California’s Proposition 36: Changing the Drug Policy Landscape

Twelve years ago, California voters participated in a referendum on drug treatment policy. Laws in place at the time had required minimum prison sentences for many non-violent crimes such as drug abuse, resulting in a growing and aging population of non-violent prisoners. The initiative, known as Proposition 36, had two goals: to increase public safety by adopting a public health and counseling approach towards drug offenses, and to save money through reductions in prison and courtroom expenses.1

Thus, in November 2000, 61 percent of California voters passed Proposition 36, signaling a paradigm shift in drug treatment policy. Enacted into law as the Substance Abuse and Crime Prevention Act (SACPA), it requires that those convicted of their first or second non-violent drug possession offenses be offered probation with drug treatment instead of a prison sentence. To implement this, criminal justice professionals were required to devote more attention and resources to rehabilitation and treatment programs.2

The law represented a fundamental shift in criminal justice policy and attitudes towards handling drug-related offenses, to which professionals in the courtroom and the treatment center have had to adjust. Officials have acquired new roles and developed novel relationships amongst key policy implementers. Not only do these relationships change, but public agencies are separated by unclear boundaries as well. Interests and goals may or may not overlap, and the boundaries of their authority are often undefined and guided by informal arrangements that can change at any time. Services and resources can be fragmented and stretched thinly throughout a wide policy domain, making cooperation amongst agencies difficult but necessary. Proposition 36 has had its share of these problems with implementation, but, overall, key actors and implementers have been successful at overcoming them.

Though SACPA treatment is available to offenders who commit a wide range of offenses, there is no single, complete, and authoritative list of the offenses that make a drug offender eligible for treatment. This gives judges wide discretion in enforcing SACPA, interpreting the provisions of Proposition 36 “widely enough to allow participation by offenders who might have been deemed ineligible.”3 SACPA treatment is usually not available to offenders who commit a third separate drug-related offense. But judges continue to give extra chances at diversion instead of prison, having had prior experience in California’s drug courts to know whether treatment would be helpful.
Judges have cultivated an environment that encourages all key players to increase participation in Proposition 36. Every morning in Ventura County, the SACPA judge meets with the prosecutor, public defender, probation officer, and treatment provider to discuss the best course of treatment for each offender.4 The involvement of prosecutors is noteworthy. Early in the planning stages, supporters of Proposition 36 initially raised concerns that district attorneys would not fully implement the drug diversion programs, since doing so would appear to clash with their traditionally adversarial roles. Indeed, district attorneys in all counties — except for San Francisco — had opposed the law before its passage.5 However, UCLA found that prosecutors were gradually shifting towards more collaborative roles, adopting more flexible approaches than their critics had anticipated.
The role of the defense also seems to have changed under Proposition 36. Notably, public defenders have taken on new advisory functions, which cause similar tension with their pre-existing adversarial roles. Public defenders — now acting more like “social workers” — are actively following-up after their clients are sent to diversion programs, urging compliance and treatment completion.3

Despite public defenders’ efforts to collaborate with treatment professionals, criminal justice reform has taken place amidst a pre-existing conflict between the two groups. Judges tend to assign troublesome offenders to more intensive treatment, to the dismay of treatment professionals who believe that safety and security concerns should not influence treatment. Nominally, Proposition 36 gave public health professionals more control over assigning offenders to specialized treatment programs. But criminal justice officials have been reluctant to cede to clinical staff the authority to make decisions on placement into treatment programs.5 As a result, positions were created for liaisons between the two groups, in some cases filled by treatment-probation or treatment-parole teams.3

In addition to cultural change, there were also structural obstacles to deal with. Public treatment has existed as a decentralized and underdeveloped web of services, mostly provided by NGOs treating alcohol and drug abuse.6 Each county had a committee that implemented SACPA at the local level, facing problems that reflected the diversity of California counties — large and small, urban and rural, and northern, southern, and central. To make it easier for offenders to enter treatment, many county administrators placed probation and assessment offices near the courthouse.3 However, even the proximity of the offices was less effective in larger counties with scattered populations.5

Proposition 36 requires counties to offer services that address a variety of treatment needs. With such a tall order comes a need for sufficient funding. But the state government spends only about $2,000 per client, roughly half of what critics say is needed.7 Implementing Proposition 36 drastically added to the workloads of agency staff and program administrators. In Ventura County, probation officers were overwhelmed by nearly 200 referrals for treatment within the first two weeks of implementation.8 Nonetheless, various agencies in each county were able to cooperate in providing extensive services that address the needs of their clients. Overall, county administrators reported a positive view of implementation, despite the inherent difficulties in such a massive policy change.3

When California passed Proposition 36, it joined states like Arizona and Maryland in adopting a treatment-centered approach to drug policy.1 Having overcome various issues in implementing the law, California serves as a model to other diversion programs that face cultural and structural obstacles in their own states, such as Illinois. Public policy students at the University of Chicago, conducting research for the Chicago Community Trust, found that political posturing and opposition from labor groups prevent an expansion of Illinois diversion programs.9 But as California has shown us, such an expansion comes only with popular consent, political support, and the cooperation of affected policy domains.
References

1. “About Prop 36.” California Proposition 36. Drug Policy Alliance. Accessed May 26, 2012.
2. Appel, Judith, Glenn Backes, and Jeremy Robbins. “California’s Proposition 36: A Success Ripe for Refinement and Replication.” Criminology & Public Policy 3, no. 4 (2004): 1001-9.
3. Longshore, Douglas, et al. Evaluation of the Substance Abuse and Crime Prevention Act: 2002 Report. Los Angeles: University of California Los Angeles: Integrated Substance Abuse Programs, 2003.
4. Saillant, Catherine. “Success of Addicts Doing Treatment, Not Time, Questioned: In Ventura County, 7% of offenders in the drug diversion program have kicked their addiction.” Los Angeles Times, November 10, 2003.
5. Speiglman, Richard, Dorie Klein, Robin Miller, and Amanda Noble. “Early Implementation of Proposition 36 Criminal Justice and Treatment System Issues in Eight Counties.” Journal of Psychoactive Drugs 35, sup1 (2003): 133-141.
6. Klein, Dorie, Robin E. Miller, Amanda Noble, and Richard Speiglman. “Incorporating a Public Health Approach in Drug Law: Lessons from Local Expansion of Treatment Capacity and Access under California’s Proposition 36.” The Milbank Quarterly 82, no. 4 (2004): 723-757.
7. Wood, Daniel B. “Kinks in California’s shift to drug treatment.” The Christian Science Monitor, September 26, 2001.
8. Krikorian, Greg. “Implementing Prop. 36; Drug Law Ushers in a New Era: Thousands of offenders will be sentenced to treatment rather than prison. Officials begin sorting out legal questions and logistical problems.” Los Angeles Times, July 15, 2001.
9. Chicago Policy Research Team. “Understanding and Changing the Illinois Criminal Justice System.” Unpublished report, University of Chicago, March 2012.

Edgar Pal is a third-year student majoring in economics and public policy at the University of Chicago, and is the Executive Editor of The Triple Helix Online.  Follow The Triple Helix Online on Twitter and join us on Facebook.