Pubdate: Mon, 06 Nov 2000 Source: San Diego Union Tribune (CA) Section: Inside Politics Copyright: 2000 Union-Tribune Publishing Co. Contact: PO Box 120191, San Diego, CA, 92112-0191 Fax: (619) 293-1440 Website: http://www.uniontrib.com/ Forum: http://www.uniontrib.com/cgi-bin/WebX Author: Bill Ainsworth Bookmark: For Substance Abuse and Crime Prevention Act items: http://www.mapinc.org/prop36.htm JUDGES LINE UP, LASH OUT AT LACK OF ''DSCRETION' IN PROPOSITION 36 An unusually candid jurist once remarked that a judge is just a lawyer who knew a politician. Indeed, many state judges were politically active attorneys before being appointed to the bench by a governor. Once they don their robes, though, most judges prefer the almost academic atmosphere of the courtroom to the gritty world of politics. This election season, jurists from throughout the state have left their courtrooms to stand in front of cameras and speak out against Proposition 36, the drug diversion initiative. They have become its most effective opponents. One hundred and sixty four judges, including 57 in San Diego County, have signed petitions criticizing the ballot measure. One judge, Stephen Manley, president of the California Association of Drug Court Professionals, signed the ballot argument against Proposition 36. San Diego County Superior Court Judge James Milliken even contributed $250 to defeat the measure. At the heart of their opposition is concern over judicial discretion. Judges say Proposition 36 would take away their ability to toss addicts in jail for short sentences. They believe this threat helps them scare addicts straight in drug courts. The measure would divert some nonviolent drug users and parole violators from jail to treatment and provide $120 million a year to boost the treatment budget. Addicts could still end up in jail, but only if they violate the terms of probation, which judges are allowed to set. The judges' activity raises questions about the overlap between campaigns and courtrooms. Under California's judicial rules, judges are allowed to voice opinions on political issues that affect the administration of justice. Proposition 36 clearly does so. The problem for judges who voice strong opposition to the drug diversion initiative or any other ballot measure is that they can create an appearance of a conflict. What if the law passes and they have to implement it? Milliken, who has a long history of speaking out on ballot measures that affect the judiciary, doesn't believe their will be any trouble -- even if Proposition 36 passes. "We'll follow the law," he said. Still, many judges agonize over whether they should take a stand. Earlier this year, juvenile court judges persuaded the California Judges Association to come out against Proposition 21 because it would limit a judge's role in deciding whether or not juveniles should be tried as adults for certain crimes. "We thought it took away a long-standing tradition in juvenile courts," said Rob Waring, legislative counsel for the association. Waring said the association tends to shy away from voicing opinions on bills and ballot measures that involve adult sentencing. Indeed, most judges were silent on the 1994 ballot measure that took away more judicial discretion than any other state law -- the "three strikes" sentencing initiative. Until the three strikes law was modified, it forced a judge in some cases to give a longer sentence to a check forger with two residential burglaries than he would a murderer. Gerald Uelmen, a Santa Clara University law professor and a judicial observer, supports Proposition 36, arguing it treats addiction as a medical rather than criminal problem. Still, he doesn't believe there are any ethical problems with the judges' efforts to block Proposition 36. "My only quarrel with the judges is, where were they when we adopted three strikes, which has far more impact on the criminal justice system than Proposition 36?" Bill Ainsworth covers Sacramento for the Union-Tribune. - --- MAP posted-by: Jo-D