DAS FIGHT CHANGE IN DRUG SENTENCES

The state's highest court heard arguments yesterday on the constitutionality of a ballot question that would provide treatment instead of jail for some drug offenders.

Proponents of the ballot initiative, Proposition P, say it would bring about long-needed reform of the state's drug seizure laws and shift the focus of the war on drugs from incarceration to rehabilitation.

Opponents, including the state's 11 district attorneys, say the measure would make it more difficult for police and prosecutors to get drug dealers off the streets.

The district attorneys and 11 taxpayers have filed a lawsuit challenging the constitutionality of the proposal, which also is known as Question 8.

At the heart of yesterday's hearing before the state Supreme Judicial Court in Boston was whether the proposal violates the state and federal constitutions.

Under the ballot question, money and property seized during drug arrests -- money that now goes to the district attorneys and local police for law enforcement purposes -- would be earmarked for drug treatment programs.

The initiative also would toughen the standards under which police can seize assets in drug cases, and would make first- and second-time drug offenders deemed at risk of addiction eligible for court-monitored treatment instead of jail.

Middlesex District Attorney Martha Coakley argued before the SJC that Question 8 violates four key constitutional provisions in that its sections do not relate to a "common purpose"; it tries to control federal drug forfeiture funds, which she said violates the U.S. Constitution; it appropriates state funds; and it seeks to expand the powers of the courts, which ballot questions cannot do.

Assistant Attorney General Peter Sacks defended putting the question on the ballot. By law, the attorney general's office screens ballot questions to determine whether they meet constitutional muster.

Mr. Sacks argued that there is a common purpose to the proposal because it increases the availability of drug treatment through drug forfeiture money. He also rejected Ms. Coakley's other arguments, saying the question does not mandate an appropriation of funds or significantly alter the powers of the courts.

"Basically, I'm opposed to it because it's really a subterfuge. It purports to do one thing and it does several other things," said Worcester District Attorney John J. Conte.

Mr. Conte said he is in favor of drug treatment, but not at the expense of doing away with mandatory sentences for drug offenders. Question 8 would give judges the power to sentence first- and second-time drug offenders facing mandatory sentences to treatment programs if the offenders can show they are drug-addicted or at risk of becoming addicted.

"Instead of going forward here, we're going backwards," the Worcester district attorney said. "Our ability to fight drugs is enhanced in this commonwealth by mandatory sentencing."

Mr. Conte also noted that New York financier George Soros, Phoenix businessman John Sperling and Cleveland insurance executive Peter B. Lewis made large financial contributions to the initiative's supporters.

"It's well-known that their stated purpose is to decriminalize drugs," he said.

William T. Breault, chairman of the Main South Alliance for Public Safety in Worcester, who attended yesterday's court hearing, echoed Mr. Conte's sentiments.

"This outside money, I believe, is not part of the democratic process," he said, adding that passage of the ballot question could "have a devastating impact on areas such as Main South."

Ronal C. Madnick, executive director of the Worcester County Chapter of the American Civil Liberties Union of Massachusetts, accused the state's district attorneys of engaging in frivolous court action to block "meaningful drug-policy reform."

Mr. Madnick noted that a recent federal study cited Massachusetts as having the highest levels of drug abuse in the country, and a state Department of Public Health report on substance abuse released earlier this summer showed the effectiveness of drug treatment.

"That leads us to think that the system we have now is faulty," he said.

"We think drugs is more of a public health problem than a criminal problem," Mr. Madnick said. "The DAs don't want to admit their failure. We're saying treatment is a better way."

He also said Question 8 would give judges the discretion to order treatment instead of jail, but would not require them to do so.

"It doesn't say they have to," he said.

Mr. Madnick said the proposal has the support of former Massachusetts Attorneys General Scott Harshbarger, Francis X. Bellotti and James Shannon; the Massachusetts Association of Alcoholism and Drug Abuse Counselors; the Criminal Justice Policy Coalition; and the League of Women Voters of Massachusetts.

The SJC is expected to make a decision before October.