Proposition 36 Revisited

The Substance Abuse and Crime Prevention Act, also known as Proposition 36, was passed by 61% of California voters on November 7, 2000. This initiative allows first and second time non-violent, simple drug possession offenders the opportunity to receive substance abuse treatment instead of incarceration. Proposition 36 allocated $120 million annually for five and one half years to pay for treatment services. However, due to the large disparity between incarceration and treatment costs, it was estimated that the initiative will save California taxpayers $1.5 billion over the five-year period.

The allocation of funds for treatment expires in fiscal 2005-2006. A number of bills have been introduced in the legislature to refund Proposition 36. However, not all of the bills so far introduced are driven by a desire to further the mission of Proposition 36. Some legislation, backed by law enforcement, aim to turn back Proposition 36 and to move back toward a crime and punishment mentality in dealing with substance abuse.

CSAM has been very vocal in support of Proposition 36. CSAM’s President (at the time of the initiative) Peter Banys, MD wrote a statement on behalf of CSAM that appeared in the voters’ handbook. Gary Jaeger, MD, Chair of CSAM’s Committee on Public Policy appeared on television spots for the initiative.

In approving Proposition 36, the majority of California voters defined drug abuse as a medical and public health problem deserving of medical responses. As physicians we cannot agree to restore the failed criminal justice approaches inherent in the three decade long ‘War on Drugs.’

“Jail is a blunt and expensive instrument. If you are a hammer, everything looks like a nail. Clinicians have a broader range of tools in their toolboxes,” Dr. Banys recently wrote in a letter to the Chair of the Senate Committee on Health.

Proposition 36 is Working

According to a study of Proposition 36 by UCLA, about half of clients in the program’s first two years were entering treatment for the first time in their lives. In the most recent year, first-time clients were more commonly Hispanics, men, younger drug users (over half were 35 years of age or younger) and methamphetamine users. Many first-time clients have a drug use history of 10 years or more.

Nearly three out of four clients entering Prop. 36 treatment make substantial progress and reach positive outcomes. Just over a third (34.4%) complete their treatment. Another 8% are discharged from treatment with a rating of ‘satisfactory progress.’ Almost a third more (29.8%) receive what UCLA researchers call a ‘standard dose’ of treatment, in this case meaning they spend the same amount of time in treatment as people who complete treatment. This is a respectable mix of outcomes that shows treatment dollars are being well-spent. Remember, a month of incarceration is far more expensive to California than a month of even the most intensive treatment.

Proposition 36 compares well with other systems linking treatment and criminal justice. The Proposition’s 34.4 percent completion rate is virtually the same as the rate for all other criminal-justice referrals. Drug courts had a 41.8 percent completion rate statewide -- albeit with a much smaller, handpicked group of drug offenders. Data show that Proposition 36 clients are more severely addicted than those in drug court.

Most importantly, Proposition 36 has saved many lives of people. “Before I entered Prop 36 I never saw my family during the holidays,” said Gary, 47, a Prop 36 graduate who had used drugs for 30 years. “Yesterday I bought toys for my grandchildren. I am now a productive member of society." (For more Proposition 36 success stories see sidebar.)

CSAM Opposes SB 803

CSAM is strongly opposing SB 803 (Ducheny) as presently drafted, because it seeks to roll back the defining ‘treatment rather than incarceration’ component of Proposition 36.

Some in law enforcement have argued that SB 803 will simply modify Prop 36 to follow the drug court model. However, returning incarceration options to regular judges will in no way make them into the more complex and more expensive drug courts. The drug court model has many interventions and sanctions available beyond ‘flash incarceration.’

Drug Courts, because of their expense, never accounted for a significant part of the criminal justice system. Prior to Prop 36, drug courts were processing only about 3% of eligible cases in California.

SB 803 overrides the current law's clear ban on incarceration early in the treatment and recovery process, allowing courts to jail defendants for up to 21 days for early signs of relapse. There is no evidence for the efficacy of jail sanctions. Although there is research evidence supportive of drug courts in general, the use of jail time as a ‘sanction’ to enforce treatment compliance is not supported. Drug courts around the nation have been using this tool for over 15 years, yet not a single study isolates the impact of jail sanctions in generating improved treatment outcomes.

There is clearly a role for incarceration in drug policy. However, incarceration is not treatment. As CSAM member Diana Sylvestre, MD wrote, “I went through 4 years of medical school, 2 years of residency, and 5 years of fellowship, all at top locations. In all those years, and with all of those lectures, I did not receive a single lecture on jail. That is because jail is not treatment, it is PUNISHMENT. I could get my fat patients to lose weight if I locked them in a cage. Would you call that a treatment for obesity?”

CSAM objects to a number of other aspects of SB 803 which would undermine the intent of Proposition 36 by:

  • excluding a large number of nonviolent drug offenders now eligible for treatment, sending them to jail or prison People who are currently eligible for treatment under Proposition 36 could face three-strikes 25-to-life sentences if SB 803 becomes law.
  • making dismissal of charges more difficult. The language adds a new standard for total abstinence after treatment discharge. Though an idealistic goal, this deprives judges of the ability to respond to relapse, a common occurrence in all chronic disorders, and still offer dismissal later.
  • impeding access to employment for people who successfully complete treatment, using vague language requiring disclosure of a conviction even after successful treatment completion and dismissal by the court
  • allowing courts to order up to 10 days in confinement for detoxification. There is no requirement for medical recommendations or guidance to be heard or heeded; medical input is, quite offensively, treated as an afterthought.

CSAM Supports SB 556

CSAM is strongly in support of SB 556 authored by Senator Carole Midgen. SB 556 is in the spirit of the original proposition while strengthening it by correcting some of its problems.

For example SB 556 would authorize a court to impose treatment beyond 12 months (as provided in the current law) to a period of treatment and aftercare to not exceed 24 months.

Under Proposition 36 some courts were refusing to set aside the conviction of a defendant who completed treatment but was in narcotic replacement treatment. Migden’s bill clearly specifies the conditions under which a defendant undergoing narcotics replacement treatment would be deemed to have successfully completed treatment.

A problem with Proposition 36 was that no funds were set aside for drug testing, which CSAM believes is an essential component of treatment. This bill would allow a county to spend up to 12% of its allocated funds for those provisions on costs or services other than drug treatment, training, counseling, or housing for defendants.

CSAM members John J. McCarthy, MD, Christy Waters, MD and Gary Jaeger, MD have testified in recent days on the Proposition 36 bills. CSAM will continue to keep you informed on these bills which will have a big impact on the future of substance abuse treatment in the state.