12/03/2008 05:12 am ET Updated May 25, 2011

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

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