California's Prop. 5 Could Change the Course of America's Drug War

By Silja J.A. Talvi, AlterNet. Posted November 1, 2008.

It was in Los Angeles in 1983, while I was attending John Burroughs Junior High, when I recall coming home and tuning into an episode of the popular ABC sitcom, Diff'rent Strokes. I remember watching intently as First Lady Nancy Reagan teetered onto the screen.

I watched that show the way I did most other American sitcoms having to do with race relations, with a studious blend of curiousity, fascination, and burgeoning media criticism. I hadn't been born in the U.S., but I'd been living in the diverse megalopolis since 1977. That was long enough to know that this country had rather serious, unresolved problems when it came to skin color, class, ethnicity, culture and language.

To say nothing of drug use.

There was no way to avoid it. Most of the kids in my public school were not from well-to-do families, but the children of the well-to-do were actually the first kids I saw with illicit drugs and cigarettes -- that was back in elementary school. After that point, I saw cigarette, drug and alcohol use everywhere, all around me, whether at the hands of rich kids buying and selling pills and powder for weekend parties, or self-destructing teens trying to flush trauma out of their bodies with copious amounts of Olde English malt liquor.

Standing in front of the television in our living room, I remember thinking, most vividly, that Nancy Reagan's head was enormous. I also clearly remember the smiles plastered on the cast member's faces as she adopted a motherly tone and explained that what the kids had to do was to "just say no to drugs."

It was an amazing bit of an accomplishment for the federal government's anti-drug crusade: let's work with Hollywood to beam the message straight into American homes, using one of the most popular shows on television at the time.

The thinking behind Nancy Reagan's appearance on Diff'rent Strokes probably went something like this: make it stern, but friendly. We want the kids to know that everything is just fine, and that everything will stay calm, as long as they say "no."

With the War on Drugs, the accompanying, implicit threat is also always there, whether it's spoken or not: If you don't listen to us, if you make a different decision, all bets are off. Once you use actually use an illicit drug -- and especially if you dare to sell one -- you have become something 'other.'

You have become a criminal.

The kind of criminal that California Governor Arnold Schwarzenegger was talking about when he announced his opposition to Proposition 5, the Nonviolent Offender Rehabilitation Act of 2008 (NORA), at a news conference this past week, in front of the Criminal Courts Building in downtown Los Angeles.

"[Proposition 5] is a great threat to our neighborhoods," Schwarzenegger was quoted as saying this week by the Los Angeles Times. "It was written by those who care more about the rights of criminals." Republican Gov. Schwarzenegger made his statement standing alongside four previous California governors: Gray Davis and Jerry Brown, both Democrats, and Republicans Pete Wilson and George Deukmejian.

Side-by-side, these five different men had the same, rabidly oppositional message about the sheer "danger" of Proposition 5, which is designed to divert tens of thousands of non-violent drug users away from incarceration; expand youth programs to prevent substance abuse and imprisonment; and mandate a continuum of rehabilitation and treatment options both during and after incarceration for people sentenced to do time.

Many initiatives and pieces of legislation end up being little more than hastily-conceived, reactionary proposals to what are perceived as public safety threats. This cannot be said of Proposition 5. In fact, NORA's drug treatment/education diversion is based around a well-conceived, three-tier system based on real clinical assessments, public safety, prior convictions, and ongoing evaluations (conducted by a new, 23-member Treatment Diversion Oversight and Accountability Commission), to make sure that the program is working as intended.

The proposition has been years in the making, in consultation with drug addiction recovery and rehabilitation experts, research scientists, even law enforcement and corrections personnel. The initiative is a big one, both in text length and impact: According to the independent Legislative Analyst's Office (LAO), the measure would require $1 billion in spending each year, something that would be completely offset by $1 billion in savings from the ever-increasing prison and parole budget in the State of California. To boot, the LAO projects an additional net savings of $2.5 billion over the next few years because unnecessary prison construction would not be undertaken.

