The Failures of California's Proposition 5

Among electoral distortions, Proposition 5 on the California Ballot stands out as one of the most extreme. It promises to bring accountability and humane treatment to a troubled criminal justice system. Yet, a careful reading of its many provisions shows that it will actually diminish the role of elected judges and substitute in their place two unwieldy and unaccountable bureaucracies. The unintended consequence will be the creation of new entitlements that will cost California billions dollars that it simply does not have. The so called "Treatment Diversion Oversight and Accountability Commission," established by Proposition 5, will inevitably evolve into a conflict ridden gravy train. Its primary mission will be to finance an ever expanding treatment system based on the narrow premises of the proposition's proponents.

In a massive and utterly abstruse rewrite of the state's drug laws, Proposition 5's authors have crafted a bold and untested social experiment. The guinea pigs are the unfortunate souls who lives have been taken over by crack, heroin or methamphetamine. Invoking "science based" treatment as a type of talisman or cure-all, these true believers gut the ability of judges to hold accountable people repeatedly arrested for using and selling drugs, primarily methamphetamine. They do so by reducing parole from three years to six months and by depriving judges of the authority to impose meaningful sanctions for repeated drug abuse. In the Orwellian world of Proposition 5, the new form of drug treatment includes the right to keep using drugs.

It would be wonderful if "treatment" in the form of endless talk could overcome the horrible power of addition. Unfortunately, it can't. The California Judges Association, all California's drug court judges and chief probation officers oppose Proposition 5 because they know its utopian and unrealistic provisions will deepen drug dependency, not overcome it.

Proposition 5 is profoundly undemocratic because its provisions can only be changed by 4/5s of the state legislature and because it vests near total control of drug treatment in an unprecedented 23 member Treatment Diversion Commission, dominated by providers, criminal defense lawyers, drug researchers and policy activists. These are the very individuals whose livelihoods will benefit from the commission's funding decisions. It is also undemocratic because it presents to the voters a virtually unintelligible mass of statutory changes, wrapped in esoteric jargon that even law professors will struggle to comprehend.

Instead of elected judges making individualized decisions, disposition and treatment will in most drug cases devolve upon treatment providers, certified and governed by the all powerful Treatment Diversion Commission. In determining the appropriate treatment, Proposition 5 explicitly requires that judges order the treatment program recommended by the certified provider. Additionally, Proposition 5 provides very weak incentives for drug addicts to discontinue using drugs while in treatment. We know that the hammer of incarceration is often what is needed to assist an addict to get off his dependency. Jail for some users operates in a way similar to hitting bottom in the 12-step program. Conventional psychology tells us that effective reinforcement may be negative as well as positive.

The tragedy of drug dependency should not be captive to polarizing extremes. Certainly, California's criminal justice system and its revolving door prisons desperately need change. But reform, to be effective, must involve judges and probation officers as well as treatment advocates.

Proposition 5 was drafted without any public process and without seriously taking into account the well considered opinions of drug court judges who deal with drug abusers on a daily basis. It creates unaccountable and unelected bureaucracies that usurp the role of elected representative and locks them into fixed terms.

Such a radical restructuring of the way California deals with drug abuse should never be written into a ballot measure that allows for no amendments and no real critical scrutiny. Proposition 5 could have provided sensible, understandable and needed improvements to the criminal Justice System. Unfortunately, it did not. Not even close.

Related: Arianna Huffington: The Battle Over CA Prop 5: Special Interests Overwhelming the Public Interest

Comments

[gmerkert]

Mr. Brown

I voted against Proposition 5 because I have faith in you and believe your analysis is sincere and accurate. However, in general, I prefer treatment of drug offenders to incarceration. If Proposition 5 is not the answer, could you please let us know how best to address the problem?

George L Merkert III

[tuttlemsm]

I'm voting Yes on 5 and No on 6 and 9 as a rebuke to the prison-industrial complex and the prison guard "union" (read: lobby) who have far too much power in California.

For one thing, look at how they bought, paid for and corrupted Jerry Brown, one of the formerly reliable true progressives, the guy who ran a quixotic campaign against Clinton in 1992 pledging not to take any special interest money. Remember 1-800-92BROWN (or whatever it was)?

I guess a lot can happen between 1992 and 2008.

[shockmagog]

If you are a California resident, vote Yes on 5. Don't listen to the shills for the Prison Industrial Complex and the private correctional institution industry.

What they have been doing has obviously not been working. Do your research, and vote Yes on 5.

[JonathanDS2U]

Speaking of Orwellian ("we are all equal, only some are more equal than others"), how did it get to where, by using the words "drug use", you might interchangeably be referring to both a herion addict or someone who enjoys a joint the way others enjoy a beer or a glass of wine?

