McGeorge School of Law

Proposition 36

Proposition 36:
Drug Treatment Diversion Program
Rehabilitation or Decriminalization of Drug
Offenses in California?

By Lisa Rettig Ryan

Copyright © 2000 by University of the McGeorge School of Law

JD, McGeorge School of Law, University of the Pacific
to be conferred May 2001
B.A., International Relations, University of California at Davis, 1992

Table of Contents

I. Executive Summary
II. The Law
III. Drafting Issues
IV. Constitutional Analysis
V. Public Policy Considerations
VI. Conclusion

I. Executive Summary

States across the nation are looking at an array of sentencing alternatives to address prison population growth. Concerning non-violent drug addicts, some argue that spending state resources on incarceration is too costly and ineffective. Recognizing that the traditional approach of incarcerating nonviolent drug offenders has failed to reduce drug- related crime, many drug treatment professionals instead advocate the use of intensive, supervised rehabilitative treatment in order to break the cycle of drugs and criminality.

Californians will have the opportunity to vote on Proposition 36, titled The Substance Abuse and Crime Prevention Act (Act), in the November 2000 General Election. Proposition 36 will create a drug diversion program, which requires automatic probation and completion of an approved drug treatment program for those convicted of drug possession. Under the proposed measure, those convicted of non-violent drug possession offenses will be sent to community drug treatment centers, rather than jail or state prison. If a drug user successfully completes treatment, the court can effectively erase the offender's conviction.

Not every drug offender qualifies under the new drug diversion program. For example, offenders who refuse drug treatment or who possess a firearm while under the influence of certain drugs are not eligible to participate in the program. Moreover, offenders who enter the program and fail to successfully complete it will be sentenced to jail time. In support of the new drug diversion program, Proposition 36 provides $120 million to cover the costs of program placement, drug treatment and vocational training programs. The measure prohibits this funding from being used for drug testing purposes.

Proposition 36's $1 million signature gathering campaign was financed by billionaire George Soros and was organized by the same group that successfully campaigned for California's 1996 medical marijuana measure, Proposition 215. Not coincidentally, these are the same proponents who also backed the successful 1996 Arizona ballot measure, Proposition 200, to divert drug offenders from prison into drug treatment programs. Now, four years later, these reformists are attempting to bring drug diversion to California.

Arizona's drug diversion program provides a glimpse into some of the problems California will face by implementing Proposition 36. Like the Arizona law, Proposition 36 raises significant concerns due to the ambiguity of many of its provisions. The measure fails to answer questions regarding the oversight of drug treatment programs. It is also unclear where the necessary funding and personnel to implement the program will come from. Perhaps more importantly, Proposition 36 does not specify whether drug diversion will be available to juveniles or known drug dealers. While not posing any constitutional concerns, Proposition 36 is replete with ambiguous language and lacks substance in critical areas of implementation. If the voters approve this measure at the ballots in November, it is likely to end up in litigation, leaving the courts to interpret its meaning and applicability.

Proposition 36 has already generated a lot of attention and controversy. Its supporters argue that by attacking the core of the problem and treating the offender's addiction, criminality will be eliminated, thereby reducing crime rates. However, opponents, including many public safety groups, disagree and are concerned that crime rates will increase throughout the state. They claim that Proposition 36 does little to address how these addicts will be treated and provides no accountability to ensure that probationers are not continuing to use drugs. They fear this measure will only put more criminals back on the street. Whether or not the voters pass Proposition 36, drug rehabilitation advocates will continue to seek alternatives to incarceration for those arrested for drug offenses.

II. The Law

A. Existing Law

California state law generally makes it a crime to illegally possess, use, or be under the influence of specific drugs, including marijuana, cocaine, heroin, or methamphetamine, as well as certain medicines obtained without a physician's prescription. The law classifies some drug-related offenses as felonies and some as misdemeanors. Whether a drug-related crime is classified as a felony or misdemeanor, as well as the punishment imposed upon conviction, depends primarily upon the specific substance found to be in the offender's possession. (Cal. Health & Safety Code § 11350 [West 2000].)

California courts currently provide drug treatment as a component of sentencing in various situations. (Cal. Penal Code § 1203.096 [West 2000].) The court will recommend that the defendant participate in substance abuse counseling or an education program while imprisoned if the defendant was convicted on a drug-related offense. Furthermore, courts can require, as a condition of probation, that the defendant not use or be under the influence of any controlled substance and must submit to drug and substance abuse testing as directed by a probation officer. (Cal. Penal Code § 1203.1ab [West 2000].)

