POLS EASE RAP FOR POT, SEX: JUDGES MAY GET OK TO ISSUE CIVIL FINES

Prostitutes and pot smokers could get the equivalent of a traffic ticket
slap on the wrist under a little-noticed budget rider that lawmakers hail
as a money-saver and prosecutors slam as the backdoor to decriminalization.

Tucked deep in the massive state budget, the provision would yank district
attorneys' discretion over whether to prosecute certain low- level
misdemeanors as civil or criminal infractions.

Instead, judges could choose to try crimes ranging from indecent exposure
to possession of marijuana or heroin as civil matters. Defendants wouldn't
need lawyers, wouldn't face jail and wouldn't even get a criminal record.

"That undercuts the quality of life," Suffolk District Attorney Daniel
Conley told the Herald yesterday. "If you leave those unchecked, that
breeds greater problems and violence."

Acting Gov. Jane M. Swift has strongly hinted she will veto the measure -
and it is unclear whether lawmakers will override that veto.

Backers of the provision complain that prosecutors have ignored a 1995 law
giving them such discretion to save time and money. The DA's readily admit
they rarely pursue civil prosecutions.

Conley fired off a letter to Swift yesterday, urging her to veto the item
and warning of "enormous and grave" consequences for communities if drug
users, hookers, vandals and barroom brawlers are turned loose.

House Republicans also prevailed on Swift to veto the item, saying it would
result in wildly disparate handling of similar cases, depending on whether
the judge was lenient or a hardliner.

Because Massachusetts judges are appointed, not elected, there's no public
accounting when a judge - like Maria Lopez, who treated a child molester
lightly - departs the reservation, Conley said.

"I am answerable to the public," Conley said. "Judges are not."

Other crimes that would be eligible for treatment as civil offenses include
lewd and lascivious behavior, threatening to commit a crime, disturbing the
peace, breaking and entering, attempted arson, fire alarm vandalism,
graffiti, credit card fraud and identity theft.

House leaders, who pushed the provision, defended it as a way to save
millions of dollars in public lawyer fees, as the state grapples with a
$2.5 billion deficit.

House Ways and Means Chairman John H. Rogers (D-Norwood) said the provision
could save about $1 million a year, since the state isn't required to
provide a lawyer in civil cases.

The state is spending $2.5 million annually on lawyers to defend
approximately 5,000 indigent people each year on low-level misdemeanor
charges, according to the Committee for Public Counsel Services.

Rogers called it a "waste of taxpayer money" to mount a full legal defense
for crimes like running red lights.

"We just thought that was a foolish waste of money," Rogers said.

Lawmakers often tuck controversial proposals into the outside sections,
where they can be swept into law along with the full budget - but without
public scrutiny or debate.

Swift, who has line-item veto power in budget matters, said state leaders
should be "even more acutely aware" of public safety priorities in the wake
of a recent spate of horrific violent crimes.

"It would be totally in line with past practices to come down, on any
section of the budget or any bill, on the side of public safety," she added.

Drug policy reformers hailed the move toward civil prosecution, saying it
could undo the heavy-handed sentencing practices of the "war on drugs," and
result in more effective treatment services.

About 20 percent of the state's 20,000-member prison population is serving
time on substance-abuse charges, said Michael Cutler, a participant in the
new advocacy group Massachusetts Drug Policy Forum.

Those people emerge from jail with criminal records - which civil
prosecutions would not produce, Cutler said. That hampers their future
employment and ability to secure financial aid for school, he said.

"We're hitting mosquitoes with bazookas," Cutler said, pointing to
Britain's recent decision to decriminalize marijuana. "It's a waste of
police resources to be chasing pot smokers."

Rogers first acknowledged that House lawmakers view many of the offenses in
question as "not crimes at all."

But he hastened to add that lawmakers didn't repeal the criminal penalties
- - just gave judges the nod to ignore them, in the interest of the bottom
line. "We don't decriminalize these acts," Rogers said.

Judge Samuel Zoll, chief justice of the district trial courts, said there's
nothing wrong with the current system of allowing prosecutors to choose
what type of charge to pursue. "I don't see any pressing need for change,"
Zoll said.

But retired Dorchester District Court Judge James Dolan said the new
flexibility could help judges reduce massive case backlogs.

"It permits you to resolve those cases very quickly," Dolan said. "They are
the kinds of cases where normally the penalty would not be that severe in
any event."

The provision comes as a total surprise to others - including Supreme
Judicial Court Chief Justice Margaret Marshall, the state's highest-
ranking court official.

"It just is coming at me out of left field," Marshall said yesterday on her
way into House Speaker Thomas M. Finneran's office to discuss budget cuts.
"I haven't seen it and I can't comment on it."