One of the most significant things California voters did this year –
perhaps the most significant when people look back on the year 2000 five
or 10 years from now — was to pass Proposition 36, which changed
sentencing laws so most non-violent drug possession offenders will
receive at least a couple of chances at probation and drug treatment
before being put in prison, by a whopping 61-39 margin. Taken in
conjunction with similar measures passed and decisions made in other
states, it could represent a turning point in the country’s approach to
drug use and addiction.
Add to California’s action the passage of initiatives in other
states. Medical marijuana initiatives were passed for the second time
(though second for different reasons) in Colorado and Nevada. In Oregon
and Utah measures to reform the asset-forfeiture laws, which had
provided that in drug-related cases property could be seized without
even a formal accusation, let alone a conviction, passed by big margins.
Measure 8 in Massachusetts, similar to Prop. 36 but broader in scope,
failed narrowly after a big-money campaign against it by law
enforcement. A measure providing for full legalization of marijuana and
amnesty for drug war prisoners, a true grass-roots effort without any
big-money out-of-state help, failed in Alaska, but got about 40 percent
of the vote.
All this activity comes in the context of medical marijuana
initiatives passing wherever they have been placed on the ballot, no
matter what the variations in the provisions, since 1996. Thus Arizona,
Alaska, Oregon, Nevada, Washington, Maine, the District of Columbia and
now Colorado, representing more than 20 percent of the U.S. population,
have all voted for making marijuana available to sick people, by wide
(56 to 69 percent majorities) margins.
What all this activity amounts to is citizens desperately trying to
get the attention of their “leaders” and tell them it is time for a
change in the strict prohibitionist drug policies that have so
conspicuously failed to wipe out drug problems and have in fact made
them worse. Probably not more than a third of Americans are in favor of
full legalization yet. But strong majorities want some common-sense
flexibility — allowing sick people to use marijuana if a doctor agrees
it helps them, allowing people to grow hemp, which produces the
strongest natural fiber known, and moving in the direction of drug
treatment and harm reduction rather than simple prohibition.
So far, the only official political body to respond to this
increasingly powerful shift in public opinion has been the Hawaii
legislature, which earlier this year authorized suspension of marijuana
possession, cultivation and transportation laws for people with a
doctor’s recommendation, and also authorized an experimental patch of
industrial hemp for fiber. A few members of Congress have noted the
shift and spoken positively about drug law reform, but not many. At some
point a few politicians are likely to figure it out and hustle to be at
the head of the parade and declare themselves the leaders.
How soon this will happen might depend to a great extent on how Prop.
36 in California and a similar regime of treatment before incarceration
instituted legislatively and administratively in New York state works in
practice. There will be numerous opportunities for mistakes and wrong
turns along the way, and no doubt many will be made. But if it is even
reasonably successful the demand for alternatives to incarceration in
other jurisdictions will grow.
It will not be easy for state and county governments in California to
implement this measure — even though it provided $60 million to get a
system up and running between now and July 2001, when the new law goes
into effect — and already we are hearing some whining and poor-mouthing
as various agencies scramble to stake claims to the money. But there is
also evidence of good-faith efforts to make the new system work.
The biggest mistake would be to view the new law as a cure-all for
drug problems and to spin problems and failures as evidence that the new
approach can’t work. Voters approved the initiative because they have
come to recognize, as have an increasing number of experts in medicine
and drug treatment, that the old system of putting people who have
problems with certain drugs in jail was not exactly a rip-roaring
As Dave Fratello, spokesman for the Campaign for New Drug Policies,
chief sponsor of Proposition 36, told a reporter earlier this month, “We
have chosen a course that is basically going to cope with the drug
problem and not seek to get rid of it. The false promise of the drug war
is that we can get rid of drugs and persuade everyone to quit. We are
trying to be more realistic here.”
So it’s wise to take as a given that whatever policies government
adopts, some percentage of the population is going to have trouble
coping with certain drugs. It is even possible to wonder whether taking
money from taxpayers to provide treatment is really wise, or whether it
might encourage some addicts to look to the state to take care of them
rather than taking personal responsibility for their lives and choices.
But while such a policy is bound to be imperfect, it is probably less
harmful than taking money from taxpayers to throw addicts in jail to
receive a graduate education in getting away with crime.
