GIVING THE CARROT A STICK

Ducheny Bill Would Add Jail Sanctions To Drug-Treatment Law

In the court's eyes, John Ball was a pain in the ass. The 50-something drug
addict had been in and out of rehab, in and out of jail for 30 years. When
Prop. 36 came along-the 2000 voter-approved diversion program that offers
addicts treatment rather than jail, Ball still resisted treatment. In 2001
he did 90 days for meth possession, at the end of which time he was given a
choice: rehab or another two months in jail. He opted for the two months.

"To me, in my way of thinking at that time, I didn't believe in it; I
didn't think [treatment] would work. I don't need to go to rehab; I haven't
got a problem. It was the typical self-centered way."

There would be two more arrests, two unsuccessful stints in rehab and a
year of jail hanging over his head before Ball finally gave in. By that
time he was homeless. The judge could have made good on that promise of a
year in jail but instead gave Ball one more chance.

"I said, 'I give up, I surrender.'"

Ball entered a 14-month residential program in Vista that kicked off with
eight weeks in lockdown. Now, three and a half years later, he's maintained
his sobriety, works full-time in a Vista lumberyard, has his own studio
apartment and twice a month runs a group session at the VA hospital for
addicts just entering treatment. Five days a week, he attends support group
meetings with other recovering addicts, and in his remaining time he's part
of a grassroots effort to preserve the program that gave him his life back.

When Prop. 36 became law, it was dubbed an experiment with only five years
of guaranteed state funding. In June the state Legislature will decide
whether or not the program is worth extending.

Prop. 36 is either a success or failure, depending on whom you talk to.
UCLA researchers have tracked the program for the past three years. Between
July 1, 2003, through June 30, 2004, for example:

* 51,033 individuals were referred to treatment.

* 37,103 of those actually entered treatment.

* Of that number, a little more than one-third completed treatment.

Advocates from groups such as the Drug Policy Alliance see this as a
success-a slow chipping away at a problem that takes some people four
passes through rehab before the motivation to get well really kicks in.
Law-enforcement officials, on the other hand, consider the numbers a dismal
failure-the product of a program that lacks teeth.

In February, state Sen. Denise Ducheny, a Democrat from Chula Vista,
introduced SB 803, a bill that would impose jail sanctions-anywhere from
two to 30 days-on Prop. 36 clients who fail to show up for an appointment
with a drug counselor or who submit a dirty drug test. The bill assumes
that the threat of jail time will "enhance treatment compliance."

Ducheny told CityBeat that SB 803 is the product of discussions with
judges, public defenders and district attorneys about boosting the efficacy
of Prop. 36. But Glenn Backes, director of health policy for the Drug
Policy Alliance disputes that a shift to a more punitive model is the best
way to handle drug addiction-there's no evidence that incarceration
improves treatment outcomes, he said.

"It interrupts treatment," Backes said, "not just drug treatment, but
medical or psychiatric treatment. It also interrupts employment or family
care. This is not a decision that should be made by a judge. If you're
going to change the treatment environment or make treatment decisions, it
should be made by a professional such as a physician."

Both the California Medical Association and the California Society for
Addiction Medicine (CSAM) oppose the Ducheny bill for the reasons Backes
cites. In a letter sent to state Sen. Deborah Ortiz, Donald Kurth,
president of CSAM and chief of addiction medicine at Loma Linda University,
points out that Prop. 36 "defined drug abuse as a medical and public health
problem deserving of medical responses. As physicians, we cannot agree to
restore the failed criminal justice approach inherent in the three decades'
long 'War on Drugs.'

"Jail is a blunt and expensive instrument," Kurth wrote. "If you are a
hammer, everything looks like a nail. Clinicians have a broader range of
tools in their toolboxes."

"These additional penalties are going to cost the counties a lot of money,"
Backes said. The Drug Policy Alliance estimates incarceration costs at $30
million a year-a low estimate, Backes said-should jail sanctions become
part of Prop. 36.

Instead of jail, Backes would like to see implementation of less costly
treatment options. Few counties prescribe methadone for heroin addicts in
the Prop. 36 program-a group the UCLA study found most resistant to
treatment. Backes also believes Prop. 36 would see greater success if there
were more residential treatment programs-such as the one that worked for
John Ball-at least during the first six weeks of treatment when an
individual is coming off drugs.

There's also the question of whether the bill is constitutional. An
analysis by the state Legislative Counsel found that "because [SB 803]
would be contrary to the mandate of Proposition 36 not to incarcerate
persons eligible for drug treatment... we conclude that the legislation
could not take effect without voter approval."

Ducheny disagrees with that analysis and said she's confident the bill will
fly because its provisions will enhance Prop. 36. But if a judge finds that
SB 803 violates the will of the voters, Ducheny has added language to the
bill that would put it on the next ballot, probably in June, she said.

San Diego County District Attorney Bonnie Dumanis, who worked with Ducheny
on the bill, said in a written response to CityBeat's questions that she's
not concerned about additional costs SB 803 might levy on the county courts
and jail system-Ducheny believes the cost will be mitigated by a larger
number of people successfully completing treatment. Dumanis, who as a judge
opposed Prop. 36 and who favors the more structured drug-court system-which
handles about one-tenth the number of defendants as Prop. 36-said Prop. 36
hasn't worked because "addiction is more severe than anticipated. There is
also a lack of accountability due to no short-term consequences."

But Backes fears the threat of incarceration will push people off the
recovery path, not keep them on it. "The incredible irony of [SB 803] is
that this is only for people who are trying, because if somebody drops out
or has a no show-stops coming to court, stops going to treatment-there's a
warrant out for them. You can only catch and incarcerate those who turn
up.... This is a penalty for admitting that you messed up and that you want
to try to continue the program."