CONFRONT HARSH DRUG SENTENCES

Gov. Jeb Bush is bothered by a proposed ballot initiative that would
require courts to offer drug treatment to first- and second-time drug
offenders. "To suggest there should be no penalties for continued
drug use," Bush said in Orlando recently, "is to stick our heads in
the sand."

In that case, Tallahassee must have been an attractive sandy beach
for the last couple of years.

The governor is at once misrepresenting the issue and missing the
point. The issue is not to stop penalizing "continued" drug users. To
the contrary.

Under the proposed amendment, habitual drug users don't qualify for
treatment. Nor do first-time drug users who happen to be facing other
charges, from theft to drunken driving. Treatment is reserved for
stoned novices who should know better, or at least have a chance to
know better. Such users don't belong in $50-a-day jail cells better
used to hold violent offenders.

By seeing only half the story, Bush is also sidestepping an important
point raised by the initiative. Since the 1980s the legal system has
become fraught with mandatory-sentence laws that have taken authority
away from judges. Most of those mandatory-sentence laws are the
byproduct of the war on drugs.

The laws have achieved a lot of things: A prison population larger
than the population of a few countries, a resentful bench, a
generation of low-wattage addicts who've been taken away from their
jobs and families in the name of law and order. What the laws haven't
achieved is anything close to a victory in the drug war. Nor have
they changed the habits of casual users.

The drug-rehab ballot initiative, called the "Right to Treatment and
Rehabilitation for Nonviolent Drug Offenders," is the flip side of
those mandatory-sentence laws. If the state is going to play
three-strikes-you're-out with its citizens, its citizens have every
right to demand mandatory treatment first. It only levels a playing
field entirely weighted against citizens.

That's not automatically to defend either mandatory-sentence laws or
the drug-rehab ballot initiative. Both ultimately harm the judicial
system by undermining the authority of judges, who should have all
the leeway to decide punishment's extent. Or who to send to drug
treatment. But until mandatory-sentence laws are repealed, the state
should not be surprised by the emergence of a ballot initiative that
seeks to right the balance for citizens.

It is also fair to argue against the ballot initiative for
strong-arming the state constitution before giving the Legislature a
crack at the idea. But given the make-up of the current Legislature,
which pledges allegiance to locks and chains for the most trivial
crimes, this particular initiative wouldn't make it past a
subcommittee's typist. Voters might as well have a say directly.

The movement toward mandated rehab began in earnest in Arizona, of
all places -- where Goldwater Republicans are thick as saguaros --
when a ballot measure similar to Florida's Right to Treatment
initiative passed in 1996. The state figured that fewer people sent
to prison would mean fewer prisons to build. The savings, plus $4
million a year in liquor taxes, pay for the rehab programs.
California voters copied Arizona's system in 2000. There, estimates
are that 36,000 drug users a year are being diverted from prison to
rehab, saving the state the cost of two new prisons. California is
also diverting $120 million into the program. So the second state to
adopt those draconian three-strikes laws (Washington state was first)
is now the second state to make a 180 on the drug war.

It's too early to tell whether the experiments in Arizona and
California are working. The Right to Treatment initiative, however,
could be just the right rebate on an exorbitantly expensive drug war
that has never proved successful.

Florida's Right to Treatment initiative is being funded by the same
group that funded California's and Arizona's: George Soros, the
billionaire financier, John Sperling, founder of the University of
Phoenix system, and Peter Lewis, an insurance executive. They're all
rich, determined, and experienced in successful crusades.

There is nothing frivolous about their goal, which explains Bush's
early involvement in the debate. The governor knows he has a battle
on his hands. But he is digging his first trench on the wrong side of
the issue. "The idiocies of the drug war," as Sperling puts it, have
clobbered more civil rights than criminals and fried more budgets
than brains.

To say it's time for alternatives suggests there once was a time for
a drug war. There never was. Rather, it is never too soon to blunt
idiocy with alternatives.

