DRUG COURTS' FATE LINKED TO PROP. 36: TREATMENT PROGRAMS DEBATED

This Is The First In An Eight-part Series Examining The Statewide
Propositions On The California Ballot Nov. 7.

Helen Harberts hates Proposition 36. But Butte County's chief probation
officer has a message for her colleagues who predict passage of the drug
reform initiative means criminal justice doom:

"You brought this on."

The proposition promising to rock the justice system might never have
gained traction, Harberts suggests, had judges, prosecutors, political
leaders and others tried harder in recent years to expand the state's
quietly successful drug court programs.

"My gosh, we found something here unlike anything I've ever seen in my
career," Harberts, herself a former prosecutor, said of the drug courts.

Proposition 36 is a thus far low-profile ballot measure that would send
thousands of illegal-drug users to treatment, not jail. Ahead 49 percent to
28 percent in the latest statewide poll, the initiative would make
California the nation's largest testing ground for a dramatically different
approach to addiction.

California's drug courts -- which cost $18 million a year and currently
divert just 5 percent of the state's eligible addicts into treatment
programs in lieu of jail or prison -- are at the center of the debate over
the initiative.

If the measure passes, drug courts could find themselves on the verge of
irrelevance, their discretion and flexibility undermined by the new law and
its $120 million annual budget.

If it loses, the courts could be in for a huge growth spurt. In the debate
over Proposition 36, state leaders who once paid drug courts scant
attention are heralding them as a sensible criminal justice reform and a
proven success worthy of greater investment.

Douglas Anglin, director of the Drug Abuse Research Center at UCLA, said
Proposition 36 has sounded "a wake-up call" to the state's political
leaders. "If it doesn't win, it's going to get the system moving in a way
it should have been years ago."

Arizona's Experience

Funded by three wealthy out-of-state businessmen, including New York
financier and philanthropist George Soros, Proposition 36 would require
treatment instead of incarceration for anyone arrested for being under the
influence or in possession of illegal drugs for personal use, including
cocaine, heroin, methamphetamine and PCP.

So far, Soros and his partners -- business school executive John Sperling
and insurance magnate Peter Lewis -- each have contributed nearly $900,000
to the Proposition 36 campaign. They are funding similar measures in other
states as well.

Few dispute their contention that California's court-mandated drug
treatment merits expansion. But the sides are sharply divided on whether
Proposition 36 is the best way to do it.

Opponents of Proposition 36, including the state's leading drug court
judges, say the initiative will ruin California's drug courts by limiting
judges' options for holding offenders accountable when they hit rough spots
in their treatment programs.

Supporters of the measure argue, however, that it will make drug treatment
available to thousands more addicts who currently are shuffled by courts
into ineffective diversion programs, or into jails or prisons, where drugs
are readily available.

For comparison, only one state has a Proposition 36-like drug sentencing
system in place: Arizona.

Since voters passed the Arizona measure in 1996, an additional 2,000 drug
users have entered treatment, Maricopa County Deputy Chief Probation
Officer Zachary Del Pra testified at a recent hearing in Sacramento.
Sixty-one percent of them are completing their treatment programs
successfully, Del Pra said, a rate that slightly trails the results of
California's drug courts.

But Del Pra also said that Arizona law enforcement officials are furious
over a section of that state's law -- more absolute than language contained
in Proposition 36 -- that prevents them from incarcerating offenders who
fail at treatment.

Changing Lives

California's criminal justice policy has not faced the prospect of such
significant change since 1994's passage of the "three strikes" law.
According to the Legislative Analyst's Office, Proposition 36 would divert
as many as 37,000 drug users a year from jail and prison and into treatment
programs.

"It's going to be the biggest criminal justice innovation, at least since
'three strikes,' because of the number of people it affects," said Jack
Riley, director of the Rand Corp.'s Drug Policy Research Center.

And it is precisely because of the number of people drug courts reach --
or, in the estimation of some, don't reach -- that the courts have landed
on the front lines in the Proposition 36 campaign.

Drug courts have existed in California, and around the country, since the
late 1980s. Introduced as an experimental way to cut crime by forcing
addicts into treatment, the courts require a guilty plea as the price of
admission.