Following release from prison into the community, nearly all offenders are required to serve a parole period under the supervision of state parole agents. Offenders who have not committed violent crimes, such as those imprisoned for felony drug possession, are subject to three years of parole supervision, but can be discharged from parole after one year if no parole violations are committed. (Cal. Health & Safety Code § 11370 [West 2000].)

A parolee found to have committed a new crime while on parole, such as using or possessing an illegal drug, is subject to punishment in one of two ways. Such a parolee is either prosecuted on new criminal charges and returned to prison with a new sentence or parole is revoked and the parolee is returned to prison for up to a year by the Board of Prison Terms.

Drug Diversion Programs

Drug Diversion Programs are not a new concept. Hundreds of drug courts have arisen across the country in the last ten years. California's first drug court originated in Alameda County in 1991. As of June 1999, there were 98 recorded drug courts in California alone. (Office of National Drug Control Policy, Drug Policy Information Clearinghouse, State of California Profile of Drug Indicators, 4 [July 2000].) Drug courts, unlike prisons, provide addicts with substance abuse treatment, education, and the resources to help them return to society with the skills necessary to lead a drug-free, productive life. The drug court model usually entails the following: judicial supervision of structured community-based treatment; timely identification of defendants in need of treatment and referral to treatment immediately after arrest; regular status hearings before judicial officers to monitor treatment progress and program compliance; and increasing defendant accountability through a series of graduated sanctions and rewards.

Unlike the programs envisioned under Proposition 36, however, the drug court system places drug-using offenders in a closely supervised program where they are ordered to submit to frequent drug testing and make regular appearances before a judge.

President Bill Clinton dramatically increased federal funding for drug courts after meeting former Dade County State Attorney General Janet Reno, who helped plan the nation's first drug court. Since the program's inception in 1995, the Drug Courts Program Office in the U.S. Department of Justice has bestowed approximately 500 grants totaling more than $100 million to help jurisdictions plan, implement, enhance and evaluate the more than 350 drug courts operating in the United States. (U.S. Department of Justice, Office of Justice Programs Press Release, Attorney General Reno Announces Funds To Continue Successful Drug Court Program, [June 3, 1999].)

Part of the recent popularity of drug diversion programs is due to the apparent success in reducing recidivism. A 1998 study by the Office of Justice Programs found that drug courts cut recidivism for defendants accused of drug possession from an average of 45 percent, for those who do not go through drug court, to 4 percent for drug court graduates. (Drug Court Clearinghouse and Technical Assistance Project, U.S. Department of Justice, Looking at a Decade of Drug Courts, [June 1998].)

Under current California law, each county's drug program administrator, in consultation with the court and the county probation department, establishes minimum requirements, criteria, and fees for the successful completion of drug diversion programs. The county board of supervisors must ultimately approve these requirements. (Cal. Penal Code § 1211 [West 2000].) In order to receive funding, these local programs must satisfy the guidelines adopted by the state. (Cal. Health & Safety Code § 11999.3. [West 2000].)

Federal Sentencing Guidelines

With the advent of the Federal Sentencing Guidelines, some argue that rehabilitation plays a secondary role, as compared with such sentencing rationales as deterrence and punishment. (See Sharon M. Bunzel, The Probation Officer and the Federal Sentencing Guidelines: Strange Philosophical Bedfellows, 104 Yale L.J. 933, 951 [1995].) However, rehabilitation remains a fundamental consideration within the federal sentencing process and probation is permitted under the Guidelines. (See 18 U.S.C. §3553(a)(2)(D) ["To provide the defendant with the needed educational or vocational training ... or other correctional treatment in the most effective manner"].)

Courts have even upheld pre-sentence rehabilitation. For instance, courts may delay a defendant's sentencing for more than a year to allow participation in drug treatment programs. (United States v. Maier, 975 F.2d 944, 948 [2d Cir. 1992].)

B. Changes Proposed by Proposition 36

Proposition 36 contains provisions similar to Arizona's drug diversion laws. Essentially, Proposition 36 modifies state sentencing laws, so that an offender convicted of a nonviolent drug possession offense will be sentenced to county probation supervision and participation in a drug treatment program, rather than subjected to incarceration in state prison or county jail.

