You Say You Want a Revolution?

The courtroom where Judge Stephen Marcus presides is a small one at the end of the seemingly endless third-floor corridor in the downtown Criminal Courts building. It looks a lot like what you’d expect — brown paneling, church-pew seats — but on the afternoon that I visited, what I saw looked more like an episode of Oprah than Law & Order. No witnesses, no cross-examinations; instead, much empathetic applause and plenty of earnest, concerned conversation between the judge and the drug-addict defendants.

But this was Drug Court, and that’s how it’s supposed to be. The Drug Court system, adopted in California in 1994, provides treatment for addicts with a judge looking over their shoulder. Incarceration doesn’t enter the picture unless the addict in question fails to cooperate with his rehabilitation. The philosophy: to cut down on drug-related crime and, not incidentally, to save bucks on prison costs, by getting users off drugs altogether rather than simply locking them away for breaking the law.

Those same objectives are behind Proposition 36, the statewide initiative that passed on last November’s ballot by a blowout 61 percent to 39 percent. The “Substance Abuse and Crime Prevention Act of 2000,” which kicks in statewide this week, requires that nonviolent drug convicts be placed on probation and in a treatment program rather than the one to three years in prison to which they may be treated under existing law.

This was a radical shift in the paradigm of drug law — “revolutionary,” as some described it. While not quite decriminalizing possession of small amounts of illegal drugs, Proposition 36 approaches drug use as a medical problem, not a criminal one. But court officials and others experienced in managing California’s drug offenders worry that Proposition 36 could represent a step backward for treatment of hardcore addicts. Compared to the Drug Court system, Proposition 36 offers less personal attention for drug addicts, removes or weakens tools for keeping them on the path to recovery and could, in some cases, place them in questionable treatment programs.

You’d have to be a pretty tough anti-drug hard-liner to be against helping addicts get off drugs rather than simply punishing them for breaking the law, then telling them, “You’re on your own.” But Proposition 36 takes a system that already accomplishes that goal — albeit on a much less ambitious scale — and replaces it with a statewide program that has no track record.

Why? There was nothing fundamentally wrong with the approach taken by the Drug Courts. It may simply be that the system was so obscure that voters cast their ballots for the quick fix, rather than considering that a functioning, maybe even superior, alternative already existed — and would have benefited by an influx of cash.

“The Drug Court system is the most efficient and effective recovery and rehabilitation system we have ever had,” says Loren DiFrank, a Los Angeles County Drug Court commissioner. “I’m not negative about Proposition 36. I like the philosophy of it, but I’m not sure it’s going to work the way it’s set up.”

Part of the problem DiFrank foresees is that Proposition 36 will sharply reduce the level of judicial supervision, due to both the provisions of the new law and the sheer volume of cases it will generate. That means judges won’t be able to keep an eye on drug miscreants.

Those fears are echoed in the Winter 2001 issue of the Journal of Drug Issues. According to an article authored by several researchers at UCLA, “Evaluations have been consistent in finding that Drug Courts are successful at lowering drug use and criminal activity . . . and at retaining them in treatment for longer periods of time than other types of community-based treatment and supervision.” Studies have also shown “lower recidivism rates among Drug Court participants.”

Specifically, the article noted that Drug Courts “are better able to closely supervise drug offenders in the community than other forms of community-based supervision such as probation . . . This is accomplished primarily through intensive judicial supervision, frequent drug testing and the use of graduated punishments.”

In fact, because Proposition 36 is a post-conviction program, judges are removed altogether — it’s up to probation officers to certify compliance.

To Commissioner DiFrank, close judicial supervision is essential. “Drug Court is tailored to the individual, but also to their families and their needs, and we really become like family in and of itself. It’s a very holistic approach to handling a case.

“It does take a lot of empathy and compassion on the part of the bench officer. And if you don’t know the person’s name, it’s hard to be empathetic toward them. With Proposition 36, with the volume, I don’t know if that’s going to be possible.”

Of course, that’s part of the problem Proposition 36 was designed to resolve. Says Daniel Abrahamson, one of the authors of the initiative, “For 98 percent of Californians, Drug Courts don’t exist. There are, I think, 16 counties without them in California, because they can’t afford them. Those counties that do have Drug Courts usually have one or two Drug Courts, not very many, and accept 2, maybe 5 percent of people who are eligible.”