SUMMARY

 

The California Nonviolent Offender Rehabilitation Act (NORA) is a comprehensive ballot initiative sponsored by the Drug Policy Alliance (DPA) -- the authors of Proposition 36 -- that is expected to be placed before California voters in the November, 2008 election.  

 

The National Association of Drug Court Professionals (NADCP) opposes NORA for the following reasons:

 

  • NORA is inconsistent with scientific research on evidence-based dispositions.
  • NORA erects multiple barriers to applying the Ten Key Components of Drug Courts.
  • NORA places substantial new burdens on the California court system without sufficient resources.
  • NORA threatens the survival and reputation of California Drug Courts.
  • The enormous taxpayer expenditures mandated by NORA are likely to far exceed any realized benefits.

NADCP recommends proactive and concerted efforts to disseminate accurate information regarding the provisions and intent of NORA as well as its anticipated impacts in California. This initiative is exceedingly long (36 single-spaced pages in relatively small font) and makes intricate amendments to numerous existing statutory provisions, executive policies and pending court cases.  The legislative summary provided by the DPA does not adequately articulate the consequences of NORA and voters are apt to be confused as to what they are being asked to endorse. 

NADCP is concerned not only about the impact of NORA in California, but also its potential influence at the national level.  As was attempted by DPA in the aftermath of the enactment of Proposition 36, it is anticipated that the backers of NORA will use any success in California as a springboard and template for instituting similar legislative efforts in other states.

PROVISIONS OF NORA

 

NORA mandates wide-ranging revisions of drug policy that reflect the ideology of its proponents including:

 

  • Expanding Proposition 36 to provide diversionary opportunities for a wider range of offenses and permitting more violations prior to termination and adjudication;
  • Capping the period of parole supervision for nonviolent drug and property offenses (including some drug sales and property crimes in which victims suffer losses) to 6 months, limiting the circumstances under which parole may be revoked, and releasing offenders from custody with insufficient supervision and accountability;
  • Expanding "good time" credits during incarceration for completion of rehabilitation programs;
  • Re-defining marijuana possession (< 28.5 grams) as a fineable infraction rather than a misdemeanor;
  • Creating independent Oversight Boards comprised of heterogeneous groups of professionals and citizens (the majority being sympathetic to DPA's position) to control the relevant actions of the Dept. of Alcohol and Drug Programs (ADP), Dept. of Corrections and Rehabilitation (CDCR), Board of Parole Hearings and Judicial Council;
  • Infusing more funding and requiring access-on-demand to substance abuse treatment services for addicted offenders; 
  • Mandating equal access for addicted offenders to psychiatric medications, anti-addiction medications (including methadone and buprenorphine) and harm-reduction services; and
  • Prohibiting the use of funding from this initiative for drug testing.

 
NORA fails to learn many of the lessons of Proposition 36 regarding the importance of holding offenders meaningfully accountable for their actions, and matching offenders to appropriate dispositions based upon their criminogenic risks and needs.   NORA goes well beyond Proposition 36 in restricting the circumstances under which probation and parole may be revoked and permits larger numbers of treatment failures before the Drug Court Model can be applied.  The result is likely to reduce the effectiveness of the judiciary for combating drug-related crime in California and contribute to a further increase in drug-related recidivism.
 
NORA buries Drug Courts within a complex administrative structure and places them under the control of an independent oversight commission comprised largely of non-judicial personnel sympathetic to DPA's position.  It limits the target population for Drug Courts to the most incorrigible and difficult-to-treat offenders and places enumerable new burdens on the court system without sufficient resources.  The result can only be to weaken California Drug Courts politically and economically, reduce their apparent effectiveness, and constrain judicial innovation and independence.

