December 18, 2007

Pursuant to Elections Code Section 9005, we have reviewed the proposed initiative cited as the “Nonviolent Offender Rehabilitation Act of 2008” (A.G. File No. 07‑0081).

This measure contains provisions that (1) expand drug treatment diversion programs for nonviolent offenders, (2) modify parole supervision procedures and expand prison and parole rehabilitation programs, (3) allow for additional credits for participation and performance in rehabilitation programs that could reduce the time certain offenders stay in state prison, (4) change the penalties for marijuana possession, and
(5) make various other miscellaneous changes to state law related mainly to the organization of rehabilitation programs at the California Department of Corrections and Rehabilitation (CDCR).

Proposal

Expansion of Drug Treatment Diversion Programs

Background

Probation and Parole. Both adult and juvenile offenders may be ordered by a court to be placed in supervision in the community, where they are subject to various conditions, such as reporting on a regular basis to authorities. Offenders supervised by county authorities are considered as being on probation, while offenders who have completed a prison sentence and who are under community supervision are referred to as having been placed 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.

Existing Drug Treatment Diversion Programs. Several programs now in existence permit criminal offenders who have committed drug-related offenses, or who have substance abuse problems, to be diverted from prison or jail or other forms of punishment:

New Diversion Programs Established

Three-Track System. This measure expands and largely replaces the existing
PC 1000, Proposition 36, and drug court programs with a new three-track drug treatment diversion program primarily for nonviolent drug possession offenders. The three tracks, and some of the significant changes from existing diversion programs, are as follows:

The measure permits offenders who have failed in Track I to be shifted to Track II, for offenders who have failed in Track II to be moved to Track III, and makes numerous other changes in the existing Proposition 36 statutes.

General Effect of These Changes. In general, the new Tracks I, II, and III, as established in this measure, would work in combination to (1) expand overall the types of offenders who are eligible for diversion; (2) further limit the circumstances under which 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; (3) establish new court procedures for diversion programs, such as a a follow-up hearing in court within 30 days when an offender assigned to treatment does not actually begin treatment; (4) require the collection and publication of data, specified reports, and research into the effect of these provisions by state agencies and public universities; and (5) significantly expand and intensify the services provided to offenders mainly by increasing the funding available to pay for them.

Funding Provisions. The 2007-08 Budget Act appropriated $100 million to the Substance Abuse Treatment Trust Fund (SATTF), which was initially created under Proposition 36 to support treatment programs and other activities to implement the measure. This new initiative instead appropriates $150 million to the SATTF for the second half of 2008‑09 and $460 million in 2009‑10, with cost of living and population adjustments required under its terms. 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. Under the terms of the measure, the state would discontinue funding for three specified drug court programs and in effect fold them into Track III. The measure otherwise generally prohibits the state or counties from using SATTF funds to replace funds now used for the support of substance abuse treatment programs. The initiative also requires that other available private and public funding sources, such as the Drug Medi-Cal substance abuse treatment program for the poor or fees charged to offenders who can afford them, be used to pay for treatment before monies from SATTF are spent for the drug treatment diversion programs.

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 which offenders can be returned to prison and jail for parole violations, revised parole terms, and requirements to provide programs for offenders returning to the community both before and after they leave prison. 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 on parole for a set period of time, usually depending on the nature of the offense for which they were sent to prison. 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 via 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 parolees can be returned to prison is through the revocation of their parole by actions of parole authorities and the Board of Parole Hearings (BPH) upon 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 violations involve actions by parolees that could constitute a crime. But parole violations can also involve 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 reduce inmate idleness and to increase the likelihood of success in the community after their release from prison rather than return to crime. However, due to funding limitations, space constraints, and in some cases security concerns, the state does not now make such programs available to all inmates and parolees. Also, the state does not directly provide services for offenders after they have been discharged from parole, although 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.

The parole terms of most other offenders would be limited under this measure to three years. However, this measure 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 establishes in statute that parole violations are to 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 nonetheless allow revocation of parolees who committed felony violations of parole, were classified high-risk by CDCR, or have violent or serious offenses on their record.

Under this measure, parolees who commit parole violations but who qualify for Proposition 36 would continue to be sent to drug treatment, as under current law. Parolees committing parole violations who are not eligible for Proposition 36 could face such punishments as more frequent drug testing or community work assignments for their violations. Some parole absconders, repeat violators, and parolees who committed 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. Specifically, this 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 be most likely to 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 these 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 parole policies.

Costs Shifted to State for Drug Diversion of Parolees. Currently, most parolees who commit nonviolent drug possession violations of their parole, and who are subsequently diverted to drug treatment instead of being returned to prison, receive their Proposition 36 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 costs for doing so.

Pilot Programs for Parole Violators. This measure directs CDCR to establish five-year pilot projects in five regions similar to drug courts to divert certain parolees who have committed parole violations from prison 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 the BPH conduct a hearing within three days after a parolee has been taken into custody for an alleged violation of parole. Current state practice, in keeping with a past settlement of a lawsuit relating to parolees’ legal rights, is for the board to conduct such hearings within ten days. Consistent with current state practice, this measure amends state law to provide all such parolees a right to legal counsel at this hearing.

