Sunday Commentary II: Prop. 47 Opens a Door For Restorative Programs If We’re Willing to Change

Mass Incarceration

Interesting piece in the Woodland Daily Democrat talking about the impact of Prop. 47 – which was passed last month and reduces drug and petty theft charges to misdemeanors. The paper interviewed Judge David Rosenberg.

He noted, “Prop. 47 has affected probably half the cases that I’ve seen in one way or another. It has had a major impact on the criminal justice system.” We have certainly seen that in our courtroom visits in the last six weeks or so.

The most interesting point is that the “unintended consequences of the measure is a reduction in the number of people in court-ordered drug treatment programs.” This was an issue raised during the campaign.

Judge Rosenberg told the paper, “We are going to have people not doing drug treatment any more and that’s not a good thing. The problem these people face is an addiction, there is a small sliver of people that can beat that all by themselves. Most people need help.”

The Woodland paper notes that now with drug crimes charged as misdemeanors, “offenders can choose to take the misdemeanor sentence, serving time without treatment. Yolo County’s Felony Probation Drug Court has been an option for such offenders, and has been since 1999. The program offers individuals facing criminal charges for non-violent crimes an opportunity to enter a substance abuse recovery program in lieu of state prison.”

However, even with drug courts, the system ended up filled with large numbers of non-violent drug offenders, many of whom end up with felonies and were therefore unable to get gainful employment, among other problems.

The paper cites Doug Marlowe of the National Association of Drug Court Professionals. The paper writes, “Studies have found that participants do better if the court has power over them and that California drug court participants didn’t reoffend as much those in non-drug court mandated treatment.”

Mr. Marlowe told the paper, “It’s unrealistic to get addicts to volunteer for the program without a felony hanging over their head.” He said, “Without some substantial stick and carrot, the outcomes are quite poor.”

But as we talked about in our series last month on Prop. 47, it opens the door to restorative justice approaches. The Vanguard spoke in November with Lisa Rea, a Davis resident, who heads up Restorative Justice International, and she told the Vanguard that she believes that the passage of Prop. 47 will pave the way for an expansion of restorative justice programs, not only locally but across the state.

“So many of these non-violent offenders that now are going to be diverted away from prison, there’s a way to hold them accountable,” she said. “That’s what restorative justice is all about.”

“Clearly what the state of California has shown through the passage of Prop. 47 is the public wants to see change and they don’t want to spend $55,000 a year or higher on each offender going to state prison,” she said, noting that there are people in prison who most Californians do not believe should be there. “We get that message, so now what? That’s why restorative justice is so important because it’s a paradigm shift and it’s really something that’s caught on across the country.”

But there are risks and that requires the system to change the fundamental way it does business.

In November, the Vanguard highlighted a program in Milwaukee that was published in the Stanford Law and Policy Review by Michael O’Hear out of the Marquette University Law School.

Professor O’Hear writes that specialized drug treatment courts have grown in popularity, “in large part from the unpopularity of what is generally seen as the principal policy alternative, that is, a continued reliance on the traditional criminal justice responses to drug offenses — or, more colloquially, on the ‘war on drugs.’”

Professor O’Hear notes, “Public support for the war flagged as it became clear that many drug offenders were unresponsive to threats of harsh sentences, (and) prison populations (and hence prison budgets) were escalating wildly…”

The professor proposed an alternative model for drugs courts, built around principles of restorative justice. He notes that, despite the rapid growth of such programs, drug cases “have generally been omitted from their coverage.”

He cites a program from Milwaukee, The Milwaukee Community Conferencing Program, or CCP, which “takes cases of nonviolent crime referred by line prosecutors prior to sentencing, and often prior to charging.”

He writes, “At the conference, CCP participants discuss the offense and its impact on the victim and the community more generally. They next try to reach an agreement as to what the offender will do to repair the harm. Agreements are embodied in writing, and include specific conditions for the offender that must be satisfied by a particular date. ‘Conditions often include some form of reflection (an essay, painting, or poem), letters of apology to the victim, specific community service, restitution in specific increments, tasks related to job/school, sharing experiences with youth, or [drug or alcohol] counseling/ treatment.’ Successful compliance with the conditions will result in some benefit from the prosecutor: charge dismissal, charge reduction, or recommendation to the judge for a reduced sentence.”