 

NORA prohibits the use of it's funding to support existing Drug Court programs in many critical areas other than adult drug offenses, including Juvenile Dependency Drug Courts, Juvenile Delinquency Drug Courts, Family Dependency Drug Treatment Courts and Reentry Drug Courts.  Existing funding for these courts is eliminated and now must come from a separate appropriation from the Legislature.  Such an appropriation is unlikely due to the dramatic shift of more than one billion dollars into treatment and supervision for criminal defendants only.   
 
In addition, NORA advances a number of politically controversial positions.  These include the explicit decriminalization of marijuana possession and the endorsement, on equal footing with other treatment approaches, of harm reduction services.  The term "harm reduction" has no one meaning and is practiced in different ways, but has come to be associated with the drug legalization movement.   The decriminalization of marijuana is proposed at a time when national studies are documenting ongoing use of and addiction to this drug by youths and young adults in our communities. 

Finally, NORA makes a heavy-handed effort to enhance the political influence of DPA at the expense of its political adversaries, including Drug Courts.  It brings Drug Courts, ADP, CDCR and the Board of Parole under the control of independent oversight boards which will have minimal representation from the courts and law enforcement and maximal representation from treatment providers and DPA's political and philosophical allies.

 

NORA repeals statutes and programs that take contrary positions to DPA on drug-related matters.  For example, it abrogates the (currently enjoined) amendments to Proposition 36 that would extend court monitoring and accountability.  It also abrogates the Substance Abuse Offender Treatment Program, which was created in large measure by the Governor and State Legislature to reduce DPA's influence over drug policy in California and permit greater influence by ADP, Drug Courts and law enforcement.  The effect of these provisions is to bring Drug Courts under the control of non-judicial entities, tie the hands of judges, corrections and parole, and give DPA and its allies direct or indirect control over drug policy and related funding decisions for the state.


SENTENCING AND DISPOSITION


The provisions of NORA most directly relevant for NADCP concern sentencing and dispositions for nonviolent drug-related offenses.  NORA creates a three-track system which substantially expands Proposition 36 by providing diversionary opportunities for a wider range of offenses and permitting more violations prior to termination and adjudication.  The eligibility criteria, exclusion criteria and essential components of each track are summarized in the Appendix. 

 

  •  Track I:  Pre-trial diversion is extended to two nonviolent drug-possession offenses (currently it is one under California's PC 1000).
  • Track II: Court-supervised probation is extended to four nonviolent drug-possession offenses or drug-related violations of probation (currently it is three under Proposition 36). As in Proposition 36, there are narrow exceptions if the prosecution can prove the offender is a danger to public safety or un-amenable to treatment. Track II incorporates some elements of the Drug Court Model, including status hearings and graduated sanctions and incentives (defined to exclude short jail sanctions for continued drug use), but prohibits other essential elements of the full Drug Court Model. It is somewhat analogous to what are now being operated as "Prop 36 Courts" in some California counties.
  •  
    Track III:  Track III most closely approximates the Drug Court Model and explicitly mentions Drug Courts.  This track is discretionary for all subsequent drug-possession offenses and drug-related violations of probation, as well as for non-drug offenses if the defendant has a substance abuse problem.  It is mandatory for individuals charged with drug-possession offenses who are ineligible for Track II because they had 5 or more convictions for nonviolent and non-serious felonies (not necessarily drug felonies) in the previous 30 months.

Eligibility for the three tracks is determined by offenders' current charges and past conviction record.  Movement along the tracks is steadily progressive and requires adversarial hearings at each juncture, with the burden of proof placed on the prosecution.  Offenders ordinarily do not get to what might be defined as "Drug Court Proper" until they have had six drug-possession convictions or drug-related probation violations, or unless they have a serious history of non-drug offenses coupled with evidence of a substance abuse problem.
 
 


NORA Erects Multiple Barriers to Applying the Ten Key Components of Drug Courts.


