PROP. 36 FOES SAY IT CURTAILS OPTIONS THAT JUDGES NEED IN DRUG SENTENCES SACRAMENTO -- Support for judicial discretion has become the battle cry for the opponents of Proposition 36, which would divert some drug offenders from jail to treatment. It's an unlikely slogan for some of these law enforcement groups because they have strongly supported initiatives in the past that severely limit a judge's decision-making power. Opponents say Proposition 36, which would make far-reaching changes in California's criminal justice policy, should be rejected because it would take away too much authority from judges to sentence drug users. And the campaign against the initiative has found a wide range of representatives to deliver this message, from actor Martin Sheen to dozens of the state's drug court judges. Foes of the measure have focused on judicial discretion in part because nearly all of them support a key component of the measure: providing $120 million a year for drug rehabilitation. "I desperately want the $120 million for treatment, but I don't want all the strings attached," said San Diego County Superior Court Judge James Milliken, a leading opponent of the measure. Supporters, however, insist that the measure is flexible. "It changes some of what judges can do now," said Dave Fratello, spokesman for the backers of the measure. "But it's an extremely flexible system." Supporters are trying to convince voters that addiction should be dealt with as a medical, rather than a criminal justice, problem. Backers of the measure, which is funded in part by billionaire New York financier George Soros, will once again enjoy a huge spending advantage. They are spending about $1.5 million on radio and television advertising, nearly 10 times the budget opponents have. One reason is that the prison guards union decided to spend only about $100,000 to defeat the measure. Proposition 36 would divert nonviolent offenders and parole violators on their first and second drug-use convictions from incarceration to treatment. The Legislative Analyst estimates it would save about $190 million a year in operating costs and about $500 million in one-time prison construction costs. Under current law, a judge can sentence drug users to treatment or up to one year in county jail and three years in state prison. Proposition 36 also changes sentencing provisions for drug users who have more than two convictions. They can get 30 days or probation. Still, a defendant sentenced to probation and treatment could face up to one year in jail or three years in state prison if he or she violates the terms of probation. Drug-related violations range from testing positive for drugs to skipping treatment to a new arrest for felony drug possession. The first drug-related violation could lead to a a revocation of parole, but only if a judge decides the offender is a danger to others. The second drug-related violation could only lead to jail if a judge decided an addict was a danger or not amenable to treatment. The third violation could lead directly to jail or prison. "They've built in hurdles for the court, which make it nearly impossible to revoke probation," said Larry Brown, executive director of the California District Attorneys Association. But Fratello points out that the ballot measure is written in such a way that it makes it much easier to send an addict to jail who violates a probation provision that's not related to drug treatment. Such provisions could include failure to pay fines, attend meetings with probation officers or appear in court, he said. That's on purpose. "We wanted to make sure that a person who relapses is given more chances, but we didn't want to allow someone to be able to thumb their noses at other court orders," he said. Fratello expects judges to set up strict, non-drug-related probation conditions for some repeat drug offenders to provide them with incentive to follow orders or face incarceration. Drug court judges object because the measure doesn't provide for the kind of two-and three-day jail terms that they say make drug courts so effective at scaring addicts straight. But Fratello believes some judges will try to get around that by citing defendants for contempt of court or holding them temporarily in jail for revocation hearings. Fratello said he's surprised that opponents are so concerned about judicial discretion. Prison guards and prosecutors, he pointed out, have been strong supporters of ballot measures that place significant limits on a judge's decision-making power, including the "three strikes" sentencing initiative and the juvenile justice measure.
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