The highlights of this initiative include:

Title, Findings & Declarations, Purpose & Intent - Sections 1-3

The first three sections loosely describe the intent of "The Substance Abuse and Crime Prevention Act of 2000." The declarations highlight the Arizona initiative and finds "non-violent, drug dependent criminal offenders who received drug treatment are much less likely to abuse drugs and commit future crimes, and are likelier to live healthier, more stable and more productive lives." (Secretary of State, California Official Voter Information Guide, 66 [November, 2000] [hereinafter Guide].)

The underlying idea behind Proposition 36 is that jailing drug addicts does nothing to solve the actual problem - curing the drug addiction itself. The purpose of this measure, then, is to provide effective treatment to drug addicts, the goal being to reduce drug addiction and crime rates.

Definitions - Section 4

The measure would apply in cases of felony or misdemeanor criminal charges for being under the influence, possession or transportation for personal use of any controlled substance. It would not apply in cases involving possession for sale, production, or manufacturing of illegal drugs. The measure specifies the various types of drug programs the court can assign a convicted offender to: up to one year, with six additional months of aftercare. Participation in vocational training, family counseling, and literacy training can also be required. The measure provides that offenders who are reasonably able to do so may be required to help pay for their own drug treatment.

Mandatory Probation - Section 5

The real heart of the initiative is in Section 5. Here, the initiative adds section 1210.1 to the California Penal Code to provide automatic probation for any person convicted of a non-violent drug possession offense. Participation and completion of an appropriate drug treatment program is required as a condition of probation.

This measure specifies that certain offenders will be excluded from its provisions and subjected to sentencing under existing criminal laws. Those excluded from Proposition 36's automatic probation include:

    • any offender who refuses drug treatment,
    • any offender who uses a firearm during his or her crime,
    • any offender who is convicted in the same court proceeding of another crime, and
    • any offender who repeatedly fails the drug treatment programs mandated under this measure.

Additionally, offenders who fail to comply with their drug treatment requirements or conditions of probation, or those who commit new crimes, will be subject to various specified sanctions by the court, including incarceration in jail or prison. In contrast, offenders who successfully complete treatment and comply with their conditions of probation can petition the court for dismissal of the charges and have the arrest removed from their criminal record.

Parolees - Section 6

Parole violators found to have committed a nonviolent drug possession offense or to have violated any drug-related condition of parole will generally remain on parole supervision and be placed in a county-established drug treatment program. The parolee will not be subjected to re-incarceration in state prison for the parole violation.

This initiative specifies that its provisions for diversion from prison will not apply to certain parolees, thus making them subject to imprisonment for parole violations in accordance with existing law. The excluded parolees are any who refuse drug treatment, who are found to have also committed another crime, or who have a prior conviction on their record for a crime classified as either violent or serious. Parolees who fail to comply with their drug treatment requirements or conditions of parole or those who commit new crimes will be subject to various specified sanctions, including reincarceration in state prison.

Funding Appropriation - Section 7

Section 7 creates the Substance Abuse Treatment Trust Fund. The measure provides additional funding to counties to support the proposed expansion of drug treatment and probation supervision for non-violent drug possession offenders and related costs. After providing $60 million in 2000 - 2001, $120 million will be appropriated annually through 2005 - 2006 for these purposes.

The initiative directs that the funds be distributed to counties through the state Department of Alcohol and Drug Programs (DADP). The funds received by counties cannot be used for drug testing of offenders (a problem cited by the opponents), but can be used to fund vocational training, family counseling and literacy training under this Act. The initiative authorizes DADP to contract for additional drug treatment whenever it determines that existing services are insufficient.

The initiative directs DADP to conduct an annual study to evaluate the effectiveness and fiscal impact of the measure. County governments will report specified information on the conduct of the drug treatment programs to DADP, and their expenditures will be subject to audits by the department.

Effective Date, Amendments & Severability - Sections 8, 9, 10

The initiative provides that the Act becomes effective July 1, 2001, and its provisions applied prospectively. Any amendments to the Act requires a two-thirds vote of the Legislature. In addition, if the courts determine that any part of the initiative is invalid or unconstitutional, the other provisions of the initiative should not be affected.

III. Drafting Issues

The drafters of Proposition 36 have the benefit of learning from the drafting errors and ambiguities surrounding the Arizona initiative. In the past few years, a number of issues related to the statutory interpretation of Proposition 200 have been litigated in Arizona courts. For example, Arizona courts have recently grappled with issues ranging from whether their initiative distinguished "possession" of drugs from "selling" to whether the initiative applied to juveniles. Since a neighboring state jurisdiction decided the following cases, California courts are not bound by their holdings. However, Arizona State court case law does serve as persuasive precedent.

