Ventura County 2003-2004 - California Grand Jury Reports

F01: On November 7, 2000, California voters passed Prop 36, or Substance Abuse and Crime Prevention Act of 2000, mandating that eligible drug offenders receive substance abuse treatment services without incarceration for certain eligible drug offenses.

F02: In Ventura County, there were 161,283 votes to approve Prop 36, or 60.4 percent of the total ballots cast in the county.

F03: Prop 36 was followed on October 10, 2001 by a clarifying Senate Bill 223 titled “Substance Abuse Treatment and Testing Accountability (SATTA).” This emergency measure provided funding for drug testing as well as guidelines for testing and use of test results. Ventura County Proposition 36 Implementation

F04: Prop 36 and SATTA are implemented via Penal Code section 1210.

F05: Prop 36 legislation appropriated $120 million annually for five years starting July 1, 2001. The State Substance Abuse Treatment Trust Fund (SATTF) administers these funds for the operation of drug treatment programs and ancillary services in all California counties. For drug testing, SATTA allocated $8.4 million in fiscal year (FY) 2001-02 and placed future years’ drug test funding in the state budget. For the current FY 2003-04, Ventura County is allocated $2,762,667 under Prop 36 and $175,275 under SATTA. Carryover funding from the previous FY increased the current year’s Prop 36 availability to $3,542,667.

F06: When passed, Prop 36 limited the availability of funding with a five-year “sunset” clause. If Prop 36 is to continue after June 30, 2006, the county will be required to identify local replacement funding or state legislative efforts will have to provide funds for continued drug treatment services.

F07: The California DADP states that SACPA (Prop 36) was designed to • “Preserve jail and prison cells for serious and violent offenders; • “Enhance public safety by reducing drug-related crime; and • “Improve public health by reducing drug abuse through proven and effective treatment strategies.”4

F08: The First Year Report describes one of the major provisions of Prop 36 as, “Offenders convicted of ‘non-violent drug possession,’ are to be sentenced to probation and drug treatment instead of prison, jail, or probation without treatment.”

F09: Prop 36 sentencing mandates that, as of July 1, 2001, any person convicted of a nonviolent drug possession offense, and any parolee who is determined to have committed a nonviolent drug possession offense or violated any other drug- related condition of parole, will be granted probation and drug treatment of up to one year in one or more licensed or certified community-based drug treatment programs. To be eligible for Prop 36 treatment, the offender must not be disqualified by other factors.

F10: “Nonviolent drug possession offense” is defined as unlawful possession, use, or transportation for a defendant’s personal use of a controlled substance5 and the offense of being under the influence of a controlled substance.6 These offenses could describe felonies or misdemeanors.

F11: Disqualification from Prop 36 probation generally occurs if the offender 4 California Department of Alcohol and Drug Programs, Fact Sheet: “What is Proposition 36?” (http://www.adp.cahwnet.gov/SACPA/prop36.shtml), January 2004. Health and Safety Code sections 11054-58 6 Health and Safety Code section 11550 Ventura County Proposition 36 Implementation 7 • Is convicted of possessing drugs other than for personal use (such as production, manufacture, distribution, or possession for sale); • Is convicted of non-drug offenses in the same court proceeding with a drug possession offense; • Is convicted of using a firearm while in possession or under the influence of heroin, methamphetamine, cocaine, cocaine base, or PCP; • Previously has been convicted of a serious felony, and has not been free of custody or commission of felonies or dangerous misdemeanors within five years; or • Has failed two prior Prop 36 treatment programs. As differentiated from probationers, parolees may not have ever been convicted of a serious felony.

F12: The courts are required to offer Prop 36 treatment probation terms to all non- violent drug offenders who meet specific eligibility requirements. The courts are not required to impose Prop 36 treatment terms on probation if an otherwise eligible offender is proven unamenable to all forms of available drug treatment.7

F13: Case law has established that • The crime of driving under the influence of drugs (DUI) is not considered a misdemeanor “related to the use of drugs” and is not eligible for Prop 36 sentencing.8 • Possession of drugs in jail is a disqualifying offense for Prop 36 probation. • A drug offender who does not comply with the court order to report to a drug treatment program has, in effect, “refused” drug treatment as a condition of probation, rendering himself ineligible for drug treatment and probation under Prop 36.9

F14: A typical Prop 36 defendant does not come to the attention of law enforcement based solely on the use of drugs. Very rarely are the police called for simple intoxication without an aggravating, underlying offense. Most defendants are involved in other activities such as disorderly conduct, domestic quarrels, or other misconduct. Defendants can have multiple criminal charges more difficult to prove in court; however, trials and plea bargains can result in a conviction on the drug charge only, making the defendant eligible for Prop 36 probation. Some defendants are discovered in possession of drugs or drug paraphernalia in the course of probationary searches.

F15: If a non-violent drug offender chooses not to participate in Prop 36 treatment, another treatment option is available under the Penal Code. In the pre-plea diversion statute and program (“Diversion”), a defendant may plead guilty to a 7 Penal Code section 1210.1 (b)(5) 8 People v. Canty (2002) 100 Cal.App.4th 903 9 People v. Guzman (2003) 109 Cal.App.4th 341 8 Ventura County Proposition 36 Implementation non-violent drug usage offense and receive a “deferred entry of judgment” in order to obtain drug treatment. According to the statute, “The period during which deferred entry of judgment is granted shall be for no less than 18 months nor longer than three years.” The courts closely monitor the defendant’s progress, and the criminal charge or charges may be dismissed if the defendant successfully completes treatment.10

F16: Compared to Diversion, Prop 36 eligibility does not require an admission of guilt. Prop 36 sentencing is also available after conviction in a jury trial. There will be a conviction on the record while in treatment, and a person cannot legally deny that a conviction occurred. Sentencing and Supervision

F17: Drug treatment has been and still is provided to drug offenders in Ventura County, regardless of sentencing. Without Prop 36 probation, there is still court-ordered Diversion to drug treatment for first- and second-time drug offenders. Additionally, for those offenders sentenced to jail, drug treatment and substance abuse counseling are provided while offenders are incarcerated.

F18: Prop 36 is only one choice among four available drug treatment options: (1) drug treatment after sentencing and while incarcerated; (2) drug treatment through Penal Code section 1000 Diversion (3) drug treatment after sentencing and while on probation, or (4) drug treatment under Prop 36.

