July 20, 2006 – Not satisfied with the results of a California law that allows drug-law violators to choose between treatment and punishment, state policymakers have passed a bill that will allow judges to temporarily imprison those who skip the former.
Proponents of the bill argue that â€œflash incarcerationsâ€� can serve as a wakeup call to those who quit or become complacent with their drug-treatment programs. Critics argue the bill violates the central principle of the voter-approved Proposition 36, the statewide 2000 ballot initiative declaring drug addiction warrants treatment instead of punishment.
Upon passage of the enforcement bill on July 12, the Drug Policy Alliance, an organization that advocates decriminalizing drugs, immediately sued the state.
Arguing that â€œthe voters have spokenâ€� in favor of preferring treatment, Proposition 36 co-author Dave Fratello told The NewStandard that legislators â€œlost the debateâ€� on the subject and thus should not be end-running the popular will. Fratello is now the policy director for the Campaign for New Drug Policies.
The judge hearing the Drug Policy Allianceâ€™s case imposed a temporary restraining order, forbidding the state from enacting the new law. The group is now preparing for the next court date on July 28.
Each year since the start of Proposition 36 in 2000, around 30,000 people have entered treatment instead of prison, according to state-mandated studies conducted by the University of Californiaâ€“Los Angeles. According to the latest demographic statistics from 2004, 52 percent of them accessed treatment for methamphetamine addiction.
"People are afraid to change. Instead of forcing them to go to prison, force them to go to a recovery program."
The treatment programs range from methadone maintenance to drug prevention education, designed for drug-law breakers who have been using for less than a year or may not yet be physically addicted.
But the UCLA evaluation found that out of the 70 percent of defendants who show up for the programs, just 34 percent successfully completed it.
Stephen Manley, a former drug-court judge who now presides over the Santa Clara County Superior Court, said this rate of completion is too low and that â€œflash incarcerationsâ€� could jolt defendants into committing to treatment. Manley headed a task force of legal, law-enforcement and treatment officials two years ago to address lawmakersâ€™ concerns that not enough people were completing the program.
Fratello argued that jail is not a good motivating tool, and that there should be alternatives, especially when obstacles such as clashes in work schedules prevent people from going to treatment, and that adequately funding the program would help more people stay in the program.
Next yearâ€™s state budget provides $145 million in expectation of reforms to Proposition 36.
â€œPut some money in the outreach efforts to find [those who left treatment],â€� Fratello said. â€œIf the reason is childcare or [that] they donâ€™t have transportation, put some money into that,â€� he advocated, adding that such investments are cheaper than incarceration.
â€œWe are afraid thatâ€™s going to reduce treatment qualities, in ways that punishment canâ€™t fix. You canâ€™t have jail time to close the gap."
According to a federally mandated UCLA cost-benefit study on Proposition 36, the policy saves the state almost $2,900 per drug-law violator over 30 months, or a total of about $173 million.
The new bill would also amend Proposition 36 to require drug testing of those in treatment programs as a condition of their parole and base evaluation of program success on clean drug tests.
Dr. Peter Banys, a member of the executive council for the California Society of Addiction Medicine and critic of the new law, said that with the likelihood of relapse, the state should not expect a high success rate for drug recovery programs.
Banys told TNS that while some defendants entering treatment adjust well to the recovery process, others relapse and go in and out of treatment. â€œThe criminal-justice people want to put [defendants with mixed-treatment results] in jail, and the treatment people say we should think in a more complicated way,â€� he said.
Banys said imprisoning defendants after they begin treatment damages their recovery process.
He added that since quitting programs and relapsing is common in the general drug-treatment population as well, Proposition 36 defendants should be given second chances in the recovery process.
But Judge Manley points out that the new law is flexible and allows judges to exercise discretion when sending defendants to jail under its auspices. The bill allows judges to impose sanctions on â€œrelapsing, problematic or recalcitrant offenders, on a showing of need after consideration of important treatment, and other factors.â€�
Proposition 36 has not completely removed the punishment aspect, especially for poor people, who depend on government resources and must often get â€œtagged and baggedâ€ to receive treatment.
While the bill does not offer what these considerations might be, Manley said these factors can include the seriousness of the violation and whether the defendant is in school, caring for children, or in danger of losing his job if he gets sent to prison.
â€œI see good and bad in that provision,â€� Fratello responded. â€œItâ€™s not really a control on judges,â€� he said. While some judges may take such factors into account, not all of them will, Fratello speculated.
â€œFor instance if the judge knows [a defendant who skips treatment] will lose their job, nothing prevents the judge from putting them in jail anyway,â€� he said.
Oliver Hamilton, a warehouse manager in San Diego who avoided jail for a drug conviction because of Proposition 36, told TNS that incarceration â€œsolves nothing.â€�
Hamilton, who had been â€œdrinking and druggingâ€� for more than 30 years before he went through a residential drug-treatment program two years ago, said many drug-law violators with long-term addictions are more afraid of recovery than jail. â€œPeople are afraid to change,â€� he said. â€œInstead of forcing them to go to prison, force them to go to a recovery program. If they decide to leave then, then itâ€™s on them,â€� he said.
Advocates on both sides of the debate agree that if state officials are successful in getting more people in treatment through this bill, they will add more defendants to already-long waiting lines for drug treatment under a policy change that was not backed by sufficient government funding over the past six years.
â€œEven now the funding is probably not enough. When we wrote the initiative we made a guess,â€� Fratello said. â€œNow its 5,000 more people than we expected.â€�
County officials have told local reporters that their county will face budget shortfalls in implementing the law this year.
â€œWe are afraid thatâ€™s going to reduce treatment qualities, in ways that punishment canâ€™t fix. You canâ€™t have jail time to close the gap,â€� Fratello said.
Dorsey Nunn is a recovering addict and current member of All of Us or None, an advocacy group of former prisoners that fights discrimination against felons. For him,
Proposition 36 marked an important step in decriminalizing drug offenses, but has not completely removed the punishment aspect, especially for poor people, who depend on government resources and must often get â€œtagged and baggedâ€� to receive treatment. Police should not arrest people for drug possession, he said.
Nunn said poor addicts might access treatment only after theyâ€™ve been arrested or referred to treatment by Child Protective Services or probation officers.
He added that drug addiction is a â€œmedical or social problem that shouldnâ€™t be addressed by law enforcement.â€