Keeping mandatory drug treatment voluntary

The authors of Proposition 36 want people convicted of drug possession to get treatment instead of being sent to prison. But they’re fighting to the death a provision that would impose sanctions on those who take the deal but either duck the treatment entirely or drop out before it’s finished, as two-thirds of Prop. 36 offenders do. (A third never show up, and half of the rest drop out.) So they’re for mandatory treatment, as long as it isn’t really mandatory.

California’s Proposition 36 provides for mandatory drug treatment instead of prison for those convicted of drug possession, no matter what they’ve been convicted of in the past. But the “mandate” is largely imaginary. If an offender absconds and is taken back before a judge, the maximum sanction the judge can impose is more treatment. And if, having absconded once and being ordered again to what he refused to do the first time, an offenders absconds again, and is referred back the judge for a second time, the maximum penalty he faces is &#8212 you guessed it &#8212 more drug treatment.

Naturally, overworked probation officers have no time or motivation play this silly game, so they never bother to fill out the paperwork and spend hours in court just to pile one futility on top of another. As a result, offenders are perfectly free to flip off the system and act as if mandatory treatment were something they can take or leave at their discretion. Unsurprisingly, one-third of those who take the Prop. 36 deal never even show up for treatment, and half of the rest drop out before completing it: mostly after only one or a few visits.

Prop. 36 turns out to be better than prison. (Well, almost anything be.) But it’s probably not as good as mandatory treatment. The California legislature passed a law allowing short jail stays for Prop. 36 absconders. The authors of Prop. 36 seem to think that this would violate the intention of the voters: as if a majority of Californians really intended to vote for mandatory treatment that wasn’t actually mandatory. And they’ve gotten a judge to agree with them. For all I know, the judge may be right as a matter of law, but freezing the current law is demonstrably lousy policy. Improving the quality of treatment is a great idea, but it’s not sufficient to solve the problem. No matter how good a treatment program is, it won’t work on people who don’t attend it.

My friends in the “drug policy reform” community are tired of hearing me say that, as a movement, they’re as ideological and fact-resistant as the “drug warriors” they so despise. (Naturally, the drug warriors also resent the comparison.) I, too, wish that it weren’t accurate. But the facts are the facts.

Author: Mark Kleiman

Professor of Public Policy at the NYU Marron Institute for Urban Management and editor of the Journal of Drug Policy Analysis. Teaches about the methods of policy analysis about drug abuse control and crime control policy, working out the implications of two principles: that swift and certain sanctions don't have to be severe to be effective, and that well-designed threats usually don't have to be carried out. Books: Drugs and Drug Policy: What Everyone Needs to Know (with Jonathan Caulkins and Angela Hawken) When Brute Force Fails: How to Have Less Crime and Less Punishment (Princeton, 2009; named one of the "books of the year" by The Economist Against Excess: Drug Policy for Results (Basic, 1993) Marijuana: Costs of Abuse, Costs of Control (Greenwood, 1989) UCLA Homepage Curriculum Vitae Contact:

18 thoughts on “Keeping mandatory drug treatment voluntary”

  1. ["My friends in the "drug policy reform" community are tired of hearing me say that, as a movement, they're as ideological and fact-resistant as the "drug warriors" they so despise. (Naturally, the drug warriors also resent the comparison.) I, too, wish that it weren't accurate. But the facts are the facts."]
    What facts? What are you even talking about?
    The rest of your post seemed to be about the fact that authors of a California proposition have decided to act to enforce the proposition as written. How is that fact-resistant? Simply because they don't share your "…probably not as good as mandatory treatment" hypothesis that happens to be presented without any facts to support it?
    And is that a reason to suddenly imply that ALL drug policy reformers are "as ideological and fact-resistant as the "drug warriors" they so despise"? Do you feel that you must find a way to insult drug policy reformers every time you post about drug policy?
    We're tired of hearing you say it, because each time you do, you just drop it in your post with no connection to any reality.
    Just like when you said "If you guessed from the above that neither side of the drug-policy debate actually gives a rat's ass about sick people, you're a remarkably good guesser." — again without anything to support it. (4/22/05)
    You've got a lot of expertise in drug policy. But you undermine all of your arguments every time you throw out one of these unsupported attack distractions.
    I would be interested in having an intelligent discussion about discovering the best approach to treatment in California. But you have already classified me as "fact-resistant" despite the fact that I have said nothing on the subject.

