HUGS NOT DRUGS

A New Initiative, Prop. 36, Seeks To Reduce The Prison Population And Save
Taxpayers Millions. So Why Are So Many Drug Professionals Against It?

MARLENE TEEHAN'S '93 Volkswagen Cabriolet was a good investment. It was
something she could post for bail; a forfeit she could exchange for instant
access to the streets, but more importantly, for dope. The marketing sales
rep had circled through several treatment programs and landed herself in the
Penal Code 1000 program, California's court deferral program for first-time
drug offenders, where she was put on probation and schooled on how to quit.
But the treatment program, which she attended a year and a half ago, never
stopped her smoking "eight-balls," or solid sixteenths of methamphetamine.
Often, Teehan toked up down the street before teetering, high, into her drug
treatment class, where she'd push it. "I made connections. I met a wide base
of users there," she says with a gruff, knowing laugh.

Teehan finished the 12-week program but she never completed the mandatory
drug tests because she was baked from day one. She was later arrested in her
car, with half an ounce stowed under the ashtray, but this time, she got
sent down. When she begged her father to put the Cabriolet up for bail, he
refused, and as Teehan remembers it, the next five months were a brutal but
necessary lesson. "Before, it was always my way," she says. "In jail, it's
their way. They dictate everything you do. This time, I got the message."

When Teehan, a sturdy, sporty-looking woman, read about Proposition 36, an
upcoming initiative that seeks to put most first- and second-time drug
offenders into treatment programs instead of in jail, her reaction to the
proposition's "treatment, not jails" tagline was strong and immediate. "No
way!" she says, her dark eyebrows shooting up. "You've got to answer to
someone. Jail is a hell of a wake-up call."

In California, Proposition 36 looks to be the next battle in the drawn-out,
national war on drugs. If passed, the initiative would divert approximately
37,000 nonviolent drug offenders from California's prisons, which hold the
highest rate of admissions for drug-related offenses in the country. But the
proposition's drafters and campaign heads--which include two staffers from
the voter approved medical marijuana initiative--couldn't have done a worse
job building consensus for their plan. Not only did they fail to approach
drug court judges, seeming natural allies whose goals largely parallel
theirs, they've also whipped them into a fury over the initiative's removal
of an iron fist--mainly, court sanctions allowing for flash incarcerations.

"The initiative won't usurp the drug courts, it will cripple them," says
Steven Manley, president of the executive committee of the California
Association of Drug Court Professionals and a Santa Clara County Superior
Court judge. "[The initiative's authors] have missed the point."

Perhaps they were stoned.

Block Busters

VOTERS MIGHT HAVE expected more from Proposition 36's authors, some of the
same folks who put together the wildly successful medical marijuana
initiative of 1996, Proposition 215.

If passed, Proposition 36, which is backed by the same deep-pocket trio that
financed Proposition 215--George Soros, Peter Lewis and John Sperling, would
reduce the state's prison population, saving taxpayers an annual $150
million to $200 million.

For decades now, as illicit drug use has continued to fluctuate, drug law
professionals and reformers have split hairs over how, exactly, to address
addiction. Only this time, opponents of Proposition 36 are not the usual
suspects. To be expected, there's the California Correctional Peace Officers
Association, the paradoxically named prison guard union, which opposes
reforms aimed at easing convictions. The CCPOA, which boasts 28,000 members,
a $17 million budget and 17 staff attorneys, exercises little financial
restraint when it comes to attacking laws it sees as soft on drugs.

But surprisingly, some of the most vocal opposition has come from
California's own drug treatment courts, established in the early '90s to
treat drug abuse as a chronic and progressive disease. Proposition 36's
intent--to place drug offenders in treatment instead of jail--would seem in
line with the drug courts' objective. So why oppose it? "I don't think
there's any dispute we need more treatment," says Judge Manley, an
impassioned and outspoken opponent. "What the proposition will do is deny
judges the tools needed to hold [defendants] accountable. Without
supervision, without sanctions, there will be no success in treatment." What
Manley is referring to is the proposition's stance to prohibit sanctions
before the defendant's third violation.

According to Manley, short jail stays are the effective means judges use to
keep addicts in treatment. "You don't realize how sly an addict is, the
craving and addiction are so strong," says Teehan. "I was conniving,
manipulative--a liar." The drug treatment court, Manley explains, works like
this: the defendant must have a job, undergo weekly drug tests, attend daily
12-step meetings, make frequent appearances before the judge, and put in
hours of volunteer work. If the defendant relapses, his treatment can be
upped or he can be incarcerated for a few days as a warning. Basically, it's
far from easy street.

Under Proposition 36, the court cannot impose short-term jail time as an
additional condition of probation. Instead, the judge can sentence the
defendant to 30 days in jail only after he chalks up two separate
convictions for nonviolent drug possession and two failed attempts at
treatment. This means that sanctions only kick in after the third offense.
And after 30 days, well, according to the proposition, the defendant is on
his own. He can either clean up, or--if he gets caught again, which, for an
addict trying to feed an addiction, is likely--he goes to jail.