Does Proposition 36 Prohibit Incarceration for Violation of Probation?

What happens when a defendant violates the provisions of probation under this initiative? In the event the defendant violates probation conditions, the Arizona initiative contains no limit on the number of times a court is required to modify the conditions of probation and expressly precludes the court from incarcerating the defendant. For example, after a defendant violated probation conditions twice, an Arizona court revoked probation and sentenced petitioner to a 2.5-year prison term. However, in State v. Thomas, the appellate court determined that the trial court was precluded from sentencing him to prison by A.R.S. §13-901.01, providing a violation of probation shall have new conditions of probation established by the court short of incarceration, enacted as part of Proposition 200. (State v. Thomas, 996 P.2d 113 [Ariz. App. Div. 2, 1999].) Proposition 36 seems to avoid this problem by expressly allowing incarceration if probation is revoked. (Guide at 67.)

Is the Initiative applicable to persons who commit a specified offense before the effective date of the Act, but are found guilty after the effective date?

Proposed Penal Code section 1210.1 states that any person "convicted" of a non-violent drug possession offense shall receive probation. What if a defendant is arrested in June 2001 for a non-violent drug possession, but is not sentenced until August 2001? Assuming passage of Proposition 36, would the mandatory probation apply to said defendant?

Rationalizing that ex post facto laws are unconstitutional, (U.S. Const. art. I, sec. 9, cl. 3), an Arizona court held that a defendant was not eligible for probation when the offense was committed prior to passage of the initiative. (Baker v. Superior Court In and For County of Maricopa, 947 P.2d 910, [Ariz. App. Div. 1, 1997].) However, ex post facto prohibitions are intended to protect defendants from laws that change the punishment, and inflict a greater punishment, than the law annexed to the crime, when committed.

Proposition 36, Section 8 explicitly states that the provisions of this Act "shall become effective July 1, 2001, and its provisions shall be applied prospectively." (Guide at 69.) Unlike the defendant in Baker, consider a hypothetical defendant who commits an offense after passage of the initiative, but before the effective date of July 1, 2001. If the sentencing occurs after this effective date, will the defendant receive automatic parole? In Tapia v. Superior Court of Tulare City, the California Supreme Court held that where a provision clearly benefits the defendant, the provisions apply even to crimes committed before passage of Proposition 115, the "Crime Victims Justice Reform Act." (Tapia v. Superior Court of Tulare Cty, 53 Cal. 3d 282, 301 [April 1, 1991].) Presumably, California courts can find that Proposition 36 allows for sentences benefiting defendants convicted of drug possession, not greater punishments; therefore, the court may apply this reasoning to defendants sentenced after July 1, 2001.

Does the Initiative Apply To Juveniles?

The question of whether mandatory probation for non-violent drug possession applies to juveniles was raised in Arizona. (In re Fernando C., 986 P.2d 901 [Ariz. App. Div. 2, 1999].) There the court held that the Arizona statute does not apply to juveniles. Although the minor conceded that the proper terminology categorizes him as having been "adjudicated" and not "convicted," he maintained that the ordinary meaning of the word "convicted" should be applied and that it extends to juvenile court proceedings. Additionally, the minor argued that Proposition 200 changed the justice system's approach to non-violent drug offenders and should apply to juvenile offenders, not just persons charged and tried as an adult.

Although there is no language in Proposition 36 to infer that juveniles were included within the Act's purview, a juvenile in California may make a similar claim should this initiative pass. Thus, it might be wise to insert clarifying language into Proposition 36 stating whether the initiative does or does not apply to juveniles.

Does the Initiative Allow Probation for Defendants Arrested for Production or Sale of Drugs?

It appears that the drafter's intent is to provide mandatory probation only to those convicted of possession. Those individuals participating in the chain of manufacturing and commercial distribution of a controlled substance are not the target audience of this measure. State law differentiates between felons convicted of possessing illegal drugs for personal use and those convicted of possessing illegal drugs for sale to another party. (Cal. Health & Safety Code §§ 11350, 11351 [West 2000].)

As proposed in Proposition 36, Penal Code section 1210 (a) defines non-violent drug possession offense as not including "possession for sale, production, or manufacturing of any controlled substance." (Guide at 66.) By definition, someone convicted for selling would not be eligible for mandatory probation. However, a defendant found possessing a controlled substance who has one or two prior convictions for possession to sell, may be eligible for mandatory probation.


