California's prison system is in crisis. With some 172,000 inmates, the state's prison system is second only to the federal system in size, and its budget has ballooned by 79% in the last five years to nearly $8 billion annually. Still, the system is vastly overcrowded and faces two federal class-action suits seeking to cap inmate populations because overcrowding is resulting in the state not delivering constitutionally adequate medical and mental health care.

overcrowding at Mule Creek State Prison (from cdcr.ca.gov)

Now, after years of inaction in Sacramento in the face of the crisis, a well-funded initiative campaign that would result in a seismic shift in California sentencing and prison policies, especially when it comes to drug offenders and those whose offenses are related to their problematic drug use, has gotten underway. Dubbed the Non-Violent Offender Rehabilitation Act (NORA), the initiative would dramatically expand the treatment and diversion options made available under a previous reform initiative, Proposition 36, as well as reform parole and probation programs, and make simple marijuana possession an infraction instead of a misdemeanor.

About 35,000 California inmates, or about 20% of the prison population, are doing time for drug offenses. An unknown number, certainly in the thousands and possibly in the tens of thousands, are doing time for offenses related to their drug use. It is these offenders and their future brethren at whom the NORA initiative is aimed.

Sponsored by the Drug Policy Alliance Network, the lobbying arm of the Drug Policy Alliance and the Santa Monica-based Campaign for New Drug Policies, the people who engineered the successful Prop. 36 campaign, the NORA initiative would:

• Create a multi-track diversion program for adult offenders. Track I provides for treatment for nonviolent drug possession offenders with a plea held in abeyance during treatment. For those who wash out of Track I, Track II provides Prop 36-style treatment after conviction, with graduated sanctions for probation violations, including eventual jail time. Track III is an expansion of existing drug court programs, with stronger sanctions than the other tracks. Judges would have the discretion to use Track III not only for drug offenders, but for any non-violent offenders whose crimes are linked to their drug use. Track III would be mandatory for those identified as "high-cost offenders" (five arrests in the past 30 months). The initiative would fund the diversion and treatment program at $385 million per year.
• Create drug treatment programs for youth. NORA would invest about $65 million a year to build a prevention and treatment program for young people where none currently exists.
• Require California prisons to provide rehabilitation programs to all exiting inmates at least 90 days before release and for up to a year after release at state expense.
• Allow nonviolent prisoners to earn sentence reductions with good behavior and by participating in rehabilitation programs.
• Cut parole periods for qualifying nonviolent offenders to between six and 12 months, instead of the current up to three years. Early discharge from parole could be gained with completion of a rehabilitation program.
• Make simple marijuana possession an infraction (ticketing offense) instead of a misdemeanor.

Not only would NORA mean freedom for thousands of nonviolent drug and drug-related offenders, it would also save California billions of dollars. Prop. 36 is estimated to have saved at least $1.3 billion in five years by diverting offenders to treatment, and the California Legislative Analyst's Office projects that NORA could generate a billion dollars a year in savings for the prison system, as well as obviating the need for a one-time prison-building outlay of $2.5 billion.

Paid canvassers for NORA are already hitting the streets in California. They have until April 21 to gather some 435,000 valid signatures to put the measure on the November ballot. NORA will make that goal, organizers vowed.

"We've just announced this to our members and started gathering signatures," said Margaret Dooley-Sammuli of the Southern California office of the Drug Policy Alliance Network. "We're very excited. It looks like the largest sentencing and prison reform in American history will be on the November ballot."

"This is Prop 36 on steroids," said Dale Gieringer, executive director of California NORML. "If it passes, this will lead to a comprehensive rewrite of all of California's laws regarding sentencing, probation, and parole for nonviolent, drug-related offenses. And this is a professional campaign. The measure will be on the ballot in November," he flatly predicted.

"Prop. 36 has been such a success, it has been extensively studied and proven, but the biggest problem is that it isn't big enough," said Dooley-Sammuli. "Combined with the difficulty of getting any prison reform through and of even obtaining adequate funding for existing reforms because of the impasse in Sacramento -- we've seen so many prison reforms die there -- we thought we really needed to put this on the ballot for stable funding, more treatment, and more diversion," she said.

