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Local officials involved in implementing Proposition 36 — the initiative that mandates that non-violent adults convicted of possessing illegal drugs be sentenced to drug treatment rather than jail time — say the law may need fine tuning if it is to have the impact supporters had hoped for. 

Known as the Substance Abuse and Crime Prevention Act of 2000, Proposition 36 was approved by 61 percent of voters last November and went into affect July 1. It directs $60 million to help counties pay for more drug treatment services this year, and then $120 million annually for the next five years. 

But, so far at least, Proposition 36 seems to have made little difference in the way non-violent drug users are treated in Alameda County. Long before Proposition 36, Alameda County Deputy District Attorney Jeff Rubin said people convicted of drug possession locally were extremely unlikely to end up in prison unless they had a significant criminal history apart from their drug use.  

Those convicted of simple possession in Alameda County were already sentenced to drug treatment, Rubin said, just as Proposition 36 mandates. 

Davida Coady, M.D., coordinator of the Berkeley Drug Court and director of Options for Recovery Services, one of the drug rehabilitation service providers contracted by the county under Proposition 36, said only a handful of people went to jail for drug possession in Alameda County last year. And some of these were people who chose jail over treatment, Coady said, because they had tried treatment before and decided it wasn’t for them. 

Furthermore, Coady said, there is no difference in the drug treatment available to drug possession offenders under Proposition 36 and the treatment they commonly received before Proposition 36 became law — at least in Berkeley. 

“We have been able to get everybody from our drug court into service regardless of their ability to pay,” Coady said. 

Even today, those picked up for possession in Berkeley are likely to end up as clients of Options for Recovery Services, whether they are referred through the Proposition 36 process or the old-fashioned way — a judge offering them probation if they agree to treatment.  

The only difference, said Coady, is that a Proposition 36 referral requires that an offender enter a guilty plea before they are eligible for services.  

Needless to say, this isn’t much of an incentive for drug users to “take advantage” of a law that was ostensibly passed to help them receive the treatment they need. And this, said Coady and others, may explain why no one processed by the Berkeley court has opted for Proposition 36 treatment since it became an option July 1. 

Taking a pre-plea diversion into drug treatment — the old-fashioned route — is “a much better deal because they don’t get a felony on their record,” Coady said. 

Part of the appeal of Proposition 36 was supposed to be that it gave people the opportunity to have a felony conviction expunged from their record if they successfully completed a three to 12 month drug rehabilitation treatment program. But, apparently, this isn’t much of an incentive in cases judges are signing off on plea bargains that avoid felony conviction altogether. 

Don Thoni, a program specialist for Alameda County’s Behavioral Health Care department, the entity charged with overseeing Proposition 36 locally, said local agencies have moved heaven and earth to prepare for Proposition 36 in recent months. And he said they is a strong will to work together to make the law as effective as possible. 

But even Thoni pointed to a major drawback of the law as currently written. When a person receives a felony conviction, as they must in order to receive treatment under Proposition 36, they lose their eligibility for CALworks benefits like healthcare and food stamps. Thus, addicts who likely lead a precarious existence already would face a period of even greater hardship until they successfully complete drug treatment and have the conviction removed from their record. 

Al Lozano, of the Berkeley Health Department’s mental health division, said people are generally aware that “there are a whole lot of little complexities that need to get worked out” with Proposition 36. He said there seems to be a great deal of “political will” to iron out problems, either through new legislation or at the level of local implementation. 

Thoni agreed.  

“It took a lot of cutting through red tape to get this in place,” he said. “[The Alameda County Department of Behavioral Health Care Services] really wants to make this as flexible as possible.” 

And despite the shaky start, Coady also held out hope that the program could have a positive impact in the region.  

“I’m hoping that it will get some people into treatment that would not otherwise get into treatment, and I’m still optimistic that that could happen,” Coady said.