Proposition 5

Official Results
Yes votes: 
5,155,206 [40.5%]
No votes: 
7,566,783 [59.5%]

Introduction

Proposition 5, or the "Nonviolent Offenders — Sentencing, Parole and Rehabilitation" statute, would make changes to the State's current parole system as well as expand and alter California's existing drug programs for criminals. The California prison system is one of the largest in the country and is frequently criticized for its expense and overcrowding. Many have claimed that the passage of Proposition 184 and it's three strikes law have clogged the prisons with nonviolent offenders and have cost the state millions of dollars annually. Others believe that the prison population is appropriate and makes for a safer California. Proposition 5 would replace the existing drug programs with new diversion programs that would allow a wider range of offenders to seek treatment instead of incarceration. It would also make changes to the state's current parole system such as introducing new parole terms, creation of new parole violation rules, and requirements to provide treatment programs for paroled offenders both before and after they leave prison.

Proposition 5

Drug Programs

California currently permits some criminal drug offenders to be diverted from prison to one of several drug treatment programs. These programs provide different approaches to drug offense convictions, including treatment options for first time drug possession offenders, treatment and probation for violators of certain drug offences outlined by voter-approved Proposition 36, and drug court programs which allow monitored treatment in lieu of incarceration. Proposition 5 would introduce a three-track drug treatment program that would significantly change or eliminate the existing drug treatment programs.

Track 1: Court Arrangements

  • Allows offenders who have committed no prior serious or violent offenses to enter into an arrangement with the court that would not require supervision.
  • Offenders who have one prior drug offense are not barred from participating in court arrangements, as opposed to current law.
  • Offenders who complete the drug treatment program they are assigned and avoid committing any additional crimes, would have charges against them dismissed by the courts.
  • In cases where the physician suspects parental abuse, they could notify an alternative family member. The physician must base his/her suspicions on a pattern of abuse of the minor by a parent(s). Physicians would be required to inform local law enforcement and child protective agencies of suspected abuse.

Drug Offense Provisions

  • Offenders who are convicted of non-violent drug possession would be diverted to treatment and eventual probation.
  • Offenders who have been convicted of violent felonies during the last 5 years would not be eligible for Track 2. However, offenders who were arrested for possession and a non drug related crime committed at the same time would be eligible.
  • Offenders who have five or more offenses during the previous 30 months would be barred from Track 2.

Track 3

  • Would provide discretion to judges to decide which nonviolent drug posession offenders would admitted to drug treatment programs in lieu of prison.
  • Non-violent drug possession offenders can be diverted to Track 3.
  • Offenders convicted of non-drug crimes but fit the criteria of having a drug problem, would be diverted to Track 3.

Other Drug Treatment Program Provisions

  • Would appropriate $150 million to the Substance Abuse Treatment Fund (SATTF) for the second half of 2008-09 and $460 million in 2009-2010.
  • Once administrative and program costs are paid, Proposition 5 money would be seat aside for the different Tracks: 15 percent for Track 1 programs, 60 percent for Track 2 programs and 10 percent for Track 3 programs.
  • States or counties would be barred from using SATTF funds to replace funds currently allocated for drug abuse treatment programs.
  • Would create a new nonviolent youth offender program for those under 18 who are considered at risk for committing future drug crimes.
  • The new Juvenile program would receive 15% of SATTF funds after implementation and administrative costs.

Parole System

Currently, California offenders are released on parole for a set time period based on the offense they were convicted for. The majority of offenders serve a maximum 3-year parole term with the possibility for an extended term if parole board deems it necessary. Many offenders can also be discharged early from parole if they avoid committing additional crimes. Parolees who violate terms of their parole may be returned to prison by the Board of Parole Hearings (BPH). If parolees commit new crimes after their release from prison, they can also be found guilty of violating parole.

Proposition 5 would change the parole system in a number of key ways. It would reduce the parole terms of nonviolent offenders, increase the parole terms of violent offenders, and would introduce new rules for parole violators.

