The battle over California's recently defeated Proposition 5 has led to a schism between drug courts and addiction treatment providers -- putative allies in the drive to shunt drug offenders into treatment rather than prisons -- with advocates on both sides lamenting a lost opportunity to reform a justice system that most agree places too much emphasis on punishment and not enough on rehabilitation.

When the Nonviolent Offenders Rehabilitation Act (NORA) was shot down by about a 60-40 margin in November, it was partly due to the advocacy efforts of drug-court judges, who allied themselves with law enforcement, prison guards, and some prevention groups in opposing the measure. NORA backers, who undertook a low-key campaign to build on and improve the Proposition 36 reforms approved by state voters in 2000, instead suffered a unexpected and crushing defeat.

NORA opponents cast Prop 5 as the work of drug-legalization groups like the Drug Policy Alliance (DPA), saying it diluted drug-court judges' power to hold offenders accountable if they failed in treatment. In announcing its opposition to NORA, the National Association of Drug Court Professionals (NADCP) cited concern that the measure would "extend DPA's influence at the expense of public safety, proven judicial interventions, and DPA's political and philosophical adversaries; [and] endorse treatments and practices associated with the harm-reduction and legalization movements that are unproven and objectionable."

The pro-NORA forces were indeed led by the DPA (which does not officially endorse drug legalization but has championed medical marijuana and marijuana decriminalization laws nationally). Supporters and opponents of the measure described the drafting of the measure as a closed process, with those outside DPA learning details of the plan only when it was certified for the state ballot.

"We did discuss the contents with experts in academia, judges, some in law enforcement," said Margaret Dooley-Sammuli, DPA's deputy Prop 5 campaign manager and deputy state director in California, "but it's absolutely correct that we did not seek the consensus of the addiction field or law enforcement."

Regardless, the ranks of Proposition 5 supporters included the bulk of the "mainstream" addiction groups in California, including the California Society of Addiction Medicine, the California Association of Alcoholism and Drug Abuse Counselors, the Coalition of Alcohol and Drug Associations, the California Association for Alcohol and Drug Educators, and prominent individual groups like Phoenix House and a pair of NCADD chapters.

A review of the No on Proposition 5 website shows that NADCP was joined  by law enforcement groups, some state lawmakers and civic groups, and prevention organizations such as D.A.R.E. America, Mothers Against Drunk Driving (MADD), Californians for Drug Free Schools, and a variety of conservative antidrug groups, including the Drug Free America Foundation.

'Locking Horns'

Doug Marlowe, chief of science, policy and law at NADCP, was dismissive of the state treatment community's support for NORA. "There were some California providers in favor of NORA because they would have benefitted [financially] from it," said Marlowe.

Marlowe expressed concern, however, that the battle over NORA had driven a wedge between drug courts and treatment providers. "There is no drug court without treatment," Marlowe said. "To say that we are locking horns may be true, unfortunately, but it's not what we want."

"We are very clear that we are in favor of treatment and that drug courts are an alternative to incarceration," he added. "We're not a law-enforcement group, we're not a punishment group -- we are a treatment-support group."

NORA supporter John DeMiranda, executive director of the National Association on Alcohol, Drugs and Disability and Pacific Southwest regional representative for Faces and Voices of Recovery, said that the treatment community in California "jumped on the bandwagon and talked about NORA as a treatment initiative," even though DPA mainly cast Prop 5 as a drug-policy reform effort. Some California treatment providers were reluctant to back NORA, but DeMiranda contended that this had less to do with DPA's involvement than fear of bucking the criminal-justice programs that control their funding.

"If we were to do our own initiative it would be very different, and the politics would be very different," said DeMiranda. However, he scorned the state's drug courts for failing to embrace the reforms embodied in NORA. "We need wholesale decriminalization, not retail decriminalization," said DeMiranda, noting the relatively small number of clients currently served by drug courts.

For DPA, Tried-and-True Meant Go-it-Alone

Both DeMiranda and Marlowe said that DPA erred in not allowing the addiction field and drug courts greater involvement in drafting NORA, although DeMiranda said that the compromises that likely would have resulted -- such as allowing for more sanctions or removing language related to marijuana decriminalization -- probably would have cost DPA the financial backing needed to forward the measure.

"George Soros doesn't want to expand treatment -- he wants progressive reform," DeMiranda said.

Marlowe said that the "all or nothing" approach taken by DPA forced drug courts and others to choose sides rather than compromising. "As a result, groups that have shared interests couldn't come together," he said.

NADCP has a long list of concerns with NORA, but Marlowe said there were a number of areas of agreement, including the initiative's general philosophy of providing treatment rather than incarceration, greater emphasis on needs assessment, and added accountability for offenders compared to California's earlier attempt at shunting more offenders to treatment, Prop 36.

"Drug courts could have had common ground with [DPA], but it was too late," said Marlowe.

Building a broader coalition might have helped neutralize opposition to NORA, but Dooley-Sammuli pinned blame for NORA's overwhelming defeat largely on ballot language that emphasized the cost of Prop 5, combined with the economic collapse in October.

She said DPA based its go-alone strategy on a string of previous successes with ballot initiatives in other states, and added that while "we're not afraid to try to talk to folks," the group had felt burned by the experience of working with drug-court judges on a bill that modified Prop 36 -- and ultimately included jail sanctions opposed by DPA. "We made a good-faith effort, but in the end it was a case where consensus meant wanting us to agree with them," she said.

Post-NORA: Confronting California's Looming Budget Crisis

The defeat of NORA may have been seen as a victory by some in the prevention and drug court community, but few are celebrating the loss of potentially hundreds of millions of dollars in new state spending on treatment that would have been mandated by Prop 5.

Moreover, the treatment community is facing potentially catastrophic budget cuts as California grapples with a $28-billion budget shortfall, with continued treatment funding possibly hanging on legislative approval of an alcohol tax increase proposed by Gov. Arnold Schwarzenegger.

DPA officials, members of the California treatment communities, and other NORA backers met on Dec. 3 to discuss the future of drug-policy reform efforts in the state.

"We are definitely open to compromise going forward," said NADCP's Marlowe, who said he was unaware of the meeting. "NORA did take some steps forward in terms of accountability and sanctions, but in our opinion erected too many barriers to applying them ... We are absolutely open to a conversation about shared interests and values with DPA."

"We'd love to have an amazing coming together of NORA opponents and supporters, but time is running out," responded Dooley-Sammuli. "I don't know how it's going to play out when we're looking at dramatic budget cuts in the next few months."

DeMiranda expressed a similar hope for cooperation around the state budget issue but also said that California's treatment and recovery movement needs to find it own voice on drug-policy reform issues, such as by pushing forward its own "people-powered" treatment-funding ballot initiative in 2010.

In the wake of the NORA defeat, "It's no longer possible for [the treatment and recovery community] to piggyback on public sentiment," said DeMiranda. "We have to get our people to the ballot box so it's not so easy ... to demonize this kind of initiative."