PROP. 36 INITIATIVE OPPOSED BY D.A.

STAFF WRITER OAKLAND -- Be warned: Discussing the new California drug
initiative with the county's top prosecutor means consenting to an earful
on "elitist out-of-state billionaires" he believes are conspiring to
legalize drugs.

Only one district attorney in the state has endorsed Proposition 36, which
would mandate recovery programs instead of jail terms for many drug
offenders, so Alameda County D.A. Tom Orloff apparently is not alone on his
soapbox. And his recent ascension to president of the California District
Attorneys Association ensures his shouts will be heard all the way to
Sacramento.

With more than 2,300 members, the association is not just a social club for
tough-talking state attorneys. Lump that many lawyers together, and what
you have is one serious lobbying force as the November elections creep
closer. For Orloff, Proposition 36 is the one to beat this year. Always an
outspoken proponent of "three strikes" and other prosecution tools, he has
conceived a complete agenda he plans to push throughout his one-year term.
Elected by a panel of all 58 California district attorneys, Orloff was
sworn in as association president at a late June conference in his hometown
of Pleasanton. In his inaugural speech, Orloff outlined the issues dear to
him to about 300 prosecutors -- and his mother -- who attended.

Seated at the same desk used in the 1920s by the late prosecutor, attorney
general, governor and Supreme Court justice Earl Warren -- an early
president of the association when he was the Alameda County D.A. -- the
56-year-old Orloff recently spoke, at length and in measured tones, about
the opportunities for advocacy afforded by his avocation. Proposition 36 is
modeled after an Arizona law championed by the same three men who are
funding the initiative drive in California: out-of-state billionaire George
Soros, a New York financier; John Sperling of the University of Phoenix;
and Ohioan Peter Lewis, Progressive Insurance chairman. The proposition
favors treatment over incarceration of those charged with drug possession,
for both first-timers and parole violators.

The Oakland City Council and state Sen. Don Perata, D-Alameda, have
endorsed Proposition 36.

Orloff goes ashen when the initiative is mentioned. He thinks it eliminates
judges' discretion and ignores existing, often-used options such as drug
court and diversion. It also erases the fear of getting caught, he says.

"It's a carrot-and-stick approach. You need at least the threat of jail,"
Orloff said. Without that threat, "there's no stick."

He believes the proposed law is a step toward the kind of drug legalization
that Milton Friedman and his compatriots have advocated for years. Orloff
envisions the man in the "ivory tower" deigning to decide who would and
would not use drugs, given the freedom to choose without fear of repercussions.

"It really is an elitist view because there are some people that, no matter
what you do, are going to use drugs. There are some people, no matter what
you do, who will not use drugs. And there's a whole bunch of people in the
middle who don't do drugs because of the consequences," he said.

With decriminalization, "you eliminate the middle."

With his passion for prosecution, Orloff is carving his niche in the
county's long history of legislative participation, says Larry Brown,
executive director of the D.A.'s association. Alameda County was, and still
is, home to many of the association's top-tier players. "Earl Warren was
widely credited with resuscitating the association, in making it a presence
at the state capitol," Brown said. "The Alameda County D.A.'s office
historically has played an influential role for prosecutors statewide,
providing legislative representation for well over 50 years. In some
respects, they continue that role because the office is replete with experts."

After Warren, past county District Attorneys Lowell Jensen and Jack Meehan
each served a stint as association president. And today, special-interest
committees are chaired by the office's sexual assault prosecutor Nancy
O'Malley; public-assistance fraud specialist Greg Gibeson; and noted DNA
expert Rockne Harmon.

Brown says Orloff is widely considered as a prosecutors' prosecutor whose
fairly conservative beliefs reflect the best interests of his fellows.

"One of the key roles for the president is to set the tone and the agenda
for the organization," Brown said. "D.A.s can be a pretty strongly
opinionated bunch. The role of the president is to reach consensus -- not
always an easy feat."

But with his stated goal to protect prosecutorial gains made in recent
years, Orloff is likely to register high on the popularity meter. He
believes inclusion of more evidence in the courtroom, longer sentences and
stronger special circumstances have effectively targeted "career criminals"
while allowing attorneys and judges enough discretion to give frequent
breaks to less-habitual lawbreakers.

" It's kind of a holding pattern," Orloff said. "We're very fortunate that
Gov. (Gray) Davis has been very favorable to prosecutors, even though he's
a Democratic governor and there's a Democratic Legislature. He's an Orloff
Democrat in the sense that he's vetoed some stuff that would have been
harmful to us.

"We have most of the tools we need. Now what we need to do is keep them."