California Proposition 36 (PROP 36), otherwise known as the Substance Abuse and Crime Prevention Act of 2000, is a statue that was implemented to keep convicts of non-violent drug possession from being jailed. The Los Angeles Criminal Defense Attorney highlights how this law came to pass, its objectives, and how our defense attorneys can help you to enroll in this program if you are arrested on drug and alcohol charges.

Overview of Proposition 36

The vote was cast on November 7, 2000, receiving overwhelming support. Proposition 36 came into effect on July 1, 2001, and the government allocated an initial budget of $120 million per year to facilitate drug treatment efforts throughout five years (2001 -2005). PROP 36 was codified in sections 1210 and 3063.1 of the California Penal Code as well as Division 10.8 of the California Health and Safety Code.

The overwhelming support for Proposition 36 came because it proposed that convicts of non-violent drug offenses should be given probationary sentencing and mandatory community drug treatment program. This initiative was a remarkable departure from the longstanding approach of housing addicts in the custody of state or federal prisons which did not act in their best interest. The programs they choose to attend must be licensed and certified for this effort to count towards their probationary sentencing. Defendants risk having their probation revoked if they don't complete treatment. Such an outcome would necessitate another hearing. In this case, the judge is likely to issue additional sentencing which may or may not include sentencing.

PROP 36 was not only geared towards alleviating congestion in California jails but also to demonstrate compassion for people battling dependencies of one drug or another. The criminal justice system was now leaning towards rehabilitating non-violent offenders rather than throwing them in jail that would disrupt their lives and that of their loved ones. To stress the latter point, dependants of incarcerated parents are susceptible to all manner of problems ranging from antisocial behavior to emotional, physical, and financial difficulties. Moreover, their education suffers which in turn diminishes their chances of upward mobility upon reaching adulthood.

Offenders facing drug-related charges for the first or second time are required to enroll in substance abuse treatment for 12 months. The judge can extend this duration by two or six months if deemed necessary. Parolees who commit drug offenses during their parole are also required to attend court-mandated drug rehabilitation programs. These treatment programs are different from those run by prison services, and they serve the following functions:

  • Routine testing and promote staying clean

  • Provide drug education

  • Outpatient and inpatient treatment

  • Detoxification and narcotic replacement services

  • Provide after treatment services

The National Institute of Justice refers to family members of incarcerated people as the hidden victims of the criminal justice system. While direct victims of crime are accorded some level of support in the form of restitution and other methods, these hidden victims are often left to fend for themselves. Depending on household circumstances, some children wind up in the foster care system, drop out of school or perform dismally, or run into legal problems.

The War on Drugs in California

Just like the rest of America, California has been grappling with drug-related crimes for decades, and to this end, the state continually invests in a robust workforce to combat these crimes. The war on drugs covers three critical fronts: possession, manufacture, cultivation, and distribution of illicit substances like heroin, cocaine, MDMA, and other club drugs. Abuse of prescription drugs is also prevalent, and individuals can obtain them by doctor shopping, stealing from hospitals and pharmacies, or ordering them off the internet. Being caught with drug paraphernalia is considered a crime too, and this includes stands for equipment, accessories, or products that are modified to make, use, or obscure controlled substances. User-specific paraphernalia includes crack cocaine pipes, hashish bongs, syringes, cocaine freebase kits, etc.

State and federal regulations outlaw consumption or possession of controlled substances and penalties depend on the kind and amount of drugs in question. Law enforcement scrutinizes each case independently, which increases the likelihood of innocent citizens being caught up in these legal troubles. Minors are not spared either but these cases are generally tried in juvenile courts, and the outcomes depend on age, the nature of the offense, and criminal history. Minors who are inducted into a life of criminal acts are more likely to face a sentence in juvenile prison as compared to those on the first strike.

Highly Punitive Criminal Justice System

America's criminal justice is viciously punitive, and these attitudes are attributed to the policies of the 1970s, 1980s, and 1990s that had strong racial undertones. Before this era, the prevailing attitudes towards criminals erred on the side of finding resolutions and learning technical skills that would earn them a living. They were encouraged to seek professional help in addressing psychological problems such as substance abuse which may hamper their re-entry into mainstream society. Nevertheless, things took a downward turn and jailing criminals, including non-violent offenders, was running rampant.

There were approximately 340,000 Americans in jail in the 1970s, and this figure grew substantially to reach an upwards of 2.3 million as of 2017 data. Recent studies derive that 65% of these inmates fit the bill for substance abuse addiction and yet, they are forced to live amongst other offenders. The outlook becomes grimmer when other factors are added to this equation, raising this percentage to 85:

  • People who were under the influence at a time of the act

  • Being plagued by a long history of substance abuse in families

  • Committing crimes (e.g., stealing from a cash register) to get money for drugs

  • People who are arrested for violating drug and alcohol regulations

Looking at the above scenarios, finding encouragement for behavioral change is a pipedream for inmates in American jails and prisons.