F19: There are still many offenders who are sentenced to jail or prison because of Prop 36 ineligible offenses. Those offenders may still have drug abuse or addiction problems, but they must be sentenced to incarceration. Drug programs are currently provided in the jails for these offenders.

F20: Before Prop 36, Ventura County’s dedicated Drug Court was initiated in 1995. It was designed for people who were facing up to one year in jail for being under the influence of narcotics. Diversion granted through the Drug Courts required the defendant to plead guilty and sign an agreement in order to enter a treatment program.

F21: In typical Drug Courts, deputy district attorneys, public defenders, probation officers, and drug-treatment professionals work with the courts to provide resources, care, and follow-up needed to help drug abusers and addicts receive treatment, supervision, and support services.

F22: The National Association of Drug Court Professionals maintains and publishes California Drug Court Standards. These standards highlight the importance of ongoing judicial interaction, with monitoring and evaluations to gauge effectiveness, frequent drug testing, and stakeholder cooperation.

F23: The effectiveness of “therapeutic jurisprudence” popularized within the Diversion laws and the Drug Court system is often referenced when describing Prop 36 program objectives. The basis of therapeutic jurisprudence is the recognition that coerced treatment can be effective. Drug Courts provide a 10 Penal Code sections 1000–1000.8 Ventura County Proposition 36 Implementation 9 combination of treatment (therapeutic) with court-imposed sanctions (jurisprudence) to ensure compliance with treatment objectives until the client becomes fully engaged in the program.

F24: Between January 2000 and September 2001, the Drug Court Partnership Program in California documented a $42 million Drug Court savings statewide due to avoidance of incarceration costs.11

F25: A dedicated court was opened in Ventura County on June 3, 2002, in order to manage only Prop 36 cases. Even though this court handles cases specific to drug use under Prop 36, members of the Oversight Committee have stated that Prop 36 court is not a Drug Court. According to BHD/ADP officials, a Drug Court provides oversight during the treatment process, and the only time the Prop 36 court sees a client is for initial sentencing and subsequent reported non-compliance.

F26: Once the deputy district attorney and the defense counsel screen a potential Prop 36 defendant, Probation will conduct a criminal history review to determine whether there are disqualifying factors on the record. If all statutory conditions are met, the judge is mandated to make the determination to sentence a defendant to Prop 36 probation and treatment.

F27: An offender convicted of multiple drug offenses can be sentenced to multiple grants of Prop 36 probation on the same date. The law specifically allows for one year of drug treatment services, followed by six months of continuing care services per grant of probation. Multiple offenses per grant do not accrue more treatment time.

F28: Los Angeles County Department of Health Services, Public Health published policy states, “The Proposition 36 law specifically allows for one year of drug treatment services, followed by six months of continuing care (aftercare) services per grant of probation, with a maximum of two grants. Drug treatment providers’ and program participants’ compliance with the mandated time limits is being closely monitored by both the California DADP and the Los Angeles County Alcohol and Drug Program Administration (ADPA).”12

F29: In Los Angeles County, if a Prop 36 client is arrested and placed on another grant of Prop 36 probation, the time remaining on the first grant is forfeited. The clock stops on the first grant of treatment when re-assessment takes place under the second grant. Successful completion of the second grant of Prop 36 treatment will fulfill the treatment requirement for both grants of probation.

F30: Ventura County has recognized no statutory limits on the number of grants of Prop 36 probation an offender might accrue.

F31: In some counties, all Prop 36 probationers are automatically placed on formal, supervised probation. In Ventura County, Probation does not have the personnel to supervise all Prop 36 probationers. This problem was addressed 11 County of Marin, “What is Proposition 36?” (http://www.co.marin.ca.us/depts/HH/main/adt/Prop36.cfm). Alcohol and Drug Program Administration, “Treatment Services for Proposition 36 Participants,” ADPA Bulletin No. 04-03, March 17, 2004. (http://www.lapublichealth.org/adpa/bulletins/adpa_Bulletin_04-03.htm). Ventura County Proposition 36 Implementation by dividing the probationers into the two natural categories of felony and misdemeanor offenders. • Offenders with felony convictions are typically placed on formal probation under the supervision of Probation. In addition, any probationer on conditional release who is identified as posing a serious risk will be supervised by Probation. • Offenders with misdemeanor convictions may be placed on summary probation, also referred to as conditional release, under the general administration of BHD/ADP. • As differentiated from probationers, parolees in Prop 36 treatment fall within the supervision of the Parole and Community Services Division of the California Department of Corrections (“Parole”).

F32: Persons placed on probation are subject to court-ordered rules of behavior, and Prop 36 probation is not an exception to this requirement. The only mandated probation terms under Prop 36 are the requirement for a drug treatment program and keeping the defendant free from incarceration. “The trial court is not otherwise limited in the type of probation conditions it may impose.”13

F33: At the discretion of the courts, additional probation conditions may be established to ensure and monitor the offender’s progress. These conditions may include regular check-ins with a probation officer or appearances before the court, requirement to pay a share of treatment and drug testing costs, and various other restrictions on the person’s place of residence, associations, or lifestyle. Participation in vocational training, family counseling, and literacy training can also be required. The courts may mandate the intensity of drug treatment, and they may impose community service.

F34: In Ventura County, the standard Prop 36 probation terms for both formal and conditional release include participation in the assigned treatment program, consent to release of information between the probation officer and the treatment program, a waiver of confidentiality rights to allow court supervision and assessment of treatment, consent to a search without warrant or reasonable cause for controlled substances, abstinence from controlled substances, and consent to drug testing at any time. (Attachment I)

F35: Probation, Parole, and BHD/ADP are responsible to the courts for their respective supervision to ensure each Prop 36 client is participating and in compliance with the drug treatment and other services to which they were referred.

F36: When the courts are made aware of violations of these rules, the form of treatment and supervision may be intensified or, in some cases, probation or parole may be revoked.

F37: Speaking before the National Association of State Alcohol and Drug Abuse Directors in June of 2001, the Director of the California Department of Alcohol 13 Penal Code section 1210.1(a) Ventura County Proposition 36 Implementation 11 and Drug Programs, stated that Prop 36 was a “boon” to those who believe addiction should be addressed as a public health problem, adding that, “I could never have convinced our legislators to give me $120 million for treatment and take [sentencing] discretion away from prosecutors and judges.” The manager of the California Department of Alcohol and Drug Program's Drug Court office, explained, "We got ourselves into trouble in drug courts because we overused incarceration as a sanction. That irritated drug-policy reform advocates, and led to Prop 36."14

F38: Prop 36 expressly prohibits incarceration as a condition of probation, but it expressly allows incarceration if probation is revoked.

