Behind the prop

With financial support from a billionaire philanthropist, the marketing campaign was as meticulously planned as a major product launch.

The multi-pronged appeal was well-designed to invoke both compassionate emotion and the reasoned logic of fiscal and civic responsibility.

The advocates of the new petition said that buying into their idea could save state taxpayers a lump sum of up to $550 million and an additional $275 million each year in reductions to the seemingly ever-expanding state prison and parole system operating costs. The proposal claimed it also would allow county governments to save up to $40 million per year in criminal-justice administration costs.

The significant fiscal rewards would be generated in concert with sparing thousands of California drug offenders the trauma and indignity of incarceration, and instead providing them with drug-addiction treatment, counseling, job training and other social services. It was a pitch with appeal across the political spectrum, from the traditional liberal to the compassionate conservative; there was something for everyone.

On the other side of the issue, a historically influential coalition expressed strong reservations about the plan. Police organizations, judges, district attorneys and the state attorney general (with a couple of token celebrities thrown in) warned that it just wouldn’t work. This opposing group said it would result in drug addicts running amok on the streets by night and reporting to workplaces while under the influence during the day. Fly-by-night drug-treatment centers would spring up, and existing drug courts would be shut down. And, of course, it would send the wrong message to the children. Although this coalition’s counter-message gradually did reduce some public support for the plan, in the end, it was no match for the deep-pocketed, media- and public-opinion-savvy proponents.

The product at issue was Proposition 36, known formally as the Substance Abuse and Crime Prevention Act of 2000 or SACPA. The contentious debate about the initiative drew national media attention, including coverage by Newsweek magazine and The New York Times, which sent its editorial endorsement from the East Coast. And while the country was bitterly divided into red and blue states for that close November 2000 presidential election, a clear majority of 61 percent of California voters approved the measure. In Sacramento County, 226,965 residents cast yes votes, endorsing the act with a margin of 56 percent to 44 percent. The following summer, on July 1, 2001, the law formally went into effect.

More than three years later, the sponsoring parent of SACPA, the Drug Policy Alliance, says the law is an overwhelming success and on track to save California taxpayers $1.5 billion over five years.

There is, however, mounting evidence that the law may be a billion dollar failure instead.

The alliance is a national drug-law-and-policy-reform organization whose stated master plan is to liberalize drug laws throughout the United States. The group’s goal is to enact laws similar to SACPA in other states, and a lot is riding on the success—or the illusion of success—of SACPA in California. Alliance plans were set back when nearly identical laws were defeated or withdrawn in Massachusetts and Florida. Although Proposition 36 requires an annual report card on the law’s progress be provided to voters, a dearth of credible and complete information exists. An SN&R examination of the available data, and interviews with government officials and other sources, has found that the alliance’s billion-dollar-savings calculation and other claims of triumph rely on what may be several questionable or otherwise unreliable assumptions.

One state-government official who has analyzed prison-system and SACPA data said that virtually none of the claimed savings has yet to be realized. Other dissenting voices, some reluctant to speak out publicly, have expressed other doubts about the success and effectiveness of SACPA. Police, prosecutors, defense attorneys and judges all describe substantial troubles with Proposition 36. Some problems directly contradict promises made by Proposition 36 advocates, and others fall into the category of unintended consequences. Low graduation rates for treatment-program participants, racial disparity in treatment allocation, an increase in drug-related criminal activity, expanded prison and jail populations and other related issues are cited by those who work with the law daily.

In essence, SACPA provides that criminal offenders convicted of nonviolent drug possession be sentenced to drug treatment instead of prison or jail, or to probation without treatment. The previous criminal history of the defendant also affects eligibility. If eligible, the defendant has the option of entering the SACPA treatment system or accepting conventional criminal-justice processing. Parole violators who commit nonviolent drug offenses or who violate drug-related conditions of parole are referred for drug treatment instead of being returned to state prison. Relapses or other problems during the course of treatment do not necessarily eject a participant from the program. But an offender referred for treatment who fails the full treatment program two or more times is no longer eligible for the program.

Under the Sacramento County SACPA procedure, in most cases, a defendant pleads no contest or guilty to the charged offense, a suspended sentence is imposed, and the defendant is diverted into drug treatment. If treatment is successfully completed, defendants can petition the court to dismiss the conviction. If the offender fails to complete the treatment regime, the original sentence can be imposed.

