Examing Prop. 36

"We try to keep it positive. What we do in court is work as a team. We all work closely with the state parole office, the probation officers, treatment centers—we're working for the defendants' and the public's best interest, no matter what."

Those aren't the words of a criminal defense lawyer or a social worker. They're the words of Lori Temko, deputy district attorney and Drug Court coordinator for San Diego.

"It's very different from the public perception of what our job is," Temko told CityBeat before afternoon sessions of San Diego County Superior Court, Department 24. The court is the first and last stop for people who have run afoul of the law for drug offenses. It's where they find out if they're eligible for sentencing under Proposition 36, which allows some offenders to avoid trial and prison time by completing a drug-treatment program. The objective of Prop. 36 is to get people out of the cycle of drug abuse and help unclog the county jails and state prisons.

Temko's colleague in prosecuting Prop. 36 cases is Joan Stein. Wearing a midnight blue power suit and rolling her designer suitcase full of legal paperwork behind her through the corridors of downtown's Hall of Justice, Stein spoke quickly and effusively about the "undeniable results and invaluable" merits of Prop. 36.

"I've been so proud of the work we're doing here," Stein said when asked if she voted for the statewide mandate passed two and a half years ago despite stiff opposition from prosecutors around the state. "A lot of prosecutors did not want this to pass, it's true. But I think it's been implemented so well here in San Diego. I think it's doing a world of good now. We're finally getting people the help they need instead of another trip to jail to sober up until release."
Passed by 61 percent of voters on California's Nov. 7, 2000 ballot, Prop. 36 had a tough-on-crime ring to its official title: The Substance Abuse and Crime Prevention Act. The aim of the initiative was to effectively reverse almost three decades of fighting the war on drugs by refusing to automatically punish the victim of the affliction—the low-level, non-violent drug offender. But while the initiative mandated treatment options in lieu of jail, it issued only the broadest of directives for implementing the details, leaving state and local criminal justice, health and social-service organizations to devise their own plans.

In San Diego, Prop. 36 had a predecessor in Drug Court. Begun in 1995 by then-judge Bonnie Dumanis, Drug Court, through its emphasis on getting treatment for non-violent offenders, proved a road map for the Prop. 36 implementation.

"We were lucky in that we had Drug Court as a pre-existing measure," said Al Medina, director of the county alcohol and drug program for San Diego County's Human Services Agency. "Prop. 36 had an impact on every county, but we were able to move forward with implementation because we had a pre-existing initiative with public safety partners to look at basically improving the way we look at substance abuse within the criminal justice system, but it was only touching a portion of a total eligible population."

Like Prop. 36, Drug Court mandates treatment and counseling for non-violent offenders. It also encourages educational and vocational training for participants. But, whereas low-level offenders who qualify for Prop. 36 are promised no jail time in exchange for treatment, Drug Court—the option for those who don't qualify for Prop. 36—shows no mercy for anyone who slips back into drug abuse during the court's determined probation period.

In Drug Court, said Temko, the defendant is more accountable. "At any time in the process, the judge can revoke the probation and treatment is the defendant is non-compliant."

Whereas Prop. 36 allows three strikes—for example, a defendant is allowed to test positive three times—"when someone falls off the wagon [in Drug Court], they go to jail," said Temko. "That's some pretty serious motivation."

The negative consequences of non-compliance, she added, remain the prosecutor's most effective tool.

For Temko, passage of Prop. 36 wasn't ideal, but she says it's her job to do her best to make the will of the people work. And the will of the people, in this case, is a relatively new and almost completely contrary direction from the state's criminal drug policies for the past 30 years for which prison was, unfortunately for drug offenders, the only place to get sober.

Indeed, Prop. 36 has been credited with lowering incarceration rates for women in California (most female jail sentences are for low-level drug offenses), saving taxpayers "many millions of dollars by reducing the state's jail and prison populations" and a higher than average number of patients who are staying active in recovery or treatment programs, according to the Drug Policy Alliance, co-authors of the Prop. 36 initiative.

