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February 27, 2006 - Sacramento Bee (CA)

Drug Law's "Failures" Spur Get-Tough Call

Battle Looms Over Effort To Crack Down

By Laura Mecoy, Bee Los Angeles Bureau

Return to Drug War News: Don't Miss Archive

Five years after Californians revolutionized state drug sentencing by adopting Proposition 36, the widely supported initiative is facing a major overhaul because it's graduating only a fourth of those ordered into treatment.

Statewide, more than a fourth never show up for their first assessment for the program. One study found offenders sentenced under Proposition 36 are more likely to have a new drug arrest within a year than those arrested for the same crime before the initiative went into effect.

The numbers play out in courtrooms across the state.

In Department Eight, a Sacramento courtroom handling the county's Proposition 36 cases, the judge holds a graduation ceremony the first Friday of every month for those who have avoided prison by completing their court-ordered treatment.

On one Friday last fall, Judge Troy L. Nunley praised a dozen graduates and presented them with a small glass trophy that recognized their "strength, commitment and success."

"They have backslid," he told the packed courtroom. "They fell on their butts. But they picked themselves up, and that is the key -- picking yourself up."

The graduates beamed as their families and friends stood and applauded them.

But the mood turned somber as the clerk called out the names of those in danger of failing or already in violation of the law.

Most didn't even show up. Among those who did come to court, most had tested positive for illicit drug use, missed an appointment with their probation officer or skipped their treatment programs.

The judge ordered them to attend relapse sessions, observe court proceedings or undergo more treatment.

Altogether that day, there were 80 whose progress was deemed "unsatisfactory."

"Right now, we have a system with no accountability," said David LaBahn, executive director of the California District Attorneys Association. "A judge can order someone to treatment, and they can do whatever they want. To have a system where so few people show up is shocking."

With the program's funding set to expire July 1, Proposition 36 is coming under renewed scrutiny in Sacramento and around the state.

Gov. Arnold Schwarzenegger is insisting on changing the law to permit short jail sentences for those skipping treatment.

A small band of local activists upset by what they believe is leniency in the state's drug laws is urging Proposition 36's repeal.

And the group that sought the measure in the first place has abandoned plans to try to expand the law. Instead, they're fighting to keep it the way it is.

"Proposition 36 is tremendously successful at saving lives, at saving money, at keeping families together and at turning people into taxpayers instead of tax users," said Glenn Backes, who founded the Drug Policy Alliance's capital office and recently left the organization. "It is not a silver bullet. But nothing better has been proposed by anyone."

In California, one of nine residents suffers from drug or alcohol addiction, and eight of 10 felons sent to prison are substance abusers, according to the Little Hoover Commission.

The state's voters called for a new approach to addiction with Proposition 36, making California one of only three states with a law requiring treatment instead of prison for most nonviolent drug offenders.

More than 200,000 Californians convicted of drug possession for the first or second time since the law went into effect on July 1, 2001, have been sentenced to treatment.

Lawmakers now reviewing the discouraging results from the first five years of Proposition 36 are debating a change: whether to adopt what they call "shock incarceration" for drug offenders who drop out of the program.

"We see this as a wake-up call to get them back into treatment, not as punishment for a crime," said Sen. Denise Ducheny, D-San Diego, and the author of legislation allowing shock incarceration.

The governor hasn't endorsed all the elements in Ducheny's bill, Senate Bill 803, but he agrees with her proposal to use short jail sentences to get drug offenders' attention. In his budget, he ties continued funding of Proposition 36 to this and other changes in the law he's seeking to increase scrutiny of drug offenders.

"Our hope is we will see an increase in the number of people actually making it into treatment," said Kathryn Jett, director of the Department of Alcohol and Drug Programs that oversees Proposition 36.

Initiative supporters said more and better treatment will improve outcomes, while jail sanctions violate the intent of the initiative. They promised a court battle if, as expected, "shock incarceration" becomes part of the law.

"We will sue, and we know we will win," said Dave Fratello, one of the initiative's authors. "Proposition 36 is very clear that there cannot be jail incarceration during treatment."

