With election day less than two months away, the battle over California's groundbreaking "treatment not jail" initiative is heating up. Known as the Nonviolent Offender Rehabilitation Act (NORA) and appearing on the ballot as Proposition 5, the initiative would divert thousands of drug users and drug-using lawbreakers into drug treatment and away from the state's bulging and budget-draining prisons. In doing so, it would build upon and greatly expand the effort begun with the passage of the "treatment not jail" Proposition 36 by voters in 2002.
According to NORA supporters, the initiative:
- Requires the state to expand and increase funding and oversight for individualized treatment and rehabilitation programs for nonviolent drug offenders and parolees.
- Reduces criminal consequences of nonviolent drug offenses by mandating three-tiered probation with treatment and by providing for case dismissal and/or sealing of records after probation. Limits court's authority to incarcerate offenders who violate probation or parole.
- Shortens parole for most drug offenses, including sales, and for nonviolent property crimes.
- Creates numerous divisions, boards, commissions, and reporting requirements regarding drug treatment and rehabilitation.
- Decriminalizes possession of less than an once of marijuana.
The complex, ambitious proposal would not be cheap -- estimated annual costs to the state to implement it would be about $1 billion per year. But according to a July 1 analysis by the nonpartisan Legislative Analyst's Office, that spending would be more than offset by savings to the state of more than $1 billion annually in reduced prison and parole costs and a net savings of $2.5 billion in prison construction that would no longer be necessary.
NORA has broad support from a long list of California groups and individuals, including not only the entire treatment and recovery community, but also the League of Women Voters, labor unions, the former warden of San Quentin, and former US Secretary of State George Schultz.
"The treatment community gave Prop. 36 only mixed support at the time," said Al Senella, chief operating officer of the Tarzana Treatment Center and president of the California Association of Alcohol and Drug Treatment Program Executives, both of which have endorsed Prop 5. "But as far as I can tell now, there is total support for the initiative in the treatment community. I don't know any treatment organizations opposing it."
"When you look at the Yes on 5 coalition, you find a wide array of addiction and public health advocates, youth advocates, the League of Women Voters, consumer federations, and on and on," said Margaret Dooley-Sammuli, Southern California deputy state director for the Drug Policy Alliance, which has spearheaded the Prop. 5 effort. "It really shows the breadth and diversity of Yes on 5; it really gives you a sense of what California has to gain and from how many perspectives," she said. "When you look at the 'no' side, it is dominated by law enforcement. That's very revealing."
While NORA has broad support from the treatment and recovery community and beyond, it is opposed by a formidable array of law enforcement and drug court interests. It has drawn the ire of the National Association of Drug Court Professionals, which slammed it in a position paper earlier this year, as well as the opposition of virtually all of California's sheriffs, district attorneys, police chiefs, prison guards, and probation officers.
Although the opposition had been relatively quiet until this month, last Friday it fired a broadside over NORA's bow when noted actor Martin Sheen penned a "no on NORA"
op-ed in the Sacramento Bee. Sheen wrote that he opposes Prop 5. because "it will do so much harm to so many people" because it lacks the teeth to punish offenders who fall off the wagon. "Successful rehabilitation needs accountability and so often demands direct intervention in the life of someone who is addicted to drugs, rather than waiting for them to seek treatment 'when they are ready,'" he wrote.
Prop. 5 is the product of "harm reduction theory" and would shift resources from programs that meet his approval, such as Narcotics Anonymous, Sheen complained. "The real problem with Proposition 5 is that it is not about stopping drug use," he wrote. "If it were, it would mandate funding for ongoing drug testing instead of prohibiting that funding, and it would not give drug sellers a reward for the harm they do to so many." The initiative is "poorly designed and dangerous," Sheen warned.
"I certainly respect Martin Sheen's feelings and experiences, but to generalize and universalize them to public policy is the wrong approach," responded Dooley-Sammuli. "We don't want to decide what's best for 36 million Californians based on one man's perspective. He's concerned that Prop. 5 won't work, just like he was concerned that Prop. 36 wouldn't work, but we know now that it did work. I'm not so sure Martin Sheen is up to speed on the research in these areas, and he's wrong again. I'm disappointed he isn't any closer to achieving understanding."
"Martin Sheen is a celebrity, and perhaps that will sway some folks, but he did the same thing with Prop. 36, and he didn't sway enough folks," said Senella. "I respect the fact that he and his son had issues and overcame them, but his position is driven by his personal views, not by the data and expert opinion. And while he wrote an op-ed, I don't see him putting up millions for an effective opposition campaign. He is just giving the opposition a voice, not financial muscle."
