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The first drug court in California opened its doors in Oakland 10 years ago, pioneering a statewide movement that put judges trained in the science of addiction in charge of monitoring the progress of non-violent drug offenders undergoing treatment. Now, after more than 100 drug courts based on the Oakland model have proliferated around the state, a controversial state initiative could wipe out the ability of drug court judges to send offenders to jail for failing drug tests or skipping treatment. Proposition 36 proponents say the goal is to keep drug addicts in treatment instead of repeatedly incarcerating them for slipups. The measure would allocate $120 million for the expansion of drug treatment programs. And defendants would be entitled to three probation revocation hearings before facing a 30-day jail sentence. But drug court advocates say Prop. 36 threatens to dismantle a system that has reached thousands of drug addicts and helped them break the cycle of drug dependency. The program is especially effective in East Bay cities like Oakland and Richmond, where some inner city neighborhoods have been ravaged for years by an epidemic of crack cocaine and other drug addiction. “If people want to take the judges away from closely monitoring the cases and they want to take out the threat of jail and they want to encourage drug offenders to go to trial instead of get treatment, then we’re setting up a system that sets us back 15 years,” said retired Alameda County Judge Jeffrey Tauber, who founded the state’s first drug court. Proponents, however, say the state’s current system of drug courts now suffers from a great deal of disparity, with some counties investing more resources in the program while other counties lag behind. They say the measure would establish statewide standards for eligibility and treatment options. “Anyone who’s been around addicts knows that it’s only in movies that someone goes into treatment and everything’s fine. People take steps backward,” said Clifford Gardner, a San Francisco appellate lawyer who helped draft the proposition. HELPING TO TREAT ADDICTION The drug courts were born in an effort to separate non-violent drug offenders who could benefit from treatment from other felony cases and to help ease the criminal courts’ regular caseload. Their success has been built on the premise that the criminal justice system should play a key role in treating addiction. Judges closely supervise the recovering addict; they reward recovering addicts for abstaining from drug use but can send offenders back to jail for lapses. Prosecutors and defense counsel drop the traditional adversarial approach in favor of encouraging the defendant’s success in treatment. “The drug court was a movement led by judges trying to do something different and make the system work more effectively,” said Contra Costa Judge Harlan Grossman, who started the drug court in Richmond in January 1997. Grossman warns that the measure, if passed, could compromise the non-adversarial environment by sending cases back into the regular criminal courts calendar as more drug offenders gamble on a jury trial acquittal — although they’re still promised probation and treatment if they are convicted. “Also, this proposition allocates no more funding for drug testing. And judges, in effect, cannot incarcerate at all — so there are no consequences if you test dirty,” he said. Most California DAs — with some exceptions, including San Francisco’s Terence Hallinan — oppose the measure along with other law enforcement officials like state Attorney General Bill Lockyer. Thomas Orloff, Alameda County’s top prosecutor who helped implement the Oakland drug court in its early years, said the proposition’s requirement that all non-violent drug offenders be placed on probation and receive treatment — whether they plead guilty or are convicted at trial — could encourage defendants to choose the lengthier route of heading to trial. “It would put these cases in the same mix as murders, rapes and other serious felonies,” said Orloff. “At some point, we’re going to start questioning whether we should even charge those cases if we know we won’t be able to get to them.” Orloff, the president of the California Association of District Attorneys, also notes that the measure would make it practically impossible to get a probation revocation. He pointed to a section of the measure that would require the prosecutor to prove that a defendant “poses a danger to the safety of others.” Orloff noted that such hearings can be time-consuming and often require a number of experts and others to testify. “It’s in everyone’s interest to get non-violent drug addicts into good, effective treatment,” he said. “But this proposition has so many problems that it would, in effect, eliminate our ability to provide treatment.” Added Tauber, who now heads the National Association of Drug Court Professionals, “Many of us spent the last 10 years trying to create an atmosphere where therapeutic jurisprudence would work. Now these folks come along and want to turn back the clock.” But proponents of Prop. 36 say the measure aims to pick up where drug courts stop. They praise drug court judges for initiating a reform movement that got the criminal justice system involved in addressing underlying drug treatment issues. And Gardner defends the language of the measure, saying its only intent was to protect treatment as the most important thing that the criminal justice system could give to defendants who continue to run into legal trouble stemming from their drug problems. “If a person hasn’t committed a serious or violent offense but is picked up for possessing a drug for personal use,” he says, “why shouldn’t they be kept in treatment?” Gardner also defends the legitimacy of the drug courts and even assures that the drug courts should serve an important role even if Prop. 36 passes. He notes that Prop. 36 is modeled after a similar initiative in Arizona that voters there passed four years ago; the Arizona drug courts have even expanded since the measure was implemented. He said many drug offenders who would not qualify under Prop. 36 because of prior or concurrent convictions could benefit from diversion programs as administered in the drug court. REACHING DRUG ABUSERS Gardner’s main concern with the status quo is that the drug courts reach only a fraction of eligible drug-abusing defendants who could benefit from treatment. “We have about 100 drug courts now in the state. We would need 2,000 drug courts to meet our needs — but that’s not going to happen,” he said. “It’s just not an efficient model.” Moreover, Gardner suggests that not all counties have been successful in implementing effective drug court programs, with drug programs subject to localized rules and dependent on the individual dedication and compassion of the judge assigned to a drug court. “What makes you eligible for drug court in one county precludes you in another county,” he said. “In my experience, courts are fiefdoms. This is almost capricious.” But opponents of the measure say the devil is in its details. Tauber, of the National Association of Drug Court Professionals, says the difference between the Arizona and the California propositions is “the difference between a benign and a malignant tumor.” Among other things, he noted, the Arizona statute does not grant defendants three full probation revocation hearings with a standard of proof being that the defendant is a danger to society. Oakland Councilman Dick Spees jumped at the chance to support an initiative expanding treatment. When Prop. 36 first came before the city’s rules and legislative committee, the group voted to support the measure. “It was a Pavlovian response,” he said. “We believe getting people into treatment is far more important than incarcerating them.” But this week he was among the leaders of a City Council move to reconsider the issue. Prompted by a delegation of judges, prosecutors, Oakland police and probation officers concerned about the proposition’s effect on the drug courts, the confused City Council ultimately voted to reverse its position and not support the initiative. “It was pointed out to us that this is a very deceptive measure,” he said. “For many addicted individuals, it is important to have enforcement — incarceration — attached to treatment. This proposition could decimate our drug-fighting efforts in Oakland.” Alameda County Judge Richard Iglehart says drugs will continue to be a challenge facing modern communities, especially in urban areas. “This is a fact of life now. Drugs are part of the urban landscape, and we’re trying to deal with the people who are hooked on them,” he said. “The drug court judges have gone through a lot of training to understand the disease of addiction. It’s a long, slow and difficult process, training people not to use drugs.” East Bay judges aren’t the only ones standing up to oppose the measure. Although most San Francisco judges have remained quiet, more than 150 judges from around the state have signed a petition opposing Prop. 36. “Proposition 36 takes us backward in our approach to helping drug users overcome their addictions,” said Santa Clara Judge Stephen Manley, the president of the California Association of Drug Court Professionals and one of the organizers of the petition drive. “Without the consequence of short-term incarceration, addicts within our courts have no incentive to stay in treatment and will continue to use drugs.”

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