Proposition 36: Ignoring Amenability and Avoiding Accountability

32 Pages·2016·0.32 MB·English

by  Mehgan Porter

Brigham Young University Journal of Public Law
Volume 21|Issue 2 Article 10
5-1-2007
Proposition 36: Ignoring Amenability and Avoiding
Accountability
Mehgan Porter
Follow this and additional works at:https://digitalcommons.law.byu.edu/jpl
Part of theCriminal Law Commons,Criminology and Criminal Justice Commons, and theFood
and Drug Law Commons
Recommended Citation
Mehgan Porter,Proposition 36: Ignoring Amenability and Avoiding Accountability, 21 BYU J. Pub.L. 531 (2007).
Available at: https://digitalcommons.law.byu.edu/jpl/vol21/iss2/10
This Comment is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Brigham Young
University Journal of Public Law by an authorized editor of BYU Law Digital Commons. For more information, please contact
[email protected].
Proposition 36: Ignoring Amenability and Avoiding
Accountability

I. INTRODUCTION

Since 1991 and the implementation of California’s first drug court,
the state has continued to expand on the idea of rehabilitation for drug-
offenders.1 Over the past ten years California has produced some of the
nation’s most progressive drug laws.2 One of the most revolutionary
reforms was implemented by Proposition 36—a “treatment instead of
incarceration” initiative. This new attempt to rehabilitate minor drug
offenders appeared promising at first, but it soon became apparent that
the system was flawed. While the statutory language provided drug
offenders with needed opportunities to slip-up in their recoveries, it also
had language indicating that drug offenders needed to show they were
actually attempting to reform their lives. This clause for amenability has
since been all but ignored by the criminal justice system and has led to a
program that lacks accountability on the part of participants. It is no
wonder then that drug offenders are ultimately unmotivated by this
current law to complete drug treatment before it is too late and their
eligibility for such privileges is revoked. Until changes are made—either
to the language of the law or judicial implementation of the program—
Proposition 36 will continue to function at a sub-par level.
In November 2000, California voters passed an initiative to provide
offenders charged with minor drug crimes the option of participating in
drug treatment programs as part of probation, rather than going to
prison.3 The initiative, Proposition 36, was titled the “Substance Abuse
and Crime Prevention Act of 2000,”4 and passed by a decisive 61% of

1. Arnold Schwarzenegger, Drug Court Month Proclamation, May 1, 2004,
http://www.adp.ca.gov/DrugCourts/pdf/DrugCourtsProclamation.pdf (“Drug courts integrate
criminal justice, treatment services, educational opportunities and community partnerships in a
collaborative effort to tackle drug and alcohol dependence. Drug courts seek to break the devastating
cycle of addiction through judicial supervision, substance abuse treatment, and sanctions and
incentives.”).
2. Drug Policy Alliance, Reform in California, http://www.drugpolicy.org/statebystate/
california/ (last visited Mar. 7, 2007).
3. Prop36.org, About Prop 36, http://www.prop36.org/about.html (last visited Dec. 12,
2006).
4. California Campaign for New Drug Policies, Proposition 36: The Substance Abuse and
Crime Prevention Act, http://www.drugreform.org/prop36/fulltext.tpl (last visited Mar. 19, 2007).
531
532 BYU JOURNAL OF PUBLIC LAW [Volume 21
California voters.5
Almost immediately California courts found themselves dealing with
how to interpret the statutory language of the new voter initiative—
examining such phrases as “washout period,”6 “amenability,”7 and “non
violent drug possession offenses.”8 The essence of Proposition 36
seemed clear enough in theory: help rehabilitate drug users and save the
taxpayers money. But in all practicality, the implementation and
interpretation of the Act left many Californians wondering if Proposition
36 really was the magic bullet voters had hoped it would be.
Part II of this comment addresses the history and purpose of
Proposition 36. It also summarizes what function the Act fulfills, its
incorporation into the California Penal Code and the Health and Safety
Code, and the changes the Act affected on probation of those convicted
of simple drug offenses.
Part III of this comment addresses the Act’s discussion of a
defendant’s amenability to Proposition 36 treatment. It delves more
specifically into the language of the Act and also discusses the California
appellate courts’ analysis of Proposition 36. It suggests that although the
statutory language of the Act is interpreted to apply to a broad range of
people, the requirements for finding a particular “drug-related” violation
are construed more strictly than might be imagined at first glance.
Conversely, once a defendant is placed on Proposition 36 probation, all
discussion of “amenability” appears to go out the window, and
California’s tough-love “3 strikes” approach to repeat offenders is all but
erased.
Part IV examines recently suggested amendments to Proposition 36,
specifically in the proposal embodied in Senate Bill 1137. It also
discusses state sentiment toward Proposition 36’s effectiveness and
highlights yearly UCLA reports evaluating the Act’s success in treating
drug offenders. Lastly, it looks at the potential implications this law and
related legislation may have on other states.
Part V concludes that the voter intent of Proposition 36, while
theoretically sound, is in fact construed broadly enough that the Act does
little more than stall the incarceration of minor9 drug offenders. Even the
appellate courts’ attempts to “knock sense” into violators by construing
“drug-related” offenses as narrowly as statutorily permissible does little

