Drug Reform California Style

California's Proposition 36, a state voter initiative designed to divert 36,000 small-time drug offenders a year from incarceration to treatment, passed overwhelmingly last November. Drug reformers hailed the bill as a landmark move but, as with all legislation, the devil is in the details. When it was inaugurated on July 1, each of the state's 58 counties was charged with drafting its own implementation plan. Because control is localized, some counties are still emphasizing punishment over treatment.

At least that's the case made by the Lindesmith Center - Drug Policy Foundation, one of the main Prop. 36 proponents. In late June, the private, non-profit reform organization released a formal assessment of 11 California counties, containing 75% of the state's population, are implementing Prop. 36. The assessment uses a traditional 'A' through 'F' letter grading system. While some counties go to the head of the class -- primarily San Francisco and San Mateo -- San Bernardino received a failing grade, and Sacramento, San Diego and Santa Clara just squeaked by.

The Lindesmith Center judged the counties based on whether they followed the "will of the voters." That is, do the counties approach first- or second-time drug offenders with a public health model, or is the criminal justice tail wagging the treatment dog? The counties that got a Lindesmith 'A' or 'B,’ including Alameda, Orange and Los Angeles, sought to remove drug offenders from the criminal justice system. Counties get low grades when too much money was devoted to supervision through their probation departments.

The struggle over divvying up $660 million over the next five years in guaranteed, locked box state funds is as basic as it gets. "This is a fight over money and jobs and operational control, yes," said Lindesmith's Prop. 36 implementation director, Whitney A. Taylor. "A shift of resources from one official body to another, from law enforcement to public health."

Chronically under-funded probation departments have requested up to two-thirds of Prop. 36 monies, though they typically have marginal oversight of non-violent users. Similarly under-funded treatment providers are eager to slice the pie otherwise, mindful that one traditional way for them to access funds has been to get into bed with the criminal justice system. Speaking at the annual Lindesmith conference, held this June in Albuquerque, Dorsey Nunn, program director of San Francisco's Legal Services for Prisoners with Children declared, "That half-a-billion dollars -- it doesn't belong to the police. I don't care if the cops ever get new police cars."

California Governor Gray Davis opposed the initiative and adopted a hands-off approach after its passage, despite the fact that California's drug incarceration rate (115 per 100,000 population) is more than twice the national average. Given that incarceration costs some $24,000 a year while treatment averages $4,000, diverting 36,000 offenders annually will provide an estimated $1.5 billion savings in the law enforcement and corrections budgets over the program's five-year life. (There's also a projected one-time, $500-million savings from not having to build a new prison.)

Despite the large savings, there's been much grumbling at the county level that the $660 million will prove insufficient to the task. Dell Sayles-Owen, deputy director of California's Department of Alcohol and Drug Programs (ADP) admitted that the state doesn’t know in an "empirical way" how much will be needed to effectively implement Prop. 36, "and there are fears among some of our stakeholders in the counties that it won't be enough."

The state ADP department provided scant concrete guidance in drafting the plans, though it did subsequently approve them. Given the regulatory vacuum, each of California's 58 counties was free to divvy up its share of the money. Taylor stated, "The state ADP took such a hands-off approach, we basically have 58 different plans. Even a simple state cap on the percentage allocated for non-treatment expenses would have been worthwhile."

That view was not echoed by Sayles-Owens. Referring to the division of monies between treatment and supervision, she said, "The law doesn't specify, nor do our regulations specify. Local decisions are left to the counties on how much to allocate to criminal justice versus treatment."

Therefore, this spring’s contest will be fought annually at the county level, with probation departments, the cops and the courts struggling to maintain budgetary and operational control, and Prop. 36 advocates striving to enforce what they view as voters' intent to beef up California's treatment infrastructure. As Taylor told the recent Lindesmith conference, "There are 58 different fights in 58 counties. Opponents of Prop. 36 -- judges, prosecutors, sheriffs -- in each county you have the foxes guarding the hen house."

California’s expected battles over Prop 36 bear watching as Americans grow ever-wearier of locking up their sons and fathers, mothers and daughters in a 30-year drug war that shows no signs of ending. The same troika of millionaire drug reformers -- George Soros, Peter Lewis and John Sperling -- who backed the initiative (Soros also funds Lindesmith) has indicated they intend to push similar treatment-over-incarceration ballot initiatives in Michigan, Florida and Ohio in the 2002 elections. Given that an ABC News poll found that 69% of Americans favor treatment over jail for first and second time drug offenders, similar initiatives could soon succeed around the country, as did the medical marijuana initiatives funded by the three men. Even President Bush has called for $1.6 billion in new federal money for drug treatment.

While issuing letter grades is a nice conceptual technique, appealing to the press and public alike, a private group's ability to steer recalcitrant counties in their direction remains to be seen. Sayles-Owen said that one county she declined to identify called her, concerned about Lindesmith's critique, but it was a moot point since she'd approved its plan that very day. Regardless of the response, Lindesmith certainly plans on invoking last November's huge Prop. 36 victory. Taylor said, "With 61% of the vote, you can afford to throw your weight around."