Ballot issue summary, wording, as proposed
SOURCE: Florida Campaign for New Drug Policies, 168 S.E. 1st Street, Suite 606, Miami, FL 33131. Chairman: Sydney P. Smith.

SPONSORS' SUMMARY:

Individuals charged or convicted of possessing or purchasing controlled substances or drug paraphernalia may elect appropriate treatment as defined, instead of sentencing or incarceration, for first two offenses; discretionary with court thereafter. Excludes individuals committing serious crimes in same episode or convicted or in prison for violent crimes in past five years. Individuals unamenable to treatment may be prosecuted or sentenced. Upon successful completion or eighteen months in treatment, no prosecution or sentencing.

FULL TEXT OF PROPOSED AMENDMENT:

BE IT ENACTED BY THE PEOPLE OF FLORIDA THAT: Article I, Section 26, Florida Constitution, is hereby created to read as follows: Right to Treatment and Rehabilitation.

(a) Any individual charged with or convicted of illegally possessing or purchasing a controlled substance or drug paraphernalia may elect to receive appropriate treatment as described in subsection (c), instead of being sentenced or incarcerated, which shall be a matter for subsequent offenses.

If more than one qualifying offense under this section occurs during a single criminal episode, it shall be considered a single offense. For purposes of this section, an individual who elects to receive appropriate treatment prior to conviction shall be deemed to have waived the right to a speedy trial.

(b) This section shall not apply to any individual who in connection with the same criminal episode as the drug offense described in (a) is also charged with or convicted of: any felony; any misdemeanor involving theft, violence or the threat of violence; trafficking, sale, manufacture, or delivery of a controlled substance; purchase or possession with intent to sell, manufacture, or deliver a controlled substance or drug paraphernalia; or operating a vehicle under the influence of alcohol or a controlled substance.

This section also shall not apply to any individual who, within five years before committing the drug offense described in (a), has been convicted of, or in prison for, one of the serious or violent crimes described in Section 775.084(I)(c)1,a-r., Florida Statutes (2000), or such other violent crimes as may be provided by law.

(c) For purposes of this section, appropriate treatment' means a state-approved drug treatment and/or rehabilitation treatment program, or set of programs, designed to reduce or eliminate substance abuse or drug dependency and to increase employability. Such program or programs shall include, as deemed appropriate, access to vocational training, literacy training, family counseling, mental health services, or similar support services.

The determination of the type and duration of the appropriate treatment program or programs that an individual shall receive, and methods of monitoring the individual's progress while in treatment, shall be made by a qualified professional as defined in Section 397.311(25), Florida Statutes (2000).

(d) An individual receiving appropriate treatment under this section may be transferred to a different program due to violations of program rules or unsuitability to the form of treatment initially prescribed. An individual may be removed from appropriate treatment if, after multiple programs and violations, and upon an independent evaluation by a qualified professional as defined in section 397.311(25), Florida Statutes (2000), the individual is found by a court to be unamenable to treatment and rehabilitation.

Any such individual removed from appropriate treatment who has been convicted of the drug offense described in (a) may be sentenced for the offense. Prosecution may be recommenced against any individual removed from appropriate treatment who has not yet been convicted, and a conviction resulting from such prosecution may result in a criminal sentence without regard to this section.

(e) Appropriate treatment shall be terminated upon an individual's successful completion of the prescribed course of appropriate treatment, or upon an independent evaluation; and finding by a qualified professional as defined in Section 397.311(25), Florida Statutes (2000), that an individual's appropriate treatment has been successful, or eighteen months after the date the individual elected to receive appropriate treatment, whichever occurs first. Upon termination of appropriate treatment, the individual may not be prosecuted, sentenced, or placed under continued court supervision for the offense which led to the appropriate treatment.

(f) This section shall become effective on July 1 of the year following passage by the voters, and shall apply prospectively only to qualifying drug offenses occurring on or after that date.

(g) The Legislature shall enact such laws as necessary to implement this section.