ARIZONA'S ANTI-DRUG GAMBLE: TAKING JAIL OUT OF THE EQUATION

PHOENIX - The prisoners shuffle through the basement courtroom in striped
uniforms, their hands cuffed and legs shackled. They were caught with pot
or crack or crystal meth and are guilty of drug possession, yet a law
unique to Arizona sends them not to prison, but back into the world.

Their mandatory sentence is probation and drug treatment. Even if they
violate the rules of their release, the new law prevents them from being
put behind bars. If Monopoly were the game, this would be a Get Out of Jail
Free card.

The Arizona strategy, approved on the 1996 ballot as Proposition 200, is a
law enforcement adventure being watched by a divided national criminal
justice community ever on the lookout for antidotes to America's drug
problems. It represents a swing of the pendulum away from incarceration as
first and last resort.

Americans are spending an estimated $40 billion a year to house 2 million
state and federal inmates. Mandatory minimum sentences and three-strikes
laws have proven popular. But the fact that voters in a conservative state
have twice approved Arizona's experiment suggests to advocates that the
political mood about nonviolent drug crime is shifting.

Another indicator of the shift is the nationwide boom in drug courts. All
50 states and the District now have drug courts that offer alternatives to
imprisonment based on evidence that drug treatment can change troubled
lives. More than 500 courts are in existence, with at least 150 in the
planning stage.

"Statistically, they do work, but they should be reaching a larger
population," said former Howard County prosecutor Susan Weinstein, now
chief counsel for the National Association of Drug Court Professionals. "I
think people just don't have enough information on them. They see
'alternative to incarceration' and they conclude 'soft on crime.' "

The amount spent to incarcerate drug offenders has soared in the past two
decades. More than 450,000 men and women are imprisoned in the United
States on drug charges, compared with about 45,000 in 1980, according to
Marc Mauer, assistant director of The Sentencing Project, which promotes
alternatives to imprisonment.

"What we're seeing is a trend where, when concrete alternatives are offered
to harsh sentencing policies, the public is very receptive and endorses
them quite heartily," Mauer said. "The broad positive experience of drug
courts. The Arizona experience. The effort by prosecutors to divert drug
offenders into treatment. There's remarkably little criticism for any of
these approaches despite the supposedly get-tough ideology that we're
living in."

Next month, California voters will consider an initiative patterned after
Arizona's. Under California's Proposition 36, nonviolent suspects convicted
of drug possession would be sent into drug treatment for as long as a year,
followed by as much as six months of follow-up care. Only if offenders
refuse treatment or fail several times to abide by their probation rules
could they be sent to jail.

Critics contend the law would not be strict enough to be effective. The
same complaint has been lodged against the more lenient Arizona program.

If approved by voters, the law would divert as many as 36,000 inmates a
year from California's prisons and jails, according to a nonpartisan state
analysis. It would reduce incarceration costs by at least $240 million a
year, while providing $120 million annually in new money for drug
treatment. It also could eliminate the $450 million to $550 million cost of
a new penitentiary.

Cutting Recidivism and Costs

Face-pierced, blond-haired, 22-year-old Robert Miller wears baggy jeans and
a T-shirt that says "Freak." Leaning back in a chair at the Desert Winds
drug treatment program in Mesa, Ariz., he smiled as he told the story of
his arrest this year on a cocaine possession charge.

"I thought I was going to jail for a long time. It definitely protected
me," Miller said of Proposition 200. "It's giving me a chance to
rehabilitate myself."

Miller said he used a smorgasbord of drugs, from LSD and mushrooms to
methamphetamine. He was doing 3.5 grams a day of cocaine when he was
arrested. "Stupid choices," he said. "Dumb."

Under Proposition 200, Miller spent two months in jail awaiting his court
date, then went free, sentenced to three years' probation, 360 hours of
community service--he cleans the probation office on weekends--and a $2,000
fine.

Time will tell whether Miller stays clean. True addicts often need more
than one treatment stay to break their habits. Proposition 200, in fact,
gives people a second chance. On their second arrest for possession--if
they are not dealers and do not have a violent past--users receive another
dose of treatment, this time facing a possible maximum sentence of one year
in jail. Only on the third charge is state prison an option.

