County officials who administer the state's treatment-not-jail program for certain drug offenders are struggling with a lack of funding that's not likely to improve, but advocates say ignoring the mandate simply isn't an option.
Instead, officials are trying to figure out how they'll continue to provide the same treatment without the money to pay for it.
Enacted by 61 percent of voters in November 2000 as Proposition 36, the law says first- and second-time nonviolent, simple drug possession offenders must be given the opportunity to receive substance-abuse treatment instead of jail time.
That "must" isn't a suggestion; it would take another voter-approved ballot measure to undo it.
But Prop. 36 allocated $120 million per year for only five years, and as the state's budget crisis worsened, the Legislature and governor declined to ante up. They set aside $108 million in 2008-09 but just $18 million in 2009-10, and then zeroed it out for this current fiscal year. Gov. Jerry Brown's budget proposal includes no money for it in 2011-12.
A $45 million infusion of federal economic stimulus funds in 2009 is now all but gone, and the coffers are empty.
So, it's a mandate with no money, but a mandate nonetheless: Someone who's eligible and demands treatment can't just be sent to jail.
"Long before we had financial support, long before there were funds to subsidize persons involved in the criminal justice system in our
Those waiting lists are long and getting longer, he said, and tracking these defendants becomes difficult. "We have known a better time when there was case management, workers that were there in the court to ensure that people got from the courthouse into treatment "... and see whether or not they were actively participating. That linkage between the courthouse and the treatment program no longer exists."
Fearn's situation is playing out all over California. Now, Brown proposes a massive realignment of state government in which counties will take on services formerly coordinated through Sacramento. In this time of decentralization, and given that the state already had abandoned funding Prop. 36, "our expectations aren't very high" that it'll ever be restored, Fearn said.
Santa Cruz County has announced it's "phasing out" Prop. 36 by no longer having two probation officers dedicated to monitoring participants. But the Drug Policy Alliance, which essentially was Prop. 36's proponent, said that sort of language can be misleading: Any county's refusal to offer eligible defendants treatment instead of jail could invite lawsuits.
"It's unclear whether counties are just using misleading language or whether they're actually confused as to what a lack of funding means," said Margaret Dooley-Sammuli, the alliance's deputy state director. "Prop. 36 is not ending -- the treatment funding is going away. It's unclear how many folks in the system don't understand that difference."
Putting an eligible defendant on probation and a treatment waiting list creates a gray area, she said. For example, if a wait-listed probationer fails three court-mandated drug tests, that person theoretically could still argue against being sent to jail because "the state, the county or the court hasn't held up its end of the bargain" by placing him or her in treatment. "You can't be failed out of a program you aren't in."
Fearn questioned why the law guaranteed only five years of funding for a mandate that would continue indefinitely. "I don't think it was well thought out about what happens after that," he said.
But the Drug Policy Alliance says Prop. 36 at its peak was helping 36,000 people a year, and a UCLA study said every $1 invested in Prop. 36 treatment saved the state between $2.50 and $4 in incarceration costs. That's added up to $2 billion in savings, Dooley-Sammuli said, and that should've been enough to win more budget support.
"We wanted voters to see that the program they approved would have to prove itself over time and also wanted to allow legislators to expand funding once they saw that the program delivered on its promises," she said. "Alas, the power of denial is strong among legislators and the self-interested, evidence-be-damned law enforcement lobby."