ATTORNEYS STILL DISAGREE ON NEW DRUG LAW'S DETAILS

Sticking Points Include The 30-day Sentence For Repeat Offenders And The
Use Of A Gun In Defining A 'violent' Crime Under Proposition 36, Which
Mandates That Many Drug Offenders Be Sent To Treatment, Not Jail

While all sides agree there has been amazing cooperation in implementing
California's controversial treatment-not-jail initiative, district
attorneys and public defenders have agreed not to agree on a few of the
new law's more contentious provisions.

Both sides accept that their differences are so deep they eventually will
have to hash them out in the appellate courts -- but not before the July 1
deadline for having the new law in place.

On that date, Proposition 36, approved by state voters in November,
mandates that the courts begin diverting the first of about 37,000
non-violent drug and alcohol offenders per year into treatment at
outpatient clinics and group homes, instead of sentencing them to jail.

The measure further says judges shall sentence backsliders and repeat
offenders to 30 days in jail only after they are caught using drugs or
breaking the law twice after their first arrest. Public defenders and
other advocates say this is a maximum sentence. Prosecutors consider it a
minimum.

That is the most serious sticking point between these old adversaries, but
there are others. For instance, the law says use of a firearm while
possessing or using drugs could classify a suspect as violent and,
therefore, not acceptable for treatment.

Advocates say "use" means the offender must fire, point or brandish it.
Prosecutors suggest mere possession of a gun -- particularly one that is
loaded -- during an otherwise non-violent drug crime should bounce the
user from the treatment-only option.

But for now, anyway, they're disagreeing with smiles on their faces
because every agency involved says it wants to make the law work.

"What we see is a lot of people working very hard, very dedicated. I've
never seen government work this well," said Dave Fratello, spokesman for
the successful Proposition 36 campaign, "especially when you're talking
about all the different interests involved."

Judge Stephen V. Manley, chief judge of Santa Clara County's drug court, a
model for those setting up treatment options around the state, has set the
tone, Fratello noted. "Manley has said, 'There's no sense in fighting over
this. Let's get to work.' "

So they have set about with gusto to make it work, reserving for the time
being their differences over such fine points as whether the courts can
cancel a defendant's right to further treatment if he or she fails to
attend treatment sessions or fails to comply with program rules -- as the
DAs contend.

If that were the case, courts could order a defendant to serve time if they
found that the behavior amounted to a violation of probation or that the
behavior made the offender a danger to the public. Points of contention

These are fine lines that the California District Attorney's Association
has indicated it intends to draw in the sand. They're spelled out in a
lengthy document titled "Implementing Proposition 36," which can be viewed
on its Web site, www.cdaa.org.

"We keep reminding people the courts didn't lose discretion to
incarcerate," said Karyn Sinunu, assistant district attorney for Santa
Clara County. On the question of how much leeway a judge has on a
defendant's third offense, she said, "Our position is that 30 days is a
minimum."

Nona Klippen, assistant county public defender, demurred: "We take the
position, 30 days is the maximum."

The measure states, "Notwithstanding any other provision of law, the trial
court shall sentence such defendants to 30 days in jail."

"If it said 'may sentence' to 30 days, that would mean the court would have
discretion to give only 30 days," Klippen maintained. " 'Shall' is
mandatory language, as opposed to 'may,' which is permissive language."

Sinunu, however, suggested, "It wouldn't make sense if it meant only 30
days. That would convert felonies into misdemeanors. I don't think that's
what 36 intended."

But that's exactly what the proposition meant, spokesman Fratello said.

"The initiative intended 30 days to mean 30 days -- maximum, not minimum,"
he said.

"It will be an interesting court case that will invariably come out of
this," he added. "It will certainly go to court. The DAs have promised that."

But Fratello doesn't see an early test of the issue, since offenders will
have to have two prior convictions and then get a third. "That will be a
while."

Splitting Hairs

DAs may split legal hairs on some of the measure's intentions, but Fratello
and other proponents of treatment say district attorneys are embracing "99
percent" of the general intent of the new law -- evidenced by Santa Clara
County's approach.

"We're very hopeful that this is going to work," Sinunu said. "I feel very
upbeat. The reality is, the DA's office has been pro-treatment for a long
time. People are going to get treatment, and they're not going to have
incarceration hanging over their heads."

In fact, she said, "A lot of people will just be on straight probation.

"That doesn't mean they can't end up going to jail if they screw up," she
noted. "We're trying to make it as non-adversarial as possible, much like
drug treatment court. But if defendants don't show up for the program,
we're going to be a little feisty about it."

In the law's gray areas, judges will have to decide whether prosecutors or
defenders are right in their interpretations.

For example, some counties are considering putting a clause in their
treatment plans that would permit offenders to agree to jail time if they
fail treatment on their first or second try, said Bill Demers, president
of the County Alcohol and Drug Program Administrators Association and
deputy chief of Tehama County's drug and alcohol programs.

This could be part of a plea bargain, say, under which the DA reduces a
charge from a felony to a misdemeanor.

Demers sees this as the prosecutors' way of trying to introduce a practice
that the new law specifically excluded. "They're trying to act as if the
proposition didn't pass," he said.

"There are lot of things of that nature in the kicking-around stage," said
Santa Clara County's Klippen. "But I'm impressed with the way we've been
able to work together. Everybody is on board to make it work and help
people succeed and stay out of the criminal justice system."