DRUG LAW USHERS IN A NEW ERA

Thousands Of Offenders Will Be Sentenced To Treatment Rather Than
Prison. Officials Begin Sorting Out Legal Questions And Logistical
Problems.

Misti Kerns, Christina Nixon and Nicholas Hernandez sat shoulder to
shoulder last week in Division 42 of the Los Angeles Criminal Courts
Building, joined together by handcuffs and their small roles in a
major new chapter of California law.

With little more in common than their addictions to cocaine, the
three appeared before Superior Court Judge Stephen A. Marcus and were
sentenced to drug treatment--rather than state prison--under a
landmark voter initiative that took effect two weeks ago.

The speedy disposition of their cases underscored what so far has
been the relatively smooth implementation of Proposition 36, the
complicated law that transforms the way California handles nonviolent
drug offenders. "So far," said Los Angeles County Public Defender
Mike Judge, "it's been fairly quiet."

Still, officials caution that the real impact of Proposition 36, like
a slowly cresting wave, will build over time. And it is already clear
that some significant legal and logistical issues must be resolved.

In Los Angeles County, home to about 40% of the state's eligible drug
cases, the district attorney's office is expected to appeal judges'
rulings that have allowed drug offenders arrested before July 1 to
participate in Proposition 36 programs. Thus far, most judges in Los
Angeles County have ruled that Proposition 36 should include any
defendants--Kerns, Nixon and Hernandez among them--whose convictions
did not occur until after July 1.

Another area of contention is the eligibility of drug defendants
whose arrests included separate misdemeanor charges.

"There are likely to be a number of issues, from the effective date
of the law to some actions on the part of the courts to really
circumvent the law by separating out the drug cases from other
charges that would otherwise exclude defendants from Proposition 36
eligibility," said district attorney's special counsel Lael Rubin.

Other officials up and down the state report day-to-day missteps,
including confusion over processing court papers and problems in
matching individual drug offenders to specific levels of drug care.

"Some people aren't really aware of all the procedures, and there
have been some training issues . . . all the way from judges to the
[drug treatment] assessment centers," said Bob Mimura, director of
Los Angeles County's Criminal Justice Coordinating Committee.

Dispute Over Health Records

In Orange County, prosecutors and public defenders are in a dispute
over the release of offenders' health records.

The disagreement involves waiver forms that program participants sign
to allow the release of records from treatment centers--forms that
help officials determine whether defendants have or have not
recovered from addictions.

The district attorney's forms require disclosure of detailed
information, while the public defender's waiver forms allow release
of only those documents that prove whether participants attended the
treatment programs and whether they met the requirements.

The dispute has been the topic of several meetings among court
officials. In the meantime, some judges are asking that enrollees
sign both forms, while others are requiring that just the
prosecutor's forms be signed. Still others are leaving the matter up
to probation officials.

In Ventura County, probation officials say they have been overwhelmed
by nearly 200 referrals since the measure was implemented.

As in many other counties, scores of defendants in Ventura waited
until Proposition 36 went into effect before entering pleas so they
could receive treatment instead of jail time, said Presiding Superior
Court Judge Bruce Clark.

Whether those defendants show up for treatment programs, however,
remains a question.

"Some of these people have been using drugs for 20 to 30 years and
you don't know if they are motivated," he added. "Many don't want to
quit."

For those who do, Ventura County also faces a problem common to much
of the state. With Ventura officials estimating that local courts
will divert up to 5,000 offenders each year into treatment programs,
officials warn that there will not be enough money for all of the
programs required for Proposition 36 defendants.

"Some of these people obviously need residential treatment for a long
period of time," said Judge Clark, "and the funding isn't there."

In Sacramento County, the rift between treatment advocates and the
criminal justice system was wide during the negotiation period before
July 1. There were clashes between the district attorney and the
public defender about how large a say the probation department had in
assessing a drug offender's eligibility for treatment.

'It's Time to Get Clean'

But most people say the months of forced collaboration in Sacramento
have resulted in sound relations.

Christopher Dodge, 32, of Citrus Heights was one of the first
defendants there to be sentenced under Proposition 36. Placed in a
counseling and education program, Dodge said he is grateful for the
new law, and views it as a chance to kick a longtime methamphetamine
habit.

"It's time to get clean," Dodge said. "And it beats 90 days in jail."
In San Francisco, which already had one of the most generously funded
public drug treatment programs in California, the county has yet to
see a Proposition 36 defendant go through the system and into a
program.

Phyllis Harding, director of the city's Community Substance Abuse
Services, attributes the lack of participants to the pre-conviction
options already available to drug offenders in San Francisco.

"There is a different political atmosphere here," said Harding. "We
don't have to prove that treatment works; the criminal justice side
knows it."

But even those who believe in drug treatment see problems as
inevitable under Proposition 36.

"The statute is unnecessarily complex, self-contradictory in places
and hard to understand on the first bounce," said Los Angeles
Superior Court Judge Michael A. Tynan.

The vagaries have been in evidence in courtroom after courtroom as
judges--weighing defendants' criminal histories, current offenses and
other factors--decide who is eligible for Proposition 36 treatment
and who is not.

In Van Nuys, for example, Superior Court Judge Darlene Schempp denied
one defendant's request for Proposition 36 diversion last week on the
grounds that the woman's cocaine possession arrest occurred months
before the statute took effect and that the woman's two prior
convictions--and probation violations--showed she was not serious
about drug treatment.

"I looked back at her record and she had been in and out of drug
programs," Schempp said after sentencing the woman to 16 months in
state prison. "I felt I would be dooming her to failure if I sent her
to treatment."

In Long Beach Superior Court, Judge Charles D. Sheldon faced a
different issue Friday when prosecutors argued that a drug defendant
was ineligible for Proposition 36 treatment because his drug offense
was accompanied by a separate misdemeanor--in this case a charge of
resisting arrest.

"The defense says he ran away and the prosecution says he turned
around and made a threat by running toward the officers," Sheldon
said.

The entire case has been held over for two weeks.

"It is not an earthshaking event," Sheldon said, "but it is an issue
that has to be resolved."

As thousands of cases wend their way through California courts, the
ultimate issue, of course, is whether the new law will lead drug
offenders to kick their addictions while avoiding prison time.

After three prior cocaine arrests in the past decade, 43-year-old
Christina Nixon appeared before Judge Tynan and said she was ready to
enter treatment and avoid further scrapes with the law.

"Are you tired of this?" Tynan asked her.

"Yes," she said.

Five days later, Nixon sat between Misti Kerns, a 26-year-old
strawberry blond, and Nicholas Hernandez, a 36-year-old security
guard from Belize, as all three were declared eligible for treatment
under Proposition 36.

No 'Get Out of Jail Free' Card

Were it not for the measure, authorities said, each of the three
defendants would have faced at least 16 months in prison. Instead, by
pleading guilty to new drug possession charges, they were released
from custody to report to drug treatment programs.

Before releasing them, Judge Marcus warned them that they should not
take their good fortune lightly.

"Since you are the pioneers of this program, I want to make something
absolutely clear to you," Marcus told them. "You must abide by the
program. If you do, there is a tremendous benefit to you. But . . .
if you violate probation, I can send you to prison up to three years.

"This is not a 'get out of jail free' card," Marcus said. "You have
got to come back to court. You have got to go to treatment."

Times staff writers Alex Gronke, Monte Morin and Tracy Wilson
contributed to this story.