PROPOSITION MANDATES TREATMENT, NOT PRISON

California To Vote On Drug-War Issue

Californians, wrestling with budget-busting state prison costs, will vote
in November on a law mandating treatment instead of incarceration for
nonviolent first- and second-time drug offenders.

Analysts say national dissatisfaction with the "war on drugs" will allow
California voters to frame the debate for drug policy for the rest of the
country regardless of whether Proposition 36 passes.

The $120 million proposition to mandate treatment for convicted drug users
- -- not sellers -- is still going largely unnoticed by most Californians,
because neither side has begun television or radio advertising in advance
of the November vote. But polling shows Californians are receptive to the
concept of trading expensive prison beds for treatment ranging from
outpatient counseling to more intensive residential therapy.

Backers claim Proposition 36 could reach the real heart of the drug problem
and save the state as much as $150 million annually by reducing prison
costs. But opponents, who include most of the state's law enforcement
hierarchy, argue that not every nonviolent drug offender would be eligible
for diversion.

As a result, critics argue, the assumed cost savings of Proposition 36 have
been exaggerated while the real effect would be to decriminalize drugs
statewide and create pandemonium in the legal system.

"I think the issue is still alive, even if it (the initiative) loses," said
Wesley Johnson, a criminal justice professor at Sam Houston State
University. "The fact that it is brought up at this time is some
recognition by California that their prison binge has some major side
effects they're having trouble coping with."

The public-opinion pendulum on treatment vs. incarceration has been
swinging for decades, said Johnson and other criminal-justice experts. And
critics charge that tough prison sentences and costly attempts to stifle
drug exports from other countries has not slowed drug use among Americans.

"You never know where politicians will come down, but what I get from
looking at state drug treatment and imprisonment policies is there's a
change -- even in Texas," Johnson said. "There's a lot more rhetoric about
the cost of imprisonment."

Republican Tom Campbell, who is running against incumbent Democratic Sen.
Dianne Feinstein in California, is a supporter of Proposition 36. He said
he would support the initiative even if prison overcrowding were not an issue.

"But the crowding of prisons makes it very difficult for advocates of the
present system to say that all we need to do is get tough on drugs,"
Campbell said. "Because what does it mean if your prisons are bursting with
folks incarcerated for drugs? You're getting tough, but the price of heroin
and cocaine are way down ... despite all this putting people in jail."

Campbell said he is haunted by an issue that prompts the Rev. Jesse Jackson
to back Proposition 36 as well: Only about 15 percent of American drug
users are black, according to federal statistics, yet African-Americans
make up nearly 60 percent of state prison inmates serving time for drug
offenses.

About 25,000 nonviolent drug offenders are sent to California prisons every
year -- about one in six of the approximately 155,000 new arrivals,
according to the California Department of Corrections.

California's aggressive "three strikes" policies that force long prison
sentences for repeat offenders have swelled the overall prison population
drastically.

It's difficult to know exactly how many offenders would be eligible for
Proposition 36, because inmates who are arrested for selling drugs
frequently plead guilty to lesser offenses like simple possession.
Prosecutors say they would be unlikely to cut such deals for drug dealers
if Proposition 36 demanded they be treated instead of incarcerated.

The California Department of Corrections is estimating as many as 10,000 to
12,000 prison beds could be freed up annually by Proposition 36.

Treatment instead of imprisonment for drug offenders saves about $20,000
per person per year, according to a 1998 study by the National Center on
Addiction and Substance Abuse at Columbia University.

Texas has a program called In-Prison Therapeutic Community treatment,
providing about 4,500 beds dedicated to intensive therapy for drug
offenders on probation and another 800 for those still in prison. The
Criminal Justice Policy Council estimated about 70 percent of those
participating in the probation program would otherwise have gone to prison.

However, early program results have been mixed in Texas, according to a
report to the Texas Legislature last year, with no discernible drop in
recidivism for program participants. Analysts cited "nuts and bolts"
problems with managing and staffing the programs, and the Criminal Justice
Policy Council is tracking participants released in 1997 to determine if
changes in the program have increased participants' success.

In 1999, according to the Bureau of Justice Statistics, California had
163,067 inmates, second only to Texas' prison population of 163,190.
California's prisons were designed to hold about 80,000 inmates.