F39: A client’s drug treatment information is normally protected by confidentiality laws. A defendant must waive confidentiality rights to allow treatment information to be shared with Probation in order to receive Prop 36 sentencing. This waiver of confidentiality rights relates to treatment participation, progress, and compliance as a court-ordered condition of probation. A defendant who does not agree to this term of probation will not be sentenced to Prop 36 probation. (Attachment I, #19)

F40: When assessed, the defendant may be presented with forms titled, “Consent for Release of Confidential Information,” “Authorization for Use and Disclosure of Substance Abuse Records,” and “General Consent for the Release of Confidential Information.” These forms establish that treatment records are protected under Title 42, Code of Federal Regulations, Part 2, and cannot be disclosed without written consent. These forms explain that the disclosure of treatment information is to permit agencies to monitor compliance and progress. The forms also state that the purpose of the information disclosure may be to permit the modification or revocation for treatment non-compliance.

F41: The Implementation Committee Report refers to a memorandum of agreement (MOA) that should contain the details of the confidentiality forms. The MOA is said to address the consents and notices required to comply with federal laws. The Jury attempted to locate this MOA but was unable to do so. Probation versus Treatment Violations

F42: Prop 36 establishes a clear distinction between drug-related and non-drug- related probation violations and defines how these two types of violations can be addressed in the courts.

F43: Non-drug probation violations are processed in the same manner as non-Prop 36 violations. On hearing the facts of the case, a judge will rule on revocation or modification of probation. An arrest for a non-drug-related offense or a violation of a non-drug-related condition of probation can result in immediate revocation of probation and immediate incarceration. Curley, Bob, "California Seeks Role for Drug Courts Under Prop 36." Join Together Online (http://www.jointogether.org), May 25, 2001. Ventura County Proposition 36 Implementation

F44: Drug-related conditions of probation include abstinence from drugs, the drug treatment regimen, employment, vocational training, educational programs, and counseling.

F45: Sanctions for drug-related Prop 36 probation violations fall within a three- tiered scheme, depending on whether the violation is the defendant’s first, second, or third. The criteria used in making a ruling include the number of previous probation violations, the nature and impact of the current violation, and public safety concerns. When the courts record a probation violation, it is commonly referred to as a “strike” against that grant of probation.

F46: The Prop 36 statute provides that, on the first violation of probation on a non- violent drug possession offense, a determination is made as to whether the defendant poses a danger to the safety of others. If not, a strike is recorded and the offender is returned to drug treatment. On a first violation, probation may only be revoked if the alleged probation violation is proved in a hearing and the state establishes by a preponderance of the evidence that the defendant poses a danger to the safety of others.15 Typically, though, the first probation violation will result in the court ordering the person into a more restrictive treatment program.

F47: The statute states that, on the second violation of probation on a non-violent drug possession offense, if the probation is not revoked, a strike is recorded and the offender is returned to treatment, possibly more intensive treatment. On a second violation, probation may only be revoked if the alleged probation violation is proved in a hearing and the state shows by a preponderance of evidence that the defendant poses a danger to others or is unamenable to drug treatment.16 The probationer may be transferred to a more rigorous treatment program.

F48: Finally, the statute provides that, on the third violation of probation on a non- violent drug possession offense, if the offense is proved, probation may be revoked and the offender sentenced to non-Prop 36 sanctions, which may include incarceration or drug treatment.

F49: Prop 36 also permits the courts to discontinue Prop 36 services if a client is shown to be unamenable to any form of available treatment. On a third probation violation, even if it is not shown that a defendant poses a danger to the safety of others or is not amenable to drug treatment, the court has full power to revoke probation and impose a sentence of incarceration.17

F50: “Only after three violations of a drug-related condition of probation does a defendant lose the protection of Penal Code section 1210.1, subdivision (a), which requires participation in a drug treatment program and prohibits incarceration as a condition of probation. Then, however, the court has the full range of options otherwise available in a probation revocation proceeding, 15 Penal Code section 1210.1(e)(3)(A) 16 Penal Code section 1210.1(e)(3)(B) 17 Penal Code section 1210.1(e)(3)(C) Ventura County Proposition 36 Implementation 13 including imposing a term of incarceration as a new condition of probation or lifting the stay on a previously imposed term of incarceration.”18

F51: According to the statute, parolees are provided the same benefits and conditions as described for offenders on probation with one exception. Parolees only get one “excused” violation for drug use whereas probationers get two.

F52: The State of California Department of Corrections Memorandum entitled, “Revised Procedures for Proposition 36,” dated September 16, 2002 confirms that a non-violent drug possession offense can result in a strike against the parolee’s grant of Prop 36 treatment. Exclusion from Prop 36 can result if the parolee meets the criteria for exclusion as outlined in the procedure and the law.19

F53: According to numerous sources, in Ventura County there is no theoretical limit to the number of grants of Prop 36 probation an offender may accrue. Even though a non-drug violation can terminate Prop 36 probation, drug-related violations will not likely terminate probation.

F54: The courts in Ventura County appear to hold the position that a probationer with two or more drug-related strikes must also be found “unamenable” to treatment in order to terminate Prop 36 probation. The voter information guide’s “Analysis by the Legislative Analyst” did include the wording, “an offender who had two or more times failed the drug treatment programs required under this measure, and who was found by the court to be ‘unamenable’ to any form of drug treatment, would be sentenced to 30 days in county jail.” However, the statute did not implement this particular wording.

F55: Ventura County keeps offenders on probation when not statutorily mandated. Because of local policy, offenders can have multiple grants of Prop 36 probation. It is no longer an exception, but the rule that clients have multiple grants of Prop 36 probation.

F56: The Second Year Report states, “The lack of custody sanctions available for violations of probation has resulted in Proposition 36 offenders accruing multiple Proposition 36 cases. The ‘three strikes’ law further complicates this. One Proposition 36 client may have four cases. They may receive strike one on the first case, strike two on the second and third cases, and strike three on the fourth case. Another client may strike out on Proposition 36, but pick up a new case and be eligible for Proposition 36 again.”

