Responding to Judge Rosenberg on Proposition 5: We Need to Fix the Drug Court System

Anyone who has been in Judge Rosenberg's court has professed an admiration for his inherent fairness as a Judge. I have spoken with a number of people who believe he is sincere, fair, and listens to both sides and they feel that they get a good and fair hearing from him regardless of the outcome of his case. I want to emphasize this, because in other matters, I have to question to his judgment.

I start by examining his Op-Ed that he co-wrote with Judge Janet Gaard, a judge in the Yolo Superior Court. Her current assignment is to preside over all drug courts, Prop. 36 courts, juvenile drug courts and domestic violence court. How appropriate is it for sitting judges to weigh in on electoral politics? That is difficult to assess.

For their part they defend their decision to weigh into proposition politics by arguing that "when ballot measures directly impact the administration of justice, judges can, and do, voice their opinions." I am not so sure that defense is a valid. Nevertheless, this is not an article that focuses on a personal decision to weigh-in on this vital issue, but rather their position which seems cynical and to some degree self-serving.

I will start by saying this is far from a perfect measure and I think Judge Rosenberg and Judge Gaard have some valid criticisms of it. However, from my standpoint, they missed key benefits of the law. The bottom line here, the current system is broken, prisons and courts are overwhelmed by a large number of non-violent drug cases that clog the court system and fill our prisons. Drug use and abuse is a serious problem in this society, the question is whether the best means to treat it is to incarcerate otherwise non-dangerous individuals or to provide treatment for them.

What this bill does is not just talk about treatment for drug defendants, but it actually provides a funding source for it. The fact of the matter is that regardless of the proposal, prosecutors do not support treatment over incarceration. So while this is not a perfect bill by any means, it is the best law we could get and it is far better than the current system.

I will begin this by laying out what the law does. It is striking that most of the Judges objections are based on by-products of the measure rather than the major tenets. Again, I think some of these are valid points, but they do not consider in their op-ed the major benefits of the program. (And to be fair, I have much more space to flesh out these arguments than they do).

The major objection that the courts have is that this law would limit the courts' authority. In this case, it would limit the courts’ authority to incarcerate those who commit certain drug-related offenses, break drug treatment rules or violate parole; and shorten parole for certain nonviolent offenders. To which I say, darn. I simply do not believe the current system has the benefits that they apparently believe it does.

But do not take my word for it. Much of what follows is from the non-partisan, impartial analysis of the League of Women Voters. According to the League of Women Voters' analysis:

"Proposition 5, the Nonviolent Offender Rehabilitation Act, would make major changes to state law governing the sentencing, parole, and rehabilitation of nonviolent drug offenders. There would be a strong emphasis on providing rehabilitation and counseling services for nonviolent drug offenders both in sentencing and upon parole. In addition, administrative and organizational changes would be made to the California Department of Corrections and Rehabilitation (CDCR) to centralize accountability and governance."

The proposition would do five basic and major things:

1. Expand drug treatment diversion programs for criminal offenders,
2. Modify parole supervision procedures and expand parole rehabilitation programs,
3. Allow inmates to earn additional time off their prison sentences for participation and performance in rehabilitation programs,
4. Reduce certain penalties for marijuana possession, and
5. Make miscellaneous changes to laws relating to state administration of rehabilitation services.

Here's what supporters argue:

• State prisons are badly overcrowded, with many proposals to build even more prisons rather than try to reduce the number of prisoners. This proposition safely reduces prison overcrowding.
• Judges retain the discretion to divert nonviolent offenders into treatment and demand accountability during treatment.
• Rehabilitation or treatment to reduce recidivism of inmates would pay for itself by reducing costs of incarceration.
• These programs create treatment options for people with drug problems with early intervention programs and accountability.
• Since 85 to 90 percent of inmates are returned to society, there must be programs to prepare them to become more productive citizens upon their return.
• Proposition 36 has graduated 84,000 people and saved almost $2 billion since 2000. We need to build on this type of successful approach.
• This measure creates an efficient, centralized system of data collection and independent oversight mechanisms for drug treatment and rehabilitation programs

Here's what opponents argue:

