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.”

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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.”

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.

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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.”

Drug Court defendants get that. Proposition 36 defendants won’t. Ironically, for clients who fail the standards of Proposition 36, the prescribed penalties can mount quickly — sometimes at the same pace as under current statutes. The new law includes two alternatives, both versions of a “three

strikes” concept. Offenders who successfully pass through a treatment, get arrested and convicted again, complete treatment again and then get arrested a third time may be incarcerated for up to 30 days (though there is some controversy as to whether they could get a longer term). But defendants who on their first Proposition 36 conviction fail their treatment program three times before completing it at all can be sentenced to as long as three years.

What’s apparent from the outset is that Proposition 36 presents an imposed solution with little room for flexibility, while the Drug Courts developed incrementally, as an organic and personal response by judges to the drug problem that manifested itself in their courtrooms every day.

The first Drug Courts were created in the 1980s, at the height of the Reagan-era War on Drugs, and they did not much resemble the Drug Court model that exists today. A rash of mandatory-sentencing laws in states across the country, coupled with the crack-cocaine outbreak and the mood of the times, resulted in a court system overloaded with newly minted criminals. From 1980 to 1995, arrests of adults for drug offenses jumped an eye-popping 273 percent, according to the Bureau of Justice Statistics.

The point of the early Drug Courts was to ease the stress on a justice system suddenly inundated with drug defendants, many arrested for minor, nonviolent violations such as possession. These courts helped thin the dockets, but they didn’t stop the same people turning up in court again and again, arrested for drug-related crimes.

The Dade County, Florida, Drug Court in Miami was the first to try solving the more important problem of how to get people off drugs. Under pioneering Judge Stanley Goldstein, the court offered certain drug addicts treatment as an alternative to jail. The program was composed of therapy, counseling and, interestingly, acupuncture, which apparently can reduce craving for drugs.

The catch was that this treatment would be monitored and supervised by the court. Goldstein’s program proved strict and effective. Courts in Northern California, Oregon, Michigan and Florida emulated the Miami experiment and found that the drug addicts who went through the court-supervised treatment program got arrested again much less frequently, and those who did took longer to do so.

By 1994, there were 21 Drug Courts scattered across the country, including one in Los Angeles County. That same year, judges, attorneys, treatment providers and probation officers from around the country formed the National Association of Drug Court Professionals. California had 47 Drug Courts by 1997 and has 102 today. By October 2000, there were 585 in 47 states, with 465 more in development.

Proposition 36 has no real track record, but the law does have one precedent. In 1996, Arizona voters approved a similar measure, the Drug Medicalization, Prevention and Control Act — known somewhat more palatably as “Proposition 200.” The Arizona law funds drug treatment for low-level offenders from a liquor tax, rather than from the state’s general fund, which is where Proposition 36 gets its money. Otherwise, the goals are pretty much the same: to channel nonviolent drug offenders into treatment rather than jail.

In 1999, the Arizona Supreme Court issued a “report card” on Proposition 200. The court found that of the 2,622 adults who entered the Proposition 200 program in fiscal 1998, 35.5 percent, or 932, completed a treatment program. Of those, 61.1 percent completed their programs “successfully.” That means they didn’t “abscond, reoffend or have a petition to revoke filed.”

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Whether 61.1 percent of 35.5 percent constitutes a smashing success is open to question.

The court did find that 76.3 percent of participants in Proposition 200 programs — more than three out of four — passed urinalysis tests, indicating that they were “drug free,” at least during fiscal 1998.

Skipping down to the bottom line, the report card figured that the program saved the state of Arizona over $2.5 million in prison and court costs.

The only other preview of how Proposition 36 may pan out comes from Orange County, where the court system has been running a pilot program, essentially a dry run of Proposition 36, since March. Orange County Drug Court Administrator Ralph Rodgers says that, while the pilot has operated without state money, which won’t come until July 1, and uses only three treatment providers rather than the “I don’t know how many” that will be used once the law takes effect, it has helped Orange County courts anticipate some surprises.

“We found that, overall, a very addicted population seems to be coming into Proposition 36,” says Rodgers. “It’s not a lightweight population. We thought we’d be getting people from all levels of addiction, but we found that it was heavier on the more addicted side.”

Rodgers also says that Proposition 36 drew “people that had pretty severe prior criminal histories. That’s not something we saw as much with Drug Court.”

What will become of the Drug Courts, one of the few successes in this country’s War on Drugs, once Proposition 36 takes effect? Abrahamson says they won’t disappear, but they will change their focus.

“Proposition 36 really applies to the low-level drug offender who has no other conviction. To that extent it places Drug Courts somewhat to the side. The people who would be now eligible for Drug Court would still be low-level drug offenders, but somewhat more serious,” he says. “They would have perhaps also a conviction for theft or burglary or something else related to their drug addiction. They wouldn’t be stealing or breaking and entering were it not for their need to score their next hit of drugs. It’s that type of more serious offender who warrants the more intense supervision, who needs the court resources that Drug Courts have to offer.”

The rest of them, it appears, will not experience the odd warmth — odd because it is actually present in a courtroom, not the most comforting of places — that distinguishes Drug Court from another judicial experience.

That was the feeling the afternoon that I stopped by Judge Marcus’ court. It took a few hours to work through everyone who had been required to show up. From a teetering stack of paperwork on his judicial bench, Marcus read a report on each one, detailing the progress of recovery from longtime drug addiction. Every time the judge announced that the defendant in front of him was ready for “graduation,” the whole crowd broke into applause.

When everyone had had their moment with the judge, there was still one guy in the back. Judge Marcus looked at him, recognized him and said, “Didn’t you graduate?”

“I just came by to say hello!” said the fellow, a cheerful African-American man who looked to be in his early 30s. And he launched into his story of how he was now clean and opening his own business. The judge said he had an event coming up where he needed some successful graduates to demonstrate how Drug Court works. He asked his new buddy for his phone number.

Webmaster's note: When this story was intially posted, its main text was not Jonathan Vankin's piece but rather David Shulman's “Chemical Me” from elsewhere in this issue. The text above is Jonathan Vankin's actual article. The Webmaster wishes to apologize for any confusion that might have resulted from an error that was entirely his.

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