BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
1
5
1
SB 151 (Ducheny)
As Introduced February 12, 2009
Hearing date: April 21, 2009
Penal Code
JM:mc
PAROLE REENTRY COURTS
HISTORY
Source: Author
Prior Legislation: SB 391 (Ducheny) - Ch. 645, Stats. 2007
SB 851 (Steinberg) - 2007, vetoed
SB 618 (Speier) - Ch. 603, Stats. 2005
Support: California Communities United Institute; California
Peace Officers' Association;
California Police Chiefs Association; California
Psychological Association; California Psychiatric
Association; Taxpayers for Improving Public Safety;
California Attorneys for Criminal Justice
Opposition:None known
KEY ISSUES
SHOULD THE JUDICIAL COUNCIL BE DIRECTED TO ESTABLISH A PILOT
PROJECT FOR UP TO 10 PAROLE REENTRY COURTS, AS SPECIFIED?
SHOULD PAROLE REENTRY COURTS HANDLE PAROLEES WHO WOULD BENEFIT
(More)
SB 151 (Ducheny)
PageB
FROM DRUG, ALCOHOL OR MENTAL HEALTH TREATMENT, AND WHO WOULD
OTHERWISE BE SUBJECT TO PAROLE REVOCATION?
(CONTINUED)
SHOULD THE PAROLE REENTRY COURTS BE BASED ON THE HIGHLY STRUCTURED
DRUG COURT OR A COLLABORATIVE MODEL INVOLVING DRUG TESTING, CLOSE
JUDICIAL SUPERVISION AND COORDINATION AMONG THE JUDICIAL OFFICER,
CORRECTIONS AUTHORITIES AND TREATMENT PROGRAMS?
PURPOSE
The purposes of this bill are to 1) direct the Judicial Council
to develop a pilot program for up to 10 parole reentry courts
based on the highly structured drug court model, as specified;
2) provide that these reentry courts would supervise parolees
who would benefit from drug, alcohol or mental health treatment,
and would otherwise be subject to parole revocation; 3) provide
that the reentry court would have these features: a) an assigned
judicial officer; b) close coordination among the court, the
Department of Corrections and Rehabilitation, and treatment
programs in a team approach, as specified; and 4) require
evaluation of the program, as specified.
Existing statutory law sets out a funding and grant process for
drug courts, and sets out requirements for drug court plans.
(Health & Saf. Code 11970.2 and 11970.45.)
Existing law provides that "the Drug Court Partnership Program
shall be administered by the Department of Alcohol and Drug
Programs ("DADP") for the purpose of providing assistance to
drug courts that accept only defendants who have been convicted
of felonies and placed on formal probation . . . ." DADP and
Judicial Council shall design and implement through the Drug
Court Systems Steering Committee as originally established by
the Council and DADP to implement the Drug Court Partnership Act
(More)
SB 151 (Ducheny)
PageC
of 1998. (Health & Saf. Code 11970.45.)
Existing law generally authorizes a trial court to "defer entry
of judgment" for eligible drug offenders, provided the offender
pleads guilty and completes an approved drug program, as
specified. (Pen. Code 1000.)
Existing law continues to authorize true "preguilty plea"
diversion for eligible drug offenders. Diversion programs are
available in a county where the court, the prosecutor and the
public defender to use such a process. In true diversion the
underlying charges are dismissed if the defendant completes the
diversion program. Should the defendant fail on diversion, the
criminal charges will be reinstated. (Pen. Code 1000.5.)
Existing Law - the Substance Abuse Treatment and Crime
Prevention Act of 2000 ("SACPA")<1> - requires non-violent drug
possession offenders and parolees to receive drug treatment
instead of incarceration. Eligible parolees receive
community-based treatment - not a commitment for return to
prison - for a non-violent drug possession violation of parole.
(Pen. Code 1210.1 and 3063.1.)
Existing law provides that specified drug defendants and
parolees are not eligible for SACPA. Ineligible persons are
those who:
Possessed drugs other than for personal use.
Committed other offenses along with a drug
possession offense.
