NO LOCKUPS FOR 1ST-TIME DRUG OFFENDERS

People convicted of using and possessing illegal drugs cannot be
incarcerated for their first offense, even if they violate probation, the
Arizona Supreme Court ruled Monday.

In a unanimous opinion, the justices interpreted a 1996 ballot proposal
approved by Arizona voters that treatment -- not jail time -- is to be the
emphasis in first-time drug convictions. Their ruling came from the case of
a Yuma man who admitted to possessing less than 9 grams of methamphetamine.
When he was sentenced to jail as part of his probation, he appealed on the
grounds he was a first-time offender.

Defense attorneys hailed Monday's opinion, saying it not only clarifies a
state law put into place by voters but is also indicative of a national
trend toward treatment vs. incarceration in fighting drugs.

Disappointed prosecutors, however, said the opinion will hamper drug
treatment and effective prosecution. And it could affect hundreds of
sentences imposed this past year.

In its opinion, the Supreme Court overturned two lower court decisions that
distinguished between prison time and jail time. Judges in some counties
have been imposing jail time as part of probation for first-time offenders,
particularly in cases where a defendant has a prior criminal record for
non-drug offenses.

The opinion cites Proposition 200, the Drug Medicalization, Prevention and
Control Act, approved by voters in 1996 that provided more than $2 million
in liquor tax money last fiscal year for treatment. The measure requires
probation instead of prison for non-violent first- and second-time drug
offenders. It also requires drug counseling and education.

Arizona voters were told that passage would mean no jail for first-time
drug offenders. But in 1997, the state Court of Appeals upheld a lower
court's jail sentence, saying the measure's fine print mentioned only
prisons, not jails.

Monday, the Supreme Court disagreed, saying the measure applies to any form
of incarceration.

"It's a reflection of . . . wise minds realizing that the war on drugs,
when it comes to low-level offenders, is costing us a whole lot more than
what it's worth," defense lawyer Al Flores said about the ruling. "Simply
warehousing drug offenders is not solving the problem."

Phoenix attorney Paul Eckstein, who represents the backers of Proposition
200, said the opinion is a victory for voters.

The state Legislature tried to repeal the law, and voters who brought it
back in 1998 are now vindicated, he said.

"It's important because it clarifies the law . . . (and) because this
proposition has been interpreted by the court as people intended it be
interpreted," he said.

"There are people in this state that think this policy is ill-advised,"
Eckstein said about the emphasis on treatment. "But there are more people .
. . who feel education, treatment and help are better alternatives than
jailing first-time offenders."

Prosecutors said they are not surprised by the latest interpretation of a
confusing law.

But eliminating jail time will only hamper treatment, Special Assistant
Maricopa County Attorney Jerry Landau said.

Currently, drug court is succeeding, in part, because judges can use the
threat of jail as a "stick" over a defendant's head, Landau said.

"Drug court is a successful program where a judge uses a number of tools to
closely supervise and monitor an offender," he said.

For example, a judge can threaten to place someone in jail for three months
if they do not pass urine testing for illegal drugs.

Now, judges no longer have that option, he said.

"To effectively treat people involved with the criminal justice system, you
just can't say, "OK, Mr. Druggie, go to treatment and everything will be
fine,' " Landau said. "It's hard to work with persons on drugs, and it's
hard to kick certain drugs."

But for the most part, first-time possessors of illegal drugs with no prior
criminal record receive probation already, he said.

What's disturbing is that the ruling will now prevent judges from
incarcerating criminals who have prior non-drug-related criminal records,
Landau said. Once they come back into the system with a drug offense for
dangerous drugs such as heroin, cocaine or PCP, they will have to be
released, he said.

He fears the opinion will gut the effective prosecution of drug cases.

"Now, the person can pretty much blow you off," he said.

He does not fault the Supreme Court, however. The real culprit is the
poorly drafted proposition, he said.

"It is flawed because it is open to more than one interpretation," Landau
said. "We're seeing the result now, with the bevy of litigation."