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Getting the Treatment 

Proposition 36 is based on a noble idea: substituting drug treatment for prison sentences. But the measure needs practical help.

Wednesday, Jun 13 2001
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I've seen Lydia -- a woman whose warm, graceful manner belies her difficult life -- three times since we were children: once at a funeral, again at a wedding, and a third time when her stepfather died.

The first time was 15 years ago at a Colma graveside service for Lydia's brother Gary, my childhood best friend. His life had spiraled into drugs and alcohol before he died of AIDS.

Nine years later I saw Lydia's face at my sister's wedding. I stared perplexed for a long time -- too long, perhaps -- because this person looked the same age as Lydia when she and I were grammar-school classmates.

"This is Angela, Matt," Lydia's mother said. "She's Lydia's daughter."

Lydia was in jail, as she had been on and off during much of her addiction-plagued adult life, and couldn't attend the wedding. Lydia's mother had long since taken over Angela's upbringing.

The last time I saw Lydia was in her mother's living room, a couple of hours before her stepfather's funeral four months ago. Lydia smiled and said, "I only see you at funerals," in a tone that combined gentle humor and mild lament in such a way that I couldn't help but smile, too. Lydia had gotten out of jail the preceding Friday, having served her sentence on charges relating to substance abuse. During the graveside service Lydia petted Angela's hair so tenderly and earnestly, she seemed to know she'd only be out a short time. Last week I heard Lydia was in prison again.


There are few people in America who don't have a Lydia in their lives -- a basically decent person who's been crippled by addiction, who's been endlessly in and out of the criminal justice system, at least partly because of his or her inability to resist the call of mind-altering substances.

In an effort to deal humanely with this reality, last fall two-thirds of Californians supported Proposition 36, a ballot measure designed to send nonviolent drug offenders to medical treatment, rather than jail. Besides requiring that first- and second-time drug abusers be placed in treatment, the law also forces county governments to add new resources to drug treatment programs, so they can accommodate people who would have gone to jail or prison under previous law.

But like the dysfunctional addicts it aims to save, Proposition 36 appears to be spiraling toward disaster. As the July 1 date for the implementation of Proposition 36 nears, the measure's success is threatened by its own incompetent conception, a cynical governor, a money-soused Legislature, and county governments impoverished by 25 years of state profligacy.

Proposition 36 became law via the overused California ballot initiative process, an increasingly inept policy-making tool that gives us laws drafted for purposes of 30-second television spots, without sufficient thought about how they will work, or be enforced.

Proposition 36 will be carried out by California's impaired county governments, which, after being raped for a quarter of a century at the service of the voter-approved, utterly insane property-tax relief measure known as Proposition 13, may finally be bankrupted by the utterly sane, voter-approved Prop. 36.

Proposition 36 will be enforced by a dysfunctional governor, Gray Davis, who seeks to rob funds from existing drug treatment programs just as lower-level public officials seek to carry out a public mandate to expand drug-treatment programs.

And ironing out the rough edges of Proposition 36 lies in the hands of the California Legislature, which is so in thrall to moneyed interests -- interests that include, oh, say, electricity providers and prison guards, but definitely do not include addicts who need treatment -- that it is unlikely the additional money necessary to keep the measure from failing will be appropriated.


As counties gear up for implementation of Prop. 36, major problems have emerged across the governmental landscape:

- Gov. Gray Davis, who vigorously opposed the measure, is now seeking to cut $22 million from ordinary alcohol and drug treatment programs to pay for his electricity bailout. Much of this money now goes to programs for addicts who volunteer for treatment outside the criminal justice system. As the state, meanwhile, beefs up Prop. 36- oriented programs for people convicted of crimes, a bizarre situation could emerge in which the only way for an addict to receive treatment would be to commit a crime.

"We feel that's the message the governor's sending -- if you really want to get treatment, commit a crime and get arrested," says Tom Renfree, a lobbyist for the County Alcohol and Drug Program Administrator's Association of California.

- Though the measure was touted during last fall's campaign as saving the state money by reducing the need for new prisons and jails, the immediate reality is that many of California's 58 counties stand to be impoverished by Proposition 36. The $120 million that voters allocated to set up drug-treatment programs, beef up probation departments, and reconnoiter court systems will cover only a fraction of the real costs, county administrators around the state say. State Sen. John Burton said last year that he would sponsor legislation to make up the difference. It remains unclear whether he will ultimately succeed.

