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Catch and Release 

Proposition 47 is keeping addicts out of jail, but will it help them into treatment?

click to enlarge prop-47-mielke.jpg

Illustration by Joel Mielke

It's the morning of Dec. 2, 2014 and the Humboldt County Board of Supervisors is having one of its dry discussions about how to weigh in on pending state and federal legislation until First District Supervisor Rex Bohn veers off script to lament California voters' recent passage of Proposition 47. Having taken effect the day after the election, Bohn says it's already resulted in a 35-percent drop in the Humboldt County jail's population, putting dozens of low-level offenders back onto local streets. The public would be facing a "tsunami of desperation," Bohn says, if Eureka and county voters hadn't also passed tax measures aimed at bolstering police funding.

"It is, basically, a crap storm out there that these guys are facing," Bohn says. "I think we're going to be sitting here a year from now going, 'Jesus, what happened?' And it's going to be terrible."

Fourth District Supervisor Virginia Bass and Second District Supervisor Estelle Fennell quickly chime in, warning that the initiative will be rife with unintended consequences and contribute to a sense of lawlessness. Bass notes that she's recently spoken with three people who had rocks thrown at their cars. "If we thought it was a revolving door before [at the jail], it's only going to be worse," she says. The supervisors also lament the initiative's euphemistic title, "The Safe Neighborhoods and Schools Act," saying most folks probably didn't understand what they were voting for.

But if you ask proponents of Proposition 47 — which passed with 60 percent of the vote and reclassifies low-level drug and theft offenses as misdemeanors — drug addicts' migration out of the Humboldt County jail was very much intended. Former Humboldt County District Attorney Paul Gallegos made headlines in the lead up to Election Day as one of only three sitting California DAs to publicly support the initiative. The reason, he explains, is fairly simple: California pours lots and lots of money into prosecuting people for their addictions and easing community impacts of those addictions — things like petty theft and possession of stolen property. Proposition 47 promises to take some of that money and invest it into treatment, education and intervention, while largely taking addiction out of the criminal justice discussion. "It's a way to redirect finances back into the community that we're currently, literally, wasting," Gallegos says. "I can't stress that enough. We're wasting this money, throwing it away, and in the process we're throwing people away too."

Coupled with prison realignment — a policy enacted in 2011 that shifted the responsibility for custody, treatment and supervision of certain low-level offenders back to counties — Proposition 47 comes as a wave of a sea change in the state's philosophy on crime and punishment.

At its heart, Proposition 47 is a sentencing reform initiative, taking seven offenses that previously could be prosecuted as either felonies or misdemeanors, depending on a prosecutor's discretion, and making them strictly misdemeanors. Specifically, the initiative specifies that drug possession is now a misdemeanor and that petty theft, check fraud, forgery, shoplifting and possession of stolen property resulting in losses of less than $950 are similarly only prosecutable as misdemeanors.

The change in state sentencing law under the proposition is also retroactive, meaning folks facing felony charges for those types of offenses would see them reduced to misdemeanors and, similarly, people already convicted of such offenses can petition the court to be resentenced. An analysis by the California Legislative Analyst's Office estimated the proposition will result in about 40,000 fewer incarcerations in state prisons and county jails, saving hundreds of millions of dollars a year. The proposition says that "any state savings attributable to the measure" will be deposited into a special fund beginning in August 2016 and will be dispersed as follows: 65 percent for new mental health, drug treatment and diversion programs; 25 percent for new programs designed to improve outcomes in public schools by reducing truancy and supporting at-risk students; and 10 percent to provide enhanced services to the victims of violent crime.

On its surface, the idea is pretty straightforward: Take the more than $47,000 the state spends yearly imprisoning each drug offender and spend that money elsewhere, namely on programs and treatment options aimed at breaking the cycle of addiction. But the wording of the funding aspect of Proposition 47 is ambiguous, and it's hard to forecast what it will mean for Humboldt County. Nancy Starck, a legislative analyst with the county Department of Health and Human Services, says the 65 percent earmarked for mental health and drug treatment programs will likely be doled out in the form of competitive grants to public agencies, meaning there's no set formula that will determine what's set aside for Humboldt, or any other county. It's also unclear exactly how the state will interpret "savings attributable to the measure." Is that simply money saved by releasing state inmates from custody because their charges were reduced? Does it include savings in the parole departments? How about the savings from the decrease in felony prosecutions and appeals?

"We'll really have to wait and see how the details are going to work out," Starck says.

No one in Humboldt seems particularly optimistic the proposition will result in a windfall of revenue for local programs and services. That's a big rub for many, especially seeing as any potential funding streams won't be coming open until late next year and, in the meantime, low-level offenders are being released from custody daily.

"The biggest downfall of this initiative is that it doesn't immediately fund the services that these people need," says county Probation Chief Bill Damiano, adding that government-subsidized slots in local alcohol and drug treatment programs are already full and offenders with the ability to pay for their own treatment are "rare."

