Face To Face: A Conversation With Sydney Smith

BRINGING THE HOPE OF A FULL CURE FOR DRUG OFFENDERS, INSTEAD OF JUST
PUNISHMENT, IS AIM OF PROPOSED FLORIDA AMENDMENT

Q. What motivated you to get involved in supporting this amendment?

A. I've been practicing criminal law in Florida for 10 years now. I've seen
a huge volume of misery, broken lives, unpleasantness and failure. I've
seen first-hand how the drug laws affect ordinary people who just get
caught up in drugs, not only hardened criminals. I was contacted by the
California organization that sponsored Prop. 36 because they needed an
attorney to help draft the amendment. After that, they asked me to chair
the political action committee.

Q. Tell us about your amendment.

A. We want to offer help to those arrested for the first and second time
for purchase or possession of drugs. Only those who appear to have the
drugs for personal consumption and who ask for help will be eligible.

The approach would be to view the defendant as a human being with a curable
sickness and not just as a criminal.

We would look to medical doctors, psychologists and people with training in
addiction to help with the cure. We would not rely on dogma or political
views. The objective would be to bring the patient back to a healthy state
and not simply to punish. We want to bring the hope of a full cure to those
suffering from addiction and awareness of the danger to those flirting with
that danger.

If people have committed any violent acts, have stolen, or have sold drugs,
they would be excluded.

For those we can help, jail will not be an option while people are making a
genuine attempt to rehabilitate themselves. If a qualified independent
expert concludes that the person is not redeemable and is malingering, the
offender would be sent back to the criminal system for prosecution.

But if they show that they want to get better and are making progress, even
if there are relapses, the effort to cure them would continue, and after
completion of the program, the criminal charge would be withdrawn.

Q. In reality, how many people in Florida arrested for first-time purchase
or possession of illegal drugs go to jail?

A. We think about 10,000 per year. In Broward and Miami-Dade counties, the
system diverts some to drug court. In rural counties, incarceration is more
frequent. Simple possession of cocaine carries up to five years in prison.

Q. What would this amendment do to drug courts in local counties? Would it
take away some of the tools that judges now have to force rehabilitation?

A. We don't want to displace drug courts or be pitted against them. We are
trying to achieve the same objective.

We want to build on the success that Florida drug courts have had. They
were the first in the country to recognize that an addict is someone who
can be rehabilitated and that their record should be clean if they respond
to treatment.

A drug court judge uses the jail as a tool to modify the addict's behavior.
But addiction is not a choice. Addicts need the help modern science can
offer to alleviate their cravings, their desperate lives.

Drug court judges are excellent judges. But they are not necessarily
experts in this field; they are lawyers. Our view is that we must commit to
a medical model.

One of the problems we see with drug court is the "flash incarceration."
Your local jail is not a part of a structured program designed by a
psychologist to alleviate the problem of drug addiction. It's a punishment
and it's reverting back to the criminal model.

Q. If drug court also offers rehabilitation under threat of jail, and you
give someone the option to be rehabilitated without any threat of jail, why
wouldn't that undermine the drug courts?

A. I think it may to some extent. But you've got to remember that many
counties are still without drug courts. Also, there are still not nearly
enough treatment facilities for the demand.

I'm not talking about some revolutionary concept here. The Office of
National Drug Control Policy says this: "Chronic, hardcore drug use is a
disease, and anyone suffering from a disease needs treatment." They also
say: "There is compelling evidence to support the fact that treatment is
cost-effective and provides significant public safety benefits by breaking
the cycle of drug use and crime."

They are saying that the drug war has neglected rehabilitation as a method
of fighting drugs. I think this is a reflection of the fact that most
people in this country have now had some contact with drug addiction, in
their family, amongst their friends and in their communities. They have
seen how unhelpful incarceration has been to the people that they know.

There is not a wholehearted effort to rehabilitate, and that's costly in a
number of ways. It's costly because if you put someone who is a drug addict
in a setting with a lot of criminals, they are going to tend to become
criminals. And if they become criminals, there are going to be victims down
the road and there are going to be more prisoners down the road.

That's costly. Even the White House has said there is a two-thirds better
chance that a person will not re-offend if they go through a properly
organized therapy regime rather than if you put them in jail.