In Goddard v. Superior Court, the Arizona court allowed judicial discretion for such sentencing by holding that the drafters and voters had in fact distinguished possession for use from possession for sale: "An evident purpose of Proposition 200 was to preserve such a distinction and to make it plain that those who commercially traffic in controlled substances are not entitled to the benefits accorded those who possess for use. This does not mean, however, as Petitioner contends, that one who has committed two or more past offenses of possession for sale is entitled to mandatory probation." (Goddard v. Superior Court of Arizona, 956 P.2d 529, 532 [App. 1998].)


The difficulty in distinguishing between possession to sell versus personal use is heightened by ambiguities in the language of Proposition 36.

Will Vague Language Require Litigation?

Section 4 of the Proposition adds section 1210 to the Penal Code to define "non-violent drug possession offense" as the "unlawful possession, use, or transportation for personal use of any controlled substance identified (in specified code)." (Guide at 66.) It is unclear whose personal use the provision is discussing. Since all drugs are for someone's personal use, such vague language may require additional litigation to determine the true intent of the individual unlawfully possessing the drugs. Another problem arises in determining whether an individual was transporting the illegal substances for personal use or whether this person is in fact transporting the drugs for future sale. How will the court determine whether an individual is a drug dealer if he claims the drugs are for personal use only? The purpose of the initiative is to "treat" individuals with drug problems. The initiative vitiates this purpose if it provides only probation and treatment for drug dealers.

Subdivision (a) of proposed Penal Code section 1210.1 provides that the "trial judge may require any person convicted of a non-violent drug possession offense who is reasonably able to do so to contribute to the cost of their own placement in a drug treatment program." (Guide at 66.) How is "reasonably able" defined? Currently, defendants sent to DUI programs are required to pay for the cost of the program. Under this initiative, it appears that even those who are able to pay for those costs of the treatment "may" not have to pay.

In another Arizona decision, the court rejected the argument that the drafters of Proposition 200 intended it to apply to possession of drug paraphernalia. (State v. Holm, 985 P.2d 527, 529 [App. 1998].) The defendant's argument in Holm depended upon an incorrect contention that possession of drug paraphernalia was a lesser-included offense of possession of drugs. While Proposition 36 does not refer to drug paraphernalia in its definition of non-violent drug possession, it does expressly exclude possession of drug paraphernalia in the definition of "misdemeanor not related to the use of drugs." (Guide at 66.) Therefore, Proposition 36 appears to eliminate the ambiguity for possession of drug paraphernalia previously seen in Proposition 200.

IV. Constitutional Analysis

While the initiative process empowers the people to enact laws, initiative measures must still pass constitutional muster. "The voters may no more violate the Constitution by enacting a ballot measure than a legislative body may do so by enacting legislation." (Citizens Against Rent Control / Coalition for Fair Housing v. City of Berkeley, 454 U.S. 290, 295 [1981].) With this in mind, it is necessary to review whether Proposition 36 raises any constitutional violations.

Due Process

The constitutional right to due process of law guarantees that any sanction that deprives a defendant of life, liberty, or property must be implemented in a fair manner. (United States v. Salerno, 481 U.S. 739, 746 [1987].) Sentencing in the criminal justice system has changed dramatically in our nation's short history. The drug diversion program is but one example of alternatives to a typical prison sentence. Although some sentences focus solely on punishment, others look to rehabilitation as an appropriate sentence. Regardless of the judgment, compliance with procedures for minimum due process is imperative. Questions of due process are especially pertinent to Proposition 36 in relation to parole violations.

Although the Fourteenth Amendment provides the essential requirements of due process, two important U.S. Supreme Court decisions further clarified the bare necessities of due process for sentencing alternatives and violations. (Morrissey and Booher v. Brewer, Warden, et. al, 408 U.S. 471 [1972]; Gagnon, Warden v. Scarpelli, 411 U.S. 778 [1973].) Morissey held that the Due Process Clause of the 14th Amendment requires that a state afford an individual some opportunity to be heard prior to revoking his parole. Specifically, the Court held that a parolee is entitled to two hearings, one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole, and the other a somewhat more comprehensive hearing prior to the final revocation decision. (Morissey at 485.)