Even if everyone could bear the cost of treatment, Humboldt County only has about 60 spaces in residential treatment and detox programs, but has hundreds of Proposition 47-eligible cases. Prior to the passage of the initiative, Sheriff Mike Downey says, the local jail population hovered between 375 and 385 inmates, just a hair below its maximum capacity of 420. In the two months since, Downey says he's watched the average daily population drop to between 260 and 270 — a decrease of more than a hundred inmates on the average day. "So where are those people who used to be here?" Downey asks. "I'm fearful they may be out on the streets committing more crime."

It's important to remember Proposition 47 didn't arise out of a vacuum. It wasn't long ago that California's prison population was inching north of 170,000 people, prompting a federal judge to order the state to reduce it. And, it was even more recently that prison realignment — a direct result of that judge's order — shifted that incarceration burden, causing Humboldt's and other county jails to bulge at the seams. In Humboldt, the overcrowding problem became so pronounced that officials started looking for state funding to expand the jail. Since 2011, the Humboldt County jail has operated at or near capacity, necessitating uncomfortable decisions about who would be held and who would be released.

To make these choices, jail staff relied on a matrix that aimed to keep the highest risk folks in custody. It led to some questionable outcomes, like in June of last year, when the Eureka Police Department booked 27-year-old Alfonso Yanez-Espana after reportedly finding him in possession of 2.2 pounds of methamphetamine and $35,000 in cash. He was released hours after booking due to overcrowding.

Arcata Police Chief Tom Chapman remains wary of Proposition 47's effects, but says one positive outcome is that folks who need to be kept in custody are being booked and held because there's plenty of room. "It seems like that is happening now," Chapman says.

Chapman has plenty of company among his law enforcement peers in skepticism about what's been dubbed the "get-out-of-prison-proposition." In addition to the general premise of reducing punishments for whole categories of crime, which is known to make cops a bit uneasy, there were specific aspects of the proposition that some found hard to swallow.

As an example, Eureka Police Chief Andy Mills points to the fact that Proposition 47 reduced possession of rohypnol — commonly known as the date-rape drug — to a misdemeanor offense. "I think that's an opportunity for some people to have an excuse to rape women," he says. "Anything you do to lessen the penalties associated with (sexual assault or rape) is wrong." Downey points to a different provision: "It's no longer a felony to steal a firearm, and I think people should be concerned about that."

But the overriding concern is a perception that the proposition has stripped consequences from criminal behavior. Both Mills and Downey say their officers are currently citing and releasing people for offenses that just nine weeks ago were felonies. Chapman, on the other hand, says he's still instructing his officers to arrest people they suspect of committing any of the seven offenses newly classified as misdemeanors. The reason, he says, is he feels there has to be some immediate consequence to the conduct. "That's the stance I've taken: I'm not going to take your bag of heroin and let you walk [with a promise to appear in court]," he says. "It's still a bookable offense and, philosophically, I still think that if you commit a criminal offense you get booked into jail."

These concerns don't mean Chapman, Mills and Downey don't see potential in some aspects of Proposition 47. Mills says jail and prison overcrowding is endemic, quipping that we, as a society, built these facilities to house people who scare us but filled them with people who annoy us. Mills says he'd be in favor of a system that provided a viable alternative to simply arresting and jailing people for their addictions. Downey says he feels Proposition 47's aim to fund programs and treatment for low-level offenders and drug abusers is a good one. But all say taking steps to decriminalize drug possession and theft without putting programs in place to prevent them is problematic.

As an example, Chapman points to alcohol. "We're arresting the same guys for public intoxication over and over again, and there's nothing there for them," he says. "They need to go to a facility. They don't need to go to jail, but that's what we have."

Humboldt County Public Defender Kevin Robinson says he supported Proposition 47 because he's watched the current system founder. "We're using jail and prosecutions to treat what are, in essence, medical conditions," he says. "I think that taking — to the extent you possibly can — addiction and aspects of addiction out of the criminal justice system is a good thing. If we can create treatment options that aren't associated with arresting people and keeping people in prison, that's a good thing."

The key may be creating treatment options, because they don't seem to exist now, at least not with the scope and reach necessary. There are perhaps few people in Humboldt County who better understand the nexus of substance abuse, mental illness and crime than Damiano, who, in his role as probation chief supervises some 1,500 offenders. Damiano sees Proposition 47 as a tweak in a system that was in desperate need of change. But he also sees problems.

Damiano feels the current system has been successful in nudging some folks into treatment and compliance because of the potential consequences associated with a felony conviction. Turning those felonies into misdemeanors leaves his department with one less tool, he says. The county's drug court program allows low-level felony drug offenders to undergo a rigorous course of treatment, counseling and court appearances, the successful completion of which results in a dropped charge. But when Proposition 47 went into effect, Damiano says, some offenders celebrated by walking out of the program as soon as their attorneys were able to get their charges reduced. Others, Damiano says, were "dismayed and concerned." They didn't want to leave the program and feared a reduction in their charges would force them to, he explains. They'd entered the program reluctantly, to avoid incarceration, Damiano says, but had found success.