The White House estimates $20,000 to $23,000 to put someone in jail for a
year; a rehabilitation program costs about $4,500.

Q. How is this idea working elsewhere?

A. It's a little early to tell in California. However, Arizona passed an
amendment in 1996. Two years later, the Arizona Supreme Court found that 61
percent of those who enrolled in treatment programs completed them
successfully and that 76 percent of their subjects had clean urine test
results after completing the program.

I think that represents a lot of people with a new chance at life.

Q. Doesn't the threat of punishment stop some people from ever starting
with drugs in the first place?

A. I don't think the experience with the war on drugs has shown that. There
are 2 million people incarcerated in the United States, half a million of
them nonviolent drug offenders. We punish drug offenses more severely than
any other civilized country. I think in most Americans' opinions the drug
war has been a failure.

Q. Doesn't your amendment effectively decriminalize all personal use and
possession of all illegal drugs until the third offense?

A. Criminal sanctions will apply unless the addicts ask for help, do their
part and demonstrate they have been rehabilitated. Only for them there will
be no criminal sanction, but the opportunity of a second chance. That is
not decriminalization, but a rational approach to a disease.

If you keep the emphasis on a failed strategy where people are going to
simply go to jail because of drug addiction, are going to have their life
skills torn apart by incarceration, are going to lose their home, their
family and their jobs, and associate with a lot of criminals, they are
going to be much more likely to be criminals in the future.

Q. Doesn't your amendment go too far by preventing jailing of drug users
who had a long previous criminal record, as long as it was not within the
last five years?

A. We wanted to go to a rehabilitation model. And if someone had some kind
of criminal past, had been clean for five years, and now looks like they're
in the posture of being a user of drugs, it benefits society and it
benefits them just as much to rehabilitate them.

Q. Why ask for an amendment? Why not go to the legislators and ask them to
enact this as a state law?

A. It is very difficult to get a politician to take a position that could
be characterized as "soft on crime." I think the politicians are far behind
the mentality of the people in this respect. Most people have had
experience with drug addiction and have first-hand knowledge of how much of
an abysmal failure the so-called war on drugs has been. That's why we want
to take this to the people and let them vote on it.

We want to encourage new ideas and new approaches to drug addiction, not
the same old failed strategy of jail for everyone.

We do not see this as a law that is soft on crime; this is a law that will
reduce crime.

In popular initiatives in California, Arizona, Oregon, Colorado, Utah and
Nevada, voters have rejected the law's blanket treatment of drug users as
criminals.

Q. Where are you gathering signatures?

A. We have signature gatherers in about 18 different counties at this time,
including Broward, Miami-Dade and Palm Beach.

Q. How are you selling this? What are you doing to promote this campaign in
Florida?

A. We are simply gathering voter signatures. We don't see this as an idea
that needs to be sold to the people. We see this as something the people
have made up their minds about. I don't think there's a big publicity
campaign that we need to mount.

Q. You are very enthusiastic, positive and optimistic about this amendment.
How could it backfire?

A. My main concern, I guess, is that people who don't agree with the law
for ideological reasons will cynically implement it.

You've got to have people working in the programs and on the supporting
laws who really want to make a difference and to help, who are
wholeheartedly committed to the medical model and who are properly qualified.

We need to work from hope and enthusiasm. I've got great confidence, and
the statistics have shown two-thirds more people will not re-offend if they
are given the opportunity of an effective drug program. That's a lot of
money saved. That's a lot of victims in the future helped. And that's hard
science.

Interview conducted by Editorial Writer Tom Sander.

BACKGROUND INFO Sydney Smith is a Miami criminal defense lawyer and
chairman of the Florida Campaign for New Drug Policies.

This political action committee has begun collecting the 489,000 voter
signatures on petitions needed to place a proposed state constitutional
amendment on the ballot on Nov. 5, 2002.

The amendment would treat all initial cases of illegal drug use or
possession as a medical problem rather than a crime. First or second
offenders would get the option to avoid a prison term and a criminal record
by signing up for a drug treatment and rehabilitation program.

The amendment is modeled after a similar measure, Proposition 36, passed by
California voters last November.

To read the Florida amendment, check this Internet Web site,
http://election.dos.state.fl.us/ initiatives/index.shtml