5. Prop36.org, supra note 3.
6. Moore v. Super. Ct., 117 Cal. App. 4th 401, 407 (Cal. Ct. App. 2004).
7. People v. Williams, 106 Cal. App. 4th 694, 702 (Cal. Ct. App. 2003).
8. People v. Goldberg, 105 Cal. App. 4th 1202, 1207 (Cal. Ct.App. 2003).
9. The use of the word “minor” throughout this paper is meant in context of the type of drug
offense committed⎯not as a reference to the age of the offender.
531] PROPOSITION 36: AVOIDING ACCOUNTABILITY 533
to actually help offenders turn their lives around. The result is that
despite multiple chances, many offenders are eventually taken off
probation and put in prison anyway.

II. BACKGROUND

A. History and Purpose of Proposition 36

In December 1972, the California legislature codified a program in
sections 1000–1000.4 of the California Penal Code that, in essence, gave
defendants convicted of certain drug offenses the opportunity to
rehabilitate rather than go to jail.10 This “diversion program” allowed
eligible defendants to avoid pleading guilty and instead be diverted and
referred for “education, treatment, or rehabilitation for a period from six
months to two years.”11 Once the defendant had satisfactorily completed
the program the original arrest was deemed not to have occurred.12
Eventually this program was replaced by deferred entry of judgment13
where the defendant, after being charged with certain enumerated drug
offenses, entered a guilty plea, participated in a drug rehabilitation
program, and would then have the charges dismissed upon successful
completion of the program.14 Although participation in the drug

10. People v. Ormiston, 105 Cal. App. 4th 676, 689 (Cal. Ct. App. 2003). The court further
stated:
The purpose of such legislation . . . is two-fold. First, diversion permits the courts to
identify the experimental or tentative user before he becomes deeply involved with drugs,
to show him the error of his ways by prompt exposure to educational and counseling
programs in his own community, and to restore him to productive citizenship without the
lasting stigma of a criminal conviction. Second, reliance on this quick and inexpensive
method of disposition, when appropriate, reduces the clogging of the criminal justice
system by drug abuse prosecutions and thus enables the courts to devote their limited
time and resources to cases requiring full criminal processing.
Id. at 689 (citations omitted).
11. Id. at 688 (quoting People v. Davis, 79 Cal. App 4th 251, 254 (Cal. Ct. App. 2000)).
Further, courts were authorized to divert defendants who were “formally charged with first-time
possession of drugs, have not yet gone to trial, and [were] found to be suitable for treatment and
rehabilitation at the local level.” Id. at 689.
12. Id. at 687 (citing Davis, 79 Cal. App. 4th at 254).
13. Id. (citing Stats. 1996, ch. 1132, § 2).
14. Id. The court further stated:
The provisions for deferred entry of judgment are available if a defendant satisfies the
requirements set forth in section 1000, subdivision (a)(1)–(6). The court then must
determine whether the defendant is suitable for participation pursuant to section 1000.2.
This requires the court to determine whether the defendant would be ‘benefited’ by the
deferred entry of judgment procedure. If found suitable, the defendant must waive the
right to a speedy trial, plead guilty and thereafter participate in a designated program for
at least 18 months, but no longer than three years. If the defendant fails to perform
satisfactorily, the prosecutor, the probation officer, or the court on its own motion may
seek entry of judgment.
534 BYU JOURNAL OF PUBLIC LAW [Volume 21
diversion program served to provide some minor offenders a chance to
treat their problem and keep their record free of criminal charges,15 there
was no legislation requiring courts to assign defendants to diversion
programs. The California legislature enacted the Substance Abuse and
Crime Prevention Act of 2000 (SACPA), or Proposition 36, on July 1,
2001,16 in response to this concern, intending that this piece of legislation
would expand the scheme of treating and rehabilitating first and second
time non-violent drug possession offenders.17

