There are few issues on which Americans are as much out of sync with their elected leaders as they are on the so-called war on drugs: suppression of crops and traffickers abroad, interdiction at the border, criminal sanctions for users at home. If it's hard to find voters who believe U.S. drug policies are working, it's even harder to find politicians willing to recognize and confront that they're not.
For the past four years, Bill Zimmerman, with funding from billionaire financier and philanthropist George Soros and a few other deep-pocket libertarians, has been making a living exploiting that gap. Since 1996 Zimmerman's Campaign for New Drug Policies has managed to pass initiatives in seven states, from Maine to California, legalizing the medical use of marijuana, and chances are good he'll add a few more this fall. So far, his record is seven wins and no losses.
Now Zimmerman, a longtime California political consultant and liberal activist, is broadening the campaign, aiming to legalize the medical use of marijuana in two more states and running initiatives to reform asset forfeiture laws in Oregon, Utah, and Massachusetts (essentially by imposing a more stringent legal threshold before assets can be seized and by taking those seized assets from the cops and appropriating them either to drug treatment or to schools).
But the "granddaddy" of the campaign, in the words of campaign spokesman Dave Fratello, is California Proposition 36: If it passes in November, it will not only represent a substantial step toward decriminalizing the possession of all illegal drugs, from methamphetamines and PCP to heroin and cocaine; it will very likely send a message from one end of the country to the other.
The campaign's major backers, in addition to Soros, are John Sperling, president of the highly successful for-profit University of Phoenix, and Peter Lewis, head of Progressive Corporation, a large Cleveland-based insurance company. Together they've put some $15 million into drug reform and needle exchange programs, including roughly $1 million to qualify Proposition 36 for the California ballot. They are clearly capable of putting up a lot more, and probably will.
Zimmerman wouldn't call the goal of the measure decriminalization. But there's not much doubt that that's where at least some of his backers would like to go. Ethan Nadelmann of the Soros-funded Lindesmith Center-Drug Policy Foundation, who, in effect speaks for the Hungarian-born Soros on this issue, says Soros sees the incarceration of drug addicts as a "human rights issue" and regards the nation's drug laws as an area in which "the U.S. is not an open society." Certainly they hope that if voters approve Proposition 36, it will spur the campaign into other states.
On its face it seems an easy sell. It requires that anyone convicted only of possession of drugs "for personal use" be sent to treatment instead of prison, and it appropriates $120 million annually to provide the treatment services. It also requires that all parolees testing positive for drugs or charged with drug possession be sent for treatment rather than be returned to prison. According to the state's nonpartisan Legislative Analyst's Office, those provisions would result in the diversion of 24,000 drug offenders annually to treatment, thereby reducing state and county prison operating costs by somewhere between $240 million and $290 million and saving the taxpayers some $150 million annually. It would also save the state roughly $500 million in capital outlay for new prison facilities. If treatment succeeds on a wide scale, of course, it will presumably also reduce personal and family hardships by incalculable amounts. In early polls, it led by 66-20 percent.
But it's hardly a sure thing. The measure also establishes a complicated process to monitor and enforce compliance--one judge called it a byzantine system, "a procedural horror"--that sharply restricts the discretion of judges, many of whom already divert low-level offenders to treatment. And because it also covers GHB and other so-called date-rape drugs, and because it prohibits the use of any of that $120 million for drug testing, it raises questions that are being vigorously exploited by opponents: Why mess with the state's existing drug courts, which, while they handle only a small fraction of drug cases, have succeeded in getting many clients through treatment? Why make it hard to test offenders as they go through treatment, since testing, backed by the threat of jail, is widely regarded as the essential element in getting addicts to take treatment seriously? Why reduce the ability of judges to send noncompliant drug offenders to prison? Why include date-rape drugs, substances intended not for personal use but for assault on innocent victims?
Zimmerman replies that assaults are, of course, subject to criminal sanctions; the measure does not cover drugs that are to be used on others. In any case, he points out, the date-rape drug of choice is alcohol, which is legal. As for the testing issue, he says there's plenty of other money for testing--certainly the initiative doesn't forbid it, as some of the opponents charge. But it's also true that his backers see testing--such as spot testing of workers even in nonsensitive occupations and drug screening of high school and college athletes, and occasionally of all high school students--as another corrosive invasion of personal liberty. Zimmerman acknowledged that they wanted to include a flat prohibition against testing until "our initial polling showed that drug testing is popular."