Furthermore, inmates who endeavor to get the much-needed help face numerous barriers that undermine their efforts to stay clean. As per the National Center on Addiction and Substance Abuse (CASA), only 11% of people with substance abuse disorders get treatment at state or federal level jails. Peer counseling and occasional support are more readily available, but these efforts are not entirely reliable.

Regrettably, more than 50% of these inmates relapse within four weeks of release as they were ill-equipped to handle their troubles upon re-entry into the outside world. The failure is palpable and hence the formulation of initiatives such as PROP 36. Psychologists have conducted tons of research into the origins of criminal behavior, and these findings are direly needed in formulating sound policies and initiatives – like Proposition 36.

Khalil Gibran Muhammad of the Schomberg Center for Research in Black Culture surmised that the notion of ‘black criminality' is ingrained in the country's DNA. Seeing how badly the system is skewed against the black community, Proposition 36 was a welcome idea that could save non-violent criminals from jail and set down a recovery path. Other efforts to right these wrongs include advocating for sweeping sentencing reform by organizations like the Drug Policy Alliance. Finding alternative solutions to incarceration, overturning the adverse impact of past drug-related criminalization, as well as terminating civil asset forfeiture are plausible solutions.

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Eligibility Criteria for Proposition 36

PROP 36 is turning the fortunes of first and second non-violent offenders of drug and alcohol crimes. PROP 36 is based on the premise that these people would not have committed criminal acts were it not for their penchant for controlled substances. Therefore, the priority becomes helping them get on the mend rather than taking extreme measures that are fundamentally counterproductive. Saddling addicts with criminal records only serves to compound their problems and perhaps this misguided stance has contributed to what some would call a losing war against drugs.

For one to qualify for Proposition 36, they must fulfill the following requirements:

  • Go through an evaluation with an addiction professional.

  • Attend approved treatment facilities and mostly a resident-based program.

  • Carry on follow-up care six months after completing treatment. This additional care can either be mentorship training or vocational programs in your environs.

Additional terms include: attending regular meetings with a case manager; making court appearances as scheduled; shouldering the financial costs for part of the treatment program; staying free of drugs or alcohol, and participating in family or group therapies. PROP 36 promotes delayed entry programs or drug diversion for people serving probation emanating from drug use, those on parole, and those who have never been convicted before for similar offenses.

What Drug Offenses Qualify for PROP 36?

The United States Controlled Substances Act provides a list of chemical substances that are considered harmful to humans and therefore banned. As seen above, the state of California has endured the War on Drugs for many decades as controlled substances like MDMA, cocaine, hallucinogens like PCP flood the streets. Under PROP 36, consuming or peddling these illicit drugs without additional charges is perceived as contraventions of health and safety regulations. This law gives non-violent offenders a chance to redeem themselves without having to serve prison sentences.

In summary, an offender qualifies for PROP 36 under the following circumstances:

  • Being under the influence of unlawful drugs

  • Having outlawed drugs and substances

  • Transporting drugs to sell

Getting caught smoking cannabis or in possession of more than the legalized amount can happen anywhere. You could be walking down the road, heading out to run errands, sitting at a local park, etc. If this is your first or second offense, PROP 36 helps you get into drug treatment rather than being jailed alongside violent criminals, e.g., drug cartels members who have committed murder.

Charges that Don't Fall Under PROP 36

Unfortunately, not all accusations you are facing are covered by Proposition 36, and therefore, it is imperative that you know the difference. As per the California Penal Code, defendants who are currently facing non-drug related felonies or misdemeanors are not eligible for the diversionary PROP 36. As well, defendants who have been jailed in the past five years for violent crimes or other dangerous criminal activity don't qualify. Failure to comply with treatment procedures such as testing positive for drugs thereby getting kicked out of rehab is yet another disqualifying factor. If you had a firearm when committed the said drug-related crime disqualifies you from PROP 36. If you were a recipient of this provision more than once and the court determines that you are indifferent to receiving treatment, this automatically disqualifies you from participating in PROP 36. In these scenarios, California law stipulates you serve a jail sentence of not more than 30 days.

There are more severe circumstances where PROP 36 does not apply, as follows:

  • Being found in the ownership of narcotics with the intent to distribute

  • Trading or transporting narcotics that are not personal use

  • Selling, ferrying or being caught with marijuana

  • Possessing or transporting methamphetamine and other outlawed drugs

  • Being caught with drugs while serving a jail term

Some crimes go beyond possession, consumption, or transportation of illicit substances and these too are not subject to diversionary PROP 36. For instance, growing marijuana for recreational use or commercial purposes, carrying a firearm along with the controlled substances disqualifies you. Falsifying prescriptions to obtain illicit substances also precludes you from PROP 36.

While the crime in question may be covered by this law, the offender may not meet the eligibility criteria. For instance, they have a prior conviction and if you were recently released from prison for not less than five years to the day of recent apprehension. In the eyes of the law, such offenders are considered high risk as they are susceptible to contravening the bill soon after release.

