Calif. Law Mandates Treatment For Nonviolent Drug Offenders

California is the epicenter of the “voters’ initiative” movement in which a state’s citizens can decide important policy questions for themselves. Sometimes those votes are aptly characterized as “voter revolts,” and the landslide victory last November of Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, certainly qualifies as revolutionary.

The issue now is how to make this revolution work. Proposition 36 diverts first- and second-time nonviolent drug arrestees to treatment rather than incarcerating them. That seemingly simple concept alone won endorsement from 61 percent of the state’s voters.

The opponents, who included law enforcement officials, a few political leaders, representatives of drug courts, and a few high-profile drug treatment organizations such as the Betty Ford Center, never really had a chance. They were outspent by the financial backers of Proposition 36 and wildly out-endorsed by medical associations, including the California Psychiatric Association (CPA), drug treatment providers, politicians, and a broad coalition of civic organizations. The chief financial backer of the initiative was billionaire investor and financier George Soros and his Open Society Institute, which have financed drug-policy reform initiatives in other states as well.

The CPA “endorsed it on the principle that medical treatment is more likely to produce positive results for drug abusers than jail is,” said Conni Barker, J.D., director of government affairs for CPA. “Had this been in the form of legislation rather than a voter initiative, we would have sought to amend it, but we did support the concept behind it.”

Proponents argued that treatment was both more humane and a better use of public funds than prison—the figures most widely quoted were that treatment costs $4,000 to $7,000 a person annually as opposed to at least $25,000 for incarceration. Up to 37,000 arrestees a year could be diverted under the new plan, for an estimated tax savings of $100 million to $150 million a year and potentially a one-time savings of $450 million from forgoing construction of a new prison.

Coincident with the debate, a study was released showing that most prisoners had access to drugs while incarcerated, but few got treatment. Finally, supporters could point to a similar if smaller-scale approach in Arizona, with encouraging if preliminary results.

Opponents had little to counter those arguments. Thus, Proposition 36 will become California law in July. And in a scramble reminiscent of the 1996 voter approval of “medical marijuana” in California, everyone involved is struggling to determine what it will mean in practice. Complicating the picture is money; the initiative came with $120 million a year in funding for treatment over the next five years, but with little specificity about how that money will be spent other than a ban on spending for urine testing, an issue that divided even treatment advocates.

Strategy Meetings

Now that the heated campaign dust has settled, the successful Proposition 36 advocates have organized one statewide strategy meeting, which drew more than 700 people including state officials. The state is also in the process of forming an oversight board to guide implementation, and Governor Gray Davis has named Catherine Jett, who has been with the state attorney general’s office, as director of the California Department of Alcohol and Drug Abuse, where she will oversee the effort.

Treatment experts are also hopeful, but less than sanguine about the outcome of the change mandated by the initiative. “It’s going to be a real bear to implement Proposition 36,” said psychiatrist and addictionologist Peter Banys, M.D., president of the California Society of Addiction Medicine (CSAM). “There’s a real chance that the money could disappear into a black hole before we get a handle on the best way to utilize it. Each county is being allowed to develop its own program, and the struggle will be between counties that want to be left alone to do it their way and the state, which wants to ensure the money is well spent everywhere.”

Foremost among concerns is the need for quality control and good outcomes measures for treatment programs. Opponents of Proposition 36 raised the specter of “fly-by-night” providers popping up to grab funds, and, at a minimum, the new policy promises to highlight some long-existing constraints on drug treatment.

The statewide committee that will be charged with implementing Proposition 36 will first have to grapple with certifying treatment providers. Banys pointed out, “The policy allocates 0.5 percent of the first-year funds to do outcome measurements, but that $600,000 won’t go far even in good hands. In any event, the likelihood is that the bulk of the funds will go to existing treatment providers in each county.” That committee will probably be under the purview of the state Department of Alcohol and Drug Abuse.

Therapeutic Jurisprudence

David Smith, M.D., founding medical director of the Haight-Ashbury Free Medical Clinics in San Francisco and a past president of the American Society of Addiction Medicine (ASAM), also has both high hopes and worries about implementation. “We had ideological opposition from both law enforcement and the drug courts, which need to be our allies,” he noted. “The concept of ‘therapeutic jurisprudence’ is central to this policy and is crucial for early intervention with troubled adolescents at risk. Jails have become the service provider of default for young adults, and that’s counterproductive.

“From a preventive perspective,” Smith added, “we want to identify them from their first brush with the law and get them into a medical model, while also facilitating treatment for the already addicted population. The drug courts are an excellent model but have only reached a very small percentage of people and areas, and this expands that model.”

Besides ensuring quality treatment, expanding treatment slots to fit the anticipated inflow of newly diverted patients will be a major hurdle. “The new law will provide some resources, but we still have the huge problem in most communities of NIMBYism—‘not in my backyard,’” Smith lamented, citing his own recent experience trying to move a clinic site within San Francisco.

More Physicians Needed

Physicians will also be crucial, and more of them with expertise in addiction will be needed. (Of CSAM’s approximately 400 members, about half are psychiatrists, the largest single specialty represented.) Issues of credentialing for addiction treatment still have to be addressed, but CSAM President Banys noted, “We don’t have to reinvent the wheel here. ASAM and CSAM have standards and protocols that we feel should guide implementation of Proposition 36 at each step. The jury is still out on whether we can ensure that.” Smith agreed, noting that recent and expected advances in treatment such as buprenorphine and new methadone modalities should help give more physicians better tools and optimism about outcomes.

California is also a leading state in relaxing some of the legal restrictions on use of controlled medications, including methadone. Still, he added, “We will likely have to be aggressive in recruiting more physicians, while not compromising on standards.”

“Younger physicians as a group have less resistance to getting involved in addiction treatment than in previous decades,” Smith suggested. “The barriers here are more about regulations and reimbursement. But the one thing we know is that by any measure, a group of people with substance abuse problems who are in treatment do much better than those not in treatment. That should be our bottom line.”

Drug-treatment reform initiatives have been passed in numerous states, but this is the most sweeping change to date. The backers of the initiative have already indicated that they are eyeing other states for similar campaigns. The California experience with Proposition 36 will be closely watched from many angles. Even for those practicing far from California, the ripples of Proposition 36 are likely to be felt in coming years. ▪