An Arizona Supreme Court study of Proposition 200's first year showed that
77 percent of 2,622 offenders tested drug-free at the end of their
outpatient treatment programs. By diverting hundreds of lawbreakers who
would have gone to prison, the court estimated, the state saved $2.5
million in corrections costs. Updated numbers are expected early next year.

Money is a key part of the Proposition 200 debate. Taxpayers around the
country spend ever larger amounts to imprison drug offenders. In Arizona,
for example, 758 people were behind bars on drug charges in 1985, according
to the Department of Corrections. This year, the number is 5,412.

It costs about $19,000 to feed, house, guard and tend to an Arizona inmate
for one year. The cost of 12 months of probation is about $800, a price
that roughly doubles when drug treatment is added. Offenders are required
to pay a percentage of the counseling bill.

Supporters emphasize that Proposition 200 provides $6.4 million in new
anti-drug dollars from the Arizona liquor tax. Half goes to treatment,
providing an increase of 3,600 slots annually, and half goes to prevention.

"I love all the treatment money that we have" due to Proposition 200, said
Barbara Broderick, Arizona's director of adult probation and author of the
Supreme Court study. "It works and it works well. Lower recidivism rates
and higher drug-free periods."

Yet she believes Arizona needs more funding, particularly for long-term
residential beds, which many treatment specialists consider crucial to
reaching hard-core addicts. For financial reasons, the state has few
residential slots and treats only a fraction of its drug-addicted
offenders. A Maricopa County official said 16,000 county residents on
active probation needed drug treatment last year, but only 3,500 received it.

Broderick, amid her enthusiasm, also voices a worry shared by others since
Proposition 200 took effect: "My worst nightmare is we're going to have
someone on methamphetamines and he will do something violent and we will
lose all the positive results we've had."

To Critics, a Penalty Is Missing

The fear that a violent act will shift public opinion and bring an end to
the program stems partly from criticism that the law is all carrot and no
stick. The more typical drug court model includes penalties for
misbehavior, whether a failed drug test or a missed treatment session. If
the behavior continues to worsen, the sanctions stiffen.

The Arizona program can only urge violators to try harder, not send them to
jail for a day or a month. Some frustrated judges feel they have little
choice but to terminate probation and wait for them to commit another crime.

"Not everyone who has been arrested is interested in not using drugs," said
one Arizona judge who asked not to be identified. "It's an incredibly
manipulative group of people. They lie to everyone else. They lie to
themselves. We spend a large amount of time running after them."

One of Proposition 200's most vociferous critics is Richard Romley, the top
prosecutor in Maricopa County, which encompasses Phoenix and 60 percent of
Arizona's population. He believes the 1996 ballot measure was a thinly
disguised step toward legalization, what he calls a Trojan Horse.

Law enforcement, reports Romley, "has become very, very, very difficult."
He said 25 percent of the Proposition 200 defendants in Maricopa County are
terminated from probation because "they're just thumbing their nose at the
court."

Romley favors drug treatment, but describes the extra $3.2 million for
treatment under Proposition 200 as "chump change." He believes the law will
lead "absolutely" to an increase in drug use and crime because "we don't
have the ability to hold jail over their heads."

One unlikely seconder of Romley's view might be 23-year-old Patricia
Coniglio. She said the prospect of years behind bars finally turned her
away from methamphetamine. Her Proposition 200 probation went well, but she
returned to drugs. Only when arrested for a car insurance scam did she see
her future differently.

"When I was off probation, I wasn't planning on quitting drugs," said
Coniglio during a Desert Winds treatment session. "It was when I didn't
want to go to prison that I quit. Because I was scared."

The emerging consensus holds that treatment, one way or another, is a
critical part of what works.

"Now it's just a matter of figuring out how we do it, and finding the
money," said Zachary Dal Pra, a Maricopa County adult probation supervisor.

Norm Helber, who retired last month, is Dal Pra's former boss. For 30
years, mostly in New Jersey, he worked with probationers. He watched prison
populations climb, and he watched the numbers of incarcerated drug
offenders reach more than 400,000 nationwide.

"Our community seems to be overwhelmingly in favor of more treatment and
less punitive measures," said Helber. "Yet a half-million nonviolent
offenders are in prison because of this crazy war we've been waging. I feel
strongly that we should be treating prisons as a very scarce resource, that
we should be using our prisons for the ones we're afraid of, not the ones
we're mad at."