Abrahamson, who works as director of legal affairs with the San Francisco–based Lindesmith Center Drug Policy Foundation, says it would be prohibitively expensive to extend the intense oversight of the Drug Courts to everyone whom Proposition 36 will reach. He estimates the cost of such a program at $2 billion to $3 billion.
Besides, says Bill Zimmerman, executive director of the Santa Monica–based Campaign for New Drug Policies, the $120 million annual funding projected for Proposition 36 “should be adequate.” Zimmerman adds that projections of 36,000 new offenders funneled into treatment per year “are accurate.”
Marcus — Los Angeles County’s original Drug Court judge — sees the money as the law’s most positive feature.
“I think it will ultimately be a good thing, because it will cause an infusion of treatment money that never would have occurred without Proposition 36. It brings $120 million into the criminal-justice system to treat drug offenders. But the devil is in the details. That’s the problem. Implementing this program will not be done overnight.”
Even the law’s backers harbor worries about the level of funding.
“If it’s done right, it’s a big step forward,” says Deputy Public Defender Mike Demby, the point person for the L.A. County Public Defender’s Office in implementing Proposition 36. But Demby fears that the money might not be enough.
“By the time it gets to Los Angeles County, we get a third of it, which cuts it down. Then you’ve got the probation costs and other costs that go along with it, so even less goes to treatment. When you take a look at all the people who may qualify, it turns out to be not that much money.”
A key factor that sets Proposition 36 apart from the Drug Courts is a ban on “flash incarceration” — short and sudden jail terms of a few days to a week that Drug Court judges use as a kick in the pants to participants who stray from the program.
But while jail time violates the medical model that Proposition 36 seeks to implement, the Drug Court judges say it’s an important tool for keeping defendants on the program.
It’s not so much a matter of punishment as a means for getting the attention of an admitted addict. When judges know the defendants by name and know their histories, it makes it easier for them to decide when a little well-placed flash incarceration would be effective. I saw Judge Marcus use this technique on one young defendant who, he later explained, had a lengthy history of failing urinalysis tests, offering the excuse of “secondhand smoke” that Marcus had heard more times than he could recall.
The advocates for Proposition 36 say that drug counselors will ably replace the judicial hammer. “Flash incarceration was omitted on purpose,” Zimmerman says, “because we feel that voluntary treatment leads to much more success than coerced treatment.”
That’s the whole point of Proposition 36, Abrahamson insists. The initiative was designed to “have the responsibility of what Drug Courts currently undertake — in terms of close supervision and using the courtroom and all the court resources to fashion treatments for individuals — transferred to the treatment providers. It would be the community-based treatment professionals who would be in charge of supervising the folks, coming up with the appropriate treatment plans.”
The question then becomes: Who are the providers? That’s another sharp divide between 36 and the Drug Courts.
Each Drug Court contracts with a single provider, allowing for a close relationship between the court and the treatment professionals. But now there will be a torrent of defendants steered into treatment, and any treatment provider that’s certified by the state can get into the game. The only caveat is that Proposition 36 leans heavily on outpatient treatment; as Abrahamson says, “only the most seriously addicted people” will be sent to residential facilities.
That is significant, because residential-treatment providers can get pretty controversial. Many are descended directly from the Phoenix House program, which was founded by members of Synanon, the subject of numerous 1970s-era scandals when it evolved into something like a cult. Narconon, the Scientology-affiliated treatment program, also could qualify for state funding under Proposition 36. And though the Synanon meltdown of three decades ago was an extreme example, the “confrontational” methods used by many residential providers remain a touchy subject.
The alternative is outpatient treatment. In Drug Court, that includes a rigorous program of meetings, therapy sessions and weekly urine tests. Each Drug Court defendant has his own baseball card, so to speak, with complete stats on his meeting attendance, test results and so on. These statistics weigh heavily in the judge’s decision to pass a participant through the program — or into jail. Under Proposition 36, it’s up to the providers and probation officers to keep an eye on their clients. Moreover, Proposition 36 does not require urine testing — and in fact provides no funds for testing.
That’s a serious problem. The journal Federal Probation reported in 1998 that, because a patient pressed into treatment programs by the legal system may lack the motivation to kick drugs, programs “should provide a high level of structure.” For outpatient programs in particular, the paper recommends, he should be subject to “close urine monitoring.”