The costs of implementing the law, including substance-abuse treatment, increased probation caseloads, court monitoring of offenders, vocational training, family counseling, literacy training and other services, are paid mostly by the state. The state general fund disburses $120 million per year to counties to offset their costs of implementation.

Currently, only about 10 percent of SACPA defendants successfully complete the full program.

After Proposition 36 qualified for the November 2000 ballot, the state Legislative Analyst’s Office (LAO) did an analysis of the proposed initiative and concluded that the law would save more money than it cost to implement, because of several factors. Up to 24,000 offenders would be diverted into drug treatment instead of being sent to state prison, according to the LAO, reducing the need for up to 11,000 prison beds, thus reducing state-prison operating costs by up to $250 million per year. “These savings would be partly offset to the extent that the offenders diverted to the community under this measure later commit additional crimes that result in their commitment to state prison,” the LAO added in a caveat that may prove prophetic.

The state parole system supposedly would save up to $25 million per year because of an estimated caseload reduction of 9,500 parolees. Adding up the savings, and subtracting the cost, the LAO concluded SACPA would save the state up to $150 million each year. The projected reduction in the inmate population also would result in the state delaying the construction of additional prisons, resulting in a one-time “avoidance of capital outlay costs” of up to $550 million.

In addition, the LAO predicted county governments would save an estimated total of $40 million annually because about 12,000 offenders would be diverted from confinement in local jails into less-expensive probation supervision and drug treatment in the community. The county savings could be less if jail beds vacated by SACPA offenders were used for other criminals already being released early because of a lack of bed space, the LAO hedged. All savings would be realized “within several years after implementation of the measure,” according to the LAO.

The actual 2000 ballot wording for Proposition 36 summarized the LAO conclusions. “Fiscal Impact: Net annual savings of $100 million to $150 million to the state and about $40 million to local governments. Potential avoidance of one-time capital outlay costs to the state of $450 million to $550 million,” read the ballot. It is important to note, however, that the ballot language did not include the fine-print caveats given by the LAO. A voter reading only the ballot language would have the impression that the savings were all but assured.

The LAO analysis and the ballot wording of SACPA was critical to the alliance’s marketing—some would say propaganda—campaign to get the law passed. The immense taxpayer-savings estimates undoubtedly influenced millions of California voters—in particular those who otherwise would be unsympathetic to the plight of drug offenders.

When the group attempted to get a similar measure on the ballot in Florida, the state agency responsible for the wording that would appear on that ballot said the impact of the treatment initiative would be “indeterminate,” with “unknown” costs and “unknown savings.” The Florida branch of the Drug Policy Alliance went ballistic and sued the state to change the ballot wording to include an estimate by the Florida Office of Economic & Demographic Research that said the state would save $55 million per year by diverting offenders from prison to treatment. “This conclusion was then papered over with namby-pamby ballot language saying the impact is unknown,” raved Sydney Smith, the Miami-based co-author of the initiative. “The governor has been against this initiative from the very beginning. His people knew that a ballot note saying it would save money would guarantee passage,” Smith said. Ultimately, unable to alter the ballot wording to its satisfaction, the alliance withdrew the initiative from the Florida ballot.

In July 2003, again using the LAO data as a point of reference, the alliance announced California already had saved $275 million in the first year of the law’s enactment, because of the savings generated by SACPA offenders who were in treatment instead of jail or prison.

“The State Office of the Legislative Analyst originally predicted that savings of $250 million would not be reached until the third or fourth year. We’ve exceeded those predictions in the first year,” proclaimed the alliance’s director of legal affairs, Daniel Abrahamson, in a press release.

Other than the possibly self-serving declarations made by the alliance, an engaged citizen seeking official government information on how Proposition 36 is working out may be frustrated by the lack of it. The California Department of Alcohol and Drug Programs (DADP) is responsible for keeping track of how much Proposition 36 costs or saves taxpayers and whether it is working in general. The department also administers the program throughout the state, distributing funds to counties, licensing drug-treatment programs and collecting data from counties. DADP is required by law to issue annual progress reports and a separate long-term-impact study evaluating the effectiveness and fiscal impact of the law.

The agency has delegated the reporting job to a research arm of the University of California, Los Angeles. The UCLA Integrated Substance Abuse Programs research group has a $3.3 million contract with the state to evaluate SACPA data and issue the annual reports.

