Submitted July 17, 2008

Proposition 5

Nonviolent Offenders. Sentencing, Parole and Rehabilitation. Statute.

Summary

This measure (1) expands drug treatment diversion programs for criminal offenders, (2) modifies parole supervision procedures and expands prison and parole rehabilitation programs, (3) allows inmates to earn additional time off their prison sentences for participation and performance in rehabilitation programs, (4) reduces certain penalties for marijuana possession, and (5) makes miscellaneous changes to state law related mainly to state administration of rehabilitation and parole programs for offenders. Each of these proposals is discussed separately below as well as their combined fiscal effects on the state and local governments.

Proposals

Expansion of Drug Treatment Diversion Programs

Background

Probation and Parole. Currently, courts can place both adult and juvenile offenders under supervision in the community, where they must meet certain requirements, such as reporting on a regular basis to authorities. Offenders supervised by county authorities are “on probation.” Offenders who have completed a prison sentence and who are supervised by the state are “on parole.”

Three Types 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 in 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 that had 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 to incarcerate an inmate is estimated to be about $46,000. The state prison system is currently experiencing overcrowding because there are not enough permanent beds available for all inmates. As a result, gymnasiums and other rooms have been converted to house some inmates.

Existing Drug Treatment Diversion Programs In general, state law authorizes three main types of drug treatment diversion programs for criminal offenders. Penal Code 1000. Under Penal Code 1000 and related statutes, certain drug possession offenders who have 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. This means that the offender must plead guilty to the drug possession charges but that sentencing for the crime is suspended. If, after 18 months to three years, the offender successfully completes a drug treatment program and stays out of trouble, the charges against the offender are dismissed and the offense does not go on his or her record. Proposition 36. Proposition 36, a ballot measure approved by the voters in November 2000, established a drug treatment diversion program for offenders who are convicted of specific crimes designated as nonviolent drug possession offenses. Under Proposition 36, an 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 when and how sanctions, such as jail or prison time, are imposed on offenders who violate the conditions of their drug treatment programs or commit new drug possession crimes. Drug Courts. Under drug court programs operated for adult felons, certain offenders charged or convicted of various types of crimes, including drug offenses, are diverted to treatment in lieu of incarceration. Drug court participants are subject to regular monitoring by a court (as well as by probation officers and drug treatment providers), with judges generally given discretion as to when and how to impose sanctions if participants do not comply with drug program rules or commit new crimes.

New Adult Diversion Programs Established

Three-Track System. Currently, several programs permit criminal offenders who have committed drug-related offenses, or who have substance abuse problems, to be diverted from prison or jail to other forms of punishment. (These programs are described in the nearby text box.) This measure expands and largely replaces these existing programs with a new three-track drug treatment diversion program. Figure 1 summarizes which offenders are eligible for each track and their period of participation.

 
General Effect of These 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 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.

Finally, this measure would require the collection and publication of data, specified reports, and research into the effect of this measure and other drug policy issues.

Funding Provisions. The 2007‑08 Budget Act appropriated $100 million from the General Fund to the Substance Abuse Treatment Trust Fund (SATTF), which was initially created under Proposition 36 to support treatment programs and other allowable 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, increasing annually thereafter, adjusted for the cost of living and population. After monies are set aside for certain administrative and program costs, the measure designates 15 percent of the remainder 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 under this measure to set program rules regarding the use and distribution of SATTF funds and the collection of data for required evaluations of the programs and program funding needs. The measure generally prohibits the state or counties from using SATTF funds to replace funds now used for the support of substance abuse treatment programs. In addition, it requires that other available private and public funding sources be used whenever possible to pay for treatment before monies from SATTF are spent for these treatment services.

This measure permits SATTF funds to be spent on so-called “harm reduction” drug therapies that “promote methods of reducing the physical, social, emotional and economic harms associated with drug misuse” and that also “are free of judgment or blame and directly involve the client in setting his or her own goals.”

New Juvenile Treatment Program Established

This measure creates 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 certain implementation costs were deducted) that would be allocated to counties and could be used for various 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

This measure makes a number of changes to the state’s current parole system, including new rules regarding parole terms, the return to custody of parole violators, and rehabilitation programs for offenders. Below, we briefly outline how the parole system works and how it would be affected by these provisions.

Background

Parole Terms. Under current state law, offenders are released from prison and placed on parole for a set period of time, usually depending on the nature of the offense for which they were convicted. Most offenders are subject to a maximum three-year parole period, which can be extended under certain circumstances to four years, although they may be discharged earlier from parole if they stay out of trouble after their release to the community. Offenders who have committed certain crimes, particularly violent sex crimes or murder, are subject to longer parole terms.