  2. Yeah, we're just as "ideological and fact resistant", we're just not putting on goon suits and kicking down people's doors in the middle of the night.
    I'll take "ideological and fact resistant" people who are willing to leave me the hell alone over ones who are willing to shoot me if I don't ask how high when they say "Jump!" any day of the week.
    That's what it boils down to. Sure, I'd rather people didn't use drugs. I'm aware that use can be self-destructive. But I'd rather live in a society where people were free to destroy themselves, than a the police state the war on drugs needs to have any chance of success.
    BTW, I notice you didn't mention the proposition's "third strike" aspect. Seems it's not as toothless as your post would imply.

  3. I have to agree with Pete Guither — what in the hell is your point exactly?
    Everyone who knows anything at all about drug rehab will tell you it is worthless unless the person sent there is going under their own free will. You can't "help" people who don't want it.
    As to the "legalizers" issue: the big problem there is really that people are trying to dismantle the drug war in a piecemeal fashion rather than completely obliterating it. Thus the rehab rather than prison idea was driven primarily by the perception that making a small step against tyranny was better than doing nothing and may help to eventually lead to its death.
    The only clear path off the merry-go-round of insanity we call the "drug war," however, is to stop persecuting those who do things to themselves. Were they not facing drug charges in the first place, they couldn't skip out on the "treatment" they don't want — and may not even need.

  4. Everyone who knows anything at all about drug rehab will tell you it is worthless unless the person sent there is going under their own free will. You can't "help" people who don't want it.
    Is this really so, or is this an ideological belief? I'm thinking of a particular woman I knew who was badly around the bend on methamphetamine. What finally motivated her to straighten out was spending nearly a year in prison. She was fortunate enough to get actual treatment while she was in, and further fortunate to have a family with sufficient money that she didn't spend years and years in prison but instead got parole conditioned on further rehab. The involuntary prison stay triggered this result.
    God knows, I wouldn't wish incarceration on someone for drug use, but in this case, it seems to have helped.
    The statement quoted above may be, in a literal sense, true, but in a policy sense, it may be misleading. The idea that no treatment for addiction can help if it is not fully voluntary should be examined and tested.

  5. Indeed, what are the 'facts'? The only facts cited appear to be that the treatment modality is underfunded, and overworked probation officers are unable to complete their tasks.
    How will making treatment more mandatory solve that? Considering the added expense of jailing the recalcitrant, it seems the funding problem would most likely worsen.
    And this is all before we even consider the quality of the 'treatment' offered. What a laff riot it would be if your car, or the elevator you ride, were serviced by people with the level of training of the 'counselors' met in the mental health or drug treatment systems.
    It might improve the quality of the discussion if every university professor who wishes to comment actually had to spend three months being tested for drug use and meeting with 'counselors' in the typical treatment setting. It's hard to think it could make matters worse.

  6. Jeezus, I agree with Brett. Guess I'll check for dogs and cats f***ing in the streets on my way to lunch.

  7. Well, sure, and it makes sense that treatment counselors already short of resources wouldn't want to be flooded with people who don't want to be there. I suspect that's the reason they maintain the position that treatment can only be effective if voluntary.
    The flip side of that fiction, though, is that it's part of the mindset that allows treatment to be radically underfunded.

  8. Clearly, Mark is objectively pro-fascist. If he doesn't rattle off the talking points about how supergood the cheap methamphetamine will be for our society once it's all, like, legal and stuff, he's clearly in favor of smashing in doors and busting skulls. Vote LP!

