A PROHIBITION THAT FRUSTRATES THE PEOPLE'S WILL

WASHINGTON--California voters took a giant stride toward a rational drug
policy last November when they decided that first-time and some second-time
offenders convicted of nonviolent drug use or possession should get
treatment, not prison time. Unfortunately, provisions in both state and
federal law undercut the goals of Proposition 36 by denying food stamps and
CalWORKs (California Work and Opportunity and Responsibility for Kids) to
persons who have committed a felony involving drug use, possession and
distribution.

The sweep of the ban is breathtaking. It makes no difference whether the
person has been off drugs for years and is leading a productive life or is
currently in treatment, has a family, is sick, pregnant, young or a
first-time offender. But states with such bans can opt out of them, in
whole or in part; more than half of them have. Efforts are now under way in
the state Legislature to add California to the list in order to realize the
full benefits of Proposition 36.

This is not the first such effort. In 1999, the state Assembly and Senate
overwhelmingly approved legislation to opt out of California's ban. But
Gov. Gray Davis vetoed the bill because it included "those that
manufacture, transport or distribute drugs."

The current bill, which passed the Assembly last week, was introduced by
Assemblywoman Jackie Goldberg. It excludes these offender groups. Only
persons convicted of drug possession or use who have either successfully
completed a drug treatment program, are currently enrolled in one, are not
currently drug users or have fulfilled all the conditions imposed by a
court in connection with their narcotics charge for at least five years can
apply for assistance. Convicted manufacturers, transporters or distributors
of drugs are still subject to the lifetime ban. The bill will cost
California almost nothing because the federal government pays for food stamps.

It simply makes no sense to continue the food stamp and CalWORKs ban after
passage of Proposition 36. The initiative's premise is that "nonviolent
drug-dependent criminal offenders who receive drug treatment are much less
likely to abuse drugs and commit future crimes, and are likelier to live
healthier, more stable and more productive lives." If the offender can't
feed herself and her children, this won't happen.

Criminal offenders can't easily get jobs. A 1999 study by the legislative
analyst's office found that 70% to 80% of former prisoners are jobless a
year after their release. They need food stamps and other welfare benefits
in order to survive.

Indeed, the ban mostly affects the poor and jobless. In theory, only the
drug offender loses food stamp and CalWORKs benefits, not family members.
In fact, the whole family suffers, especially since a particularly cruel
twist in the federal law includes the offender's earnings in totaling
family income, thereby reducing the overall household food-stamp allotment.

The food-stamp ban undercuts the goals of Proposition 36 in other ways.
Many residential drug-treatment centers are strapped for funds and require
applicants to turn over their food stamps and other welfare benefits to the
center to help cover the costs of treatment. A recent California survey of
residential programs found that more than two-thirds of their food expenses
were paid for with food stamps. Another state study surveyed eight programs
and found that six of them lost 10% to 30% of their revenues because of the
ban.

Denying CalWORKs to drug offenders has different negative consequences.
CalWORKs helps parents overcome a substance-abuse problem that is a barrier
to employment. Although some $55 million is budgeted for treatment of
CalWORKs recipients, a significant amount remains unspent each year.
Goldberg's bill would use this money to provide parents convicted of drug
possession or use with the wherewithal to get decent housing through either
vouchers or direct payments to landlords.

Women, especially black and Latino, are hard hit by the ban on welfare, and
with them, their children; about two-thirds of female prisoners have young
children. Many of these women began using drugs when teens, often as a
result of sexual or physical abuse and violence. A recent report disclosed
that while drug-user rates of whites and blacks are similar, blacks make up
roughly 35% of drug-possession arrests, according to the Washington
D.C.-based Sentencing Project. In the mid-'90s, almost 90% of those
sentenced to state prison for drug possession were black or Hispanic. About
half the female prison population today is black.

The number of women convicted of drug crimes across the nation is
increasing. From 1986 to 1996, females imprisoned for drug offenses rose
almost tenfold, from 2,400 to 23,700; as of 1998, nearly 34% of women
offenders in jail committed a drug felony. Most of these women are minor
offenders. In California in 1997, two-thirds of some 2,000 female inmates
were in jail for drug possession.

And who are these drug offenders who need food stamps. Most are sick,
suffering from malnutrition, mental illness, diabetes, alcoholism and other
ills. A Pennsylvania study of women in a drug-treatment center found that
all had some health problems. Many drug-addicted adults, male and female,
need special diets, but without food stamps, they cannot follow them.

Lifting the food-stamp and CalWORKs ban is not being soft on crime; it's
being rational. Law-enforcement authorities in New York realized this and
joined New York Gov. George Pataki in supporting legislation ending that
state's ban, as have nine others. If California is to realize the benefits
of Proposition 36, it should adopt its own ban.

Herman Schwartz Is a Professor of Constitutional Law at American University
and the Author of "Packing the Courts: the Conservative Campaign to Rewrite
the Constitution."