A number of states have considered laws or ballot initiatives intended to divert drug-abusing criminal offenders into treatment programs instead of prison or jail. Most of the research on these initiatives focuses on Californias Proposition 36 and Arizonas Proposition 200. Proposition 36 refers to the Substance Abuse and Crime Prevention Act, which was passed by 61% of California voters in November 2000. The Act increased state funding for treatment and allowed eligible non-violent drug offenders who plead guilty to enter drug treatment instead of receiving a traditional sentence. Proposition 200 refers to the Drug Medicalization, Prevention and Control Act, which was passed by 64% of Arizona voters in November 1996. The Act requires a court to sentence first- and second-time non-violent offenders who are convicted of personal possession or use of a controlled substance to probation and drug treatment. Proposition 200 also established the Drug Treatment and Education Fund which is funded by revenues from a liquor tax. It is also important to note that some states have rejected related ballot initiatives.
One of the main arguments for Propositions 36 and 200 was that too many low-level drug offenders were filling the state prisons. However, analyses of offenders incarcerated for drug offenses before implementation found that many of these individuals had serious criminal histories or had plea bargained down from a more serious offense. Further, the vast majority of first-time drug possession offenders are not sentenced to jail or prison. This suggests that legislators and voters considering related propositions to divert offenders from prison to treatment should pay close attention to the population that will actually be affected by the law. They should also consider how these propositions will impact existing programs intended to provide treatment to offenders with substance use problems (e.g., drug courts).
Studies of Proposition 36 suggest that diversion of non-violent drug offenders from traditional sentences to drug treatment saves taxpayer dollars in the short run, largely attributable to avoided incarceration costs. Whether or not Proposition 36 saves taxpayers' money in the long run is an important question deserving additional research. The available evidence on Arizona's Proposition 200 suggests that the avoided incarceration costs exceed the funds spent on probation and treatment; however, a full cost-benefit analysis from the perspective of the taxpayers has not been conducted.
There is no evidence suggesting that Proposition 36 has improved public safety. In fact, comparisons of those eligible for Proposition 36 with those who would have been eligible before implementation find that those eligible after the law passed were more likely to be rearrested for drug and property offenses. One explanation for this is that Proposition 36 offenders spent more time in the community than those in the comparison group. Future cost analyses should incorporate the costs associated with being a victim of these property offenses as well as other costs and benefits (e.g., the costs associated with being incarcerated or having a family member incarcerated). This highlights the point that decision-makers should pay close attention to what is included in and excluded from cost-benefit analyses as well as the perspective they consider (e.g., taxpayers, society).
It is unclear whether Proposition 36 has led to a net reduction in drug use or the intensity of drug use. While treatment can reduce use in the short run for some Proposition 36 clients, many individuals who would have otherwise been incapacitated for their drug offense continued to use in the community. In addition to the 25-30% of Proposition 36 referrals who did not enter treatment, many Proposition 36 clients dropped out of treatment with very little consequence. Future assessments of the overall effect of Proposition 36 on drug consumption must consider that while response to treatments may vary, for those who respond, the benefits could be immediate but more often are incremental and cumulative over the longer term.
A major policy issue associated with Proposition 36, and drug treatment in general, is motivating referrals to enter and comply with drug treatment. The evidence suggests that holding participants accountable for treatment/testing violations in a timely manner and incorporating positive reinforcement for compliance (e.g., receiving a movie pass for a clean drug test) can promote abstinence and improve treatment outcomes; however, in most California counties Proposition 36 neither included an enticing carrot nor a meaningful stick. Proposition 36 allowed clients up to three drug-related violations before the protections were removed and the Act did not allow sanctions to include incarceration. In response, criminal justice agencies and several treatment providers urged the legislature to allow short sanctions to be used to create incentives for treatment compliance. The bill was passed and signed into law in July 2006, but an injunction was filed claiming that this change is unconstitutional. With respect to Arizonas Proposition 200, the state legislature amended the Act in 2002 to allow for incarceration if the individuals refused drug treatment or probation. Legislators and voters considering diversion programs should give serious attention to the contingencies in support of compliance before placing their votes.
Finally, California counties had a lot of discretion about how to implement Proposition 36, and it forced collaborations between the public safety and public health sectors. Since many counties in California had drug courts prior to Proposition 36, the transition may have been easier because they had experience bringing the courts and health services/treatment providers together. But this did not mean there were no problems. In addition to conflicts about how to sanction treatment and probation violations, a great deal of tension was experienced by counties trying to determine how much information sharing should occur between the courts and treatment providers (e.g., Who should have access to information about drug test results?). With counties approaching these issues differently, there is a lot of opportunity for learning and development of best practices.