F57: An article in the May 9-15, 2003 issue of LA Weekly, Bill Zimmerman of the Campaign for New Drug Policies stated his opinion of public drug policies, “You have to draft something that people are willing to support.” Zimmerman, who chaired the effort to implement Prop 36 in California, was quoted as stating, “With Proposition 36, for example, giving people more than two chances at treatment was a breaking point for the voters we polled. If we had written the law with more than two chances, we would have lost significant 18 People v. Davis, 104 Cal.App.4th 1443 (2003) 19 Policy No. 02-11 14 Ventura County Proposition 36 Implementation support. There’s no point in spending millions of dollars on an initiative that’s going to lose.”20

F58: Treatment providers have the power to report to Probation a client who is non- compliant with the program rules. Non-compliance with treatment can be referred back to court, and hearings can follow the three-tiered scheme described above.

F59: In contrast to the term “non-compliant,” if the treatment provider identifies the client with the term “unamenable,” Probation may take immediate corrective action. Probation may move the court to recommend an alternate drug treatment if it is believed that may improve the client’s outcome. If the treatment provider reports that the client is believed unamenable to any and all available treatment, Probation can move the court to revoke Prop 36 probation or remove the Prop 36 treatment term from probation.

F60: The definition of “unamenable to treatment” is not clear in the statute and the term appears to present problems for local implementation. The Ventura County Proposition 36 Non-Compliance Policy describes “unamenability to drug treatment in that there has been a serious violation of rules, continues to refuse active participation, has repeatedly committed violations in program rules which inhibit their or others [sic] ability to participate or successfully complete treatment.” (Attachment II)

F61: Treatment providers have stated that amenability can often be determined during or shortly after assessment. In addition, it was frequently stated by treatment providers that clients with severe mental health problems would not benefit from drug treatment until their mental health problems are addressed. These mentally ill clients are not considered amenable to drug treatment at the time they are presented for treatment, but they remain on Prop 36 probation while receiving mental health ancillary services.

F62: The CAS staff do not to use the term “unamenable” and have indicated the term may be used by the courts.

F63: BHD/ADP officials expressed to the Jury that, even though it can be used in the context of treatment prognosis, the term “unamenable” also has legal implications, and it would cost too much to be the test case. However, in the First Year Report prepared by BHD/ADP it is stated, “Some offenders are excluded, including those who refuse treatment and those who are found by the courts to be ‘unamenable’ to treatment.“ The report also states, “There are sanctions for offenders found unamenable for treatment or who violate the conditions of probation or parole.”

F64: A sheriff’s representative was asked about the term “unamenable” and responded that it was not a police term, but a behavioral health term. It was noted that the term might have been seen in the original legislation.

F65: One member of the Oversight Committee stated that “unamenable” is a word the judge is allowed to use, but he is not aware of it ever being used. Domanick, Joe, “High on Justice, Lessons from Drug Court,” LA Weekly, May 9-15, 2003. Ventura County Proposition 36 Implementation 15

F66: Another member of the Oversight Committee, when asked about “unamenability,” stated that, as used in the statute, “unamenable” has no meaning. That person added that it would only be used in the context of a contested hearing to exclude someone from treatment, expressing the opinion that no one is prepared “to go there,” and concluding that it was fairly easy to be removed from Prop 36 with non-compliance issues, by testing dirty, or not going to classes.

F67: A BHD/ADP official stated with regard to the concept of unamenability that there are some people who use drugs and turn to crime to support their addiction; however, there are some people who are criminals who happen to use drugs. It might take a while for treatment providers to assess the criminality of the client.

F68: One contract treatment provider stated that use of the word “unamenable” was not permitted by BHD/ADP or the judge.

F69: One treatment provider believed he was professionally qualified to determine that a client was unamenable; however, he thought the courts were reluctant to go forward with the determination of unamenability based primarily on the opinion of the treatment providers without objective evidence to support the claim.

F70: When one treatment provider was asked if he had unamenable clients, he stated that he did; however, he is only permitted to call them “non-compliant.”

F71: Contract treatment providers stated that referred clients might have serious mental health problems that prohibit them from engaging in treatment. They state that many clients are serious, long-time criminals who exhibit the attitude that they are simply attending treatment classes to “do the time” until treatment is over or until they get picked up for another crime, whichever comes first. It is the stated opinion of some treatment professionals that these offenders should be considered unamenable to treatment.

F72: Treatment providers in Ventura County must take all referred clients, regardless of their opinions of unamenability. Since Prop 36 inception, there have been significant threats as well as incidents of violence in the treatment sessions due to the high degree of criminality present in the treatment population.

F73: It has been noted repeatedly that violent and disruptive incidents detract from the quality of treatment provided to those clients who are actively engaged in the treatment program.

F74: Since the inception of Prop 36, no clients in Ventura County have been evaluated and recommended as unamenable to treatment, and there have been no revocation hearings for Prop 36 based on unamenability recommendations of contract treatment providers.

F75: Non-compliant clients can be discharged by the treatment providers and returned to court for disposition. These clients will typically return to Prop 36 treatment. Ventura County Proposition 36 Implementation

F76: In welcoming a discharged client back into treatment, BHD/ADP’s Prop 36 “Program Reinstatement Agreement” form states that, “you are allowed few strikes until you are considered unamenable to treatment and subject to the full force of the law.” Neither this form nor the non-compliance policy states how many strikes are allowed or what agency is responsible for making the determination that a client is considered unamenable to treatment.

F77: The “Ventura County Proposition 36 Non-Compliance Policy” has a single offense that specifically applies to unamenability by heading: “UNAMENABLE TO TREATMENT WITH PERSISTENT NON-PAYMENT OF FEES.” (Attachment II)

F78: According to the Penal Code, “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. If the court does not revoke probation, it may intensify or alter the drug treatment plan.”21

F79: A California State Senate review of Prop 36 states, “treatment professionals acknowledge that persons in drug treatment are likely to make mistakes despite their best intentions. Such mistakes are part of the treatment process. This bill clarifies that a non-dangerous person should remain in treatment and on parole through his or her initial drug related violation. On a second violation, a person must be excluded from Proposition 36 treatment if unamenable to treatment or dangerous, however.”22

F80: All queried members of the Oversight Committee advised the Jury that the problem with the concept of "unamenability" is that there is no case law and it has never been used.

F81: In the “Making It Work!” technical assistance conference held in February 2003, a Sacramento County judge stated that he has had treatment providers conclude that certain clients are unamenable to treatment. The judge reported that, in those instances, he calls members of the treatment team into court to discuss the issues. Sometimes another treatment provider is willing to try working with the client, but in most cases, the judge goes along with the treatment team’s recommendations. After 18 months of Prop 36 in Sacramento County, ten of 560 total clients had been reported as unamenable by treatment providers.

