PROP 36: THE DEVIL IS IN THE DETAILS

Proposition 36, the California law ordaining treatment instead of jail for
drug users, went into effect July 1. But will some counties just use it to
slam people into jail if they fail a urine test?

As ever, the devil is in the details. California's Proposition 36-designed
to divert 36,000 small-time drug offenders a year from incarceration to
treatment-was inaugurated July 1. But drug users might want to consider
their locale along with what they put into their bodies. Control of how to
implement the initiative the state's voters passed by a 61%-39% margin last
November falls to local authorities, and each one of the state's 58
counties has a different plan-with some still emphasizing punishment over
treatment.

At least that's the case made by a formal assessment of 11 California
counties with 75% of the state's population issued by one of the main Prop
36 proponents. The Lindesmith Center-Drug Policy Foundation, a private,
non-profit reform organization, issued its assessment, complete with a
traditional 'A' through 'F' letter grading system, in late June. While some
counties go to the head of the class-primarily San Francisco and San
Mateo-San Bernardino received a failing grade. And, by Lindesmith's lights,
Sacramento, San Diego and Santa Clara just squeaked by.

Broadly speaking, Lindesmith judged the counties based on whether they
followed what it terms the will of the voters. That is, did the counties
emphasize a public-health model, or is a criminal-justice tail wagging the
treatment dog in their approach to offenders arrested for the first or
second time for possession?

According to Lindesmith's analysis of the plans the 11 counties filed with
the state Department of Alcohol and Drug Programs (after being approved by
the counties' boards of supervisors), San Diego, Sacramento and San
Bernardino counties devote too much money to the supervisory aspect of
diversion and let too much money fall under the control of county probation
departments. Conversely, by Lindesmith's lights, more liberal counties such
as San Francisco and San Mateo, correctly emphasize treatment options that
operate at some remove from the criminal-justice system.

The counties, including also Alameda, Orange and Los Angeles, that get a
Lindesmith 'A' or 'B' have a high degree of respect for client
confidentiality, autonomy and integrity, and see drug tests as a
therapeutic rather than punitive tool, says Lindesmith. Its critique
underscores the fact that the initiative does afford a fair bit of
interpretative wiggle room.

Theoretical wrangling over punishment versus treatment aside, the struggle
over divvying up $660 million over the next five years in guaranteed,
lock-boxed state funds is as basic as it gets. "This is a fight over money
and jobs and operational control, yes," says Whitney A. Taylor,
Lindesmith's Prop 36 implementation director. "A shift of resources from
one official body to another, from law enforcement to public health."

Chronically underfunded probation departments have requested up to
two-thirds of Prop 36 monies, though they typically have marginal oversight
of nonviolent mere users. Similarly underfunded treatment providers, of
course, are eager to slice the pie differently, mindful that one
traditional way for them to acquire funds has been to get into bed with the
criminal-justice system. Speaking at the annual Lindesmith-DPF conference
held this June in Albuquerque, Dorsey Nunn, program director of San
Francisco's Legal Services for Prisoners with Children, declared, "That
half a billion dollars-it doesn't belong to the police. I don't care if the
cops ever get new police cars."

California Governor Gray Davis opposed the initiative and adopted a
hands-off approach after its passage. This despite the fact that the
state's rate of 115 drug defendants incarcerated per 100,000 population is
more than twice the national average. With incarceration costing some
$24,000 a year versus -- depending on the modality -- treatment's average
$4,000 a year cost, diverting 36,000 offenders annually will save an
estimated $1.5 billion in the law-enforcement and corrections budgets over
the program's five-year life. That lost money only pours gasoline on the
struggle over Prop 36 funds, especially in a state with scant additional
money for anything but electricity. (There's also a projected one-time,
$500 million savings from not having to build a new prison.)

There's been much grumbling at the county level that the $120 million a
year guaranteed by the voters will prove insufficient to the task. Dell
Sayles-Owen, deputy director of California's Department of Alcohol and Drug
Programs and head of its Office of Criminal Justice Collaboration, admits
that the state doesn't know in an "empirical way" how much will be needed,
"and there are fears among some of our stakeholders in the counties that it
won't be enough." Following what Taylor described as Gov. Davis' hands-off
approach (one, it should be noted, that is consistent with California's
tradition of local control), the state ADP department provided scant
concrete guidance in drafting the plans, though ADP did subsequently
approve them. Given the regulatory vacuum, each of the 58 counties was free
to determine how to divvy up its share of the money.

"The state ADP took such a hands-off approach, we basically have 58
different plans," says Taylor. "Even a simple state cap on the percentage
allocated for non-treatment expenses would have been worthwhile."

