HomeMy WebLinkAboutMINUTES - 09192000 - C16-C17 TO: Board of Supervisors
Contra
FROM: Supervisor John Gioia, District 1 Caste
County
DATE: September 19, 2000
SUBJECT: CALIFORNIA STATE PROPOSITION 36
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECOMMENDATIONS
ADOPT a position in OPPOSITION to Proposition 36 (the Substance Abuse and
Crime Prevention Act of 2000) on the November 2000 ballot, which mandates drug
treatment in lieu of incarceration for non-violent drug possession offenders.
BACKGROUND
Proposition 36 (SACPA) creates a new sentencing scheme, mandating drug
treatment in lieu of incarceration for non-violent drug possession offenders.
However, Proposition 36 is misleading since it effectively decriminalizes heroin,
crack cocaine, PGP and many other illegal substances. The Board of Directors of
the California Association of Drug Court Professionals has voted to oppose
Proposition 36 since they believe that Prop 36 hurts legitimate drug treatment
programs that work, including California's successful drug courts. The California
Narcotic Officers Association and the California District Attorney's Association have
concluded that Prop 36: "has the potential to dramatically increase the number of
cases that go to trial, place an extremely heavy burden on district attorneys and the
judiciary, and significantly undermine the efficacy of drug treatment as a viable
strategy for helping addicts." Attached are two analyses of Prop 36 -- one prepared
by the California Narcotic Officers Association and California DA's Association and
one by Judge Harlan Grossman (one of our own drug court judges).
CONTINUED ON ATTACHMENT: —YES SIGNATU
ACTION OF BOARD ON September 19, 2000 APPROVED AS RECOMMENDED OTHER
On this date,the Board considered the above consent item.The matter was held for Short Discussion and the following
people offered comments:
John Wolfe,Executive Vice-President,Contra Costa Taxpayer's Assoc., 820 Main Street,Martinez;and Judge Harlan
Grossman, 100 37 h Street,Dept.26,Richmond,offered comments.Those desiring to speak having been heard,the Board discussed
the issues and took the following action:
CONTINUED the item to the October 3,2000,Board of Supervisor's meeting.
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE AND
!tUNANIMOUS {ABSENT #3 CORRECT COPY OF AN ACTION TAKEN AND
AYES: NOES: ENTERED ON THE MINUTES OF THE BOARD OF
ABSENT:-ABSTAIN: SUPERVISORS ON THE DATE SHOWN.
Contact: Supervisor Gioia (510/374-3231) ATTESTED___ September 19, 2000
cc: Supervisor Gioia PHIL BATCHELOR, CLERK OF THE
BOARD OF SUPERVISORS AND
COUNTY#DMINISTRATOR
BY , DEPUTY
Harlan 0. GrossZoan
Superior Court Juldw
Contra costa county
RiabnorA Califtnia
May 18,2000
Re: Substimoe Abuse and Crime Pmvrecut on Act(SACPA)of 2000 hudatme
Door Colleagues in Criminal Justice and.Substimm Abuse'I`rrdat>nnve
14m writing a personal analysis of SACPA. SACPA will be on the Navember,2000
Bellrot. If enacted,SACPA,.win taloa dffict July 1.2001.
I am writing as someone who lues boon coommed about suinftwe abuse ami treaunent
issues in the critriinal justice field for many,many yew. I arm also writing as a drug court judge.
Pr+teModua y Mens:
SACPA aresto a new ming scham mandating drug treatment in lieu of
int;irc+esaiion for non-violent dreg possession offenders. SACPA operatesit % try of all
Dcfimrcd Entry of JudOment MM I'ii C (PC) 1 ; I e, non,41rog comm IEt PC
1000 g rs;DRY PC 1000 drug court Imo Pn�-guft Plea drug cwt progmms operated
punmumt to PC 1000.5. Wele SACPA sligiWe M&M we alnwe idea 4d to PC: l v00
offaim.SACPA dWde d"may have significant a rlminsl . This,SACPA is
not 1inutod to the same strict statutorily efigible poput a wn as PC 1000. SAC pA's cog
Ofthumit i4 limited to 12 monft with the possibility of an additional d montbs of
eserr+ices. This is subsuintially hags that the mininnun of 18 montlut 1*a rnwdmum of yeas of
PVW supervision reWred by PC 1400. If SACPA is emoted,in most canes.PC 1000
aligs'ble defendants,bwbding DB.J PC 2048 drag wart paxrdeipants and P'C 140d.'S pro.
SeAlty plea drag owrt program ts,will opt fbr SACPA n#her than PC 1000.
SACPA crmdas a cumbersom nVOU of W*a#ion violatiouhmmmdon Wwinp. SACPA
08MMshm a 01idM=sentence of 30 days+caunty1afl for Wises SA.CPPA.eligt`ble t3efbtWAnft
who have pertwipated,#in 2 separate coin of SACPA circ Uftbmwt
�#1e Clbeerve�laee}s:
PC 1210(a)dssfindts SACPA elipN a-non-violent drug possenjoeo SAtpA tea not
include 11364 Muft dt Safety(I S)Code;possenion of Drug Parsp slia.. SACPA
9MMUSAY includes 113'70.113 ,Possessim of Ccnttralled Sum Whips Arased With
SACPA.sm4*s-paw d
the basis ofdw probatign rervocam proceedwS is a►"dirty"urine test a drug Cos rt programs
=jot bet re+Wra d fpUMa=m a Usting preCO&M&SMCM tlmn ita normal pcnurrerhiare- LF-,a
&Ug cyst p W%m jngy matey use a JAM&resdL ted W prmnuptive auft device to
urine test defendants. :Would the program bows to obtain a caetfirivWxy drug testing
lWxmory sualyis in order to present evidence-ofthe evidence-oftdirty urinc test at a ptobation revocs6on
hasn tg7 It is also noted that the SAC:PA font uag vVessly educe f mdWS of-dttug ftKing
services of'say lcinC. (Sime SA+CPA,Section 7,H&S 11999.6.) Additional costs of"coutt
aftissible evid==of drug tum,tltouo udWed&t*Umfigg savio s could rteptivedy
ism"e t&K curt prcs,raIft
Section ti:''Phis section of SAC PA addresses pa ro►lm w d for tho most part minwx the
provisions of Section 5.
