Pubdate: Mon, 30 Oct 2000
Source: Oakland Tribune (CA)
Copyright: 2000 MediaNews Group, Inc. and ANG Newspapers
Contact:  66 Jack London Sq., Oakland, CA 94607
Feedback: http://www.newschoice.com/asp-bin/feedback.asp?PUID=486
Website: http://www.oaklandtribune.com/
Author: Josh Richman
Bookmark: For Substance Abuse and Crime Prevention Act items:
http://www.mapinc.org/prop36.htm

BOTH SIDES AGREE ADDICTS NEED HELP, BUT WHAT KIND?

Jeremy Saunders quietly acknowledges not only that he smoked 
marijuana, but that he didn't admit it until a urine test caught him.

``Ten dollars and two days jail time - you want to do garbage 
pickup?" replies Alameda County Superior Court Judge Peggy Hora. 
Saunders, a 20-year-old former methamphetamine addict, nods his 
assent.

Moments later, Cindy Silva steps up with her 5-year-old son, Josh. 
She has stayed clean and tried hard to make it to the required number 
of support group meetings each week, so Hora tells her to come back 
in a week.

``I came into this program really reluctantly," the 31-year-old 
mother from Castro Valley says outside the courtroom, adding jail 
alone never helped her kick her methamphetamine habit. ``Once the 
freedom was given back to me, I went right back to addiction."

Clean for a year now, Silva said Hora's drug court has helped her fly 
straight. She remembers Josh watching as she was handcuffed and taken 
away in a police car one Mother's Day, and she vows that will never 
happen again.

There's no disputing that drug courts - where those convicted of drug 
possession are ordered to undergo treatment under threat of being 
sent to jail - have changed people's lives.

On Nov. 7, a ballot initiative facing California's voters could 
change how these courts work, some say for the better, others say for 
the worse.

The battle over Proposition 36, the Substance Abuse and Crime 
Prevention Act, isn't about whether or not drug courts are a good 
thing - the initiative's staunchest foes are those who run 
California's drug courts now, including Hora.

Both sides agree drug addicts need treatment, but that's where the 
agreement ends.

Those who back Proposition 36 say America's pell-mell war on drugs 
has put many Californians behind bars for simple drug possession - 
state prison estimates range from 19,000 to 36,000, and many more 
languish in county jails.

But the measure's opponents say almost nobody is behind bars for 
simple drug possession alone. Prisoners whose records show drug 
possession as the primary offense usually have prior convictions, or 
have plea-bargained down to a simple possession count from more 
serious crimes such as possessing drugs for sale.

``The idea we are clogging up our prisons ... with people who only 
have drug problems is absolutely wrong," said Alameda County Superior 
Court Judge Richard Iglehart, who presides over another drug courts.

Proposition 36 campaign manager Dave Fratello counters that if the 
measure makes prosecutors stop plea-bargaining more serious cases 
down to simple possession, so be it.

``We're talking about a huge number of drug dealers who will be 
charged as drug dealers, and we support that," he said. ``Let's 
charge the people with the crimes they're guilty of and not let them 
off on a lesser charge."

There are other disagreements. For one, opponents say Proposition 36 
would swamp courts with far more trials than they can handle.

Alameda County District Attorney Tom Orloff said almost all of the 
approximately 2,700 simple drug possession cases his office filed in 
1999 ended in plea bargains. Plea bargains are a fact of life in 
modern criminal justice; Alameda County has only enough courtrooms, 
judges, prosecutors, public defenders and other resources to hold 200 
to 250 jury trials per year.

But under Proposition 36, someone convicted of a first-or second-time 
simple drug possession would be guaranteed diversion to treatment, 
with no threat of jail. Orloff said most people charged with this 
crime probably would choose to roll the dice and insist on a jury 
trial - that way, there would be a chance of beating the rap, and a 
conviction would bring the same result as a plea bargain would have 
brought.

Courts would be overwhelmed and unable to provide speedy trials for 
all those people, Orloff said. And if those defendants refuse to 
waive their right to a speedy trial, judges might have to dismiss 
cases without any punishment or treatment at all.

Fratello said that hasn't happened in Arizona, where a system similar 
to Proposition 36 already is in place.