Tracks II and III both embrace the use of a "dedicated court calendar" and "collaborative court model" including periodic review hearings and graduated sanctions and incentives. However, while implicitly recognizing the value of the Drug Court Model, NORA continues to erect numerous barriers to applying the Ten Key Components:

 

  • Eligibility criteria and exclusion criteria are determined by statute rather than by court rules or procedures or clinical judgment.
  • Termination criteria are determined by statute rather than by court rules or procedures. Judges are disabled from determining, based upon their ongoing experiences with an offender, whether a different disposition would be more likely to improve outcomes or protect public safety.
  • Adversarial hearings are required in many instances, including for offenders who fail to enter treatment in the first instance. Although NORA pays lip service to collaborative justice, it requires numerous and unnecessary adversarial hearings that can only weaken collaborative efforts and create an adversarial environment hostile to effective rehabilitation. 
  • Drug Courts are required to take the most incorrigible offenders, including those convicted of 5 or more offenses (not necessarily drug offenses) in the previous 30 months, excluding violent and serious felonies.  In essence, Drug Courts become the repository for untreatable, and not necessarily addicted, offenders.
  • Jail sanctions are not available in Track I and can only be imposed for non-drug-related violations in Track II.
  • There continue to be no dedicated funds for urine testing.
  • Urine results may only be used as a "treatment tool" to alter treatment conditions and not as the basis for a violation or entry of judgment.  This applies equally to non-addicted individuals who abuse substances intentionally and without compulsion.
  • Sanctions may not be imposed if optimal treatment services are not immediately available for the offender.
  • Jail sanctions may not be imposed if they would interfere with a medication regimen or if drugs are available within the jails (these exceptions are likely to be triggered frequently).

NORA is Inconsistent with Scientific Research on Evidence-Based Dispositions.

NORA incorporates a "stepped sentencing" model in which drug-possession offenders must fail multiple times in low-intensity dispositions before becoming eligible for more intensive dispositions, including Drug Courts.  Research reveals that each treatment failure increases the probability of failure in future regimens, especially when essentially the same disposition is rendered multiple times.  The correct disposition should be provided as soon as possible after arrest and certainly not after multiple failures spanning several years have occurred.  One of the most serious problems with Proposition 36 is that it has prevented judges from interceding effectively with offenders until they have had multiple violations and spiraled far downward in their addictions.  NORA will exacerbate this problem several-fold.

In addition, NORA bases eligibility determinations exclusively on offenders' official criminal records and ignores their profiles of criminogenic risks and needs.  Research is clear that Drug Courts exert the greatest effects for high-risk and high-needs offenders characterized by more serious addictions, prior treatment failures, and antisocial orientations.  High-risk/high-needs individuals generally do not perform well in low-intensity programs, such as diversion or probation, and it is unwise policy to require such poorly matched dispositions to be implemented numerous times.   Every high-risk/high-need offender has a first arrest and the appropriate disposition should be provided as soon as possible, not dictated by an inflexible statute aimed at reducing accountability and restraining judicial discretion.  

California's Little Hoover Commission (an independent legislative oversight committee created by statute) has explicitly called for sentencing reforms in California to focus on the criminogenic risks and needs of drug offenders.  NORA ignores these recommendations and erects steadfast barriers against matching high-risk drug offenders to appropriate supervision.

NORA Weakens and Reduces the Independence of Drug Courts in California.

NORA requires all Drug Courts working with Track III offenders to be governed by this statute and places primary administrative oversight for the programs under ADP. §32(c).  ADP and the Judicial Council are further put under the direction of a newly created 23-member Oversight Commission comprised primarily of treatment personnel, defense counsel and "drug policy advocates" (read: DPA staff) with no more than three judges or law enforcement personnel as members. §38(a)-(c).   It further abrogates the Substance Abuse Offender Treatment Program, §35(a), which was created in large measure to permit greater influence of ADP and Drug Courts over drug policy in California.  The unmistakable effect of these provisions is to bring Drug Courts under the control of non-judicial personnel and prevent independent decision-making and innovation by Drug Courts.

NORA Places Substantial Burdens on the Court System Without Adequate Resources.

