PROPOSED CONSTITUTION CHANGE WOULD TREAT DRUG USERS

California Group Tries To Put Issue On Ohio Ballot

A California organization backed by three multimillionaires wants voters to
amend Ohio's Constitution to require that first or second-time drug
offenders be sentenced to treatment rather than jail.

The Campaign for New Drug Policies, based in Santa Monica, Calif., soon
plans to circulate petitions across Ohio to get voters to place the
amendment on the November, 2002, ballot.

The amendment would not only supplant judicial discretion in sentencing,
but would require the Ohio General Assembly to provide an unalterable
funding stream of $38 million through 2009 for drug treatment programs.

Creating such mandates doesn't set well with several local judges, state
officials already facing a cash crunch, and even some local drug treatment
program directors.

But that doesn't bother the campaign officials, who need 335,000 signatures
or 10 percent of the vote total in the last governor's race, in order to
get the amendment on Ohio ballots. They believe that voters here will do
what those in California did - ignore their elected officials and other
naysayers and approve the amendment.

"The political establishment opposed us and many [newspaper] editorial
boards opposed us, but we still passed with 61 percent of the vote," Dave
Fratello, a campaign spokesman, said of the group's successful California
effort.

The campaign plans to use big money from its backers to get their message
across to voters in Ohio.

The trio who shepherded the win in California are Peter B. Lewis, of
Cleveland, the recently retired CEO of Progressive Insurance; John
Sperling, of Arizona, founder of the University of Phoenix, and financier
George Soros of New York. They provide about 75 percent of the
organization's budget.

Mr. Fratello said about $4 million was spent in California, and a
substantial amount is expected to be poured into the Ohio drive as well.
The cash will be used to warm voters to the idea that people with drug
addictions should be treated rather than jailed.

Violent criminals and drug dealers would not be eligible for the program,
he said.

About 1,600 inmates are in Ohio prisons exclusively for drug possession
charges, according to the Ohio Department of Rehabilitation and Correction.
At a rate of $22,200 a year to house a prisoner, it costs about $35.5
million to incarcerate that population.

Another 2,400 inmates who are jailed for drug possession and other
nonviolent felonies might have been able to avoid prison under the
campaign' s proposal, depending on the nature of their charges and their
criminal records.

Mr. Fratello said the organization doesn't think people should be jailed
just for having a drug addiction.

"This is just a philosophical disagreement. Our view is that incarceration
is more of a last resort. It shouldn't be the first thing you do to
someone," Mr. Fratello said.

"To resort to what is only punishment right away is using a blunt
instrument when a little more creativity can result in more positive
changes," he said.

State and local officials say that Ohio judges already have the right to
send drug abusers to treatment programs - some of which are in lock-down
facilities - rather than to prison through the optional treatment in lieu
of conviction.

If a defendant asks for treatment, he or she enters a plea, but a finding
of guilt is put on hold, until treatment is completed. If the defendant
successfully completes treatment, the charges are dismissed. Defendants who
don't make it through successfully can be sent to prison.

This differs from the constitutional amendment proposal, which wouldn't
allow someone to be imprisoned until after a second offense.

"I don't send them to prison for a first offense of drug abuse anyway,"
Lucas County Common Pleas Judge Ronald Bowman said. "I have them take the
treatment, and I keep the prison sentence over their head."

Common Pleas Judge William Skow said he too usually opts to give someone a
second shot at treatment rather than send them to prison after a relapse.
But he emphasized that his patience isn't boundless.

"If they're a first-time offender, I don't think they belong in prison,"
the judge said. "At some level it's an illness - but I don't think you can
go forever without a prison sanction."

Though the movement here has flown mostly under the radar of the general
public because the petitions have not yet hit the streets, state leaders
such as Gov. Bob Taft and top legislators know the debate will be
contentious if the controversial issue goes to the voters.

The campaign directors are haggling with Ohio Attorney General Betty
Montgomery's office over the language that will be placed on the petitions
circulated among voters.

Mr. Taft has yet to come out with an official position on the proposal, but
spokesman Joe Andrews said the governor's office is opposed to the
amendment language it has seen so far.

"This has no business going into our constitution," said Domingo Herraiz,
who serves under Mr. Taft as director of the Office of Criminal Services.
"Can you imagine muddying the constitution with specific state agencies and
specific processes in the constitution? This is legislation, not a
constitutional amendment."

If what happened in California is any indication, Ohio legislators are
bound to come out in force against the policy changes as well.

Toledo Mayor-elect Jack Ford, former leader of the state House Democrats,
said he thinks the idea of diverting drug abusers into treatment rather
than incarceration has merit.

But Mr. Ford agrees with Mr. Herraiz that the legislature should approve
such programs and decide how much money should be put behind them.

"The legislature is there for a reason - to represent the people," said Mr.
Ford, who founded Substance Abuse Services, Inc., a nonprofit Toledo
organization that provides treatment for addicts. "Things that are
unforeseen [around the state] may require new priorities for spending. This
shouldn't be done in such a way that the legislature shouldn't have oversight."

But the people backing the campaign think most Ohio legislators won't find
it politically viable to back such a controversial proposal for dealing
with drug abusers, so they want to take the decision out of the hands of
elected officials.

Charles Saxbe, a Columbus lawyer who is representing the Campaign for New
Drug Policies, said the reforms sought by the group probably couldn't be
accomplished in the current conservative legislature.

"I think there will be a significant resistance to taking the
constitutional approach and imposing the funding requirements
constitutionally," Mr. Saxbe said. "It's easy to say there's a better way,
but if you can't get anyone to step forward and say, 'I will advance this
legislatively and it has a strong chance to succeed,' this is the only
other alternative."

Jay Salvage, executive director of the Lucas County Alcohol and Drug
Services Board, said he is all for pouring more money into drug abuse
programs and making more options available.

But Mr. Salvage said he thinks the threat of going to jail helps to
motivate addicts to stick with treatment because it takes some time before
substance abusers can adjust to sobriety.

"What the court can do with their hammer is make them stay in treatment
long enough so they get a little sobriety so they can start to learn what
the treatment system is about," Mr. Salvage said.

That there are so many voices of dissent doesn't surprise Mr. Fratello -
the same thing happened in California, which spends about $120 million a
year on the program.

Because the new law only took effect in July, it's too early to tell if the
goal of treating more addicts while spending less on prisons will be
successful.

Julia Bates, Lucas County prosecutor, said she likes Ohio's current system
that leaves the decision up to the judges' discretion because they're aware
of the facts in individual cases.

She also doesn't like that the constitutional amendment proposal doesn't
require a defendant to enter a plea before going into treatment.

By the time a defendant fails in two rehabilitation attempts, Mrs. Bates
said, it could be a year or two after the initial court appearance. After
that much time, she said, trying to prosecute such a stale case would be
extremely difficult.

"I guess my question would be, 'What does this do better than what we
already have?'" she said.

"We already have procedures that can keep someone from being convicted if
they go into treatment."