Parole Revocations. Parolees who get in trouble after being released to the community can be returned to state prison in two different ways. One way is if they are prosecuted and convicted in the courts of a new crime—either a felony or a misdemeanor—and sentenced to an additional term in prison. Another way is through actions of parole authorities and the Board of Parole Hearings (BPH), a process referred to as revocation of parole, based on a finding that a parole violation has occurred. Revocation is an administrative process that does not involve any action by a court. In some cases, parole revocation involves violations by parolees that could constitute a crime. But parole revocation can also result from actions, such as failing to report to a parole office, that do not in themselves constitute a crime. These types of offenses are sometimes referred to as “technical” parole violations.

Rehabilitation Programs for Offenders. The state currently provides substance abuse treatment, academic education, job training, and other types of programs for prison inmates and parolees in order to increase the likelihood of success in the community after their release from prison. However, due to funding limitations, space constraints, and in some cases security concerns, the state often does not now make such programs available to inmates and parolees. Also, the state does not directly provide services for offenders after they have been discharged from parole. However, some former parolees may qualify for public services, such as mental health or substance abuse treatment, that the state is helping to support.

New Limits on Parole Terms

This measure reduces the parole term of some parolees but allows longer parole terms for others. It specifies that offenders whose most recent term in prison was for a drug or nonviolent property crime, and who did not have a serious, violent, street gang-related, or sex crime on their record, would be placed on parole supervision for six months. Under the measure, these same parolees could be placed on an additional six months of parole at minimal supervision levels if they failed to complete an appropriate rehabilitation program that was offered to them during the first six months.

This measure also provides longer parole terms for some offenders. Specifically, this measure changes from three to five years the parole terms for any offender whose most recent prison sentence was for a violent or serious felony (such as first-degree burglary or robbery). Some violent sex offenders and other parolees would continue to receive even longer parole terms as provided under existing law.

New Rules for Revocation of Parole Violators

This measure requires that parole violations be divided into three types—technical violations, misdemeanors, and felonies—and generally prohibits certain parolees from being returned to state prison for technical or misdemeanor parole violations. This measure would allow revocation of parolees who committed felony violations of parole. It also permits revocation to state prison of those committing technical or misdemeanor violations who were classified high-risk by CDCR, or have violent or serious offenses on their record.

Under this measure, certain parolees who commit parole violations could face such punishments as more frequent drug testing or community work assignments. Some parolees who hide, are repeat violators, or commit misdemeanor parole violations could serve jail time, which under the measure would be at the expense of the state. Parole violators could also be placed in rehabilitation programs.

Expansion of Rehabilitation Programs for Offenders

This measure expands rehabilitation programs for inmates, parolees, and offenders who have been discharged from parole. As regards inmates, the measure requires that all inmates except those with life terms be provided with rehabilitation programs beginning at least 90 days before their scheduled release from prison. The measure directs CDCR to conduct an assessment of the inmate’s needs as well as which programs would most likely result in his or her successful return to the community. Parolees are to be provided rehabilitation programs by CDCR tailored to the parolee’s needs as determined in their assessment. Offenders would be permitted to request up to a year’s worth of rehabilitation services within a year after they are discharged from parole. While these offenders would receive these services from county probation departments, all operational costs of the services would be reimbursed by CDCR under the terms of the measure.

Other Parole System Changes

Parole Reform Board Created. This measure creates a new 21-member Parole Reform Oversight and Accountability Board with authority to review, direct, and approve the rehabilitation programs and to set state parole policies.

Costs Shifted to State for Drug Diversion of Parolees. Currently, some parolees who are diverted to drug treatment receive their treatment services from counties. This measure provides that either CDCR or counties could provide such treatment services for parolees, but that CDCR would have to pay any county operating costs for doing so.

Pilot Programs for Parole Violators. This measure directs CDCR to establish pilot projects similar to drug courts (see earlier text box for description) to divert certain parolees who have committed parole violations to treatment and rehabilitation programs. Under the measure, the funding to carry out the programs could come either from the CDCR’s budget or separate funding legislation.

Changes in Parole Revocation Procedures. This measure requires that parolees receive notice of alleged violations of parole at a BPH hearing held within three business days of their being taken into custody. Consistent with current federal court orders, this measure amends state law to provide all such parolees a right to legal counsel at this hearing.

Credits for Performance in Rehabilitation Programs

Background

State law currently provides credits to certain prison inmates who participate in work, training, or education programs. These credits reduce the prison time the inmates must serve. (Credits can be taken away if an inmate commits disciplinary offenses while in prison.) Some offenders who are committed to prison for violent and serious crimes can earn only limited credits or can earn no credits at all. But a number of offenders are eligible to earn up to one day off their prison sentences for each day they participate in such programs. Offenders who agree to participate in such programs, but are not yet assigned to one, receive up to one day in credits for every three days they are in this situation.

