On the California Ballot, Will 5 Prove Greater Than 36?

State correctional expenditures have seen a 145% increase over the past three decades, outpacing spending increases over that period for healthcare, education, or natural resources.1 About half of the states have responded with some type of sentencing reform, with perhaps the most well-known effort having occurred in California in 2000: the voter-approved Proposition 36, the Substance Abuse and Crime Prevention Act. The measure set a general policy of treatment in lieu of incarceration for first- and second-time nonviolent offenders with substance use problems, and allotted $120 million in annual funds to carry this out.2

Prop. 36 has been much watched across the country, while its evaluations at home have been mixed. Supporters and opponents have held divergent interpretations of data showing that only about one-third of participants in Prop. 36 treatment were able—or willing—to complete treatment. Now the various interest groups are preparing for voters in November to consider a new measure this in essence would make Prop. 36 look like a small-scale initiative, and again it appears that there is some division leading up to the vote.

The Drug Policy Alliance Network (DPAN), the organization leading the charge for the new measure as it did for Prop. 36, says the Nonviolent Offender Rehabilitation Act of 2008 (NORA; to appear as Proposition 5 this fall) is intended to build on the 2000 initiative and correct any shortcomings that have become evident in its implementation. Margaret Dooley-Sammuli, deputy campaign manager for the NORA campaign and deputy state director of the Drug Policy Alliance Network, says the most important way NORA will depart from the Prop. 36 model will be in its magnitude of funding: a proposed $460 million annually, with an escalation clause for inflation and a provision making these permanent funds not subject to annual legislative review.

But those who are criticizing the measure say it is not focusing enough on some of the accountability problems that have surfaced with Prop. 36. This has led some to conclude that the real agenda of proponents is bringing about drug decriminalization rather than ensuring the provision of effective treatment.

Assessing previous measure

In some respects, the results of this fall's vote might serve as much as an assessment of Prop. 36's performance as an evaluation of the measure actually before voters.

University of California at Los Angeles (UCLA) research findings that only about half of outpatient treatment participants under Prop. 36 received at least 90 days of care were labeled “disastrous” by the National Association of Drug Court Professionals (NADCP). But supporters of the strategy inherent in Prop. 36 and the new ballot item see it differently.

“Completing your prescribed course of drug treatment isn't the only story,” Dooley-Sammuli says. “Getting a significant dose of treatment is a big deal.”

UCLA's independent evaluation, covering the period from 2001-2006, did find the Prop. 36 treatment program to be cost-effective: The effort generated $4 in savings for every dollar invested in those who completed treatment, and a more modest $2.50 saved for every dollar invested in program participants as a whole, according to the analysis.

Stephen Kaplan, LCSW, director of alcohol and other drug services in San Mateo County, believes in general that more funding needs to be set aside for treating nonviolent offenders. “Going into this, there was not quite as keen an expectation on the level of acuity and chronicity of the population that was going to be served by Proposition 36,” Kaplan says. “So the funding at the beginning was not properly identified, and then there were not any automatic inflationary escalators.”

Some limits on the kinds of treatment available to offenders under Prop. 36 also have posed challenges, in areas such as medication-assisted treatment. “There continues to be ideological differences, and we're still struggling in this state with implementing best practices,” Dooley-Sammuli says.

Prop. 36 has been criticized for not using enough of an enforcement strategy to improve compliance with treatment. While supporters of the measure believe treatment always should be the first line of response against manifestations of an offender's relapsing condition, they have said they designed this year's ballot measure with attention to justice officials' concerns.

NORA would mandate a three-track system of probation with treatment. Track 1 would serve offenders with up to one prior nonviolent offense in the past five years; offenders completing treatment in this track would have charges dismissed if they had no further involvement with the law. Track 2 essentially covers the present Prop. 36 population, with offenders eligible to receive a total of up to 24 months in treatment but also facing the potential of jail time for some forms of noncompliance.