"But NORA is not just about expanding Prop. 36," Dooley-Sammuli was quick to point out. "This is primarily a prison and sentencing reform effort. It brings common sense solutions to the problem of over-incarceration in California, especially the over-incarceration of nonviolent offenders in this state."

"The state has been incredibly reluctant and negligent in addressing the whole problem of nonviolent prisoners," said Gieringer. "Every effort to extricate drug offenders from the prison system has been seen as a political hot potato and has gone nowhere. Sentencing reform is political poison in Sacramento, yet we have this simmering prison crisis here in California."

If the politicians refuse to act, said Gieringer, it is time to take the issue directly to the voters. "This initiative is very justified because of the negligence of California's political class in not dealing with these issues," he said. "In fact, it is overdue, and now we the people have to try to come to grips with the failure of our political leaders to act. And I think we have the public on our side. The polling on this has been very favorable. Most people think nonviolent drug offenses should be handled with treatment, not prison."

"We have federal judges considering whether to take over the entire state prison system," said Dooley-Sammuli. "We don't have solutions coming out of Sacramento. We have very real budget problems that mean we can't afford to keep spending what we are on incarceration. NORA reallocates state spending from incarceration to treatment and rehabilitation, so we will end up with substantial savings over time," she predicted.

Gov. Schwarzenegger's move to release some prisoners early is necessary, but not sufficient, said Dooley-Sammuli. What is needed is not one-shot fixes, but systemic reforms, she said. "NORA is not a one-time opening of the jailhouse gates," said Dooley-Sammuli, "This is about systemic change in our sentencing and parole practices. This is not radical; it's common sense. This is not soft on crime; this is smart on crime. NORA will allow us to get past the politicking and get some solutions."

At this point early in the campaign season, there is no organized opposition, but that is almost certain to change. Too many powerful groups, from prosecutors to prison guards, benefit from the status quo, and fear-mongering on crime issues is a perennial favorite among politicians.

"The question is whether there will be any well-funded political opposition," said Gieringer. "Then there might be a real fight. But we haven't seen an opposition committee form yet. That's the real question mark."

NORA organizers have done their best to blunt opposition at the early stages by bringing potential opponents into the process, said Dooley-Sammuli. "We made many, many efforts to make this a collaborative process by reaching out to a wide variety of stakeholders. This has been a broad effort to bring in as many perspectives and sets of expertise as possible, and we've tried to make friends instead of foes," she said.

Coerced drug treatment is not the best of all possible worlds. But it's difficult to argue that drug law violators are better off in prison than in treatment. The NORA initiative will give California voters a chance to take a giant step in sentencing and prison reform and a small step toward true justice for drug users.

Even as law enforcement and its allies in Congress move to restore funding for the embattled Byrne Justice Assistance Grant (JAG) program, which is best known for funding the legions of state- and local-level multi-jurisdictional drug task forces that now roam the land, the Bush administration has struck again, this time proposing folding it into a broader grants program and funding it at only $200 million. Now, law enforcement will have to fight a rear-guard action to get back last year's cuts while at the same time having to try to persuade Congress to undo the cuts proposed in this year's budget.

Sen. Harkin leads press conference calling for restoration of Byrne funding

Funded at $520 million last year, the two-decade old JAG program that allows states to supplement their anti-drug spending with federal tax dollars was already down substantially from previous funding levels. For the past three years, as a cost-cutting move, the Bush administration has tried to zero it out completely, but that has proven extremely unpopular with Congress. This year, the House voted to fund the block grant portion of the program at $600 million and the Senate at $660 million, but in last-minute budget negotiations, the White House insisted the funding be cut to $170 million.

While federal funding for law enforcement drug task forces would appear to be a sacred cow in a law-and-order Republican administration, there are several reasons the JAG program is a tempting target for cost-cutters, said Eric Sterling, executive director of the Criminal Justice Policy Foundation and former counsel for the House Judiciary Committee.

