Grand jury knocks drug proposition

"Proposition 36 has been singularly unsuccessful in meeting its goals of reducing crime, saving the county money and helping people stop using drugs," the report stated.

Instead, probation officers are processing approximately 100 violators monthly without the option of shipping them back to jail for a wake-up call about the harsher alternative.

"It's manageable but barely manageable," said Chief Probation Officer Loren Buddress. "We're barely keeping our mouths above water."

Despite the widening gap between work and workers, Buddress said he will not ask the county for financial help during next week's budget hearings. The department is already converting 13 part-time employees to permanent jobs with the opening of the new Youth Services Center. There is no room in the rest of his budget to offset the cost of extra workers and the state is obligated to fund Proposition 36 costs, Buddress said.

California voters passed Proposition 36 in November 2000, believing treatment was better than incarceration for low-level drug offenders. The twin goals were to save counties money and help people stop using drugs. Many district attorneys including Jim Fox opposed the idea while many groups supporting legalization and decriminalization backed it. Buddress claims the ill-conceived law was pushed by groups wanting to eventually legalize drugs and was not based on long-term findings by addiction experts.

"People don't ordinarily wake up on a Monday morning and say I'm not going to take cocaine anymore. They need some type of coercive intervention. Proposition 36 undercuts the ability to do that," Buddress said.

The proposition also leaves each county on its own to administer the programs.

"The county received $1.9 million in state Proposition 36 funding for 2004-2005. Three-quarters of that is used for treatment and the rest is for administrative costs," Buddress said.

That funding is set to end next year and currently four bills are before the state Legislature to not only extend it but also add some punitive action for violators. If passed, for example, Senate Bill 803 authored by state Sen. Denise Moreno Ducheny, D-San Diego, allows flash incarceration, which enables a judge return a violator to jail for a day or two before letting him or her return to treatment. The bill, introduced in February, also pushes the state's allocation from $120 million to $150 million per year.

A competing measure, Senate Bill 556, authored by state Sen. Carole Migden, D-San Francisco, expands treatment duration from one to two years. The bill also would require counties to spend all but 12 percent of funds on treatment, training, counseling and housing for defendants.

Buddress deems the county wise for taking a wait-and-see approach to the program and funding. The state needs to decide first whether it wants to increase funding or amend the law.

The grand jury calls on the Board of Supervisors to push the pending bill and take steps to relieve the burden placed on the Probation Department and the court. Supervisor Jerry Hill said the only thing the board can do is finance certain things, like drug testing, out of the general fund. While Hill said the idea isn't out of the question, he prefers to wait for the state.

He considered the county's own drug court and programs a better alternative to Proposition 36.

"Our programs are successful because there are consequences. Proposition 36 is a revolving door that is clearly an abuse of the system and makes a mockery of the criminal justice system," Hill said.

Treatment rather than incarceration was expected to ease congestion at county jails statewide. However, when Sheriff Don Horsley first publicized the chronic overcrowding at the Maguire Correctional Facility last summer, he said a main problem was inmates re-arrested for never completing treatment.

Just last week, the same grand jury now knocking Proposition 36 criticized the county's jails, particularly the women's facility, as overcrowded and understaffed.

Under Proposition 36, offenders can violate probation a number of times before being returned to jail. Another problem, according to Buddress, is that a positive drug test cannot be considered a violation and without random drug testing, there is no reliable way to gauge if the program works.

"If the number of violators goes up, many may slip through probation because employees will be unable to keep up with the staggering number of files," Buddress said.

The only leeway local prosecutors have over Proposition 36 offenders is if they are charged additionally with a non-drug related misdemeanor such as driving on a suspended license. Those charges keep a person from being eligible for treatment over jail.

"After six months or a year, we stopped dismissing misdemeanors because we found people tried to subvert the charges with treatment. Now, the defendant can take it to trial and try to beat the misdemeanor, but we will not let it go," said Chief Deputy District Attorney Steve Wagstaffe.

"The District Attorney's Office has a uniform view of the program as flawed and without teeth," Wagstaffe said.

Like Buddress, Hill and the others, he hopes the state passes a bill with more punitive action for violators.

Civil grand jury reports carry no legal weight but subjects are required to respond in writing within 90 days. The full report can be found at www.sanmateocourt.org/grandjury

Michelle Durand can be reached by e-mail: michelle@smdailyjournal.com or by phone: (650) 344-5200 ext. 104. What do you think of this story? Send a letter to the editor: letters@smdailyjournal.com.