NEW CALIF. DRUG LAW MAY BE TOO SOFT, SOME FEAR

LOS ANGELES - When actor Robert Downey Jr. was arrested last month in
a Palm Springs spa, news reports cataloged the woes of the troubled
actor, allegedly found once again with illegal drugs after a year in
state prison and numerous bouts of drug treatment.

Downey's latest arrest may land him in prison again. It happened too
early for him to benefit from a new California law that requires
community-based drug treatment - not jail time - for most nonviolent
drug offenders, even those already on probation or parole.

Still, some who work with drug offenders argue that Downey's bad
timing may, in fact, be fortunate. While treatment is the key, they
say serious consequences - specifically, jail time - often are the
only things that force addicts to straighten out.

Los Angeles County Superior Court Judge Stephen A. Marcus, who runs
Los Angeles' first and largest drug court, said his method of
shepherding addicts through treatment and into recovery involves not
just the carrot of encouragement but the stick of stiff penalties for
failure.

"Certainly, the mixture of sanctions and incentives that we use, we
believe that creates a good outcome," he said. "We give them a slap on
the back, we praise them in court, we clap for them, we might give
them little awards for their progress through the program.

"On the other hand, if someone relapses, doesn't go to meetings or
maybe misses a court date, there are consequences. There's
accountability. They can end up going to jail for up to 30 days or for
a four-day weekend."

Last month's passage of Proposition 36, the Substance Abuse and Crime
Prevention Act, has left many in the law enforcement and
drug-treatment communities conflicted - happy about the new attention
to, and money for, drug treatment, but concerned about the lack of
accountability for drug users.

That is because the ballot initiative, when it goes into effect in
July, will all but end the threat of jail for those convicted of
nonviolent drug-possession and drug-use charges. The measure, whose
sponsors argue that drug use should be seen as a public health, not a
criminal problem, wipes convictions off offenders' records if they
successfully complete licensed drug-treatment programs.

The campaign was funded by three businessmen - New York financier
George Soros; Peter Lewis, CEO of Progressive Insurance in Cleveland;
and John Sperling, founder and CEO of the University of Phoenix, a
network of private adult education institutions. It was run by the
same team that brought California the medical-marijuana initiative in
1996 - and has since helped pass similar initiatives around the country.

The group's central argument for medical marijuana and Proposition 36
is that America's drug war has failed. The nation, the group says,
needs to find new ways to deal with its drug problem.

Sixty-one percent of California voters backed the initiative, which
argues that drug use should be tackled as a public health problem.
Dave Fratello, campaign manager for Proposition 36, said voters'
overwhelming support for the proposition indicated that they agreed.

"We're sort of going through a societal learning process, realizing
that drug users are not some other, outside category. They're not a
collective group that everyone agrees is our enemy," he said. "A drug
user is likely to be you or me or your neighbors - and we want the
best for these people. At the same time as we can be very, very tough
on crime, we can be very, very compassionate about drug users."

California's nonpartisan Legislative Analyst's Office estimated that
the measure each year would move 24,000 drug offenders from prison,
and an additional 12,000 from jails, into community-based drug programs.

The office said the decrease in prisoners would save the state about
$100 million to $150 million each year, as well as an additional $500
million overall if it helped the state avoid building more prisons.
Counties also would likely save about $40 million, the analysis said.

For those who deal with drug offenders, the new money that Proposition
36 makes available for treatment is cause for celebration. The law
requires the state to contribute $60 million to a Substance Abuse
Trust Fund in the first fiscal year, and $120 million each year for
the next five years.

The money will be distributed to counties to spend on drug-treatment
programs and related programs for drug offenders, including family
counseling.

Many experts raise concerns about the program details. For example,
the state already has a waiting list of 5,000 for drug treatment
without the huge influx of Proposition 36 candidates. Also, the
measure is vague about what drug-treatment programs will have to
include. Finally, there is the requirement that none of the new
funding be used for drug testing services.

Some say they know from experience that chronic users often respond
only to treatment programs that include serious consequences for failure.

"Many people that come to treatment come here because of the threat of
jail, and when treatment gets hard, they stay in because of the threat
of jail," said Chris Canter, director of the Walden House Foundation,
which raises money to support programs at Walden House, a 31-year-old
substance-abuse treatment center based in San Francisco that treats
about 10,000 people statewide.

He should know. Canter used to be addicted to amphetamines, or
speed.

"I arrived at Walden House homeless with a drug problem, and the
courts said you're either going to go to jail or you're going to get
treatment. I said, 'OK, well you made this decision easy.' I attribute
the threat of jail to coming to treatment. It was certainly a huge
motivational factor," Canter said. "I remember wanting to leave the
program. But then I'd think of the judge saying, 'Give me one
opportunity and you're gone.' I should thank that judge. It was the
best thing that ever happened to me."

In Marcus' drug court, offenders receive more than a year of close
supervision as they go through treatment, which includes frequent drug
tests and the threat of jail if they slip up. Marcus, who holds a
graduation ceremony for those who complete the program, said graduates
often mentioned jail in their graduation speeches.

"They often say that one of the turning points was the fact that they
were thrown in jail and began to think about their lives," Marcus said.

Marcus opposed Proposition 36 for taking away the option of jail time
in most cases, unless it can be proved that an offender is a danger to
others or completely unamenable to treatment.

"I had two cases today in which I put people into custody," he said.
"That was to shake them up because they weren't very motivated."

Drug courts in California see only a small fraction of drug offenders,
mostly because of lack of funding. But by all accounts, they have high
success rates.

In its seven years, Marcus' drug court has graduated about 500 people,
he said. Most have their cases thrown out after treatment. The program
is tough, he said. Only about 53 percent of those who enter his
program graduate. But of those who do, only about 20 percent are
rearrested for any reason.

Marcus attributes the high success rate to his ability to get tough,
to toss offenders in jail if they start to slide. That is an option he
may well lose under Proposition 36.

"The point is that you have to do things to really, really get the
addicts' attention," Marcus said. "These are people who are consumed
by drugs. It's extremely, extremely difficult to get off them.

"Downey's a prime example. Look at how talented he is. Look at what
he's giving up. He needs real help, real, tough help - and I'm not
sure under Prop 36, he would get it."