ROMLEY DESERVES A DEBATE ON DRUGS, BUT HE SHOULD LOSE

Last week, Maricopa County Attorney Rick Romley challenged University of
Phoenix founder John Sperling, one of the chief financiers of the drug
decriminalization movement, to a debate over competing drug policy measures
on the November ballot.

Romley's frustration over shadowboxing the decriminalization forces two of
the last three elections is understandable. Their modus operandi in 1996
and 1998 was to control the public debate through big-dollar campaigns.

But Romley might not fare any better in a more even-handed fight. I don't
know how good a debater Sperling is, but Romley's position on drug policy
is intellectually unsustainable.

The Legislature put Proposition 302 on the ballot primarily at Romley's
urging. It leaves in place previously adopted ballot provisions requiring
treatment rather than incarceration for first-or second-time drug
possession convictions.

Romley made a curious argument against these earlier ballot measures. He
didn't argue that drug use merited incarceration. In fact, he said the law
should be retained, in part, precisely because it was not enforced.

But drug use had to remain illegal, according to Romley, so that the threat
of incarceration could be used to compel drug users to complete their
treatment.

Proposition 302 would enact the Romley drug policy. First- and second- time
drug offenders still could not be incarcerated for possession. But they
could be for failure to complete treatment.

Criminal law is a claim by society that the behavior proscribed warrants
the deprivation of an individual's liberty.

If the underlying behavior, using drugs, doesn't warrant the deprivation of
liberty, how can the failure to get treated for it do so?

The basic public policy question is whether drug use is a criminal activity
or a personal behavioral problem. If drug use is a criminal activity, then
society should be willing to put all those who do it in jail. If it is a
personal behavioral problem, then it isn't properly within the ambit of the
criminal law.

Society is clearly unwilling to put everyone who uses drugs in jail. This
has lead to unjust selective enforcement, with the weight of drug laws
falling disproportionately on minorities and the poor.

The drug reformers started to move Arizona policy in the right direction in
1996 by forbidding the incarceration of first- and second-time offenders.

Proposition 203, on the ballot this November, continues to move policy in
the right direction by making the possession of small amounts of marijuana
a civil offense punishable by a $250 fine.

That's a sanction society may be more willing to more uniformly impose. At
least it doesn't make threats of incarceration that society is plainly
unwilling to fulfill, or punish the failure to be treated for a behavior
more seriously than the behavior itself.

Part of Romley's irritation is that decriminalization advocates have masked
their efforts to reduce criminal penalties for recreational drug use with
the medical marijuana issue. In fact, the campaign for the initial 1996
measure stressed its medical marijuana provisions even though its criminal
law changes were much more consequential.

That remains true with Proposition 203. But this time, the medical
marijuana provision may be its Achilles' heel.

The first medical marijuana provisions were ineffectual because the feds
threatened to yank the prescription privileges of any doctor who prescribed
it, and there obviously is no source for it.

Proposition 203 would allow doctors to attest to its medical need rather
than actually prescribe it. Patients with such attestations could register
with the state Department of Health Services and receive medical marijuana
from the state Department of Public Safety.

While the public has generally supported the concept of medical marijuana,
there's something disconcerting about state government getting into the
marijuana dispensing business.

Challenging Sperling was a stunt. But Romley should get the more thorough
debate he wants this time around.

And, except for that dispensing business, he should lose it.