BOTH SIDES AGREE ADDICTS NEED HELP, BUT WHAT KIND?

Jeremy Saunders quietly acknowledges not only that he smoked
marijuana, but that he didn't admit it until a urine test caught him.

``Ten dollars and two days jail time - you want to do garbage
pickup?" replies Alameda County Superior Court Judge Peggy Hora.
Saunders, a 20-year-old former methamphetamine addict, nods his
assent.

Moments later, Cindy Silva steps up with her 5-year-old son, Josh.
She has stayed clean and tried hard to make it to the required number
of support group meetings each week, so Hora tells her to come back
in a week.

``I came into this program really reluctantly," the 31-year-old
mother from Castro Valley says outside the courtroom, adding jail
alone never helped her kick her methamphetamine habit. ``Once the
freedom was given back to me, I went right back to addiction."

Clean for a year now, Silva said Hora's drug court has helped her fly
straight. She remembers Josh watching as she was handcuffed and taken
away in a police car one Mother's Day, and she vows that will never
happen again.

There's no disputing that drug courts - where those convicted of drug
possession are ordered to undergo treatment under threat of being
sent to jail - have changed people's lives.

On Nov. 7, a ballot initiative facing California's voters could
change how these courts work, some say for the better, others say for
the worse.

The battle over Proposition 36, the Substance Abuse and Crime
Prevention Act, isn't about whether or not drug courts are a good
thing - the initiative's staunchest foes are those who run
California's drug courts now, including Hora.

Both sides agree drug addicts need treatment, but that's where the
agreement ends.

Those who back Proposition 36 say America's pell-mell war on drugs
has put many Californians behind bars for simple drug possession -
state prison estimates range from 19,000 to 36,000, and many more
languish in county jails.

But the measure's opponents say almost nobody is behind bars for
simple drug possession alone. Prisoners whose records show drug
possession as the primary offense usually have prior convictions, or
have plea-bargained down to a simple possession count from more
serious crimes such as possessing drugs for sale.

``The idea we are clogging up our prisons ... with people who only
have drug problems is absolutely wrong," said Alameda County Superior
Court Judge Richard Iglehart, who presides over another drug courts.

Proposition 36 campaign manager Dave Fratello counters that if the
measure makes prosecutors stop plea-bargaining more serious cases
down to simple possession, so be it.

``We're talking about a huge number of drug dealers who will be
charged as drug dealers, and we support that," he said. ``Let's
charge the people with the crimes they're guilty of and not let them
off on a lesser charge."

There are other disagreements. For one, opponents say Proposition 36
would swamp courts with far more trials than they can handle.

Alameda County District Attorney Tom Orloff said almost all of the
approximately 2,700 simple drug possession cases his office filed in
1999 ended in plea bargains. Plea bargains are a fact of life in
modern criminal justice; Alameda County has only enough courtrooms,
judges, prosecutors, public defenders and other resources to hold 200
to 250 jury trials per year.

But under Proposition 36, someone convicted of a first-or second-time
simple drug possession would be guaranteed diversion to treatment,
with no threat of jail. Orloff said most people charged with this
crime probably would choose to roll the dice and insist on a jury
trial - that way, there would be a chance of beating the rap, and a
conviction would bring the same result as a plea bargain would have
brought.

Courts would be overwhelmed and unable to provide speedy trials for
all those people, Orloff said. And if those defendants refuse to
waive their right to a speedy trial, judges might have to dismiss
cases without any punishment or treatment at all.

Fratello said that hasn't happened in Arizona, where a system similar
to Proposition 36 already is in place.

``It's logically possible that some people will take their cases to
trial to try to beat the rap, but it's not likely that anywhere near
a majority of them will do so," he said. ``The much more common
result is that people plead guilty because they want treatment, and
if jail isn't an option there's no reason to go to trial."

A second problem, opponents say, is a simple matter of options. Now,
when someone comes before a drug court judge, that judge has many
choices - the person can be sent to Narcotics Anonymous meetings, can
be tested for drugs with varying frequency, can be sent to a wide
variety of outpatient or residential treatment programs, can be sent
to jail for anywhere from a few days to a few weeks.

Proposition 36 sets up a more rigid structure, which opponents see as
badly flawed. They say judges must be able to rely on their
experience and upon each defendant's unique set of personal
circumstances when deciding how to proceed with a case. One size
doesn't fit all.

For another, they say this part of Proposition 36's structure would
further strain judicial resources. When someone who has been ordered
into treatment violates his or her probation by failing a drug test,
the judge would have to hold a time-, space- and money-consuming
hearing to jail him or her; otherwise, all the judge could do would
be to send that person to different treatment.

``This totally takes the teeth out of what sanctions a judge can
order," Iglehart said.

Not at all, Fratello insists.

``This initiative allows a tremendous amount of flexibility for
judges to adapt the monitoring conditions and the consequences to
each individual situation," he said. ``This doesn't say `one size
fits all' in terms of what treatment people go to, or how they're
monitored, or what happens if they fail."

True, he acknowledged, judges wouldn't be able to just order jail
time as they can now. But Fratello said today's system - in which
defendants upon entering the program waive their rights to contest
the judge's rulings - is flawed.

``I'm not going to say that system is being abused by judges now, but
as a statewide system, I think a lot of defendants would not be
treated fairly," he said. ``The drug court relies on having
motivated, compassionate judges ... and not all of our judges are
compassionate and motivated to try to help addicts."

By forcing judges to hold formal hearings before jailing anyone,
Prop. 36 ``puts some basic due process protections in," he said.
Besides, he added, ``probation violation hearings can be pretty quick
- - `Did you test positive for drugs or not?' That's going to be the
most common probation violation here, and medical evidence doesn't
lie. It's hard to believe that will take more time than the drug
courts already use in processing their cases."

The third problem, opponents say, is that the initiative's $120
million price tag includes no spending for drug testing. Such
testing, they say, is the only way judges can know whether people are
staying clean.

The proposition's backers say the state and federal money that pays
for testing in drug courts now will still be there if Proposition 36
goes into effect. Foes claim the political reality is that lawmakers
most likely would divert much of the money now spent on testing into
meeting that $120 million obligation.

Fratello doesn't believe that will happen, and disputes opponents'
claims that Prop. 36's backers are hostile to the very idea of
testing.

``Will drug offenders be tested under Prop. 36? Of course," he said.
``The very people who are complaining about this now are the judges
who will be in a position to order it."

Also, Fratello suggested, offenders could be required to pay for
their own testing; at $4 to $7 per test. Courts could design a random
screening of with six to 10 tests per month.

``You're going to catch relapses, and it seems like a minimal demand
to put on somebody who's trying to stay out of jail," he said, then
added that ``if more money really is needed, let's get some rational
projections of that need together and go to Sacramento together and
get that money."

Proposition 36's issues have been obscured, at times, by political
mudslinging. The sides have argued over whether campaign website
names were fair; over campaign funding sources; and even over whether
anti-proposition spokesman Martin Sheen is a concerned person whose
family has been touched by drug abuse, or an elitist celebrity snob
who wants to deny poor people the kinds of treatment options
available to the rich.

But in the end, despite the political hoopla, it's all about people
like Jeff Adams.

The Danville 39-year-old is a recovering methamphetamine addict who
has been clean for 17 months. He goes to three or four support group
meetings per week, and makes monthly visits to Hora's Hayward
courtroom.

``It's human psychology - nobody wants to go to jail," he said, then
nodded toward the courtroom. ``They got me when the handcuffs were
still on me, and it definitely works. Just let them keep doing their
thing."