Cotsttttaetatt As pK*Ie ,s+der net cam balbre the curt on cotuiuct samiattag to pat+ole
violations g&M new charges arc tiled as a result ofsuch conduct,it is unknown,bow this
Section.may impact the nor. As Seamon d does not pmlu'bh the filing of now c2uuV=agsHust
it pualm it is possible that a dufmx t uki&U her simtYltttn*Wy SuWed IA WOViSION of
mon 3 mW mon 6. lbs would also be bw for deftdants On CONWAU#V*M Of
prof,id ►n and,parole an July 1.2001,win £PA►would tate of act. It is rr mle w how ft
courts and the Parole Authority would intxrraw under this sit sum.
Soodon 7: This section of SACPA creates Substaw Abuse Treatment Fu
COWMggU If a uwt K SACPA will appn* $60M fian the t"enwal Fund for fleet year
2OD0-2C l. This$60Mwill appawreudy be Mable Aw distribution to 00MOM via the
Deparman of Alcohol and Drug Ptowsmts.pimsumt to a"fair and expaublo distn`bwon
f 6r m lsr, to permit drug treatment propmns to be in plaw for July 1.2001. Tb crmftcr.fbr
each of 5 axaccutive,fiscal errs,S120would be so sMapdated and distributed. Mardes
distributed to the counties vwy be used to VwWft probation departmettt sen4ces,court
monitoring vosts.and miscellaneous coxts.=MbNbg drug testing services of any laud. h is not
clear why drug Unting seuvioes have tater a xclu de d. As drug toasting is required by Drug
aCerurW 1*y Compeacat#0,and as sucla testing is txA funded by SACPA,the owlusion of
fu ndiug fear drutg teaft tt+oMCU tttIV*i mpeo t drug Own PrGgars%%&
Notes Then does not appear to be agreydwg in SACJPA 'haa"atung et drag court pro m:
f vM receiving SACf'A fwdivg.. .Furthwn .it would app that date is nodsing in SAC.PA
that veld prervemt a drug count program beteg"c ertiflar as a"drug n=Mma pro math"or
as"drug tr abuc mir far SACPA purposes. In addition.SAC PA funds can be used for prabatio n
P11 11,services and aaettt Monitt`t wog casts. The disbcucsecnettxt of SAC PA fitttds for such
purposes would appear to be at the discretion of the c ou Ws Akohol and Drut Ptogram
cdninishaftr.
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SACPA analysis-petgre S
DFI FC 1000,including DEI PC 1000 drug court programs, Why would a SACPA adigiible
derr dwa deg DFJ PC 1000 and sub*4 hito a mittitnum of 1g Months to a
tttaxi�raucn of 3 years of probstion supervision when,by doing so,he/she does not can it SACPA
�puwjk rw)"nay qualify hinAe r for a mwximum 30 day mmryjWl sentmtae in the
future? 1t would probably be ineffective saaenowe or amumt.owept in cam involving
irxtmuigraaxian uncles and a pro-guilty plea PC 1000.5 court pmp=option,to lave it
do wA&M participeft in DW PC 1000.
PC 1210.1(c)(3).This stAnwtion limits SACPA drug tresttuent to 12 months with the a Don.of
b additional res of of bercam Ntrvictm
Cemsamb While most substanue abuse u"ammz providatrs woWd aha 12 moo is of
tr�trt sltoud hes a tti�I � 9At 'A>urtpaaaar a 12 month
reaeletirearatent.
in addition,esrpwially with a csrixatind Justice pops Utiom,it often takins n m than
12 months to soocessflxtiy compleft a p *mm. This is especially them when awoessfAll
completion,of the Moment program requires a mininimn of 120 to 180 days►of clean drug-
testing results at the tins of cxtmplCtIMM
PC 1210.1(0,This subsection desaeribes the violationhvvocation of probation procedures for
SACPA probation.
PC 1210.1(a)(1).This sulosadon purovida dw if a defba dent ins on X14 probst ion and
man is rimed the defeadnat nary thweafter be sentenced with TVQWd to the SACPA
""no ilr�uraa'w IOAMM"provision. Thus,a"strf itrs"defendant UM is ters»�t ur`+r�ds lly t
SACPA drug treatment,may be sen uxioc d to state prison soc oa+ding to"Strike'sentencing
re quiresrs ems.
PC 1201.1(eX3Y:This subsection sats ft*the pabation vioiatisrrdrV40Oation Procedure for
dexfendsnts on SACPA probation that viiolm probation dune to dreg related' (Sae aW
SACPA,,,Section S.PC 1210.l(c)(21) Under PC 1210.1(e)(3).a ded`.eadent may be entitled to 3
full,cow ptabstion revoca fkm leanings before being terminated firaam went and
MAho"oed.
Crrmm esib A statutory right to 3 iltll,contested Xvbstion re tion 1emt*p could ovate an
undue burden on the extbrea judiciatl system.to i odude:the oou ts;the prrgmmwwors;the detfnse
atux-Sopy-s;*e probation department. Wbilae it may be possible to have a defendant admit a
violation of Form widwa t conducting a probetion ra voca don hearing",the lattgeaage of ttte
statWte is*the+spurt ftU conduct a ha u u*'*(emp ,ta addad)_ Also,if the court aampets an
admission of violation without a hearing,it is unknown ifthe defendant would than still be
entitled to 3 Pwbatiem revocation hearings. 'LU adyKu&W nature of tyre conumed Probation
revocation proceedings would be contrary to Dreg Caaurte Key Comps osat#2. in addition,if
SACPA analysis-page 4
PC 1210.1(bX4):This ioa ezchhdes deftndenu who MfiM drug trreatshhrhht as a clition
of mon.
