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How California Drug Laws
Were Re-written by Proposition 36

Judge Jeffrey S. Tauber (ret.)
Center for Problem Solving Courts

Introduction
It is important to note that the recent California (and to some extent the Arizona) initiative heralds a new era in the history of drug reform. By successfully avoiding the legislative process, proponents of California's Proposition 36 have created an avenue for drug policy change that would not have been possible working through traditional political means.

With the passage of Proposition 36 (Prop. 36) in California, statutory schemes set up for over a generation have been disrupted, and an experiment in penal reform is being embraced on a grand scale. The potential impact of that reform will be left to a separate policy paper. The current discussion describes how such vast changes could have occurred in such a short period of time.

In California, Prop. 36 passed in November 2000, with over 60 percent of voters approving the initiative. Implementation is to occur in July 2001, but little is known about the scope of the new law's impact on the state. What is known is that Californians have had their drug-use sentencing policies drastically altered by the initiative process. Judicial discretion to order even limited custodial consequences has been eliminated. Additionally, a complicated series of probation hearings is required to violate an offender for drug use or other possession-related conduct, with 30 days as the ultimate sentencing penalty on a third conviction.

To investigate the circumstances surrounding passage of Prop. 36, I visited California during the first week of December 2000, traveling to Oakland, San Francisco, Sacramento, and Los Angeles (where I met with the author of the ballot initiative). It should be noted that I served as an attorney, commissioner, and judge for twenty years in Oakland, California, and have some understanding of the California political, cultural, and legal environment. In all, I met with several dozen judges, prosecutors, defense attorneys, sheriffs, probation and corrections officers, treatment providers, elected officials, citizens, and paid political proponents on both sides of the initiative—individuals with both a limited and a keen interest in the initiative and its passage.

Most observers are in relative agreement as to how and why Prop. 36 passed. It was described again and again as a combination of a public fed up with "the war on drugs," well-organized proponents with vastly superior resources, and a large head start in the initiative process, and the creation of a message of reform that was never effectively countered.

The California Public
If you ask most Californians, they would say that the state has been losing the war on drugs for a long time. The public knows that there are tens of thousands of drug users in prison and that the cost to the state runs to billions of dollars. In contrast, spending for education has stagnated over the same period, and has been overtaken by spending for prisons. Approximately 20,000 persons are in prison for simple drug possession (California Department of Corrections Data Analysis Unit, 1999).

The reality is that an overwhelming majority of those in prisons for personal possession of dangerous drugs is there because of their being plea-bargained down from a more serious charge (most often sales of dangerous drugs). Nevertheless, the message heard loud and clear by the public was that Prop. 36 offered treatment, not prison for drug users, an almost irresistible proposal on its face.

Clearly, the public relations battle was lost almost from the start. Even the active support of popular TV actor Martin Sheen as honorary chairman of the NO ON 36 COMMITTEE had little impact on the public (although lack of financing of his anti-Prop. 36 TV spots was also a factor).

Friends from California called me a few days after the November election to report that they had voted for Prop. 36, believing that they were supporting drug courts. I heard similar stories from others as I traveled across California. The arguments against Prop. 36, and where it stood vis-à-vis drug courts and effective treatment, were clearly not being made effectively to the California voter.

The Politics of Reform
By the year 2000, there was reason to believe that the anti-crime issue had lost some of its momentum. We know that crime figures are down to their lowest levels in nearly 30 years. At the same time, those entering prisons continue to increase in numbers.

Opponents of Prop. 36 found themselves in the unenviable position of being outflanked in every direction. The most conservative and the most liberal of individuals found themselves sharing the same position - as libertarians - opposed to the state's interference in an individual's activities. Progressives and their allies in labor found their loyalties to minority and ethnic groups, claiming that the drug laws unfairly discriminated against their members, pulling them into the pro-Prop. 36 column. Those most concerned about the costs of imprisonment and the building of new prisons (often the most conservative anti-tax groups) also threw in with the proponents. Finally, those who genuinely believed that more treatment dollars were needed and that prisons were the wrong place for treatment were naturally pro-Prop. 36.

Perhaps the most interesting place to see these factors at work was with major state politicians, many of whom acted as if Prop. 36 wasn't even on the ballot. From the governor on down, if a position was taken by major political leaders it was generally low profile and at the very end of the campaign, when it was barely visible.

