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Wednesday, Nov 25, 2009
The strongest opposition to Prop. 36 came not from law-and-order types but from proponents of drug court, a decade-old program that operates in more than 20 states. Like Prop. 36, drug courts -- which handle a much smaller proportion of offenders than does Prop. 36 -- rely on treatment as the preferred response to drug offenses. The primary difference is that drug court judges retain the discretion to impose short jail sentences to "wake up" recalcitrant users and inspire cooperation. Prop. 36 removed that discretion, allowing judges to impose jail time only after a defendant has tested dirty or skipped out of treatment three times and been found "unamenable to treatment."
"Judges like options," says Cunningham. "We don't like to be in a corner where there's nothing we can do but incarcerate. But we also should not be put in an all-or-nothing position of not being able to impose an interim sanction" -- such as jail time.
Others suggest that Prop. 36 may not go far enough. A Prop. 36 conviction, points out Jordan Schreiber, a public defender in Contra Costa, is no free ride. "It's onerous," says Schreiber. "You're going to be offered treatment, but you're also offered all kinds of sanctions. You're on probation for three years with a search clause, so the cops can stop and search you at any time. You have to report to a [probation officer] and to drug treatment. You pay $50 a month for probation fees, a $400 fine to the court, and you're charged for drug treatment on a sliding scale."
A drug conviction also can make an offender ineligible to receive welfare and disqualify him from getting a student loan or public housing.
"If you or I had a drug problem, we wouldn't go and get ourselves arrested in order to get treatment," notes Mark Mauer, assistant director of the Sentencing Project in Washington and the author of "Race to Incarcerate." "Low-income people don't have access to the treatment on demand that middle-class people with insurance do. We haven't tried providing unlimited treatment slots. Would a third, half, 100 percent take advantage of them? We don't know."
Prop. 36 and similar measures, Mauer says, "make sense, given that the criminal justice system has become our model for responding to social problems in poor communities -- but that's a big given. Things are at such an extreme that that doesn't even get questioned in public debates."
In the political context Mauer describes, it is the economic -- rather than the moral -- argument for drug treatment that has gained growing national resonance. Incarcerating drug offenders in state and federal prisons costs taxpayers $5 billion a year. In 2000, corrections overall consumed 7 percent of state budgets.
In the past, prison budgets have held firm even in tough times, but that is beginning to change. As state budget deficits head toward an estimated $85 billion total for 2003, half the states have cut their prison spending, and several have repealed or reformed mandatory sentencing laws that impose long prison terms on drug offenders. Governors in Ohio, Illinois, Michigan and Florida have closed prisons. Newly constructed prisons in Illinois, Pennsylvania and Wisconsin have remained shut because legislatures have not appropriated the funds to open them.
In recent months, as budget deadlines loomed, this trend has accelerated. Lawmakers in one state after another have proposed, approved or implemented a shift away from incarceration toward treatment and community supervision.
A few examples:
Traditionally tough-on-crime Republican governors and legislators -- including, in some cases, the authors of the unforgiving sentencing laws that are now being revised or repealed -- have introduced many of these reforms. Republican politicians have even taken to using a new slogan to describe their approach: "Smart on crime."
The explanation for this conversion may lie in polling numbers as well as red ink. During the '80s and '90s, when harsh drug laws were passed one after another, the conventional wisdom was that once these laws were on the books, they would be untouchable: Being seen as "soft on crime" was electoral poison. Several large, recent public opinion polls have challenged this assumption. A 2002 poll conducted by Peter D. Hart Research Associates for the Open Society Institute found that two out of three Americans perceive drug abuse as a medical problem that should be addressed primarily through treatment. The majority of Republican voters polled agreed with this assertion, as did the majority of fundamentalist Christians. Seventy percent of those polled described the war on drugs as a failure. Seventy-six percent favored mandated treatment -- the foundation of Prop. 36.