Used a firearm while in possession or under the
influence of heroin, cocaine or PCP.
Previously have been convicted of a serious felony,
and have not been free of custody or commission of
felonies or dangerous misdemeanors within 5 years.
(Parolees may not have ever been convicted of a
serious felony.)
Participated in two prior Proposition 36 treatment
-----------------------
<1> SACPA is commonly described as Prop. 36, as it was
Proposition 36 in the November 2000 General Election.
(More)
SB 151 (Ducheny)
PageD
programs.
Refuse Treatment. (Pen. Code 1210.1 (b) and
3063.1 (b).).
Existing law generally authorizes pretrial diversion in
misdemeanor cases, as specified. (Pen. Code 1001.1 et
seq.; 1001.50 et seq.)
Existing law generally provides for diversion for defendants
with cognitive developmental disabilities in misdemeanor cases.
(Pen. Code 1001.20 et seq.)
Existing law generally provides for diversion in bad check
cases, as specified. (Pen. Code 1001.60 et seq.)
This bill establishes a pilot project administered by the
Judicial Council for up to 10 court-based reentry programs for
parolees who would benefit from community drug treatment or
mental health treatment.
This bill provides that parole reentry courts may have the
following characteristics:
An assigned judicial officer.
Close coordination among the court, CDCR, counsel,
community treatment and rehabilitation programs.
The court and program has responsibility for overseeing
all parole supervision.
This bill provides that the parole reentry courts will be
structured and guided in the following manner:
Purposes:
o promote public safety;
o hold parolees accountable; and
o reduce recidivism.
Eligibility and screening:
o Eligible parolees are chosen by CDCR.
o An eligible parolee is one who would benefit
(More)
SB 151 (Ducheny)
PageE
from community drug treatment or mental health
treatment.
o Eligible parolee would otherwise face parole
revocation.
Court makes final determination of acceptance into the
program after considering:
o Parolee benefit from the program.
o Risk the parolee poses to the public.
o History and nature of the committing offense.
Court authority and duties:
o Exclusive authority to set conditions of
parole.
o Sets or approves rehabilitation programs.
o Determines incentives and sanctions.
o Controls parole holds.
o Hears and determines alleged violations of
parole.
Judicial Council program development process for
selecting up to 10 reentry courts. Each court shall submit
a plan that includes the following features:
o Anticipated number of parolee participants.
o Method by which eligible parolees will be
referred to a court.
o Method by which eligible parolees will be
assessed for treatment needs, rehabilitative needs and
required level of monitoring.
o Criteria for continued participation and
successful completion of program.
o Criteria for termination and return to parole
revocation process.
o Plan for effective administration.
o Outcome measures.
o Program team, with training plan for use of
the drug court, collaborative court, non-adversarial
model.
Judicial Council - final selection criteria:
(More)
SB 151 (Ducheny)
PageF
o Consideration of greatest number of parolees
affected.
o Effectiveness of recovery courts in the
geographic area under consideration.
o Use of regional programs.
This bill provides that Judicial Council, in collaboration with
CDCR, shall design and perform an evaluation of the program's
effectiveness in reducing recidivism and parole revocations.
This bill provides that a preliminary evaluation shall be
submitted to the Legislature and the Governor on or before March
1, 2010. A final report shall be submitted on or before
December 31, 2013.
This bill includes a January 1, 2015, sunset.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<2>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
---------------------------
<2> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
(More)
SB 151 (Ducheny)
PageG
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(Citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .Under the PLRA, any prisoner release order that
(More)
SB 151 (Ducheny)
PageH
we issue will be narrowly drawn, extend no further
than necessary to correct the violation of
constitutional rights, and be the least intrusive
means necessary to correct the violation of those
rights. For this reason, it is our present intention
to adopt an order requiring the State to develop a
plan to reduce the prison population to 120% or 145%
of the prison's design capacity (or somewhere in
between) within a period of two or three years.<3>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Need for This Bill
The author states:
California's recidivism rates are the highest in the
nation at around 70%. This is due, in part, to the
fact that over half of these offenders are sent back
to prison based on technical parole violations
alone-at a much higher rate than other states. This
trend, along with changes in sentencing policy over
the last several years have led to severe overcrowding
of California's prisons-putting inmates, corrections
staff, and our state budget at risk.