Graduation from the program is cause for celebration. On a recent afternoon
in Sacramento, the courtroom exploded in applause as the prosecutor recited
the magic words: "Case dismissed in the interest of justice."

Judge Jane Ure detailed how many Narcotics Anonymous meetings each offender
had attended -- more than 200 in some cases -- how many urine tests they
had passed and how long it had taken them to reach sobriety.

"I'm grateful for your drug court," said a graduate named Karen, a 20-year
cocaine user who attended 138 meetings and submitted 92 clean drug tests.
"It helped me change my life."

If offenders fail, they are given repeated chances to get back on track
with the program -- which some addicts say can be more rigorous than either
jail time or public service work projects.

"Man, that work project is looking better and better," said a man being
sent to jail for missing treatment sessions.

Treatment can last anywhere from eight months to two years, with regular
drug testing. If offenders test positive for drugs or miss program
meetings, they can be subjected to "flash incarceration" stints ranging
from a few days to a few weeks.

If they continue to fail, they are cycled back into the criminal justice
system.

Results Promising

Statewide and nationally, drug courts claim that 70 percent of the
participants complete their programs clean and sober, including many
hounded by habits dating back a quarter-century or more.

One Los Angeles County study found that 75 percent of the 1,000 people
graduated from drug court since 1996 have not been arrested since. Pleased
with those results, Los Angeles County appropriated $2 million to increase
treatment through 13 additional drug courts. "We're ready now" to expand,
said Bob Mimura, director of the county's Criminal Justice Creation Committee.

But he and other drug court advocates say that Proposition 36 will ruin
their plans.

Judges fear that without the threat of flash incarceration, they would no
longer be able to hold addicts accountable for their failures. They say the
proposition would significantly diminish their discretion in deciding whom
to admit into treatment.

"This proposition will cripple and gut the heart of an effective treatment
program for the defendant," said Santa Clara County Superior Court Judge
Steven V. Manley, president of the California Association of Drug Court
Professionals. "Treatment standing alone does not work."

A Relapsing Disease

In many respects, Proposition 36 would be far more restrictive about who
gets into treatment. It bans any defendant who picked up non-drug charges
in the same case, such as a prostitute caught with crack cocaine in her
purse or a petty thief with a balloon of heroin in his pocket. That
automatically would exclude people like VeeVee Wren, who got into
Sacramento's drug court even though she was arrested for burglary, not
drugs. A judge sent her there after determining that the 27-year-old crack
addict was driven to steal by her desire for cocaine.

Last Monday she completed her third clean week in drug court.

"Since I've been going, I ain't been stealing nothing," Wren said, sitting
outside the I Street courthouse. "I'm sober, I'm happier, I'm taking better
care of my children."

Proposition 36 also would force judges to impose harsher sanctions than
does current law, and to impose them sooner.

Today, drug court judges can order brief periods of jail time if defendants
fail drug tests or are arrested again for possession of drugs while in
treatment.

Under Proposition 36, failures would be considered probation violations,
creating the adversarial situation drug court judges say they sought to
change. Judges would have some leeway on first or second violations to
switch offenders into different programs. But on a third violation, they
would be forced to jail the offender for at least a year.

In Manley's experience, keeping offenders in treatment sometimes works
better. He said he has witnessed successful outcomes after as many as six
relapses.

"This is a relapsing disease," he said. "But (Proposition 36) is telling us
that two bites of the apple is it."

'They Never Got It'

The initiative provides no money for drug testing, even though local
governments already are strapped for funds to test addicts in treatment
programs.

That problem would increase dramatically if thousands more offenders were
ordered into treatment under the initiative.

Yes on 36 forces make no apology for specifying that none of the $120
million for treatment programs may be used for testing.

Nothing in the measure bars drug court judges or anybody else from ordering
tests, they say.

But they specifically eliminated test funding because they didn't want to
lose sight of the initiative's main purpose: treatment for addicts, which
the vast majority of drug offenders have not been getting under the
existing system.

"After 20 years of doing criminal law, the only thing I knew about drug
treatment is that none of my clients ever got it," said Cliff Gardner, a
San Francisco criminal defense attorney and principle author of the
measure. "They never got it, and almost all of them at some point needed it."