Resources
Evidence indicates that the proponents of Prop. 36 outspent their opponents by at least ten to one. I would argue that money had less of an impact on the initiative's passage than some opponent's would suggest. Resources were spent early on to conduct focus groups and administer polls to determine the public's perceptions of drug penalties and criminal justice reform efforts. Significant monies were spent on the collection of the 750,000 petition signatures necessary to put the initiative on the ballot. Typically, in California, petition signature collectors receive one dollar for each signature they obtain.

Relatively little money was spent on media advertising, as most media were already pro-Prop. 36. Proponents reached out to the media early and often and won them over to their position. Interestingly, nearly every major California newspaper editorial board came out against Prop. 36 after hearing both sides of the argument. Those who write the front-page news articles, however, saw it differently. The California media working the story believes that the war on drugs was lost or at the very least has been oversold to the public.

Proponents allegedly spent three to five million dollars on the campaign, with much, if not all, of that funding coming from a few out-of-state multi-millionaires. No one came forward to match those monies. If one considers the dimensions of the policy changes created by the initiative, the proponents would appear to have received more than their money's worth.

It's interesting to consider the reasons for lack of opposition funds. Those you would expect to care about this issue, the corrections union, the D.A.'s Association, conservative groups, and anti-crime/anti-drug coalitions generally stood on the sidelines. Some claimed it was because their active financial support would undercut the opponent's position and suggest to the public that they were merely attempting to feather their nests. On the other hand, knowledgeable individuals seem to suggest that these groups really didn't care enough to invest their own resources in the issue. Which brings up an important issue: is there a natural constituency to fight initiatives like Prop. 36?

Getting it Wrong
The political realities described above put the anti-Prop. 36 forces in a very narrow box, with little room to maneuver. Their public relations firm, McNally Temple Associates, Inc., came up with a time honored but somewhat vague anti-drug slogan, "Dangerous and Misleading." In their defense, they were operating with extraordinarily little financial support, and they depended on two young operatives to organize communities statewide against Prop. 36.

Unfortunately, many organizations had joined the pro-Prop. 36 bandwagon before the opposition forces ever got off the ground. Treatment organizations, enticed by the promise of 120 million dollars a year, were the first to climb on board. The defense bar and public defender organizations, while strongly supportive of drug courts in general, could not say no to Prop. 36's benefits, including non-incarceration for probation violations, a 30-day cap for third time offenders, and avoidance of the "three strikes" statute for a significant number of their clients.

Many of the arguments propounded by the anti-Prop. 36 forces relied on traditional scare tactics, such as the threat of releasing date rape drug offenders into the community and allowing serious offenders with multiple convictions into treatment.

At the same time, opponents also relied on the supposed popularity of California's one hundred-plus drug courts. In the end, the drug courts and their practitioners were probably the strongest advocates the anti-Prop. 36 forces had. Judges from across the state took the lead in organizing around the issue and drug court graduates proved to be among the strongest spokespersons against the proposition.

Drug court practitioners and their partisans argued vociferously that they provided the only substantial and effective treatment for the drug-using offender in the criminal justice system. Unfortunately, relatively few drug-using offenders were in drug courts (estimates range from five to ten percent of those charged with drug use), and relatively few Californians were even aware that drug courts existed.

Proponents initially argued that Prop. 36 and drug courts were on the same side—that Prop. 36 would assist drug courts and only expand their reach. Unfortunately, no one made overtures to California's drug courts, and an opportunity to work together for common criminal justice reform goals was lost. Instead, most drug court proponents learned about Prop. 36 through the news media, after the ballot initiative qualified. They understandably reacted strongly against a proposition that co-opted the success of drug courts statewide, distorted the principles of drug courts, and seemingly threatened to dismantle drug court programs across the state.

Getting There First
The initiative process offers one of the most powerful tools for public involvement in the legislative process in the nation. In California, initiatives passed have the force of constitutional amendments.