  9. First off, it is a reasonably accurate statement that people who aren't in treatment of their own free will may not get much benefit from it. There is always the possibility that talking with other people who have fallen into tougher situations than themselves may wake them up, but it is actually more likely that they may hear a lot of, for lack of a better term, sob stories and figure that they must not have a problem, since their lives haven't gotten to that point yet.
    I've had personal experience with treatment programs, and it is true that these programs aren't going to help anyone who isn't doing it of their own free will. If someone wanted to, it would be easy to play along until they get discharged, and then go back to their old habits. That doesn't mean that there is some value to having mandatory treatment– when someone finally hits bottom and is ready to be receptive to treatment, then they know where they can go.
    I gotta say, Mark, I gotta agree that floating an implicit attack on people who support a certain point does tend to reduce the respect that you, and consequently, ANY ideas you may have, will get from people. You do make a good point that the system may not be working properly now, but then you infer that the idea of the system is not good either. I read the links you pointed to, and I see that after the first relapse, there is simply a mandate to continue treatment. After the second, residential treatment can be mandated. After the third, jail. That sounds like a very solid compromise to me. You can't expect drug treatment to be a magic bullet… it takes time to work, and many times, people who relapse and have ample time to make connections between their thought and behavior patterns up to and through the relapse and what the treatment counselors are trying to say do have some degree of success in moving through the treatment. Residential treatment is not something that you can run away from, despite your sweeping generalization that "offenders can run away a second and third time". And jail, well, that doesn't need explanation. You state that the "overworked probation officers" don't do their job. I would suggest that perhaps that is the problem in the system, not the basic principle behind the system… that there isn't sufficient funding being provided to make sure that probation officers aren't overworked, and that they do their job. Throwing all these people in jail can only cost more than it would cost to get them through treatment.
    Quite honestly, suggesting that we should simply throw offenders into jail to "motivate" them to go to treatment is a severe misunderstanding of the problem of addiction. It is classified as a disease by the American Hospital Association, the American Public Health Association, the National Association of Social Workers, the American College of Physicians, and the American Medical Association. Do you propose that we throw all cancer patients in jail if they refuse to go to their radiation sessions?

  10. Scott wrote:
    "Do you propose that we throw all cancer patients in jail if they refuse to go to their radiation sessions?"
    Or, why don't we throw tobacco smokers in jail? Ooops! We're getting there, and sooner rather than later.
    The fundamental philosophical or ideological basis for all prohibition laws is that the user is moral scum, whether prior to using the drug, or rendered so by the drug's magical powers to destroy one's moral sensibilities. From that point of view, treatment is not so much "coddling criminals" as it is an act of mercy comparable to the Inquisition's merciful tortures to save heretics' souls. If you really believe that someone's eternal damnation may be mitigated by confession and remorse, then nothing you can do to them to bring that about is evil, but an act of mercy.
    Likewise, mandatory drug treatment is the act of merciful torture to force the user to confess his moral turpitude for having temporarily enjoyed a politically incorrect biochemistry. Prohibitionists like mandatory treatment as long as they get to run the "treatments" to forcefully brainwash the formerly free to become glazed eyed ideological cannon fodder for the prohibitionist cause. "I was all screwed up on drugs until I found Jeeezus. Now I'm all screwed up on Jeezus". That's the only permissible addiction in the prohibitionist pandaemon.
    Prohibition is just one of many handy means by which totalitarian control freaks gain political power within a democratic government. "Treatment" is at most only one tool in their political dissembling kits, the velvet glove to disguise the iron hand.
    Until civilized governments dump prohibitionism, as they generally have dumped its ideological brethren, communism and Wahabbism, societies will continue to have grand and meaningless debates over marginal questions such as whether "treatment" works as well as incarceration. The fact is that if treatment is mandatory, then the distinction from incarceration is without a difference.

  11. I must say in response to Nobody that I don't go quite that far in my thinking. I don't necessarily believe that making certain drugs legal would be a "bad thing", since there is no real "a priori" evidence making them "bad" (or at least no worse than alcohol). Some drugs are not good for the general population if they are indiscriminately handed out, that's for sure, since they make the user more likely to hurt others (as an example, let's say… PCP?).
    However, addiction is a valid disease to address in our society, rather than simply sneering at treatment as "brainwashing". There are plenty of people who mess up their own lives by using, so there's a place for treatment. As for "mandatory treatment", well, suppose the "drug offense" that the person is being sent to treatment for is, say, drunk driving. If that person has already displayed poor judgment in deciding to get behind the wheel and drive around while drunk and significantly increasing the possibility of injuring someone else, then there's a very good possibility that s/he would display similar poor judgment in the future. The fact that s/he may be addicted and have no control over his/her continued drinking only serves to make a problem even worse.
    It's my view that while I have concerns about government or society apparently acting to protect people from themselves or to enforce a set of values, I do think that it is government's role to protect people from each other.