The cost savings are undeniable, and terribly necessary. Currently, the cost to operate the California Department of Corrections and Rehabilitation (CDCR) stands at $10 billion, and operating capacity in some prisons exceeds 200%. Federal District Court Judge Thelton Henderson has given state officials under November 5th to cough up $250 million toward new prison healthcare facilities, or else face the likely possibility of a federal take-over. With at least one death a week attributable to inadequate and negligent healthcare, the CDCR has already been found to be in constitutional violation of the Eighth Amendment banning cruel and unusual punishment. This past week, the state's youth detention system was also under fire again, when Alameda County Superior Court Judge Jon Tigar accused the Division of Juvenile Justice of failing to take "even the most basic, fundamental steps to implement reform."

Indeed, this sudden flash of gubernatorial solidarity might seem outright bizarre until one considers the fact that all five men have played primary, mutually reinforcing roles in building, expanding, and mismanaging what now amounts to one of the largest prison systems in the world. As it now stands, the California state prison system "supervises" 318,411 people, nearly 173,000 of whom are held in captivity.

Among both men and women, at least 80% have some kind of substance abuse history. More specifically, nearly 30% of women doing time in the state prison system are in because of a drug-related offense. (For men, that figure is just under 20%.) Many addicts, it has long since been known, end up committing non-violent property crimes in order to support their habits. So, when drug offense-related and property crime-related crimes are added together, we find that over 60% of women are incarcerated for one or the other. Over the years, the women (and men) I've interviewed behind prison walls have spoken consistently of their need for substance abuse treatment, in tandem with the ability to obtain their G.E.D's (or even just learn to read basic sentences); counseling for histories of sexual, physical, and mental abuse; and vocational training. While behind bars, however, most never get anything of the sort: by the CDCR's own admission, only 5% of prisoners receive substance abuse treatment while they're locked up.

Proposition 36 did a great deal to wake California up to the fact that non-violent drug users could actually benefit from services and treatment, and not end up costing the average $46,000 per person, per year, that state prisoners currently do. The problem has been that drug court judges wield far too much power in deciding who gets treatment, and of what sort, something that NORA would help to remedy. In addition, first-time offenders wouldn't be the only ones getting help.

Paul Kobulnicky, 55, is now a drug and alcohol counselor in San Diego County, employed by the very same residential treatment program, Casa Rafael, that he says saved his life from an addiction that surely would have ended his life. Following an accident, Kobulnicky got addicted to Vicodin, something that led to an arrest, the loss of his chiropractor's license, a divorce, and then a slide into crystal meth addiction. "If it weren't for Proposition 36," he told me, "I would probably just have paroled, without any treatment for my problems."

Instead, he's not only gainfully employed and sober, but had his record wiped clean because he successfully completed the program. He's also trying to get his vocational license back (something not possible after a felony conviction), has happily remarried, and gotten close to his daughter again.

"I'm passionate about what I do and so grateful for my recovery," he said. "Look at what I've been able to do with my life. That's why Proposition 5 is so important. Other people need that chance." As in other people our society now defines, nearly across the board, as "criminals."

All five of the governors assembled to speak out against Prop. 5 were there because -- and I'll say it -- this initiative represents a threat to the justification for what they built. They also each played crucial roles in feeding that system by supporting endless pieces of legislation specifically designed to expand what it means to be a "criminal," and how long "criminals" should be punished. "Laws change, depending on what, in a social order, counts as stability," and who, in a social order, needs to be controlled," as Ruth Wilson Gilmore wrote in her 2007 book, Golden Gulag: Prisons, Surplus, and Opposition in Globalizing California.

Who needs to be controlled, indeed.

For these five men, and for legions of Americans hooked on the notion that people's substance use decisions can and should be controlled and punished by law enforcement and government, drug users are key among them.

Only now, the verbiage is changing to suit the times we're living in. That's because the demonization of non-violent substance users isn't playing as well to the American public. (A Zogby poll in early October revealed that three out of four U.S. voters think the war on drugs is "failing.") The strategic shift in language is, thus, to the "sellers."

Thus, the opposition to Proposition 5 is being cast, at this last minute, as a "drug dealers' bill of rights," and giving them a "get-out-of-jail-free-card," and that it's about protecting "violent" criminals. (In point of fact, Proposition 5 adds penalties for serious and violent crimes, including gang-affiliated crimes, which I object to on the grounds that each "serious" criminal case is unique and should be sentenced and paroled as such; and that gang-enhancements in California are already excessively punitive and too easily subject to prosecutorial/judicial prejudice.)

These phrases are being repeated in a multi-million-dollar media blitz, over and over, in a rather familiar fashion.