That view was not echoed by Sayles-Owen. Referring to the breakdown of
monies between treatment and supervision, she said, "The law doesn't
specify, nor do our regulations specify. Local decisions are left to the
counties on how much to allocate to criminal justice versus treatment."

As it was this spring, the contest will be fought annually at the county
level, with probation departments, the cops and the courts struggling to
maintain budgetary and operational control, while Prop 36 advocates strive
to enforce what they view as voters' intent to beef up California's
treatment infrastructure. As Taylor told the Lindesmith-DPF conference,
"There are 58 different fights in 58 counties. Opponents of Prop 36 --
judges, prosecutors, sheriffs -- in each county you have the foxes guarding
the hen house."

The Prop 36 implementation battles expected in California over the next
months and years bear watching elsewhere in the country, as Americans grow
ever-wearier of locking up their sons and fathers, mothers and daughters in
a 30-year Drug War that shows no signs of ending. The same troika of
millionaire drug-policy reformers -- George Soros, Peter Lewis and John
Sperling -- who backed the initiative (and, in Soros' case, fund
Lindesmith) has indicated they intend to push similar
treatment-over-incarceration ballot initiatives in Michigan, Florida and
Ohio in the 2002 elections. Given that they don't proceed in the absence of
polls indicating a likely success-and that this June, an ABC News poll
found that 69% of Americans favor treatment over jail for first and
second-time drug offenders-similar initiatives will soon crop up around the
country, mimicking the spread of the medical-marijuana initiatives funded
by the three men. What's more, even President Bush has called for $1.6
billion in new federal money for drug treatment.

While issuing letter grades is a nice conceptual technique appealing to the
press and public alike, a private group's ability to steer recalcitrant
counties in their direction remains to be seen. In fact, Sayles-Owen said
that one county she declined to identify called her concerned about
Lindesmith's critique, but it was a moot point since she'd decided that
very day to approve its plan. Regardless of the response, Lindesmith
certainly plans on invoking last November's huge Prop 36 victory. "With 61%
if the vote, you can afford to throw your weight around," Taylor says.

Asked the utility of a private group critiquing the plans, Taylor responds,
"We were among the original proponents of Prop 36. We don't want to be seen
as a group that helps institute new laws and then leaves without trying to
guarantee success." Noting that the counties will retool their plans with
each annual appropriation, she adds, "We want to try to help voters take
action with this information."

Toni Moore, Sacramento County alcohol and drug administrator, declares
Lindesmith's effort interesting, and says she understood their interest and
motivation, since they're, "in essence, the authors of Prop 36. They want
to see it as they envisioned it."

The report card analyzed the county plans based on four parameters,
starting naturally with money. Lindesmith looked first at the proportion of
money earmarked for treatment versus such non-treatment costs as probation,
law enforcement and the courts. They declare that 17%, or $20 million, is
"sufficient to supplement established county administrative and
criminal-justice systems." Money beyond that 17% level is "stolen from
treatment and endangers the success of Prop 36," Lindesmith charges.

The second parameter was the availability of various treatment options,
ranging from education and prevention to outpatient treatment and halfway
houses; from methadone-maintenance therapy to in-patient treatment,
including detox. (Literacy training and family and vocational counseling
are also to be provided under Prop 36 funds when needed.)

"Docs or cops" is what Lindesmith terms the relative operational prominence
of public health versus law enforcement. That is, do public-health
professionals take the lead in assessment and case management; is urine
testing used as a therapeutic rather than as a punitive tool to kick
someone out of the program or revoke probation; and are public-health
officials basically calling the shots? In an analysis yet to be released,
Lindesmith asserts that Prop 36 shifts the locus of responsibility for
eligible offenders from prosecutors, judges, and probation and corrections
personnel to public-health officials. The group believes this redefinition
of their respective roles requires law enforcement to defer to
public-health officials.

"We have to make sure that Prop 36 is not just co-opted into the
criminal-justice system and that it doesn't just become another Drug War
tool," says Taylor.

As to whether public-health officials need the preponderance of control,
Sayles-Owen says, "Prop 36 is a sentencing-law change, and it's appropriate
that the criminal-justice system is heavily involved." A lot will depend on
the quality of the working relationship among the various public officials
in individual counties, she added.

There was even defiant, albeit informal, talk at the Lindesmith-DPF
conference in Albuquerque of treatment providers just plain failing to
inform probation departments of failed drug tests. Treatment advocates
worry both that even a couple of failed tests will revoke a client's
probation and send him or her off to jail for one to three years. Wanting
Prop 36 monies to be used for treatment rather than drug tests, the law
doesn't provide any money for testing. But judges can still order it and
even make defendants pay for it. An $18 million allocation for drug testing
passed the state Senate and is currently languishing in the Assembly. Gov.
Davis announced in April that $11.9 million in new federal funds would go,
in part, to pay for testing. And counties are providing their own funds,
with Sacramento ponying up $400,000 and San Diego laying out $1.2 million.

