VOTERS CAN DECIDE: ENFORCEMENT OR TREATMENT

If there is to be any seismic shift in the War on Drugs in Massachusetts
sometime in the near future, it will probably come directly from voters,
rather than their elected or appointed representatives.

Question 8, an initiative petition on the November ballot, asks voters to
change the current laws on drug-crime fines and forfeitures, first by
making it more difficult for authorities to seize property or assets
allegedly used in drug crimes, and second, by requiring that assets
properly seized be used for drug treatment, rather than more enforcement.

Nancy Drew, a former addict from Haverhill, says 'curiosity got the best of
me,' then she was hooked. She now suffers from kidney and liver disease.
Under current law, authorities can seize private property before its owner
has been convicted of any crime. The burden of proof is then on the
property owner to show that the property was not involved in a drug-related
crime. The proposed legislation would shift that burden of proof to the
government, eliminating a "guilty until proven innocent" situation,
according to its backers.

The proposal would also create a Drug Treatment Trust Fund, controlled by
the Legislature, to be used "solely for the treatment of drug-dependent
persons," according to a summary of the ballot question by the Secretary of
State's office.

The initiative has produced a fierce battle among some somewhat unlikely
opponents.

The Coalition for Fair Treatment, which backs Question 8, includes the
usual collection of civil-liberties and public-health types. But also on
board are high-profile prosecutors like former Attorneys General Scott
Harshbarger, Francis X. Bellotti and James M. Shannon. On the other side
are all 11 district attorneys in the state, along with the Massachusetts
Chiefs of Police Association.

According to opponents, the only people the change in the law would benefit
are drug dealers. Middlesex District Attorney Martha Coakley, president of
the statewide district attorneys association, contends that it would allow
dealers to repeatedly avoid prosecution by claiming they are
drug-dependent. And there is a money issue here as well. If all those
assets seized under current law go to treatment, they won't be going to
police departments any more.

"That (money) is what really funds enforcement," says Andover Police Chief
Brian Pattullo. "Without that, you're going to see enforcement diminish."

Ms. Coakley also argues that the law is a step toward decriminalizing
drugs, because it "gives judges unlimited discretion to dismiss charges
against repeat drug dealers ... following treatment, leaving them with no
criminal record."

And state Sen. James P. Jajuga, D-Methuen, who was a state trooper for 20
years, most of them spent fighting drug crime, contends that the language
of the proposed law is broad enough to allow major traffickers to avoid
prison sentences. "It says you're eligible for a treatment program if you
are at 'significant risk' of becoming an abuser," he says. "You can just
imagine what defense attorneys will do with that. They'll say that Johnny
failed the MCAS, turned to selling heroin because he felt he had no value,
and is at significant risk of becoming a drug abuser."

Sen. Jajuga says he is a firm believer in more and better treatment. But he
also says if treatment programs depend on funding from property seizures,
the funding will not be consistent. "You could get $1 million one year, $5
million the next and $100,000 the year after that. You can't treat
(addicts) that way."

And he contends that law enforcement desperately needs the money from
seizures to be able to fight its way "up the food chain" of drug dealing.
Most of the time, he says, the chain leads from a street corner, to a
private home, to New York City. If the seizure money goes away, "we'll be
going in the wrong direction," he says.

The Coalition for Fair Treatment dismisses those arguments, contending that
the district attorneys themselves have emasculated the mandatory minimum
sentencing rules by allowing offenders to "routinely plea bargain down to
offenses without mandatory minimums."

Beyond that, the Coalition contends that:

Judges say they rarely see "drug kingpins" in their courts, because the
district attorneys allow the big-time dealers to use their assets to
plea-bargain their way out of sentencing.

There is no accountability for how forfeited property is used. According to
one study by a Boston newspaper, up to 60 percent of the funds seized in
drug cases was not spent on drug enforcement.

Drug treatment works better than incarceration. The Coalition points to a
study by the state Department of Public Health that it says demonstrates
that. There are, however, some caveats in its conclusions. The study
reportedly showed that nine of 10 people who complete drug treatment in a
treatment setting are arrest-free for the year after their court appearance
(emphasis added). Of course, that course of treatment could last six
months. But the group says the recidivism rate for those incarcerated is 80
percent.