The state is facing construction costs as high as $550 million over the
next few years for new prisons as it also attempts to bridge budget gaps
for education and medical services.

When a statewide poll in late August asked California voters if they would
support diverting thousands of nonviolent drug offenders to rehabilitation,
55 percent answered "yes" even though only 13 percent said they were aware
of the referendum.

Those eligible for diversion would include offenders charged with use,
possession or transport of drugs, including marijuana, cocaine,
methamphetamine and heroin.

The poll showed 27 percent were opposed to the idea, with 18 percent
undecided. The August poll showed a drop in support for Proposition 36
compared with the 64 percent support and 20 percent opposed in June.

Proposition 36 opponents say they're not opposed to treatment. But they
contend the proposed law would destroy the state's system of 101 drug
courts, which already offer treatment instead of incarceration for some
drug offenders.

Between 60 percent and 80 percent of all California inmates are destined to
return to prison, but advocates say drug courts lower the recidivism rate
for drug offenders. The General Accounting Office, the investigative arm of
Congress, reported that drug offenders who go to prison are four times as
likely to return to prison in five years as people who receive treatment.

Despite widespread praise for the system, no more than 10 percent of
California's offenders go through drug court because funding is
insufficient for treatment. Proposition 36 critics contend that what is
needed is a statewide vote to expand the drug courts -- not establish
another system.

The initiative is being funded by three out-of-state backers who critics
claim view California as a must-win state in their campaign to legalize drugs.

Philanthropist George Soros, University of Phoenix founder John Sperling
and Cleveland insurance executive Peter Lewis are sponsoring ballot
initiatives in Massachusetts, Utah and Oregon calling for money seized in
drug forfeitures to be used for such programs as drug treatment or education.

They are also sponsoring initiatives calling for legalization of marijuana
for medical use in Nevada and Colorado.

Proposition 36 spokesman Dave Fratello said backers are not supporting the
wholesale decriminalization of drugs.

"We don't buy into the dichotomy that you have to decriminalize drugs or
reinvest in the drug war," Fratello said. "There are a lot more moderate
policies in the middle. Proposition 36 is definitely in the middle."

Voters passed a similar law calling for drug treatment rather than
incarceration in Arizona in 1996, embedded in an initiative calling for
legalization of medical marijuana. It remains controversial, with many
high-profile prosecutors claiming that relatively few Arizona drug users
were imprisoned even before Proposition 200 passed -- and that claims of
costs savings there have been exaggerated, too.

Several representatives from the Maricopa County (Phoenix) Attorney's
office will travel to California on Tuesday for a seminar sponsored by the
California Narcotics Officers Association to debunk what they say are the
myths about Proposition 36.

"Bottom line, this initiative is going to result in less people in
treatment, and more crime," said Jeff Rubin, deputy district attorney in
California's Alameda County and a spokesman for the statewide district
attorneys association.

Rubin said only a tiny percentage of those charged with crimes ever go to
trial, while the vast majority plead guilty to a lesser offense.

The average drug offender will quickly figure out that demanding a trial
for possession, transport or use of drugs is a good roll of the dice, Rubin
said, because Proposition 36 will guarantee that the worst thing that can
happen is court-ordered drug treatment.

"We're not going to allow all the other crimes to be delayed to try
drug-possession cases," Rubin said. "The effect is we're going to dismiss
the drug charges. ... That's the real and practical effect of Proposition 36."

Treatment mandated by Proposition 36 is destined to fail, said Superior
Court Judge Stephen V. Manley, because none of the $120 million earmarked
under the law could be used for drug testing.

Manley administers a drug court in Santa Clara County, where some of the
county's drug offenders already are given treatment instead of prison terms.

The difference between drug courts and Proposition 36, Manley said, is that
the drug-court judge has the authority to administer swift and immediate
sanctions -- such as brief periods of time in jail -- if the drug offender
tests positive for drugs while undergoing treatment or otherwise fails to
cooperate. Frequent drug testing is key, he said.

Proposition backers said the California Assembly can choose to allocate
additional money for drug testing, but Manley fears sufficient funding
won't be available.

The drug-court movement is growing in popularity in California and across
the nation, Manley said. The willingness to try something other than
incarceration grew from judges' frustration with repeat offenders, he said.

"The problem is they keep coming back again and again -- we have a
revolving door," Manley said. "I see people I sentenced years ago still
using drugs."