Prop. 5: 'Get out of jail free' for criminals?

Today's question: Would Proposition 5 make it too easy to escape punishment in cases where the offenses were only vaguely connected to drugs? Steve Cooley and Alex Kreit debate Proposition 5.

A public safety disaster
Point: Steve Cooley

Put simply, Proposition 5 is the worst public-safety proposal ever -- bar none.

One of the very worst things about Proposition 5 -- and there are 60 pages of other public-safety train wrecks wired into this time bomb -- is the fact that it would allow criminals who commit all kinds of crimes that have absolutely nothing to do with drug abuse to escape punishment by simply claiming to have a substance-abuse problem.

Proposition 5 would forbid judges to jail or imprison many classes of criminals if the "defendant appears to have a problem with substance abuse or addiction." Instead of receiving the punishment provided by law, these criminal perpetrators would have to be referred to the kind of "treatment" programs that have already racked up a 77% failure rate.

What sorts of criminals would qualify for this preferential "get out of jail free" treatment? The list is long and frightening. It includes those who commit certain arsons and burglaries, identity theft, child pornography, domestic violence, auto theft, mortgage fraud, lewd acts on teenagers, illegal weapons possession, drug sales, grand theft (in any amount), all kinds of fraud, drunk driving (even when causing bodily injury) and many other crimes.

But here's the catch: Crooks committing such crimes would only get the Proposition 5 break if they claim a substance-abuse problem. This means that every person who steals cars, identities and more would have a powerful incentive to become a substance abuser -- if he isn't already. If he were to get caught doing these crimes while he is clean and sober, he may go to prison or jail. But if were to simply carry a little meth or cocaine in his pocket while perpetrating his crimes, he would then "appear" to have a substance-abuse problem and couldn't be incarcerated. That's why some criminal defense attorneys have candidly told me that if Proposition 5 passes, they will advise their clients about the benefit of being a drug abuser just in case they get caught breaking the law in the future.

How would Proposition 5 reward greater drug abuse by the criminal element? Consider this scenario: Two crooks (one with no substance problem, the other an alcoholic or narcotics user) burglarize a business, steal thousands of dollars worth of goods and do thousands of dollars worth of vandalism. They then steal two vehicles parked outside and later add identity theft to their crime spree when they find the victims' credit cards and Social Security numbers in the stolen property. When the two are caught, one goes to prison while the other goes to "treatment." Sound fair? Or is this a huge incentive for all criminals to become substance abusers?

It's no wonder Proposition 5 is opposed by all 58 elected district attorneys, many California police chiefs and sheriffs, state Atty. Gen. Jerry Brown, Gov. Arnold Schwarzenegger, all living former California governors, Sen. Dianne Feinstein, Mothers Against Drunk Driving, more than 40 major California newspapers and many others. (A complete list and other information can be seen at

The Times said that Proposition 5 is "stuffed with disaster"; the Oakland Tribune called it a "dangerous proposal"; and Feinstein has said that Proposition 5 "would harm families, schools and communities."

Anyone concerned about reducing drug abuse and real criminals victimizing all of us should vote no on Proposition 5.

Steve Cooley is the district attorney of Los Angeles County.

Relieve prison overcrowding by treating drug users
Counterpoint: Alex Kreit

Steve, you say that "anyone concerned with reducing drug abuse" and crime should oppose Proposition 5. But all of us on both sides of this debate share the same goal of reducing drug addiction and drug-related crime. We just have different views on how to tackle the problem.

You seem to propose that we continue with the current approach -- which has brought us massive prison overcrowding and sky-high costs with little to no reduction in drug-abuse rates -- on the grounds that Proposition 5 would lead to a parade of disasters. Of course, in 2000, opponents of Proposition 36 made similar unsubstantiated predictions that, eight years after the initiative's passage, have proved false.

By contrast, those of us who support Proposition 5 believe that our current system isn't working. We want to build on the successes of Proposition 36, which has shown that coerced treatment is often a more successful and cost-effective method for combating drug addiction than locking up nonviolent addicts at $46,000 a prisoner a year.

Now, if Proposition 5 actually did some of the things you allege, I would readily agree with your concerns. But, with all due respect, many of your claims about Proposition 5, like those made eight years ago about Proposition 36, are misleading.

You say that the initiative would let criminals "escape punishment by simply claiming to have a substance-abuse problem" and forbid judges from imposing prison sentences. That is false.

To sentence an offender to court-supervised treatment under Proposition 5, a judge would have to conclude that the offense is nonviolent, the offender has a drug problem and mandated drug treatment is in the best interest of public safety. If those criteria are not met, an offender will not be eligible for treatment under Proposition 5.

Likewise, the initiative would not change the sentence of any of the offenses you listed. Nor does Proposition 5 stop any court from sending any of those offenders to jail or prison. The initiative would simply give judges -- not defendants -- the authority to decide on a case-by-case basis the appropriate disposition for addicted nonviolent offenders.

The truth is that Proposition 5 is a reasonable, carefully drafted and well thought out reform of our criminal justice system that would safely reduce prison overcrowding by focusing scarce prison and parole resources on violent and serious offenders -- all while saving California taxpayers $2.5 billion.

Anyone looking at the criminal justice system in California knows that we need this reform. California can't continue any further down the path of mass incarceration. The fact is that our bloated prisons are draining our coffers. In 1999, California spent $4 billion on prisons. This year, we'll spend more than $10 billion. By 2011, prison spending is projected to reach $15 billion, a three-fold increase in just over 10 years.

More than 170,000 offenders are crammed into state prisons in California that together were built to house 100,000 inmates. There isn't enough capacity for even basic healthcare, let alone rehabilitation programs. More than 10,000 offenders are released from our state prisons every month, few of whom have received any rehabilitation services and most of whom will get only $200 and a bus ticket on release. It's no surprise that California's recidivism rate is at 70%, twice the national average.

California can do better. To address the prison and budget crises, we need Proposition 5. Unfortunately, it seems that what we're getting from you and the other politicians you listed, Steve, are scare tactics and more of the same failed policies that got California into this mess.

Alex Kreit is an assistant professor and director of the Center for Law and Social Justice at the Thomas Jefferson School of Law in San Diego, where he teaches criminal law and criminal procedure.