The Probationers' Roulette Game

The United States has been engaged in the so-called "war on drugs" for seven presidential administrations, or more than 30 years. But for all the hand-wringing and exasperation in this seemingly endless campaign, one fact is often overlooked: Drug offenders who go into the system as users often come out of the system as users.

According to the U.S. Department of Justice, approximately 40 percent of probationers have drug restrictions attached to their sentence, and most of these are assigned a drug testing regimen to keep them clean. But the probation system, especially as it is arranged in Los Angeles, is struggling for breath. Officers are meant to oversee hundreds of probationers each, drug testing is irregular, and different judges mete out different punishments for identical violations, all leading probationers to believe they can beat the unpredictable justice game and keep using.

In the meantime, Governor Arnold Schwarzenegger's 2004-2005 budget effectively cuts $66 million from the Los Angeles County Probation Department (under the Temporary Assistance for Needy Families grant), which will slow the frequency of drug testing for narcotics offenders on probation and increase the number of adult probationers on a single officer's caseload to 500.

"You really dilute the effectiveness of a probation officer when you have such a large case load," says Robert Smythe of the L.A. County Probation Department. The cuts will also eliminate the specialized narcotics testing category.

Instead, those drug probationers "will be thrown into what we call 'minimum service caseloads,'" says Smythe. That means they report electronically. "[They] go to a kiosk, their hand print is scanned, it identifies them, they answer some questions on the machine, and they're done for the month," says Smythe.

Though the courts can still mandate drug testing, fewer probationers will get close attention and random drug testing will become more common, rather than consistent check-ups to make sure addicts kick the habit, says Smythe.

"There's no higher priority for crime control than getting a community correction [probation] system that can monitor and change people's behavior without paying their room and board bills," says Mark Kleiman, director of the Drug Policy Analysis Program at UCLA's School of Public Policy and Social Research. "Doing that will cost money, and budget cuts take us in exactly the wrong direction." Kleiman points to research showing that 40 percent of all heavy heroin and cocaine users are on probation. If the probation system could get a handle on that hard-core market segment, those drugs would command a far weaker grasp on society.

Kleiman is an advocate of a different kind of probation system called testing-and-sanctions which features "small, certain, and immediate" punishment for failing drug tests.

To compare: The average drug probation program today is like a roulette game. Drug tests are often random and failing them leads to arbitrary punishments that depend on the strictness of the particular judge. That translates into very little incentive to stop using on any given day, to get clean for a test that may never come. Inevitably, a strict judge eventually takes the case, lays down a tough prison term, and the probationer goes to jail, still addicted, for an extended time at great taxpayer expense.

That's why the system fails, says Kleiman. "The performance of the system to date has been pretty poor. We're in a very bad cycle of low resources, low morale, [and] poor performance leading to lower resources leading to lower morale leading to lower performance," he says.

Testing-and-sanctions is different. Drug testing is pre-arranged and happens often and regularly. For every violation, a small but immediate punishment ensues. One failed test equals that night in jail, every time, without fail. Under testing-and-sanctions, probationers know they cannot play the odds and gamble against the system, and they cannot put off punishment indefinitely, hoping that a judge will be lenient.

Kleiman points to evidence from the Washington, D.C. Drug Court and a testing-and-sanctions program in Lansing, Michigan to indicate that the system works: Addicts are more likely to quit successfully and not be re-arrested. "There isn't an example of a full-scale [testing-and-sanctions] program going on in a large jurisdiction," Kleiman admits. The problem, he says, is ensuring that the courts play along with the Probation Department.

"Say L.A. County Probation started doing a better testing program. Will the courts deliver the [small and immediate] sanctions? And if not, then what's the point? What you really want is internal sanctioning capacity within the Probation Department, which would [require] new legislation," says Kleiman. Such a move is bound to be controversial, as it would take power out of the hands of judges.

Kleiman estimated a testing-and-sanctions program might cost approximately $100 million per year in Los Angeles County. "If you thought about it from a crime control point of view, it would be a bargain," he adds. "You wind up saving money from not having to put the offenders back in prison and not having to put their dealers in prison because you take away their best customers."

Kleiman admits, though, that those prison savings would accrue to the state, not the county. "If I were advising the county, I couldn't really tell them that this wouldn't cost a lot of money. Though the gains may be worth it in terms of reduced crime in the county, basically we'd be subsidizing the rest of the state."

Given California's massive expenditures for imprisoning people under the Three Strikes law, those savings could be enormous.

In the end, though, it is the probationers who will suffer most under the 2004-2005 cuts. "The contact [with the officer] is very important, but so is counseling, referral to services, and ensuring that they are doing things like community service or attending school or drug rehab. We make sure they attend those programs," says Smythe. Evaporating funds mean that attendance might soon be optional.

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