According to the organizations charged with implementing it, the treatment facilities that benefit ostensibly from its exponentially growing number of client referrals and even the drug offenders themselves, Prop. 36 is a whole new way of approaching the war on drugs, a battle critics have called "the war on drug users."

More than two years of shaping the initiative has produced surprisingly quick returns on the public's investment of confidence and resources—at least when compared to the seemingly never-ending interdiction efforts of a strictly punitive, law enforcement approach. For every kilo of cocaine, crystal meth or heroin the federal Drug Enforcement Administration or county Sheriff's Department uncovers, far more prodigious amounts of illicit substances are being produced, trafficked, bought, sold and consumed on street corners and in backyard meth labs throughout the region. And all this despite billions in federal and state funding poured into military-level technology and man-hours each year to fight the problem.

Many point to the prosecutors, judges and probation departments' new roles as the most surprising and encouraging results of the initiative.

"One of the greatest strengths of Proposition 36," said Beverly Fisher, Prop. 36 coordinator for Stepping Stone, one of San Diego's oldest and most respected treatment and recovery services, "is the collaborative efforts between treatment providers, the courts and probation. It sends a message to the clients that there is a unified effort in seeing them succeed." 

If it weren't for Prop. 36, Sharice, who declined to give her last name, would most likely be in jail. On a recent Thursday, she tested positive for drugs before her court-appointed session for the Prop. 36 program. Under the rules of San Diego's program, Prop. 36 enrollees have an allotted time—usually around 30 days—to complete either an outpatient, sober-living or residential treatment program at one of the county's certified establishments. Failure to comply with the rules of a treatment program, appear at all court or probation meetings, and, of course, remain drug and alcohol-free, results in a strike against the defendant.

Three strikes, for any of the offenses, are deemed "non-compliance," said prosecutor Joan Stein. "That's when we decide what to do with them. So the prosecutors get together and go over everyone's tests each morning session. By afternoon, we pretty much know their fate: return to treatment or go to jail."

Sharice had also enrolled at a residential treatment program in Los Angeles the previous day. And when the judge verified this with the court clerk and public defender, she was not expelled from Prop. 36 and scheduled for sentencing, as a strict interpretation of the program's three-strikes rule would demand. The judge and prosecutors decided that Sharice's use of drugs while on the three-day waiting list for rehab, and her attempts to seek treatment for her addiction, were reason enough to spare her a jail sentence.

For the time being. Sharice would have to make all her court appointments and probation meetings for the next month to remain free. If she did, said prosecutor Stein, "then shwoop, we wipe the record clean and say, ‘Good luck. Stay sober and stay out of trouble. And stay with the program!'"

"I had problems with that crack for so long. So long, now," said Sharice. "I been to county [jail] before, too. I don't know why, I don't know except that I need help. I need help…." She trailed off and stared out a window of the downtown courthouse. As she waited for her turn to talk to the probation officer, she decided she'd talked enough about getting clean for good.

"You know what, I don't want to talk about this shit no more," she said with a sudden conviction that was surprising, considering just seconds before she had sounded more like a little girl who'd lost her way. "That's it, know what I'm saying? If I'm gonna do one thing, it's get through that treatment program and see my baby girl.

"None of that matters if I don't get this shit straight." 

While it's still too early to determine the long-term effects of Prop. 36, many in the recovery and social services areas see the proactive cooperation of the District Attorney's Office as a welcomed change from previous policies regarding so-called "recreational criminals."