  12. I think it is ridiculous that California laws are so often set by initiatives that nobody reads or understands and which, once passed, are hard to amend. And I don't buy that Californians were intending to allow people to repeatedly abscond from the drug treatment that was mandated under the initiative. So I certainly sympathize with Kleiman's point about the law.
    What I find more difficult understand is why it is any of the government's business what substances people want to ingest for their own pleasure. It doesn't seem to me to be a tragedy if probation officers are focusing on more dangerous absconders and ignoring drug users. Would that more of the criminal justice system followed this principle.

  13. Back to the original issue, I think it's much more complex than is being presented in Kleiman's post.
    Mark simply assumes that the voters MUST have intended an enforcement component to the treatment, despite the wording of the proposition that made it clear that no jail would be involved until the 3rd failure. Based on that assumption, he supports overturning the language of the law. But it MUST be so, he claims — there's no other explanation.
    Except that there is.
    California had undergone an extreme increase in incarceration, from 34,640 in 1982, to 161,291 in 2000, with attendant prison costs in a very difficult budget situation for the state.
    Burglars and violent criminals were being released due to overcrowding in prisons.
    Additionally, the state averages over 2.5 MILLION unserved warrants.
    It is quite possible that the voters decided that they did not want to clog the jail system with non-violent drug offenders. Sure, some would evade the system — better them than the violent criminals. The voters may have consciously decided it was better to have a "mandatory" treatment system that wasn't all that mandatory, because there were other, more important priorities.
    It's not up to Mark Kleiman to second-guess their motivations.

  14. Scott has, perhaps unwittingly, put a finger on part of the problem by accepting that "addiction is a valid disease".
    In a word- no. The word has become hopelessly stretched and deformed, but it certainly would be safe to say that most "addictions" are learned behaviors, and, as such, can only be extinguished by qualified practitioners in a supportive setting.
    The only role the drug plays in most of this is that a traffic cop can field test for residue, and 'treatment counseler' can urine test for some kinds of drug use. By any standard these are very crude tools for dealing with social problems if you actually seek a positive outcome.
    There is the additional danger to society that the medical model does not include any form of due process, and we never have far to look for untoward consequences of that fact.
    The fact that the largest part of the enforcement effort is directed against marijuana, one of the safest drugs known, has underlined the dangers of embracing the 'treatment' and 'addiction' models. At the bottom line, the drug wars we know are not about helping people, they are about controlling people.

  15. The prohibitionists are all for sending messages…but they turn curiously, selectively deaf when a message arrives that doesn't fit their preconceptions. And when that message hails from a quarter they believed was supposed (in their minds, at least) to remain silent on the subject, the dissonance becomes even greater.
    Props 200 and 215 were singular signals, 'votes of no confidence' in the legislatures regarding the handling the issue of medicinal marijuana. Prop36 was another 'vote of no confidence', this time in the over-penalization of present-day drug laws. They passed by popular vote for a reason. Not from ignorance of their content (as far too many professional prohibitionists had dared to publicy imply) but from knowledge at an almost rock-bottom, common-sense level that it was time to end the game. But the prohibs are, as usual, ignoring that message.

  16. adamsj: "She was fortunate enough to get actual treatment while she was in"
    1) Maybe she recognised that she had a problem with her drug use? How does a casual weed-smoker arrested on a buy-and-bust operation necessarily have a problem? What good will treatment do them?
    2) I'm in favour of mandatory treatment for people committing crime while on drugs – whether that be drugged-driving or shop-lifting to feed their habit. What's being proposed here (by Kleiman) is that people who are merely guilty of drug possession be jailed for refusing treatment.

  17. Well, Rubin, there's the problem with Prop. 36 as written. It assumes that everyone arrested for possession needs treatment. What I'm saying above is that I think it's not a proven statement that no forced treatment ever helps, and I doubt that it's true.
    I understand why Mark is pointing out the hypocrisy of the law as enforced–it allows those who get arrested and need treatment, like the ones you mention, to avoid treatment–but it's probably as good a law as can be gotten.
    I also sympathize with his "a pox on both your houses" attitude toward the polarized opposites in drug policy. I'm more sympathetic to the exaggeration and posturing on the drug policy reform side, but it's still exaggeration and posturing.

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