Will any undue emphasis on urine tests just mean more of the same for
addicts battling a disease: two or three failed tests and you're out?
Reformers say the individual's attendance and participation in treatment is
of more importance than a failed test. Taylor asserts that treatment
professionals typically know when clients are still using, and that urine
tests can be used not to kick someone out of a program, but to parade
someone's continued dependence before them. On the other hand, she says, if
someone is truly unamenable to treatment, "if they're disruptive or showing
up high every day," then she believes they should be terminated from that
particular program.

The report card's fourth parameter was community involvement, including
such issues as whether publicized community forums were held and whether
public-health officials and even "consumers" were included on the task
forces drawing up the implementation plans. Neither membership on the 58
committees nor their subsequent decisions came easy. As Taylor told the
Albuquerque conference, "Treatment professionals were on the task forces
drawing up the county plans, but they lacked power compared to the
law-enforcement folks fighting for a piece of the money."

Extra credit not reflected in the overall grade was given to Los Angeles,
Orange, Riverside and San Francisco counties, because their district
attorneys issued charging guidelines which hopefully will lessen the sort
of deliberate overcharging that makes defendants ineligible. Offenders
convicted of anything from an ill-defined intent-to-distribute charge to
resisting arrest to even loitering or trespassing in some derelict
crackhouse are ineligible for Prop 36 diversion. As for marijuana,
California potheads convicted of possession of personal-use amounts
typically don't face any jail time.

Taylor told the Lindesmith-DPF conference, "It's up to the DA what
constitutes personal use. If you have only two grams, but it's in two
separate baggies, that can be said to be intent to distribute."

Said Doug McVay, research director for Common Sense for Drug Policy, a
Washington-based drug-law-reform group, "California has a horribly racially
biased and unbalanced criminal justice system." Given no articulated
demarcation between possession and dealing, he added, "I imagine that most
Prop 36 defendants will be white. Prosecutors have that discretion, and it
gets abused." State official Sayles-Owen would only say cryptically: "There
is the possibility of behavior-changing effects of Prop 36. Will DAs
continue to charge cases the same way? My observation to that is we were
told we'll see changes. The law says who is eligible. The big question mark
is decisions regarding plea bargaining." She would not specify what changes
in DA behavior she anticipates. Dorsey Nunn, who's African-American, was
less cryptic. He told the Lindesmith conference, "The DA is not going to
jump up and down and sprinkle frou-frou dust on my homeboys."

By all these criteria, San Francisco got an A and San Mateo an A-. Alameda
and Orange counties got Bs and Los Angeles a B-. Fresno and Riverside got
Cs, and Santa Clara and San Diego D+s. Sacramento sleazed by with a D. San
Bernardino got the sole F; Lindesmith declared that its plan "fails voters"
and lacks any "commitment to quality treatment," but, rather with an undue
"bolstering of criminal justice programs," it has "an implementation plan
that is likely to fail."

According to Lindesmith's reading of San Bernardino's plan filed with the
state ADP, only a "meager 57%" of the money already allocated funds
treatment. (Of the county's $7.4 million in Prop 36 money, $2 million
remains unallocated.) Noting positively that public-health officials are
designated the lead agency, Lindesmith condemned what it sees as "all other
aspects of Prop 36 implementation have been designated to criminal-justice
players." Saying that the task force that designed the plan was skewed too
heavily to criminal-justice representatives, Lindesmith also condemned what
it terms no "consumer or community" input. Finally -- the only San
Bernardino parameter not to receive a failing grade -- its treatment
options got a C.

Saying that Lindesmith had no idea how far the conservative, "law and
order" county had come, Bob Hillis, San Bernardino's alcohol and drug
program administrator, said, "I don't care what they think of our plan. And
I say that without malice -- I respect the Lindesmith people. It's just
we're not in the same place as San Francisco or some other northern county.
We're fairly conservative and criminal-justice oriented."

Hillis also said, that while there was some wrangling with the state ADP
department over the county's lack of details, it was by design: "Only half
of the money is in contracts now -- the majority of our planning is ahead
of us." That's partly because, at 20,000 square miles, it's the nation's
largest county outside Alaska, and he wants to be able to move money around
the county where needed.

As to Lindesmith's criticism of the criminal justice component, Hillis said
state money is $6 million and the county is kicking in another $5 million.
"So if we're spending $6 million on treatment, that's all of the Prop 36
budget." That figure includes 100 new residential beds, and he said there
will be more. "We don't know who is going to show up; all the counties are
guessing." His ballpark figure for San Bernardino is 6,500 eligible
clients. They'll be served, says Hillis, by approximately 35 new probation
officers whose role is to move clients through the court process. But case
decisions will be made by a multidisciplinary team, probation just a part.
He wouldn't say who'll make the final decision when team members disagree.

