DECLARING WAR ON THE DRUG WAR

There are few issues on which Americans are as much out of sync with
their elected leaders as they are on the so-called war on drugs:
suppression of crops and traffickers abroad, interdiction at the
border, criminal sanctions for users at home. If it's hard to find
voters who believe U.S. drug policies are working, it's even harder to
find politicians willing to recognize and confront that they're not.

For the past four years, Bill Zimmerman, with funding from billionaire
financier and philanthropist George Soros and a few other deep-pocket
libertarians, has been making a living exploiting that gap. Since
1996 Zimmerman's Campaign for New Drug Policies has managed to pass
initiatives in seven states, from Maine to California, legalizing the
medical use of marijuana, and chances are good he'll add a few more
this fall. So far, his record is seven wins and no losses.

Now Zimmerman, a longtime California political consultant and liberal
activist, is broadening the campaign, aiming to legalize the medical
use of marijuana in two more states and running initiatives to reform
asset forfeiture laws in Oregon, Utah, and Massachusetts (essentially
by imposing a more stringent legal threshold before assets can be
seized and by taking those seized assets from the cops and
appropriating them either to drug treatment or to schools).

But the "granddaddy" of the campaign, in the words of campaign
spokesman Dave Fratello, is California Proposition 36: If it passes in
November, it will not only represent a substantial step toward
decriminalizing the possession of all illegal drugs, from
methamphetamines and PCP to heroin and cocaine; it will very likely
send a message from one end of the country to the other.

The campaign's major backers, in addition to Soros, are John Sperling,
president of the highly successful for-profit University of Phoenix,
and Peter Lewis, head of Progressive Corporation, a large
Cleveland-based insurance company. Together they've put some $ 15
million into drug reform and needle exchange programs, including
roughly $ 1 million to qualify Proposition 36 for the California
ballot. They are clearly capable of putting up a lot more, and
probably will.

Zimmerman wouldn't call the goal of the measure decriminalization.
But there's not much doubt that that's where at least some of his
backers would like to go. Ethan Nadelmann of the Soros-funded
Lindesmith Center -- Drug Policy Foundation, who, in effect speaks for
the Hungarian-born Soros on this issue, says Soros sees the
incarceration of drug addicts as a "human rights issue" and regards
the nation's drug laws as an area in which "the U.S. is not an open
society." Certainly they hope that if voters approve Proposition 36,
it will spur the campaign into other states.

On its face it seems an easy sell. It requires that anyone convicted
only of possession of drugs "for personal use" be sent to treatment
instead of prison, and it appropriates $ 120 million annually to
provide the treatment services. It also requires that all parolees
testing positive for drugs or charged with drug possession be sent for
treatment rather than be returned to prison. According to the state's
nonpartisan Legislative Analyst's Office, those provisions would
result in the diversion of 24,000 drug offenders annually to
treatment, thereby reducing state and county prison operating costs by
somewhere between $ 240 million and $ 290 million and saving the
taxpayers some $ 150 million annually. It would also save the state
roughly $ 500 million in capital outlay for new prison facilities. If
treatment succeeds on a wide scale, of course, it will presumably also
reduce personal and family hardships by incalculable amounts. In
early polls, it led by 66 -- 20 percent.

But it's hardly a sure thing. The measure also establishes a
complicated process to monitor and enforce compliance -- one judge
called it a byzantine system, "a procedural horror" -- that sharply
restricts the discretion of judges, many of whom already divert
low-level offenders to treatment. And because it also covers GHB and
other so-called date-rape drugs, and because it prohibits the use of
any of that $ 120 million for drug testing, it raises questions that
are being vigorously exploited by opponents: Why mess with the state's
existing drug courts, which, while they handle only a small fraction
of drug cases, have succeeded in getting many clients through
treatment? Why make it hard to test offenders as they go through
treatment, since testing, backed by the threat of jail, is widely
regarded as the essential element in getting addicts to take treatment
seriously? Why reduce the ability of judges to send noncompliant drug
offenders to prison? Why include date-rape drugs, substances intended
not for personal use but for assault on innocent victims?

Zimmerman replies that assaults are, of course, subject to criminal
sanctions; the measure does not cover drugs that are to be used on
others. In any case, he points out, the date-rape drug of choice is
alcohol, which is legal. As for the testing issue, he says there's
plenty of other money for testing -- certainly the initiative doesn't
forbid it, as some of the opponents charge. But it's also true that
his backers see testing -- such as spot testing of workers even in
nonsensitive occupations and drug screening of high school and college
athletes, and occasionally of all high school students -- as another
corrosive invasion of personal liberty. Zimmerman acknowledged that
they wanted to include a flat prohibition against testing until "our
initial polling showed that drug testing is popular."