C+omatma t#. It is vespwftly suggested that m defendant will rdaw drug went ter
SACPA bion.mWm the defendant a of+ mle d an=dopmtion that is viemNed by ft
defendant(or the defendants attorney)as being MM ftvmlsla than SACPA probation;i.e.,
vety Innithad jail time with very limited probation. This xWps6on is based on 3AiCPA's
sem achethe for dewff mdants that have 1tattici1eted m tm separate couches of&%
tmrettro ant I 1nant to SACPA(ma umhmh 30 dory*ty j8l oe). (&o SACPA,Swoon 5.
P'C 1210.1ft5).discussed belvw,) .
PC 1210.1(b)(5):This vubsec'tion atcludes defindsnft that have puticipated in two separaft
comma of d g tresanat pww apt to SACPA and have haw fimnd untmenable to-any and All
fcanrms of wA&able drug treatment". Such deximduhts an,in M opinion,MgAW by being
subjected to a maucimum►sentance of 30 days in jail.
comment 1 lac#sat this is the M=uoubling aspm of SACPA. i sup f os+e the drafters of
SACPA included this 30 day Huhn sehhthhw an the tbhemxy that non-violent drug possession
ot%erhdeh1 that are uawnenble:to tretdrhhent should theht be subjected to pu nisht mt. I can
cataildy cnvmt mr wanance where dufamdants are not adverse to getting their SACPA"t tar
punched 2 times,in mer to quality fbr(lax **W time is a chwmP sentence of 30 dwffi copy
jail. I on also of aw opinion tient SACPA dd mdsnts.who have;fgflid their 2 Viorr sepeahete
course:3 of emmext pursuant to SACPA.will have an gV&time of bt f wW unememble to
tre n ht,and thereftre being subjected to a nuaximvm senuxwe of 30 days mudy*1.
' 'his sub wdon is most subject to abs whem ft defendant's burr course ofttvabMut
was for a n"i especially H" 11550('fig Under the bdIn c of a
Contrulle d Substance). Under current law.H&S 11550 carries a 90 day miz imum county jail
serhbath+, for the first offense and imposes a 11D day minimum county jas l sentenm for et&W
corMotion within 7 yr s. (See H&S 11550(b).) However,if the H&S 11530 defeandent has
pah'ticip cl in 2 pci oar scparoft cmrm of Uodmart Purvvent to SACPA,the defendant is
sentenood to PC 1210.1(b)(5),=H&S 11550(b).
Of course a SACPA eligible-soike'"defamla ht who SM hiabex SACPA'licker"
punched fir 3 separMaH&S 11550 covwictIwaMwMM&30 day maximum ocurity jail
fes'�fb#xrcevnio�tt drug �o
To be fair.PC 1210.1(b)(5)does atht&My to defira tants who haw the mido twhe of
beim s*esc ted to p wacutioa for -dnig ralate+d not4 , tDrdw with thein
violet drug possession oi'femse. (fie PC 1210.1('b)(2),sagoara.) Thus,althooglh their SACPA
"ticic+et"'has 21xior puwfts.it will not gest them to the 30(lay county jail sententm
News It is die to the provisioner of PC 1210.l(bXS)tient I believe DEJ PC 1000 eligible
b
who am charged with SACPA eligible gftm will opt Aw SACPA pmbsfion over
SACPA ands-pergre 3
Ne tes `'`Strike"d efcnc mmu w�m="stribe"conviction a more than 5 yews old.but have s not
mmplefcd the 5 yea-wasbote(due to not hewing been,free of prima ctuttedy for 5 ),May
be eligi'krle for DW PC 1000,inchxHug Mj PC 1000 drug oeotut programs,under the autbority of
P>e e v Davis(2000)99 Cal.App.4tb 251,wbich held dlrat a plea to an oflense under DEJ PC
1000 is M a conviefion Ibr purimm of"Strt"ltae"WWWACing guidelines.
PC 1210.l(b)(2):This subsection chitin provides that a dahndwA that has been corrt+ricfad of anyr
mudertegnor not related to the an of chugs"or any ficlony r dum a nonMokmt drug
peon offiasr,in the am ceding is" ' for SACPA pwbam
Coetaea#z This enlusion MUM lead to the practice,of charging all avails non-drug
related misdcrutrrsrarrcmt in a U nom-violet c p ssi'im pn s--e- as,is an ewpt to make a
desfetadrt t jagUgft for SACPA probation. If such mi iemean+urs am cs wjpd,to make a
ddbodatrt SACPA indigW 1ho mom deftedants jwgW proceed to furry trW fear the MMrM
Fuatpow of avouft conviction n for than non-dntg - . "phis sibu on
wMW=XdVft impad the cart& ofcowve,if"jwyoshodarbacomesJummad with
odcftxI j-----proceeding to trial to avtrid a conviction art a non-drag misdemeanor no zr
e. Vehicle Coale 14601 (Driving on a Sus )offenses,tM prosecutors might t
dmw h offlowes,#g mright dismiss such offenses,on ft ew oftrial.
Neim As charging di an is the prY Mnoe of each couroy s District Attorney.one
would expect d wets applicebm of the qty to pr+o se cuts wm-d r%t rrrierclrrasno'low
oxftreMatp,weary sitrtilW to#her diepa*0 appiicatift or$*suthm*to e: "s~priors in all
fealM plosecutiomatt.
