WAITING FOR POLITICIANS TO CATCH UP AND LEAD

One of the most significant things California voters did this year --
perhaps the most significant when people look back on the year 2000 five or
10 years from now -- was to pass Proposition 36, which changed sentencing
laws so most non-violent drug possession offenders will receive at least a
couple of chances at probation and drug treatment before being put in
prison, by a whopping 61-39 margin. Taken in conjunction with similar
measures passed and decisions made in other states, it could represent a
turning point in the country's approach to drug use and addiction. Add to
California's action the passage of initiatives in other states. Medical
marijuana initiatives were passed for the second time (though second for
different reasons) in Colorado and Nevada. In Oregon and Utah measures to
reform the asset-forfeiture laws, which had provided that in drug-related
cases property could be seized without even a formal accusation, let alone
a conviction, passed by big margins. Measure 8 in Massachusetts, similar to
Prop. 36 but broader in scope, failed narrowly after a big-money campaign
against it by law enforcement. A measure providing for full legalization of
marijuana and amnesty for drug war prisoners, a true grassroots effort
without any big-money out-of-state help, failed in Alaska, but got about 40
percent of the vote.

All this activity comes in the context of medical marijuana initiatives
passing wherever they have been placed on the ballot, no matter what the
variations in the provisions, since 1996. Thus Arizona, Alaska, Oregon,
Nevada, Washington, Maine, the District of Columbia and now Colorado,
representing more than 20 percent of the U.S. population, have all voted
for making marijuana available to sick people, by wide (56 to 69 percent
majorities) margins.

What all this activity amounts to is citizens desperately trying to get the
attention of their "leaders" and tell them it is time for a change in the
strict prohibitionist drug policies that have so conspicuously failed to
wipe out drug problems and have in fact made them worse. Probably not more
than a third of Americans are in favor of full legalization yet. But strong
majorities want some common-sense flexibility -- allowing sick people to
use marijuana if a doctor agrees it helps them, allowing people to grow
hemp, which produces the strongest natural fiber known, and moving in the
direction of drug treatment and harm reduction rather than simple prohibition.

So far, the only official political body to respond to this increasingly
powerful shift in public opinion has been the Hawaii legislature, which
earlier this year authorized suspension of marijuana possession,
cultivation and transportation laws for people with a doctor's
recommendation, and also authorized an experimental patch of industrial
hemp for fiber. A few members of Congress have noted the shift and spoken
positively about drug law reform, but not many. At some point a few
politicians are likely to figure it out and hustle to be at the head of the
parade and declare themselves the leaders.

How soon this will happen might depend to a great extent on how Prop. 36 in
California and a similar regime of treatment before incarceration
instituted legislatively and administratively in New York state works in
practice. There will be numerous opportunities for mistakes and wrong turns
along the way, and no doubt many will be made. But if it is even reasonably
successful the demand for alternatives to incarceration in other
jurisdictions will grow.

It will not be easy for state and county governments in California to
implement this measure -- even though it provided $60 million to get a
system up and running between now and July 2001, when the new law goes into
effect -- and already we are hearing some whining and poor-mouthing as
various agencies scramble to stake claims to the money. But there is also
evidence of good-faith efforts to make the new system work.

The biggest mistake would be to view the new law as a cure-all for drug
problems and to spin problems and failures as evidence that the new
approach can't work. Voters approved the initiative because they have come
to recognize, as have an increasing number of experts in medicine and drug
treatment, that the old system of putting people who have problems with
certain drugs in jail was not exactly a rip-roaring success.

As Dave Fratello, spokesman for the Campaign for New Drug Policies, chief
sponsor of Proposition 36, told a reporter earlier this month, "We have
chosen a course that is basically going to cope with the drug problem and
not seek to get rid of it. The false promise of the drug war is that we can
get rid of drugs and persuade everyone to quit. We are trying to be more
realistic here."

So it's wise to take as a given that whatever policies government adopts,
some percentage of the population is going to have trouble coping with
certain drugs. It is even possible to wonder whether taking money from
taxpayers to provide treatment is really wise, or whether it might
encourage some addicts to look to the state to take care of them rather
than taking personal responsibility for their lives and choices. But while
such a policy is bound to be imperfect, it is probably less harmful than
taking money from taxpayers to throw addicts in jail to receive a graduate
education in getting away with crime.

At this point it is difficult to sort out which objections amount to
foot-dragging and which are legitimate concerns expressed by people who
want the new policy to work. But some of the following concerns no doubt
have some legitimacy.