He notes that, while there is no distinct “victim” involved, “the basic processes for drug cases are the same as for other cases.” The agreements that emerge are typically “community service and a reflection paper.” He adds, “The agreements also usually require the offender to undergo drug treatment, although sometimes it is recognized that the offender (despite dealing drugs) is not a user.”

He continues, “If the offender fails to comply with treatment, then another conference is called to determine what to do, with second chances usually afforded. Successive failures in treatment may result in termination and conventional felony prosecution. When the agreement is satisfied, the prosecutor will typically reduce the felony charge to a ticket or a misdemeanor.”

He writes that it is not clear why there are so few Restorative Justice programs that have followed the CCP’s lead in taking on drug cases, but now with California’s law reducing possession to a misdemeanor, it may make sense for Yolo County and other counties to examine successful model programs like CCP to see if they are a good fit.

Judge Rosenberg warned, “Normally, there is a large prison sentencing hanging over them if they fail… In many ways addiction is a disease and folks need help to fight that disease… If they reject the program they still have the disease, increasing the likelihood that they will reoffend. But if they reoffend it will be a misdemeanor, starting the cycle all over again.”

So let us change the way we do business. We may not be able to hang a felony over their head, but you can set up a restorative justice process and hang a six-month jail sentence on them if they fail.

The old ways of thinking frankly were not working. It is time to try something different.

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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  1. SODA

    Food for thought and interesting ‘unntended consequences’. Given that prop 47 passed, can Yolo or other counties require drug treatment &/or restorative justice? What would it take to make that happen in our county?

  2. zaqzaq

    In the CCP program you cite the felony drug charge is reduced to a misdemeanor after they successfully complete the treatment program in their agreement.  The negative consequences of the felony drug charge, to include incarceration, remains as incentive for participation.  Please have Lisa Rea get out of the clouds and provide the model for a RJ program where the alternative is a misdemeanor conviction and a few days in jail.  How does she propose getting the addicts motivated to change.  Many of us saw this coming when looking at Prop 47 and voted against it.  It is now much easier do your time and continue using drugs than invest the time and energy in treatment.

    1. Antoinnette

      I agree ZaqZaq and I will elaborate as to my opinion.

      In the last six weeks I have watched several defendants literally laugh at both judges and the deputy district attorneys for getting off with misdemeanors. They mock the court, lawyers and our entire judicial system.

      It is a disgrace. I also know that several defendants who were released  six weeks ago, are back in custody.

      Just a guess, but I am pretty sure these people are NOT ready for any kind of rehabilitation, especially if they get a slap on the wrist. Either way, the state pays out thousands to let them go or keep them locked up because programs cost money, right? If we have them?

      They also need to eat, live and have time to look for work. It could put them back in temptations way, if an addict, thus they may end up using or selling, committing crimes, to survive. It is all a risk.

      The reality is, no one is going to change until they are ready to do so. No costly rehab, prison sentence or Any type of restorative anything will help until they want it to…

      As for Restorative Justice, if I am not mistaken, a defendant probably has every right to apologize to  victim during sentencing and must pay restitution to their victim. It would certainly be up to the victim to allow more involvement after prison and/or jail.

      What more does Ms. Rea’s program offer than that?

      I agree with Rosenberg in regards to addicts, however, disagree that abuse is a disease. God has nothing to do with the evil works of abuse or our choice to do so.  Disease is something we have no control over like Cancer. I have yet to see someone get forced to drink or smoke dope….etc.

      In all honesty, we will have to wait and see how many people actually turn their lives around with the passing of this proposition.

      As for the other end of the proposition, petty theft, etc,  I have already seen argument over some of the specifics in the proposition making it tough for a judge and/or lawyer to decipher.