F82: In the same “Making It Work!” conference, there was discussion with judges regarding dually diagnosed and mentally ill who may be potentially be found unamenable for substance abuse treatment. A judge in Santa Barbara County noted that it was possible to move “from one treatment modality to another,” 21 Penal Code section 1210.1 (e)(3)(B) 22 Senator Bruce McPherson, Chair, Senate Committee on Public Safety, “Drug Treatment for Non-Violent Drug Possession Drug Testing and Probation Revocation Standards,” SB 223 (Burton), April 17, 2001. Ventura County Proposition 36 Implementation 17 and seriously mentally ill clients can be moved from Prop 36 court to mental health court.

Related Recommendations (17)

R1: PAFDT The defendant be granted formal probation pursuant to Penal Code Section 1210.1 for a period of 36 months, subject to the following conditions.

R3: FE2 The defendant shall pay an investigation fee of $227.

R4: FE3 The defendant shall pay an AIDS fee of $70.

R6: PAOBEY The defendant shall obey all laws.

R7: PAREFD The defendant shall pay a restitution fine of $200 to the State Restitution Fund.

R9: PATDT The defendant shall consent to any tests, submit to and complete any tests to determine the presence of controlled substances, including marijuana, at any time as requested by a peace officer, probation officer, or when requested by a licensed and/or certified community drug treatment program.

R10: Though, by policy, drug testing is to be used for treatment purposes, public safety concerns require that Probation continue to conduct drug testing. Considerations: If the Lead Agency decides to lease the PassPoint™ or similar system, there would be flat-fee costs accrued to treatment-oriented drug screening should two systems be leased to and located with east county and west county treatment providers. Probation should be encouraged to develop and provide a random drug screening schedule for all probationers (formal and conditional release), over and above the treatment requirements and not to interfere with the treatment use of screening devices. When the screening indicates the possible use of drugs or alcohol, Probation can use its internal drug testing budget to confirm or refute the use of drugs. If a drug test comes back positive, the client should pay unless they have self-confessed the usage prior to the request for screening and testing. The clients should be informed that the county will pay for all negative drug tests.