The following year, the Court extended this reasoning in Gagnon holding that a previously sentenced probationer is entitled to a hearing when his probation is revoked. Probation revocation, like parole revocation, is not a stage of a criminal prosecution, but does result in a loss of liberty. "Accordingly, we hold that a probationer, like a parolee, is entitled to a preliminary and a final revocation hearing, under the conditions specified in Morrissey v. Brewer." (Gagnon at 782.)

Sections 5 (c)(2), 5(e) and Section 6 of Proposition 36 describe the potential for probation revocation. Regarding essential due process, all implemented sentencing reforms have some basic procedural requirements, whether codified or through the common law. Given the increasing size of the criminal justice system, probation, parole, intermediate punishment and rehabilitation will not be the last sentencing reforms seen. Proposition 36 appears to meet the minimal due process procedures necessary by requiring the appropriate revocation hearings.

Equal Protection

The Fifth and Fourteenth Amendments to the Constitution guarantee to all citizens the equal protection of the laws. (U.S. Const. amend. V, XIV § 1.) Under the terms of this initiative, criminal defendants who have committed similar non-violent drug possession offenses in the same jurisdiction may receive different treatment regarding their probation, depending on the circumstances surrounding the offense.

Specifically, proposed section 1210.1(b) of the Penal Code (Guide at 66.) will not permit mandatory probation for the non-violent drug possession offense of any defendant who had previously been convicted of one or more serious or violent felonies in violation of Penal Code sections 667.5(c) or 1192.7 (specifying the violent felonies, including rape, murder and kidnapping) within the past five years. (Cal. Penal Code § 667.5(c), 1192.7 [West 2000].) Under current equal protection analysis, however, this differential treatment easily withstands constitutional scrutiny.

Although the Supreme Court has not addressed the issue, lower federal courts have held that differing treatment of defendants accused of committing the same crime is a constitutional exercise of prosecutorial discretion. These courts have held that prosecutors have discretion to file different charges against individuals who have committed the same offense. (Newman v. United States, 382 F.2d 479, 481-82 [D.C. Cir. 1967] [to require prosecutors to treat all offenses and offenders alike would be 'an impossible task.'].) This situation commonly occurs when a district attorney offers one codefendant a plea bargain in exchange for testimony against an accomplice, who is then convicted at trial. The same reasoning allows Proposition 36 to provide different treatment for the same non-violent drug offenses based on past arrests.

Proposition 36 also raises an equal protection issue regarding non-drug-related probation violations and drug-related probation violations. (Guide at 67.) This distinction presents the question of whether defendants can constitutionally receive different treatment based upon their status as a drug user. Since this classification does not involve either a suspect class, such as race, or a fundamental interest, such as liberty, a rational basis standard of equal protection review applies. (See San Antonio Independent School District v. Rodriguez, 411 U.S. 1 [1973].) To meet the low standard of rational basis review, the classification need only rationally further some legitimate, articulated state purpose . The distinction between drug related and non-drug related violations rationally furthers the legitimate state interest in decreasing drug use and punishing such drug use with rehabilitation rather than incarceration, as well as reducing the prison population. Based on this reasoning, the distinction meets the rational basis standard of equal protection review.

The initiative also provides for two different standards of review for any defendant unamenable to drug treatment for exceptions to the parole requirement versus parole revocation. Proposed Penal Code 1210.1 (b)(5) would exempt from the mandatory probation any person convicted of a non-violent drug possession offense found to be unamenable to any and all forms of available drug treatment by clear and convincing evidence. (Guide at 67.) Yet, the court could revoke probation under Penal Code 1210.1 (e)(3)(B) if the state proves by a preponderance of the evidence that the defendant is unamenable to drug treatment. (Id.) Clear and convincing evidence requires a greater showing of proof than the preponderance of the evidence standard, requiring that the thing to be proven is highly probable. (Black's Law Dictionary, Seventh Edition [1999].) Such a distinction should not violate any equal protection guarantees as they apply to two separate phases of the criminal procedure process.

Sixth Amendment Speedy Trial Claim

Some drug diversion programs currently work as a pre-sentence rehabilitation option. Defendants may choose to enroll in a drug diversion program before sentencing. Ideally, this accomplishes the court's ultimate objective in sentencing for drug use violations - deterrence. Although there is some question as to whether this violates an individual's Sixth Amendment right to a speedy trial, courts have held that no Sixth Amendment violation occurs where the sentencing court postponed sentencing at the request of the defendant to allow consideration of post-offense, pre-sentence rehabilitation. (U.S. v. Flowers 983 F.Supp. 159 [E.D.N.Y. 1997].) Proposition 36 provides for mandatory drug treatment participation as a requirement to receiving a probation sentence. Because the defendant is actually sentenced, no Sixth Amendment issues arise.