Fur&w-. No**n rrehftd misdernoaerurrs could also be charged as a bargaining ohip and
an"end around"other SACPA provisions. For eao,under SACFA,"drug Ireat hent
3aa�"d ine�lt iir- tsto�dy tsea prra�. (Sea SA PA,$x*iw 4,1C
1210ft) Thus„a non-drag related mi eaocsrofftwe cot"be charged and a defendant
could fres told than the miaelerne�wwjW be disnitiw"Lf the defendant oompleft an in-custody
tareatdanetet progtom Vj&to being convicted of the non-violent drug posse offitsm. Ano6ar
'o vxxdd be to awe to dismiss the if*t def ndant completes a lmg&y
deantiuel treatment program NEW[to being convicted ed of the nonAdolent drug pr�eetsion
offense,as SACPA"&W vwuna '"only includes`IMUW residential dn*treatmesant (See
SACPA,Section,4,PC 1210(b).)
PC 1210.1(b)(3y This subsection otsx3hmkx dvfendar4e,who=a firearm while committing airy
Odwr wise rxmwio l mt dtug Possession off.
Coattmesit As all cooduct involving the M of a firearm,would probably result in the
of offeaues mall tlm deientdo iraeh$Ue fbr SACP'A atm punsu mu iron PC
1216'1(b)(2).stpv.this n6actiou will seldom be an isttw
IAaded FvftM2,whom the PUMOSIM Of tbO BMW=Is rocn OtbOM"illePil.
PC 1210(b)definft"drug treatment proyme "drug tm*tmerW'to mean a iS1
'AM COMM pity drug lomat program
Comment: "Lkowd an f+par certiffur as US oftirmse ddined (Cf PC 1000(+c� roquinqj
oxurtiflicatiom of IM programs by Oc county drug pmw=administralor.) Mit MUM
program roque+ are,"established. (Cf. PC 1211.establishing minimum program
tc�quI--- for M.1000 prtwuma. H;tovvever.SACPA's fia xbng rya ' distribution of
SACPA UWM=i AUKIS ftm the Stam Dcpfft€rnont Of A1001101 attd Thug Perms tao
"oou dos". (See SAC'PA,btu 7, 11999.6 HAS.) Arguably.ft cautny dne pngratn
adginn>sustor van have som oveasi#4 over the duAribution of ter mit funds and would only
distribute tum to"corti d"tread pro perms.
p'C 1210.1(a)des that all sACPA eligible deftandan s.at exchWed'by PC 1210.1(b),upon
a victi o€r, rive proba#ion. The court may=vnposs 1 as a condition of
proo'bafm.
Commenh 71w b ability to impaaa incaroarredic o as a condition ofmon&VgMJXY
Impam td,systess ofgn hurted snuetdoea eeampk7ed iaasod dxig cortrt prOPanaas. Mast
drug court Pwam i pow brWPOUKU ofily fim 1 to 14 oihys, as a
sanction ftw bilure to oaoungywith drug court pr+cogrm raqui While a 4efimdant on.
SACPA.� o ouid be ordered to pout icipete in a drag court t pt~cogram as a fi ttM of
prili"d n and could be re quuvd to submit to drug testing and soh sated aeix"WWW as prat of
a drug court propun.it is doubtful*at such a defendant could be s*eozW to a sanction of
irrea€c miom as part of the drug court p=. An option that Mj&be available to the drug
coutt judge would be to imposs a sanction.of ixre at cm.not to oweed 5 cmc.parauaat to the
oxmtesrxrpt prrweta an fath in Com orfCzvd Proceoietre(CCP) 12t9(aX6)and CCP .12.18. 1
believe that drug court judeft in fkvAly g courts s'an sucb ror iprt powars to
imperae igcarraarut u S03140oft
PC 1210.1(6)excludes oft-bain do*ndarrta.abused with SACPA,eligible fom WOMIS of
SACPA pwbefion.as follows:
PC 1210.1(bX 1).This subsection act uWly onmm a 5 your"ro►aahao a period.airy to tbta
atemdard PC 667.5(gtat Prison Prtor Bxd went}.for"fie"dsf'e davft There ,only
"S1 defeadvo dot have VMcomplated tin S year"owaahoote we fiw SACPA
probatim
Commovib Unless the" 'ke►"prior was a residential burglary,all"sft*e de dam would
be +offlMdors,I the Federal guidahnes, Ibus,alter h*wily eligible under
SACPA after tha S your"washou .moat"striire"defbrndents would ramwn hwWbk br
"-- ipaNail+oat Mt*+drag coatrt Pim rocom c Fodersl fKatdint
4
SACPA Aysia-pap S
9» By supplantag TET PC 1000.3ACPA will draw eh&le partidponts away ftam Drug
Court.Parawnhip Act(DCPA)fanded DW PC 1000 drug c+oW proms.
10. Most of vAw would be amomplished by pump of SACPA(albeit not tt proposed
fuodxug)could have bom achwead by ung DRY PC 1 WO,to a qd the digt'ble popAstion
of psrtioipxw1L Such an owAndnmt to DEJ PC IWO,expLoAV emligibility esitwia,would have;
wmided the*bjecdow twoted*bow.
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Submitted by;Marion G.Grossman
Superior Court Judge
Contra,COM county
Richmond,CA 9411
AN ANALYSIS OF THE
"SUBSTANCE ABUSE U SE A D CRIME
PREVENTION ACT OF 2000"
and 37k C'al=farnia D4 r kt.Attorn+co Associatiim
INTRODUCTION
The Califbrnia Narcotic Officers Association and the California District Attorneys
Association have analyzed the '"Substance Abuse and Crime Prevention Act of'2000*"
in order to provide some insights into its impact on public safety. For reasons we
will set forth bekM the impact on public safety will be profoundly negative. Further,
the initiative has the potential to dramatically increase the number of eases that
go to trial,place an extremely heavy burden on district attorneys and the judiciary,
and sigxtllficantly undermine the efficacy of drug treatment as a viable strategy for
helping addicts_ In addition, the initiative will impact Caliibmia cmploycrs.
Thew conclusions were reached after in exhaustive analysis of the initiative's
provisions.When we began this exercise,we were hopeful that the initiative would
serve as a vehicle for provide needed resources for treatment programs---something
we have long supported.