Expanded Credits Permissible

This measure would change state law to permit some inmates who were sentenced to prison for certain drug or nonviolent property crimes to earn more credits to reduce their prison terms than are permitted under current state law. The parole reform board established in this measure would be authorized to award additional credits based upon such factors as the inmate showing progress in completing rehabilitation programs. The measure does not specify nor limit the amount of such additional credits that could be awarded, but it does prohibit them from being awarded to any inmate who has ever been convicted of a violent or serious felony or certain sex crimes.

Change in Marijuana Possession Penalties

Background

Current state law generally makes the possession of less than 28.5 grams of marijuana by either an adult or a minor a misdemeanor punishable by a fine of up to $100 (plus other penalties and fines that can bring the total cost to as much as $370) but not jail. Possession of greater amounts of marijuana, or repeat offenses, can result in confinement in jail or a juvenile hall, greater fines, or both. Revenues generated from these fines (including the additional penalties) are distributed in accordance with state law to various specified state and county government programs.

Penalties for Marijuana Offenses Would Become Infraction

This measure would 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. Adults would be subject, as they are today, to a fine of up to $100. However, the additional penalties of any kind would be limited under this measure to an amount equal to the fine imposed. (For example, imposition of the maximum $100 fine could result in an additional $100 in penalties.) Persons under age 18 would no longer be subject to a fine for a first offense, but would be required to complete a drug education program. Also, under this measure, fines collected for marijuana possession would be deposited in a special fund to provide additional support of the new youth programs created by this measure.

Miscellaneous Provisions

Other provisions of this measure:

• Reorganize the way CDCR’s rehabilitation and parole programs are administered, and establish a new, second secretary of the department and a chief deputy warden for rehabilitation at each prison;
• Expand BPH from 17 to 29 commissioners;
• Require county jails to provide materials and strategies on drug overdose awareness and prevention to all inmates prior to their release;
• Specify that, except for parolees, adults in drug treatment programs would receive mental health services using funding from Proposition 63, a 2004 ballot measure approved by voters that expanded community mental health services.

Fiscal Effects

This measure would have a number of fiscal effects on state and local government agencies. The major fiscal effects that we have identified are summarized in Figure 2 and discussed in more detail below. The fiscal estimates discussed below could change due to pending federal court litigation or budget actions.

Increase in State Costs for Expansion of Drug Treatment and Rehabilitation

This measure would eventually result in an increase in state costs, potentially exceeding $1 billion annually, mainly for expansion of drug treatment and other services provided for eligible offenders and related administrative costs.

Expenditures for New Drug Diversion System. As noted earlier, this measure appropriates $150 million from the state General Fund for the second half of the 2008-09 fiscal year (January through June 2009) to the SATTF, rising to $460 million annually in 2009-10, for support of the three-track drug treatment diversion program and the program for juvenile treatment services established in this measure. The 2009-10 funding level for these new programs would be more than $300 million greater than the General Fund appropriations provided in the 2007-08 Budget Act for the programs they would largely replace (Proposition 36 treatment and drug courts). In subsequent fiscal years, the appropriations for the new programs would be automatically adjusted annually for the cost of living and every fifth year for changes in the state population, and thus would be likely to grow significantly over time.

The monies appropriated for the new drug diversion programs could be used for various treatment and administrative costs. It is likely that at least some program and administrative costs related to the expansion of drug treatment diversion would require additional state appropriations.

Expenditures for Inmate and Parole Rehabilitation Programs. This measure would result in an increase of several hundreds of millions of dollars annually in state costs for expanded rehabilitation programs for offenders in state prisons, on parole, and in the community. These costs would be paid for primarily from the state General Fund.

Other State Fiscal Impacts. A number of specific provisions in this measure would result in additional state program and administrative costs, with the potential of collectively amounting to tens of millions of dollars annually. Among the provisions that would increase state General Fund costs is the requirement that the state reimburse counties (and some cities) for the incarceration of additional parole violators in jails. The requirement that the state reimburse counties for drug treatment services that the counties provide to certain parolees would also increase state costs. In addition, the provisions in this measure changing the penalties for marijuana use would reduce state revenues from criminal penalties.

Level of Additional Costs Uncertain. The cost to the state of carrying out the various provisions of this measure are unknown and could, in the aggregate, be higher or lower than we have estimated by hundreds of millions of dollars annually, depending upon how this measure is implemented. For example, the costs to the state of providing rehabilitation services to inmates during their last 90 days in prison could be significantly reduced to the extent that the state was able to redirect available slots in education, substance abuse, and other programs toward these short-term inmates and away from inmates who had longer than 90 days to serve on their sentences.

Savings on State Operating Costs for Prison and Parole Systems

This measure would eventually result in savings on state operating costs, potentially exceeding $1 billion annually, due mainly to reductions in prison and parole supervision caseloads. Specifically, this measure could eventually reduce the state prison population by more that 18,000 inmates and reduce the number of parolees under state supervision by more than 22,000. The reasons for these population reductions are discussed below.

