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Proposition 36’s Phony Stats

by MARK SCARAMELLA

There’s pot, crank, uppers, downers, zoo-zoos and whim-whams, the dope you can get anywhere in Anderson Valley within walking distance of your house.

Then there’s government dope, the money that funds all the jobs ex-dopers get to stop the illegal dope.

Government dope is the hardest to kick.

Proposition 36 is a government dope program seemingly aimed at stopping illegal dope. It was shot up, so to speak, on July 1st, 2001, and now there’s more dope and more dopers in Mendocino County than ever and more dope money than ever to stop the dope and the dopers.

The Substance Abuse and Crime Prevention Act (SACPA), aka Prop 36, was approved by 61% of the state’s voters in November of 2000 before it was applied to the state’s ever-larger number of stoners. Voters had expected that the new laws would divert low-level, non-violent drug offenders convicted solely of possession for personal use into community-based treatment programs instead of doing time in over-crowded, costly county jails and state prisons.

The idea was to keep otherwise law-abiding persons out of the criminal justice system.

The prevailing public attitude is that too many people are in jail for simple drug use or possession of a joint or two that helps them contend with the pressures of modern society; that strict enforcement of existing drug laws was doing little more than feeding the prison industry, denying treatment to low-level users and costing the taxpayers more and more money as the population of drug users and the prevalence of illegal drugs seemed to grow faster than the state’s burgeoning prison system.

Theory immediately diverged from practice.

What voters didn’t know was that there were already quite a few ways that the ordinary soldiers of California’s drug divisions could elude jail.

It often happens that district attorneys simply don’t file charges because most district attorneys are already in full triage mode as they vainly attempt to sort out the enormous volume of complaints arriving on their busy desks every day. If Mendocino County DA Norm Vroman prosecuted every drug bust case filed every week throughout Mendocino County by its several police departments, he’d need double the prosecutors he has now.

So the cops or the DA often cite and release.

Sometimes the doper makes bail and his case is endlessly delayed while investigations proceed. And proceed. And proceed until the delays kill the case of old age. Sometimes the doper is released on his own recognizance, or granted DA diversion, which is an agreement between the doper and the DA that the doper, if he agrees to certain conditions beginning with a promise not to get caught doing it again, the charges pending against him will eventually be dropped.

“PC 1000 diversion,” for example, is a pre-36 attempt to deal with first-time drug offenders without sending them to jail. Others are put on formal or informal probation, which requires them to attend meetings led by ex-stoners and subjects them to periodic reviews as to their progress in drug free living while they and their premises are subject to search without warrants. The most serious non-jailed arrested drug user is assigned to drug court where a judge frequently monitors their status for an extended period. And of course, if the arrest is for marijuana use or possession (such arrests are now infrequent in Mendocino County) the user could present a Proposition 215 card and claim he’s growing the 5,000 plants in his backyard for himself and his ailing mother.

There’s one other complication that applies only to non-citizens: If you’re arrested for simple possession or use, and you can’t immediately prove that you’re in the country legally, you’re automatically ineligible for Proposition 36 and put on INS hold, kept in jail until your status is cleared up, at which time you’ll either be deported or charged. If you, the illegal doper, have already served much time in jail waiting for an immigration status determination but you’re legally entitled to be in Gringo Landia, you’ll get credit for time served and be released. If you’re not here legally you’ll be put on a bus and driven to Tijuana from where you can make your way back to Ukiah in a day or so. Either way, no Prop 36 for you.
But the primary beneficiaries of Proposition 36 are white drug users; members of ethnic minorities are more frequently charged with other crimes when they’re arrested, making them ineligible for Prop 36 diversion and the alleged treatment that comes with diversion.

In the three years since Proposition 36 passed all of the above jail-avoidance options have been used by Mendocino County’s drug community. All the strategies pre and post-36 have failed. (The relatively small number of committed methamphetamine users arrested here in Anderson Valley are regularly in and out of the County Jail and in and out of Mendocino County’s wholly ineffective drug programs. Anderson Valley’s much ballyhooed anti-crank crusade is not only grant-driven — no money, no “concern” — it has failed to deter young people from adventures in the drug life. Young people are unable to distinguish between the pot their parents smoke and white powder. There are few officials in Mendocino County, including school officials, who didn’t arrive at their present eminence via the tie-dye track.)

