A woman with a ravaged face, still pretty beneath the pockmarks, is kneeling in the gallery of a Martinez courtroom, peeling away her blouse to display deep purple bruises covering her skinny, tattooed arms and stomach. Last night her car was hit by a drunk driver.
"I should have been killed, if it wasn't for the airbag," she whispers, so as not to disturb the court session. Bert Gabriel, her brassy-haired, grandmotherly case manager, dispassionately surveys her client's mottled arms. Gabriel knows that for this woman to be in court today, she had to survive a lot more than a car crash she had to overcome a twenty-year heroin habit. Nevertheless, today she's sober and ready to graduate from Proposition 36.
It's been five years since the highly experimental ballot initiative went into effect, and long-shot recovery processes like this one began to unfold across the state. Under Prop. 36, judges must let nonviolent drug offenders choose treatment as an alternative to jail time. It's administered differently county by county, but generally works as it does in this Contra Costa County courtroom: People who choose treatment are assigned a case manager, a probation officer, and a treatment program, and must report to all three. If they complete treatment and probation, their charges may be expunged. If they mess up skipping meetings, testing dirty, going AWOL they can be arrested and sent back to court. Three violations mean they're booted from the program and must serve their time behind bars. "Very rarely do we see somebody zoom right on through" without accruing any violations, Gabriel says.
Judge Joni Hiramoto seems to be thinking along these lines when the woman with the bruises steps up to be congratulated. "I remember I gave you a last chance," the judge recalls.
"You gave me more than one," the woman says humbly.
The judge softens. "You were a good person for me to give more than one chance to," she says.
"Way to go," Gabriel mouths from the back of the room.
But while several Prop. 36 clients graduate today, others are warned they're running out of chances. Then there's the woman with the fuzzy blonde hair and scrunched face, clinging to the window slats of "the box," a Plexiglas holding chamber for defendants in custody. Gabriel and her colleagues had lined up treatment for her three times, but she'd always disappeared, so today she officially bombs out of the program. The judge gives her 180 days in county jail, and two more years of court probation. The woman seems neither surprised nor upset to be heading back to jail.
It's this disparity of outcomes that has fueled a recent dust-up over whether the experiment is working or is in need of tough-love reforms. Its supporters and critics agree it has reduced drug-related incarcerations, saving taxpayers money as much as $1.3 billion by some estimates and has exposed an unprecedented number of drug offenders to treatment, roughly 175,000 so far, many for the first time. Yet experts remain deeply divided over how to interpret the program's attrition rate. Only about two-thirds of the people who accept Prop. 36 in court ever show up for treatment, and of those, only a third complete it.
This seemingly high drop-out rate may be due in part to the fact that Prop. 36 was created with lightweight users in mind, but ended up serving a much more hard-core population than its backers anticipated. Furthermore, drug offenders, hardly a population known for keeping appointments, are responsible for getting themselves from courtroom to clinic. Finally, addiction, by its very nature, is a chronic, relapsing condition. Prop. 36's supporters say a one-third completion rate is typical for rehab. What's most important, they say, is that the measure gives all low-level drug offenders access to court-ordered treatment. The initiative's critics, however, complain that Prop. 36 is all carrot and no stick.
The California legislature recently agreed, and this past July, days after the initiative's fifth anniversary, Governor Schwarzenegger signed a revisions package that, among other changes, lets judges impose short jail sentences for treatment violations, theoretically motivating addicts to comply with treatment. The initiative's supporters have fought back fiercely. Led by the Berkeley office of the Drug Policy Alliance, the nonprofit that crafted Prop. 36, they say so-called "flash incarceration" violates the no-jail-time promise Californians voted for, and will only stymie addicts struggling toward recovery. The day after the bill became law, the group won a temporary restraining order blocking it.
On September 14, an Alameda County Superior Court judge will decide whether the experiment will continue as it began.
Supporters and detractors of Prop. 36 tend to start from the same premise: Without treatment, addicts trudge endlessly through the legal system's revolving door.
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