SPIRIT OF PROP. 36 IS DRUG TREATMENT, NOT JAIL

WE'RE less than two months into the implementation of Proposition 36, the
innovative measure that requires treatment instead of jail for drug users,
and the criminal justice system is still sorting out the law's impact.

Already, Alameda County prosecutors and defense attorneys are at odds over
whether defendants should be held in jail pending conviction and then
released for treatment. Some prosecutors oppose the pre-conviction release
of defendants eligible for treatment under the law.

We agree with defense attorneys, however, that jailing drug defendants prior
to conviction is not in the spirit of the new voter-approved law.

Prosecutors argue that a few days in the slammer actually motivate
defendants to make sure their cases move through the system quickly so they
can get into treatment.

One deputy district attorney for Alameda County said the approach is
consistent with the spirit of the law because it will help people get clean
and sober more rapidly.

The argument strikes us as convoluted. Continuing that line of logic, if a
few days in jail motivate a person to get treatment, then an even longer
period would provide more motivation. It sounds a little too much like the
philosophy behind the gulag in the Soviet Union. Besides, how much control
does a defendant really have over how quickly the courts move?

Prosecutors also argue that the law is a "sentencing law only" that doesn't
provide guidelines for what happens before conviction.

Clearly, the law requires treatment instead of incarceration for drug users
who meet the criteria. If it intended to provide a combination of
incarceration and treatment, it would have been written that way.

Defense attorneys make the point that if -- under the law -- defendants
can't be jailed after conviction, it makes no sense to hold them in jail
before they are convicted. It is illogical to treat someone more harshly
before he or she has been proven guilty of anything.

The fact is, prosecutors and judges in Alameda County opposed Proposition 36
from the beginning and this latest tactic is simply another attempt to
circumvent it. But the voters of California, recognizing the futility of
incarcerating people with drug addictions, were very clear about their
intention to provide treatment as an alternative. It's the law, and those
charged with upholding it should put their resistance aside.

Prosecutors in San Mateo County have done a better job of demonstrating
their intent to implement the law by not opposing the pre-conviction release
of drug users.

Proposition 36 is a sound attempt to address a cause of criminal activities
among drug users by providing treatment, recognizing drug addiction as
primarily a health problem.

Prosecutors need to stop their efforts to skirt the law and pitch in to make
it work. If it's successful, we all benefit.