Prop. 36 presents new challenges
By KRISTINA HORTON FLAHERTY
Staff Writer

Since Proposition 36 began requiring treatment instead of incarceration for countless substance abusers one year ago, California's drug courts have faced new challenges. Early on, some feared the measure could undermine the successes of California's more stringent drug court system. Many pointed out that judges cannot use jail sanctions - considered a crucial tool in drug court - when handling Prop. 36 cases. And some drug courts initially saw a drop in their caseloads as thousands opted for Prop. 36 treatment.

"It has forced us all to re-evaluate our programs," said Butte County Superior Court Judge Darrell Stevens, who oversees his county's drug court and chairs the Judicial Council's Collaborative Justice Courts Advisory Committee.

Prop. 36 (the Substance Abuse and Crime Prevention Act of 2000), which allocated $120 million a year in funding over five years, generally re-quires probation and substance abuse treatment and forbids incarceration as a sanction for those convicted of nonviolent drug use offenses. After two or more probation violations, the convicted user could again face jail or prison. But while Prop. 36 casts a wide net, many hard-core drug addicts, mentally ill substance abusers, drug users ineligible due to non-drug-related misdemeanor charges and those failing under Prop. 36 could still fall through the cracks. That, some judges say, is where California's drug courts clearly fit in.

"You need to have appropriate alternatives," said Santa Clara County Superior Court Judge Stephen Manley, president of the California Association of Drug Court Professionals. "I think what you're going to see is a real growth in drug courts."

Many stress that it's far too soon to gauge the full impact of Prop. 36 or to draw any conclusions. Judges statewide have rallied to help make it work. But some drug courts are feeling the change. Some are seeing a more hard-core group of addicts; some saw an early dip in participants. Mendocino County's drug court, for example, saw an 85 percent drop in its caseload in the wake of the initiative. Kern County has folded several of its adult drug courts and Contra Costa County recently shut down its sole adult drug court.

"I'll keep my fingers crossed for the drug court movement in California," said Contra Costa County Superior Court Judge Harlan Grossman, who helped found his county's drug court in 1997. He says Prop. 36 and the potential loss of state funding, for the most part, triggered its shutdown.

Some see the early fallout as simply growing pains of a system in transition. Counties have had to ramp up quickly to create Prop. 36 programs and, in the process, redefine their drug courts. "Those who predict the death of drug courts are wrong," says Judge Stevens, who also chairs the Administrative Office of the Court's Proposition 36 implementation workgroup. "Drug courts will continue to serve our state and drug courts will get stronger again."

Funding also has presented a challenge. By mid-June, however, the budget conference committee of the legislature had restored funding for drug courts to $15 million in their proposed budget.

Del Sayles-Owen, deputy director of Criminal Justice Collaboration for the state's Department of Alcohol and Drug Programs, too, sees a place for both Prop. 36 and drug courts in the changing system. She points out that drug courts have more flexibility than Prop. 36 programs in setting their own eligibility requirements.

Some county drug courts have already expanded their criteria to accept more participants who would be ineligible for treatment under Prop. 36. In Mendocino County, for example, substance abusers charged with certain nonviolent offenses driven by their addiction - such as property crimes - now qualify for drug court. "I think we're seeing a positive evolution," Sayles-Owen said. "And it's in a changing mode."

As for those eligible for treatment under Prop. 36, Sayles-Owen said: "One of the things that we're learning (is that) there are structures within Proposition 36 that may be wholly effective for the population that's coming through the doors."

And as it turns out, many counties are using a non-adversarial "drug court model" in building their Prop. 36 programs, says Judge Manley, who also serves on the AOC's Proposition 36 implementation work group. "To be successful with Prop. 36 clients, you need a drug court model," he said.

In testimony to the Little Hoover Commission in May, Manley highlighted the strong example already set by California's drug courts - a measure of success supported by recent survey findings. And he suggested that following the example might further impact the high rate of probation violations seen in the early months of Prop. 36. "Modifying Proposition 36 to permit limited jail sanctions, I believe, will result in more clients, particularly hard-core addicts, completing treatment," he said.

The sheer number of substance abusers referred to treatment under Prop. 36 - at least 12,000 in the first six months - is presenting hurdles as well. For example, an unexpectedly high number of them are hard-core addicts requiring intensive treatment - a development that has left some counties strapped for spots in residential treatment facilities.

In Santa Clara County in early June, the wait for residential and outpatient treatment for Prop. 36 and drug court participants alike was running at least two weeks. "Drug courts are critical to making Prop. 36 work," Manley said. "The question is whether you have sufficient resources and funding to apply the drug court model to this many clients. . . . The model only works if you can get clients into treatment."