He sees the county's well-established drug courts, which serve 800 to 1000
offenders per year as an integral part of the Prop 36 treatment continuum.
"Drug courts have additional ways of intervening, a weekend in jail to make
it real, help them detox, calm down and continue with recovery," says
Hillis. Finally, he admits that, "Lindesmith disappointed me. One real hope
of this is the state has invested money in a research component to follow
outcomes. Why bother if Lindesmith has already decided what works?"

Declaring Sacramento "dangerously unprepared," Lindesmith castigated it for
devoting only 54% of its budget to treatment. But Toni Moore, the county
alcohol and drug administrator, responds, "The main point of Prop 36 is
treatment as an alternative to incarceration. But the other piece is the
voters voted for court-supervised treatment, and probation is the arm of
the court that provides supervisory services." She noted that Lindesmith's
own polling indicated that voters would support treatment only with court
supervision.

Moore said that probation currently has little oversight of Sacramento's
estimated 3,100 eventual participants, and that, over time, the department
would hire 14 new probation officers, one supervisor and one clerk.
Probation will get 35% of the Prop 36 monies, with another 5% going to
criminal-justice administrative needs, such as computerized information
systems.

The only modification the state ADP requested, said Moore, was more detail
on community input and how the program will affect different communities.
Though Lindesmith gave Sacramento an F on "community voices," stating the
only involvement was focus groups held by treatment providers, Moore
pointed to a series of what she termed multidisciplinary working groups
that involved treatment providers, mental health and employment services.

One fear for reformers, particularly in the counties where Lindesmith
perceives large measures of control to reside with probation, is that drug
tests will be used as a punitive rather than therapeutic tool. Like the
other county ADP administrators interviewed, Moore says clients should
remain in the same program if they have "one or two" failed tests as long
as they're present and participating. She adds, "You have to give people
the opportunity to succeed, with intervention and adjustment to treatment
levels if necessary. But not with a knee-jerk reaction to a failed drug test."

Sacramento's district attorney did not issue guidelines to prevent the kind
of overcharging that disqualifies offenders who've somehow ticked the cops
off. Moore says that shouldn't be a problem: "There are enough real
customers to go around. Plus, so many individuals in law enforcement
believe in treatment and have stated their frustration that it's not
available."

Saying that she's had contact with Lindesmith "off and on," Moore says they
evaluated a draft plan that wasn't yet approved. "In my view, it's unfair
and sets an adversarial tone that I don't think is helpful. To say we're
'dangerously unprepared,' misrepresents the reality. We're prepared in a
way that they disagree with."

Despite her annoyance with Lindesmith, Moore concluded, "I think Prop 36 is
a great opportunity -- I think it's a bold thing they pushed through. It's
bold, it's smart, I support it."

San Diego received a D+. Noting that the county has the second highest rate
of heroin overdose deaths in the state after San Francisco, Lindesmith
slammed it (deducting 10 points) for what it termed lack of access to
methadone treatment. It stated, "By denying Prop 36 clients access to
methadone maintenance, though available in the county, San Diego is
practicing a potentially deadly discrimination."

Al Medina, administrator for alcohol and drug services for San Diego
County, declares that comment a "misreading and a misunderstanding" of the
fact that the state provides the five available clinics; they're not
contracted for by the county. "Prop 36 defendants will have access like
anyone else," he says, adding that he was not contacted by Lindesmith prior
to their critique.

Although San Diego received a decent mark for its budgetary priorities,
with 79% of its budget geared for treatment, Lindesmith did wonder about
the hiring of 45 new probation officers. "With 80% of the money going to
treatment, where the heck will they get the money for 45 new probation
officers?" Taylor asks. Medina says that the new probation staff will
consume 22% or less of Prop 36 monies, leaving some 80% for treatment. That
expenditure, he contends, "reflects a balance between public health and
public safety. It's important to have an appropriate level of supervision
for court-ordered treatment."

Medina adds that along with supervising and monitoring the 5,000 to 6,000
cases he expects annually, probation officers will also do initial
screening and assessment, along with new alcohol and drug specialists who
will report to the probation department. Lindesmith decried the county's
public-health professionals' lack of control of the program.

Unsure about any "conversations" between Lindesmith and the state ADP
department, Medina did call ADP, but was told there were "no implications"
to the report. Saying San Diego's effort is accountable to the state, he
says, "We aren't putting any particular merit or weight to what is a
private, external group."

"The first year will be very telling, and we reserve the right to look at
performance and local decisions," state honcho Sayles-Owen acknowledges. In
reply to a question, she declares the whole effort "quite the experiment, yes."