Butte County, one of California's poorest, is in a typical Prop. 36 fix. Funds provided by the measure will cover treatment for only 385 of the 600 addicts whom Butte County expects to treat next year. The county, located a three-hour drive north of San Francisco, already faces a $1.4 million budget shortfall. In previous years, budget deficits were covered by reducing library hours, by putting county staff on four-day workweeks, and by other cuts in county programs and services. It would now require an extra $17.5 million per year to provide a minimum level of services in Butte County, according to a 2000 state-sponsored study.

"When new state mandates come along, we have to make service cuts elsewhere," says Cyndi Mann, the county's deputy administrative officer.

- Like many statewide ballot measures, Proposition 36 was pushed by an ideologically committed group of reformers unversed in creating effective public policy. The measure's backers did not even bother to consult the professionals who would carry out the Prop. 36 mandate if it won. "We would have liked to have known them, and been in contact with them, before the thing was written," says Renfree, the drug program lobbyist.

As it turns out, the entire state of California would like it if the creators of Proposition 36 had consulted drug-treatment experts before flopping a very well-intentioned, and very ill-considered, measure on the ballot.


Perhaps the most egregious example of the head-in-the-clouds approach favored by Prop. 36 backers involves drug testing. By dictate of the measure itself, Proposition 36 funds cannot be used to test offenders for drug use -- testing that, drug counselors say, is crucial for the monitoring and shaping of effective drug treatment.

The result? Counties must now raise millions of dollars on their own to cover testing costs.

But drug testing is not the only blank spot in the Prop. 36 plan. The advertising campaign for Proposition 36 was driven by slogans saying it would "decriminalize" substance abuse. This sounded good in television campaign advertisements, but loses meaning now that Proposition 36 must be turned into policy. The measure's drug programs will still be instituted by the criminal justice system, yet Prop. 36 drafters ignored lessons learned from California's year-old drug courts program, which enjoys great success diverting addicts from jail to treatment programs. In drug court, drug offenders are sent to treatment -- but remain under the threat of jail.

In fact, to persuade addicts that continued treatment is in their best interest, judges now have the right to sentence backsliding addicts to "flash incarceration."

"Many addicts will tell you that it's the fear of getting the two days [in jail] that helped them stay sober. And knowing they would be tested," says Alameda County Superior Court Judge Peggy Fulton Hora.

Under Prop. 36, judges would lose these tough-love options -- to most unfortunate effect.

In Arizona, where an initiative similar to Prop. 36 has been in place since 1996, a quarter of those sentenced to drug treatment just don't show up, says Barbara Broderick, chief probation officer for Maricopa County, which includes the city of Phoenix. So the authorities now are offering offenders inducements to show up for drug treatment. "We're giving them free tickets to Phoenix zoos, to Diamondbacks games," Broderick says.

It is unclear how well these gifts serve as rehabilitation tools.

In addition to cost and effectiveness concerns, Proposition 36 raises questions of simple humanity. Many drug courts, including those in San Francisco and Alameda County, now allow judges to recommend treatment before a criminal conviction goes on a defendant's record. Under Prop. 36 users must be convicted of a crime before they receive treatment.

"The first priority in treatment is trying to stabilize someone. If they can't get benefits because they've been convicted of a crime, that's very difficult, because they lose their right to social services. They can become ineligible for Section 8 housing subsidies, food stamps," says Phyllis Harding, director of San Francisco's Community Substance Abuse Services.


As state and county bureaucrats prepare for the July 1 implementation date for Proposition 36, the dysfunctional aspects of the measure create a possibility that Californians will turn against the idea of replacing mass incarceration with mass treatment for substance abusers.

It's a possibility we should fight with increases in funding and changes in the voter-approved law itself.

For all its technical flaws, Proposition 36 is, at heart, an expression of compassion by Californians for one another. But its worthy aims are endangered by a lack of attention to detail and by the cravenness of our governor and Legislature. This dysfunction endangers the Lydias in all our lives.

"They should get that chance," Lydia's mother told me when I spoke with her last week. "There are so many people who are sitting in a jail cell who shouldn't be there. They should be sitting in a treatment center."

About The Author

Matt Smith

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