Decriminalizing Addiction

"Substance abuse and addiction is the elephant in the living room of American society," according to Joseph A. Califano Jr., chair and president of the National Center on Addiction and Substance Abuse at Columbia University in New York City.

Writing in Shoveling Up: The Impact of Substance Abuse on State Budgets, a report issued by the center in January, Califano said, "Abuse and addiction involving illegal drugs, alcohol and cigarettes are implicated in virtually every domestic problem our nation faces: crime; cripplers and killers like cancer, heart disease, AIDS and cirrhosis; child abuse and neglect; domestic violence; teen pregnancy; chronic welfare; the rise in learning disabled and conduct disordered children; and poor schools and disrupted classrooms."

Managing the devastation is costly, according to the report, which was funded by the Robert Wood Johnson Foundation, the Carnegie Corporation of New York, the National Institute on Drug Abuse, and the National Institute on Alcohol Abuse and Alcoholism, among others. In 1998, states spent $81.3 billion-13.1% of their total budgets-attempting to manage substance abuse and addiction. Of that sum, 96 cents of every dollar went to "shoveling up the wreckage" while only 4 cents went to prevention and treatment.

When California passed Proposition 36 last November, however, what some considered a bold new initiative to replace immediate incarceration with treatment set off alarms rather than sighs of relief. As the state gears up for implementation this summer, concerns are rising over what role the criminal justice system-and incarceration-should play in drug addiction treatment. Critics are already predicting that the allocated $120 million per year (through 2006) will not be enough to accomplish the measure's goals and that it will fail. That failure, they say, could negatively affect more reasoned reform efforts throughout the country.

California is not the first to experiment with alternatives to incarceration. Arizona adopted a similar initiative-Proposition 200-in 1996. Drug court programs and other projects in local jurisdictions throughout the country have diverted drug addicts to treatment rather than incarceration, particularly when no violent crime was involved.

What is dramatically different in this case is the scale, as well as California's potential to emerge as a bellwether for other states. Proposition 36 could end up either a model for reform or a doomed social experiment.

On its face, the goal of Proposition 36 was simple enough.

"This measure changes state law so that certain adult offenders who use or possess illegal drugs would receive drug treatment and supervision in the community, rather than being sent to prison or jail or supervised in the community, generally without drug treatment," according to a study of the new law prepared by the California Legislative Analyst's Office. "The measure also provides state funds to counties to operate the drug treatment programs."

In addition, the state stood to save between $200 million to $250 million annually, according to the analysis, as the prison population dropped by an estimated 11,000 inmates. In the long term, the state could save another $450 million to $550 million in capital outlays for additional prison beds, had the number of inmates continued to grow.

Opponents of the measure argue that removing the prospect of incarceration eliminates a major incentive for drug addicts to change. Although continued arrests will land an individual in jail for 30 days if they are determined unamenable to treatment, the new law makes serving time less likely.

During the campaign, over a hundred California judges signed a petition opposing the measure, charging that Proposition 36's more lenient provisions would prevent them from using brief periods of incarceration as a means of getting drug addicts back on track when they have relapsed. They claimed their drug court programs succeeded in ending drug addiction for 70% of the individuals who completed the 12- to 18-month intensive treatment regimen, compared to 20% of those in voluntary programs.

In addition, Proposition 36 prohibits any of the money allocated for treatment to be used for testing. Judges and some substance abuse treatment specialists predict that the inability to confirm that individuals are in fact complying with their programs means it is more likely that they won't.

While agreeing that the criminal justice system has a poor record of providing substance abuse treatment to the people who need it, Herbert D. Kleber, M.D., professor of psychiatry at the Columbia University College of Physicians and Surgeons, said Proposition 36 is not the answer. He is currently Columbia's director of the division on substance abuse and was also a deputy drug czar under William Bennett from 1989 to 1991.

"What we need in this country is more treatment in prison, after prison and instead of prison," Kleber told Psychiatric Times. While incarceration shouldn't be the beginning of the road, the prospect that it could be the end of the road is one of the legitimate ways society forces addicts into treatment.

"Drug use is pleasurable," Kleber said, adding that none of the 6,000 addicts he has treated during his career ever said they did not like the feeling of getting high. "In the process of taking drugs, addicts may create pain for the people around them or the larger society. It's the pain that addicts create that often gets people to force them into treatment. It could be the employer who says, 'I'm going to fire you if you don't go into treatment.' Or the spouse who says, 'I'm going to leave you if you don't go into treatment.' Or the judge who says, 'If you don't go into treatment and keep your urine clean, you're going to go to jail.'"

