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