Not at all unlike what Nancy Reagan told child stars Dana Plato and Todd Bridges, both of whom eventually became drug addicts. Plato died from an overdose in her 30s. "Just say no. Just say no. Just say no."

That's a way of looking at drugs in America just as removed from the reality of the illicit drug economy as Nancy Reagan was.

What Californian voters need to know, if they're removed from the drug scene and are worried about all these "dealers" in their midst, is the following.

The fact is that people can be charged with an "intent to distribute" quite easily. It happens all the time. It can happen because of the amount of drugs found, and/or because a person has a certain amount of cash or drug containers on their person. It can happen because someone "snitches" to get out of trouble -- especially to avoid jail or prison time. It can happen someone who doesn't use drugs does a favor for a friend, cash in hand.

It can happen if you get arrested and can't or won't "roll" on other people. That's when law enforcement and prosecutors can decide that you're a "seller," and prosecute accordingly. (On the federal level, "conspiracy" charges intended for large-scale drug traffickers are handed out, with alarming frequency, to people who can't or won't cooperate with demand for "snitching," or participation in a sting operation.)

This is a different era now, of course, than the one that I grew up in living in Los Angeles, but the realities relating to drug use and sales are still largely the same. In July, an international survey published jointly by the Harvard Medical School and the University of New South Wales revealed that the United States still had the highest levels of cocaine and cannabis use in the world. According to the study, younger adults and people with higher incomes were indeed more likely than older adults to have used more kinds of illicit drugs. In total, over 16% of Americans surveyed had used cocaine in their lifetimes, and nearly half (42.4%) had used marijuana.

According to the authors of that report, drug use does not appear to be simply related to drug policy, since countries with more stringent policies towards illegal drug use did not have lower levels of such drug use than countries with more liberal policies." Taking the far less stringent Netherlands as a prime example, less than two percent of people in that country had tried cocaine, while just under 20% reported trying cannabis -- in a country where marijuana is available for purchase inside well-advertised and regulated "coffee shops."

There, in the Netherlands, the "sellers" are taxed and accountable for how they run their businesses (including the quality of what they sell).

Here, that's not possible.

As such, it is not unusual for people who use illicit drugs, whether recreationally, medicinally, or abusively, to sell them, as well.

These are certainly realities that many of American teens can still attest to, whether they live in Los Angeles or not. Whether I'm interviewing teenage girls in juvenile detention or talking with kids at a bus stop, or just chatting with my youngest, teenage sister in Seattle, I hear the same kinds of stories repeatedly.

Drug users and sellers are quite often one and the same, because they're existing (partially or completely) in an underground, illegal economy.

When the opponents of Proposition 5 try furiously to draw that distinction so as to strike fear into the hearts of voters, they resort to the kind of imagery that tells us that we're dealing with the scary monsters in our midst. We should know, by now, that there's nothing new about propaganda or fear-mongering in politics. But when it comes to crime, punishment, and drugs, the recent blast of sloganeering has taken another sickeningly familiar and excessive turn.

This time, the stakes are even higher than the average voter may realize. The very intent of the opposition movement to Proposition 5 is to derail what could be the most significant piece of sentencing reform legislation in modern American history.

You might expect to hear that from people in the drug policy reform movement, but consider listening to the words of the former warden of San Quentin (with two decades of service), and former director of the CDCR, Jeanne Woodford.

In a conversation we had the other night, this is what she told me: "I'm tired of not being able to have a real conversation with people when it comes to criminal justice. That's why I support Proposition 5. We have to be grown up enough to work with it, to change with it, to learn from what happens in the process of implementing it."

"That, she added, "is what we did with the U.S. Constitution."

But that's not how the forces rising up against Prop. 5 see it. The San Diego District Attorney even tried to get the California Supreme Court to get it wiped off the ballot on constitutional grounds.

Because people, she somehow reasoned, couldn't make these kinds of changes to state policies.

This is how Margaret Dooley-Sammuli, the Deputy State Director of Drug Policy Alliance/South California, sums up the key message of the opposition campaign: "Be afraid. Be very afraid."

