Flood of Drug Diversion Cases Feared

Despite months of preparation, the state’s largest local criminal justice system could be overwhelmed by a new law transforming California’s approach to drug users.

Just weeks before the July 1 launch of Proposition 36, Los Angeles County judges, attorneys and other officials say the county could find itself without enough courtrooms, treatment centers or counselors to handle an estimated 20,000 or more defendants a year who will be eligible for drug treatment rather than prison.

“I think there are a lot of profound problems,” said Bob Mimura, director of the county’s Criminal Justice Coordinating Committee. “I hate to say the sky is falling . . . but there are going to be problems . . . operational problems, funding problems, problems with logistics.”

Added Los Angeles County Superior Court Judge Michael Tynan: “The big problem is that the number of people involved in Proposition 36 as defendants was grossly underestimated . . . and the money is just not going to be there.”

Statewide, $60 million has been allocated in start-up costs for the initiative approved overwhelmingly in November by California voters. In addition, state officials have earmarked $120 million in the coming fiscal year to handle up to 74,000 people, including parolees, convicted of nonviolent drug possession charges and eligible for treatment programs.

In both instances, Los Angeles County received 25% of the state’s total funding even though it handles at least 30%--and perhaps as many as 40%--of the drug defendants eligible for treatment under the initiative.

“From the very beginning, I have been saying Proposition 36 did not provide enough money,” said Los Angeles County Public Defender Michael P. Judge. “When they calculated what it would cost, they originally projected 20,000 cases in the state. Now we are projecting 20,000 in our county alone.”

Some Defendants Will Be Ineligible

Under Proposition 36, defendants convicted of nonviolent drug possession or use are to be sent for drug treatment rather than to jail or prison. Defendants are ineligible if convicted at the same time of another type of crime or if they have one or more prior serious felony convictions within five years.

State officials say the funding formulas were devised to assure that large counties would not gobble up all of the Proposition 36 funds purely on the basis of caseloads.

“We developed a funding formula that we believe would distribute the money in the most equitable manner possible,” said T. Maria Caudill, spokeswoman for the California Department of Alcohol and Drug Programs. “Every county has unique needs, and in developing any funding formula we need to strike a balance.”

In Orange County, courts have been operating as though Proposition 36 had been in effect for four months, placing nearly 600 eligible offenders in counseling thus far. County health officials have lined up enough treatment programs to deal with the demand, but some officials are concerned about funding, said Ronald Kreber, Orange County’s supervising criminal judge.

Los Angeles County officials differ on whether a day of reckoning will occur shortly after the start-up of the new law or months down the line.

Either way, the challenges will be enormous:

* To accommodate the eventual crush of drug offenders eligible for treatment programs, the Los Angeles County Superior Court will dedicate 26 courtrooms for Proposition 36 cases--more than double the dozen courtrooms now set aside for drug cases. In addition, the county’s 300 judges and commissioners now hearing criminal cases also will handle Proposition 36 cases until defendants are sentenced and their cases are monitored by the 26 courtrooms.

* Though treatment is a cornerstone of the initiative, officials warn that community-based treatment programs already are plagued by a lack of drug counselors. In addition, they say, the county could face a serious shortage in the number of beds available in the long-term treatment programs required for the most severely addicted offenders.

* Despite broad agreement that drug testing is crucial to determining the success of any treatment program, Proposition 36 does not set aside any state money for testing. In Los Angeles County alone, the estimated cost for a basic testing system is $6 million a year. And while state Senate Pro Tem John Burton (D-San Francisco) has a bill pending to provide $18 million statewide for drug testing, it is unclear how long it would take to clear the Legislature.

“On a scale of one to 10, I’d say [money] is pretty much a 10 in terms of my concern because I think our system already is underfunded,” said Patrick Ogawa, director of the county Alcohol and Drug Program Administration. That office will serve as the lead agency in Los Angeles for Proposition 36.

Acknowledging the concerns, Burton said last week that state officials will monitor the funding demands of counties. He also noted that his drug testing bill would add to the funding available to meet Proposition 36’s mandate.

“It isn’t all that much, but we will do the best we can,” Burton said in an interview.

But the lawmaker added that “it is too early” to conclude that the $120 million earmarked for counties this coming fiscal year will be inadequate. Moreover, he said it was unreasonable to expect that this law, like any other sweeping legislation, would not cause some disruption.

“Everything new has got some growing pains,” he said.

Los Angeles County, officials say, is not alone in its concerns about funding the justice system for Proposition 36.

In Orange County, the Board of Supervisors has expressed alarm over the potential costs of handling an estimated 4,000 defendants a year.

Last week, Dist. Atty. Tony Rackauckas asked the county board to allocate nearly $500,000 to pay for five more deputy district attorneys who would handle Proposition 36 cases. After hearing the proposal, the public defender’s office immediately requested the same extra staffing.

“Everybody is crying about [the costs],” said Mike Brady, Sen. Burton’s consultant on the ballot measure. “They’re all saying, ‘There’s not enough money, there’s not enough money.’ ”

But Brady, like a few other state and county officials, said lingering uncertainties over the number of eligible defendants makes any worries about funding premature.