V. Public Policy Considerations

An organization called California Campaign for New Drug Policies (CCNDP) is leading the campaign in support of Proposition 36. An array of state legislators (all Democrats), Republican U.S. Senate candidate Tom Campbell, and organizations such as Minorities in Law Enforcement, California Association of Alcoholism and Drug Abuse Counselors, and California Women Lawyers have all endorsed the initiative. (CCNDP, Official Endorsers of the Substance and Crime Prevention Act.)

The opposition to Proposition 36 is organized by a group called Californians United Against Drug Abuse (CUADA). Many law enforcement and victims' rights organizations are opposing Proposition 36 including: the California Peace Officers' Association, Chief Probation Officers of California, California Narcotic Officers' Association, Victims and Friends United, and the California District Attorneys' Association. Both sides have raised public policy concerns in support of and in opposition to the measure.

Drug Abuse as a Health Concern

A common sentiment today, and the major impetus behind Proposition 36, is that drug addicts need treatment not incarceration. Most advocates of the treatment route view drug addiction as a health issue. California State Senate's President Pro Tempore, John Burton, is an outspoken advocate for the public policy view that we should treat drug abuses as health problems, not law enforcement problems. (Lynda Gledhill, Drug Offense Measure Makes Ballot, San Francisco Chronicle, June 1, 2000.) These advocates claim that the drug addict lacks control over the commission of the offense, thus they do not benefit from, nor are they deterred by, punishment through incarceration. The threat of imprisonment has no effect on a drug addict because the compulsions and threat of withdrawal that are elements of addiction far outweigh any consequences a drug addict may face for the commission of these acts.

Opponents of the initiative, however, note that the initiative fails to set minimum treatment standards. Further, the initiative prohibits the use of appropriated funds for treatment programs to be used for drug testing. Presumably, the programs envisioned under the initiative would be low-cost, outpatient settings without drug testing. The opposition argues that without intense monitoring of the drug user there would be little accountability to treat the drug/health problem effectively. CUADA charges "if the initiative backers were sincere about improving drug treatment in California, they would have asked health care professionals to help draft the initiative." (Californians United Against Drug Abuse handout, What California Health Care Professionals Need to Know [2000].)

Issues of Public Safety, Recidivism

Many people view a ban on jailing drug offenders as a dangerous experiment. Opponents claim that the initiative weakens anti-drug laws and undermines legitimate drug treatment programs. According to a 1997 U.S. Bureau of the Census survey, 32.6% of all state prison inmates reported they were under the influence of drugs at the time they committed the offense that resulted in their incarceration. (Fact Sheet from the Office of National Drug Control Policy, Bureau of Justice Statistics, Substance Abuse and Treatment, State and Federal Prisoners, 1997, 3 [March 2000].) Supporters contend that many of those crimes would not have been committed had those individuals been treated and not been under the influence of drugs.

Opponents claim that the initiative prohibits all individuals - even dangerous and violent felons - from being incarcerated for possessing or being under the influence of drugs like crack, heroin, LSD and other serious substances. (See Letter of opposition from California Narcotic Officers' Association to Mr. Walt Allen, Chairman, Californian's United Against Drug Abuse [June 5, 2000] [on file with California Initiative Review].) Victims' rights organizations also worry that prohibiting incarceration for anyone possessing or being under the influence of drugs will increase crime rates. They contend that this initiative is "a step backward for the crime victim's movement." (See Letter of opposition from Victims and Friends United to Californian's United Against Drug Abuse [June 20, 2000] [on file with California Initiative Review].)

The National Association of Drug Court Professionals (NADCP) also argues that this initiative removes a judge's discretion in sentencing. (Jessie Seyfer, U.S. drug czar says state initiative would weaken drug courts' power, San Diego Union-Trib., June 3, 2000, at A-3.) Under this initiative, there is little recourse for those who relapse. Under current law, if an individual is sentenced through a drug court and then relapses, that person receives an automatic 36 hours in jail - a significant deterrent. Under this initiative, there would be little or no punishment for any such relapse. In fact, anyone caught with drugs after two treatment diversions will only be jailed for 30 days. The advocates counter that judges may set any range of probation conditions for drug offenders processed under the initiative, including weekly court appearances in addition to drug testing. Furthermore, the court may drop the offender out of the initiative's system and incarcerate that person for up to 16 months, as provided under current law. (California Campaign for New Drug Policies, Response to NADCP Press Release, [June 1, 2000].)