The initial report, covering the first year of the law, was issued in July 2003. The 159-page tome covered a broad range of subjects but was mute on the key issues of fiscal impact—known as “cost-offset” in research speak—and treatment-program completion rates. The report included statistics on the “characteristics of treatment clients,” the number of offenders who were referred for treatment, and the number of offenders who entered treatment, but not how many completed treatment. In other words, the question of whether Proposition 36 is saving taxpayers money and successfully helping drug addicts remains unanswered more than three years in.

According to the report’s lead author, Doug Longshore, the second report will address completion rates but not cost-offset, which will be covered in the third report. Issuance of the second report, which Longshore said was completed last December, has been delayed several times. DADP and UCLA refuse to talk about what is in the second report until it is released officially sometime in September.

Two state-government employees—an academic researcher and an agency administrator—familiar with the state government’s reporting process said the delay may be attributable to the fact that there is implicit external and internal pressure on UCLA to put the best possible spin on the data. The two state employees, who asked that their names not be used, said that DADP wants Proposition 36, and the immense funding that flows from it, to be a success and that UCLA wants to continue to get lucrative state research contracts. A similar contract between UCLA and another state agency, the California Department of Corrections (CDC), recently was not renewed. Both sources said UCLA had produced what the CDC perceived as unfavorable annual reports in a review of a CDC in-prison drug-treatment program. In essence, UCLA’s analysis of the program found that inmates who had participated in the CDC treatment program did no better, and in some cases worse, than inmates who did not receive treatment. CDC spends $120 million a year on substance-abuse programs like the one UCLA analyzed, and it obviously would prefer to be able to tell the Legislature and the public that the program works, according to the sources. UCLA and DADP officials deny that the SACPA reporting process is slanted or otherwise unreliable.

One state-government administrator outside DADP has compiled limited but relevant statistics on the fiscal impact and effectiveness of SACPA. Richard Krupp is the manager of the Substance Abuse Program Section at the CDC. Krupp oversees a staff of about 25 employees who monitor various drug-treatment programs throughout the state that are under contract with the CDC. A previous research project undertaken by Krupp was published in Offender Substance Abuse Report, an academic journal.

With the department since 1972, Krupp is soft-spoken and intensely analytical and has an intuitive sense of the CDC system, from the prison yard to the massive downtown bureaucracy. Beginning his career as a front-line correctional officer, Krupp also has worked as a youth authority and adult correctional counselor and held several administrative posts, obtaining a PhD in criminal justice as he climbed the CDC ladder. Several years ago, at considerable personal cost, Krupp exposed massive overtime and sick-leave abuse at the CDC.

Using internal CDC data, the first UCLA report and other sources, Krupp has studied the fiscal and other effects of SACPA on the state prison system, including the year-2000 LAO cost-saving estimates. Krupp points out that the LAO estimate of one-time savings of up to $550 million in capital-outlay costs was based on the anticipated need to build a new prison because of inmate-population increases. There was, in fact, a prison on the drawing board at that time. He said that facility, known as North Kern State Prison, is now complete and nearly ready to occupy. “[LAO] was thinking they would delay or maybe not need that prison, but it’s already scheduled to open at the end of this year,” he said. North Kern is expected to fill to capacity quickly, because the state prison system currently has the highest number of inmates in history, more than 164,000. More than 5,000 new offenders entered the CDC system from July 2003 to July 2004.

Some of the new offenders, according to Krupp, were at one time parolees who had drug-related parole violations and were diverted to Proposition 36 programs. Before SACPA, these parole violators would have been returned to prison for 90 to 120 days and then reinstated on parole. Under the current SACPA procedure, the parolees were referred to drug treatment and remained in the community. While out of custody and theoretically in treatment, six out of 10 either committed crimes and incurred new prison sentences, or were returned to custody for parole violations. “When you follow them after those [SACPA] diversions, about 60 percent of them are back in custody. Some come back to prison with average terms of two, three and four years, instead of doing a 90-day parole violation,” he said. In other words, many of the parolees who Proposition 36 advocates said would get drug treatment and vacate prison beds, resulting in millions in savings, are failing treatment, reoccupying those beds and, in some cases, reoccupying them significantly longer. Krupp attributes a portion of the large increase in the California prison population to this phenomenon.