Track 3 mirrors the state's existing drug court program, serving nonviolent offenders with five or more felonies or misdemeanors in the past 30 months. Under NORA, noncompliance at any level could result in movement to a higher track with tougher sanctions.

In other features of NORA, the measure would shorten parole terms for some drug offenses, require that all inmates receive rehabilitative programming beginning at least 90 days before their scheduled release from incarceration, and reduce the charge of possession of less than 28.5 grams of marijuana from a misdemeanor to a non-criminal infraction.

In addition, NORA would emphasize early intervention and treatment for young people with substance use problems by setting aside $65 million of the annual total in funding for at-risk youth.

Going far enough?

NORA opponents believe the ballot measure limits individual accountability. Douglas Marlowe, chief of science, policy and law at NADCP, states that it would permit numerous transgressions before offenders could receive meaningful consequences for their program violations. He says of the Drug Policy Alliance Network, “Their hidden agenda is buried in a 36-page statute that creates all kinds of escape valves.”

Marlowe also criticizes the proposed creation of new oversight boards for NORA, stating that this practice will “take control of drug policy away from elected officials, and create these boards that are so large they are disabled from accomplishing much.”

He says proponents of the measure do not inform the public of their decriminalization agenda. “They see what issues people are willing to get behind and use buzzwords such as ‘prison overcrowding’ and ‘youth prevention’ to gain support,” he says. “They also use vague but loaded terms such as ‘harm reduction’ to hide the real intent of the measure.”

Yet NADCP's criticisms have in turn generated harsh responses as well. In July the executive director of the County Alcohol and Drug Program Administrators Association of California issued a letter to member administrators with specific rebuttals to NADCP's claims, using the language of the NORA measure. The association's letter states that NADCP's written communication on NORA “contains several misrepresentations of NORA that have caused confusion in some counties, even among treatment and prevention providers.”

Lessons learned

Even NORA's critics from the justice community agree that at the very least, the measure is serving as an impetus for conversation around prison reform. “To the extent that anything brings the conversation nationally to … finding ways to fund treatment, to the extent that this is a discussion that the field is having, that's a great thing,” says Marlowe.

San Mateo County's Kaplan adds, “Whether it's a ballot initiative in the state, or a governor's initiative in the state, or a Board of Supervisors initiative … I think to put something on the table for people to really grapple with is important.”

Other states considering ambitious treatment initiatives in the justice system can take away valuable lessons from California's experiences. Kaplan points to careful pre-implementation planning as critical for reform success. “I wouldn't over-promise,” he cautions to others. In terms of Prop. 36, “Whether it was just a miscalculation on the funding part or a misprojection on the population and what they were going to require clinically, those two things were not well-connected, so I think we've been behind the whole time,” he says.

Capacity building is another important issue, according to Kaplan. “Are you going to have to create more residential programs, what does your workforce look like, and how much time is it going to take you to ramp up?” he says. “With NORA, to do what is proposed is a pretty major undertaking and the time to actually get it running is pretty short. You really need to see what you have available that you don't have to create.”

Kaplan adds that NORA's success will depend on a solid evaluation element that has observers focusing on the actual results of the evaluation rather than arguing about the merits of the methodology used.

Dooley-Sammuli hopes both Prop. 36 and NORA send a message to legislators across the nation regarding public support for justice reform.

“One of the best things that the initiative process can do is demonstrate to legislators that … drugs don't have to be a scary issue that they avoid, or an issue that they can only address with ‘tough on crime, lock ‘em up’ policies,” she says. “People really do support treatment instead of incarceration.”

References

1. Stephan JJ.Bureau of Justice Statistics Special Report: State Prison Expenditures, 2001 (Publication No. NCJ 202949). Retrieved from https://www.ojp.usdoj.gov/bjs/pub/pdf/spe01.pdf
2. Ehlers S, Ziedenberg J.Proposition 36: Five Years Later. Retrieved from https://www.justicepolicy.org/images/upload/06-04_REP_CAProp36FiveYearsLater_DP-AC.pdf