NORA requires repeated due process hearings and status hearings for a greatly expanded population of drug-involved offenders.  Due process hearings are required at each stage in the disposition process and periodic reviews are required for all participants in all three tracks.  In addition, judges are required to explicitly consider a wider range of factors when rendering dispositions, imposing sanctions (especially jail sanctions) and dealing with offenders who fail to enter treatment.  Finally, additional burdens are imposed with regard to the sealing of records and collection of evaluation data.

The new Oversight Commission is responsible for dispensing funds through future regulations and may provide resources for court appearances but not for drug testing.  Only 10% of the total appropriations is directed for Track III although it will be dealing with the most serious offenders. §39(c)(4).  Only 20% of the appropriations for Tracks I and II can be used for all non-treatment costs combined, including court and probation costs. §41(c).  It is highly unlikely that sufficient funds will be appropriated to meet the substantial new mandatory burdens being placed on Drug Courts by this initiative.

 
NORA Makes Negative and Unwarranted Statements About Drug Courts.

Although NORA adopts certain elements of the Drug Court Model, it contains language that reflects negatively on Drug Courts and compares them unfavorably to Proposition 36.  It states, for example, that Drug Courts will be required "for the first time to systematically collect and report data regarding their budgets, expenditures, operations, and treatment outcomes." §3(q) (emphasis added).  Extensive research has been published on Drug Courts both nationally and in California, but this provision suggests Drug Courts have not been well studied or held accountable.  This explicit hostility toward Drug Courts would be officially incorporated into a statute under the section entitled "Findings and Declarations" and could be used to guide future interpretations of statutory intent.

NORA also states (wrongly) that the use of jail sanctions "has never been proved effective." §2(i).  In fact, two experimental studies in the District of Columbia and Hawaii have demonstrated the efficacy of "coerced abstinence" programs, which include jail sanctions, but these studies are ignored and a contradictory statement is made in the statute under Findings and Declarations.

Finally, not surprisingly, NORA lauds the successes of Proposition 36 as a basis for extending its reach even further.  In fact, the research evidence is not favorable toward Proposition 36 and indicates it increased recidivism rates, but NORA incorporates directly contrary findings into law.

PAROLE REFORM

 

  • NORA also substantially overhauls the parole system in California.  Among other provisions, it:
  • Caps the period of parole supervision for nonviolent drug and property offenses (including drug dealing < 1 kilogram) at 6 months, plus an additional 6 months if the parolee refuses substance abuse treatment that was offered.
  • Prevents positive drug tests from serving as the basis for a parole violation or revocation.
  • Prevents parole from being revoked for technical violations or new misdemeanors.
  • Prevents jail sanctions for the first technical violation.
  • Limits jail sanctions to 7 days for all subsequent technical violations.
  • Limits sentences for new misdemeanor convictions to 6 months in county jail.
  • Requires administrative due process hearings with the right to counsel for determinations of technical violations.
  • Creates a new Parole Reform Oversight and Accountability Board comprised of 21 members with a total of only four members being judges and law enforcement officials.

   
 
The Parole Provisions of NORA are not Evidence-Based.

There is no empirical rationale for capping parole supervision at 6 months for drug and property offenders and permitting only limited recourse for unremitting drug abuse, multiple technical violations and new misdemeanors.  These provisions greatly reduce accountability and ignore research findings demonstrating the importance of applying meaningful consequences for offenders who flaunt their treatment obligations, continue to abuse drugs or alcohol, and commit new offenses.  
 
The Parole Provisions of NORA Would Make Reentry Drug Courts Virtually Unworkable.

The unquestionable effect of these reforms would be to make Reentry Drug Courts unworkable in California.  The brief period of supervision is grossly insufficient to achieve meaningful treatment or rehabilitative gains, there would be relatively little recourse for judges to hold parolees accountable for using drugs, failing to go to treatment and committing new nuisance offenses, and the judiciary and parole board's actions would be curtailed by a large and heterogeneous Oversight Board comprised predominantly of non-law enforcement officials.  