In addition, some county-level drug offenders referred to SACPA programs instead of local confinement run virtually the same course: They commit new, more serious crimes and end up in state prison. Krupp has heard anecdotal reports from prison counselors who say a significant number of new inmates were in SACPA programs for lower-level county offenses. While out of custody and in treatment programs, they committed crimes worthy of state prison time. Krupp also points out that criminal-justice researchers recognize that about one out of 100 low- and mid-level crimes committed are detected, and one out of 10 serious crimes are detected. Each SACPA re-offender likely has committed a number of other crimes in addition to the one that eventually results in apprehension and conviction, according to Krupp. “It is rare that they get caught on the first offense, especially with burglaries and drug crimes, and the more experienced offenders are able to avoid detection even longer,” he said. Krupp does not expect that the UCLA SACPA reports will acknowledge the societal costs of the criminal activity of SACPA participants who are convicted of new crimes.

Krupp emphasizes that it is impossible to establish a direct connection between SACPA offenders and prison-population increases. He is hoping to implement a system utilizing CDC’s data and the SACPA data to keep track of how many Proposition 36 participants end up in state prison, but his first request for funding for the project was denied. Still, he feels it is clear that the $550 million “one time” and $275 million annual savings predicted by the LAO have yet to occur and were, as the LAO warned, “offset” by SACPA offenders committing additional crimes and being incarcerated.

With respect to the LAO projection that parole caseloads would be reduced, Krupp acknowledges that the number of parolees has gone down. Some of that caseload reduction occurred when SACPA parolees committed new crimes and went from the parole roster to the inmate roster—not the intended flow chart of Proposition 36 proponents. He also points out that CDC has implemented a number of programs, unrelated to SACPA, designed to reduce the number of parolees. Krupp said that the caseload reduction could be attributed to a number of factors, but data don’t exist to make a credible determination.

In effect, there is mounting evidence that the multimillion dollar prison-system savings promised to voters by Proposition 36 supporters and the government itself are turning out to be a pipe dream. Greg Jolivette of the LAO said that all figures provided by that office are estimates. “It’s not like we expect to be right 100 percent of the time,” he said. “And I don’t know that we were wrong or off the mark in terms of that report. … I don’t know that the final verdict is in, in terms of comprehensive analysis of what the impact has been on a statewide basis.” Simeon Grant, director of media relations for the Drug Policy Alliance in Sacramento, said the prison-population problem is attributable to the drug war in general “as well as other things, like three-strikes.” He said, “Proposition 36 is only one issue, and that’s what makes it difficult to get the real direct numbers, because of how many other factors there are.”

At the local level, Sacramento County’s share of the annual $40 million savings the LAO and Proposition 36 advocates said counties might expect because of reduced jail populations also has been elusive. In fact, there is evidence that SACPA may be having the opposite effect.

The county’s Department of Health and Human Services administers SACPA, and the agency recently released a “monitoring and evaluation” report on the second year of the law’s effects. The report concedes that the population of the Sacramento County jail has steadily risen each year since the implementation of Proposition 36, while the number of felony and misdemeanor case filings in the county has not changed. Despite the increase in the jail population, the report claims that the county potentially saved $3,468,282 over two years because SACPA referrals were “detained an average of 20 days less in the county jail compared to the historical comparison group who did not receive treatment services.”

Krupp, however, questions how the jail population can substantially rise, the number of criminal cases stay the same, and the county still claim millions in SACPA-related savings. He points out that the supposed savings are based on the assumption that all the Proposition 36 offenders diverted into treatment would have been incarcerated otherwise. “But most of the time, the ones that are diverted wouldn’t have gone to jail or prison anyway. They would have been on probation,” he said. “That’s why the population numbers for the jails and prisons doesn’t reflect that those diverted people didn’t show up there.”

Sacramento County Deputy Public Defender Norm Dawson describes another recurring circumstance that may link jail-population increases to SACPA offenders. In the course of negotiation for a SACPA offender case, a prosecutor usually will offer a defendant a choice of sentences. Although the offer will vary depending on the prosecutor assigned to the case, an example might be a choice of 90 days of work project without the SACPA program or as much as 365 days in the county jail, suspended, pending completion of SACPA treatment. If a defendant selects the work-project option, he or she spends 90 days out of custody working for the county. If the defendant chooses to enter the SACPA program, he or she does not have to do any jail time or work-project time and is provided drug treatment. If, however, a defendant does not complete the treatment, he or she is subject to the original 365-day county-jail sentence.