Proposition 36 has the endorsement of the California Nurses Association, the state's alcohol and drug abuse counselors, some local medical societies, and the state AFL-CIO. It also is supported by a smattering of California politicians, most (though not all) of them Democrats, including Senate President Pro Tem John Burton. But the opponents, led by the California Correctional Peace Officers Association (CCPOA), the state's politically muscular prison guards union, and including virtually every other major law enforcement organization in the state--police chiefs, sheriffs, district attorneys, drug court judges--will be formidable.
Because the CCPOA not only has a reputation as a major player in California politics but has a membership with an obvious financial interest in keeping the prisons full, it's tried to lower its profile: For a few weeks this summer, you couldn't find the organization on any of the opposition lists. "We're seriously involved in the campaign," said CCPOA Political Director Jeffrey Thompson, "but we're not going to give them an easy target." But in the cat-and-mouse games of initiative politics, that could easily change. The screws, who put more than $1 million into Republican Governor Pete Wilson's last campaign and ponied up more than $2 million for Democratic Governor Gray Davis's gubernatorial campaign two years ago, could easily write another big check before it's over.
One thing that gives this contest national significance is that both sides have firmly declared themselves to favor treatment over incarceration whenever possible. Both say that the nation's drug policies aren't working. Both have liberals and conservatives among their supporters. (The nos were delighted when they enrolled actor Martin Sheen, a fully certified lib, as their honorary chair. The supporters include U.S. Senate candidate and Republican Congressman Tom Campbell as well the conservative Orange County Register. Drug policy makes strange bedfellows.) Both argue that there are too few treatment facilities and that waiting lists are too long. All of this is to say that on the surface the California argument seems to be largely over the details, which may be another reason the prison guards have taken such a low profile and why the managers of the no campaign have encouraged the state's drug court judges, who already supervise diversion and treatment of a relatively small number of nonviolent addicts, to be the leading spokespeople against it.
The drug court judges assert that they already do precisely what Proposition 36 aims to do, but that they have the clout and flexibility, along with the use of drug testing, to quickly impose consequences on those who don't cooperate. Proposition 36 would take away their discretion and clout by requiring treatment in most cases and by making it procedurally more difficult to throw convicted addicts who do not take their treatment seriously into jail for a day or two (and thus scare them straight). "Nobody says that the existing [punishment-based] system works," says Alameda County Superior Court Judge Peggy Hora. "We're showing that favoring treatment over incarceration is not tantamount to political suicide. But this initiative does not promote recovery and treatment. If [its backers] want flat-out legalization, let them say so."
Zimmerman responds that the drug courts are a fig leaf for a failed policy that's crowding the prisons with nonviolent drug offenders. The United States, with its two million prisoners, has far and away the largest number of incarcerated people of any country on earth--"nearly one of every four on the planet, and that's almost entirely the consequence of the drug war. And California is the worst offender of them all." But behind the statistics hide all manner of other disputes. No one is certain, for example, how many drug-dealing arrests are plea-bargained down to simple possession charges, or how many parolees, nominally re-jailed for failing a drug test, were in fact called in for a drug test because they were thought to be committing more serious offenses. Almost no one is in prison merely for possession, says Santa Clara County Superior Court Judge Stephen Manley. "It just doesn't happen."
It's at this point that the statistical debate begins to edge into the question of legalization. How many minor offenses would be prevented if possession of at least some drugs were decriminalized? Proposition 36, Zimmerman says, is meant "to express dissatisfaction with the war on drugs," and to stake out a middle ground that will "make this something that politicians can talk about." But Proposition 36 is also touched by the libertarian predilections of its backers. In the end, it does squint toward legalization.
Nadelmann says that Soros, with his experience with democratization in Eastern Europe, "was offended that there is no open dialogue" on the drug issue in this country. He and his colleagues had hoped their victories with the marijuana initiatives would get more respectful attention from Congress, though in fact they got almost none. But "if Proposition 36 wins in California, we'll take it to Congress." Their political problem stems from the fact that the very initiative process they're using has forced them to offer an inflexible proposal that's vulnerable to criticism from people who can legitimately claim to have the same humane objectives they do. "This is a complicated problem," Manley says. "Proposition 36 assumes there's a simple solution." But the very fact that it's being debated on these terms indicates the extent to which both sides believe that the public is ready for reform. Even if it loses, it could well open the door to further reform--it may thus win even by losing. And that, ultimately, may be what Zimmerman, Soros, and company are counting on. ¤
Peter Schrag is the author of Paradise Lost: California's Experience, America's Future and former editorial page editor of The Sacramento Bee.