----------------------
<3> Three Judge Court Tentative Ruling, Coleman v.
Schwarzenegger, Plata v. Schwarzenegger, in the United States
District Courts for the Eastern District of California and the
Northern District of California United States District Court
composed of three judges pursuant to Section 2284, Title 28
United States Code (Feb. 9, 2009).
(More)
SB 151 (Ducheny)
PageI
The reentry court model is similar to the drug court
model, with the goal of reducing recidivism and
improving public safety through the use of judicial
oversight. Under this model, participating judges
assess and review potential obstacles to community
reintegration, order participation in treatment and
reintegration programs, and closely monitor
participants progress through mandated drug and
alcohol testing, and graduated sanctions, as
necessary. Judges coordinate closely with parole
agents, family members, and community-based providers
to prevent parolees from reoffending and being sent
back to prison, while working toward successful
community reintegration.
The reentry court model draws upon the success and
benefits seen with the drug court model that include
ongoing judicial involvement, intermediate sanctions,
enhanced accountability and rewards.
Currently, there are two reentry courts in California:
one in Santa Clara County, and one in Los Angeles
County. These reentry courts are based on a
memorandum approved by the Director of the Division of
Adult Parole Operations and provide two California
Superior Court judges with jurisdiction over parolees
in coordination with parole agents. Judge Manley in
Santa Clara County targets mentally ill and substance
abusing parolees. Judge Tynan in Los Angeles works
with women on parole. Because jurisdiction for these
programs is by agreement only, obtaining full
collaboration and cooperation is very slow, and the
long-term prospects for these programs remains
uncertain.
The reentry court model has proven effective in
reducing recidivism in states where it has been
applied such as: Colorado, Florida, Iowa, Kentucky,
Ohio, Delaware, New York, West Virginia, Indiana, and
Oregon.
(More)
SB 151 (Ducheny)
PageJ
2. Alcohol, Drug Abuse and Mental Health Problems of Prisoners
and Parolees
Numerous studies have concluded that a very high proportion of
prison inmates have drug or alcohol problems. For many inmates,
their drug and alcohol abuse conditions and patterns have gone
untreated, or have been very minimally treated for decades.
Similarly, numerous studies have concluded that a substantial
proportion of prison inmates have mental disorders and mental
health problems. Many of these inmates have gone untreated.
Finally, many inmates have co-occurring mental health and drug
and alcohol problems. (Little Hoover Commission, Back to the
Community, Safe & Sound Parole Policies, Nov. 2003.)
Under existing law and practice, parolees with mental health,
drug abuse and alcohol problems are often largely left to fend
for themselves. Parole agents typically have large caseloads
and cannot give parolees close supervision. When a parolee
violates a condition or parole - often in connection with a
drug, alcohol or mental health related incident - he or she
faces a parole revocation hearing by the board. The function of
the parole board is largely to determine if a parole violation
allegation is true and to impose a penalty, often returning the
parolee to prison. The parole board does not supervise or
monitor the parolee in a parole program. Arguably, using two
separate entities with separate functions - the parole agents to
supervise and parole board to impose consequences for
misbehavior on parole - leads to a lack of program coordination
by the state and providers, and a corresponding lack of focus
and effort by the parolee.
This bill would create pilot programs for close and relatively
constant coordination of parole programs, monitoring and
discipline. One entity - the court - would manage the case.
All persons and entities involved in the process would
essentially answer to the court. The function of the court
would be to facilitate a successful outcome on parole by
establishing goals, measuring progress and holding each of the
participants accountable.
(More)
SB 151 (Ducheny)
PageK
SHOULD THE JUDICIAL COUNCIL ESTABLISH A PILOT PROGRAM OF UP TO
10 PAROLE REENTRY COURTS?
SHOULD THESE REENTRY COURTS USE THE HIGHLY-STRUCTURED,
COLLABORATIVE AND NON-ADVERSARIAL MODEL COMMONLY CALLED A DRUG
COURT?