B. The Function of Proposition 36

The purpose of SACPA was to make communities safer by helping
drug offenders move toward recovery instead of steering them toward
overcrowded prisons and to lower taxpayer costs by aiding those
convicted of simple drug possession or drug use in getting treatment for
their addictions rather than wasting money incarcerating them.18 The

Id. (quoting Davis, 79 Cal. App 4th at 255–56 (citations omitted)).
15. Id. at 690–91; see also CAL. PENAL CODE §§ 1000.3, 1000.4(a) (West 2001).
16. Drug Policy Alliance, Prop 36: Effective and Popular with Voters, http://www.
drugpolicy.org/news/06_30_04prop36.cfm (last visited Feb. 10, 2007).
17. Prop36.org supra note 3; see also California Campaign for New Drug Policies, Drug
Courts/Deferred Entry, http://www.drugreform.org/prop36/pdf/drugcourts.pdf (last visited Feb. 10,
2007) (“While this initiative does set up a new process for diversion, it is complementary to the
established Drug Courts and Deferred Entry programs.”); DEPARTMENT OF ALCOHOL AND DRUG
PROGRAMS, SUBSTANCE ABUSE AND CRIME PREVENTION ACT OF 2000 FREQUENTLY ASKED
QUESTIONS, May 21, 2001, http://www.adp.ca.gov/sacpa/pdf/P36_FAQ_Startup.pdf [hereinafter
SACPA, FAQ]. In response to the question of which defendants will be sent to Penal Code 1000
programs and which will be sent to treatment services under SACPA:
Specific criteria are provided in statute to define eligibility for SACPA and for Penal
Code 1000 (PC 1000), a separate diversion program. While the criteria are similar in
some respects, they are not identical. Whether a particular person qualifies for one or the
other depends on several factors. One key difference is that no judgment is entered prior
to entry into the PC 1000 system; entry of judgment is deferred until after it is determined
whether the participant successfully completes the program. Under SACPA, a judgment
of conviction is entered prior to receiving drug treatment services, and the charges and
conviction may be set aside after successful completion of treatment. Determination as to
which system a particular person is eligible for or utilizes will be made in the criminal
justice system.
Id. at 1.
18. 2000 Cal. Legis. Serv. Prop. 36 § 3 “Purpose and Intent” (West) reads:
The People of the State of California hereby declare their purpose and intent in enacting
this act to be as follows:
To divert from incarceration into community-based substance abuse treatment programs
nonviolent defendants, probationers and parolees charged with simple drug possession or
drug use offense;
To halt the wasteful expenditure of hundreds of millions of dollars each year on the
incarceration - - and reincarceration - - of nonviolent drug users who would be better
served by community-based treatment; and
To enhance public safety by reducing drug-related crime and preserving jails and prison
531] PROPOSITION 36: AVOIDING ACCOUNTABILITY 535
authors of the Act declared that nonviolent drug offenders who received
treatment were less likely to abuse drugs and commit future crimes and
were more likely to lead productive, healthier lives.19 As a condition of
probation, Proposition 36 also required that recipients of probation
participate in and complete a drug treatment program.20 The court could
optionally order them to participate in vocational training, family
counseling, literacy training, or community service.21 The authors of the
Act tried, through Proposition 36, to follow the lead of similar legislation
in Arizona.22 The idea was that safety and health could be promoted and
taxpayer dollars could be saved23 with legislation that enhanced
probation for those persons who had a real possibility of being deterred
early from more serious criminal activities.

