Focus on Proposition 5: The Nonviolent Offender Rehabilitation Act

In a previous post, I briefly presented the three criminal-justice-related propositions on the California ballot. In this post, and two more posts to follow, I’ll expand about each of these, starting today with Proposition 5.

NORA, or the Nonviolent Offender Rehabilitation Act, builds on the ruins of Prop 36, which was passed in 2000. Prop 36 promised drug abuse treatments for offenders charged with simple possession. Since 2000, the plan received praise as well as critique. Some point to a reduction in recidivism, and others highlight that less than half of the offenders complete treatment. Recently, Prop 36 lost close to half its allocated budget through gubernatorial fund cuts (and here‘s what the critics think about the cuts).

NORA aims to propose a modified version of Prop 36, and it might affect drug offenders in a variety of ways. It emphasizes rehabilitation as an answer to the prison overcrowding crisis, and provides mechanisms that exist in a variety of countries, such as drug treatment which is not accompanied by an official conviction. In this post, I’d like to highlight some aspects of Prop 5, some of which have not been emphasized on other web discussions.

As mentioned in an earlier post, “nonviolent drug offenses”, for the purposes of Prop 5, include simple possession of drugs or paraphernalia, as well as being under the influence. Any such scenario that includes trafficking purposes is excluded from this definition.

The drug treatment programs offered by Prop 5 follow a principle of “harm reduction”, and would be personalized to fit the particular offender and his or her circumstances. They could include science-based instruction, outpatient services, residential treatment, medication, mental health, and aftercare.

The proposition offers three tracks of diversion and treatment, which are left to the court’s discretion:
• Track I: treatment diversion with deferred entry of judgment (carrying no criminal conviction)
• Track II: treatment diversion after a conviction, as a probation requirement, including sealing of records after probation
• Track III: treatment diversion after a conviction for possession of controlled substances: other nonviolent offenses: judicial discretion (for people who failed Track II and continue to have a problem). I should point out that “second chances” are a crucial component of drug programs, because it is unrealistic to expect addicts not to “fall off the wagon”.

Placement is established upon clinical evaluation and is quite flexible.

Prop 5 also addresses the meaning of drug treatments in prison. Successful completion of drug programs in prison would provide “good behavior” credits, equivalent to those earned through work, which add up and might lead to one’s early release. Another important and often neglected aspect of Prop 5 is its emphasis on reentry. Under the proposed legislation, contact with the offender is established 90 days before release from prison, in an attempt to create a good support network, workwise and treatmentwise, upon release.

In addition to these, Prop 5 also includes provisions that make it more difficult to return offenders to prison due to technical parole violations. When the violation is a misdemeanor, non-incarceration options are prioritized.

Prop 5 would require a reorganization of the CDCR, adding a Secretary of Rehabilitation and Parole with increased resources devoted to parole, probation, and rehabilitative programs in prison. There are also a variety of fact-based assessment mechanisms, built to examine the success of Prop 5 programs, including academic evaluation studies and research conferences.

How much money will this cost? The answer to that question is uncertain, as expenses on programs may be offset by savings in prisons. The amount of savings would depend on the success of drug programs in reducing recidivism. What do you think?

On the Ballot: Propositions 5, 6, and 9

On Nov. 4, Californians will not only get to decide between Obama and McCain, but also to weigh in about their priorities and values regarding law enforcement and corrections. There are three relevant propositions on the ballot, and voters will need to realize that, to a great extent, supporting each of these comes at the others’ expense. Moreover, it is important to pay attention to the fact that each of the propositions espouses a different ideology about criminal propensity and crime control.

Prop. 5: Nonviolent Drug Offenses; Sentencing, Parole and Rehabilitation

Proponents of NORA (Nonviolent Offender Rehabilitation Act) argue that current drug laws do not allocate resources to treating the problem from the source, which is addiction. According to the proposition, the idea is to preserve resources by reserving punitive measures for violent offenders, and focusing on treating non-violent offenders through the diversionary methods set in Prop. 36. This would be accomplished through a reorganization of entities, adding special divisions at CDCR that would address substance abuse, vocation and education. For the purposes of NORA, a “non-violent drug offender” is someone convicted of “unlawful personal use, possession for personal use, or transportation for personal use, or being under the influence of any controlled substance”; the prop excludes “possession for sale, transportation for sale, production, or manufacturing of any controlled substance”.

The options for deferred entry of judgment and for supervision are ehnanced. The proposition is very much in the spirit of therapeutic justice.

Prop. 6: Police and Law Enforcement Funding; Criminal Penalties and Laws

By contrast, this proposition, also called the Safe Neighborhoods Act and the Runner Initiative, is very much in the spirit of Packer’s Crime Control model. The idea is to increase funding for more traditional law enforcement activities. The proposition identifies a few key criminal phenomena and focuses on aggressive prosecution toward them. One such focus is gang activity; under Prop 6, any youth 14 years or older convicted of a “gang-related” felony would be tried as an adult. Other “focus areas” include violence and methamphetamine trafficking.

The proposition would also criminalize tampering with monitoring devices such as electric cuffs, and would require anyone receiving public housing subsidies to undergo annual criminal background checks.

The official text also provides for strengthening police intelligence and “mapping” high risk areas.

Prop. 9: Criminal Justice System; Victims’ Rights; Parole
Prop 9 advocates a third type of justice model, namely, one focusing on victims’ rights in various ways. It includes a CA constitutional amendment as well as regular legislation. Some aspects of Prop 9 include a requirement to pay restitution to victims and a prioritization of these requirements. It also expands victims’ legal rights and their impact not only throughout the adjudication process, but also in parole hearings.

The official text ttt bemoans the faulty implementation of the Victims’ Bill of Rights in 1982, and suggests to improve matters by assuring that victims are informed of developments in the case, including pre-sentence reports, plea bargains, and sentence details. Victims would be notified of bail hearings and would have the right to be heard before a bail decision is made.

In addition, Prop 9 also creates additional limitations on parole, and adds years before parole can be obtained in certain cases.


This is going to be a tough choice. As David Garland argues in The Culture of Control, our criminological “history of the present” is such that several models of criminal justice coexist, along with their contradictory premises. When pitted one against the other, as in the 2008 ballot, the conflict is not only one of ideologies but one of resources. Shifting more resources toward enforcement would come at the expense of rehabilitation and vice versa. Moreover, hiring personnel with a defined agenda, which would be a necessity under each of these propositions, would impact the spirit of criminal justice in general. So, the choice is not merely between priorities, but between paradigms.