Pubdate: Mon, 07 May 2001
Source: San Jose Mercury News (CA)
Copyright: 2001 San Jose Mercury News
Contact:  http://www.sjmercury.com/
Details: http://www.mapinc.org/media/390
Author: Ed Pope, Mercury News

ATTORNEYS STILL DISAGREE ON  NEW DRUG LAW'S DETAILS

Sticking Points Include The 30-day Sentence For Repeat Offenders And The 
Use Of A Gun In Defining A 'violent' Crime  Under Proposition 36, Which 
Mandates That Many Drug  Offenders Be Sent To Treatment, Not Jail

While all sides agree there has been amazing cooperation in implementing 
California's controversial treatment-not-jail initiative, district 
attorneys and public defenders have agreed  not to agree on a few of the 
new law's more contentious  provisions.

Both sides accept that their differences are so deep they eventually will 
have to hash them out in the appellate courts  -- but not before the July 1 
deadline for having the new law  in place.

On that date, Proposition 36, approved by state voters in November, 
mandates that the courts begin diverting the first  of about 37,000 
non-violent drug and alcohol offenders per  year into treatment at 
outpatient clinics and group homes,  instead of sentencing them to jail.

The measure further says judges shall sentence backsliders and repeat 
offenders to 30 days in jail only after they are  caught using drugs or 
breaking the law twice after their first  arrest. Public defenders and 
other advocates say this is a  maximum sentence. Prosecutors consider it a 
minimum.

That is the most serious sticking point between these old adversaries, but 
there are others. For instance, the law says  use of a firearm while 
possessing or using drugs could  classify a suspect as violent and, 
therefore, not acceptable for  treatment.

Advocates say "use" means the offender must fire, point or brandish it. 
Prosecutors suggest mere possession of a gun  -- particularly one that is 
loaded -- during an otherwise  non-violent drug crime should bounce the 
user from the  treatment-only option.

But for now, anyway, they're disagreeing with smiles on  their faces 
because every agency involved says it wants to  make the law work.

"What we see is a lot of people working very hard, very dedicated. I've 
never seen government work this well," said  Dave Fratello, spokesman for 
the successful Proposition 36  campaign, "especially when you're talking 
about all the  different interests involved."

Judge Stephen V. Manley, chief judge of Santa Clara  County's drug court, a 
model for those setting up treatment  options around the state, has set the 
tone, Fratello noted.  "Manley has said, 'There's no sense in fighting over 
this.  Let's get to work.' "

So they have set about with gusto to make it work, reserving for the time 
being their differences over such fine points as whether the courts can 
cancel a defendant's right to further treatment if he or she fails to 
attend treatment sessions or fails to comply with program rules -- as the 
DAs contend.

If that were the case, courts could order a defendant to serve time if they 
found that the  behavior amounted to a violation of probation or that the 
behavior made the offender a  danger to the public. Points of contention

These are fine lines that the California District Attorney's Association 
has indicated it  intends to draw in the sand. They're spelled out in a 
lengthy document titled  "Implementing Proposition 36," which can be viewed 
on its Web site, www.cdaa.org.

"We keep reminding people the courts didn't lose discretion to 
incarcerate," said Karyn  Sinunu, assistant district attorney for Santa 
Clara County. On the question of how much  leeway a judge has on a 
defendant's third offense, she said, "Our position is that 30 days is a 
minimum."

Nona Klippen, assistant county public defender, demurred: "We take the 
position, 30  days is the maximum."

The measure states, "Notwithstanding any other provision of law, the trial 
court shall  sentence such defendants to 30 days in jail."

"If it said 'may sentence' to 30 days, that would mean the court would have 
discretion to  give only 30 days," Klippen maintained. " 'Shall' is 
mandatory language, as opposed to  'may,' which is permissive language."

Sinunu, however, suggested, "It wouldn't make sense if it meant only 30 
days. That  would convert felonies into misdemeanors. I don't think that's 
what 36 intended."

But that's exactly what the proposition meant, spokesman Fratello said.

"The initiative intended 30 days to mean 30 days -- maximum, not minimum," 
he said.

"It will be an interesting court case that will invariably come out of 
this," he added. "It  will certainly go to court. The DAs have promised that."

But Fratello doesn't see an early test of the issue, since offenders will 
have to have two  prior convictions and then get a third. "That will be a 
while."

Splitting Hairs

DAs may split legal hairs on some of the measure's intentions, but Fratello 
and other  proponents of treatment say district attorneys are embracing "99 
percent" of the general  intent of the new law -- evidenced by Santa Clara 
County's approach.

"We're very hopeful that this is going to work," Sinunu said. "I feel very 
upbeat. The  reality is, the DA's office has been pro-treatment for a long 
time. People are going to get  treatment, and they're not going to have 
incarceration hanging over their heads."

In fact, she said, "A lot of people will just be on straight probation.

"That doesn't mean they can't end up going to jail if they screw up," she 
noted. "We're  trying to make it as non-adversarial as possible, much like 
drug treatment court. But if  defendants don't show up for the program, 
we're going to be a little feisty about it."

In the law's gray areas, judges will have to decide whether prosecutors or 
defenders are  right in their interpretations.

For example, some counties are considering putting a clause in their 
treatment plans that  would permit offenders to agree to jail time if they 
fail treatment on their first or second  try, said Bill Demers, president 
of the County Alcohol and Drug Program Administrators Association and 
deputy chief of Tehama County's drug and alcohol programs.

This could be part of a plea bargain, say, under which the DA reduces a 
charge from a  felony to a misdemeanor.

Demers sees this as the prosecutors' way of trying to introduce a practice 
that the new law  specifically excluded. "They're trying to act as if the 
proposition didn't pass," he said.

"There are lot of things of that nature in the kicking-around stage," said 
Santa Clara  County's Klippen. "But I'm impressed with the way we've been 
able to work together.  Everybody is on board to make it work and help 
people succeed and stay out of the  criminal justice system."
- ---
MAP posted-by: Beth