Reports and Studies. This measure establishes various requirements on state agencies to collect and report information relating to the inmate and parole populations and the effectiveness of rehabilitation programs for these offenders. These provisions affect BPH, the new parole reform board, the Corrections Standards Authority, a newly created CDCR research division, and the Office of the Inspector General. Also, the measure would commission research by a public university on parole policies and practices that would be paid for out of the CDCR budget.

Credits for Performance in Rehabilitation Programs

Background

State law currently provides credits to certain prison inmates for performance in work, training, or education programs that can reduce the time they must serve on their sentences. (Credits can be taken away if an inmate commits disciplinary offenses while in prison.) Some offenders who were 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 certain inmates who were sentenced to prison for drug-related or property crimes to earn more credits to reduce their prison terms than are permitted under current state law. This measure permits the parole reform board established in this measure to authorize the award of additional credits based upon such factors as showing progress and completing rehabilitation programs. The measure does not limit the amount of such additional credits that could be awarded, but prohibits 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). 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 and funds.

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. Repeat juvenile offenders would continue to face up to a $250 fine, but now would also be required to complete a drug education program. Also, under this measure, the fines collected from adults 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:

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 below.

Increase in State Costs for Expansion of Drug Treatment and Rehabilitation

      This measure could eventually result in an increase in state costs exceeding $1 billion annually mainly for program and administration of an expansion of drug treatment and other services provided for eligible offenders.

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 replace for Proposition 36 treatment and drug courts. In subsequent fiscal years, the appropriations for the new programs would be automatically adjusted 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 money in the SATTF could be used for various program and administrative costs to implement the new three-track drug treatment diversion system. It is likely that at least some program and administrative costs related to the expansion of drug treatment diversion would be borne by the state General Fund rather than being paid for out of SATTF. This would result in additional state appropriations for these purposes.

 Expenditures for Inmate and Parole Programs. This measure could 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 and would not be paid for through the SATTF.

Other State Fiscal Impacts. A number of specific provisions in this measure could result in additional state program and administrative costs, potentially collectively amounting to tens of millions of dollars annually. These costs are not eligible for funding from the SATTF. Among the provisions that could increase state General Fund costs are:

In addition, the provisions in this measure changing the penalties for marijuana use could significantly reduce state revenues from criminal penalties.

 Level of Additional Costs Uncertain. The exact 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 interpreted and 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 space 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.

Decrease in State Operating Costs for Prison and Parole Systems

This measure could result in a reduction in state operating costs that could eventually exceed $1 billion annually due mainly to reductions in prison and parole supervision caseloads, as discussed below.

Impacts From Drug Treatment Diversion Program. The three-track drug treatment diversion system created in this measure would significantly reduce the size of the prison population. This is because the measure (1) diverts specified additional nonviolent offenders to drug treatment programs instead of incarceration and (2) allows offenders who have violated diversion program rules or drug laws during their participation in drug treatment diversion programs to remain in treatment instead of being removed from those programs and incarcerated in state prison.

The proposed increase in the level of funding available for drug treatment diversion programs could also result in savings on prison operating costs. It could do so by
(1) expanding the overall capacity in drug treatment diversion programs, thus providing additional opportunities for offenders to be diverted from prison and (2) making it possible for more offenders to receive the specific type of drug treatment (such as care in a residential facility) that would be most effective in addressing their drug problems, thus making them less likely to be involved in criminal activity in the future.

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

Parole Savings in the Longer Term. In the short term, this measure could increase parole caseloads by preventing 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 reduction in the number of offenders in prison 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 nonviolent offenders are placed on parole would also reduce parole caseloads.

Exact Savings for Prison and Parole Somewhat Uncertain. The exact level of net savings to state prison and parole costs 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 interpreted and implemented. For example, the expansion of credits to inmates in rehabilitation programs is permitted, but not required, by the new state parole reform board created in this measure. 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, and 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 could eventually result in one-time net state savings on capital outlay costs for new prison facilities that 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 with less than 90 days until their release is partly met by reducing program participation by inmates with more than 90 days to serve.

Unknown Net Fiscal Impact on County Operations

This measure provides more than $300 million in additional funding annually by 2009-10 for drug treatment diversion programs and juvenile 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 allocations that they would receive from the SATTF.

In addition, the measure could result in other increases and reductions in county operating costs and revenues. For example, a provision allowing the state to impose a requirement for matching funds in order for counties to receive SATTF funds could increase county costs, as could the provisions requiring use of Proposition 63 funds for mentally ill offenders placed in drug treatment diversion programs. The expansion of drug treatment diversion programs in this measure could reduce the population of offenders held in jails for drug-related crimes, and thus reduce county costs. The provisions affecting marijuana fines could reduce some county revenues, but redirect the revenues that are collected to county-operated programs for juveniles. Counties could also collect additional fees paid by drug offenders placed in treatment programs. The net fiscal impact of all of these factors on counties is unknown.

Unknown Net Fiscal Effect on County Capital Outlay Costs

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 costs could be offset by the diversion of drug offenders from jails to treatment in the community. The net effect on county capital outlay costs is unknown and would probably vary significantly from one jurisdiction to another, depending upon how this measure is implemented.

Other Fiscal Impacts on State and Local Governments

This measure could result in other state and local government costs. This would occur to the extent that additional offenders diverted from prison or jail, or released earlier from prison, under its provisions 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 offsetting state and local government revenue to the extent that offenders remaining in the community because of this measure become taxpaying citizens. The magnitude of these impacts is unknown.

Summary of Fiscal Effects

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