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Jail won't cure drug users

July 17, 2006|Dave Fratello | DAVE FRATELLO was a coauthor of Proposition 36 and served as campaign manager for the initiative.

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.

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