The initiative allows incarceration after a third probation violation, but police and prosecutors said this leaves offenders on the streets too long, increasing the chances they will commit more crimes.

In one widely publicized case, a Proposition 36 participant who dropped out crashed a stolen minivan into a vehicle in San Francisco in 2004 and killed its driver.

Quinn Radtke had been sentenced to treatment in San Mateo County in 2003 but didn't follow through with the program.

In the last two years, grand juries in San Mateo and Ventura counties issued reports, saying Proposition 36 hasn't fulfilled its promise to cut crime.

Last year, a San Mateo County grand jury found one in three drug offenders sentenced under Proposition 36 failed to show up for treatment - a significantly lower compliance rate than statewide studies found.

A Ventura County grand jury in 2004 found that county's program "compromised public safety and health" by repeatedly granting probation to offenders who broke the rules and failing to keep records on crimes committed by those in treatment.

But for some individuals, Proposition 36 has ended a life of crime.

Tammy Bardwell, a former heroin addict, said she was arrested at least 15 times on charges ranging from drug possession to kidnap and assault.

Fiddling with the small gold cross on a chain around her neck, the 44-year-old mother of two spoke matter of factly as she described a lifetime of addiction and crime.

She said she was raised in a household where methamphetamine was created and sold, and she began injecting heroin at age 15.

Over the next 25 years, she said she kidnapped a man who owed her money. She said she robbed others of drugs and money, and got arrested for possession of guns, and possession and sale of drugs.

Bardwell said she kicked her habit almost four years ago and began training to be a drug counselor. Today, she's working full time with addicts.

"I was just so far into my disease, that I didn't know a way out until Proposition 36," she said. "It just changed my life."

Don Kurth, California Society of Addiction Medicine president, said addiction should be treated as a public health problem, rather than a criminal matter.

"There is zero evidence" that shock incarceration will work, he said.

"None of us got clean and sober the first time," said Don Troutman, director of a Sacramento sober-living program. "If it were easy to quit drinking and using, there wouldn't be treatment programs."

Deanna Rockwell, 24, said she tested positive for drug usage at least 10 times while in Proposition 36-ordered outpatient treatment. She said she'd finally run out of chances and was facing 90 days in jail if she didn't quit.

She sobered up in a Sacramento residential treatment center, then moved into a sober-living house where she escaped drug-using family and friends.

Today, Rockwell is living at the Mather Community Campus, a Rancho Cordova transitional program for the homeless providing training and other assistance to help her get back on her feet.

Rockwell said the threat of jail drove her from drugs, but serving a jail sentence would have driven her back to her addiction because she could get high behind bars.

"There is no question about it," she said. "I would have used and gone back out on the streets."

But Clifford Smith, an addict for 35 years, said the "shock incarceration" his probation officer used did him "a heck of a lot of good" in escaping methamphetamine's lure.

Smith, 54, dropped out of treatment, so his probation officer put him in jail to sober up last February. Smith then entered a residential treatment program and said he's been free of drugs ever since.

"I was so thankful when the probation officer knocked on my door and said I was going to jail to detox," he said.

Addiction is considered a chronic relapsing disease, and a University of California, Los Angeles, study of Proposition 36 said its record of success is typical of other drug treatment programs.

Opponents counter with studies showing the state's drug court programs have produced much higher success rates because judges can lock up recalcitrant offenders and order closer supervision than takes place with Proposition 36.

A 2005 state study found a 55 percent graduation rate for those treated through drug court programs.

Fratello, the Proposition 36 co-author, said the two programs shouldn't be compared because the drug court study used different methods to measure success. He also said drug courts select highly motivated offenders, while Proposition 36 serves all who qualify.

"We are comparing the boutique system with the universal system," he said.

Toni Moore, Sacramento County's Alcohol and Drug Services Division administrator, said these studies also don't consider the benefits for those who start but don't complete treatment.

"About a third of those we are serving are making significant life changes, and about a third are kind of slowing down" on their substance abuse, she said. "These are people coming to us with extensive histories."

Moore, like most other county administrators, had expected most participants to have little criminal history because the initiative campaign focused on first-and second-time drug offenders.