R12: The Operations and Oversight Committee should institute thoughtful and allowable sanctions for offenders who fail in treatment, submit positive drug tests, or who miss treatment classes. Considerations: Though incarceration is not permitted by statute, clients should be required to earn relaxed standards through a program history of positive behaviors and compliance with regulations rather than providing loose structure at the beginning of the program. Evidence suggests that success is based on solid case management and meaningful immediate sanctions, or the threat thereof. Ventura County Proposition 36 Implementation 67 Responses Recommendations R-01 through R-12 Responses Required From: Board of Supervisors X Office of the District Attorney X Sheriff’s Department X Responses Requested From: Health Care Agency X Probation Agency X 68 Ventura County Proposition 36 Implementation Attachments Attachment I. Proposition 36 Probation Terms for Formal Release Attachment II. Proposition 36 Non-Compliance Policy (Current) Attachment III. Addiction Severity Index Attachment IV. Proposition 36 Treatment Services Matrix July 1, 2003 Attachment V. Proposition 36 Satisfactory Completion of Treatment Form Attachment VI. Proposition 36 Proposed Drug Testing Protocol Attachment VII. Proposition 36 Demographics Report FY 2003/2004 Attachment VIII. Probation Agency Prop 36 Yearly Stats FY 2003/2004 Ventura County Proposition 36 Implementation 69 [This page is intentionally left blank.] 70 Ventura County Proposition 36 Implementation Attachment I. Proposition 36 Probation Terms for Formal Release SUPERIOR COURT STATE OF CALIFORNIA COUNTY OF VENTURA RE: XXXXXXXXXXX COURTROOM 12 NO.XXXXXXXXXX PROPOSITION 36 PROBATION TERMS FOR FORMAL RELEASE 1. PAFDT The defendant be granted formal probation pursuant to Penal Code Section 1210.1 for a period of 36 months, subject to the following conditions. 2. FEPAC The Court find that the defendant has the ability to pay for the cost of probation, the Court find that the cost of probation to be $89 per month, and the Court orders the defendant to pay for such costs. 3. FE2 The defendant shall pay an investigation fee of $227. 4. FE3 The defendant shall pay an AIDS fee of $70. 5. PAP01 The defendant shall report to the probation office located on the second floor of the Sheriff/Probation building immediately after being released from Court or upon release from custody. The defendant be placed under the supervision and control of the Ventura County Probation Officer and shall report to said probation officer as directed. The defendant shall maintain regular employment as approved by the probation officer; and shall support all dependents. The defendant shall not leave the county of residence for a period exceeding 72 hours, nor change residence without prior approval of the probation officer. The defendant shall not leave the State of California without prior permission of the probation officer. If the defendant is on felony formal probation, the following applies: The defendant waives extradition to the State of California from any jurisdiction in or outside the United States where the defendant may be found. The defendant further agrees that he/she will not contest any efforts by any jurisdiction to return him/her to the State of California. Ventura County Proposition 36 Implementation 71 Attachment I. Proposition 36 Probation Terms for Formal Release The defendant shall participate in any treatment program designated by the probation officer as extensively as directed and authorize release of information between the probation officer and the treatment program. 6. PAOBEY The defendant shall obey all laws. 7. PAREFD The defendant shall pay a restitution fine of $200 to the State Restitution Fund. 8. PAD1 The defendant shall not use or possess any controlled substances, including marijuana, or drug or marijuana paraphernalia. 9. PATDT The defendant shall consent to any tests, submit to and complete any tests to determine the presence of controlled substances, including marijuana, at any time as requested by a peace officer, probation officer, or when requested by a licensed and/or certified community drug treatment program. 10. PAD4 The defendant shall not alter, adulterate, nor attempt in any manner to falsify any bodily fluids submitted for the determination of the presence of controlled substances, including marijuana. 11. PAS2 The defendant hereby consents to a search of person, vehicle, residence, business, or any personal or real property under the defendant’s control for controlled substances, including marijuana and related paraphernalia, by a peace officer or probation officer, at any time, with or without a search warrant, warrant of arrest, or reasonable cause. 12. PAD2 The defendant shall not associate with any person who is using or trafficking in any controlled substance, including marijuana. 13. PARG3 The defendant shall read and sign CII Notification form and register pursuant to Section 11590 of the Health and Safety Code. After registration, the defendant has 30 days to register with the law enforcement agency in the city where the defendant resides. 14. PAF12 Pursuant to Section 11350(d) of the Health and Safety Code, the defendant shall pay a fine of $3200, including penalty assessment. (This term included only if offense is a 11350(a)HS) 72 Ventura County Proposition 36 Implementation Attachment I. Proposition 36 Probation Terms for Formal Release 15. PADAF Pursuant to Section 11372.5 of the Health and Safety Code, the defendant shall pay a fine plus penalty assessment of $160 to the Criminalistics Laboratories. 16. PADPF Pursuant to Section 11372.7 of the Health and Safety Code, the defendant shall pay a fine and penalty assessment of $480 to the Drug Program Fund. 17. PAAID1 Pursuant to Section 1001.10 of the Penal Code, the defendant shall participate in an AIDS education program. Call 805/652- 5902 to receive instructions for attending the AIDS class. The defendant must attend the class within three months of the defendant’s sentencing date or release from custody. Failure to attend and complete this class will result in a bench warrant. Proof of attendance must be provided to the probation officer. 18. PADT1 The defendant shall participate as directed in a Court-approved drug treatment program. Within five days of this hearing or upon release from custody, the defendant shall report to Central Assessment Services at 5700 Ralston, Suite 210, Ventura, CA 93003, 805/289-3303, between 8 a.m. and 5 p.m., Monday through Friday, and complete an intake appointment. The defendant shall comply with program rules and remain in the program until successful completion. 19. PADT2 Federal confidentiality laws would generally apply to all aspects of an individual’s participation in drug treatment. By accepting treatment rather than incarceration as a term of this probation, the defendant waives his/her confidentiality rights in order to allow Court to supervise and assess his/her treatment participation progress and his/her compliance with the rules of the drug treatment program as necessary. 20. PAW3 The defendant shall not own, possess, or have under custody, control, or immediate access to any firearm, ammunition, oleocapsicum pepper spray, or tear gas. 21. PYALL The Court finds that the defendant has the ability to pay and orders the defendant to pay all costs, fines, fees, and restitution. 22. PYWF The defendant’s costs, fines, fees, and restitution are payable at $125 per month, beginning 5-4-04, unless accepted into the Work Furlough program, in which case said monthly payment shall begin forthwith. The defendant is directed to pay through the Superior Court Collection Unit, 800 South Victoria Avenue, Room 205, P.O. Box 6489, Ventura, CA 93006-6489. Ventura County Proposition 36 Implementation 73 Attachment II. Proposition 36 Non-Compliance Policy (Current) VENTURA COUNTY BEHAVIORAL HEALTH DEPARTMENT ALCOHOL AND DRUG PROGRAMS PROPOSITION 36 NON-COMPLIANCE POLICY POLICY It is the policy of the Alcohol and Drug Programs that a satisfactory level of compliance with the minimum program requirements be maintained in all Proposition 36 treatment cases. To that end, a client’s progress shall be monitored by the assigned program provider and Case Manager in a sufficient manner. Violations in compliance shall be reported to the Court. RESPONSIBLE PERSONS A. It is the responsibility of the assigned counselor/program manager to report all violations of compliance to the Alcohol and Drug Programs (ADP) Case Manager/Assessment Team (see attached Non-Compliance Report Form). B. It is the responsibility of the ADP Case Manager/Assessment Team Manager to initiate contact with the Court/Probation regarding all “strike” relevant violations or patterns of violations (see attached Non-Compliance Report Form). Additional documentation of the non-compliance episode/outcome shall be made in the Treatment Program chart. C. It is the responsibility of the ADP Case Manager/Assessment Team to report all such violations of compliance within two business days. D. It is the responsibility of the ADP Case Manager/Assessment Team to report back to the assigned counselor/program manager the disposition of the Court, prior to re-entry of the participant to that program. E. ADP/Behavioral Health Department (BHD) Quality Assurance (QA) review will monitor adherence to this policy. VIOLATION CRITERIA/PROTOCOL The Case Manager submits violation/non-compliance report with the Court/Probation within two business days of latest incident, utilizing the Non-Compliance Form (see attached). Clients will sign a program agreement that advises them of the need to adhere to the minimum program requirements in order to complete the program under Proposition 36. They are: 74 Ventura County Proposition 36 Implementation Attachment II. Proposition 36 Non-Compliance Policy (Current) • ASSAULTIVE AND/OR THREATENING BEHAVIOR Protocol – Single incident reporting. May be summarily dismissed and returned to Court. File Notice of Non-Compliance within two business days. • UNAMENABLE TO TREATMENT WITH PERSISTENT NON-PAYMENT OF FEES Protocol – Clients who are resistant to treatment and refuse to pay program fees may be determined to be non-compliant. Once this pattern has been established and documented, the Treatment Program will file a Notice of Non-Compliance within two business days. • NO SHOW FOR ASSESSMENT Protocol – Single incident report. May be summarily dismissed and returned to Court. File Notice of Non-Compliance within two business days. • REFUSAL OF TREATMENT OR NON-COMPLIANCE WITH TREATMENT Protocol – Serious and willful refusal to participate in treatment.* Attempt to engage and redirect client (limited to three attempts). Files notice after establishing pattern of refusal; clearly documented. Reporting to Court/Probation on Non-Compliance Form within two business days of latest incident. *Unamenable to drug treatment in that there has been a serious violation of rules, continues to refuse active participation, has repeatedly committed violations in program rules which inhibit their or others ability to participate or successfully complete treatment. • URINE TEST ALTERATION Protocol – Any adulteration of Urine Test or Drug Screen constitutes grounds for “strike” or summary dismissal and is to be reported by the Drug Screen Provider to the assigned counselor/program. Program informs the Case Manager. Reporting is to Court/Probation on Non-Compliance Form the day of the incident. All drug tests results for the entire treatment episode will be forwarded at the time a non- compliance violation is filed by the Case Manager/Program. NOTE: The drug testing contractor/Test Site Manager shall provide the precise protocol regarding matters of false samples, shy bladder and adulterated tests/screens. Ventura County Proposition 36 Implementation 75 Attachment II. Proposition 36 Non-Compliance Policy (Current) • POSITIVE DRUG TEST(S) Protocol – Less than three consecutive positive drug tests (or missed tests) remain at the discretion of the Program Manager/Case Manager to report to the Court/Probation. Three consecutive (or missed tests) or an overall total of five shall be the maximum in reporting violations to the Court/Probation. At any time the counselor, Treatment Program or Case Manager reserve the right to disclose any single incident to the Court/Probation. All drug tests results for the entire treatment episode will be forwarded at the time a non- compliance violation is filed by the Case Manager/Program. Subsequent violations (positive or missed screens/tests) will be reported to the Court/Probation when a client has provided two consecutive or a total of three positives. • PERSISTENT TARDINESS AND ABSENCE Protocol – Violation criteria for absence/tardiness will be based on Level. Level I — a total of five (5) absences are reportable. Level II — a total of eight (8) absences is reportable. Level Ill — a total of ten (10) absences is reportable. At each level, three consecutive absences will result in a report of non-compliance being filed with the Court/Probation by the Case Manager (as reported to them by the Program Manager/Counselor). At any time the Counselor, Treatment Program or Case Manager reserves the right to disclose any single or series of absences or tardiness to the Court/Probation. All attendance records for the entire treatment episode may be requested by the Court/Probation at the time a non-compliance violation is filed by the Case Manager/Program. NOTE: Participants may request a Leave of Absence (LOA) if they are unable to attend scheduled program activities for an extended period, usually 15 days or longer. An LOA may be approved for a variety of reasons at the discretion of the Case Manager and Treatment Program (see Leave of Absence Policy). • ALCOHOL ABUSE Protocol – 1. Total abstinence from alcohol and/or other drugs during the time in program (and indefinitely for those who are chemically addicted) is the treatment goal for clients in this program. 2. Program sobriety is an absolute requirement for all clients. This is defined as the absence of alcohol and/or drugs in a person’s system, while present at the Assessment Center, Testing Center and Treatment Provider facility. Ventura County Proposition 36 Implementation Attachment II. Proposition 36 Non-Compliance Policy (Current) 3. Alcohol abuse will result in an attempt by treatment staff to re-engage the client and possible enhancement in the treatment plan. 4. If a violation of this requirement is suspected by any staff member, a form of Non- Compliance regarding the client may be sent to the Court/Probation. 5. The client may be dismissed from attending the program until further resolution by the Court. 6. Program has discretion in enforcing items 4 and 5. 7. Program sobriety will be enforced. Therefore, it is recommended that, in order to avoid risk of dismissal, no alcohol be consumed while in this program. REPORTING MATERIALS AND TECHNOLOGY Version A of the Non-Compliance Report (with attached chart documentation) will be sent by Program Manager/Counselor to ADP Case Manager/Assessment Team. Version B of the Non-Compliance Report (with the attached chart documentation or Case Manager’s Summary) will be sent to the Court/DPO. Fax and telephone will be utilized to transmit monitoring information at this time. Hard copies are available on request. Eventual Internet/LAN reporting will be proposed. Ventura County Proposition 36 Implementation 77 Attachment III. Addiction Severity Index 78 Ventura County Proposition 36 Implementation Attachment III. Addiction Severity Index Ventura County Proposition 36 Implementation 79 Attachment III. Addiction Severity Index 80 Ventura County Proposition 36 Implementation Attachment III. Addiction Severity Index Ventura County Proposition 36 Implementation 81 Attachment III. Addiction Severity Index 82 Ventura County Proposition 36 Implementation Attachment III. Addiction Severity Index Ventura County Proposition 36 Implementation 83 Attachment III. Addiction Severity Index 84 Ventura County Proposition 36 Implementation Attachment IV. Proposition 36 Treatment Services Matrix July 1, 2003 Ventura County Proposition 36 Implementation 85 Attachment V. Proposition 36 Satisfactory Completion of Treatment Form 86 Ventura County Proposition 36 Implementation Attachment VI. Proposition 36 Proposed Drug Testing Protocol Ventura County Proposition 36 Implementation 87 Attachment VI. Proposition 36 Proposed Drug Testing Protocol 88 Ventura County Proposition 36 Implementation Attachment VII. Proposition 36 Demographics Report FY 2003/2004 Ventura County Proposition 36 Implementation 89 Attachment VII. Proposition 36 Demographics Report FY 2003/2004 90 Ventura County Proposition 36 Implementation Attachment VII. Proposition 36 Demographics Report FY 2003/2004 Ventura County Proposition 36 Implementation 91 Attachment VIII. Probation Agency Prop 36 Yearly Stats FY 2003/2004 92 Ventura County Proposition 36 Implementation