Take David Anthony Malonay. He recently got arrested for methamphetamine
and would qualify for free treatment under Proposition 36. Under current
law, he never made it to drug court. As a first-time offender, he was able
to plead guilty and was placed into a diversion program. But the program
costs money that Malonay said he doesn't have. He expects to be called back
to court shortly and thrown in jail.

"What they have now is too expensive," he said.

Methadone Treatment

In 1999, just 302 out of Sacramento's 3,689 eligible offenders got into the
county's only drug court, which meets two hours a day, twice a week. That
is about an 8 percent catch rate.

That same year in Los Angeles, the county's 13 drug courts handled only
1,000 out of 19,400 qualifying drug defendants -- a 5 percent rate.

The initiative, Gardner said, would level the playing field when it comes
to getting help.

"You got money, Betty Ford's going to take you," he said. "The idea here is
that everyone should have it." Supporters of the measure maintain they have
nothing against drug courts, either.

"Drug courts are doing a great job," said Tim Sinnott, president of the
California Association of Alcohol and Drug Abuse Counselors. "I just don't
think they're reaching enough people."

But Sinnott and others do think the courts have some flaws -- flaws they
say the initiative would fix. Only 46 of the 58 counties in the state have
drug courts and there's no statewide standard for how those courts operate.
Each county establishes its own rules about who may participate.

Some courts, including Sacramento's, exclude methadone as a replacement
drug for heroin addicts -- a treatment option allowed by the initiative.

The Yes on 36 campaign has publicized the case of Sacramentan Bradley
Moore, who died last year of a heroin overdose after a Nevada County drug
court judge ordered him off methadone.

"Some drug courts allow (methadone treatment), but that's not the norm,"
said John McCarthy, who runs a methadone clinic in Sacramento. "You have to
convince every single drug court judge, one by one, and Proposition 36 does
that."

Potential Savings

Proposition 36 also could save public money. The Legislative Analyst's
Office estimates annual savings of up to $190 million in prison and jail
operation costs and at least $450 million in prison construction costs.

Opponents contest those figures, saying the legislative analyst's estimates
were based on an inflated number of inmates being diverted from jail.
Proponents say public safety will improve when courts intervene earlier in
the lives of convicted addicts to treat their addictions and change their
behavior.

Opponents say that convicted addicts will be roaming public streets instead
of prison yards. They predict court-wise addicts will jam up the system by
demanding trials instead of settling for plea bargains, knowing that drug
treatment is the harshest punishment they face if convicted.

At a recent Capitol hearing on Proposition 36, the two sides battled over
cost and public safety issues. They debated whether the Arizona measure is
working and whether the California initiative would give rise to
"fly-by-night" treatment providers.

But there was no argument about the desperate need to expand drug
treatment. Legislators openly acknowledged that when it came to funding
treatment through the drug courts, they had come up short.

"Shame on us in the Legislature for not doing more for drug courts," said
Assemblyman Keith Olberg, R-Victorville, a Proposition 36 foe. "That's a
method of treatment that seems to work. Everybody agrees with that."

Prop. 36 Details: Dealers Would Be Denied Treatment

Proposition 36 would affect anyone arrested and convicted of being under
the influence or in possession of illegal drugs, including substances such
as cocaine, methamphetamine, heroin and PCP.

Drug dealers would be excluded from its treatment-only provisions, as would
any offender arrested in a case involving non-drug related charges such as
theft or gun possession.

Upon conviction, a judge would place offenders on probation and into
treatment programs, subjecting them to probation conditions that could
include drug testing and court monitoring.

The treatment could last up to 12 months and could include six months of
aftercare. Charges would be dismissed on completion of treatment and probation.

Offenders who at any time violated non-drug related conditions of probation
could be sentenced under pre-existing laws. Those who violated drug-related
probation would face the following consequences:

- --For first-time violations, judges could either place offenders into
alternative treatment programs or sentence them to jail or prison, if they
considered them dangerous.

- --The second time, offenders could be placed in alternative treatment
programs. But they also could be sentenced to jail or prison if they were
found to be unamenable to drug treatment.

- --On third drug-related violations, the offenders would have to be
sentenced to jail or prison.

Offenders arrested and convicted on a qualifying drug charge, who had
previously been arrested and convicted and who had completed treatment
twice, could only be placed in treatment or sentenced to a maximum of 30
days in jail.