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

September 1, 2008
by Kristen Quinlan, PhD
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Another groundbreaking treatment initiative in the state gains national attention

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.

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