cells for serious and violent offenders, and to improve public health by reducing drug
abuse and drug dependence through proven and effective drug treatment strategies.
19. Id. § 2(a).
20. See id.; see also HIGHLIGHTS OF PROPOSITION 36 THE SUBSTANCE ABUSE AND CRIME
PREVENTION ACT, (Feb. 20, 2001), http://www.courtinfo.ca.gov/programs/drugcourts/documents/
highlights.pdf (“Acceptable [drug treatment] programs include one or more of the following:
outpatient treatment, half-way house treatment, narcotic replacement therapy, drug education or
prevention courses, and/or limited inpatient or residential drug treatment.”).
21. Id.
22. ARIZ. REV. STAT. ANN. § 13–901.01, Prop 200, § 3, “Purposes and Intent” (West 1956)
(Among the purposes of Proposition 200 were “to require that non-violent persons convicted of
personal possession or use of drugs successfully undergo court supervised mandatory drug treatment
programs and probation” and “to free up space in our prisons to provide room for violent offenders”)
vacated by State v. Gomez, 127 P.3d 873 (Ariz. 2006), available at http://www.druglibrary.
org/olsen/medical/azprop200.html; see also Robert L. Gottsfield, Prop 200: Arizona’s Answer to the
Nonviolent Drug Offender, ARIZ. ATT’Y, Oct. 2002, at 14, 14.
23. 2000 Cal. Legis. Serv. Prop. 36 § 2 (West). Findings and Declarations (b)–(c) reads:
(b) Community safety and health are promoted, and taxpayer dollars are saved, when
nonviolent persons convicted of drug possession or drug use are provided appropriate
community-based treatment instead of incarceration
(c) In 1996, Arizona voters by a 2-1 margin passed the Drug Medicalization, Prevention,
and Control Act, which diverted nonviolent drug offenders into drug treatment and
education services rather than incarceration. According to a Report Card prepared by the
Arizona Supreme Court, the Arizona law: is “resulting in safer communities and more
substance abusing probationers in recovery,” has already saved the state taxpayers
millions of dollars, and is helping more than 75 percent of program participants to remain
drug free.
536 BYU JOURNAL OF PUBLIC LAW [Volume 21
C. Probation Under the New Act

After California voters approved Proposition 36, portions of it were
incorporated into the California Penal Code under sections 1210, 1210.1,
and 3063.1 and into the Health and Safety Code Division 10.8.24 These
new stipulations on probation effectively allowed minor drug offenders
more opportunities to violate their probation without having to suffer the
consequences of prison time.25 This emphasis on a probationary scheme
that advocated treatment and rehabilitation rather than resorting to
incarceration was a worthy idea and has, in fact, done good for many
drug offenders.26 However, without any real consequences for multiple
drug-related violations, Proposition 36 lacks the ability to hold drug
offenders accountable and leads to a large number of probationers who
never complete treatment.27
Though Proposition 36 may seem a more difficult type of probation
(more conditions and requirements) to endure, the multiple opportunities
for violation without noticeable consequences eases the offender into a
penal system of legal breaks and second and third chances, and as
Californians have discovered: where much is given, little is required (or
expected).

III. STATUTORY LANGUAGE AND COURT INTERPRETATION

A. The Language Itself

The language of Proposition 36 indicated that the purpose of the Act
was to divert into treatment “those persons whose only offenses were
nonviolent drug possession offenses.”28 In fact, the language of
Proposition 36, which was adopted into the California Penal Code,

