CALIFORNIA COURT BLOCKS CHANGES IN DRUG TREATMENT LAW

Volume 27, Issue 476 October 2, 2006

Matthew Gever

Legislation that would put more teeth into California’s drug court system has been temporarily blocked by a lawsuit.

Signed into law in July, the legislation (SB 1137) amends Proposition 36, a ballot initiative passed by California voters in 2001. Also known as the Substance Abuse and Crime Prevention Act of 2000, Prop. 36 allows nonviolent drug offenders to choose treatment as an alternative to jail.

The new law would amend Prop. 36 by adding “flash incarcerations” as punishment for those not adhering to the program. This would allow judges to impose short jail sentences—ranging from two to five days—on offenders who violate treatment. The bill also provides increased funding for the program, as well as increased judicial supervision of clients.

The new law came from a “broad consensus” of drug court officers, judges, probation officers, district attorneys and public defenders who were seeking ways to make Prop. 36 more effective, said Sen. Denise Ducheny, sponsor of SB 1137. “It was working as we hoped for those who participated,” she explained. “Our concern was to figure out how to make Prop. 36 more accountable and get more people through the program.”

But opponents of the new law said it changed the intention of Prop. 36. “Being placed in a county jail does not mean you are getting anything that helps you,” said Sen. Sheila Kuehl.

Brought by the Drug Policy Alliance and the California Society of Addiction Medicine, the lawsuit contends that the new law violated the original intent of Prop. 36 and that the Proposed changes needed approval from the voters.

Superior Court Judge Winifred Smith ruled that the legislative changes are at odds with the original purpose of the law. The court issued a preliminary injunction blocking implementation of SB 1137, saying it would create “a probability of harm to the public, both in terms of expenditures that Proposition 36 apparently meant to prevent, and in terms of potential incarceration of persons that Proposition 36 apparently meant to avoid.” The court also expressed concern that the will of the voters was ignored, supporting the plaintiffs’ argument that only another initiative could legally amend the original law.

Under Prop. 36, offenders in treatment must report to a probation officer, a case manager and a treatment officer. If treatment is completed, the court may expunge the charges. A violation such as testing positive or missing a meeting can result in arrest and being sent back to court. Three violations means an offender must serve out his or her jail term.

Sen. Ducheny did not comment about what actions may be taken if the law is ultimately struck down by the courts. She did note, however, that the bill contains a clause stating that if any part of SB 1137 is banned, the bill will be placed automatically on the ballot for a vote.

Savings and Recidivism

This year marks the fifth anniversary of Proposition 36, which California voters passed in 2001 with 61 percent of the vote. It was the second state to pass a treatment-in-lieu-of-incarceration initiative, following Arizona’s Proposition 200 in 1996. In 2002, Washington, DC voters passed Measure 62, an initiative similar to those in Arizona and California.

Earlier this year, researchers at the Integrated Substance Abuse Programs at UCLA’s Geffen School of Medicine released a cost-benefit analysis of Prop. 36. According to the study, Prop. 36 achieved a cost-benefit ratio of 2.5, meaning $2.50 was saved for every dollar spent in the first year of the treatment program. In the second year, the program produced savings of $2.30 for every dollar spent. That adds up to taxpayer savings of $140.5 million in the first year and $158.8 million in the second year. Most of those savings are from reductions in jail and prison terms.

However, the news is not all rosy. Only 24 percent of enrollees completed treatment, which is on the low end of the average for all treatment programs, according to Doug Marlowe, director of law & ethics research at the Treatment Research Institute. Sixty percent of those diverted end up having their parole revoked, which includes 30 percent of those diverted who never show up for treatment in the first place. Additionally, recidivism rates increased under Prop. 36, according to Marlowe, whose research contributed to SB 1137.

Marlowe said that “flash incarceration” would make California’s program more closely resemble other states’ drug courts, which give judges increased flexibility in determining rewards and punishments, including jail time. In a press release issued in support of the legislative changes, Marlowe wrote, “In other jurisdictions, evaluations have shown the traditional drug court model, which the California initiative will now resemble, reaps savings far in excess of the investment, as better treatment outcomes lead to fewer arrests and incarceration costs, lower health-care utilization and reductions in other costs the public bears when substance abuse is not effectively treated.”

"The cost savings are dramatic, but with increased system accountability measures and improved offender management, as well as incentives to community programs for better treatment entry, retention and completion rates, they could rise even higher," said UCLA study co-author M. Douglas Anglin.