Prop 36: Treatment for
Non-Violent Drug Offenses

If California follows Arizona's lead, it will undo a failed policy that has jammed our prisons with drug users - most of them with no criminal activity other than that drug use.

In spite of this, the use of drugs like heroin, cocaine and amphetamines has remained remarkably constant, and continues to pose public health and safety problems.

Thousands of non-violent, often mentally ill drug offenders have been thrown into prisons with real predatory criminals. They are frequent victims of physical and sexual abuse. Many develop severe mental illness under the stress, and suicide is a frequent occurrence.

Those non-violent offenders who survive prison are all eventually released back to our communities, many of them scarred by traumas that will make recovery and re-integration into normal society far more difficult.

There is also a growing recognition of the chaos policies have created in communities of poverty, where most incarcerations occur. Imprisoning half a million adults leaves over a million of their children without a parent. This is especially catastrophic when mothers are incarcerated.

We are now witnessing the incarceration of a second generation of drug users whose parents were lost to the prison system. There appears to be a self-perpetuating cycle occurring: incarcerations of parents place their children at similar risk.

The Physician Leadership for National Drug Policy (PLNDP) is a group of nationally recognized physicians who have joined efforts to examine this alarming trend. Lonnie Bristow, MD, past president of the AMA, stated the following in a recent PLNDP drug policy publication: "Despite the best intentions of government policy makers and law enforcement officials, the current criminal justice driven approach is not effectively reducing, let alone controlling, drug use in America."

Proposition 36 is a response to this crisis in drug policy. It mandates that non-violent offenders whose only crime is drug possession shall be "sentenced" to drug treatment and probation instead of incarceration. Drug treatment is far more effective and far less costly than incarceration. Yet fewer than 20 percent of users have access to treatment. And there is only token treatment in the criminal justice system.

While drug courts represent government recognition of the need to provide alternatives to incarceration for low-level offenders, in practice drug courts have a minimal impact on the prison problem.

Courts have developed an over-reliance on incarcerations for positive drug tests, without giving treatment sufficient time to work. Prop 36 gives treatment time to work.

There is broad healthcare support for Prop 36. However, law enforcement is united in opposition, led by the powerful prison guard union. Law enforcement representatives argue that Prop 36 will weaken drug courts by restricting the ability of judges to incarcerate for positive drug tests. They feel this will allow predatory criminals to escape incarceration.

Other arguments focus on limitations on money for drug testing, and theoretical "loopholes" that are more smoke than substance. However, the argument that Prop 36 weakens the authority of the courts to incarcerate is true. They can incarcerate only if the person refuses treatment or fails to respond to three treatment attempts. This is the crux of this initiative.

Currently, drug courts use what are called "shock incarcerations" for those who test positive for drugs. These usually last a month. Individuals who fail to respond to these "shocks" go to prison. There is research evidence that these incarcerations are an effective tool in reducing drug use.

However, drug treatment alone is quite effective in facilitating abstinence. We don't have clear answers to how necessary "shock incarcerations" are.

Prop 36 mandates that the University of California do a scientific study of the initiative, and one important element would be to assess whether restrictions on "shock incarcerations" limit the effectiveness of drug courts. We do know that a similar initiative in Arizona achieved high recovery rates. Shock incarcerations for positive tests were not used.

Whether incarcerations are necessary depends a lot on the population eligible for treatment under Prop 36.

In a recent National Public Radio program on the initiative, a California prison guard lobbyist stated that all users of illicit drugs committed crimes to support their drug use. The moderator followed up with the observation that a 1998 National Institute of Drug Abuse study found that 93 percent of illegal drug users committed no such crimes.

This dichotomy captures the problem of accurately informing the people about drug policies. Do we believe the California Correctional Officers Association or the National Institute of Drug Abuse?

Research suggests that a small number of predatory addicts commit the large majority of crimes associated with addiction. These are people with primarily anti-social personality disorders, whose criminality preceded their addiction and who commit crimes other than drug possession. They would not fall under Prop 36. The majority of illicit drug users are far less criminally involved.

The Arizona Supreme Court recently released a very positive assessment of the 1996 voter initiative, which also mandated treatment as an alternative to incarceration. The report states that Arizona has: implemented and validated a statewide substance abuse assessment instrument to be used in the courts; increased treatment capacity in every Arizona count; instituted a statewide outcome monitoring system; found that 75 percent of probationers remained drug free; and saved $2.5 million in its first year of operation. There were no serious problems reported as a result of this shift from incarceration to treatment.

The courts in the State of New York recently mandated a treatment approach for similar non-violent drug offenders, using the Arizona model as an example of a better system.

Arizona is clearly way ahead of us in having a rational system that effectively defers low-level offenders into treatment. By contrast, California's drug courts cannot even be called a system. There is no standardization of who is eligible, of what constitutes treatment, or of how much drug testing makes sense.

Some courts mandate "treatment" services that have no proven efficacy, and most forbid highly effective treatments, such as methadone. Some jurisdictions have no drug courts. California courts serve so few offenders that they have a negligible effect on the prison problem.

The evidence suggests that Prop 36 is much needed in California. Experiences with a similar measure in Arizona suggest that such reforms are safe and effective.

jjm_md@pacbell.net