Impacts From Drug Treatment Diversion Program. The three-track drug treatment diversion system created in this measure could significantly reduce the size of the prison population, thereby reducing prison operating costs. This is because the measure (1) diverts additional offenders to drug treatment programs instead of incarceration in state prison, (2) allows some offenders who have violated diversion program rules or drug laws to remain in treatment instead of being incarcerated in state prison, and (3) makes it possible for more offenders to receive the specific type of drug treatment (such as care in a residential facility) that would be more likely to result in better treatment outcomes, and thus make them less likely to be involved in criminal activity in the future.

Other Prison Impacts. Other provisions of this measure would also likely result in reduced prison and parole caseloads and related savings over time. These include provisions that:

• Exclude certain categories of parole violators from being returned to state prison;
• Allow certain inmates in rehabilitation programs to receive additional credits that would reduce the time they must serve in prison;
• Expand rehabilitation services for inmates, parolees, and offenders who have completed parole, thereby potentially reducing the rate at which they return to prison for new offenses;
• Reduce the period of parole supervision for offenders convicted of certain drug or nonviolent property crimes. These savings would eventually be partly offset by the increase in parole terms for some violent and serious offenders.

Parole Savings in the Longer Term. In the short term, this measure could increase parole caseloads by preventing certain parolees from being returned to prison for parole violations. In the longer term, however, this measure is likely to result in a significant net reduction in parole caseloads. That is because a large reduction in the number of offenders in prison—for example, due to increased drug diversion programs—means ultimately that there would be fewer offenders being released from prison to parole supervision. The provisions in this measure reducing the period of time certain offenders are supervised on parole would also reduce parole caseloads.

Level of Savings for Prison and Parole Somewhat Uncertain. The level of savings to state prison and parole operations from all of these provisions are unknown and could, in the aggregate, be higher or lower than we have estimated by hundreds of millions of dollars, depending upon how this measure is implemented. For example, the new state parole reform board created in this measure could expand the award of credits to inmates in rehabilitation programs but is not required to do so. Also, the savings to prison and parole operations resulting from this measure could vary significantly over time. For example, some offenders initially diverted from prison to drug treatment programs under this measure, who did not succeed in treatment, might eventually be returned to prison for committing crimes unrelated to drugs.

Net Savings on State Capital Outlay Costs

This measure would eventually result in one-time net state savings on capital outlay costs for new prison facilities that eventually could exceed $2.5 billion. This net estimate of savings takes into account both (1) likely savings to the state from constructing fewer prison beds because of a reduced inmate population and (2) increased needs for prison program space due to this measure’s requirement for expanding in-prison rehabilitation programs. The costs for additional program space could be substantially less if (1) the expected reduction in the inmate population frees up existing prison space now being used to house inmates that could instead be used for operating rehabilitation programs for inmates and (2) the requirement for expanding inmate rehabilitation programs at least 90 days before their release is partly met by reducing program participation by inmates with more than 90 days to serve in prison.

Unknown Net Fiscal Impact on County Operations and Capital Outlay

County Operations. This measure provides more than $300 million in additional funding annually by 2009-10 through the SATTF for adult and juvenile drug treatment and diversion programs that would be operated mainly by counties. Counties are likely to incur increases in expenditures over time for the programs, including administrative costs, that are generally in line with the increase in the funding that they would receive from the state through the SATTF.

In addition, the measure could result in other increases and reductions in county operating costs and revenues. For example, provisions requiring use of Proposition 63 funds for mentally ill offenders placed in drug treatment diversion programs could increase county costs to the extent that this change prompted counties to replace the funds shifted to these offenders with other local funds. However, the expansion of drug treatment diversion programs in this measure could reduce county costs for jailing offenders for drug-related crimes. The net fiscal impact of these and other factors on counties is unknown and could vary significantly from one jurisdiction to another.

County Capital Outlay. Some counties could, as a result of this measure, face added capital outlay costs for housing parole violators who would be diverted from prison to jails. However, these capital outlay costs could be offset by the diversion of drug offenders from jails to treatment in the community. Other aspects of the measure could also reduce jail populations. The net effect on county capital outlay costs is unknown and would probably vary significantly from one jurisdiction to another.

Other Fiscal Impacts on State and Local Governments

This measure could result in other state and local government costs. This would occur, for example, to the extent that additional offenders diverted from prison or jail require government services or commit additional crimes that result in additional law enforcement costs or victim-related government costs, such as government-paid health care for persons without private insurance coverage. Alternatively, there could be increased state and local government revenue to the extent that offenders remaining in the community because of this measure become taxpayers. The magnitude of these impacts is unknown.

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