.

“But we are giving them exposure to what treatment and therapy are all about, and many come back years later when they’re ready to quit,” said McAlister, who runs the McAlister Institute of Training and Education. “And they go on and provide a great outreach service, telling all their friends who are users about our agency.”

McAlister expressed concern, however, about the district attorney’s requirement of a guilty plea for participants. She predicted that if her clients knew there would be a record of their drug arrest even after they completed the diversion program, they would have little motivation to attend.

“What would be the point? If there’s a guilty charge and a record, why would they want to do anything about their problem?” she said.

Holman of the district attorney’s office said the issue of a permanent record is “negotiable.” But some county officials wonder why drug offenders should enjoy the privilege of a sealed record when those arrested for other crimes are denied such a right.

“This diversion program is really not a sanction, and if you have laws without some sort of sanction attached, then it’s awfully hard to persuade people in a society to follow them,” Supervisor Susan Golding said. “If you have a law with no penalty, then the law ought to be removed because it’s a farce.”