If the defendant or the type of crime is not covered by PROP 36, the judge cannot dismiss the charges so the regular court proceedings will ensue. Since juvenile convictions are not considered criminal offenses, having been slapped with one during the tumultuous teenage years does not disqualify you. Other disqualifying factors comprise of misdemeanor convictions that don't relate to drugs, and they include the following scenarios:

  • Operating or being in ownership of drug paraphernalia (see above examples)

  • Being found in the proximity of drug use, e.g., a crack house

  • Failure to register as a drug offender in California

  • Any actions that mimic consumption or possession offenses

Driving Under Influence of Narcotics

If you get behind the wheel while intoxicated with drugs like marijuana, designer drugs, etc., you will be charged with driving under the Influence of drugs (DUID). Putting other people in harm's way such as the passengers in your vehicle means automatically escalates the crime to a violent one.

For example, you could be pulled over for switching lanes in an erratic manner then officers discover you have been using drugs. Impairment is justifiable cause to search your vehicle, and if they find drugs in the glove compartment or other parts of the car, this constitutes distribution. As explained above, usage and transportation of controlled substances disqualify you from PROP 36 as they jeopardize public safety and facilitate supply correspondingly. In this scenario, the misdemeanor (changing lanes erratically) is not covered by this law, and so the chances are that you end up in jail.

How Do I Qualify for PROP 36?

Before being considered for participation in this law, a hearing is necessary to evaluate the defendant's eligibility and see if attending treatment will yield any benefits. If the drug court case doesn't go well, you will be mandated to enroll in treatment instead of going to prison. For PROP 36 to be affected, you must plead guilty to influence charge (like the above example) or agree to a nonviolent drug possession charge. Alternatively, you will plead no contest to the charges being leveled against you by the arresting officer, and you must be found guilty by a jury, judge, or court trial.

Parolees who commit nonviolent drug crimes while serving parole are allowed to enter a treatment program under this law. Subsequently, the terms of probation will be modified to include therapy with family in attendance, community service, and vocational training. Other plausible words are being subjected to random drug testing and finding employment. Should you violate any of these conditions, California law will stipulate a reasonable prison sentence.

What Happens After Violating PROP 36?

A participant who is not fulfilling all treatment requirements or is not benefiting from treatment could have their parole revoked, and the judge will issue a suitable jail term. Before arriving at this conclusion, the court will evaluate how severe (or not) the violations are and if they are undermining the participant's efforts to get well. As well, a revocation can happen if the participant declines treatment – for instance not attending group therapy – or they explicitly say they don't want treatment.

Upon the court's discretion, the defendant will serve a 30-day jail sentence and probation will be altered accordingly to encourage total compliance with treatment. If probation is no longer an option, there will be a hearing where the prosecuting attorney will prove the defendant poses an imminent danger to society. The judge will then issue sentencing on underlying charges.

Reinstating PROP 36

Once the defendant has utterly contravened this law, the court raises the standards to encourage total compliance next round. Violations about drug use usually mandate inpatient treatment or attending a detox facility in jail. If the defendant is found guilty of revoking probation, they will serve a prison or county jail sentence of 120 days. At this point, they are no longer eligible for PROP 36.

A third violation of probation will lead to incarceration for a longer duration unless the defense counsel can prove the defendant poses no danger to society and they can still be rehabilitated.

Changing the "Three Strikes Law"

In November 2012, California went to the ballot again with Proposition 36 this time to challenge the "Three Strikes Law" that came to be in 1994. This law is aimed at punishing routine offenders by escalating sentencing for crimes that are categorized as "strikes." Under this law, a "third-strike" crime attracts a 25-year prison sentence or life imprisonment in the worst case scenarios. Amending this law sought to add a clause that defined what constituted of a "third strike" criminal act. The state determined that for a crime to be categorized as such, it must either be severe or violent felonies. This clause, however, does not apply to convicted murders, rapists, or child molesters.

Proposition 36 also included a provision in California's Penal Code that launched a review process for all convicts who were serving life sentences for non-violent offenses under the Third-strike law. Subsequently, the courts could issue shorter sentences or release the prisoner as deemed appropriate. This move was a welcome relief for prisoners who had fallen victim of the exceedingly punitive nature of the US criminal justice system.

What to Do when Faced with Proposition 36

If you are apprehended on the count of Proposition 36, you may not know what options are available for you such as petitioning the court to dismiss the case. This intervention also means removing this criminal record, so it does not interfere with your life, for instance, when fielding job prospects. In most drug offense cases, the courts do not dismiss charges immediately, and this is where a great defense attorney comes in to ensure that this criminal record is scrapped.

Completing the PROP 36 Program

Fulfilling the conditions of rehabilitation essentially means you have attended treatment for the maximum stipulated timeframe. Nonetheless, you are still required to participate in continued treatment like substance replacement therapy to prevent you from falling back into old habits. Your defense counsel will request dismissal of charges necessitating the court to find proof that you are cured. If the court honors this request, you are free from penalties and liabilities that accompanied the accusations.

All rights are restored upon release from a treatment program or detention facility apart from the right to carry a concealed firearm. You will have no criminal record hampering your life such as keeping you from landing employment. However, you are required by law to reveal past criminal record when facing legal inquiries or questioning by law enforcement officers.