GETTING THE TREATMENT

Proposition 36 Is Based On A Noble Idea: Substituting Drug Treatment For
Prison Sentences. But The Measure Needs Practical Help.

I've seen Lydia -- a woman whose warm, graceful manner belies her
difficult life -- three times since we were children: once at a funeral,
again at a wedding, and a third time when her stepfather died.

The first time was 15 years ago at a Colma graveside service for Lydia's
brother Gary, my childhood best friend. His life had spiraled into drugs
and alcohol before he died of AIDS.

Nine years later I saw Lydia's face at my sister's wedding. I stared
perplexed for a long time -- too long, perhaps -- because this person
looked the same age as Lydia when she and I were grammar-school
classmates.

"This is Angela, Matt," Lydia's mother said. "She's Lydia's daughter."

Lydia was in jail, as she had been on and off during much of her
addiction-plagued adult life, and couldn't attend the wedding. Lydia's
mother had long since taken over Angela's upbringing.

The last time I saw Lydia was in her mother's living room, a couple of
hours before her stepfather's funeral four months ago. Lydia smiled and
said, "I only see you at funerals," in a tone that combined gentle humor
and mild lament in such a way that I couldn't help but smile, too. Lydia
had gotten out of jail the preceding Friday, having served her sentence
on charges relating to substance abuse. During the graveside service
Lydia petted Angela's hair so tenderly and earnestly, she seemed to know
she'd only be out a short time. Last week I heard Lydia was in prison
again.

There are few people in America who don't have a Lydia in their lives --
a basically decent person who's been crippled by addiction, who's been
endlessly in and out of the criminal justice system, at least partly
because of his or her inability to resist the call of mind-altering
substances.

In an effort to deal humanely with this reality, last fall two-thirds of
Californians supported Proposition 36, a ballot measure designed to send
nonviolent drug offenders to medical treatment, rather than jail.
Besides requiring that first- and second-time drug abusers be placed in
treatment, the law also forces county governments to add new resources
to drug treatment programs, so they can accommodate people who would
have gone to jail or prison under previous law.

But like the dysfunctional addicts it aims to save, Proposition 36
appears to be spiraling toward disaster. As the July 1 date for the
implementation of Proposition 36 nears, the measure's success is
threatened by its own incompetent conception, a cynical governor, a
money-soused Legislature, and county governments impoverished by 25
years of state profligacy.

Proposition 36 became law via the overused California ballot initiative
process, an increasingly inept policy-making tool that gives us laws
drafted for purposes of 30-second television spots, without sufficient
thought about how they will work, or be enforced.

Proposition 36 will be carried out by California's impaired county
governments, which, after being raped for a quarter of a century at the
service of the voter-approved, utterly insane property-tax relief
measure known as Proposition 13, may finally be bankrupted by the
utterly sane, voter-approved Prop. 36.

Proposition 36 will be enforced by a dysfunctional governor, Gray Davis,
who seeks to rob funds from existing drug treatment programs just as
lower-level public officials seek to carry out a public mandate to
expand drug-treatment programs.

And ironing out the rough edges of Proposition 36 lies in the hands of
the California Legislature, which is so in thrall to moneyed interests
- -- interests that include, oh, say, electricity providers and prison
guards, but definitely do not include addicts who need treatment -- that
it is unlikely the additional money necessary to keep the measure from
failing will be appropriated.

As counties gear up for implementation of Prop. 36, major problems have
emerged across the governmental landscape:

- Gov. Gray Davis, who vigorously opposed the measure, is now seeking
to cut $22 million from ordinary alcohol and drug treatment programs to
pay for his electricity bailout. Much of this money now goes to programs
for addicts who volunteer for treatment outside the criminal justice
system. As the state, meanwhile, beefs up Prop. 36- oriented programs
for people convicted of crimes, a bizarre situation could emerge in
which the only way for an addict to receive treatment would be to commit
a crime.

"We feel that's the message the governor's sending -- if you really want
to get treatment, commit a crime and get arrested," says Tom Renfree, a
lobbyist for the County Alcohol and Drug Program Administrator's
Association of California.

- Though the measure was touted during last fall's campaign as saving
the state money by reducing the need for new prisons and jails, the
immediate reality is that many of California's 58 counties stand to be
impoverished by Proposition 36. The $120 million that voters allocated
to set up drug-treatment programs, beef up probation departments, and
reconnoiter court systems will cover only a fraction of the real costs,
county administrators around the state say. State Sen. John Burton said
last year that he would sponsor legislation to make up the difference.
It remains unclear whether he will ultimately succeed.