Dawson said that more than 80 percent of defendants will go with the higher sentence and treatment option, expecting that they will not have to serve any jail time. “Hope springs eternal,” he said. But statistics show that nine out of 10 SACPA defendants do not complete the full treatment program, and “the vast majority of those are going to do the original sentence,” he said. Because of the low rate of treatment-program completion, the vast majority of offenders are spending more time in custody by entering SACPA than offenders who elect traditional criminal-justice penalties, further eroding the advocates’ claims of significant fiscal savings produced by lower incarceration rates.

Another problem acknowledged by the county agencies that administer SACPA is the low level of blacks in the program. According to Toni Moore, lead administrator of Sacramento County Health and Human Services and Proposition 36 treatment programs, fewer blacks are being referred to the program relative to the percentage of blacks who have drug offenses or are booked into the county jail. Dawson believes the issue has to do with the more severe penalties levied against crack-cocaine defendants, compared with defendants caught with other drugs. Dawson said the disparity stems from the SACPA sentencing-choice options offered by prosecutors. Roughly 80 percent of crack-cocaine defendants are African-American. “In our [criminal justice] world, it’s essentially called the ‘black drug,’” Dawson explained. Methamphetamine is primarily a white drug, and the penalties for the possession of each drug are different. Under California law, any offense involving crack cocaine, including simple possession, is a felony; simple possession of methamphetamine is generally a misdemeanor.

Depending on several variables subject to the judge or prosecutor’s discretion, what can happen is a black defendant with prior convictions for possession of crack cocaine will face significantly more-severe sentencing choices than a white defendant with the same number of prior convictions for possession of methamphetamine. Taking into account that the average SACPA treatment-completion rate is 10 percent, Dawson said that he has to consider advising a client against the higher sentence that includes treatment and to seriously consider choosing the lower sentence offered without treatment. Dawson feels this sentencing disparity may explain why there are proportionally fewer African-Americans in the SACPA program.

The law-enforcement community has its own complaints about Proposition 36. Sacramento Police Department Public Information Officer Justin Risley previously worked on patrol and as a problem-oriented police officer in Oak Park. Risley said the department feels there has been an increase in property crimes in Sacramento that has roughly paralleled the imposition of SACPA. He said the department is receiving anecdotal reports of drug offenders being arrested and saying, “I’ll get Proposition 36. I’ll see you tomorrow.” Many offenders whom police arrest end up back on the street, drug habits intact. “How many crimes do they commit before they’re caught? How many victims are created as a result of their behavior before we’re able to make an arrest again?” Risley asked. The department is hesitant to speak out about the problem, because it doesn’t have any hard data to confirm what officers know anecdotally and because “it’s a politically charged issue, and I think we’re well-aware of that,” he said.

Lana Wyant, a spokesperson for the Sacramento County district attorney’s office, said in an e-mail that the office attributes low SACPA-program success rates to “[t]he fact that the program is filled with defendants who are significantly more addicted than the program was designed to address. … Contrary to what the proponents of Proposition 36 told voters, the typical offender is not the nonviolent drug offender, it is the offender who has committed three or more felonies and who has a long history of substance abuse.”

When rationalizing the dismal 10-percent treatment-program graduation rate, Sacramento County treatment-program czar Moore points out that an additional 10 percent of participants do complete the drug-treatment portion of the program but don’t graduate because they don’t pay off fines and other costs, and then they return to court to have the original criminal case dismissed. But because they don’t comply with these requirements, these participants are still subject to serving any jail sentence originally imposed. It’s yet another outcome that eliminates the claimed taxpayer savings resulting from treatment instead of incarceration.

One official success from the 10 percent who do graduate from the program is 42-year-old Tammy Bartwell. Bartwell said she was a heroin addict for more than 20 years and that Proposition 36 changed her life. In her case, the state undoubtedly did save another prison bed when, four months after being released from custody, Bartwell “caught another [drug possession] case.” She said the offer of SACPA treatment came at just the right time. “I was tired, and I wanted to be clean. I just didn’t know how to do it,” she said. Bartwell is now a Proposition 36 success statistic and looks forward to finishing college and beginning a career as a drug and alcohol counselor.

Asked for her thoughts on why so many others don’t seem to be able to complete treatment, Bartwell responded in a way that reflects the impractical idealistic philosophy of the greater SACPA advocacy community. “All I know is it worked for me. The positives are what I want to talk about. There’s no negatives as far as I’m concerned,” she said.