  NADCP's POSITION SUMMARY


Some aspects of the NORA initiative are consistent with NADCP's mission of extending treatment in lieu of incarceration for a large proportion of nonviolent drug-involved offenders and endorsing the use of evidence-based treatments, including psychiatric medications and anti-addiction medications.  

 

However, many of the core provisions of NORA:

 

  • Are inconsistent with NADCP's core philosophy embodied in the Ten Key Components of combining treatment with accountability;
  • Ignore research evidence on effective dispositions for drug offenders;
  • Threaten the survival and proven success of California's Drug Courts, and Drug Courts across the nation;
  • Extend DPA's influence at the expense of public safety, proven judicial interventions, and DPA's political and philosophical adversaries;
  • Endorse treatments and practices associated with the harm reduction and legalization movements that are unproven and objectionable.

NADCP concludes that the provisions of NORA are inconsistent with safe and effective drug policy.  Therefore NADCP is committed to assist justice professionals, public officials and the public at large to accurately understand the true content and intent, as well as the likely effects of the initiative.  

 

APPENDIX
 
Synopsis of Sentencing Provisions of NORA


  ________________________________________________________

Track I:  Treatment Diversion with Deferred Entry of Judgment.
Eligibility Criteria:          - First two nonviolent drug-possession offenses.
Exclusion Criteria:      - Prior conviction for a violent felony or serious enumerated felony.
                                    - Prior conviction for any other felony within the past 5 years.
                                    - Concurrent charge other than a nonviolent drug-possession offense
                                      (admission is discretionary).
 
Model:                         - Pre-trial diversion, with dismissal of charges upon completion.
                                    - Records sealed at entry, and expunged upon completion.
                                    - 6 to 18 months of treatment.
                                    - Periodic review hearings.
                                    - Graduated sanctions and incentives, not including jail sanctions.
Consequences of          
Termination:               - Transfer to Track II
 
 
Track II:  Treatment Diversion After Conviction (≈ Proposition 36 Model).
Eligibility Criteria:          - Subsequent four nonviolent drug-possession offenses or drug-

                                      related violations of probation.
Exclusion Criteria:         - Prior conviction for a violent felony or serious enumerated felony

                                      within the past 5 years.
                                    - Prior conviction for a violent misdemeanor.
                                    - Concurrent conviction for non-drug-related misdemeanor or other

                                       felony (admission is discretionary).
                                    - Five or more convictions for any other offenses in past 30 months.

                                       (mandatory placement into Track III).
 
Model:                         - Records sealed at entry, and charges dismissed and record expunged

                                       upon completion.
                                    - 12 to 24 months of treatment, plus up to 6 months of aftercare.
                                    - Dedicated court calendar with collaborative court model

                                       (≈ Prop. 36 Court).
                                    - Graduated sanctions and incentives.
                                    - Jail sanctions up to 10 days for non-drug-related violations only.
Consequences of          
Termination:               - Transfer to Track III or jail sentence up to 1 year.
 
 
 
Track III:  (≈ Drug Court Model).
Eligibility Criteria:          - Subsequent nonviolent drug-possession offenses

                                      (admission is discretionary).
                                    - Any nonviolent offense if the defendant has a substance abuse

                                       problem (admission is discretionary).
                                    - Ineligible for Track II due to 5 or more convictions for nonviolent

                                      and non-serious offenses in the past 30 months (admission is

                                      mandatory).
 
Exclusion Criteria:         - Prior conviction for a violent felony or serious enumerated felony

                                       (admission is discretionary).
 
Model:                         - Probation sentence.
                                    - 18 to 24 months of treatment.
                                    - Dedicated court calendar with collaborative court model.
                                    - Graduated sanctions and incentives.
                                    - Jail sanctions up to 10 days.
                       
Consequences of          
Termination:                  - Jail sentence up to 1 year