MARIN DRUG COURT FEELS PROP. 36 COMPETITION

What if they held a drug court and nobody came?

That's pretty much the situation in Marin Superior Court, where legal
and health professionals have developed an elaborate adult drug court
system with the help of a three-year, $500,000 federal grant and
another $72,000 in county funds.

Nearly three months after Marin's drug court opened its doors, the
alternative sentencing program with 50 slots for drug offenders has
only one taker.

Meanwhile, a drug treatment program established by California voters
through passage of Proposition 36 in 2000 has some 80 active Marin
participants since it started last summer.

"I think of Proposition 36 as an intervening variable," said Marin
Superior Court Executive Officer John Montgomery. "If it didn't exist,
our drug court would be doing gangbusters now."

Marin authorities say they're determined to push ahead with a drug
court because it's the best option to both help people get over
substance abuse problems and avoid the public expense of drug users'
return to the criminal justice system.

Judge Terrence Boren, who had added drug court to his other duties,
acknowledges that the Proposition 36 treatment regimen offers an
"easier ride" than drug court for offenders who want to tackle their
legal troubles - but not necessarily their drug problems.

"You cannot blame an attorney who's representing somebody who has the
option between drug court and Prop. 36 (to choose the latter)," he
said. "Drug court has the possibility of an immediate sanction of
jail. Prop. 36 says jail is only an ultimate, last resort."

Despite the apparent unpopularity of Marin's drug court, officials at
the highest levels sing the praises of the concept that others argue
may have peaked in California.

"Drug courts are a valuable tool for communities fighting substance
abuse and drug-related crime," said U.S. Attorney General John
Ashcroft last week in announcing an additional $34 million in drug
court funding for 94 programs nationwide. "Through intensive judicial
supervision, drug treatment and graduated sanctions, drug courts are
holding nonviolent drug offenders accountable, while helping them lead
productive lives."

Drug courts have been started in more than 1,000 jurisdictions
nationwide since the concept was pioneered in Florida 13 years ago.
Only a few California counties have not established at least one drug
court since the first one started in Oakland in 1993. Marin started a
juvenile drug court in 1999.

Adult drug court has proven popular among offenders willing to adhere
to an intense regimen of court appearances, counseling and oversight
in order to purge a drug case from their records.

But Marin's drug court is coming on line at a time when some
California drug courts are seeing decreased participation and even
closing down. Contra Costa County, for instance, will soon lose its
one adult drug court program due to budget shortfalls.

Bay Area drug courts have seen fluctuations in participation in recent
years, but officials say it's too early to say how Proposition 36 is
affecting drug courts already in place. Further analysis is expected
after Proposition 36 concludes its first full year of operation at the
end of this month.

Tackling Drug Use

Brian Lambert, a supervisor with the county probation department, said
drug courts have proven effective with people who truly want to
address their drug use and are prepared to change both their lifestyle
and social circle.

Programs such as drug courts and Proposition 36 have caught on in some
communities, he said, but whether they will take root here remains to
be seen.

"Marin really does not need Proposition 36, or drug court for that
matter," said Lambert, who oversees both the Proposition 36 and adult
drug court programs. "Marin already had a really progressive
diversion program in place before either of those started. In a way,
the adult drug court has not seen a lot of activity because of the
success of the alternative programs we are already using."

Drug court is intended for non-violent drug users. An individual's
eligibility for sentencing under drug court, Proposition 36 or
separate diversion programs vary depending on the person's criminal
history and other factors.

People arrested for being under the influence or possessing small
amounts of illegal drugs for the first time already have a way to
erase an arrest by going through diversion programs established by the
court.

Drug court and Proposition 36 are options for those who don't qualify
for diversion.

The drug court and Proposition 36 programs are similar in that they
both call for treatment rather than extended incarceration and both
result in a criminal sentence being expunged after successful completion.

But drug court is far more intensive and can take much less time to
complete than treatment under Proposition 36. Short-term jail stints
can be imposed for those who violate drug court terms, whereas
Proposition 36 participants can only be ordered to have further
treatment except under the most extreme cases.

"There are people who come to court, especially after they hit rock
bottom, and they'll say, 'I'm sick and tired of being sick and tired.
I don't like this life. Tell me what I can do.'" Boren said. "Those
are the people we're ready to deal with in drug court."

Drug Court Success

Studies show that drug court graduates, as opposed to others convicted
of the same drug crimes, are far more likely to have drug-free babies,
remain employed, complete their education, pay child support and
regain custody of their children.

Drug courts also remove large numbers of people, many of them repeat
offenders, from taking up space on busy court dockets and in
overcrowded jails, saving large sums of money for local and state
governments in the process.

The bulk of the federal funds for Marin's drug court is used to pay
for treatment. In the case of Proposition 36, a total of $120 million
was split among the state's 58 counties; some larger counties saw
their allocations quickly dry up, forcing them to dip into their
general funds and other pots of money to cover the costs.