[andygaus]

What is "Orwellian" is the notion that the government should prosecute a person for drug possession as if that person was a threat to everyone else. If we made that argument consistently, we would certainly have to arrest anybody in possession of alcohol, which undermines society more than any other recreational drug. Our "war on drugs" has literally gone beyond what Orwell could have imagined, given the limited abilities of the government in his time to snoop on everyone.

[pigeonca]

I am a sugarholic, chocoholic, whatever you want to call it. I would love to get clean, but it seems very difficult to do. Perhaps incarceration might help. Or maybe I just need to learn to live with my addiction.

The idea of criminalizing heroin, cocaine, marijuana, etc. is totally arbitrary. Why this addiction and not mine? As a taxpayer, I would rather pay for treatment - and even for the drugs, if an addict cannot quit.

If the drugs were as cheap as a Hershey bar, perhaps users would not need to resort to criminal activity to pay for their fixes. Or if they're wealthy users, maybe they'll exchange Hershey for Godiva. I'm voting yes on 5.

[MarieMarie]

It's terming addition as a "disease" that feed into this foolishness.

At best it's a chemical dependency. It's not cancer or the flu. You don't "catch" it.

Diabetes is a disease. Dementia is a disease. Breast cancer is a disease.

Drug abuse is a chosen activity, and drug addiction is but one of its consequences.

And an addict won't change if "sentenced" to drug treatment, unless he happens to be just at that point where he actually WANTS to change.

Would that we could get rid of heart disease by justing wanting to change.

[newpotusplease]

Atty Gnrl Brown,
why are we just now hearing all of these specific arguments against 5-- why weren't these arguments clearly made in the materials mailed out? why aren't the arguments being made on the airwaves? why have you allowed the local media a pass on covering the propositions-- they have not devoted much time to them at all.
Lord only knows what info you might have to inform voters on the other propositions - but I guess we won't hear them in time. The sample ballot and bulletins sent out were the most poorly written I have seen in a long while.
It is a shame.

[Bflobaz]

Jerry Brown is correct. I'm a 5.5 years (retired) Prosecutor in the Buffalo (NY) Adult Drug Court; having attended numerous training conferences and experienced dealing with a chemically addicted population of Participants. Proposition 5 is ill-conceived; failing to learn from 20 years of Drug Treatment Courts and some basic facts about human nature. Prop 5 proponents operate from a misplaced sense of kindness; called "enabling".

Treatment Courts have proven to be the most effective criminal justice tool to combat chemical addiction. Under a Drug Treatment Court model; punishment is the last resort. However, by refusing to impose structure; which is exactly what an addict needs and wants, is actually cruel. A Drug Court operates effectively using "tough love" in a time-tested system of "rewards and graduated sanctions"; under the National Association of Drug Treatment Court Professional’s “10 Key Components of a Drug Court. We didn’t enjoy placing anyone in jail.

I asked the jackpot question to those completing our program: "You were a hard case; missing treatment and Court. We issued several warrants and suddenly, you grabbed hold of the program and became an all-star. What was the difference?" The answer ALWAYS included the normal reasons of doing it; i.e. for my children, but "when you folks FINALLY gave me a few days in jail, it gave me time to think things over. I realized I didn't want to spend any more time there.”

California: “If it isn’t broken, don’t fix it.”

[zizyphus]

Well, we can see what side of the bread your butter is on. You are part of the problem. We need rehab, not jail, for drug users. The system you support is a colossal failure, and has enabled the rise of gangsterism and corruption. I guess you are sorry Cindy McCain didn't do her twenty years in prison. That would have really helped her.

As long as the judges and prosecutors can get drunk after work, you are happy I guess. This has become a culture/class war between the right-wing alcoholics and the left-wing potheads. Only now there are many millions who want to have the right to use whatever recreational substance they like, as they do in most civilized countries.

[GuyRC]

Alcohol is a drug that causes accidents. We should outlaw it. Then have a war on distillers. And anyone caught drunk should be arrested, prosecuted, judged guilty, and sent off to prison. People who rob to get money to pay for expensive bootleg liquor should get extra time. We will need more judges, prisons, cops, and guards. The war on distillers will be costly, but we have to do it to end those accidents caused by alcohol. Oh wait, we tried that before and came to our senses. Never mind.

[jhoughton1]

Jerry, until you're prepared to come up with a solution to the overcrowding of our prisons, you should stand aside and let the citizens do the job. True, Prop. 5 takes some power out of traditional hands, but is that bad for anyone but those in power? Elected officials have punted this problem forward, afraid to do without the prison guards' money (or to fight against it), so why not let the people do something? To come out against something this sane and humane, without supplying anything realistic by way of alternative, is simply wrong, Jerry. It reveals how badly frightened you are of the prison guards' union (which should be banned from making political donations).