Butte County, one of California's poorest, is in a typical Prop. 36 fix.
Funds provided by the measure will cover treatment for only 385 of the
600 addicts whom Butte County expects to treat next year. The county,
located a three-hour drive north of San Francisco, already faces a $1.4
million budget shortfall. In previous years, budget deficits were
covered by reducing library hours, by putting county staff on four-day
workweeks, and by other cuts in county programs and services. It would
now require an extra $17.5 million per year to provide a minimum level
of services in Butte County, according to a 2000 state-sponsored study.

"When new state mandates come along, we have to make service cuts
elsewhere," says Cyndi Mann, the county's deputy administrative officer.

- Like many statewide ballot measures, Proposition 36 was pushed by an
ideologically committed group of reformers unversed in creating
effective public policy. The measure's backers did not even bother to
consult the professionals who would carry out the Prop. 36 mandate if it
won. "We would have liked to have known them, and been in contact with
them, before the thing was written," says Renfree, the drug program
lobbyist.

As it turns out, the entire state of California would like it if the
creators of Proposition 36 had consulted drug-treatment experts before
flopping a very well-intentioned, and very ill-considered, measure on
the ballot.

Perhaps the most egregious example of the head-in-the-clouds approach
favored by Prop. 36 backers involves drug testing. By dictate of the
measure itself, Proposition 36 funds cannot be used to test offenders
for drug use -- testing that, drug counselors say, is crucial for the
monitoring and shaping of effective drug treatment.

The result? Counties must now raise millions of dollars on their own to
cover testing costs.

But drug testing is not the only blank spot in the Prop. 36 plan. The
advertising campaign for Proposition 36 was driven by slogans saying it
would "decriminalize" substance abuse. This sounded good in television
campaign advertisements, but loses meaning now that Proposition 36 must
be turned into policy. The measure's drug programs will still be
instituted by the criminal justice system, yet Prop. 36 drafters ignored
lessons learned from California's year-old drug courts program, which
enjoys great success diverting addicts from jail to treatment programs.
In drug court, drug offenders are sent to treatment -- but remain under
the threat of jail.

In fact, to persuade addicts that continued treatment is in their best
interest, judges now have the right to sentence backsliding addicts to
"flash incarceration."

"Many addicts will tell you that it's the fear of getting the two days
[in jail] that helped them stay sober. And knowing they would be
tested," says Alameda County Superior Court Judge Peggy Fulton Hora.

Under Prop. 36, judges would lose these tough-love options -- to most
unfortunate effect.

In Arizona, where an initiative similar to Prop. 36 has been in place
since 1996, a quarter of those sentenced to drug treatment just don't
show up, says Barbara Broderick, chief probation officer for Maricopa
County, which includes the city of Phoenix. So the authorities now are
offering offenders inducements to show up for drug treatment. "We're
giving them free tickets to Phoenix zoos, to Diamondbacks games,"
Broderick says.

It is unclear how well these gifts serve as rehabilitation tools.

In addition to cost and effectiveness concerns, Proposition 36 raises
questions of simple humanity. Many drug courts, including those in San
Francisco and Alameda County, now allow judges to recommend treatment
before a criminal conviction goes on a defendant's record. Under Prop.
36 users must be convicted of a crime before they receive treatment.

"The first priority in treatment is trying to stabilize someone. If they
can't get benefits because they've been convicted of a crime, that's
very difficult, because they lose their right to social services. They
can become ineligible for Section 8 housing subsidies, food stamps,"
says Phyllis Harding, director of San Francisco's Community Substance
Abuse Services.

As state and county bureaucrats prepare for the July 1 implementation
date for Proposition 36, the dysfunctional aspects of the measure create
a possibility that Californians will turn against the idea of replacing
mass incarceration with mass treatment for substance abusers.

It's a possibility we should fight with increases in funding and changes
in the voter-approved law itself.

For all its technical flaws, Proposition 36 is, at heart, an expression
of compassion by Californians for one another. But its worthy aims are
endangered by a lack of attention to detail and by the cravenness of our
governor and Legislature. This dysfunction endangers the Lydias in all
our lives.

"They should get that chance," Lydia's mother told me when I spoke with
her last week. "There are so many people who are sitting in a jail cell
who shouldn't be there. They should be sitting in a treatment
center."