Kleber conceded that substance abuse is comparable to any other chronic disease with a behavioral component, such as diabetes and hypertension, and that jail wouldn't ever be considered appropriate for someone who is obese.

"Diabetics that choose to have a candy bar for lunch are engaging in behavior that is likely to make their illness worse," he said.

Nevertheless, he argued, incarceration for addicts who fail to comply with treatment makes sense because of the harm they do to families and society and because the only other option is to legalize drugs, a step neither Kleber nor most of society is ready to take.

The problem with Proposition 36, Kleber said, is that it offers too many chances before an addict faces jail time, and addicts are likely to use every one of them before getting serious about treatment.

"The intention was good. I think the execution was bad," Kleber said, pointing to the lack of funding for drug testing. "Often the only way you know that someone is using is when they test positive in urine, especially in an outpatient program. As I understand Proposition 36, an addict has to comply with treatment, but they've taken away a major tool."

Kleber said that while the goal of treatment is an admirable one, the criminal justice system ultimately plays a significant policy role that cannot be overlooked.

"We have 50 million nicotine addicts, and 15 million alcoholics [in this country]," Kleber said. "There are approximately 3 million marijuana addicts, about 2.5 million cocaine addicts and 1 million heroin addicts. Most scientists would argue that cocaine is at least as addicting as alcohol, if not more so. Therefore, if you make cocaine as freely available as alcohol and tobacco, then the number of addicts would rise to somewhere between alcohol and nicotine, and that would be horrendous for society and impose an enormous cost. And we don't have a cure for these conditions."

Peter Banys, M.D., associate clinical professor of psychiatry at the University of California, San Francisco, School of Medicine and president of the California Society of Addiction Medicine, disagreed, saying that criticism of Proposition 36 is misplaced.

"One of the problems in this dialogue is that there are geese and ducks, and they're both quacking, but they're not speaking the same language," Banys told PT. "There's no question that coercion and consequences are highly motivating in all substance abuse treatment. However, there are many more kinds of coercion and consequences than incarceration. There are health issues. There are marital issues. There are probation orders from judges. There are job pressures from supervisors and so on."

Banys said that the emphasis on the more negative consequences underestimates the motivating potential of positive reinforcement.

"There are positive reinforcements that also help people do well," Banys said. "There's a whole research literature on reinforcing people for doing well rather than punishing them for doing poorly."

While Banys conceded that drug court can be an effective tool, he said that the approach is too narrow.

"One of the problems with the drug court theory is that it plays one note out of a chord, and the note it plays is incarceration," Banys said. "It may be a particularly effective tool in a selected group of patients, but not necessarily all. The drug courts should be working with the more recidivistic group of people and less with the first-time offender."

Banys denied that Proposition 36 was a referendum on legalization or that it was an attempt to fully medicalize drug addiction and thereby extract it from the legal system altogether. "The proposition just said that the pure incarceration strategy is a failed strategy, and it's a massively failed strategy."

Nevertheless, Banys agreed that the public is not ready to accept how addiction is best understood philosophically and still would reject any effort to remove management of addicts totally outside the criminal justice system.

Sheila B. Blume, M.D., is chair of the American Psychiatric Association Committee on Treatment Services for Addicted Patients. From 1979 to 1983, she was director of New York's Division of Alcoholism and Alcohol Abuse. She explained to PT that part of the problem is that law enforcement officials do not want to give up the discretion they have in determining which offenders receive diversion and which ones do not.

"What the California proposition does is make diversion available to everyone who qualifies, and it's not a district attorney's prerogative," Blume said. "The D.A.s hate that."

Nevertheless, Blume has treated addicts within New York's drug court program, and she acknowledged that those individuals are often more conscientious about keeping appointments.

"Would they have been as concerned if they didn't have a jail sentence hanging over them? I don't know," Blume admitted. "Usually, my drug court offenders were first-timers who got sucked up in the legal process. They may have been in treatment previously and not taken it seriously. But the extra push of having to show up in court and be responsible to a judge seemed to be helpful."

Blume said that the data that emerge from the California experiment could yield the answer to the question whether the threat of incarceration is an important component of successful addiction treatment.

For Kleber, however, Proposition 36 not only emasculates successful drug court programs but could have a damaging effect on social policy.

"If enough addicts do badly, people are going to say let's get rid of the whole thing," said Kleber. "The fear with Proposition 36 is that all those people and policy-makers who are ambivalent about treatment are going to say, 'See, we put all this money into it and it didn't work. So go back to locking them up.' And I don't want them locked up-I want them treated."