Drug-policy reformers are pushing forward with ballot initiatives in Michigan and Ohio, each billed as offering non-violent offenders addiction treatment over incarceration. But a similar initiative in Florida is dead, and the proposals face strong local opposition elsewhere.

The Ohio initiative proposed by the Campaign for New Drug Policies, while not identical to those introduced in other states or to California's Proposition 36, is typical in its approach to drug use and the courts.

The proposed constitutional amendment called for allowing non-violent drug-possession offenders to choose addiction treatment over jail. Offenders could choose treatment on a first or second offense, with the courts having discretion on offering treatment or jail time on third or fourth offenses. Those who reject treatment outright or are removed for noncompliance would face sentencing under criminal law. However, jail terms for offenders are capped at 90 days.

Dave Fratello, political director for the national office of the Campaign for New Drug Policies, describes the Ohio plan as "Prop 36 plus." Allowing those who wash out of treatment to be jailed represents a compromise intended to appeal to judges and prosecutors, he said. The Ohio proposal also calls for an independent treatment monitor to hold offenders, programs, courts, and prosecutors accountable on a day-to-day basis, said Fratello.

But Ohio Gov. Bob Taft said that he and his wife, longtime anti-drug activist Hope Taft, will be "the first in line to vote no" on the amendment. Taft said the plan would undermine the state's drug courts and addiction-treatment programs.

Fratello said there is "no question" that the campaign will gather enough signatures to put its initiatives on the Ohio and Michigan ballots in November. In Florida, however, a similar campaign stalled when the state Supreme Court failed to rule on the constitutionality of the measure in time for backers to gather enough signatures for the referendum.

Florida Gov. Jeb Bush strongly opposed the campaign, and his drug czar, Jim McDonough, called it a form of back-door drug legalization. The Florida Alcohol and Drug Abuse Association (FADAA) also opposed the measure, saying that the initiative virtually decriminalized drug use, which FADAA said would increase drug use.

"People wonder about our motives," acknowledged Fratello. "We always say, 'Look at the bills.' That's our agenda. We are trying to reform the drug laws and change the drug war. The laws are still in place, but with less of an incarceration mindset."

However, FADAA also differed with the initiative's basic approach, saying it would remove the leverage that prosecutors and judges have in forcing offenders into treatment. "Our view is that treatment can be provided on demand to all first- and second-time drug offenders under existing laws if there is adequate funding," according to a FADAA position statement adopted last November. "Further treatment must be provided in such a way that the defendant is fully accountable to the justice system for their participation (or failure to participate) in treatment ... The amendment destroys the existing diversion and drug-court systems that effectively provide treatment services based on local community input and need, replacing them with an overwhelmed treatment system which could no longer utilize the justice system to hold defendants accountable for continued illicit drug use."

A Sense of Disempowerment

One of the biggest criticisms of similar reform efforts in California and Arizona is that they leave officials almost powerless if offenders refuse to attend treatment. Under Proposition 36 in California, for example, nearly 1/3 of offenders sentenced to treatment in Los Angeles County either failed to show up or dropped out of treatment before completion. Drug-court participation also is down. "It's like a bark and no bite," L.A. County Superior Court Judge Ellen DeShazer told the Los Angeles Times in February. "It doesn't give you the same leverage."

This perceived disempowerment is the reason why drug courts have emerged as the leading opponents of the Prop 36-type initiatives in Florida, Ohio, and Michigan. "We were concerned that the coercive power of the courts would have been subverted significantly," said David E. Krahl, Ph.D., director of the drug-court program in Polk County, Fla.

Krahl is no "lock-em-up" ideologue; in fact, drug-reform advocates like Fratello would feel very comfortable with Krahl's viewpoint on the nation's approach to drug use and addiction. "The War on Drugs has failed miserably," said Krahl. "It's worse than Vietnam."

"I'm not saying we'd never support a ballot initiative, but we need to provide what's best for our clients," he added. "The ballot initiative in Florida did not go far enough in allowing drug courts the latitude and judges the judicial authority that drug courts rely upon. If they had, then I would have been out there getting signatures myself."

Krahl's biggest concern about the Florida initiative was that it did not allow the drug courts to impose short stints in jail (typically 3 to 15 days) as punishment for noncompliance -- what Krahl calls the "last car on the train" of intermediate sanctions intended to keep offenders in treatment, in the drug-court system, and out of the regular courts, where they would face significantly longer prison terms.

Comments from both sides of the issue suggest that compromise may be possible in shaping future reform efforts. "With the smallest accommodation, the drug-court system would be in the position to lead on these issues," said Fratello. "When all is said and done, the same people will be in charge, only under slightly different rules."

Prop 36 Success Stories from California

Many of the same groups that oppose the reform initiatives in Florida, Ohio, and Michigan -- drug courts, corrections officers, prosecutors, and lawmakers -- also opposed California's Proposition 36. Nonetheless, state voters approved the initiative by a comfortable margin in 2000. And despite some implementation headaches, backers of Prop 36 can also point to some successes in California that bolster their argument for reform in other states.

For example, the California prison population has dropped 20 percent in a year, treatment program populations are rising, and even critics concede that the plan is saving the state money when weighed against incarceration costs. The California Legislative Analyst's Office predicted that Prop 36 could reduce state prison operating costs by $250 million annually and eliminate the need for more than half a billion dollars in future prison-construction costs.

Fratello says that his group has used lessons learned in the California political and implementation process to fine-tune the initiatives in other states. In California, for example, loosely written legislative language left the money available through Prop 36 vulnerable to being used for purposes other than treatment; both the Ohio and Michigan proposals dictate the exact proportion of funding that must be used for treatment expenses.

Randy O'Brien, executive director of the National Council on Alcoholism and Drug Dependence's (NCADD's) Michigan chapter, typifies the conflicted feelings that advocates for treatment have regarding the ballot initiatives. "The carrot in the initiative is moving more money into the treatment system, so it expresses many of the things we've supported in the past," he tells Join Together. "Increasing access to treatment is a good thing. But our big concern is what's really behind it."

O'Brien worries that the real agenda for the backers of the initiative is drug decriminalization, a position that NCADD Michigan does not support. "I do believe that judges should be able to have control, to be the hammer," added O'Brien, who also is concerned that the initiative fails to distinguish between offenders who have legitimate addiction problems and those who are simply dealers or casual users.

Fratello, however, contends that the initiatives strike a balance between the harsh mandatory sentences imposed in some states, and the practice in others of sentencing most low-level drug offenders to probation, where they get little or no supervision or treatment.

The Campaign for New Drug Policies intends to relaunch its Florida campaign in 2004, and also is working on a similar initiative for the District of Columbia. Campaigns are also being contemplated for other states, though Fratello said no specific plans have yet been formulated.

Meanwhile, there are signs that the idea of favoring treatment over incarceration may be growing beyond ballot initiatives. In the state of Washington, for instance, a new law calls for reducing jail sentences for non-violent drug offenders and using the money saved on incarceration to pay for addiction treatment and drug courts. The measure was supported by local drug courts, treatment providers, corrections officials, and the state Division of Alcohol and Substance Abuse.

The Washington plan is expected to raise up to $8.25 million annually for treatment and drug-court programs.