``It's logically possible that some people will take their cases to 
trial to try to beat the rap, but it's not likely that anywhere near 
a majority of them will do so," he said. ``The much more common 
result is that people plead guilty because they want treatment, and 
if jail isn't an option there's no reason to go to trial."

A second problem, opponents say, is a simple matter of options. Now, 
when someone comes before a drug court judge, that judge has many 
choices - the person can be sent to Narcotics Anonymous meetings, can 
be tested for drugs with varying frequency, can be sent to a wide 
variety of outpatient or residential treatment programs, can be sent 
to jail for anywhere from a few days to a few weeks.

Proposition 36 sets up a more rigid structure, which opponents see as 
badly flawed. They say judges must be able to rely on their 
experience and upon each defendant's unique set of personal 
circumstances when deciding how to proceed with a case. One size 
doesn't fit all.

For another, they say this part of Proposition 36's structure would 
further strain judicial resources. When someone who has been ordered 
into treatment violates his or her probation by failing a drug test, 
the judge would have to hold a time-, space- and money-consuming 
hearing to jail him or her; otherwise, all the judge could do would 
be to send that person to different treatment.

``This totally takes the teeth out of what sanctions a judge can 
order," Iglehart said.

Not at all, Fratello insists.

``This initiative allows a tremendous amount of flexibility for 
judges to adapt the monitoring conditions and the consequences to 
each individual situation," he said. ``This doesn't say `one size 
fits all' in terms of what treatment people go to, or how they're 
monitored, or what happens if they fail."

True, he acknowledged, judges wouldn't be able to just order jail 
time as they can now. But Fratello said today's system - in which 
defendants upon entering the program waive their rights to contest 
the judge's rulings - is flawed.

``I'm not going to say that system is being abused by judges now, but 
as a statewide system, I think a lot of defendants would not be 
treated fairly," he said. ``The drug court relies on having 
motivated, compassionate judges ... and not all of our judges are 
compassionate and motivated to try to help addicts."

By forcing judges to hold formal hearings before jailing anyone, 
Prop. 36 ``puts some basic due process protections in," he said. 
Besides, he added, ``probation violation hearings can be pretty quick 
- - `Did you test positive for drugs or not?' That's going to be the 
most common probation violation here, and medical evidence doesn't 
lie. It's hard to believe that will take more time than the drug 
courts already use in processing their cases."

The third problem, opponents say, is that the initiative's $120 
million price tag includes no spending for drug testing. Such 
testing, they say, is the only way judges can know whether people are 
staying clean.

The proposition's backers say the state and federal money that pays 
for testing in drug courts now will still be there if Proposition 36 
goes into effect. Foes claim the political reality is that lawmakers 
most likely would divert much of the money now spent on testing into 
meeting that $120 million obligation.

Fratello doesn't believe that will happen, and disputes opponents' 
claims that Prop. 36's backers are hostile to the very idea of 
testing.

``Will drug offenders be tested under Prop. 36? Of course," he said. 
``The very people who are complaining about this now are the judges 
who will be in a position to order it."

Also, Fratello suggested, offenders could be required to pay for 
their own testing; at $4 to $7 per test. Courts could design a random 
screening of with six to 10 tests per month.

``You're going to catch relapses, and it seems like a minimal demand 
to put on somebody who's trying to stay out of jail," he said, then 
added that ``if more money really is needed, let's get some rational 
projections of that need together and go to Sacramento together and 
get that money."

Proposition 36's issues have been obscured, at times, by political 
mudslinging. The sides have argued over whether campaign website 
names were fair; over campaign funding sources; and even over whether 
anti-proposition spokesman Martin Sheen is a concerned person whose 
family has been touched by drug abuse, or an elitist celebrity snob 
who wants to deny poor people the kinds of treatment options 
available to the rich.

But in the end, despite the political hoopla, it's all about people 
like Jeff Adams.

The Danville 39-year-old is a recovering methamphetamine addict who 
has been clean for 17 months. He goes to three or four support group 
meetings per week, and makes monthly visits to Hora's Hayward 
courtroom.

``It's human psychology - nobody wants to go to jail," he said, then 
nodded toward the courtroom. ``They got me when the handcuffs were 
still on me, and it definitely works. Just let them keep doing their 
thing."
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MAP posted-by: Josh