• Proponents want the public to believe this is about keeping “nonviolent offenders” out of prison, but according to L.A. County District Attorney Steve Cooley, “No first-time offender arrested in California solely for drug possession goes to prison—ever.”
• The measure limits the courts’ authority to incarcerate offenders who violate probation or parole, and shortens parole for most drug offenses.
• Proposition 5 weakens drug rehabilitation programs by allowing defendants to continue using drugs while in rehab.
• These changes in the law could provide, in effect, a “get-out-of-jail-free” card, letting defendants charged with crimes to effectively escape criminal prosecution and be returned to our neighborhoods.
• This measure creates numerous divisions, boards, commissions, and reporting requirements regarding drug treatment and rehabilitation.
• Because it is really a constitutional amendment rather than a statutory change, a petition has been filed with the state Supreme Court to block this initiative.

Now that we have discussed the basics on the law, let us look at the Judge's points.

The Judge lists seven major defects, I am going to look at a few of them.

"This is an initiative written by an advocacy group. It is very long, encompassing 36 single-spaced pages in a relatively small font. It makes intricate and detailed amendments to a significant number of existing statutes and executive policies. We doubt that 5 percent of the voters of California will have read the entire text of this new law before they vote on it. Is this a good way to make state law?"

I think this is a fair point that probably extends to all complex laws written by the proposition system. The problem with this point is that this law would never have been drafted by prosecutors who would want to retain authority and most seem to favor incarceration for non-violent drug offenses. So if you want reform you have to do it in initiative form. It seems unlikely that this law will pass and it would never get through the legislative system as too many powerful law enforcement interests would block it and not enough powerful interests support it.

The most important point the judge makes is both increased workloads on the courts and increase cost.

"Prop. 5 imposes dramatically increased workloads on courts and judges without providing any increase in the number of judges or needed funding."

"The estimated cost of Prop. 5 is $1 billion annually and none of this funding may be used for drug testing."

Let us look at the costs first and then discuss I think two good objections by Judge Rosenberg and Judge Gaard.

According to the league of Women Voters, the costs is indeed $1 billion.

"Total state operating costs could potentially exceed $1 billion annually."

However, what the judge does not mention is the potential cost saving which could exceed $3.5 billion--$1 billion for reduced prison and parole operating costs and a $2.5 billion for capital outlay savings.

"Most of those savings would be attributable to savings over time in prison and parole costs resulting from the following: (1) diversion of offenders from prisons to treatment programs, (2) exclusion of some parole violators from state prison, (3) reduction in prison time due to expansion in credits, and (4) reduction in time of parole supervision for certain drug and nonviolent offenders.

State Capital Outlay Savings: There could be net savings on state capital outlay costs exceeding $2.5 billion, resulting from lower prison construction costs due to a reduction in the inmate population. Those savings may be partially offset by costs for increased prison rehabilitation programs.

County Operations Costs and Funding: Increases in county costs for new drug treatment diversion programs and juvenile programs would probably be in line with increased state funding. There may be unknown increases and reductions in county operating costs and revenue.

Summary: In summary, increased state costs could exceed $1 billion for the expansion of drug treatment and rehabilitation programs. Savings to the state could exceed $1 billion due to reduced prison and parole operating costs. Capital outlay savings for prison facilities could exceed $2.5 billion."

Here's the draw to this bill for me: we spend a lot of money each year to lock up non-violent drug offenders. That includes an incarceration cost and it also includes the costs of building more and more prisons. Just look at the re-entry facility proposal in Yolo County. What if we didn't have to build these facilities because we did not incarcerate all of these non-violent drug offenders?

The Judge objects to this law based I think on two key things--lack of funding for new judges and also lack of funding for drug testing, with the cost savings here, they could easily remedy those problems. Those problems could be fixed by simple legislation.

The Judge then argues:

"Drug courts as we know them - which tend to focus on first-time offenders - would be virtually destroyed. Prop. 5 would require courts to take into their drug court system offenders who have suffered up to five convictions of any offense within a 30-month period. Effectively, the target population of drug courts will become the most incorrigible and difficult-to-treat offenders at the expense of new or first-time offenders."