Advocates rarely explained that this applied only to drug crimes committed after Proposition 36's July 1, 2001, enactment. That meant substance abusers with long rap sheets could qualify.

Fratello said the initiative's authors wanted to "wipe the slate clean" for all drug offenders because most had never received treatment. The UCLA study proved that true. It found about half of Proposition 36 participants reported entering drug treatment for the first time, even though 55 percent of them reported using drugs for more than 10 years.

"When you're saddled with the fact that it's not low-level offenders and there's no accountability, it's doomed for failure," LaBahn, of the prosecutors association, said.

Fratello said Proposition 36 is delivering on its promise by providing treatment to people who otherwise would have been "jailed or ignored."

But one of its foes, Linda Taylor, California director of Dads and Mad Moms Against Drug Dealers, said she has formed a committee to repeal Proposition 36. She said she believes the public was conned by drug legalization supporters to change the state's laws.

Proposition 36's supporters have backed medical marijuana laws and other measures aimed at lessening penalties for illegal drug use. They deny they're seeking to legalize illicit drugs.

"California has the highest per capita rate of incarceration of any state -- or it did until Proposition 36," said Backes of the Drug Policy Alliance.

Since Proposition 36, the number of inmates in state prisons for drug possession declined from 18,985 in June 2001 to 13,457 in June 2005. The actual savings to the state remain unknown until the release of a new report set for April.

In the meantime, county officials want lawmakers to get moving on any changes in the initiative so they can plan for the fiscal year beginning July 1. The county officials administer publicly funded drug treatment programs, and most are hoping for more money.

Proposition 36 required the state to spend $120 million a year for the program in its first five full years. The governor's budget calls for the same amount beginning July 1 - a proposal supporters and opponents say falls short of what is needed to pay for intensive treatment for the program's longtime addicts.

In 2004, just 11.2 percent of Proposition 36 clients received the costliest and most intensive treatment through residential care. The rest were placed in outpatient programs.

"They are getting a little help, but nothing near the amount of help that would make a difference," said Jeff Rubin, an Alameda County deputy district attorney. "I liken it to having a dose of penicillin for one person and distributing it to 10 people. No one gets cured."

The Legislative Analyst's Office said that current spending already exceeds $120 million a year because the counties are using savings from previous years, when they had fewer Proposition 36 cases, to pay for more services. In 2005, it said the state and counties spent $143 million on Proposition 36.

"The governor is saying he wants to improve outcomes," Fratello said. "But he's cutting treatment dollars, which can only result in lower success rates."

Thomas Renfree, legislative advocate for the County Alcohol and Drug Program Administrators Association of California, said a 2005 survey of county administrators found they needed nearly $70 million more per year for Proposition 36 treatment.

"There are more clients than anticipated, and the problem of methamphetamine abuse has just grown exponentially," he said. "While those addicted to methamphetamine are treatable ... they do require longer-term and more residential treatment."

Proposition 36 advocates and the Legislative Analyst's Office have also urged the state to provide financial incentives to counties with higher success rates and encourage others to adopt those methods.

"(The state)has a budget hammer and regulatory power," Backes said. "Are they using it to the best effect?"

The Little Hoover Commission, in a 2003 report, said the Department of Alcohol and Drug Programs was not. It criticized the department for failing to set basic quality of care standards for drug treatment programs.

The commission called for the creation of a council to coordinate the various drug treatment efforts, but no such council has been created. Instead, state and county agencies have tried to work more closely together.

Rod Mullen, Amity Foundation president and CEO, said the state should set overall guidelines for the program, instead of letting each county decide how to administer it.

"What we have done with Proposition 36 is squandered a great opportunity to save the taxpayers' dollars and improve public safety because we haven't implemented the model properly," he said. "If they really did the model right, it could be a tremendous thing for California, for the offenders, the taxpayers and the ordinary person."

Jett, the state drug programs director, said the counties know more about what is needed in their communities. She also said the department needs to "move forward" to improve outcomes and accountability for Proposition 36.

"Treatment works for those who are completing the program, but there aren't enough successfully getting to treatment and completing it," she said. "We need to increase the participation and the completion rates."

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