24. See § 1210 (from Substance Abuse and Crime Prevention Act of 2000 (Proposition 36)
Section 4); § 1210.1 (from Proposition 36 Section 5); § 3063.1 (from Proposition 36 Section 6);
CAL. HEALTH & SAFETY CODE DIV. § 10.8 (West 2001) (from Proposition 36 Section 7).
25. Proposition 36 has been cited as a possible shift in public sentiment against a system that
has a tendency to incarcerate the innocent or impose excessive punishment through the three-strikes
approach to punishment. Michael Vitiello, Punishment and Democracy: A Hard Look at Three
Strikes’ Overblown Promises, 90 CAL. L. REV. 257, 286 (2002) (reviewing FRANKLIN E. ZIMRING ET
AL., PUNISHMENT AND DEMOCRACY: THREE STRIKES AND YOU’RE OUT IN CALIFORNIA (2001)). In
fact, in 2001 there was a bill before the California Legislature (A.B. 1652) that “would build on
Proposition 36 as a way to limit the scope of Three Strikes. It would exempt simple drug possession
charges from third-strike status. The bill’s author, Jackie Goldberg, highlight[ed] the conflicting tone
of the two laws, and emphasize[d] the voters’ sentiment that substance abuse requires treatment, not
incarceration.” Id. (citations omitted).
26. See discussion infra Part IV.A.
27. See infra notes 124-25 and accompanying text.
28. People v. Goldberg, 105 Cal. App. 4th 1202, 1208 (Cal. Ct. App. 2003).
531] PROPOSITION 36: AVOIDING ACCOUNTABILITY 537
required that those convicted of nonviolent drug possession offenses
receive probation.29 Despite presenting clear and straightforward
definitions for the terms “nonviolent drug possession offense”30 and
“misdemeanor not related to the use of drugs,”31 the California courts
soon found themselves facing major statutory language issues, including
a need to define what constitutes a “drug-related condition” of probation
and how to properly determine an individual’s amenability to drug
treatment.

1. Drug-related conditions of probation keep drug-offenders on
Proposition 36

Violating a drug-related condition of probation essentially saves the
defendant from further punishment through incarceration.32 The language
of the Act (and its subsequent incorporation into Penal Code section
1201.1) states that once a defendant has been found eligible to participate
in Proposition 36,33 there is no easy way to revoke probation (and

29. CAL. PENAL CODE § 1210.1(a) (West 2004).
30. § 1210(a) defines “non violent drug possession offense” as:
[T]he unlawful personal use, possession for personal use, or transportation for personal
use of any controlled substance identified in Section 11054, 11055, 11056, 11057 or
11058 of the Health and Safety Code, or the offense of being under the influence of a
controlled substance in violation of Section 11550 of the Health and Safety Code. The
term . . . does not include the possession for sale, production, or manufacturing of any
controlled substance and does not include violations of Section 4573.6 or 4573.8.
Id.
31. See, § 1210(d) (clarifying that the term refers to “a misdemeanor that does not involve (1)
the simple possession or use of drugs or drug paraphernalia, being present where drugs are used, or
failure to register as a drug offender, or (2) any activity similar to those listed in [paragraph] (1)”).
32. A violation of a drug-related condition can include recent drug use, failure to appear at
treatment, failure to appear in court, noncompliance with treatment or failure to report for drug
testing. § 1210.1(f)(3)(A)–(B). Additionally, a defendant can also be found to have violated
probation by: [C]ommitting a nonviolent drug possession offense, or a misdemeanor for simple
possession or use of drugs or drug paraphernalia, being present where drugs are used, or failure to
register as a drug offender, or any activity similar to those listed in subdivision (d) of Section 1210.
Id.
33. There are several provisions which disqualify a defendant from Proposition 36 eligibility.
Section 1210.1(b) reads:
Subdivision (a) shall not apply to any of the following:
(1) Any defendant who previously has been convicted of one or more violent or serious
felonies as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section
1192.7, respectively, unless the nonviolent drug possession offense occurred after a
period of five years in which the defendant remained free of both prison custody and the
commission of an offense that results in a felony conviction other than a nonviolent drug
possession offense, or a misdemeanor conviction involving physical injury or the threat
of physical injury to another person.
(2) Any defendant who, in addition to one or more nonviolent drug possession offenses,
has been convicted in the same proceeding of a misdemeanor not related to the use of
drugs or any felony.
538 BYU JOURNAL OF PUBLIC LAW [Volume 21
potentially impose jail time) unless it is found that the defendant
“commit[ed] an offense that is not a nonviolent drug possession offense”
or that the defendant “violat[ed] a non-drug-related condition of
probation.”34 In such instances the court has the discretion to reinstate a
defendant on probation and allow them to continue participating in drug
treatment.35
When a defendant violates a drug-related condition of probation a
second time, the court must find that in addition to the violation, the
defendant is either a danger to others or is unamenable to drug
treatment.36 It is only when a defendant violates the terms of probation
three or more times that the court may conduct a hearing to possibly
revoke the defendant’s Proposition 36 eligibility. Even in such an
instance of multiple drug violations and reinstatements, the court may
still allow the defendant to continue on probation (and receive drug
treatment) if “the defendant is not a danger to the community and would
benefit from further treatment under subdivision (a)”37 of Penal Code
§ 1210.1.

