Download this PDF outlining some WHOPPERS! told by our opponents...

A Quick Analysis of our Opponents' Arguments

The initiative doesn't require drug testing of offenders, and it prohibits the money in the initiative from going to drug testing. You can't have a serious treatment program without drug testing. This means no accountability, and no way for judges to know who is complying and who is not.

Wrong. Drug testing is a part of court-supervised drug treatment everywhere in California today, and it will continue to be under Prop. 36. There are no legal barriers to drug testing. Judges can and will order appropriate levels of testing of offenders placed in treatment under the initiative's system; Prop. 36 simply does not tie judges' hands by prescribing a one-size-fits-all regimen for all offenders. A positive drug test can be treated as a violation of probation. Judges can also require individual offenders to pay for their own drug testing, as they do now in the "drug court" system, if they can afford it. (The cost of a test can be $4 to $7 per test.) The fact is, tens of millions of dollars in state and federal funds already go to drug testing of criminal offenders through the court system and probation system. If more money is needed, this can easily be appropriated from the hundreds of millions of dollars saved each year by this initiative. Prop. 36 merely requires that its monetary appropriation for treatment programs must go to providing treatment services, where the need is so great.

The initiative eliminates the consequences for relapse or failure in treatment. Judges cannot put these people in jail. No drug abuser is going to take the program seriously when there is no accountability.

Wrong Any drug offender who fails treatment, or does not show up for treatment, can have probation revoked, and will be sentenced under current law, which provides for one to three years in jail or prison. The threat of serious prison time acts as an incentive for offenders to comply with their required programs. To monitor people placed in treatment under Prop. 36, judges will set a range of conditions of probation for each offender, including regular drug testing, court appearances and other restrictions. Upon any violation of any condition of probation, the judge may either intensify the form of treatment required, or drop that person out of the system entirely by revoking probation. Upon the third violation by a defendant, it is mandatory to revoke probation.

The initiative allows sexual predators who use "date rape" drugs to avoid prison, and go to drug treatment programs instead.

Wrong The act of drugging another person, or committing a sexual assualt, constitutes a crime separate from drug possession for personal use. No one who commits another crime is eligible for diversion to a drug treatment program for their drug possession offense [see Sec. 5(b)(2) of the initiative]. If a person is merely caught in possession of a "date rape" drug, before committing a rape, that person is still not eligible. This initiative only applies to people who are convicted of "unlawful possession, use or transportation for personal use" of any controlled substance [emphasis added]. No one who possesses a drug for any purpose other than personal use - for distribution, or to use to enable sexual assault - is eligible for diversion to treatment. On August 11, Prop. 36 opponents were forced to remove a statement from their ballot pamphlet materials in which they made this allegation, because a judge found it to be false and misleading. Judge Lloyd Connelly deleted an argument saying “sex offenders” with so-called “date rape” drugs could avoid jail if the initiative passes, “even though their drugs were intended for victims, not themselves.” Still, many opponents continue to rehash it.

Prop. 36 encourages "fly-by-night" treatment programs run by unscrupulous individuals. Such programs could even consist of internet chat rooms or videotapes instead of real treatment.

Silly. Three levels of government have a role under Prop. 36 in ensuring that drug offenders are only sent into quality programs. First, all treatment programs must be licensed and certified by the state Alcohol and Drug Programs office. Next, counties receive the funds provided by the initiative, and county officials will decide which programs to pay for. Finally, judges decide which treatment programs drug offenders must complete. With these safeguards in place, there is no reason to believe slipshod programs will flourish under Prop. 36.

The courts will become clogged with jury trials for drug cases, since defendants will know that the worst sanction they can get if convicted is drug treatment.

Wrong While it's impossible to predict exactly what will happen if the initiative becomes law -- opponents claim to know the answer now -- simple logic suggests there would be far more trials now, when a jail or prison sentence is the possible result of a conviction. With treatment mandatory upon a first or second conviction, drug possession defendants will have little or no incentive to go to trial. Quite the opposite: pleading guilty will make sense in most cases. In Arizona, where a similar program has been in place since 1996, there is no evidence that drug defendants have suddenly begun to fight drug charges at trial. This confirms the unlikelihood of this result in California if Prop. 36 passes. Some opponents claim that defendants will fight drug charges in order to stay out of treatment. If a defendant's motive for going to trial is merely to avoid treatment, because he or she does not want it, another option is available. Any defendant may formally refuse treatment and face sentencing under current law, without reference to Prop. 36. This option renders a trial unnecessary.

Drug treatment programs that last longer than 12 months are excluded from receiving funds under the initiative. And successful in-custody treatment programs in jails and prisons will have to be closed down, because they are prohibited by the initiative.

Wrong Many kinds of programs will receive funding from the initiative, as well as payments from offenders who are required by the court to pay their own way. A limitation applies to how long an individual may be court-ordered to attend a program -- 12 months plus up to six months of additional aftercare services, a total of 18 months, the standard now in many similar programs. Offenders who are placed in longer-term programs may remain, and such longer-term programs may receive the initiative's funds to pay for that offender until his or her mandatory term expires. Residential treatment programs will receive clients and funding under the initiative, but "in-custody" programs within jails and prisons will not, since they will not be taking clients diverted under the initiative. The initiative has no effect at all, positive or negative, on "in-custody" programs.

By allowing parolees to go into treatment programs if they test positive for drug use, this initiative will allow murderers, child molesters, child molesters and rapists to stay out of prison when they violate parole by using drugs.

Wrong No parolee who has any prior convictions for a serious or violent felony will be eligible for diversion to drug treatment, rather than prison, for a positive drug test or other drug offense. California law already contains comprehensive, specific lists of such felonies, which are referenced by the text of Prop. 36. Quite simply, the initiative's parole diversion section excludes: "any parolee who has been convicted of one or more serious or violent felonies in violation of Penal Code sections 667.5(c) or 1192.7" [Sec. 6(b)(1)].