R13: PARG3 The defendant shall read and sign CII Notification form and register pursuant to Section 11590 of the Health and Safety Code. After registration, the defendant has 30 days to register with the law enforcement agency in the city where the defendant resides.

R14: PAF12 Pursuant to Section 11350(d) of the Health and Safety Code, the defendant shall pay a fine of $3200, including penalty assessment. (This term included only if offense is a 11350(a)HS) 72 Ventura County Proposition 36 Implementation Attachment I. Proposition 36 Probation Terms for Formal Release

R15: PADAF Pursuant to Section 11372.5 of the Health and Safety Code, the defendant shall pay a fine plus penalty assessment of $160 to the Criminalistics Laboratories.

R16: PADPF Pursuant to Section 11372.7 of the Health and Safety Code, the defendant shall pay a fine and penalty assessment of $480 to the Drug Program Fund.

R17: PAAID1 Pursuant to Section 1001.10 of the Penal Code, the defendant shall participate in an AIDS education program. Call 805/652- 5902 to receive instructions for attending the AIDS class. The defendant must attend the class within three months of the defendant’s sentencing date or release from custody. Failure to attend and complete this class will result in a bench warrant. Proof of attendance must be provided to the probation officer.

R19: PADT2 Federal confidentiality laws would generally apply to all aspects of an individual’s participation in drug treatment. By accepting treatment rather than incarceration as a term of this probation, the defendant waives his/her confidentiality rights in order to allow Court to supervise and assess his/her treatment participation progress and his/her compliance with the rules of the drug treatment program as necessary.

R20: PAW3 The defendant shall not own, possess, or have under custody, control, or immediate access to any firearm, ammunition, oleocapsicum pepper spray, or tear gas.

R21: PYALL The Court finds that the defendant has the ability to pay and orders the defendant to pay all costs, fines, fees, and restitution.