Proposition 36 is nothing more than another get-out-of-jail option. because there aren’t enough jails to lock up the numbers of Americans who need drugs to make life bearable.

The public is schizophrenic about drug use, probably because there are no families left in the country who have not lost one or more family members to what amounts to a national plague on the land.

As a consequence of mass in-home drug loss, we’re willing to give addicts a little slack and a chance at treatment — in the abstract, at least. But if the drug user cons us, or doesn’t clean up after a chance or two, or if the drug user is known to be the neighborhood crook, treatment isn’t exactly the first thought that comes to his neighbor’s mind. (In Mendocino County as, one supposes, everywhere, the neighborhood crook negatively affects what is quaintly known as “quality of life.” He (or she) congregates in highly public places with other mopes and assorted low-lifes; he’s a great one for vandalizing whatever structures he’s in or near; he blasts moron music late into the night; exchanges drugs for sex, thereby spreading the latest in communicable diseases; he constantly steals to buy drugs because he’s forever too screwed up to work. He is a one-man crime wave, destroying everything in his path. (And we haven’t even mentioned his kids.) Even if drugs were legal, he or she would be too lazy to drag his sorry ass down to the dispensary to pick them up. He comprises a good part of everyday’s court calendar in the Mendocino County Courthouse.)
Proposition 36’s authors, a group of drug legalization advocates from Southern California called the Drug Policy Alliance, carefully chose its title after close analysis of focus group results. They scrupulously avoided the word “drug” and added the crucial sell phrase “crime prevention” to their successful cynicism.

As designed, voters duly based their vote on the promise that the proposition would keep drug users out of jail, saving tax money that funds ever more prisons, reforming addicts, and reduce crime. Prop 36 passed with an overwhelmingly large 61% majority vote although there were already plenty of ways a Californian arrested for simple possession or use could avoid jail.

Does Proposition 36 work? Are users getting off drugs and is crime being prevented?

The short answer is, No.

The longer answers are 1. It depends on who you talk to, and 2. Nobody really knows, even though the Proposition requires that they do know.

The Prop 36 requires California’s counties to submit budget and expenditure reports to the state’s Alcohol and Drugs Program (ADP). It also explicitly requires that the state ADP annually evaluate the effectiveness and fiscal impact of the county programs being funded (at $120 million a year) including an evaluation of the implementation process, incarceration costs, changes in the crime rate, and prison and jail construction costs, as well as welfare costs.

Proposition 36 also separately directs that a $3.3 million study be done by a special UCLA-based organization called the “Integrated Substance Abuse Program,” a research group based at UCLA’s Neuropsychiatric Institute. (The study was supposed to be completed last year, but there have been unexplained delays in its release.)

The state’s Proposition 36 bureaucrats in the Alcohol and Drugs Program are found in a State Department of Health Office called “The Office of Criminal Justice Collaboration.” When I called the OCJC’s press contact, Ms. Lisa Fisher, to ask about the mandated Proposition 36 statistics and finances, all she could send me was a demographic report with a breakdown of persons in the program, showing numbers of program entries, ethnicity, drug of choice, and so forth.

The only “effectiveness” information I could find was this singularly unconvincing statement on the OCJC’s website: “In the first release of findings, data reflect *unanticipated success* [my emphasis] of SACPA. More than 30,000 drug offenders were in treatment during the first year.”

In other words, Proposition 36’s state officials consider drug users choosing a treatment program to get out of jail a “success.”

How’s Prop 36 doing on saving money on jail/prison and welfare because so many dopers have opted for drug programs over incarceration?

Again, no one really knows. The state OCJC office uses a method suggested by the Proposition’s sponsor, the Drug Policy Alliance which equates the sign-up sheet as evidence of program success: “37,495 people have opted for treatment (in the first year) and have been assessed for placement, assuming that these individuals would otherwise have been sentenced to jail or prison for drug possession.”

Choosing a treatment program to get out of jail is not exactly “opting” for it. Second, the assumption that everyone “opting” for treatment would go to jail is demonstrably wrong, given the many pre-36 ways an arrested drug user can stay out of jail.
But that doesn’t stop the OCJC from massing even more implausible statistics to buttress their invisible success.