I have two different responses to this criticism. First is that this initiative would double the funding for adult drug courts statewide. Currently that funding is at $24 million and it would go up to $45 million.

Here's the non-partisan analysis by the League of Women Voters on this:

"Proposition 5 would establish a three-track drug treatment diversion program, expanding and largely replacing the three existing drug treatment and diversion programs.

• Track I. Offenders charged with nonviolent drug possession offenses, with no prior violent or serious offenses, could enter into a deferred entry of judgment arrangement with the court that does not require probation supervision. Similar to Penal Code Section 1000, an offender who completes the assigned drug treatment program and stays out of trouble would have the charges against him/her dismissed. Also, rather than the offender paying for the cost of the treatment program, the state funds these programs.
  
  
• Track II. A modified form of Proposition 36, this track would generally divert offenders convicted of a nonviolent drug possession offense to treatment and probation for up to a year (with a maximum of 24 months if extensions are granted). Offenders cannot participate if convicted of a violent or serious felony during the prior five years. Offenders with five or more offenses in the prior 30 months are not eligible.
  
  
• Track III. This is similar to existing state-funded drug court programs for adult felons. This track generally provides treatment and probation supervision in lieu of incarceration in prison or jail for up to 18 months (with a maximum of 24 if extensions are granted). In general, judges would be provided discretion as to which offenders would be admitted.

Offenders who fail in Track I may be shifted to Track II; Track II failures may be shifted to Track III."

What this would do would be to expand the types of offenders eligible for diversion and provide to the funding to them to go to drug treatment. It would also give the drug court judges considerable discretion as to who can go through these programs.

Judge Rosenberg and Judge Gaard are arguing that this would destroy the drug court system, but that seems like a very cynical view. They essentially argue that the system will fail.

On the other hand, the current system is broken--people are going to jail for non-violent drug offenses and that is clogging up other portions of the system and exploding the budget of the corrections system. Meanwhile the recidivism rate is extremely high and we are not doing a thing to treat the problem, we are only throwing them into storage. That doesn't seem to make a lot of sense.

"Addicted defendants will be permitted five violations of probation or treatment failures based on drug use and judges will be unable to meaningfully intervene until the sixth violation."

Perhaps five is too high. I can accept that. But let's look further.

What does that mean to intervene? Does he mean, to incarcerate? Is there any evidence that incarceration does anything to prevent future drug violations? Is there any evidence that incarceration leads people to stop doing drugs.

The Judges tip their hands with the next objection:

"The proposition dramatically restricts a judge's ability to impose some jail time as a sanction in drug court. Judges who operate drug courts have found that the ability to impose a brief stint in jail - even the possibility of that imposition - can have dramatically positive effects in convincing drug-addicted defendants that it is better to stay in the treatment program and stay clean rather than risk the wrath of the judge. This proposition removes that tool from judges."

Of course, the Judges present no evidence by which to back up that assertion. The statistics show otherwise.

"We believe in drug courts and the real possibility that drug courts can help people escape addictions and turn their lives around. We believe that Proposition 5, while well-intentioned, does far more harm than it provides benefits. We have serious concerns that drug addicts who run afoul of the criminal justice system will not be well-served by this proposition. "

And I simply disagree. The best way to help people escape addictions is to provide them with treatment. This creates a funding mechanism for treatment that is likely revenue neutral for the statement if not a net cost savings once all factors are taken into account.

Judge Rosenberg and Judge Gaard act like the current system is working. The problem is that they offer no evidence that it is working. This is far from a perfect bill. Some of their objections can be fixed with subsequent legislation, the rest are simply a matter of opinion that they have not offered tangible evidence to support. Does anyone believe that drug courts work? Does anyone believe that they help people avoid drug addiction? Is there any evidence concrete to support that assertion?

This seems like a cynical view that this treatment system is doomed for failure before it begins, that court system works, and that this new system would take away key powers from judges to impose punishment. Perhaps modifications in this law would help, but taken as a whole it is a huge step up from the current system that is clearly, despite protests to the contrary, broken.

---Doug Paul Davis reporting