More than 140,000 people arrested for drug possession have received treatment instead of prison or jail time, and 60,000 of them have successfully completed treatment in the five years since California voters overwhelmingly passed Proposition 36, advocates of the law announced during a Tuesday teleconference called to release a new report and urge continued support for Prop. 36. But despite the law's success, the end of five years of stable funding mandated by voters means new struggles to adequately fund it and a new effort by old foes to pervert its spirit.
"Prop. 36 is the rare ballot measure that actually delivered on its promise," said Assemblywoman Jackie Goldberg (D-LA) during the conference call organized by the Drug Policy Alliance and the Campaign for New Drug Policies, two groups that sponsored the initiative and have since worked to nurture it. "We need to continue this program that is clearly working. It is a popular program and it is sound public policy. We need an appropriate level of funding. Under-funding it will kill it by making it unable to work properly."
In passing Prop. 36, voters mandated the state of California spend $120 million a year to implement it during its first five years, but with the 2006-2007 budget, the funding is no longer assured and is subject to normal budgetary processes. Gov. Arnold Schwarzenegger (R) has budgeted another $120 million for the coming fiscal year, but that will not be enough to adequately fund the program, supporters said.
"What the governor is proposing will not fully fund the need that exists," said Don Kurth, head of the California Society of Addiction Medicine. "It will make a difference, but no, it is not enough," he told DRCNet. "It's as if you had a condition that required 10 days of treatment with antibiotics, but you only funded three days worth. It'll help a little, but it's not the answer."
According to the Legislative Analyst's Office, Prop. 36 spending currently exceeds $120 million a year because the counties are using savings from previous years, when they had fewer cases, to pay for more services. In 2005, it said the state and counties spent $143 million on Proposition 36.
"The governor proposed keeping current levels, but funding needs to go to at least $140 or $150 million," said Dave Fratello, senior policy analyst for the Campaign and one of the law's authors. "The state Department of Alcohol and Drug Programs is calling for $209 million to adequately fund these costs." It's worth it, Fratello maintained. "We are confident that every dollar will be recouped. The more money you put into this program, the more money the taxpayers save," he told DRCNet.
One of the most striking features of Prop. 36, and one that generated opposition from drug court judges and the law enforcement apparatus from the beginning, is its express prohibition of jailing clients for relapsing. But Schwarzenegger's proposal would allow judges to impose jail sanctions -- the preferred euphemism is "flash incarceration" -- on people in treatment who fell off the wagon. A bill proposed by Senator Denise Ducheny (D-San Diego), SB 803, would do the same thing, but its "flash incarceration" could last up to 30 days.
"Flash incarceration has been the bone of contention," said David LaBahn, executive director of the California District Attorneys Association, one of the key groups seeking to add more coercion to the mix. "Folks like the Drug Policy Alliance say people change because they want to change, but practitioners say the threat of jail is the only reason people succeed in treatment. It's external factors that get people in treatment, and if no one ever puts any pressure on them, they won't change."
Not all practitioners agreed with the ones LaBahn talked to. "There is no evidence to show that flash incarceration is helpful," addiction specialist Kurth said flatly. "That is not something we typically do in the treatment world. I don't tell judges and prosecutors how to do their job, and they shouldn't be telling me how to do mine."
"Prop. 36 represents a public repudiation of the war on drugs, and the same people who fought Prop. 36, the incarceration industry and the criminal justice system, are trying to 'improve' it in a way that erases the public health approach in favor of the criminal justice approach," said Dr. Peter Banys, director of substance abuse programs at the VA Hospital in San Francisco during Tuesday's conference call.
Assemblywomen Goldberg said imposing jail sanctions would not fly. "They just don't seem to have any factual information which suggests it would make the program more effective," she said Tuesday. "We believe it puts us right back into the old way of doing things.
Opponents have sniped at Prop. 36 from various directions, most of them related to the law's lack of good old punitive features like jail sanctions. But supporters of the law argue that those objections don't stand up to scrutiny.
"One of our biggest problems with Prop. 36 is that 42% of them never show up," said LaBahn. "The completion rate they talk about is only after they've written off almost half the people referred. If you have treatment without accountability, you will have a very low completion rate," he told DRCNet. "Treatment without accountability can't be called any sort of success," he added.
"The real number of no-shows is 28%," said CNDP's Fratello, "and they happen for a couple of reasons that don't really speak to whether or not this is a good law. For some people, the bureaucratic trek from court to assessment center to treatment center is too much to handle, often because people simply don't have transportation. We can address that my making it simple, putting the assessment center and the treatment center in the same place, having probation assessment and treatment assessment at the same time, things like that. These are folks who often don't have it together -- maybe no car, no driver's license, not used to doing things on a schedule. They're not refusing treatment, they're just unable to do it the way things are now."
The second group of no-shows is trying to game the system, Fratello said. "They basically refuse treatment once they realize it will be a serious commitment." But those people pay a price. "They typically have warrants issued for their arrest, and we are hearing anecdotally that they end up with more severe sentences."
Critics also charge that Prop. 36 has undercut the state's drug court system. "These are courts handling drug offenders with other felonies or who had already failed treatment 36 times or didn't qualify for Prop. 36," said LaBahn, "but as a result of Prop. 36 what was a growing movement has pretty much been killed off."
"The drug courts are like any bureaucracy; they become self-perpetuating," said Kurth. "The judges would naturally like to see the drug courts grow, but I don't know why judges think they're experts in addiction treatment because they don't have the expertise to make these decisions," said Kurth. "Their infatuation with jail sanctions underscores that. Addiction is a disease. Would you want to jail diabetics who go off their diet?"
There is still a vestigial role for drug courts, suggested DPA's Fratello. "The drug courts have evolved to serve a harder core population, and that's actually a positive development," he said. "There are people who don't qualify for 36 -- low-level dealers, people convicted on a non-drug offense -- and people who drop out of 36. If you screw up on 36 and the judge thinks you might still have a chance in treatment, he might put you in drug court."
Critics have also attacked Prop. 36 as having a low success rate, but according to the report, the success rate is 34% after two years, compared to 37% for drug courts and 30% for voluntary drug treatment admissions. "The numbers are pretty much the same," said Fratello.
While Prop. 36-style "treatment not jail" are certainly an improvement over imprisonment for drug use, they do not address the fundamental issue of drug prohibition, and might even make ending drug prohibition more difficult, some drug reformers argue. "This is better than sending people to jail," said DRCNet executive director David Borden, "but no one should be subject to criminal penalties merely for using a certain substance -- whether they agree to treatment or not -- and it follows from that that a legal, regulated way for people to obtain those substances needs to be found." Borden continued, "the possibility that some defendants are ending up with longer sentences than they might have otherwise should also sound a cautionary note."
This year, Prop. 36 and its supporters, including the California Medical Association, among others, will have to fend off efforts to twist it into merely another tool of the coercive apparatus while at the same time fighting to increase funding levels in what promises to be a year of bruising budget battles. But these battles are a sign of changing times brought about by Prop. 36 itself.
"Nobody is talking about going back what we had before," said Fratello. "No one is talking about repealing Prop. 36. There is talk about changing it, which I find disturbing, but we are now at a point here in California where the discussion about how to deal with drugs is all about treatment, and it wouldn't sound like that without Prop. 36."