R22: PYWF The defendant’s costs, fines, fees, and restitution are payable at $125 per month, beginning 5-4-04, unless accepted into the Work Furlough program, in which case said monthly payment shall begin forthwith. The defendant is directed to pay through the Superior Court Collection Unit, 800 South Victoria Avenue, Room 205, P.O. Box 6489, Ventura, CA 93006-6489. Ventura County Proposition 36 Implementation 73 Attachment II. Proposition 36 Non-Compliance Policy (Current) VENTURA COUNTY BEHAVIORAL HEALTH DEPARTMENT ALCOHOL AND DRUG PROGRAMS PROPOSITION 36 NON-COMPLIANCE POLICY POLICY It is the policy of the Alcohol and Drug Programs that a satisfactory level of compliance with the minimum program requirements be maintained in all Proposition 36 treatment cases. To that end, a client’s progress shall be monitored by the assigned program provider and Case Manager in a sufficient manner. Violations in compliance shall be reported to the Court. RESPONSIBLE PERSONS A. It is the responsibility of the assigned counselor/program manager to report all violations of compliance to the Alcohol and Drug Programs (ADP) Case Manager/Assessment Team (see attached Non-Compliance Report Form). B. It is the responsibility of the ADP Case Manager/Assessment Team Manager to initiate contact with the Court/Probation regarding all “strike” relevant violations or patterns of violations (see attached Non-Compliance Report Form). Additional documentation of the non-compliance episode/outcome shall be made in the Treatment Program chart. C. It is the responsibility of the ADP Case Manager/Assessment Team to report all such violations of compliance within two business days. D. It is the responsibility of the ADP Case Manager/Assessment Team to report back to the assigned counselor/program manager the disposition of the Court, prior to re-entry of the participant to that program. E. ADP/Behavioral Health Department (BHD) Quality Assurance (QA) review will monitor adherence to this policy. VIOLATION CRITERIA/PROTOCOL The Case Manager submits violation/non-compliance report with the Court/Probation within two business days of latest incident, utilizing the Non-Compliance Form (see attached). Clients will sign a program agreement that advises them of the need to adhere to the minimum program requirements in order to complete the program under Proposition 36. They are: 74 Ventura County Proposition 36 Implementation Attachment II. Proposition 36 Non-Compliance Policy (Current) • ASSAULTIVE AND/OR THREATENING BEHAVIOR Protocol – Single incident reporting. May be summarily dismissed and returned to Court. File Notice of Non-Compliance within two business days. • UNAMENABLE TO TREATMENT WITH PERSISTENT NON-PAYMENT OF FEES Protocol – Clients who are resistant to treatment and refuse to pay program fees may be determined to be non-compliant. Once this pattern has been established and documented, the Treatment Program will file a Notice of Non-Compliance within two business days. • NO SHOW FOR ASSESSMENT Protocol – Single incident report. May be summarily dismissed and returned to Court. File Notice of Non-Compliance within two business days. • REFUSAL OF TREATMENT OR NON-COMPLIANCE WITH TREATMENT Protocol – Serious and willful refusal to participate in treatment.* Attempt to engage and redirect client (limited to three attempts). Files notice after establishing pattern of refusal; clearly documented. Reporting to Court/Probation on Non-Compliance Form within two business days of latest incident. *Unamenable to drug treatment in that there has been a serious violation of rules, continues to refuse active participation, has repeatedly committed violations in program rules which inhibit their or others ability to participate or successfully complete treatment. • URINE TEST ALTERATION Protocol – Any adulteration of Urine Test or Drug Screen constitutes grounds for “strike” or summary dismissal and is to be reported by the Drug Screen Provider to the assigned counselor/program. Program informs the Case Manager. Reporting is to Court/Probation on Non-Compliance Form the day of the incident. All drug tests results for the entire treatment episode will be forwarded at the time a non- compliance violation is filed by the Case Manager/Program. NOTE: The drug testing contractor/Test Site Manager shall provide the precise protocol regarding matters of false samples, shy bladder and adulterated tests/screens. Ventura County Proposition 36 Implementation 75 Attachment II. Proposition 36 Non-Compliance Policy (Current) • POSITIVE DRUG TEST(S) Protocol – Less than three consecutive positive drug tests (or missed tests) remain at the discretion of the Program Manager/Case Manager to report to the Court/Probation. Three consecutive (or missed tests) or an overall total of five shall be the maximum in reporting violations to the Court/Probation. At any time the counselor, Treatment Program or Case Manager reserve the right to disclose any single incident to the Court/Probation. All drug tests results for the entire treatment episode will be forwarded at the time a non- compliance violation is filed by the Case Manager/Program. Subsequent violations (positive or missed screens/tests) will be reported to the Court/Probation when a client has provided two consecutive or a total of three positives. • PERSISTENT TARDINESS AND ABSENCE Protocol – Violation criteria for absence/tardiness will be based on Level. Level I — a total of five (5) absences are reportable. Level II — a total of eight (8) absences is reportable. Level Ill — a total of ten (10) absences is reportable. At each level, three consecutive absences will result in a report of non-compliance being filed with the Court/Probation by the Case Manager (as reported to them by the Program Manager/Counselor). At any time the Counselor, Treatment Program or Case Manager reserves the right to disclose any single or series of absences or tardiness to the Court/Probation. All attendance records for the entire treatment episode may be requested by the Court/Probation at the time a non-compliance violation is filed by the Case Manager/Program. NOTE: Participants may request a Leave of Absence (LOA) if they are unable to attend scheduled program activities for an extended period, usually 15 days or longer. An LOA may be approved for a variety of reasons at the discretion of the Case Manager and Treatment Program (see Leave of Absence Policy). • ALCOHOL ABUSE Protocol –

F83: There is judicial authority that expresses probation violations and amenability in these terms: “A defendant who violates probation by committing non- violent drug possession offenses is given two opportunities to reform. The commission of a third such offense, however, renders the defendant ineligible for probation.” This opinion goes on to note that, “Proposition 36 seeks to provide treatment only when an offender is amenable to treatment, and uses a defendant’s criminal history as a means of determining amenability. A first- time offender is conclusively presumed to be amenable to treatment. A second- time offender also is presumed to be amenable to treatment, but that presumption may be rebutted. A third-time offender is conclusively presumed to be unamenable to treatment and is ineligible for probation. For purposes of determining amenability to treatment, there is no reason to distinguish between persons who have tried and failed on probation prior to July 1, 2001, and those who have tried and failed on probation only after July 1, 2001.”23