At this point it is difficult to sort out which objections amount to
foot-dragging and which are legitimate concerns expressed by people who
want the new policy to work. But some of the following concerns no doubt
have some legitimacy.
The state Legislative Analyst’s Office has issued a thoughtful report
noting that implementation will require close collaboration among state
and county officials who are not necessarily accustomed to working well
together. Many authorities, noting a shortage of treatment programs
under the old system, wonder if enough treatment facilities can be up
and running by July 2001 to handle the estimated 36,000 people diverted
from jail under the new policy.
Many critics have noted that the initiative does not provide funds
for drug testing, which some consider essential to recovery. Others note
that the new system could put new pressures on a probation system,
which, according to state Senate President Pro Tempore John Burton,
D-San Francisco, has suffered “years of neglect.” Many worry that
attempts to expand treatment facilities will run into NIMBY (Not In My
Back Yard) problems. While the initiative requires that treatment
programs be state certified, many wonder how the money provided by Prop.
36 ($120 million a year, much less than the cost of incarceration) will
be allocated. Some worry that police will “upcharge” — add trivial
charges to possession cases to prevent full implementation of the
“I have been around for 30 years of big things in drug treatment,
like Proposition 36,” said Douglas Anglin, director of UCLA’s Drug Abuse
Research Center, “and they are always a mess.”
On the bright side, the state government released money to prepare
for implementation as soon as the election results were certified.
Kathryn Jett, newly appointed director of the state Department of
Alcohol and Drug Programs, is qualified and apparently motivated to make
the new policies work.
On Dec. 18 some 650 proponents and critics of the new approach, along
with health and law enforcement officials, met for a conference in
Sacramento on implementing Prop. 36, co-sponsored by (among others) the
California Medical Association, the California Society of Addiction
Medicine, California Nurses Association and California Association of
Alcoholism and Drug Abuse Counselors. Many of the potential problems
were aired, and while not all were resolved some answers are emerging.
Bill Zimmerman, executive director of the Campaign for New Drug
Policies, told me that plausible answers to most of the potential
problems emerged at the conference. “Concern about probation budgets is
legitimate,” he said, “but under Prop. 36 treatment providers can
provide much of the supervision needed for probation officers to monitor
those in treatment. Periodic assessments can also be sent directly to
the judge.” One Los Angeles County superior court judge, he says, plans
to randomly assign 5 percent of simple possession cases to treatment
between now and July, so the courts can gain experience and work out
As for drug testing, a good deal of money is available now for drug
testing and more could be appropriated at a time when California’s state
government is literally taking in tax money faster than it can figure
out how to spend it. But not everybody agrees testing is essential. A
judge in San Jose, says Mr. Zimmerman, told the conference that drug
testing is a waste of money, that relapses are revealed through
behavior. Obviously a good deal more study and experience are needed
before definitive answers to such issues become apparent.
What is most striking so far, however, is the apparent good faith
with which most of the players are proceeding. Many law enforcement
organizations and judges opposed Prop. 36, but Mr. Zimmerman doesn’t
expect serious foot-dragging.
There are bound to be problems, and it is healthy to discuss
potential pitfalls before Prop. 36 goes into effect. It is important to
understand that drug treatment is not utopia and give the new policies
some time to work, fail or have little impact before delivering a
And speaking of verdicts, some of the loose ends of Proposition 215,
the medical marijuana initiative passed in 1996 and implemented only
spottily to date, are now being tied up by California juries. Earlier
this month a jury in Placer County, one of the most socially
conservative places in California, voted 11-1 to acquit Steve and
Michele Kubby of all charges related to cultivating and using marijuana
in their home near Tahoe. Both have medical conditions and doctor’s
recommendations — in Steve’s case a rare adrenal cancer attested to by
Dr. Vincent DeQuattro, his former physician who is now a department head
at the USC Medical School, that is usually fatal in months.
The jury, aside from one lady who wanted to convict on all charges
despite the evidence, accepted the guidelines developed by a commission
including medical people, law enforcement and patients in the city of
Oakland a couple of years ago. Based on the fact that the federal
government currently provides about seven pounds of marijuana a year to
the eight patients still on the since-suspended compassionate IND
program, the Oakland group recommends 144 plants per patient per year
(in various stages of development to provide a steady supply) for indoor
grows, and 96 plants for outdoor plantings.
So progress is being made despite little action (and often active
foot-dragging) by politicians. Let’s see what happens next year.