The Punishment Legacy: Criminalization, Healthcare Reform and Prop. 36

By Margaret Dooley-Sammuli

The healthcare legislation President Obama signed late last month promises to bring sweeping changes to California’s alcohol and drug treatment system. Not only will more people have access to insurance; heath insurers will be required to cover alcohol and drug treatment as they do any other chronic health condition (aka “parity”). Drug treatment – which currently exists largely outside the mainstream healthcare and insurance systems – may finally be allowed to come in from the cold.

As we work to make that treatment access a reality in California, however, we need to address the state’s existing contradictory policy responses to drug use. Our State Legislature is on record as supporting parity, having passed legislation several times (the governor’s veto notwithstanding). And the electorate is on record as supporting expanded access to treatment, both for alcohol and drugs (Proposition 36 in 2000) and for mental health (Proposition 63 in 2004).

California gets that drug use and addiction as well as co-occurring addiction and mental health issues are fundamentally health problems. And yet we punish.

About 30,000 people are in a California prison for a nonviolent drug offense; they make up over 15% of the prison population and cost $1.5 billion per year to incarcerate (or $49,000 each). A whopping 28.4% of new felony admissions to prison and 32.7% of parolees returning to prison with a new term in 2008 were for drug offenses. That doesn’t include drug-related technical parole revocations. The vast majority of these commitments were for drug possession, not sales, manufacturing or transport.

In 2008, over 270,000 Californians were arrested for a drug offense. In contrast, only 174,000 people accessed treatment that year – just a fraction of the estimated 3.3 million Californians with an alcohol or drug use disorder. Over half of those in treatment in the state came through the criminal justice system, giving rise to the belief that you have to get arrested to get treatment. Unfortunately, fewer and fewer people arrested for a drug offense actually receive such help.

In the last three years alone, state funding for Proposition 36, California’s landmark voter-approved, treatment-instead-of-incarceration law, has been cut by 90% – from $145 million in 2007/8 to just $18 million this year. It’s a simple equation: the less funding available, the less treatment offered and the longer the waiting lists (months long in some cases).

Ten years after voters overwhelmingly passed Prop. 36, calling for treatment rather than incarceration, the governor has proposed eliminating funding for the program. Never mind that, according to UCLA, Prop. 36 saves $2.5-4 for every dollar invested, diverts 36,000 people into treatment a year (when adequately funded), has helped reduce the number of people incarcerated for personal drug possession by 40% (or 8,000 people), and has had no negative impact on crime trends.

As Prop. 36 is cut back, more people are headed to jail and prison for their drug use, even as behind-bars treatment becomes unavailable. Under new California Department of Corrections and Rehabilitation (CDCR) regulations, moderate- to high-risk offenders will have priority placement in drug treatment in the state’s prisons. Ironically, drug offenders – most of whom are deemed low risk to public safety – will not receive treatment behind bars or on parole, even if they have a serious drug problem.

The passage of federal healthcare legislation, the repeated passage of parity legislation in this state and even the state’s corrections bureaucracy have all come to the same conclusion: drug use is primarily a health issue, not a high risk to public safety. And yet the state’s penal code continues to criminalize drug use.

Until California can reconcile the discrepancy between health statute and penal code, the Democratic majority in the State Legislature has a responsibility to reduce – in every way that it can – the criminalization and incarceration of people for drug use and addiction. This year that means rejecting the governor’s proposal to defund Proposition 36 treatment programs.