"First, Bush is not running for reelection, so there is no political cost in that sense," Sterling said. "And if Congress does listen to the cops, Bush can blame Congress for exceeding his budget."

And the pressure of looming cuts feeds into the third reason JAG is now on the line: bureaucratic imperatives. "The budget deficit is a real headache for all agencies," Sterling said. "For a manager within the Department of Justice faced with cuts that would lay off FBI agents or US Marshals or faced with cutting a program that only gives money to someone else, the choice is easy. It's much easier for Justice to say 'let's cut this.'"

That sort of decision is made a little easier by a 2005 OMB report that undoubtedly is one of the underpinnings of the Bush administration's effort to cut the program. OMB described the program as "results not demonstrated," and found that it scored extremely poorly when assessed for planning and design, strategic management, and results and accountability. The same sort of assessments lay behind other drug war programs the administration has cut or attempted to cut, such as the drug czar's youth media program and the National Drug Intelligence Center, which is once again on the chopping block.

As the Chronicle noted in our recent report on the battle over JAG program funding, the drug task forces have been repeatedly criticized by drug reform, civil liberties, and civil rights organizations as out-of-control cowboys responsible for scandals like Tulia and Hearne, Texas. But such criticisms have played no noticeable role in the administration's assault on the program.

Nor have they resonated with a bipartisan group of senators who last week announced they would seek to reinstate 2008 fiscal year funding for the JAG program at a level of $660 million. Led by Sen. Tom Harkin (D-IA), the effort is also being backed by Sens. Kit Bond (R-MO), Joe Biden (D-DE), Saxby Chambliss (R-GA) and Dianne Feinstein (D-CA).

"Without financial support, Iowa communities are forced to combat crime and drugs with fewer and fewer resources. More than 10 Iowa counties have been forced to shut down their task forces because of funding cuts. This gutting of drug prevention programs cannot continue," Harkin said at a press conference announcing the move. "My aim is to restore Byrne Grants to a level that will give local law enforcement officials in Iowa and across the country ample funding for already successful anti-crime and anti-drug initiatives."

The senators' initiative is being supported and prodded by a powerful coalition of law enforcement groups, including the National Criminal Justice Association (NCJA), the National Narcotics Officers Associations Coalition, and the National Association of County Officials.

"Let there be no room for doubt, communities everywhere will see the effects of this bill and its cuts to criminal justice funding," said NCJA president David Steingraber. "A cut to the JAG program is a cut to local law enforcement and victims of crime everywhere. Congress has just made the job of every police officer in this country more difficult. Members of Congress have turned their backs on local law enforcement officers who are now forced to make due without significant federal assistance," Steingraber said. "It is our hope these drastic cuts are not a long-term solution to a federal fiscal problem. The safety of our nation is far too important and deserves adequate funding, with violent crime back on the rise".

But despite the formidable lobbying power of the police and their allies, the future of JAG funding remains in doubt. And drug reformers will unite with fiscal conservatives and the Bush administration in a strange alliance to try to keep the funding cuts intact.

"The reason the JAG funding was cut at the last minute last year was that it was obvious that Bush would veto it, and it remains clear that he pretty much wants to eliminate it," said Bill Piper, national affairs director for the Drug Policy Alliance. "This year's appropriations process is just starting, but what is interesting and hopeful is that because Bush wants to eliminate it completely, that is going to make it harder for the Democrats to restore last year's funding."

But not impossible. As law enforcement proponents of restoring the money told the Chronicle last week, they will try to get it back any way they can, including attaching it to either the economic stimulus package or the supplemental war funding appropriation. It's the latter that has Piper worried.

"The Iraq supplemental doesn't have to fit within the overall budget, and Bush would be reluctant to veto his war spending bill," he said. "I know law enforcement and some senators are already talking about this. Our challenge is to reach out to fiscal conservative organizations and craft a message that funding shouldn't be restored, but if it is, it should be earmarked for treatment. It can already be used for that, but most states don't."