Proposition 47, Damiano says, will change the face of the local drug court program, which is only open to people facing felony charges. With simple possession now a misdemeanor, those folks will be ineligible. Damiano says it's not like officials will have a problem filling out the program — he estimates more than 80 percent of his 1,500 cases are drug related, saying, "we have enough felons in our county to populate our program with the highest risk people" — but it will likely be filled with more serious criminals, taking one more option off the table for the low-level drug possession offender who can't pay out of pocket for his or her own treatment.

Surveying the local landscape of drug and alcohol addiction recovery services, Damiano says this is a huge problem: There simply aren't enough government-funded placements available. "Government subsidized treatment is important — it's critical," he says. It's simply unreasonable, he says, to expect an addict to hold down a job and pay for his or her own treatment. After all, he says, he or she might not even have a home.

When it comes to government-funded treatment, options are pretty slim. Damiano says he has funds and services he can provide through California's prison realignment program, but those go to "high-end" users — his term for the more criminally sophisticated folks who a few years ago would have been under state supervision, either in prison or on parole. When it comes to the lower-level offenders — the run-of-the-mill addicts most likely to be impacted by Proposition 47 — Damiano says there are only a handful of local placements paid for by the state through the county Department of Health and Human Services. According to the department, at any given time there are only about a dozen funded placements in residential treatment and detox facilities. Those are in high demand.

"What happens when you put a drug addict on a waiting list?" he asks, explaining that for most addicts the motivation to clean up can be fleeting. "We should be able to provide them treatment on demand. That would be ideal."

But treatment — and specifically more publicly funded placements — is only part of the answer. Damiano says that the communities he looks to as successful models all have unique public-private partnerships, with substance abuse and mental health groups working closely with government agencies to provide case management, counseling, housing placements and advocacy. This is a complex web of services, with agencies, organizations and the private sector working to hand off clients from one to the next in an effort to make sure people don't fall through the cracks. Looking at Humboldt, Damiano says the infrastructure simply isn't there.

"I would invite them if these groups even existed within Humboldt County," he says. "But we have the unfortunate curse of being a small and poor county that's quite geographically spread out."

So what of this "tsunami of desperation" that's hitting Humboldt by way of the jail's exit door? Is it real? Are low-level criminals running amok, emboldened by the threat of diminished consequences, stealing and breaking into cars to feed their growing addictions? The answer seems to be that it's too soon to tell.

Mills says Eureka has certainly seen a spike in all types of crime in the last couple of months, but that he can't tie the causation back to Proposition 47. After all, historic trends show that Humboldt — and most places — see crime spikes in the months leading up to the holidays and Mills says he's not hearing any suspects telling officers that they decided to shoplift or shoot up because it's only a misdemeanor now. Chapman similarly says it's too early to discern what impact Proposition 47 has had on crime trends in Arcata. Downey also stops short of saying Proposition 47 has resulted in more crime, but says it's certainly a concern he's hearing from deputies. On the flip side, while he's concerned about what his deputies might be facing in the streets, Downey says he's saving money running the jail, as fewer inmates mean less laundry and less food. At some point, he says, he might be able to shut down a dorm and cut staffing.

Over at the public defender's office, Robinson says he hasn't seen any spike in quality-of-life type offenses since Proposition 47 went into effect. What he has seen, though, are as many as 400 cases in which he's filed petitions to have felonies reduced or resentenced as misdemeanors. And that, he says, is a good thing. It will reduce barriers to employment and education for offenders who are trying to reclaim their lives.

On his last day in office as Humboldt County's district attorney, Gallegos strikes a passionate tone while discussing Proposition 47 over the phone. During his 12-year tenure, he's overseen the prosecution of thousands of theft and drug cases, but now he's using terms like "harm reduction," "health care model," "quality control," "illness" and "symptom." The previous incarnation of California's war on drugs was a broken model, he says.

"We have these people that have an addiction, so we incarcerate them — we send them away, deprive them and make them better criminals," he says. "So, they're not working, not contributing to the tax base. We spend money on them. They come out more unemployable, so we spend more money on them. They still engage in creating offspring, and their kids are then raised in a culture of social dependency. ... We've created this continuum of dependency, criminality and marginalization. That's the wrong: We've created this semi-permanent class of people."

The people of California weren't bamboozled by Proposition 47's title, Gallegos says, they were responding to years of failed policy, saying it's time for communities to find a different way to address the issue. "They want safe streets and safe communities, but they're looking for a different way to do it," he says. "They want to reinvest in our communities and reinvest in the individuals in them."

But, by definition, reinvestment requires funding. Robinson says Proposition 47 will ultimately be judged on whether the savings on incarceration, prosecution and enforcement materialize and are rechanneled into treatment programs. "The finances are going to drive the conclusions," he says.

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