The coke-dealing teenager, the full-blown heroin junkie and the crack-smoking homeless man were all the same in the eyes of the law before Prop. 36. Former District Attorney Paul Pfingst, for example, had been one of California's top prosecutors who did not support the idea of the public mandating that the courts offer treatment as an alternative to jail time, not even to low-level, non-violent, possession-for-personal-use, first- or second-time drug offenders. They were criminals, and were almost uniformly incarcerated or placed on probation for a first conviction. The courts did not recognize as a matter of policy what the medical profession had known for decades—that drug addiction is a social health problem, not exclusively a criminal one, although, of course, criminal and anti-social behavior often result from the cycle of addiction.

"There is such thing as a concept called harm reduction," said Linda Lloyd, vice president of programs for Alliance Health Care Foundation, one of the largest and most progressive funders of health care and substance abuse programs in San Diego County. "It's a concept that… has not been dealt with—the fact that drug use is defined in the biomedical literature as a chronic relapsing disease where relapse is part of the disease process."

Not all has gone as well as some would like. Prop. 36 got an early report card on the implementation of its basic policy directives statewide. The report, authored in March 2002 by the Drug Policy Foundation (the group that also helped write Prop. 36), issued San Diego County a D+ grade overall. To be fair, the report card was issued only months after the bill took effect and many counties received poor marks for lacking elements that have been implemented since then.

Still, the program has its critics, who wonder if the deluge of new clients requesting treatment will overburden an already chronically under-funded treatment environment in San Diego. Already, groups like Alcoholics Anonymous and certain residential recovery homes are refusing to jeopardize their reputations and effectiveness by admitting forced or "coerced" candidates for treatment, citing Prop. 36 clients as a risk to their volunteer clients and a waste of their time and limited resources.

"We don't do Prop. 36 [clients]," said one counselor at a county recovery home who wished to remain anonymous. A former addict and alcoholic who eventually became a staff member and ultimately one of the residential facilities' program directors, he says "they just don't work in our environment, for the most part. You've got to want to be sober. It's got to be voluntary. You've got to completely admit defeat and surrender, just like the 12-steps say. It's not a requirement to admission that you believe what we tell you. You just have to be willing and ready to do anything to stay sober.

"Prop. 36 people just aren't ready for that. No way," he explained. "It's a waste of our time and theirs. And we're not gonna risk the other [client's] sobriety for somebody who's trying to dodge a jail stay. So, we're not completely against 'em [Prop. 36 referrals], and we probably will do some in the future, but right now it's just not what we're looking to add to the mix."

Its not only treatment programs that lack resources, but, in a sense, the clients as well. Defendants in Prop. 36 cases are often coming off a decade or more of addiction and therefore require far more intensive treatment than was initially projected. But the system in San Diego County seems to be adjusting quickly. At least, according to some of the folks closest to its implementation.

"Most, almost all of our misdemeanor offenders are referred to outpatient programs," said Stein, whose personality and enthusiasm for the measure suggests a Prop. 36 "good-cop" to the "tough-cop" persona of her partner, Temko.

Stein acknowledged San Diego has a shortage of residential treatment centers and sober-living beds, but she says not every Prop. 36 case requires long, in-house residencies to find their way to sobriety and out of trouble with the law.

"First off, the residential beds just aren't there. And generally the waiting lists are so long [residential treatment's] not a feasible option," she said after a lengthy afternoon session of dealing with "dirty" tests (positive for controlled substances) and "FTPs" ("Failures to Appear").

One of the cruel ironies of Prop. 36 is that, while a majority of voters support efforts by drug addicts to reform through treatment, NIMBYism and an increasingly poor reputation due to a lack of county or state oversight have conspired to turn many homeowners against the substance-abuse versions of the traditional "half-way house." They now go by the more common name of "sober living home," and they are crucial for residential recovery program graduates for safe, supportive transition back into normalcy. Study after study bears out the importance of these accredited operations in returning a successful citizen to the population—as do studies showing that for the homes near a newly established, state-certified sober living establishment, crime rates actually go down while property values have gone up after the recovery home moved in.

Stein urges patience with both the Prop. 36 program, NIMBYs and, especially, the addicts themselves.