Is the Criminal Justice System Ready for Proposition 36?

Charles L. Lindner is past president of the Los Angeles Criminal Bar Assn

Since the 1980s, California’s penal system has been chiefly designed to punish, deter and avenge. As a result, the prison population has risen from 34,640, in 1982, to its current 161,291, of whom 38.6% are imprisoned for drug offenses. In last month’s election, state voters overwhelmingly passed Proposition 36, which will funnel drug users who are guilty of no other crime into rehabilitation programs rather than prison. It will not be an easy transition, for reasons psychological as well as economic. Each player in the criminal justice system will be affected in different ways.

The police. In relabeling drug users as “sick,” voters approved a perspective for which the police have little or no training: The cop is not a social worker. Discussing Proposition 36, a sergeant in the Los Angeles Police Department recently noted, “I became a police officer to put bad guys in jail.” In the eyes of most cops, drug users are “bad guys.” So how will the police react?

When Proposition 36 goes into effect on July 1, 2001, the police could respond in at least two ways. They could handle hard-drug users just like they have been forced to treat marijuana users: by viewing themselves as a conduit to a rehabilitation program. The maximum penalty for possessing under an ounce of marijuana is a fine of $100. Defendants are entitled to a jury trial, but since jury trials can cost thousands of dollars a day, such minor marijuana cases are not tried anymore.

Under Proposition 36, the maximum penalty for a small-time heroin user, crackhead or possessor of other drugs, if convicted, will be a drug rehabilitation program. The proposition also mandates rehabilitation for second-time violators, recognizing that many addicts relapse.


When it comes to drug offenses, then, Proposition 36 changes the cop’s game from “good guy vs. bad guy” to “good guy and sick guy,” which is no fun for cops, since jail is not a legal sentencing option. One effect may be less enforcement of drug laws. Ironically, small drug arrests constitute roughly 55% of all felony criminal filings in the downtown Criminal Courts Building and consume huge police, court and defense resources.

Alternatively, the police could obstruct implementation of Proposition 36 by finding other crimes to charge drug suspects with, or they could inflate simple possession to “sales” or “possession for sale” cases. An example is the drug-addicted prostitute. Currently, if an officer arrests a prostitute who also possesses drugs, the drug case is charged as a felony, and the misdemeanor prostitution charge minimized or ignored. Under the new law, the felony drug possession would result in diversion, whereas the prostitution charge often carries a jail sentence. So do the police ask the prosecutor to file the felony drug charge resulting in diversion or the misdemeanor prostitution charge, which may get the prostitute a modest jail sentence?

The courts. Proposition 36 should substantially diminish the felony trial calendars of most criminal judges. Rather than spend days in trial, most drug users will probably choose rehabilitation early in the proceedings, plead guilty, get a probation report and get assigned to a program.

Conversely, since the maximum penalty is rehabilitation and probation, drug cases could backlog the courts in endless small-time felony trials because there is no downside for the accused. Trial or no trial, the sentence is the same: drug treatment.


The probation department. Without an enormous infusion of funds and the hiring of several hundred new probation officers, the drug-treatment program envisioned in Proposition 36 will fail. Currently, a probation officer typically supervises from several hundred to thousands of adult probationers. A realistic drug-supervision caseload is 75 to 100. Furthermore, while the department’s officers overseeing juveniles have maintained a minimally acceptable standard of care, the same cannot be said of officers supervising adults. Probation reports for adult offenders are largely repetitions of a defendant’s rap sheet and a superficial, often factually inaccurate biographical sketch.

Probation officers will need to aggressively supervise clients in drug rehabilitation programs. They will need the power to conduct drug tests, a requirement Proposition 36 neglected and which needs prompt legislative amendment. They also will need to pull drug users out of their old environments, because that is where the offenders obtained and used drugs. In short, the Probation Department will need to return to the officer-client ratio of 25 years ago, including home visits and active vocational or school supervision. The costs will be enormous.

Jails. In most counties, Proposition 36 will mean smaller jail populations. In Los Angeles, however, such a decline is less likely. For many years, the Los Angeles County Sheriff’s Department has been under a federal court order to “cap” its prisoner population. To stay under the cap, the department has adopted an intricate triage scheme of letting some prisoners out early to compensate for new prisoners coming in. Because most drug users are nonviolent, they are prime candidates for early release. But because jail sentences far exceed the number of beds available, any vacancies caused by drug-diversion programs will simply be filled by other convicted offenders.

Drug treatment centers. As of last August, there was a statewide waiting list of 5,000 court referrals for residential drug-treatment programs. Like the county Probation Department, new drug treatment centers will need many millions of dollars to get up and running, hire counselors and health-care staff, and meet state certification under operating rules yet to be promulgated. Within the first month of Proposition 36, estimates are that as many as 36,000 new referrals will be made by California courts.


The state prison system. Don Novey, president of the prison guard union, put it best: “Drug rehabilitation does work, I’ve seen it work in the prison. We’ve got a very high success rate. Over 50% go out and become law-abiding citizens. Simply put, the reason we don’t have full funding for treatment is [that] the politicians cannot be soft on crime.” (Ironically, Novey’s union, the California Correctional Peace Officers Assn., was a financial backer of the “No on 36" campaign.)

It’s estimated that at least 85% of California’s inmate population has a significant drug or alcohol problem. Almost nothing has been done to help these people overcome their addictions. The California Department of Corrections clearly does not consider drug rehabilitation a priority. Until about three years ago, the state Legislature provided almost no funding for drug rehabilitation in prisons.

The prison guards’ union president agrees that rehabilitation works, but his union opposes community rehabilitation. Why? I would suggest that fewer prisoners mean fewer prison guards, which mean less union dues, resulting in less political clout. For prison guards, inmates are a necessary commodity.

Through Proposition 36, voters sent Sacramento a clear message: The war on drugs is over. We lost. You cannot curtail the supply. You can decrease the demand. Change your priorities now.


Will the system pay attention?