OVENVIEW Of THE INITUTI'WE
Sectlon d of the initiative declam that the initiative may be cited as the "Substance
Abuse and Crime Prevention Act of 2000."To the c=nit the initiative Wdresscs
crimcs involving biose that use,possess, vamqmrr or arc under the influence of
cor+ntrcallcd substances,the first part of the titin is an acccaratc descriptor of what
is to follow. However, the second portion of the title "...t`.rirrtc p'm-anon Act
of 2WO* bcaxs no connccfwn to the act" contents of the initiative and is not
an accu.ratc dcKnptwm of the inivativc's substantive provisions.
&ction 2 of the initiative contains its"findings and de+clamtions." The first of those
findings declares that "substance abuse treatment is a proven public salty and health
measure." This general statement does not define the type of trcatmcnt protocols that
constitute a "proven public safety and.health measure.''The second finding is eswndally
a restatement of the first---the promoters of the initiative alleging that "community
safety and health are promoted and taxpayer dollars are saved when nonviolent persons
r�i
Q _.. _., -. ....._.. 4151
convicted of drug possession or drug use are provided appropriiste community-based
treat instead of incarceration."As vete shall see later in our a mhrsis, the substantive
provisions of the initiative matte little,diftrentiation between "non-violent"persons
and those who arc ',violent,"nor is*=c any dfixt to set guidelines as to what
cot"druted "appropriate community-based treatment." The final finding references
the Arizona initiative passed in 1996---we arc assumeing,the promoters arc r6crrinS
to Propownon 200 passed by Arizona voters that year. The promoters seek to equate
their initiative with the Arizona initiative, In Enact there ata significant differences
between their initiative and Arizona,"s 1''roVuxuidan 200.The reader of t1m=6ndmgu Will
also now the placing of the guotatdon manes when the promoters reference the .Arizona
Supreme Court "Fxport Card" can the Arizona law The pram=s quote the"report
card"as saying the Arizona lay's impascr is -resulting in safer communMes and more
substan.+cc abusing probationers ux recovery.^ As a contrinuawn,of that sentence,
the promoters go on outside the quotation marks with the a nsubstacntiatred assertion
that the Arizona initiative "has already srmd sure mxpayers millions of dollars,and
a helping n ume Chari 75%cif proal ant participants to remain drug fiec." The reader
shoutld not corafitsc the promoters unsupported assertions with the actual comments
of the Arizona Supreme Court.
Section 3 of the initiative contains the "Purpose and Intent" clauses of the initiative.
The second stated purpose asllcgm that this initiative will "halt the wasteful expenditure
of hundreds of millions of dollars each year on the incarceration--and re-incsrcerration
—of non-violent drug users who would be better served by community-based
treat." In fact, given the provwmu of current law that provi&frac drug diveaon
of manly persons convicted of drug possession offenses, this stmwd purpose suggests
an irate nt of the promoters to go weds beyond thooc who arc convicted d of umple drag
possession.Absent from the promoters'assertion is any evidence suggpsting that
"hundreds of trillions of dollars' are spent annually to incarcerate cerate drug users.
Section 4 of the initiative is the dcfanitional section. Ibis is the fit section of the
initiative that actually purports to make subst'andw changes in the law. From this
point forward,our analysis will reference the actual proposed code sections
Xontemplated by the initiative.
Proposed Penal Code mon 1210(a) defines a "non-violent dry possession oft "
as the "unlawful possession, use,or traunsiic}rtatina for personal use of any
controlled substance identified in licaelth and Safety CA-Ydc sections 11054, 11055,
1.1056, 11067 or 11058 or the offense of being under the intlue race of a controlled
substance in violation of Health arta Sa&-ty Code section 11550."
�a
-7-4-
A
4
The massive scope of this definition is ultimately a matter of policy for vottcrs to
decide,but there are some drafting issues with this Rection that are quite serious.
The concept of"transpomdon of controlled substances" is codified in Hcalth &
Why Code sections 11352 and 11379. Neither of these sections has the concept
of transportation Our personal use."Without saying so directly,the pmmotrem have
scrvcrcly limited the trar<>vgmrt ation sections of current law. A defendant charged with
transportation of controlled substances under either of these two sections will novo
litigate the issue of whether the U=sporta►tion was "for pesaca"J use." The unintended
consequence of this section will be to Wd to the number of trials can this issue.
Proposed Penal Code section 1210(6)dafin= "drug t mmcnt program" or "drug
treatment" to mean a "licensed and,/oar certified community drug treatment program
which may include one or more of the fbilming: outpatient treatment, half-way
house treatment, narcotic replacement therapy, drug education or prevention courses
and/or or limited inpatient or residc>ntW drug treatment as needed to address special
detoxification or relapse situations of severe delaendcncc."
Tyro:questions arc raised by this definition. First, the reference "licensed and/or
certified" incites the question"by whoru?" Is the state going to Boma drug
trcarrncnr programs,or is that going to bre left to local entitieO Since the larnguap also
adds the phrase "and/or ccrr fiW does that suggest that a program might not
be licensed but might be certified? If sero by whoW Would the cation be by
a trade association of programs, or by a►governmental comity,or by both,or by either?
Will them be programs that have been denied a license (oar had a license invoked),
but ham been ccrttfied by a trade association of'some type? Who will ovenwe ficeanaing
and certification of these.programs? Smcc the initiative is sunt con all of these issues,
it is impo iniblc to gauge the level of licensing accountability,if attar, that will be
contemplated by the initiative.