3. Interaction with the Substance Abuse and Crime Prevention Act
(SACPA) - Proposition of the 2000 General Election
Under SACPA, eligible parolees who commit a non-violent drug
possession violation of parole must be given treatment in the
community. Parolees who would be eligible for supervision in a
reentry court would often be entitled to treatment under SACPA.
This bill appears to create a system under which a parolee would
be referred by CDCR to the parole reentry court rather than
"charged" with a parole violation. (CDCR determines whether a
parolee is eligible.) The parolee apparently would be referred
to the reentry court prior to a finding that he or she has
violated parole, and thus prior to the time that the parolee
would be referred for treatment under SACPA.
It further appears that a violation of a "parole condition" set
by the reentry court would not necessarily be a violation of
parole subject to CDCR parole revocation. The bill states that
an eligible reentry court plan would prescribe standards for
returning a parolee to standard parole for revocation
proceedings. If that is how the program would be implemented,
such a parolee would appear to be entitled to SACPA treatment
upon formal revocation of parole.
Nevertheless, it may be argued that a parolee who has been
referred to a reentry court is in an equivalent position to a
parolee referred to a SACPA program. Perhaps the bill should
include some procedure under which a parolee agrees to engage in
the reentry court program and agrees to delay any SACPA
treatment.
HOW WOULD THE REENTRY COURT SYSTEM INTERACT WITH SACPA, WHICH
(More)
SB 151 (Ducheny)
PageL
REQUIRES THAT ELIGIBLE PAROLEES BE GIVEN TREATMENT FOLLOWING A
NON-VIOLENT DRUG POSSESSION VIOLATION OF PAROLE?
SHOULD THE BILL INCLUDE A SPECIFIC PROCEDURE UNDER WHICH A
PAROLEE AGREES TO PARTICIPATE IN A REENTRY COURT?
SHOULD THE BILL INCLUDE A PROCEDURE UNDER WHICH A PAROLEE WHO IS
OTHERWISE ENTITLED TO TREATMENT UNDER SACPA FOR A DRUG-RELATED
VIOLATION OF PAROLE WAIVES SACPA PARTICIPATION, AT LEAST FOR THE
TIME THE PAROLEE ENGAGES IN THE REENTRY COURT PROGRAM?
4. Emerging Drug Court Standards and use of Drug Court Model
Beyond Drug Offenders
The first so-called drug courts took various forms and the term
did not have a consistent meaning. Even under existing
practice, some drug courts allow only persons convicted of drug
crimes to participate. Some use a pre-plea model for drug
offenders. Some courts allow participation by defendants
convicted of crimes that were motivated or greatly affected by
drug dependency or use - prostitution, theft, child neglect -
but in which the defendant was not charged with a specific drug
crime. Drug courts can serve adult criminal offenders, juvenile
delinquency offenders and dependency and family court drug court
programs.
Regardless of the specific kind of offender supervised in a
particular drug court, the basic model of how such courts
operate has become more standardized over the past 10 years.
Further, the term "drug" court may be misleading under current
practice. Courts handling other kinds of offenders, such as
offenders with significant mental health problems, have also
followed the highly structured, collaborative and
non-adversarial model now widely used in drug courts.
The National Association of Drug Court Professionals ("NADCP")
has published a guide to drug courts entitled Defining Drug
Courts: The Key Components. These guidelines, which can be
found on the California Judicial Council website, include the
following:
(More)
SB 151 (Ducheny)
PageM
Drug courts integrate alcohol and other
drug-treatment services with justice system
processing.
Using a nonadversarial approach, prosecution and
defense counsel promote public safety while protecting
participants' due process rights.
Eligible participants are identified early and
promptly placed in the drug court program.
Drug courts provide access to a continuum of
alcohol, drug, and other related treatment and
rehabilitation services.