In the case of Prop. 36, the ballot initiative had gathered the required 750,000 petition signatures before most opponents became aware of its contents. The non-partisan staff of the Legislative Analyst's Office (LAO) adopted the proponents' analysis of the financial impact of Prop. 36, without ever hearing from opponents. That analysis and the description of the initiative as it appeared on the ballot (and the ballot pamphlet distributed to all voters, days before the election) were devastating. Before a voter could read the proponents' or opponents' positions on the initiative, they would be confronted with the legislative analyst's conclusion that at a cost of 120 million dollars in treatment services, Prop. 36 would save California 200-250 million dollars annually in prison costs, 450-550 million dollars in one-time prison construction cost avoidance, 25 million dollars in annual parole savings, and 40 million dollars in annual jail operations. Even the title of the initiative and the ballot description were determined by the California Attorney General's Office before opponents were mobilized. The title ("Diversion and Treatment Initiative") and ballot description suggested that, under the provisions of Prop. 36, those charged with drug use would receive treatment and supervision, not imprisonment.

Once again, by the time Prop. 36 opponents began to mobilize, treatment and defense proponents had largely signed on, the legislative analyst's conclusions were all but set in stone, and only minor changes to the ballot initiative's title and pamphlet description were possible.

The respected statewide Field Poll, published by the San Francisco Chronicle shortly before the election, found that only 20 percent of the electorate held any position on the initiative. When the ballot pamphlet description (with the legislative analyst's conclusions up front) was read to voters, however, those polled split two to one in favor of the initiative. This was one election that was truly over before it ever began.

Conclusion
The passage of Prop. 36 presents important insights into the current drug-legalization battle being waged across the nation. It shows how a small, highly focused effort can avoid the legislative process and impose major changes on the criminal justice system and the public, at a significant but relatively minimal cost.

Appendix:
The Arizona Experience
Arizona and California are very different states, with a common experience: both have been successful targets of initiative processes that have changed criminal penalties for drug use. Both states are still in the process of sorting out the consequences of those changes and reacting to them. In the case of Arizona, passage of Proposition 200 (Prop. 200) took place in 1996, but its implementation is still being disputed in the courts.

My intention is not to attempt a comprehensive analysis of the Arizona experience, but to suggest how information coming from another state, in this case Arizona, can play an influential role in creating momentum for similar initiatives elsewhere. In January 2000, I visited Phoenix, Arizona, and had the opportunity to talk to criminal justice and treatment professionals concerning Prop. 200. I visited several courts impacted by the initiative and over the next several months, had numerous conversations with individuals involved in the implementation of Prop. 200. I came away with the conclusion that the Arizona ballot initiative provided little relevant data to California's initiative debate; instead, it provided a great deal of misleading and distorted information that was accepted at face value by many important California policy makers, and by the public generally.

For example, the California ballot initiative misleadingly quoted a report by the Arizona Supreme Court "that the initiative is resulting in safer communities and more substance-abusing probationers in recovery." Prop. 36 proponents aggressively tout the aforementioned Arizona Supreme Court report, knowing that the Supreme Court repudiated its own data and alleged cost savings derived from that data one week later in an official News Release. Among other statements made in that news release, the Arizona Supreme Court concluded," there is legitimate concern that the provision prohibiting incarceration upon a violation of probation, such as when a person fails or refuses treatment, may be detrimental to the overall objective." (See Appendix, Arizona Supreme Court press release, April 29, 1999, p.2.) What proponents consistently fail to address is that most of Prop. 200 and 90% of its resources are not addressed to the "mandatory probation for drug users" section of Prop. 200 at all. According to the report, "fifty percent (50%) of Prop. 200 funds were put aside for programs that increase and enhance parental involvement and increase education about the serious risks and public-health problems caused by the abuse of alcohol or controlled substances" (Arizona Supreme Court, Administrative Office of the Courts; Drug Treatment and Education Fund, Legislative Report, Fiscal Year 1997-1998, p.4, March 1999).

Although there is virtually no relevant outcome data concerning the Arizona experience, that did not prevent the California ballot initiative proponents from declaring that Prop. 200 has "already saved state tax payers millions of dollars, and is helping more than 75% of program participants to remain drug free." Incredibly, the Arizona Supreme Court data upon which Prop.36 proponents relied (later repudiated by their own Supreme Court) makes no distinction between the 21% of probationers mandated to non-jail sentences under Prop. 200 (569 participants) and the remaining 1690 traditional probationers sent to treatment services enhanced by an infusion of funds under Prop. 200 (see Legislative Report, p.13). Clearly, facts did not impact the claims of proponents.