Prop 36 supporters estimate that a whopping $275 million in incarceration costs has been saved based simply by counting the number of people entering the program. They assume that the 37,495 people who “opted” for treatment would otherwise have been sentenced to jail or prison for drug use or possession. “One-quarter were assumed to have avoided prison,” says the OCJC website, “with an average sentence of 16 months, while three-quarters were assumed to have avoided a jail sentence, conservatively estimated at an average of 23 days (based on the reported ‘average length of stay’ in county jails across California). With a $28,000 annual incarceration cost, the costs avoided for all the persons in Prop 36 averaged $10,640 per offender. Treatment costs of $120 million were deducted from the resulting total costs-avoided figure of $398 million, providing net savings of more than $275 million.”

Self-serving junk statistics like this can be found in practically every patchwork program in the state, which is why trying to cut the state’s bloated bureaucracies is so hard to do. There’s often scant hard evidence upon which to base rational decision making, and what evidence there is is often calculated as above.

In the case of Proposition 36, nobody is tracking the core statistics, the numbers needed to honestly assess the desired effects of Prop 36. No one is evaluating whether arrested drug users who enter Proposition 36 would have been sentenced to jail. There is no state registry of persons in the program or a roster of persons who have completed the program; or one of persons who have completed the program and remained unarrested for subsequent drug use or possession of drugs. No one is tracking the “clients” who are actively in the program against their (non-drug-related) law enforcement records, or tracking whether people who disappear from the program leave the area, move to another county, are hospitalized, die, or are re-arrested or jailed.

Even under the best of circumstances, and in the relatively few cases where a person completes the treatment program and stays drug-free for an extended period of time, there’s no proof that those individuals have become drug free *because* of the Prop 36 treatment. In any population of addicts a certain percentage will quit on their own or due to convincing experience of other rehab/treatment programs. The treatment industry has no way of knowing why people straighten up. Whether or not they leave the drug life because of this or that treatment approach or because they simply want to live a non-chemical life beyond societies of creeps and late-night mopes. But there isn’t a treatment program in the country, or a government-funded drug fighting entity, that can’t promptly produce success stories for elected officials.

The Ventura County Grand Jury recently made public a lengthy report highly critical of Proposition 36. They concluded (among many other things) “statewide reporting systems rely heavily on self-disclosure by individual counties, and the mischaracterization and alteration of the standards and data within this [Ventura] county bring into question the integrity of future statewide claims by independent studies. If other California counties are impelled to conjure favorable results to the same extent as Ventura County, the entire statewide evaluation effort will be seriously compromised.”

The State Department of Alcohol and Drug Programs (ADP) issues annual allocations of Prop 36’s annual $120 million to county governments to cover the cost of administering SACPA. Allocations of attractive hunks of public money are made using a formula that distributes 50% on a base allocation, 25% on the number of drug arrests, and 25% on drug treatment caseload. In other words, county treatment programs have no financial incentive to reduce the number of arrested addicts, and where there’s no financial incentive…. Half their government money comes to them no matter what they do, and the other half depends on how many people are arrested and stay in their program.

Some members of law enforcement go so far as to say that Proposition 36, contrary to its “crime prevention” promise, is contributing to crime by keeping more drug users out of jail while they continue typical drug-user criminal behavior. Those law enforcement sources add that consequences of dirty drug tests and non-compliance are put off too long; drug test failures and other program violations can be considered confidential while the addict continues in the program — and on the street — for long periods while the bureaucracies decide whether or not he’s salvageable. Since deception and self-deception are among the addict’s true gifts, it’s hard to tell the con artist from the person who truly wants to leave the stoned life.

Further, as noted by Mendo’s Proposition 36 prosecutor Matt Finnegan, a significant number of Prop 36 clients simply don’t make it through the treatment program for one reason or another. There are no cost savings in prolonging the probation of defendants who have shown themselves to be unable to finish the program. For them incarceration is inevitable.

Mark Scaramella is the managing editor of the Anderson Valley Advertiser.


MARK SCARAMELLA is the Managing Editor of the Anderson Valley Advertiser in Mendocino County, California. (www.theava.com). He can be reached at themaj@pacific.net.

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