Abstinence and use of alcohol and other drugs are
monitored by frequent drug testing.
A coordinated strategy governs drug court responses
to participants' compliance.
Ongoing judicial interaction with each drug court
participant is essential.
Monitoring and evaluation measure the achievement
of program goals and gauge effectiveness.
Effective drug court operations require continuing
interdisciplinary education forging partnerships
among drug courts, public agencies, and
community-based organizations increases the
availability of treatment services, enhances drug
court effectiveness, and generates local support.
5. Congressional General Accounting Office (GAO) Study of Adult
Drug Courts (February, 2005)
The GAO report noted in part:
Evidence about the effectiveness of drug court
programs in reducing participants' substance use
relapse is limited and mixed. . . . Drug test
results generally showed significant reductions in
use during participation in the program, while
self-reported results generally showed no
significant reductions in use. Completion rates . .
. ranged from 27 to 66 percent.
(More)
SB 151 (Ducheny)
PageN
. . . Program completion was associated with
participants' compliance with program requirements.
. . . These procedures include attending treatment,
engaging in treatment early in the program, and
appearing at hearings. No other program factor, such
as the severity of the sanction that would be invoked
if participants failed to complete the program and
the manner in which judges conducted status hearings,
predicted participants' program completion.
Several characteristics of the drug court program
participants themselves were also associated with an
increased likelihood of program completion. These
characteristics include lower levels of prior
involvement in the criminal justice system and age,
as older participants were more likely to complete
drug court programs than younger ones. (Emphasis
added.)
6. The LAO Report on the 2008 Budget Found Significant Cost
Savings from Drug Court and Related Programs
(More)
The Legislative Analyst has evaluated drug court and similar
programs numerous times. The LAO analysis of proposals in the
2008 Budget stated:
Proposition 36 Programs Shown to Reduce State Costs.
A recent benefit-cost analysis of Proposition 36
indicates that costs are $2,861 lower per offender for
all Proposition 36 participants (a benefit-cost ratio
of $2.50 saved for every $1 spent) and costs are
$5,601 lower per offender for those that complete the
program (a benefit-cost ratio of $4 to $1). Based on
our review of this report, and our own prior analysis
(see page C-32 of the Analysis of the 2007-08 Budget
Bill), we conclude that Proposition 36 results in net
savings to the state, primarily because of diversion
of offenders from state prisons.
Adult Drug Court Program Evaluations Indicate Criminal
Justice Savings. According to departmental studies,
adult felony drug court programs result in savings to
the state. The department indicates that in 2006-07,
the most current year for which data are available,
the CDCI program saved $35.5 million by avoiding days
in prison for those who successfully complete the drug
treatment program. The estimated benefit-cost ratio
is $4.64 to $1. Similarly, adult drug felons who
successfully completed treatment in the DCP program
saved $26.9 million in avoided prison costs (a
benefit-cost ratio of $3.50 to $1) in 2006-07.
Differences in savings between these two drug court
programs may be due to variation in county
implementation.
The DDCs Help Avoid Costs. Evaluations of the DDC
model have determined that working with parents with
substance abuse problems reduces the amount of time
(More)
SB 151 (Ducheny)
PageP
required to unify them with their children, increases
reunification rates, and increases participation in
substance abuse treatment programs. These programs
help the state avoid cost increases in Child Welfare
Services (CWS) programs, including Foster Care.
Reductions in Drug Diversion Programs Increase Other
State Costs. The current-and budget-year reductions
proposed for drug diversion programs funded by DADP
are likely to result in increased costs to other state
programs such as CDCR, Department of Justice, and CWS.
For example, if funding for drug courts is reduced, a
judge presiding over an adult drug felon case is less
likely to propose a drug court program for that
individual if there are no resources for treatment and
supervision. Alternatively, the judge may be more
likely to send that individual to prison so as not to
risk public safety. Such a decision would result in
an increase in state prison costs. If the person had
participated in a drug court program, prison costs
would not have been incurred. The cost of serving an
individual in the drug court program is generally less
than the cost of prison, as discussed earlier.
***************