Feature: California's "Treatment Not Jail" Law Faces New Attack from Old Foes 7/15/05

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California's Proposition 36, the Substance Abuse and Crime Prevention Act, passed with overwhelming voter approval in 2002. Since then, the state has allocated $120 million a year to provide treatment instead of jail or prison time to nonviolent first- or second-time drug offenders. Advocates of the program hail it as a success, but the same groups that opposed the measure in the first place, namely law enforcement and drug court organizations, are now backing a bill that would remold the program to more resemble traditional drug courts, where judges, not medical professionals, ultimately make the treatment decisions.

Under Prop. 36, thousands of drug users have been able to get off dope and taxpayers are saving roughly $250 million a year in incarceration costs, advocates said. According to an UCLA study of Prop. 36 last year, 34% of program participants successfully completed the program. But while supporters hail that figure as a sign of success, critics point out that the success rate is higher in the more tightly structured drug courts and that 31% of Prop. 36 participants were re-arrested.

With funding for Prop. 36 set to expire in 2006, those critics see an opportunity to alter the program now. Senate Bill 803, sponsored by state Sen. Denise Ducheny (D-San Diego), which has already passed the Senate on a 36-2 vote, would allow judges to throw Prop. 36 clients in jail for short periods if they fail to comply with treatment programs.

The bill would increase compliance rates, Ducheny told the Oakland Tribune. "We're not saying in any way that folks should be incarcerated for the drug conviction," Ducheny said. "What we're saying is there needs to be a way to put you back in the program if you fall out."

"We, along with the drug court judges, opposed this from the beginning," said Ronald Brooks, head of San Francisco High Intensity Drug Trafficking Area office and president of the National Narcotics Officer Associations Coalition. "We felt it was not structured so there were enough sanctions to force people into treatment. We have long advocated a three-pillar strategy of prevention, treatment, and drug enforcement, but Prop. 36 does not have the teeth it needs to be effective. If you really study the statistics, it's clear it isn't working," Brooks told DRCNet.

But it worked for Paul Colbert, a Sacramento resident with a 22-year methamphetamine habit and multiple unsuccessful prison and treatment stints under his belt. In a Monday teleconference organized by supporters of Prop. 36, Colbert said the program was what he needed. "I see people I used to do drugs with and they say they can't believe I got clean," Colbert said, adding that he'd been drug free for 3 1/2 years.

"Prop. 36 did not promise a silver bullet," but it is achieving results, said Glenn Backes, director of health policy for the Drug Policy Alliance. More than 10,000 people completed treatment in the program's first year and 12,000 in the second year, he said, citing the UCLA study.

The program is achieving results for California taxpayers, as well, Backes said. "The legislative analysts' office estimated $150 million a year in savings from not sending people to prison and a half a billion dollars in savings from not opening two prisons. Our rough estimate is that we will have saved a billion dollars in the first four years of Prop. 36," said Backes.

Don't mess with success, he warned. "We want the governor and the legislature to step up and fund Prop. 36 for providing adequate treatment instead of incarceration," he told the teleconference. "The Ducheny bill tries to make Prop. 36 run according to the wishes of those who lost in 2002."

Support for the current incarnation of Prop. 36 extends beyond drug reformers to include medical organizations and civic and religious groups. "Chemical dependency is a medical and public health problem that demands an appropriate solution," said Lisa Folberg of the California Medical Association during the teleconference. "Under [the Ducheny] bill, judges would be making decisions about appropriate addiction treatment. We think they need to be made by people who understand treatment."

"It's rare in public life to enact something that makes a great deal of common sense and moral sense. That's what this program does," said the Rev. Peter Laarman of the Los Angeles-based Progressive Christians Uniting during the teleconference. "We are just heartbroken to see this pushback against Prop. 36 by people who never understood or accepted it and who don't want to leave the carceral model. We do not want to see Prop. 36 undermined," he said.

The Ducheny bill is a "sleight of hand" effort to undo Prop. 36, said Dr. Peter Banys, a University of California, San Francisco psychiatry professor, director of substance abuse programs at San Francisco's Veterans Administration Medical Center, and representative for the California Society of Addiction Medicine. "Our organization is very concerned about this bill. We oppose it in the strongest possible terms as an effort to overturn the will of the people," he said. "It is being advertised as an improvement to Prop. 36 by creating a so-called drug court model, but it reverses and erases the defining elements of Prop. 36."

While "flash incarceration" may be appealing to law enforcement types, it doesn't work, Banys said. "As an evidence-based organization, we have looked into this concept and there is virtually no evidence to support that. But when your only tool is a hammer, everything starts to look like a nail. The voters of California are ahead of law enforcement and even the politicians on this. They realize people who are addicted need medical help, and that's what we're trying to provide."

While Prop. 36 opponents were able to sail the Ducheny bill through the Senate, it has had a rougher go in the Assembly. Opposition in the Assembly Health Committee held it up for most of June, but it passed out of that panel last week and is now pending before the Public Safety Committee. But the effort to defend Prop. 36 is now up and running, and defenders are ready to do battle in the Assembly.

Even if the bill were to pass, there is a good chance it will be found unconstitutional under state law. According to an opinion authored by the Legislative Council's office on June 30, the bill would "directly alter the scope and effect" of Prop. 36, which became law via a voter-approved initiative. Under California law, only the voters can alter such a law, that opinion strongly suggests.

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Issue #395 -- 7/15/05

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