Second, mussing from the definitional language is any grounding in wcataunt
program that are succrssM. Instead, the dcfinitional language is sea open-ended that
it invites all manner of programs that describe themselves as"treament programs"
to fit under this definition---including surd`s programs as phone counseling, internet
chat rooms or cassettee recordings. If the definition of what constimm a"treatment
program" is a vague one, the definition of what is not a treatment program is very
specific. The language of section 1210(b)sgccafscally excludca any drug treatment
programs orffi:md in a prison or jag fi dlity. Thus, in-custody programs designed
to assist inmates who have drug problems--and designed to decrease the chances
of their re-of anding--are excluded from the definition of treatment programs
and will be denied the funoiing contemplated by the initiative.
rw a
NopowA Penal Code section 1210(c)de8ncs the "succcssful completion:of treatment,"
The section states that it"means that a dar*ndant who has had drag treatment
imposed as a condition of probation haus completed the prescribed course of drug
treatment and, as a result,there is reasonable Muse to believe that the defendant will
not abuse controlled substances in the future."
This definition appears to exclude ti`rom sny decli+nitiem of"successful treatment" all
parole cs who arc entitled to treatment ander this initiative, T#te definition rc&n to
de*ndants who have had "drug treatment unposed as a condition of probation."
Parole ha v c conditions of patrWe,not probation. Thugs the initiative purports to act
standards for successful treatment by pare m convicud of seg-called "non-violent drug
possession"offrmses, but evidently leaves to the discretion of wed person or
persons as to whether or not a parolee has su£acuf`ully completed treatment.
I"rtposcd Penal C. )de section 1210(d)defines as "misdemean r not related to the
use of drugs." The definitional section.smatxs that this phrase means a "mis€kava nor
that dotes not involve (1) the simple possession or use of drugs or drug paraphernalia,
being present where drugs are used,or failure to register as a drug of ender or (2)
any activity similar to those lister!in(d)(1) above."
This section is not what it appears to be. Under this section, demise counsel could
argue that a defendant who stole some jeans f wn a department store,lel the police:
on a vehicle pursuit,all for the purpose of sell
defendant is still able to talk shelter under the initiative. In effect,a defendant who
had been released from prima on January 21, 1995 after serving time fest his/her
second violent felony, who subsequently was convicted of transporting crack cocaine
onto a schoolyard,would be eligible for "probation plus trcatmcne pursuant to this
initiative. This amounts to a significant weakening of C'alifnrnia's "'Three Strikes" law.
Stgbd n (bX2)purports to"dude any defendant who, "in addition to unc
or more nem-violent drug peon of roses," has been corMcted of any f+clony
or of a misdemeanor not related to the use of drugs. As the reader will recall, the
definition of what coostitutes a "misdemeanor not related to the use of drugs"
is something that is subject to even.Although poorly warded,this erection would
seem to contemplate a fact situation where the defendant was wnvicted of the other
crimes and the "non-violent drug possession offense" in the same transaction,since
ander subdivision (b)(1),dektidants whose non-violent Wony convictions or whose
life-threatening misdemeanors arc mare than f'W yews old are eligible for the
protc+ction under the initiative.
Subdivision (bX3)is among the more Musing in the entire.initiative. Subsection
(b)(3)(A) purports to cxdudc fi om the initiative anyone who "while using a firearm,
unlace possess m any amount of(1) a substance containing either cocainc base,
coca.inc,heroin,methamphcctamine,or(Z) a liquid, non-liquid,plant substance,
or hand-rolled cigar+cur, containing phencyclidine. Subsection (b)(3)(B)purports
to exclude thane who "while using a firm (arc j unlawfully under the influence
of cocaine base,cocaine,hcruin,awthamphctaminc or phencyclidine." Again, this
"exclusion"is not as all encompassing as would first appear. A defendant who
is "using" a firearm while in possession or under the influence of designcr drugs
or anabolic Acroids cannot be incarcerated; instead,they may obtain the "probation
plus acatmcre contemplated by the initiative.
SubdlvU (b)(5)excludes defendants who have two convictions for non-violent
drug posecuipan off,and have participated in two separate courses of drug treatment
pursuant to subdivision (a)and arse fatrnd by the hurt by "deter and cmvinc:ing"
CvWcnorc,to be uxu►ntemble,to any and.all fortes of available drug uvatarrent."
Notwithstanding any other prov:8i m oflaw, the maximum sentence for such a dc&ndaLnt
shall be 30 days in jail. The 1ikcWx o d is that very few will be excluded under this section.
Subd1VW1M (c)of proposed Penal tie section 1210.1 proMes for the timetable
for the drug treatment programs. Within 7 days of the imposition of probation,
the probatkm department is required to notify the drug treatment provider designated
to provide the drug treatment. The treatment provic.cr then has 30 days to PrePm
a treatment plan and forward it to the probation department. The treatment provider
is Mquircd to Provide quarterly proms reports an the defendant to the probation
deparmuart It should be noted that dicee mandated deaadline&would place a considerable
burden on already overburdened probation departments. It is also noteworthy that,
use 6
violation of rules at die drug treatment program, "repeatedly" violated program rules
so as to "`Inhibit" his ability to "furvction in the Program," or has "continually refused
to participate in the program."
Defendants who violate probation a third time may have their probation revoked
if the court finds that they have in fact engaged in the violative conduct.
Section d of the initiative purports to add a new section 3063.1 to the PcxW Code.
`Phis sermon provides that,subject to c:crtain enum=ated cic prions,parole may not
be suspended or revoked where a defendant ccxnmits a "non-violent drug possession
offense" or violaters airy "drug-related con&tion of parole." butead,the "PanAc
Authority"is directed to rcquirc the parolee to participate in an appropriate drug
treatment program.Vocational training,family counseling and literacy training may
also be imposed as additional parole conditions. Those parolees who can afford to
pay for their treatment "may" be required to do so.
These provisions do not apply to parolees who have been convicted of one c r more
scrious or violent Monies,any parolee who commits one or mom neon-violent drug
possession offenses and is found to have concurrently committed a misderneanor not
related to the use of drugs, or any felony, nor does it apply to any parolee who refuses
drug treatment. Given this language, one could infer that persotu who are on parole
for felonies that are outside the scope of Penal Code Section +667.3 or 1192.7 that
do not involve the "concurrent commitment" of a non-violent drug possession dense
will be able to avoid having their parole revoked. This represents a significant
ciianirsutiUn of the ability to hold paroles accormmtable.