Marin, however, failed to spend its full $721,000 share of ongoing
operating costs for Proposition 36 in 2001-02 and actually will end
the fiscal year significantly in the black, according to D.J. Pierce,
resource development coordinator with the county's department of
health and human services.

The nine-member drug court team is made up of court regulars - a
judge, prosecutor, public defender and probation officials - as well
as a police officer, county health workers and a representative of
Center Point, the drug treatment facility designated to treat drug
court participants.

Drug court, like Proposition 36, is a post-sentence program in Marin,
meaning that a person must plead guilty to be eligible. Dismissal from
either program will in all likelihood result in the imposition of an
original criminal sentence that in most cases includes time behinds
bars.

Potential participants are initially screened for eligibility by the
district attorney's office, which conducts an assessment of past
convictions and current charges. A second assessment is then made by a
drug court specialist to determine a person's suitability for the program.

"We want to make sure that these people who come to us who are
potential participants, who have had so many failures in their
relationships and jobs and other things are not being set up for
failure," said Teena Scovis Weston, the drug court assessment/case
management specialist.

If selected, an individual will eventually face the judge. However,
the judge is more of an equal player in the process than the lone
arbitrator in the traditional sense.

"The judge is not there so much as a judicial figure," said Marin Drug
Court Coordinator Ron Johnny, who has previously served as a judge in
American Indian drug courts in Arizona and Nevada. "The judge really
plays the role of the parent that's never been there."

The Structure

Drug court consists of three phases, the first two of which take a
minimum 60 days to complete and the last one a minimum of 90 days.
Next comes 180 days of supervised probation and, for the successful, a
graduation ceremony.

Court appearances, counseling and urine testing are involved in all
phases, although the frequency and duration of the requirements
decline as a participant progresses.

District Attorney Paula Kamena has long supported the "therapeutic
justice" afforded by drug courts and was an outspoken critic of
Proposition 36 before it passed, saying at the time that "drug courts
would be gutted by Proposition 36."

Kamena said she now works to ensure that both programs are viable. But
she said that without the threat of jail in drug court, she is
concerned people could lose their incentive to complete treatment
through Proposition 36.

The hope, Kamena said, is that for every drug court graduation
certificate handed out there will be a reciprocal drop in the number
of associated crimes, prosecuted or otherwise, that a participant
might otherwise commit to feed a drug habit.

"I think drug courts are the best thing since sliced bread," she said.
"If there is a reduction in property crimes because of drug court or a
reduction in violent crimes because of drug court, that's
tremendous."

Frank Cox, chief deputy public defender, is also a staunch drug court
supporter.

"You can't punish someone into wellness," said Cox, a member of the
drug court's planning team. "If we can be part of a larger system that
uses all the strengths of the prosecutors and the defenders and
probation and the judges and law enforcement and health and human
services in a way that identifies and wherever possible collaborates
toward addressing the underlying problems in the community and
restoring people to sobriety, employability ... (and) trainability,
then we've made the community safe in ways no jail or prison can do."

But probation's Lambert said such a committed team will not prove
effective if someone is not willing to genuinely accept the help.

"If I was vocalizing that I wanted to get off drugs, for the purposes
of court or whatever, and I really didn't want to get off drugs, I
wouldn't choose drug court," he said. "Why would I sign up ... and
risk the chance of going to jail? I'd want to go through (Proposition)
36, do my program and get on with my life."

Referrals Slow

Private defense attorneys are skeptical of the Marin drug court
program despite the outreach efforts of Johnny and other drug court
team members.

The one Marin drug court participant - a 28-year-old man arrested on
suspicion of being under the influence of a controlled substance in
San Rafael on St. Patrick's Day - was referred to the program by the
public defender, as were the handful of others who have expressed
interest in the program to date.

The sole participant, who has since pleaded guilty to a lesser offense
in a plea deal that included drug court, declined to be interviewed
for this story.

"I really don't see any advantages for a person to choose drug court
over Proposition 36," said veteran defense attorney Michael Marowitz,
who has taught law at Stanford University.

"I was at the meeting where (Judge) Boren explained the program. I
asked him why they chose to make it a post-plea program rather than a
pre-plea. But I already knew the answer, which is that it was what the
D.A. wanted, and in this county the D.A. gets what she wants."

Marowitz said he would have been interested in a pre-plea arrangement,
which allows a person to lawfully claim a clean criminal record to
prospective employers, landlords and others by way of a deferred entry
of judgment while taking part in the program.

"As it is now, you have to plead guilty from the outset and are boxed
into a conviction that you've got to work your way out of (to erase
the conviction from your record)," he said.

Montgomery, the county court administrator, said defense attorneys
always prefer a pre-plea drug court arrangement, as is the case in
some counties, because it is more advantageous for their clients.

A post-plea arrangement gives the court some "clout" and takes away
the possibility that the same criminal cases will once again clog busy
court dockets, he said.

"With the system as it is, there definitely is a stick in there but
the carrot is there, too," Montgomery said.