The JAG grant program is but one line item in a record-breaking, deficit-building, $3 trillion dollar 2009 federal budget. But it is one line item that could stand to be completely eliminated. That probably won't happen this year, but it seems likely the drug task forces are going to have to limp along with reduced funding, persuade state and local governments to cough up more money, or go out of business once and for all.

As part of a massive just unveiled state budget, New York Gov. Eliot Spitzer (D) is proposing to require anyone who buys, sells, transports, or possesses "all marijuana and controlled substances" to have a "tax stamp" for the illegal substance. Spitzer's provision proposes a $3.50 per gram tax on marijuana, but a whopping $200 per gram tax for cocaine.

Iowa drug tax assessment, submitted anonymously by a Chronicle reader -- click to enlarge in separate window

Under the proposal, the tax would be paid in advance of purchase by the "dealer," who would buy stamps from the state Department of Taxation and Finance, which he must then affix to the packages of drugs to show the tax has been paid. In the foreseeable event that dealers do not rush down to the tax office to pay up, the bill requires state police agencies and prosecutors to report any dealers who haven't paid their drug taxes to the department, unless reporting them would jeopardize a pending criminal investigation.

The governor's office said the tax would generate $13 million in the 2008-09 fiscal year, and $17 million a year after that. The revenues would be deposited in the state general fund. To be enacted, the move must be approved by the legislature.

In a Wednesday press release, Ethan Nadelmann, executive director of the Drug Policy Alliance, said he had his doubts about the bill. While Spitzer's proposal might be superficially appealing, New Yorkers would be better off taxing and regulating marijuana, he said.

While the idea of taxation is reasonable, he continued, "these tax stamp bills and laws smack of the gratuitous piling on of punitive sanctions that permeates the overall drug war." In addition to arrest and imprisonment, drug violators already face all sorts collateral consequences, and imposing the drug tax as yet another burden would "end up causing more harm than good," he said. Nadelman went on to point out that Spitzer could save far more money for New York taxpayers by following through on his campaign commitments regarding reform of the Rockefeller drug laws.

And he took the opportunity to push for fundamental reform of the marijuana laws. "[Q]uite frankly, New Yorkers would most benefit from a serious proposal to tax, control and regulate marijuana more or less like alcohol is today," he said. "Even though New York decriminalized marijuana possession in the 1970s, it still arrests people for that offense more frequently than most states that never decriminalized it. New Yorkers spend many tens of millions of dollars per year for this foolish excess, when instead the state could earn even greater amounts from taxing this ever popular consumer product. Overall consumption would likely rise only modestly given the widespread and easy availability of marijuana today notwithstanding its illegality. Virtually all New Yorkers -- both those who like marijuana and those who have no interest in it -- would benefit."

Bizarrely, Sen. Martin Golden, a former NYC police officer and a Republican from Brooklyn, criticized the drug tax from the opposite direction. Golden told the New York Post, "another pie-in-the-sky idea that really has no legitimacy, and hopefully is not a first step toward legalizing drugs."

Verenda Smith, government affairs associate at the Federation of Tax Administrators, told the New York Times that states need to create an at least theoretical opportunity for drug sellers to pay the tax legally, such as anonymous purchase, for it to be constitutional.

According to the Spitzer administration, 29 states have already passed laws imposing drug taxes. But several of those laws have been challenged, most recently in Tennessee, where a state appeals court ruled last September that the state's drug tax law was unconstitutional because the state cannot tax something it declares illegal.

The Office of National Drug Control Policy's (ONDCP) National Youth Anti-Drug Media Campaign took a major hit as Congress finalized the fiscal year 2008 budget this week, and the District of Columbia won the right to spend its own money on needle exchange programs, but when it comes to drug war law enforcement, Congress still doesn't know how to say no. Instead, it funded increases in some programs and restored Bush administration budget cuts in others.

less of this next year

"It's a mixed bag for sure," said Bill Piper, director of national affairs for the Drug Policy Alliance (DPA). "They cut the anti-marijuana commercials, but at the same time they gave a lot of money to law enforcement. There was some trimming around the edges, but Congress didn't do anything about fundamentally altering the course of the drug war."