The reader will note that a parolee who violates a "drug-related condition of parole"
must be placed in treatment,and cannot have his/heir parole revoked. Since the law
does not define "drag-related condition of parole,- this provision has the potential
to be judicially expanded in ways that am not yet calculable_
The:provisions with respect ct to these circumstances in which a parolct may have
his,/her parole violated act laid out in Penal Code Section 3063.1 (d). Parolees who
are arrested for an offense other dean a non-violent drug possession offense, or who
violate a "non-drug related condition of parole,- are subject to revocation. The issue
of what constitutes a "non-drug related condition of parole"will be the subject
of intense and spirited litigation.
Parolo:es who arc arrested for 2 non-violent drug pouession of mse, or who violate
a *drug-related condition of parole" may have their parole revoked if it is proven that
they pose a danger to the safety of others. Parolees who violate their parole a second
time either by being=Tcmzd for a non-violent drug possession ofrrnw or by violating
a drug-related condition of purple may have their parole revoked if the parole violation
is proven.
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Section 7 of the initiative adds a new Division 10.8 to the Health & Safety Code.
This new division purports to create the so-called "Substance Abuse Treatment
Trust Fund."
Proposed Health & Safety Code Section 11994.5 provides that$60,000,000 shall
be appropriated from the General Fund to the Substance Abuse Treatment Trust Fund
far the 2000-2001 Fiscal Year immcdiattiy upon passage of the initiative. Since the
Governor and the Legislature are currentfy working on the 2000-2001 Budget, and
since that budget must be adopted by July 1, 2000, dwy would be wcll served to
build in additional budget reserve of$60,000,000 for this purpose in order to avoid
having to cut other state programs duxdd this initiative pass on November 7, 2000.
This same section provides that$12.0,000,000 is to be continuously appropriated
from the General Fund for fiscal years 2001-2002 through 2006-2006 inclusive.
Section 11999.6 provides for the distribution of the monies in the Substance Abuse
Trmtmcut'Trust Fund. Under this section, the Secretary of the Healon and Wclfam
Agenty,d +cnutgh the State Department of Alcohol and Drug Progranu,is directed to
distribute funds to counties to "cover the oasts of placing personas in and providing (1)
wig treatment prograxns under this Art and (2) vocational training, family counseling
and literacy training under this Act." Thais language reveals that the ftuads in this
"Trust Fund" arc not encumbered solely for drug treatment, but instead may be
diverted to job training, f amity counseling or literacy training.
As if this erositm were not cnouSk however, this section on to say that
"additional costa Haat tray be reimbursed f o m the. Substance Abuse Treatment Trust
Fund include probs►tion department cam,court monitoring coats,and any miscellaneous
costs made necessary by the provisions inns of this Act." Since the languagc here speaks
of"reimbursement" one wonder*if counties obtain theca funds by submitting requests
for reimbursement,whereas the funds for treatment,vocational, family and literacy
counseling/training might be provk1cd to counties via a curter grant. The language,
is unclear on this paint_
Interestingly, although this section seems to contemplate a broad authority to expend
"Trust Fund" monies,it spay prohibits use of these: f coda for"drug testing
services of any]kind." This efficctively deprives any drug tmatmc nt program of the
resources necessary to monitor the compliance of tie who arc in theior program.
To the extent treatment programs ares forbidden to holed their clients accountable
for the success of their recovery, they are significantly undermined.
The distribution formula contemplated by Section 111999.6 is unclear. The Act refers
to the funds being "allocated to counties through a fair and equitable distribution
formula that includes,bust is not limited to,per capita arnst+s for controlled substance
��s
Z
possession violations and substance abuse treatment,caseload, as determined by the
department as necessary to carry out the purposes of this Act." In other words, the
ultimate manner in which these fluids are to be distributed to counties will be resolved
in some type of implementing legislation.
This section also gives authority to the State Department of Alcohol and Drug
Programs to reserve a portion of the fund to pay for direct contracts with drug treatment
service providers in counter or regions where the dcparttneta has made a detarrnination
that existing programs cannot adequately meet the demand. No entity is permitted to
supplant funds from any existing funds used for substaricc abuse treatment.
Section 11999.7 requires that community drug trcauncarit program agree: to make
their facilities subject to valid local goveru=nt zoning ordinances and devel+optnent
agreernenta. It is unclear whether or nor this wrnild permit local&%wernment to have
any control over the siting of these come unity-based programs. Under current law,
for example, local govcrnmi�nt has no control over the siting ofa residential group
home that has six or hewer live-in residents. Presumably,drug treatment programs
would be permitted to operate in single-funily residential.area under the same terms.
Section 11999.9 provides for an "annual evaluation process."The Depart hent of
.Alcohol and Drug Programa is directed to conduct in am mal study to "evaluate the
effectiveness and financial impact of the programs that are funded pursuant to the
requirements of this Act." This section directs the study to include—but not be
limited to--a study of the implementation process, review of glower incarceration
Gott:," reductions in crime, reduced prison and jail construction,reduced welfire
costs,the adequacy of funds appropriated,and any outer impacts or issues the deparmacnt
can idctatify."Missing frons these directives is any direction to revaluate the increased
burdens an the judicial system. More important, these directives dei not include any
provisions for auditing the various proms that would be using sstatat f n&to operatc.
This emission is a quite serious one.The tack of•+ eaningful auudit&—particularly
when one considers the very kxwc definition of'"treatment program"4 is a prescription
for fraudulent behavior.