[janinei]

My words exactly. And please don't run for governor, I don't want to vote republican!

[Indubio]

I am not prepared to speak to the usefulness of Prop 5 but I am willing to make a statement concerning the California prison system: It sucks. Sacramento will never tackle the prison problem because of the power of the prison guard union. Few people in state office have the moxie to take on this goon squad of criminological troglodytes that will fight tooth and nail to preserve their over time options. Another important reason preventing change is that change would likely be viewed as weak on crime. State government can't deal with a federal court ordered correction of prison healthcare so expecting them to affect voluntary change is wishful thinking. Personal use and possession of drugs should be decriminalized because it represents a victimless crime and California simply can't afford to incarcerate all non-violent offenders. Drugs should be legalized and sold as commodities because society has no viable means to prevent drug use. We've spent billions on the unwinnable war on drugs and we 're further from victory today then when Nixon declared the war some 40 years ago. Prop 5 may not be perfect but I'd rather spend money on two new commission that might improve the system then spend on guard overtime which will simply perpetuate a horrific system that must be drastically changed.

[Linda Milazzo - Huffpost Blogger]

You are wrong, Jerry Brown. Sadly, your commitment is more to the powerful Prison Guard union than to the health and well-being of those mired in California's prison industrial complex - an oasis of corporate profit. If California is to lead this nation, it must be an example of reform, rehabilitation and renewal. Not overflowing dead-end prisons filled with victims you criminalize and demoralize rather than assist.

Your opposition to Proposition 5 and disavowal of its usefulness as a tool for rehabilitation proves to me that you are not a progressive enough leader for California.

I understand you have designs on reclaiming the Governor's office in California - but you have lost your vision, Jerry Brown. You who was once a visionary leader have devolved into a government hack.

If you run for Governor again, I'm not likely to support you. Instead I will be looking for a leader who represents the vigor, the vision, the independence, and the humanity to lead the most progressive state in our union.

[sdskelton03]

I agree with you on the prop, but I have to take you task for your accusations towards the author.

It is possible for him to just disagree with you. It doesn't always follow that there is a nefarious reason.

One thing that has always bothered my about liberals is the manner in which the demonize those who dare to disagree.

[jhoughton1]

That would be nice, but unfortunately she's right. Brown wants to run for governor and knows he'll need the guards' union. The old Jerry Brown would never have come out strongly against something this sane and humane.

[redshift96]

Oh please. Whatever the reason for Brown's slow conversion to a Lewis Carrol version of Nixon's '68 law and order pitch, he lost all credibility around the time that as mayor, he backed the Oakland PD's brutal suppression of the Port of Oakland peaceful war protests, including condoning the use of some extremely nasty crowd control devices. ("New Toys", in cop parlance.) This after inviting the military into town to run urban warfare exercises with the city limits of Oakland. Whoever Jerry Brown has become, a responsibility to his constituents is not among his new set of traits. As neatly evidenced in his one-dimensional screed above, his loyalties lie entirely (and somewhat mystifyingly) with long established seats of power such as the prison system and other power brokers and star makers in the california political establishment. Any pretense of populism is entirely that... pretense. Jerry Brown has reached the end-state of his political metamorphosis, and the result is a cynical, right-of-center, ESTABLISHMENT candidate for whatever space happens to be available at the public trough.

[pizzmoe]

Anything that keeps non violent drug offenders out of prison is a step in the irght directon. We must end this useless and wasteful "war on drugs". Until then, Yes on 5

[psy]

Science based is better than "spiritual", which not only doesn't work*, but also is basically court mandated religious conversion**.

*http://orange-papers.org/orange-effectiveness.html
**http://orange-papers.org/orange-spirrel.html#judges

The law of the land is: AA is a religion (not spiritual), and as such cannot be forced on anybody.

[sdskelton03]

Drug prohibition doesn't work and the "war on drugs" is nothing more than a war on ourselves.

Incarcerating drug users benefits neither society nor the individual using the drugs. Sending drug users to prisons harms families. Filling our prisons with drug users is expensive and takes penal resources away from violent offends that harm society to a much greater extenet than do recreational or habitiual drug users.

Nobody benefits from this probition.

Well, I guess one could say that "Big Incarcaration" benefits.

[Indubio]

Next to the military industrial complex complex, the criminal justice complex is next most powerful and the war on drugs often overlaps the two with companies making money from real wars and the phony drug war.