Asked about the utility of a private group trying to shape a public law, Taylor said, "We were among the original proponents of Prop. 36. We don't want to be seen as a group that helps institute new laws and then leaves without trying to guarantee success." Noting that the counties will retool their plans with each annual appropriation, Taylor added, "We want to try to help voters take action with this information." Toni Moore, Sacramento County Alcohol and Drug Administrator, declared Lindesmith's effort interesting, and said she understood their interest and motivation since they're, "in essence, the authors of Prop. 36, they want to see it as they envisioned it."

Lindesmith’s report card analyzed each county’s plans based on four parameters. The first was the proportion of money earmarked for treatment versus non-treatment costs such as probation, law enforcement and the courts. They declare that 17%, or $20 million, is "sufficient to supplement established county administrative and criminal justice systems." Money beyond that 17% figure is "stolen from treatment and endangers the success of Prop. 36."

The second parameter was the availability of various treatment options, including education and prevention, outpatient treatment and halfway houses, methadone therapy, in-patient treatment and detox. (Literacy training and family and vocational counseling are also to be provided under Prop. 36 funds when needed.)

"Docs or cops" is what Lindesmith terms the third parameter: the relative operational prominence of public health versus law enforcement. That is, do public health professionals take the lead in assessment and case management? Lindesmith asserts that Prop. 36 shifts the locus of responsibility for eligible offenders from prosecutors, judges, probation and corrections to public health officials, and that this redefinition of respective roles requires law enforcement to defer to public health. Taylor said, "We have to make sure that Prop. 36 is not just co-opted into the criminal justice system and that it doesn't just become another drug war tool."

Sayles-Owen said that responsibility will depend on the quality of the working relationship among the various public officials in individual counties. "Prop. 36 is a sentencing law change, and it's appropriate that the criminal justice system is heavily involved."

One important component of this question is whether urine testing is used as a therapeutic tool or to kick someone out of the program or revoke probation. Undue emphasis on urine tests may just mean more of the same for addicts: two or three failed tests and you're out. Taylor asserts that treatment professionals typically know when clients are still using, and that urine tests should be used, not to kick someone out of a program, but to parade their continued dependence before them. The issue provoked defiant, albeit informal, talk at the Lindesmith conference of treatment providers just plain failing to inform probation departments of failed drug tests. Treatment advocates worry that even a couple of failed tests will revoke a clients' probation and send him or her off to jail for one to three years.

The fourth parameter is community involvement, including whether publicized community forums were held and whether the task forces that drew up the implementation plans included public health officials and even "consumers." Membership on the 58 task forces and their subsequent decisions didn’t come easy. As Taylor told the conference, "Treatment professionals were on the task forces drawing up the county plans, but they lacked power compared to the law enforcement folks fighting for a piece of the money."

Extra credit, not reflected in the overall grade, was given to Los Angeles, Orange, Riverside and San Francisco counties since their district attorneys issued sentencing guidelines which hopefully will lessen the sort of deliberate over-sentencing that makes defendants ineligible. Offenders convicted of anything from an ill-defined intent-to-distribute charge, to resisting arrest, to even loitering or trespassing in some derelict crackhouse, are ineligible for Prop. 36 diversion. As for marijuana, California potheads convicted of possession of personal-use amounts typically don't face any jail time.

Taylor told the Lindesmith conference, "It's up to the DA what constitutes personal use. If you have only two grams, but it's in two separate baggies, that can be said to be intent to distribute."

Said Doug McVay, research director for the Washington, D.C. reform group, Common Sense for Drug Policy, "California has a horribly racially biased and unbalanced criminal justice system." Given no articulated demarcation between possession and dealing, "I imagine that most Prop. 36 defendants will be white. Prosecutors have that discretion, and it gets abused."

Sayles-Owen would only say cryptically: "There is the possibility of behavior-changing effects of Prop. 36. Will DAs continue to charge cases the same way? My observation to that is we were told we'll see changes. The law says who is eligible. The big question mark is decisions regarding plea bargaining." She would not specify what changes in DA behavior she anticipates.

Dorsey Nunn, who's African-American, was less cryptic. He told the Lindesmith conference, "The DA is not going to jump up and down and sprinkle frou-frou dust on my homeboys."

By all these criteria, the 11 counties fall under a pretty classic bell curve: San Francisco got an 'A' and San Mateo an 'A-.' Alameda and Orange counties got 'Bs' and Los Angeles a 'B-.' Fresno and Riverside got 'Cs'; and Santa Clara and San Diego 'D+s.' Sacremento sleazed by with a 'D.' Finally, the sole 'F,' Lindesmith declared that San Bernardino "fails voters," and lacks any "commitment to quality treatment." Rather, with an undue "bolstering of criminal justice programs," it has "an implementation plan that is likely to fail."

Sayles-Owen did acknowledge, "The first year will be very telling, and we reserve the right to look at performance and local decisions." In reply to a question, she declared the whole effort "quite the experiment, yes."

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