"You can't just send [addicts] out to treatment programs and tell them 'go
forth and be well,'" says Santa Clara County Superior Court Judge Sharon
Chatman, who sits on the board of Drug Court Professionals with Manley. "If
you have 120 days hanging over your head, that forces you to adhere to the
drug court plan." Chatman argues that by putting a lid on the number of days
a judge can impose custody, the proposition is enabling.

"It was poorly drafted and poorly conceived," says Contra Costa County
Superior Court Judge Harlan Grossman, who suspects the Proposition 36
team--funded by Proposition 215's same backers--gleaned that public support
lay in treatment rather than legalization when it drew up the initiative.
"It goes a long, long way toward decriminalizing drug offenses. I'm not
going to take a position on that, but saying it will complement drug court
operations is the furthest thing from the truth."

Another thorn in the drug court's side is the initiative's failure to
earmark funds for drug testing. The act specifically states that
distribution of money is to go to services "other than drug testing." "I
don't believe they consulted anyone in California who knows anything about
drug addicts and the criminal justice system," says Manley. "[Drug testing]
is the only way you can tell if someone's using." Chatman, who agrees, feels
the campaign's lack of oversight goes much deeper. "It boggles my mind why
they didn't sit down with us. We've got a different view of success--we're
committed to a system of strict accountability," she says, adding, "but the
focus is the same."

The Word Is Unheard

THE PROPOSITION 36 campaign hasn't been too successful getting the word out
on treatment. Of five different treatment houses in the San Jose area, not a
single person--from drug counselors up to administration--had heard of it.
But all were eager to learn more.

The drug courts, however, have been adamant about pulling the covers over
the bill. Last week, Manley and Proposition 36's spokesman, Dave Fratello,
spoke on National Public Radio's "Talk of the Nation." Manley's cry for
unforgiving penalties captured host Juan Williams' attention. When asked how
successful drug courts were in California, Manley cited a report by the
General Accounting Office. According to the report, rearrest rates were
extremely low for drug court graduates, hovering at 8 percent for those in
the city of San Jose. For defendants who did not participate in a drug court
treatment program with sanctions, the rearrest rate was 47 percent.

Narcotic Effect

PROPOSITION 36's team boasts veteran political consultant Bill Zimmerman and
Dave Fratello, former spokesman for Americans for Medical Rights, and Soros,
Sperling and Lewis's political action committee.

Fratello, who runs the Proposition 36 campaign from Los Angeles, answers
questions carefully after measured pauses. He says the sour feelings and
vigorous opposition exhibited by the drug courts have been surprising. "We
knew there would be tension, but there were aspects of the drug court that
we didn't want to duplicate," he says. "[The judges] are so preoccupied with
killing this initiative, they've never asked if it was possible to make it
work."

Dan Abrahamson, head lawyer at the Lindesmith Drug Policy Foundation in San
Francisco and who drafted the initiative, sees the judges' response as
defensive. "It's a question of turf, territory and ego," he says, adding
that it's too late to approach them. "The fact that they're so vocal
suggests the drug courts are omnipresent. They're not." Abrahamson says he
did consult judges and treatment providers across the country--none voiced
any dissent. Fratello says he spoke to a public defender, a deputy district
attorney and a few treatment providers--all of whom asked for anonymity and
remain nameless.

When it comes down to the bones of the argument, Fratello is well-versed.
"We get tarred as having an initiative that isn't about accountability," he
says. "The truth is, it's about flexibility, where the judge is really in
the driver's seat. The initiative allows them to impose accountability by
their standards." Regarding money and drug testing, the proposition poses no
legal barriers to drug testing, Fratello says. Proposition 36's budget
instead aims to direct money toward the serious shortfall of treatment
services.

The lack of treatment opportunities for offenders has important
implications. And, if anything, Proposition 36 accurately pinpoints this
growing need. If passed, Proposition 36 would make every court in California
a drug court. Currently, the drug court system, both on the state and
national levels, is overburdened and small. In all of California, there are
104 drug courts. In Santa Clara County, the adult drug court has a total of
696 active participants. Using rough numbers to estimate how many offenders
the Santa Clara County drug court reaches, only 7.5 percent of those
convicted actually make it in. Considering 28 percent of California's
current inmate population has been locked up for drug-related offenses, we
have a long way to go.

Fratello, though sometimes sluggish with his other responses, voices this
concern eloquently. "The drug court hasn't hitched their wagon to ours, but
we both have a lot at stake in the success of this measure. If this is
defeated," he says, "it doesn't logically follow that the drug courts will
have an easy time expanding the system." As it stands, the drug courts are
desperate for funding.

But in crafting an initiative without the input of those sitting on the
front lines, the campaign's proponents missed a valuable opportunity to make
a workable system. Instead, drug court judges, fearing the initiative lacks
the heavy-handed approach they consider vital to success, will be against
it.

"You're not going to cooperate if you have no fear," Teehan says. "That's
what prison does--you have fear. It takes away your dignity, your respect,
your right to privacy, even the choice of food you eat. I wouldn't have
stopped [using] without intervention."