Section 11999.10 creaws an "outside evaluation process." ne Deparunncnt is
authorized to set aside $600,000 annually for a '"long-term study" to be conducted by
a public university in California aimed at"evaluating the cffectiveness and financial
impact of the programs which arc funded pursuant to the requirenu=ts of the Act.-
IU reader should keep in mind Haat this is not an audit of the various program.
It appears to be duplicative of Section 11999.9s contemplated evaluations.
Sextion 11999.11 directs counties to report to the state detailing the numbers
and characteristics of client-participants served as a result of handing provided under
the initiative.Again, there arc no provisions for auditing the individual programs.
PW ra
Section 11999.12 finally references andits. It gives the department the: authority
to anmuilly audit:the cxpenditurca male by any ecsunty with f mcls provided by the
Act. There is no provision to audit the individual programs.
Section s provides that the provisions of the Act will become crcctive on July 1,
2001, unless otherwise provided within the body of the initiative.
Section 9 of the initWdvc provides that it may ca>rly be amended by a two-thirds vote
of bath houses of the Legislature. That atacudnwnts may cattily be in furthet:ance of the
Act and conxiistant with Its purpooes. ,Presumably,legislation ria scr in place an audit
proccdurc fnr the individual treatment providen would require a two-thirds vote.
It might also be argued that all legislation governing narcotic laws,pile procedures
as well as legislation purporting to define with more precision what+conatitutes a "non-
drug related offense" would all be subject to the same two-thirds vow mquimment.
Section 10 is the severability clause of the act.
I—22,MW
�Kx
0- 6
TO Board of Supervisors ` `
Contra
FROM Supervisor John Gioia, District 1 - Costa
County
DATE: September 19, 2000
SUBJECT: Measure M
SPECIFIC REQUEST(S) OR RECOMMENDATION(S) & BACKGROUND AND JUSTIFICATION
RECO,MMENDADONS
ADOPT a position in SUPPORT of Measure M on the November 2000 ballot, which
is a $150 million general obligation bond measure to repair and upgrade West
Contra Costa Unified School District elementary schools.
BACKQR UND
During a recent study, it was revealed that the West Contra Costa Unified School
District is facing over $500 million dollars in unmet facility needs. In addition, the
average age of schools is over 50 years old and the schools are severely
overcrowded. If approved, Measure M would allow the West Contra Costa Unified
School District to make some of the necessary improvements needed to continue
to operate safe and productive learning environments for our children.
-Y&
CONTINUED ON ATTACHMENT: YES SIGNA RE
ACTION OF BOARD ON 2oti0 _ _ APPROVED AS RECOMMENDED XX OTHER
VOTE OF SUPERVISORS
I HEREBY CERTIFY THAT THIS IS A TRUE AND
?LXUNANIMOUS (ABSENT #3 CORRECT COPY OF AN ACTION TAKEN AND
AYES: NOES: ENTERED ON THE MINUTES OF THE BOARD OF
ABSENT: ABSTAIN: SUPERVISORS ON THE DATE SHOWN.
Contact: Supervisor Gioia (5101374-3231) ATTESTEDSeptember 19r, 2000
cc: Supervisor Gioia PHIL BATCHELOR, CLERK OF THE
BOARD OF SUPERVISORS AND
COUNTY ADMINISTRATOR
B , DEPUTY
For the Children of
Measure M Fact
O.
of w.:.A ► yeam
Sdu. #b am*vm=Ow&d—"WAIWmt hu Lameand by 3,OW mukam
and continow t '.3*A " The clm sm vY wt=A f program •t- 3i,#,.::. • # xk the mmber of
clenroom c1 fm our youngmt h e+ Mt
l
$150 Inaliost mum, obbpdm bond mamm to np*w avid up$n&dumewouy adton6.
Gnu
sr pywntWto +1smft # i riwouldodwnnw be x.. to R rt,,w xA aA
dixx
1e1,.: Si.R'3k
win emrjr Od600ltoaomnodm mwWutm md theinmmet,
4
eft and
a RW }L' JUjm..m4 CA t.WWO
j
This is an amount that the district simply wont bo to Mise right way. But that doesn't me=flet we
can't start systematically turning our schoob wound.
Maware M.-A Focused Flan to RebaDd Wts t Coin*'#Xlernwrtary
Mw next staeep is our rebuilding effect 3a Measure M,a$150 mMoran ge netod obhtgerrtioa n bond measure to
erevitaltze our elementary schools.Measure M funds will be used to:repair and upgrade Mary schools,
build new clawroorno6 wire every school to III maIII crdatrs*DnVuws and t'ha intent.rtuovwe bathrocuns,
replace leaking rest's and ciattdated fm"Stow,acral.provides for acbmic upgrade.
Mors M gives tete district the powatial to 1cv gra new staft furn&as they becom svailab&Cltxrwnc,4
we may loser these:funds as they will s1n*y be provided to odw school dam.At an avow tax of
$22.96 per$100,000 of asacssrred value.Measum M is a moderate as t,indeed,an excellent
imvcsttrsa mt for West bcr'me +m+rs.
Ry law,the funds Swerved by Measurre M cm be used X1y for school J=povemcnM
To gine acomwtability,then Measure M ballot language provides fbr do q ge intrnest of a CitixeWs
t2reasssght Comruin".
The Mend I cited above pawed along anadmw pe wL "Bach prablm hers hkkkn In it an qpporomity so
power td dw it literally rarlly dwarta flare problem."To pores.bleasutn M now grruretar a tsva-tom vote.This is a
daunting challango but atreo an,opportuscky for our vrmmunity to rebuild our a&xca r%cranal i "if astructuxra for
tthe 21st ceritury.Rarely we we:in the ti&t place at the right alma:in history to leaves such a wonderful
*gacy to fut+r m saws6m of"dtan and youth.
CA==are ww bexgirrm ing to lam a vipxom ca>rr* urgar to pass Maaretrta<rs M.C wk out tEtd campaip
web sitars at www.childr dweast+ara mty.c=to find our how you u can,get involved,