The Justice Department budget was the source of much, but not all, of the federal anti-drug law enforcement funding, including:

• $2.1 billion for the Drug Enforcement Administration (DEA), a $138 million increase over 2007, and $53 million more than the Bush administration asked for.
• $2.7 billion in state and local law enforcement crime prevention grants, including the Byrne Justice Assistance Grants, which fund the legion of local multi-jurisdictional anti-drug task forces. That's $179 million less than in 2007, but the Bush administration had asked for only about half that.
• $587 million for the Community Oriented Policing Services (COPS) program, $45.4 million more than last year. The Bush administration had proposed cutting the program to nearly zero.

US Capitol, Senate side

"It seemed all year that the Democrats would try to restore some of the cuts from previous years, and they did," said DPA's Piper. "On the one hand, the Democrats say they want to quit locking up so many people, but at the same time, they're passing out money like candy to law enforcement, and that only perpetuates the problem," he added, citing the Justice Policy Institute's recent report showing that the more money that goes to law enforcement, the more people get arrested for drug offenses, and the greater the proportion of black and brown people locked up for drug offenses.

The funding cut for ONDCP's widely ridiculed media campaign was a bright spot for DPA, which, along with the Marijuana Policy Project (MPP) has been lobbying for the past three years to kill the program. The two groups were joined on the Hill this year by Students for Sensible Drug Policy (SSDP), and all of them hailed the at least partial victory on media campaign funding.

In repeated federal studies, the media campaign has been found to be ineffective -- and sometimes even perverse, in that some studies have found exposure to the campaign make teen drug use more, not less, likely. Among those are a series of reports by Westat commissioned by the National Institutes on Drug Abuse and a Government Accountability Office review of the Westat studies.

"It's $60 million more than the program should be getting, but it is a significant reduction, and we're really happy with it," said Tom Angell, SSDP government relations director. "The federally funded evaluation shows it actually causes teens to use more drugs, not less. In the most objective analysis, the program is simply not working. We shouldn't be spending a dime of taxpayer money on that," he said.

"That's a step in the right direction," said Bruce Mirken, communications director for MPP. "The drug czar's ad campaigns have been largely based on misinformation and exaggeration, and anything that reduces that is a good thing. Since the drug czar has shown he has no interest in doing appropriate and factual drug education, the ideal funding level would be zero, but we're getting closer," he said.

"At its height, the ad campaign was getting $200 million a year, and now we've got it down to $60 million," said DPA's Piper. "Thankfully, Rep. Serrano and the other Democrats had the courage to cut this stupid and ineffective campaign. We've been lobbying to kill it outright, but it's really hard just to cut a program, let alone kill it in one fell swoop. We have to do it in baby steps," he said.

Congressional concern over ONDCP media operations also manifested itself in another section of the appropriations bill that restricts it and other federal agencies from producing video news releases (designed as "prepackaged news stories" for local TV news programs) unless they are clearly labeled as being funded by that agency. In a GAO report examining ONDCP video news releases, the government watchdog agency qualified them as "covert propaganda."

Also as part of the omnibus appropriations bill, the District of Columbia has won the right to spend its own money on needle exchange programs, which it had been barred from doing by congressional conservatives. But Congress did not go so far as to undo the 1998 rider authored by then drug warrior Rep. Bob Barr that blocked the District from enacting a medical marijuana law approved by the voters.

All in all, as Piper said, "a mixed bag." Drug reformers win a handful of battles, but the drug war juggernaut continues full ahead and federal money rains down on drug war law enforcement like a never-ending shower. And those federal funds seed the state and local drug war machine where most of the action takes place.

"Congress needs to stop paying the states to do bad things," said Piper. "The drug war perpetuates itself because the states don't have to pay the full costs; the feds subsidize it, so the states have little incentive to reform. But the vast majority of drug arrests are by the states, and they should have to pay the full cost for police and prisons and all those expenses associated with the drug war. Until that happens, it's going to be hard to get reform at the state level; that's why it's so sad the Democrats are undoing some of those cuts that Bush made."