In actuality, I'll tell you what we need to be afraid of: Propositions 6 and 9. The people behind the opposition to Proposition 5 are nearly identical to the people who back Prop. 6 and 9, but with those two propositions, they get a little bit more specific about who they're trying to lock (and keep locked) up:Old, sick prisoners, male and female alike. People who deserve to have parole reviews, but who won't be given that chance (if Prop. 9 passes). And where Prop. 6 is concerned? It's all there in black-and-white. Those"illegal aliens" and gang members.

Read: young men and women who are likely to be school drop-outs and have spent time in juvenile detention. Especially young men of color. People who congregate in groups of 3 or more, with "criminal" activity of some kind to cement the label they may or may not agree with.

Right now, Latinos are the largest ethnic group in men's prisons in California, followed by African Americans.

The fear-mongering around who and what these boys and men are -- and where they've come from -- is what Proposition 6, in particular, is all about.

The 'other.'

"The unholy and powerful alliance opposed to reform in California's gulag of a prison system is deploying tried, true and tragic methods in its campaign: fear and racism backed by big money. Throughout the history of the Golden State, appeals to these basest instincts have been used to keep down black, Latino and Asian "minorities." It's no coincidence that, for example, the No On 5 people are stirring up some of the same racist imagery, the same kinds of fears we've seen in the long line of racial history that runs from Jim Crow, to the Zoot Suit riots and Proposition 187," as journalist Roberto Lovato wrote in response to an e-mail I sent to him the other night. "The tragedy is that these appeals work not just with the aging white minorities who are the majority of voters; they also work with some Blacks, Latinos and Asians."

Especially where gangs are concerned.

If we understand drug users and abusers very poorly as a society, we understand gang members even more poorly.

And in the minds of the people behind these campaigns, they are a part of the same thing: people to be eradicated. And if we can't destroy them, let's cage them for as long as we can.

I've experienced a different slice of life, and I have to speak my mind about what it is that I've really seen, with my own eyes.

Gangs, too, were (and are) a reality of life in L.A. County -- and across the U.S., sometimes with attendant drug use and sales. The gang members I knew had sometimes been born into them, but most had joined later on, when their home lives had grown too dysfunctional, chaotic, and/or violent. Mostly, as I quickly learned by just listening to people talk about their lives, it was about belonging somewhere, about being protected and respected. Sometimes, it was also about making a living in the underground economy, where upward mobility was possible for a brown-skinned and/or low-income person from a neighborhood where cop cars and "ghetto birds" (police helicopters) were a constant part of the landscape. There were the "old-school" gangsters (the term applied to youth and adults alike) who stuck to strict codes of conduct, dress, and respect. They, in turn, tended to look down on the gang-members whose codes of conduct weren't up to the same standards, especially once they had started to mess with crack cocaine. Indeed, the level of violence that spilled out into the school hallways and streets in the 1980s had nearly everything to do with the crack cocaine and automatic weapons that had suddenly, almost magically, flooded the streets of L.A. like a toxic, infectious disease.

It would be many years before would begin to uncover the how's and why's of that particular phenomenon, in a shocking San Jose Mercury News investigative series entitled The Dark Alliance. And it would be many more years before that reporter's suicide, a tragedy attributable, in part, to the journalistic witch hunt Webb endured after the newspaper series came out at the hands of the government and his "colleagues" in the field, who doused his series with propagandistic attacks on Webb's research, integrity, and character. The thing is that Webb was right about just about everything he uncovered.

But American drug war history is still being spun by the "victors." And that needs to stop.

In 1941, George Orwell wrote something that has stuck with me: "The writers who have come up since 1930 have been living in a world in which not only one's life but one's whole scheme of values is constantly menaced. In such circumstances detachment is not possible. You cannot take a purely aesthetic interest in a disease you are dying from; you cannot feel dispassionately about a man who is about to cut your throat."

Here's my call, then, to all you California voters, in a way I've never said it before: Don't let power-drunk fear mongers cut your collective throat. Make sure you make an informed vote on Proposition 5, 6 and 9.

Thanks to Britt Madsen for her research assistance.

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Silja J.A. Talvi is an investigative journalist and the author of Women Behind Bars: The Crisis of Women in the U.S. Prison System (Seal Press: 2007). Her work has already appeared in many book anthologies, including It's So You (Seal Press, 2007), Prison Nation (Routledge: 2005), Prison Profiteers (The New Press: 2008), and Body Outlaws (Seal Press: 2004). She is a senior editor at In These Times.

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