JAIL WON'T CURE DRUG USERS

Proposition 36 Mandated Treatment To Overcome Addiction. A New Law
Turns That Notion On Its Head.

SIX YEARS AGO, voters approved Proposition 36, reshaping overnight
the state's policy toward addiction. Now, nonviolent drug users get
treatment, not jail. But last week the governor signed a misguided
bill that puts jail back into the equation. If the law takes effect,
drug users who relapse even once during Proposition 36 treatment will
be punished with two to 30 days in jail.

Those changes are likely to be struck down. Late last week, a judge
issued a temporary restraining order blocking implementation of the
law while a challenge is being litigated. California's Constitution
guarantees that Proposition 36 can be changed only in a manner that
is consistent with its purposes and voters' intent, and the new law
fails those tests.

The main issue here is whether judges should be allowed to use jail
time to try to motivate people in treatment. Supporters of such "jail
sanctions" argue, implausibly, that jail is not a punishment but
merely a "wake-up call" that helps people in treatment who start to slip.

Proposition 36 allows judges to end treatment and jail drug offenders
who relapse a third time, but not before. Its guiding philosophy is
that treatment, not punishment, is the appropriate response to
addiction. After the first two relapses, the law provides for
intensifying treatment -- ordering a person to a residential program,
requiring more frequent drug tests -- almost anything short of
incarceration. Jail is punishment, regardless of a judge's motives
for ordering it. Locking someone in a crowded cage for days or weeks
does not merely give them an incentive to beat their addiction. It
also can be quite harmful, instilling a sense of hopelessness,
possibly exposing a person to drugs, diseases and frequently violence
behind bars, and interrupting work, family and medical care.

In drafting Proposition 36, we considered allowing judges to
sometimes issue short jail terms during treatment. We rejected the
idea because there was no scientific evidence that jail improves
treatment outcomes. There is still none. Most drug offenders have
been to jail before, and it has little remaining shock value.
Moreover, it is too difficult to ensure that a punishment like jail
will be used carefully. With 1,500 judges in California, and 37,000
people in treatment, the risk of misuse or abuse of this power is very great.

The initiative's prohibition on jail sanctions during treatment
became the central point of argument against Proposition 36. Major
newspapers (including The Times), law enforcement groups, judges and
even the Betty Ford Center lined up against the initiative, all
arguing that offering addicts treatment without the threat of jail
would not work. The election was a referendum on the very question we
face again today -- and 61% of voters approved Proposition 36. The
voters' choice was rewarded many times over. A recent study by UCLA
researchers showed that Proposition 36 saved $173.3 million in its
first year alone. Because it sharply reduced the inflow of prisoners
with drug convictions, it delayed new prison construction. Total
savings over five years exceed $1 billion. Meanwhile, more than
60,000 people have graduated from drug treatment, meaning the program
is saving lives, not just money. With this track record of success,
the Legislature picked a strange time to rewrite Proposition 36.

If these hostile amendments are ruled invalid, what then? Next year,
a new package of amendments should be crafted that would respect the
limitations of Proposition 36 and the California Constitution. A
clear range of penalties that stops short of jail should be specified
for the first or second relapse.

I'm prepared to compromise and agree to allow brief jail time,
followed by a return to treatment, for those who relapse three or
more times. But that won't be a magic bullet. More and better
treatment is still the best bet.

Most important, legislators should fund the program adequately, as
they failed to do this year. Counties will spend $146 million on
Proposition 36 programs this year, but they are guaranteed only $120
million next year. Experts say $210 million is needed. But as it
stands now, Los Angeles County expects a $17-million cut from its
$47-million budget. Gutting treatment quality jeopardizes the whole
system, and more punishment won't solve the problem.