Proposition 36 has the endorsement of the California Nurses
Association, the state's alcohol and drug abuse counselors, some local
medical societies, and the state AFL-CIO. It also is supported by a
smattering of California politicians, most (though not all) of them
Democrats, including Senate President Pro Tem John Burton. But the
opponents, led by the California Correctional Peace Officers
Association (CCPOA), the state's politically muscular prison guards
union, and including virtually every other major law enforcement
organization in the state -- police chiefs, sheriffs, district
attorneys, drug court judges -- will be formidable.

Because the CCPOA not only has a reputation as a major player in
California politics but has a membership with an obvious financial
interest in keeping the prisons full, it's tried to lower its profile:
For a few weeks this summer, you couldn't find the organization on any
of the opposition lists. "We're seriously involved in the campaign,"
said CCPOA Political Director Jeffrey Thompson, "but we're not going
to give them an easy target." But in the cat-and-mouse games of
initiative politics, that could easily change. The screws, who put
more than $ 1 million into Republican Governor Pete Wilson's last
campaign and ponied up more than $ 2 million for Democratic Governor
Gray Davis's gubernatorial campaign two years ago, could easily write
another big check before it's over.

One thing that gives this contest national significance is that both
sides have firmly declared themselves to favor treatment over
incarceration whenever possible. Both say that the nation's drug
policies aren't working. Both have liberals and conservatives among
their supporters. (The nos were delighted when they enrolled actor
Martin Sheen, a fully certified lib, as their honorary chair. The
supporters include U.S. Senate candidate and Republican Congressman
Tom Campbell as well the conservative Orange County Register. Drug
policy makes strange bedfellows.) Both argue that there are too few
treatment facilities and that waiting lists are too long. All of this
is to say that on the surface the California argument seems to be
largely over the details, which may be another reason the prison
guards have taken such a low profile and why the managers of the no
campaign have encouraged the state's drug court judges, who already
supervise diversion and treatment of a relatively small number of
nonviolent addicts, to be the leading spokespeople against it.

The drug court judges assert that they already do precisely what
Proposition 36 aims to do, but that they have the clout and
flexibility, along with the use of drug testing, to quickly impose
consequences on those who don't cooperate. Proposition 36 would take
away their discretion and clout by requiring treatment in most cases
and by making it procedurally more difficult to throw convicted
addicts who do not take their treatment seriously into jail for a day
or two (and thus scare them straight). "Nobody says that the existing
[punishment-based] system works," says Alameda County Superior Court
Judge Peggy Hora. "We're showing that favoring treatment over
incarceration is not tantamount to political suicide. But this
initiative does not promote recovery and treatment. If [its backers]
want flat-out legalization, let them say so."

Zimmerman responds that the drug courts are a fig leaf for a failed
policy that's crowding the prisons with nonviolent drug offenders.
The United States, with its two million prisoners, has far and away
the largest number of incarcerated people of any country on earth --
"nearly one of every four on the planet, and that's almost entirely
the consequence of the drug war. And California is the worst offender
of them all." But behind the statistics hide all manner of other
disputes. No one is certain, for example, how many drug-dealing
arrests are plea-bargained down to simple possession charges, or how
many parolees, nominally re-jailed for failing a drug test, were in
fact called in for a drug test because they were thought to be
committing more serious offenses. Almost no one is in prison merely
for possession, says Santa Clara County Superior Court Judge Stephen
Manley. "It just doesn't happen."

It's at this point that the statistical debate begins to edge into the
question of legalization. How many minor offenses would be prevented
if possession of at least some drugs were decriminalized? Proposition
36, Zimmerman says, is meant "to express dissatisfaction with the war
on drugs," and to stake out a middle ground that will "make this
something that politicians can talk about." But Proposition 36 is also
touched by the libertarian predilections of its backers. In the end,
it does squint toward legalization.

Nadelmann says that Soros, with his experience with democratization in
Eastern Europe, "was offended that there is no open dialogue" on the
drug issue in this country. He and his colleagues had hoped their
victories with the marijuana initiatives would get more respectful
attention from Congress, though in fact they got almost none. But "if
Proposition 36 wins in California, we'll take it to Congress." Their
political problem stems from the fact that the very initiative process
they're using has forced them to offer an inflexible proposal that's
vulnerable to criticism from people who can legitimately claim to have
the same humane objectives they do. "This is a complicated problem,"
Manley says. "Proposition 36 assumes there's a simple solution." But
the very fact that it's being debated on these terms indicates the
extent to which both sides believe that the public is ready for
reform. Even if it loses, it could well open the door to further
reform -- it may thus win even by losing. And that, ultimately, may
be what Zimmerman, Soros, and company are counting on.