In the year since California voters approved Proposition 47, there has been a flurry of speculation about the future of drug courts in this state. Proposition 47 reduced the majority of drug and property offenses in California from felonies to misdemeanors, meaning that many offenders no longer face the possibility of state prison. Critics have suggested that removing the heavy stick of incarceration necessarily makes drug courts less effective.
It's true that, under Proposition 47, enrollment in some drug courts has dropped. This is not surprising. After all, eligibility for many drug courts requires a felony conviction, and participation is optional.
However, this trend doesn't mean we need to throw up our hands or scrap Proposition 47. On the contrary, it suggests that drug courts should adapt, as they have before, to the new order. Because Proposition 47 has downgraded most drug offenses, drug courts should accept those convicted of misdemeanors. Misdemeanors still carry a maximum sentence of one year in jail, more than enough to serve as a disincentive.
Not all existing drug courts work exclusively with felons. Many in California and elsewhere, including my own, already work with lower-level offenders who cannot be sent to state prison. Even when participation is not a prison alternative but merely a required term of probation, drug courts are effective.
A recent report by the Judicial Council found that reentry drug court participants in California who faced a maximum of six months in jail for their violations had their parole revoked less often and ultimately spent significantly less time in prison than a comparison group.
Even without adapting, drug courts can do a lot of good. Drug courts, remember, frequently work with felons who commit crimes other than drug possession — addiction is a common factor in many crimes — and are therefore unaffected by Proposition 47. And Proposition 47 certainly has not reduced these programs' ability to assist offenders who enter treatment. Success stems from positive reinforcement and motivation, not the hammer of incarceration.
In 2008, the Urban Institute found as many as 1.2 million addicted individuals in the criminal justice system. In 2013, 60% of adult males booked into jails across the country tested positive for drugs, regardless of the offense. Overreliance on incarceration contributed to the failure of the war on drugs. In drug court, we understand that addiction is a chronic condition with a high risk of relapse. The proper response to relapse is more treatment, not prison.
There's a common misconception that drug courts serve only casual drug abusers. Actually, research indicates that drug courts are most effective when serving serious addicts — individuals who are at the highest risk of committing new offenses and have the highest need for treatment (substance abuse or mental health), services (such as housing, employment and education), supervision by probation officers and ongoing monitoring by a judge.
By passing Proposition 47, California did not intend to ignore substance abuse. The public recognizes that while it is imperative that we reduce the prison population, we must also provide treatment to those who need it. After a year, we can probably all agree that while there has been an initial decline in prison and some jail populations, too many serious addicts are not receiving the treatment they need to permanently change their behavior.
But if critics of Proposition 47 are truly concerned about the future of drug courts, there's a better way to funnel offenders into treatment than going back to the way things were. That's to get rid of the big-stick sanction method and simply reform sentencing policy so that treatment is a requirement for addicts, not an option.
Stephen V. Manley is a Superior Court judge in Santa Clara County. He was a founder of the Drug Treatment Court in Santa Clara County as well as the Santa Clara County Mental Health Treatment Court.