LEARNING TO LIVE WITH PROP 36

Counties Face July Deadline To Expand Treatment Options For Drug Defendants

East Bay judges and attorneys who took a hard line against Prop 36 -- the
Substance Abuse and Prevention Act -- when it was a ballot initiative now
find themselves preparing to implement it by the July 1 deadline.

"I can't say that I supported the initiative," said Alameda County Superior
Court Judge David Krashna. Even so, the drug court judge is crafting the
county's program for misdemeanor drug possession defendants.

Around the state, counties are barreling toward a summer deadline to expand
treatment options for thousands of defendants who are convicted of drug
possession. Many anticipate that the law will face legal hurdles. Until
then attorneys, judges and health professionals are working to get programs
in place on time.

"I have been losing sleep," said Hayward Judge Peggy Hora, who is heading
the judicial Prop 36 effort.

She anticipates that 3,000 defendants -- in addition to ones in drug court
treatment programs now -- will qualify for the new law in the county. She
is working on a proposal to assign another judge to preside over drug cases
to handle the load.

Both Contra Costa and Alameda counties have outpatient programs ready for
most defendants, health officials say.

"Whatever services they need, we anticipate that we will be able to put
them into those" programs, said Dr. Marye Thomas, director of Alameda
County's Behavioral Health Care, a division of the county's Health Care
Services department.

Prop 36 clients who need more specialized help -- such as treatment for
pregnant women -- may be more difficult to serve early on, said Steve
Loveseth, a Contra Costa heath official who has been working to implement
the new law.

"This is a work in progress. It is a steep leaning curve for all of us,"
said Thomas.

In the East Bay, county health departments will funnel qualified people to
the appropriate programs. The agencies are also sifting through proposals
from treatment groups who want to be included in the county's roster of
approved programs, Loveseth and Thomas said.

Even with that kind of cooperation, California groups that represent the
state's public defenders and district attorneys have released position
papers with dueling interpretations of the law.

The groups don't agree about several things, including when a judge can put
probation violators behind bars. The California District Attorneys
Association says that judges can jail defendants the first time they
violate probation; the California Public Defenders Association says that
judges can't do it until the third time.

One attorney downplayed the idea that DAs are fighting the new law.

"The [California District Attorneys Association] is not challenging Prop 36
in the same way as the public defenders have challenged Prop 21," said Jeff
Rubin, an Alameda County deputy DA.

And many court watchers say that the new law shifts the power balance from
traditional drug court judges to the district attorney's office.

Before, drug court judges rewarded defendants or put them in custody for
slip-ups. Now, with Prop 36 diversion only available to defendants
convicted of simple possession, prosecutors could bar them from the program
by charging and convicting them of additional crimes.

In most cases, says Contra Costa's Loveseth, drug defendants can usually be
charged with other crimes. That means prosecutors can control whether
particular defendants qualify for diversion under Prop 36.

Alameda County prosecutors will not pursue charges merely to exclude people
from the program, said Rubin. However, he said a person who has a history
of drug dealing won't be in a Prop 36 treatment program, even if the
person's arrest was simply for possession.

One Alameda County public defender doesn't anticipate that there will be
many disputes over charges.

"I don't think that the DA has an agenda to 'get' people," said J. Clifton
Taylor Jr.

Spats over the law shouldn't erode the trust that was built up when the
drug courts were created, said a South Bay attorney.

Traditional drug treatment courts worked because PDs and DAs dropped their
adversarial roles to help defendants get better, said David Angel, a Santa
Clara County deputy DA.

"It's a collaborative process," said Angel. "We don't want to lose that by
having groups pursue litigation."