The opposition also raises the concern that the protections are so great under the initiative that drug felons can continue to work as school bus drivers, teachers and airline pilots. Section five of the initiative effectively erases any record for those complying with probation requirements. Without knowledge of an employee's criminal history, many employers will be oblivious to the inherent risk of hiring a former drug abuser.

Treatment Programs Oversight

Proposition 36 raises serious public policy questions regarding the oversight and operation of the proposed drug treatment programs. The initiative fails to specify who will regulate treatment facilities or programs. Will the State be required to license and set minimum treatment requirements? What are the standards to be used in determining successful treatment? There is nothing in the initiative specifying any requirements that trained professionals operate the programs. Opponents contend that the initiative will encourage "fly-by-night" operators who are only interested in the money, not the treatment of drug abusers.

Fiscal Considerations

According to the Official Voter Information Guide, this initiative will result in an annual net savings of $100 million to $150 million to the state and about $40 million to local governments. (Guide at 25) The Guide also cites potential avoidance of one-time capital outlay costs to the state of $450 million to $550 million. (Id.) The initiative mandates $120,000,000 appropriated annually from the state General Fund to cover the costs of placing persons in and providing specified drug treatment and vocational training programs under this Act. (Guide at 69.) Are these costs easily absorbable in the state's General Fund, or will other programs have to be cut?

The advocates advance numerous findings related to the costs of incarceration versus treatment. According to the Sourcebook of Criminal Justice Statistics, the average cost to the taxpayers of California per inmate, per year is $23,406. (Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics [1997].) They claim that the initiative reduces the number of state prison beds needed for drug offenders by 10,000 to 12,000 within a few years. Logically, this reduces the need for additional capital outlay to pay for construction of additional state prisons. The California Campaign for New Drug Policies estimates "a one-time savings of between $475 million and $575 million in deferred or avoided prison construction." (CCNDP, California Taxpayers Fact Sheet [on file with California Initiative Review].) Yet, these savings do not take into consideration the costs associated with developing, training and running effective drug treatment programs. Furthermore, the opposition questions how much mandatory probation requirements will cost the courts in increased litigation and oversight.

Other States

States across the nation are developing innovative programs to deal with a burgeoning prison population and an ever-increasing drug addiction problem. California's Proposition 36 follows directly on the heels of Arizona's Proposition 200.

Other states are also trying their hand at drug treatment and rehabilitation as an alternative to incarceration. In Nevada, the state government is pushing to extend a heroin-user diversion program across the state. A nine-month evaluation of the pilot program has indicated that it is effectively detecting heroin use in its early stages and diverting the users into treatment. In Colorado, the Juvenile Offender Substance Abuse Treatment (JOSAT) Project was created to help the large number of juvenile offenders who abuse alcohol and other drugs. In addition, Idaho has begun a 4-week, 30 hours a week, coed program to provide intensive drug education and group treatment to incarcerated offenders. (Justice Research and Statistics Association, Programs in Correctional Settings: Innovative State and Local Programs, (June 1998) [available at].) Regardless of the outcome of Proposition 36, states will continue to seek options for alternatives in the sentencing and rehabilitation of our nation's drug users.

VI. Conclusion

Proposition 36 is an innovative, yet controversial, approach to addressing the drug problem in California. The initiative proposes to divert defendants and parolees charged with drug possession or drug use offenses away from prison or jail and into local substance abuse treatment programs. By providing rehabilitation instead of simple incarceration, the goal is to break the drug abuser's cycle of crime. California judges already have sentencing discretion to provide drug treatment as a part of a defendant's incarceration, or as part of the alternative sentencing of the Drug Court. Proposition 36 goes a step further, making parole automatic for non-violent drug possession and use offenses.

If the voters pass Proposition 36 in November 2000, there will undoubtedly be more questions than answers as California's law enforcement community grapples with implementing the initiative. Will "The Substance Abuse and Crime Prevention Act" reduce drug-related crime and preserve jail and prison space for violent offenders as the supporter's promise? Or, will the initiative threaten public safety and cost taxpayers millions of dollars in added public safety, court and drug abuse costs as the opposition warns?

Ultimately, passage of this initiative will depend on whether California voters support the idea of substance abuse treatment as an automatic alternative to incarceration or whether the voters believe that this initiative goes too far at the expense of public safety.