Sheen isn't alone. While the powerful state prison guards' union, the California Correctional Peace Officers Association, hasn't taken an official position on Prop 5 -- mainly because it is busy trying to recall Gov. Arnold Schwarzenegger (R) over budget issues -- it will do so soon, said union spokesman Lance Corcoran.
"We haven't taken an official position, but we have done an analysis, and we see this as basically a get out of jail free act," he said. "We think Prop. 36 has arguably not been successful, and we think Prop. 5 will be a failure, too. This is not something that will be good for California," he warned.
Susan Blacksher is executive director of the California Association of Addiction Recovery Resources, the largest residential treatment care provider organization in the state. For Blacksher, NORA is a necessary deepening and broadening of Prop. 36, whose success was limited by lack of resources, she argued.
"Prop. 36 didn't anticipate the sheer volume of need, and similarly, many counties did not fully recognize the magnitude of their addiction problems," she explained. "They assumed they would be picking up people who were early in their drug-taking careers, but almost from the beginning we began to see that the people coming through the program had more severe problems than anticipated. There were just not enough resources for the volume of people and the severity of their problems."
Arguments made by law enforcement and the drug court organizations that NORA should be opposed because it did not offer sufficient sanctions for relapses was "like throwing out the baby with the bathwater," Blacksher said. "NORA has been brilliantly crafted taking into account all the issues we've been discussing over the past six years, and there was a lot of discussion about sanctions. Some of us in the recovery movement think short term sanctions like flash incarceration can make sense if used as part of treatment, and not just punishment," she said, "but why are we making such a big deal about this when the rest of it makes so much sense?"
Blacksher said she understood the frustration of law enforcement and drug courts over the issue of sanctions, but it was not enough to invalidate NORA. And, as she noted, "Their jails and prisons are so full, something has to happen."
"You would think the judges and prosecutors who led the way on drug courts would support what will be the nation's largest expansion of drug courts," said Dooley-Sammuli. "I'm disappointed there as well. What I think we're really seeing is a turf battle, where folks would rather protect their turf than support what will be an expansion of drug courts. Unfortunately, the folks who run those courts are resisting what have been proven to be the best practices."
"The drug court people believe strongly in accountability, and so does the treatment community," said Senella, "but the drug court people believe they should have full authority. Prop. 36 didn't give them that, and neither does NORA. NORA does give them a great deal, it gives them additional authority, but not as much as they want. And although drug courts will get substantially more funding under NORA, they oppose it because it imposes some criteria on them about when they can impose their sanctions."
"I was alive in the 1960s when we went through this drill before," said Michael Rushford of the conservative, victims' rights-oriented Criminal Justice Legal Foundation. "Crime rates tripled while we were diverting felons to the streets. Not everyone remembers that and, unfortunately, if you don't learn from history, you're doomed to repeat it," he said.
"Sure, I could see some diversion for juveniles, but when you're talking about felony offenders, there need to be consequences," Rushford continued. "Prop 5. would let somebody with $50,000 worth of meth avoid prison; it would let a repeat car thief avoid prison. It's a bad deal."
"These kinds of arguments are simply not based on facts or an accurate reading of the initiative," said Senella. "You can't have $50,000 worth of meth and just walk away; you can't go around stealing cars and just walk away. For these kinds of cases, judges will have complete discretion. If the judge decides this guy is stealing cars because he's strung out on something, he may be a good candidate for diversion, but it is in no way a free ticket out of trouble."
Despite five years of evaluations and annual reports on the efficacy of Prop. 36, neither the legislature nor Gov. Schwarzenegger have taken the initiative to implement the recommendations of the various reports. That's why it's up to the public, said reform advocates.
"People say California needs this, but something this big should go through Sacramento," said Dooley-Sammuli. "We say yes it should, but it hasn't. The federal courts have already taken over medical care in our prisons and there is a November 17 hearing to see if they should put the entire California Department of Corrections under receivership as well. The state government has proven incapable of action on this."
"The legislature and the governor can't or won't acknowledge what the public believes is important and what the science has demonstrated," said Senella. "In approving Prop. 36, the public showed that it was important to voters and their loved ones that treatment was a priority instead of prison as a method of dealing with addiction," he said.
"The only way to move forward on this is through the initiative process," he said. "That's why we need and support NORA. What has gone on in California corrections is clearly not working -- we have the second highest recidivism rate in the nation. Our current approach is not what the science indicates is necessary. It's absolutely clear that if you treat the addiction, you do a great deal for the recidivism rate."
"One way or another, the future of prison overcrowding in California will be decided in November," said Dooley-Sammuli. "Either by the voters on election day or by three federal judges later in the month. Rehabilitation and treatment has a lot of support among California voters. So far, we have let addiction drive our record-setting incarceration rates. The voters understand that."