2. Amenability as a way to enforce probationer accountability

Under the language of the Act, the only way to revoke a defendant’s
participation in Proposition 36 prior to a third or subsequent drug-related
violation is to find the defendant unamenable to treatment. Although the
word “amenability” is not specifically defined in the statute, a dictionary
understanding indicates that a defendant that is amenable is “obedient,

(3) Any defendant who, while armed with a deadly weapon, with the intent to use the
same as a deadly weapon, unlawfully possesses or is under the influence of any
controlled substance identified in Section 11054, 11055, 11056, 11057, or 11058 of the
Health and Safety Code.
(4) Any defendant who refuses drug treatment as a condition of probation.
(5) Any defendant who has two separate convictions for nonviolent drug possession
offenses, has participated in two separate courses of drug treatment pursuant to
subdivision (a), and is found by the court, by clear and convincing evidence, to be
unamenable to any and all forms of available drug treatment, as defined in subdivision
(b) of Section 1210. Notwithstanding any other provision of law, the trial court shall
sentence that defendant to 30 days in jail.
§1210.1(b).
34. § 1210.1(f)(2).
35. Conversely, if a defendant is found to have violated a non-violent drug-related condition
of probation, the court is allowed to revoke probation only if “the alleged probation violation is
proved and the state proves by a preponderance of the evidence that the defendant poses a danger to
the safety of others.” §1210.1(f)(3)(A) (emphasis added). Without a clear argument from the state
that the defendant poses a danger to the safety of others, he or she will be reinstated on Proposition
36. Id.
36. § 1210.1(f)(3)(B).
37. § 1210.1(f)(3)(C).
531] PROPOSITION 36: AVOIDING ACCOUNTABILITY 539
tractable”38 and “responsible to authority.”39 While it may seem
inherently obvious that repeated drug-violations are indicators of a
defendant’s unamenability to drug treatment, the authors of the Act have
deemed it appropriate to add the further clarification that amenability
could be considered separate from probation violations. The California
Penal Code states that in determining whether a defendant is unamenable
to drug treatment, the court may consider, to the extent relevant, whether
the defendant (i) has committed a serious violation of rules at the drug
treatment program, (ii) has repeatedly committed violations of program
rules that inhibit the defendant’s ability to function in the program, or
(iii) has continually refused to participate in the program or asked to be
removed from the program.40
Thus, although the Act does state that an indicator of unamenability
is a defendant’s verbal refusal of treatment, the implication is that
amenability does not turn on a defendant’s words alone. In fact the
implication is that amenability (or lack thereof) is more apparent in a
drug offender’s actions (e.g. violating rules of the program, refusing to
participate, etc.) than in his explicit words (i.e. asking to be removed
from the program) alone.
Being amenable cannot even come into play for a court until at least
the second probation violation hearing.41 It is not until after a defendant
is in treatment subject to Proposition 36 and has already been through at
least one hearing process for drug violations (drugs being the very reason
the defendant was arrested and put on Proposition 36 in the first place)
that a court may then consider whether that defendant has repeatedly
violated rules or continually refused to participate in the program in a
manner that would indicate that the defendant is not amenable.42 The
question is, then, in a practical setting what disqualifies a defendant from
Proposition 36 treatment? While it is true that Penal Code § 1210.1 does
allow the probation department “to move to revoke a probationer who is
‘unamenable’ to treatment even though normally entitled to mandatory
probations,”43 that scenario does not often play out in the California court
system. Indeed, knowing that “it is true that nonviolent drug users don’t
often get the message until after the first, second or third rehab,”44 what
does it take for a court to find that a defendant is only using this new

38. WEBSTER’S II NEW RIVERSIDE DICTIONARY REVISED EDITION 24 (1996).
39. Id.
40. § 1210.1(f)(3)(B).
41. Id.
42. Id.
43. Gottsfield, supra note 22, at 19.
44. Id.