  • All inmates, except those serving life terms, would be provided with rehabilitation programs at least 90 days before their release date. The CDCR would assess inmate for which programs would lead to the most successful re-entry into the community.
  • Additional rehabilitation services would be available to all offenders after they are discharged from parole.
  • A new parole board would be created which would have the authority to review and approve or deny rehabilitation programs. They would also set parole policies. The board would have 21 members
  • Counties would cease paying for drug treatment services for nonviolent parole violators. Counties can still provide treatment but CDCR would have to pay for any county costs.
  • The CDCR would create fiver-year pilot projects in five regions to divert certain parole violators to treatment and rehabilitation programs.
  • The BPH would be required to hold a hearing within three days of a parolee being arrested for a parole violation. All parolees would have a right to legal council.
  • The BPH, the new parole board, the Corrections Standards Authority, the CDCR and the Office of the Inspector general would be mandated to collect inmate and parolee population information. They would also collect information on effectiveness of rehabilitation programs. These organizations would issue reports on their findings.
  • Some prisoners could be eligible for more good-time or work credit laws than is the case under current state laws. The inmates would have to be convicted of drug-related or property crimes and would barred if they've ever been convicted of a violent or serious felony.
  • The possession of less than 28.5 grams of marijuana would become an infraction (rather than a misdemeanor). Minors would be required to pass drug education programs but would not be subject to arrest. Funds collected from fines for marijuana possession would be put into a special fund that would pay for youth drug programs.

Rehabilitation Program and Other Changes

Proposition 5 would also expand rehabilitation programs for offenders. All offenders, except those serving life terms, would be provided with rehabilitation programs. They would also be assessed by the California Department of Corrections and Rehabilitation (CDCR) as to what programs would best suit the offender's needs. Offenders would have the option of requesting additional rehabilitation services after they are discharged from parole.

Proposition 5 also contains a number of other changes and expansions of treatment for non-violent offenders including a new parole reform board, changes to the hearing process for parole violators, additional good-time or work credits for certain prisoners, and new laws for marijuana possession.

  • All inmates, except those serving life terms, would be provided with rehabilitation programs at least 90 days before their release date. The CDCR would assess inmate for which programs would lead to the most successful re-entry into the community.
  • Additional rehabilitation services would be available to all offenders after they are discharged from parole.
  • A new parole board would be created which would have the authority to review and approve or deny rehabilitation programs. They would also set parole policies. The board would have 21 members.
  • Counties would cease paying for drug treatment services for nonviolent parole violators. Counties can still provide treatment but CDCR would have to pay for any county costs.
  • The CDCR would create fiver-year pilot projects in five regions to divert certain parole violators to treatment and rehabilitation programs.
  • The BPH would be required to hold a hearing within three days of a parolee being arrested for a parole violation. All parolees would have a right to legal council.
  • The BPH, the new parole board, the Corrections Standards Authority, the CDCR and the Office of the Inspector general would be mandated to collect inmate and parolee population information. They would also collect information on effectiveness of rehabilitation programs.These organizations would issue reports on their findings.
  • Some prisoners could be eligible for more good-time or work credit laws than is the case under current state laws. The inmates would have to be convicted of drug-related or property crimes and would barred if they've ever been convicted of a violent or serious felony.
  • The possession of less than 28.5 grams of marijuana would become an infraction (rather than a misdemeanor). Minors would be required to pass drug education programs but would not be subject to arrest. Funds collected from fines for marijuana possession would be put into a special fund that would pay for youth drug programs.

Lawsuit

On July 17, 2008, opponents of Proposition 5 petitioned the California Supreme court to remove the measure from the November ballot. They claim that the measure is unconstitutional because it removes powers from judges to impose sentences on parole inmates. They contend that Proposition 5 attempts to change the constitution via statute. The lawsuit was filed by a large number of prosecutors, former Republican governor Pete Wilson and former Democratic Governor Gray Davis. On July 30, the court ruled to keep the proposition on the ballot. 

Voter Information

Title and Summary

Analysis

Arguments and Rebuttals

Text of Proposed Law 

Campaign contributions database - Individual Committees (Secretary of State website)

Campaign contributions database - total (Secretary of State website) Select "Nov. 2008 election" and "Prop.5" in dropdown box

Public Opinon Resources

Field Polls on Proposition 5
November 3, 2008 
September 26, 2008

July 22, 2008 

Survey USA
October 17, 2008 

Public Policy Institute 
October 2008

Non-Partisan Resources

Ballotpedia

Pros & Cons (League of Women Voters)

Audio and Video

Center for Governmental Studies
Voter Minute

Reports and Studies

The Nonviolent Offender Rehabilitation Act: Prison Overcrowding, Parole and
Sentencing Reform (Proposition 5)
, By Skaidra Smith-Heisters, Reason Institute, October 2008.

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