“Look, when you talk about a paradigm shift from incarceration to treatment in [just] months, you are going to have capacity problems,” Brady said.

“But for anyone to say they cannot do it is premature because we don’t know the exact number of people who will enter the system.”

Others, including Judge Tynan, said that based on current projections, there is a clear cause for concern.

“We will not be drowning [in cases],” said Tynan, supervising judge of Los Angeles County’s drug courts. “But we anticipate there will be a problem with resources . . . and it could be overwhelming for the county court system and, by extension, drug treatment programs.”

And, officials said, the day-to-day mechanics of the new approach could prove daunting.

About Half Didn’t Return to Court

For example, Tynan and others said, a recent trial run on Proposition 36 in Orange County found that about half of the defendants who were sent to treatment programs rather than jail did not return to court as required for monitoring.

“A lot of that dealt with geography. People would be convicted in Fullerton but told to go to Santa Ana for monitoring,” said Tynan.

Given Los Angeles’ sprawl, he said, “We know that [geography] will be a problem for us.”

Not all county officials are bracing for the worst.

Though the Los Angeles County Probation Department has estimated that its caseload could swell by as many as 14,000 new offenders per year, Probation Chief Richard Shumsky said last week that he is not alarmed. “I think we have an integrated plan and we are ready for it,” he said.

The Los Angeles County Sheriff’s Department says the ballot measure is unlikely to make a major difference in the county’s jail population. “It is not going to have a tremendous impact on us,” said Correctional Services Chief Al Scaduto.

He said the practical effect of Proposition 36 could be that those arrested for simple possession will spend several days--rather than weeks or months--behind bars as they await a court appearance, then plead guilty so they can be referred to drug treatment.

If that happens, he said, “their [jail] beds will be filled by someone else arrested for possession.”

That theory could prove wrong, Scaduto said, if deputies and police officers make fewer arrests for drug possession because of the new law.

“I have talked to law enforcement people throughout the state . . . and nobody knows how the street cops will react to [Proposition 36],” said Scaduto, a member of a statewide task force on implementation of the measure.

“We saw when marijuana possession was made an infraction that there was a decrease in the number of cases,” he said. “So here, there might be a decrease in the number of arrests for simple possession.”

If that variable remains an unknown, other officials say, there is little doubt that Proposition 36 could become a huge problem for both courts and treatment centers.

“I think that initially, there will be an avalanche of cases,” said Los Angeles County Superior Court Judge Stephen Marcus.

Already, he said, some drug defendants throughout the county have postponed court dates until after July 1 to seek eligibility for drug treatment and avoid jail. “For them, it just makes sense: Why plead guilty now and go to jail for a long time when you can wait it out?”

Demands Could Be Enormous

District attorney’s special counsel Lael Rubin said that her office will take the position that those arrested on drug charges prior to July 1 do not qualify for diversion under the ballot measure.

Most experts agree that the demands on courts and treatment programs could be enormous.

For one thing, they note, even with the additional courtrooms and judges, drug treatment and monitoring could mean that each defendant makes twice as many court appearances as someone sent to prison.

“We do not expect the caseload to increase but we do expect the workload to rise because of the added number of appearances,” said Peggy Shuttleworth, deputy executive officer for the Los Angeles court’s central operations.

In addition, officials point out, the new law could place a tremendous strain on drug treatment centers.

The estimated $24 million available for treatment programs, they say, is perhaps half the amount needed for the 250 or so residential programs now used in Los Angeles County. Beyond the issue of capacity, officials add, is the concern that treatment and recovery programs throughout the county already are hindered by a shortage of trained counselors.

The current lack of funding for any drug testing also looms as a significant issue.

“The concern both from the prosecution and the defense side is the very sincere belief that unless there is a respectable amount of drug testing, there is no way of assessing whether Proposition 36 is working or not,” said Deputy Dist. Atty. Rubin.

Even those who are not worried about a short-term crisis still believe that major problems could eventually arise.

“I think initially we will do OK,” said Ogawa, who heads the county’s alcohol and drug program. “I am more concerned about what will happen if the numbers increase far above what we anticipated and we don’t get more resources.”

Added Public Defender Judge: “I am fairly optimistic that we will manage it pretty good the first year. But all bets are off the second year.”

*

Times staff writers Stuart Pfeifer and David Reyes contributed to this story.

(BEGIN TEXT OF INFOBOX / INFOGRAPHIC)

What Prop. 36

May Bring

Proposition 36, the initiative approved in November by California voters, will dramatically change the way the state deals with adults charged with drug possession.

STATEWIDE ESTIMATE

OF POTENTIAL CASES

Before initiative passed: 20,000

Current estimate: 60,000

IMPACT OF PROP. 36 ON

L.A. COUNTY JUSTICE SYSTEM

Superior Court

Present: 12 courtrooms handling drug cases

After July 1: 26 courtrooms handling drug cases

Probation Department

Estimated: 14,000 new cases per year

Sources: State of California, Los Angeles County departments