      I do agree Tia, we need a balance but no one has the ability to know when a person is ready to be rehabilitated, it is up to the individual. Yes, it is destructive to face felony incarceration but an addict usually isn’t thinking of the consequences when they are high or breaking the law, right? Or they wouldn’t do it…

      I hate to say it but we may be working towards allowing people to escape personal accountability…to some degree. No crime is a victimless crime….

      Just my opinion.

  3. Tia Will

    There clearly needs to be some kind of balance and incentive here. I favored Prop 47 and agreed that there were likely to be unintended consequences. I would prefer to not add to the potential destruction of a life through drug usage, the certain destruction of a life through felony incarceration with no ability to clear one’s record if and when one does successfully beat the addiction.

    1. zaqzaq

      Under the existing pre prop 47 law a defendant had four shots at drug treatment before having the felony conviction and the consequences of that conviction.   Now there is not incentive to take PC 1000 diversion or the prop 36 drug program.

      1. David Greenwald

        Under the current law, at some point they’ll be doing the max time in county jail for a year. So I don’t really see the crisis here if we put the programs in place that can actually help people.

  4. Miwok

    “Restorative”? Lets the perp off the hook at every level.

    As a victim of these drug criminals, only more drugs is their goal. They make no restitution to the victims of their thievery and betrayal. Unless the component of this is the chance to get back what was lost, I think it is stupid to try. If they can get the addicts and criminals to stop stealing and buying drugs, I would not only like it, I would be impressed.

    There are people living in fear of these addicts, and because they let them back out, they will just come back to the ole hometown.

    1. Antoinnette

      @Miwok…and now you see more defendants who have been charged with drug sales claiming to be, “addicts,” just to get off….sad to see for those who legitimately struggle and earnestly try to change.

      I have never known an addict to take the time to weigh out each portion they are going to use on a daily/ hourly  basis, or carry a digital scale, payo sheets, baggies,  have loads of cash, loaded weapons and a safe?

      Quite ridiculous to believe this fits an addict.

      I am grateful for our drug enforcement team who work diligently to take them off our streets…money well spent.

      1. David Greenwald

        “@Miwok…and now you see more defendants who have been charged with drug sales claiming to be, “addicts,” just to get off”

        doesn’t matter if they’re addicts, if they have possession for sale, they’re getting charged with a felony, especially in this county.

        1. Antoinnette

          Yes, understand that, David. But again…what more is done with the RJ program? and my point is no matter what we do, it is still going to cost money. Where is that money going to come from?

          Taxpayers, right? sorry, even if the system didn’t work before and needed reform, it is simply way too early to tell if this new prop will work.

          But again, I have already seen how it is failing…just saying.

          Come to court more

    2. David Greenwald

      I disagree. First of all, if they commit more serious crimes than simple possession, they still face felonies. Second, restorative justice does not let people off the hook – if anything it holds them far more accountable than simple incarceration.

      1. zaqzaq

        Describe how RJ holds the drug addict for possession more accountable than the traditional prosecution and incarceration?    The existing diversion and prop 36 programs offer the defendant four failures at treatment before they can be sentenced to a jail term.

  5. Davis Progressive

    a misdemeanor drug possession charge can net a maximum of one year in jail.  a felony is about twice that.  nevertheless, i fail to see why the threat of a year in jail is insufficient to get people to do treatment.  people are acting as though the current system was working and we are changing a system that worked.  it didn’t.  create the programs in this county and the state to deal with the issues – incarceration and putting felony status on people wasn’t working and in most cases is counter-productive.

  6. Don Shor

    Judge Rosenberg told the paper, “We are going to have people not doing drug treatment any more and that’s not a good thing. The problem these people face is an addiction, there is a small sliver of people that can beat that all by themselves. Most people need help.”

    Judge Rosenberg is wrong.

    Stanton Peele has been beating this drum for decades.
    “More people quit addictions than maintain them, and they do so on their own. That’s not to say it happens overnight. People succeed when they recognize that the addiction interferes with something they value—and when they develop the confidence that they can change.”

    Until we change the prevailing dogma about substance abuse, we won’t change the outcomes. Substance abuse is behavior, and there is a strong element of choice involved. It’s actually a “small sliver of people” who can’t control it. And people generally won’t change their behavior without some incentive.

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