The state Legislative Analyst's Office has issued a thoughtful report
noting that implementation will require close collaboration among state and
county officials who are not necessarily accustomed to working well
together. Many authorities, noting a shortage of treatment programs under
the old system, wonder if enough treatment facilities can be up and running
by July 2001 to handle the estimated 36,000 people diverted from jail under
the new policy.

Many critics have noted that the initiative does not provide funds for drug
testing, which some consider essential to recovery. Others note that the
new system could put new pressures on a probation system, which, according
to state Senate President Pro Tempore John Burton, D-San Francisco, has
suffered "years of neglect." Many worry that attempts to expand treatment
facilities will run into NIMBY (Not In My Back Yard) problems. While the
initiative requires that treatment programs be state certified, many wonder
how the money provided by Prop. 36 ($120 million a year, much less than the
cost of incarceration) will be allocated. Some worry that police will
"upcharge" -- add trivial charges to possession cases to prevent full
implementation of the treatment policies.

"I have been around for 30 years of big things in drug treatment, like
Proposition 36," said Douglas Anglin, director of UCLA's Drug Abuse
Research Center, "and they are always a mess."

On the bright side, the state government released money to prepare for
implementation as soon as the election results were certified. Kathryn
Jett, newly appointed director of the state Department of Alcohol and Drug
Programs, is qualified and apparently motivated to make the new policies work.

On Dec. 18 some 650 proponents and critics of the new approach, along with
health and law enforcement officials, met for a conference in Sacramento on
implementing Prop. 36, co-sponsored by (among others) the California
Medical Association, the California Society of Addiction Medicine,
California Nurses Association and California Association of Alcoholism and
Drug Abuse Counselors. Many of the potential problems were aired, and while
not all were resolved some answers are emerging.

Bill Zimmerman, executive director of the Campaign for New Drug Policies,
told me that plausible answers to most of the potential problems emerged at
the conference. "Concern about probation budgets is legitimate," he said,
"but under Prop. 36 treatment providers can provide much of the supervision
needed for probation officers to monitor those in treatment. Periodic
assessments can also be sent directly to the judge." One Los Angeles County
superior court judge, he says, plans to randomly assign 5 percent of simple
possession cases to treatment between now and July, so the courts can gain
experience and work out problems.

As for drug testing, a good deal of money is available now for drug testing
and more could be appropriated at a time when California's state government
is literally taking in tax money faster than it can figure out how to spend
it. But not everybody agrees testing is essential. A judge in San Jose,
says Mr. Zimmerman, told the conference that drug testing is a waste of
money, that relapses are revealed through behavior. Obviously a good deal
more study and experience are needed before definitive answers to such
issues become apparent.

What is most striking so far, however, is the apparent good faith with
which most of the players are proceeding. Many law enforcement
organizations and judges opposed Prop. 36, but Mr. Zimmerman doesn't expect
serious foot-dragging.

There are bound to be problems, and it is healthy to discuss potential
pitfalls before Prop. 36 goes into effect. It is important to understand
that drug treatment is not utopia and give the new policies some time to
work, fail or have little impact before delivering a verdict.

And speaking of verdicts, some of the loose ends of Proposition 215, the
medical marijuana initiative passed in 1996 and implemented only spottily
to date, are now being tied up by California juries. Earlier this month a
jury in Placer County, one of the most socially conservative places in
California, voted 11-1 to acquit Steve and Michele Kubby of all charges
related to cultivating and using marijuana in their home near Tahoe. Both
have medical conditions and doctor's recommendations -- in Steve's case a
rare adrenal cancer attested to by Dr. Vincent DeQuattro, his former
physician who is now a department head at the USC Medical School, that is
usually fatal in months.

The jury, aside from one lady who wanted to convict on all charges despite
the evidence, accepted the guidelines developed by a commission including
medical people, law enforcement and patients in the city of Oakland a
couple of years ago. Based on the fact that the federal government
currently provides about seven pounds of marijuana a year to the eight
patients still on the since-suspended compassionate IND program, the
Oakland group recommends 144 plants per patient per year (in various stages
of development to provide a steady supply) for indoor grows, and 96 plants
for outdoor plantings.

So progress is being made despite little action (and often active
foot-dragging) by politicians. Let's see what happens next year.

Alan Bock is author of "Ambush at Ruby Ridge" and the forthcoming "Waiting
to Inhale: The Politics of Medical Marijuana," coming in January from Seven
Locks Press. Senior editorial writer and columnist at the Orange County
Register, he is also senior contributing editor at the National Educator
and a contributing editor at Liberty magazine.