Bill that Would Gut Voter-Approved Treatment instead of Incarceration Initiative (Prop. 36) Back in Committee

Despite a legal opinion from the Legislature’s own attorneys that her bill would be in violation of the State Constitution, Senator Denise Ducheny of San Diego intends to bring the bill, SB 803, to the Senate Public Safety Committee Tuesday morning. It would radically overhaul Prop. 36, the treatment instead of incarceration initiative passed in 2000, by jailing drug addicts who are being treated as a result of that initiative. The bill was originally scheduled to be heard about two weeks ago.

“It’s an attempt by politicians, prosecutors and cops to overturn the will of the people,” said Bill Zimmerman of Campaign for New Drug Policies, who led the campaign for Prop. 36. “For thirty plus years DAs have crammed drug users into cells, and had their way in the legislature. They still can’t accept that the voters said it’s time to handle drug problems differently.”

Proposition 36 passed with 61% of the vote in 2000. It provides that nonviolent offenders convicted of drug possession for a first or second time would be offered drug treatment rather than prison. According to an evaluation by UCLA, over 10,000 people a year complete drug treatment through Prop. 36.

However, drug court judges and police groups that opposed the initiative in 2000 continue to seek ways to rewrite the law. In the last year they convened meetings to draft a bill that would radically change the way Prop. 36 works. Their draft became the basis for SB 803, which would:

• Allow for indeterminate “Three Strike” sentences of 25-years-to-life for nonviolent drug possession offenders who currently qualify for treatment;
• Add jail penalties of 2-to-30 days for missed appointments, positive drug tests or other signs of noncompliance. Opponents of the bill say that this will drive up county incarceration costs by almost $29 million, and may necessitate the early release of more dangerous offenders;
• Limit the number of individuals and families that benefit from drug treatment, literacy training and family counseling. Those excluded would be sent to state prison.

Background:

Legislative Counsel Found that Adding Jail Days Would Violate the California Constitution

On April 18, Legislative Counsel delivered an opinion to the office of Senator Ducheny that stated that adding jail time to Prop. 36 “would not both further the initiative statute and be consistent with its purposes. Therefore the legislation could not take effect without voter approval pursuant to subdivision (c) of Section 10 of Article II of the California Constitution.”

Treatment Retention and Completion Rates in Prop. 36 are Equal to those of Drug Courts

Ducheny’s stated rationale for increased punishment is to improve treatment outcomes and prevent future drug use. However, independent studies find no difference in the success rates of Prop. 36 defendants and those in drug courts, despite the fact that Prop. 36 is treating tens of thousands more defendants, and that the average Prop. 36 defendant has been using drugs for a much longer period. Before Prop. 36 took effect, drug court completion rates varied widely, from 11% to 61%, depending on the county. The largest study of a California drug court, Alameda County’s program, showed a 36% completion rate. The independent evaluation of Prop.36 by UCLA found approximately the same rate of completion (34.4%) among the over 30,000 participants in its first year of implementation.

“We will highlight the science in committee,” said Glenn Backes, health policy director for Drug Policy Alliance. “The pretense of improving outcomes is just a cover for the same old lock ’em up mentality. There is no evidence that cruelty is going to reduce future drug use.”

Who will be Released to Make Room for Prop. 36 Probationers?

At least 17 California counties (including Los Angeles) are subject to population caps on their jails. By federal court order, they must release a prisoner every time they bring a new person into custody. Although each county has its own criteria for early release, it appears likely that those convicted of spousal abuse or drunk driving might be among those whose sentences would be shortened to make room for drug users incarcerated as a result of SB 803. “Who will be released? This is the insanity of drug war thinking at its worst,” said Backes. “This bill would release those convicted of a violent crime early to make room for a nonviolent drug user.”