Unchained Felony

Last November, California voters, by a landslide margin, enacted a historic change in the state's handling of nonviolent drug offenders - from an approach heavily weighted toward imprisonment and long-term stigmatization to one emphasizing drug treatment.

This dramatic change will reduce the number of wasted lives and wasted tax dollars resulting from the widespread incarceration of (overwhelmingly poor, African-American and Latino) "offenders" without victims. At the same time, Proposition 36 significantly alters the balance of power between the prosecution and defense in tens of thousands of drug cases that crowd court dockets each year.

This poses challenges for the defense bar, particularly for the state's public defenders, who will represent the defendants in 95 percent of Proposition 36 cases. Their commitment to the lawyer's duty of zealous advocacy will be tested by enormous institutional, financial and political pressures.

Proposition 36 specifies, with limited exceptions, that upon a first or second post-Proposition 36 conviction for a nonviolent felony drug offense involving simple possession or personal use, an offender must be offered probation on conditions that include participation in, and completion of, a legally recognized community drug-treatment program. Conditions also may include participation in vocational training, family counseling and literacy or community-service programs. So long as he agrees to abide by the probation terms, the offender may not be incarcerated.

The same provisions govern the effect of such first or second offenses when they constitute parole violations. So long as the parolee agrees to the new probation terms, such offenses do not result in re-incarceration.

Probation may be revoked for a first violation only where the state proves not only the violation itself but also that "the defendant poses a danger to the safety of others." Probation may be revoked for a second violation where the state proves either that the offender poses a danger to others or that the defendant is "unamenable to drug treatment." For a third violation, the offender is no longer eligible for probation.

An offender who successfully has completed his drug-treatment program is entitled to a court order setting aside his conviction and, with it, most of the conviction's continuing civil and penal consequences.

A Proposition 36 defendant charged with a nonviolent drug offense who does not already have two post-Proposition 36 convictions for such offenses on his record faces no risk of incarceration, except upon revocation of probation. This appears to be the first time in the history of American jurisprudence that a defendant has been able to go to trial on a felony charge without facing any risk of imprisonment upon conviction.<

Since the risk of incarceration is the prosecutor's chief weapon for inducing defendants to waive their right to trial and plead guilty, except in those cases where the defendant has one or two "strike" priors hanging over his head, it almost never will be in the interest of a Proposition 36 defendant to plead guilty. A defendant with one or two "strike" priors might want to negotiate a plea bargain specifying that, should his probation be revoked, he would not face a Three Strikes enhanced penalty.

If nonviolent drug offenders are charged at the same rate as before, dogged insistence by "no risk" Proposition 36 defendants on their right to trial soon would bring the system to a near standstill. There are nowhere near enough prosecutors, courtrooms and judges to try all of these cases. And the state, to fulfill its constitutional obligation to provide counsel for the indigent, would have to substantially increase the budgets of public defenders.

Public defenders likely will face intense pressure to help avoid such a meltdown by responding on behalf of the system rather than, as mandated by both the Constitution and the canons of legal ethics, as a check on the system.

Public defenders must not be co-opted in that manner. There are many ways that public defenders can monitor and challenge the system. Their vigilance will help ensure that the historic change in our drug laws is implemented to the fullest extent and not circumvented by police, prosecutors and judges invested in the discredited incarceration-first regime.

In light of the "no risk" situation faced by Proposition 36 defendants without "strike" priors, it almost never will be truly in such a client's interest to plead guilty. Nonetheless, public defenders lack the resources to do all of these trials. The first important responsibility of the public defender in each county will be to resist the temptation to pass the unavoidable budgetary pressure down the chain of command to office administrators and, through them, to the line deputies, whose duty is to represent each client zealously.

That pressure would probably take the form of urging deputy public defenders to encourage pleas in cases where the state's evidence is strong and where there are no obvious procedural defects. It would not be difficult to convince the average drug defendant to plead by arguing that he probably would be found guilty anyway, that he wouldn't have to do any time and that drug treatment paid for by the state would be good for him.

But drug-treatment failure rates are generally around 50 to 60 percent, meaning that for many, even under Proposition 36, a conviction eventually could result in incarceration. Moreover, criminal convictions can have unforeseen consequences, as some immigrants learned in recent years when pleas to relatively minor offenses became grounds for deportation under a 1996 law.

Thus, in all but the rarest of cases, it would be a dereliction of duty to sweet-talk a "no risk" Proposition 36 defendant into a guilty plea. For that reason, deputies should be required by their supervisors to justify, in writing and in advance, all guilty pleas by their Proposition 36 defendants.

;While resisting the impulse to pass budgetary pressure down the chain of command, the public defender instead must pass the budgetary pressure up the chain of command to the county's board of supervisors by demanding increased funding to hire the staff necessary to conduct the trials that these defendants will, if properly counseled, be demanding. If the additional funding is not forthcoming, the public defender must turn up the heat, both in the press and in the courts.

Delays in bringing defendants to trial because of the unavailability of constitutionally mandated defense counsel should be challenged as speedy-trial violations, requiring the dismissal of charges. This will take some courage on the part of public defenders, almost all of whom are appointed by the very boards of supervisors that they must put on the spot.

At the same time, the defense bar must be prepared to counter aggressively efforts by police and prosecutors, or by the courts themselves, to exploit loopholes in Proposition 36 to coerce defendants to give up their right to trial.

The most obvious loophole is the failure of Proposition 36 specifically to require that defendants be released on their own recognizance pending trial. It would seem impossible to reconcile pretrial detention with Proposition 36's virtual elimination of incarceration for first- and second-time offenders. Nonetheless, it is not hard to imagine some judges attempting to help prosecutors "make the system work" by setting a bail that the defendant will not be able to make, thereby placing the defendant in a position where a quick guilty plea is the only way to avoid incarceration.

Defense attorneys must demand that Proposition 36 defendants be released on their own recognizance, and they must be prepared to scream bloody murder, both in court and in the press, if judges employ pretrial detention to coerce guilty pleas. Even if a client has entered a guilty plea under such improper pressure, the defense attorney should then move to set it aside on the ground of coercion and be prepared to appeal an adverse decision.

Defense counsel must be willing to address community organizations regarding the important extension of the right to trial that Proposition 36 mandates. This will help citizens understand their rights vis-à-vis Proposition 36 when faced with passive, lazy or overworked defense counsel.

The second loophole of major concern is Proposition 36's provision that its probation-only requirement shall not apply to a 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."

The danger here is that police and prosecutors routinely may add on spurious charges manufactured to create a risk of incarceration and, thus, restore some of the prosecutor's leverage for the extraction of guilty pleas. Such add-on charges likely would be for offenses where the evidence would come down to the arresting officer's word against the defendant's word, such as resisting arrest or disorderly conduct.

The best defense against this is to compile statistics on the frequency with which such charges are filed with Proposition 36 drug charges in a given jurisdiction, versus how frequently such charges were filed with the same drug charges before Proposition 36. If the statistics show a marked increase, they should be used to generate press attention to the obvious flimflam, to attack the credibility of the add-on charges at trial and as evidence in lawsuits seeking injunctions prohibiting such practices.

By trying virtually every "no risk" case, defense attorneys will fulfill their professional obligations to their individual clients and, at the same time, force a re-examination of the seemingly endless and fruitless "War on Drugs."

Aram James is a deputy public defender in Santa Clara County and co-founder of Citizens To Elect Our Public Defender. He thanks brother Tim James, an attorney in New York City, and Joel Blackman, an attorney in San Francisco, for their assistance.