A PROPOSITION FOR USERS: TRY DRUG COURT

You don't often hear defendants gush about the judges who sentence them. Or
thank the police officers who arrest them. But it was close to a love fest
a few months ago when I attended Drug Court graduation ceremonies held at
Saddleback College in Mission Viejo.

Somewhere Tuesday night, between Al Gore and George W. Bush taking turns as
Florida's winner, I thought about that graduation as I watched state
returns show a huge "yes" for Proposition 36.

That's the new California initiative that's about to change the landscape
on drug enforcement in California. It's supposed to help drug abusers get
the treatment they need instead of a dank jail cell.

So why do some folks here in Orange County who actually care about these
miscreants worry it will be a bust?

In part they fear what it will do to Drug Court. Such courts had been
growing in popularity here as an intense program with success at keeping
defendants from becoming repeat offenders.

But under Proposition 36, drug defendants will be virtually safe from jail
if they attend a rehabilitation program. And few would choose Drug Court on
their own as their first choice of treatment.

It involves a prison sentence, suspended only if a defendant agrees to
constant testing, late-night surprise home visits, community service and
intense counseling. Drug users aren't known for craving heavy-duty
scrutiny. With Proposition 36 as a new weapon, Orange County's judges say,
those in the system here will turn to easier solutions.

No question, Drug Court is highly popular with its graduates--but only by
graduation time. Getting there is not that easy. As Superior Court Judge C.
Robert Jameson says, "We ride their tails into the sunset."

Through Drug Court's front door, there are counselors and probation
officers and even judges to hold their hands to help them through it. But
at the back door, there's that all-important hammer: Mess it up and you go
to jail immediately.

Not many are fond of that hammer.

Judge Wendy Lindley, who helped create Drug Court in Orange County five
years ago, says that in a study of graduates interviewed, the threat of
jail was the most important sanction they faced in their treatment.

Jameson sums up his concern crisply: "An attorney offers a client a
suspended three-year prison sentence and Drug Court, or Proposition 36,
where you can get probation and attend Joe's Drive-Thru Rehab. Which do you
think they'll want?"

OK, Jameson said that last part a bit in jest. He knows some terrific
rehabilitation programs are offered through the county's Health Care
Agency. But can it handle all the cases that might be coming its way?

Court officials say they'll meet before Proposition 36 takes effect July 1,
to see what adjustments are necessary. Superior Court Judge Ron Kreber
figures the elimination of drug courts will be on the agenda.

Kreber is one of seven Drug Court judges in Orange County handling a total
of 500 cases.

"The shame is we've had about a 90% success rate," he said. "But it's
always necessary to have the threat of jail hanging over them, because most
do have relapses before they get through it."

But Joe Fratello, a leader of the pro-36 organizers out of Los Angeles,
points out that criticisms of the initiative are a moot point. "The
question is, now that it's passed, how do we make it work?" Fratello said.

He acknowledges some downside. Proposition 36 calls for drug testing during
rehabilitation, but provides no funding for it.

Its main advantage, Fratello said, is that 36,000 drug defendants who wind
up in jail or prison will wind up in rehab instead. Treatment will be
emphasized more than testing, which Fratello sees as a better step.

"The group affected the most will be prosecutors," Fratello said. "Many
drug sales cases are plea-bargained down to drug possession. You won't find
a prosecutor letting a drug seller go into rehab instead of prison. This
reduces their plea-bargaining powers."

Fratello also isn't too worried about drug courts getting hurt. After all,
he says, only 5% of the drug defendants in California are ever offered Drug
Court. Some counties don't even have one.

There's merit on both sides. Fratello may be right when he says that "the
sky is not going to fall because of Proposition 36." But some in law
enforcement say privately it could result in fewer drug arrests. Police
won't spend time on cases where the bad guys can't get punished.

My guess is that experts like Kreber and Jameson will find ways to provide
incentives for defendants to take Drug Court.

It's a moving moment to hear a mother of three tell the arresting officer,
"Thank you, you saved my life." That's the kind of story I saw repeatedly
at Drug Court graduation.

We'll have to see how many defendants get that emotional about Proposition
36.