PROP. 36 BACKERS CHALLENGE DRUG LAWS

The Initiative Would Require Drug Treatment Programs, Not Jail Time, For
Nonviolent Offenders, Diminishing Judges' Power

The same folks who helped pass Proposition 215, the medical marijuana
initiative, are again challenging California's drug laws, this time with a
measure that would require drug treatment rather than prison for most
nonviolent drug offenders.

Under the Substance Abuse and Crime Prevention Act, on the November ballot
as Proposition 36, people convicted of being under the influence or of
possessing illegal drugs for personal use would face probation and up to 18
months of mandatory drug treatment.

Those convicted of selling or manufacturing drugs would not be eligible, nor
would anyone who had been convicted of a violent felony within five years of
the drug offense.

The initiative would appropriate $120 million a year in state funds to
counties for drug treatment programs. Even with those costs, the California
Legislative Analyst estimates it would produce an annual net savings to the
state of $100 million to $150 million by diverting roughly 35,000 people per
year from jail or prison.

The measure has strong opposition from many in the criminal justice system,
including Contra Costa Superior Court Judge Harlan Grossman and Alameda
County District Attorney Tom Orloff, who contend the initiative will
essentially decriminalize drug use, without ensuring that offenders stick
with treatment.

"It could be de facto legalization, with nobody getting treatment and more
criminal conduct, because there are no consequences for using," Grossman
said. "People will continue to use and abuse drugs, and other crimes will be
committed."

Many in the drug rehabilitation field disagree and say it's time for drug
addiction to be treated like a disease rather than a crime.

"It's clear current policies are failing and that incarceration isn't
helping the problem," said Kyle Moore, medical director at a Richmond
substance abuse program that hosted a campaign event in support of Prop. 36
last week. "We need to use a carrot rather than a stick."

Some clients from the Richmond clinic, which is run by Bay Area Addiction
Research and Treatment, also stumped for the measure, arguing that
incarceration feeds the problem of addiction.

"It's scary leaving the drug world," said Marilyn Roth, who has been in and
out of methadone programs since the 1970s. "We have to reinvent our lives
and that's not going to happen in jail. ... The first thing you have to do
is get away from the criminal minds."

The debate has drawn high-profile advocates on each side. Hollywood actor
Martin Sheen has been speaking against the initiative, while much of the
campaign money for Prop. 36 has come from a trio of wealthy businessmen who
also supported the medical marijuana initiative. They including billionaire
philanthropist George Soros of New York, University of Phoenix founder John
Sperling and car insurance magnate Peter Lewis. By the end of June, the
three men had together given about $1 million.

Opponents, by contrast, had raised roughly $110,000, most of it from real
estate mogul A.G. Spanos and the California Narcotic Officers Association.

"I look at it as a social experiment by an out-of-state billionaire," said
Grossman, referring to Soros' involvement. "It's troubling to me that the
criminal justice system could be turned on its ear because of that."

Grossman serves as the judge for Contra Costa's drug court, part of a
statewide program that allows some drug offenders to opt for
court-supervised rehabilitation, drug treatment and probation rather than
jail or prison time.

He and some other opponents agree with Prop. 36 supporters that more drug
treatment is needed, but say the initiative will have the opposite result.

"It's much preferable to have someone in treatment than in prison," said
Alameda County Deputy District Attorney Jeff Rubin. "But what works are the
elements of the drug court that won't take place under Prop. 36."

Judges will no longer have the ability to impose immediate sanctions on
someone who violates treatment guidelines, he said. Nor does the initiative
set aside money to pay for drug testing.

In Grossman's Friday morning drug court, for instance, offenders take a drug
test. If it comes up positive, Grossman has the option of summarily sending
them to jail for a few days as a "wake-up call."

Prop. 36, by contrast, creates a cumbersome system in which alleged
probation violations would have to be proven in court before a judge could
consider imposing sanctions, Grossman said. Even then, a judge would first
have to find that a defendant was "unamenable to treatment," before jail or
prison could be imposed.

The measure also contains provisions that specify that a drug offender who
has gone through probation and treatment twice, be sentenced to 30 days in
jail for additional offenses.

"That's for the rest of their lives," Rubin said. "You talk to a drug addict
and they'll tell you 30 days in jail is a vacation."

Opponents also contend that relatively minor drug offenses might clog the
system, because defendants won't have any reason to plea bargain. If they go
to trial, they might be acquitted; at most, they'll be sentenced to
noncustodial drug treatment.

"You take away any downside to going to trial," Rubin said. The courts could
become so swamped that cases are dismissed for not coming to trial soon
enough, he said. Prosecutors, in turn, might simply decide not to bother
charging people for drug possession.

Proponents of Prop. 36 say that's an alarmist scenario developed by
prosecutors and judges who think the initiative usurps their authority.

"The drug court judges are into the old school paradigm. They want to punish
people and put them away," said Evan Kletter, chief operating officer of
BAART, which runs 10 clinics in addition to the one in Richmond.

He and other Prop. 36 supporters say that drug courts, while a step in the
right direction, are inadequate to reach all the people who need treatment.
They estimate that about 5 percent of eligible offenders are given the
option of drug court.

Contra Costa County's drug court, for instance, has only 41 participants.

"That's how limited it is," said Prop. 36 campaign manager Dave Fratello.

The numbers are small because sentencing judges get to decide whether to
offer drug court as an option to a convicted offender, he said.

"Judges have taken the lead in this area, and they write the rules for who
gets in," Fratello said. "This (initiative) provides different rules:
Everyone qualifies."

He also disagreed that drug treatment won't work without court-supervised
drug tests and jail sanctions.

"It's a bias of the criminal justice system that you have to supervise
people and that you have to punish them," Fratello said. "That's not the
only effective way to do treatment."