Pubdate: Sat, 09 Dec 2000
Source: Sydney Morning Herald (Australia)
Copyright: 2000 The Sydney Morning Herald
Contact:  GPO Box 3771, Sydney NSW 2001
Fax: +61-(0)2-9282 3492
Author: Malcolm Knox


Californians will now try to treat drug users rather than use the
truncheon. Malcolm Knox reports.

Robert Downey jnr, arrested for drug possession in Palm Springs last week,
has been flooded with support from his Hollywood mates. Even an
arch-conservative like Mel Gibson says he hopes his troubled fellow actor
will be allowed to sort out his problems without having to return to jail.

Thanks to a law passed by voters on November 7, Downey (who is still,
surreally, starring in Ally McBeal each week) may evade a jail term on more
solid grounds than mere Hollywood goodwill.

The unprecedented passage of California Proposition 36 will divert
non-violent drug users like Downey away from prison and into treatment
programs. In the actor's case, the difference so far has been moot. Neither
jail nor rehab has stopped his recidivism. Yet 61 per cent of Californian
voters believe that it is time for treatment, not jail, to be the first
port of call for convicted drug users.

Californians have committed themselves to progressive, if not Utopian,
approaches to drug-law reform for the past four years. Proposition 36
succeeds 1996's Proposition 215, the "medical marijuana law", which enabled
patients or care-givers to obtain marijuana with a doctor's recommendation.
It is a long way from the late '80s, when Nancy Reagan came down from her
Bel Air compound to accompany Los Angeles Police Department street-level
sweeps of "drug houses", camera crews in tow, as part of her "Just Say No"

Nonetheless, in many ways the progress on drug law is more cosmetic than
real. The opponents of drug-law reform are, contend reformers, placing so
many legal and practical obstacles in the path of California's "third way"
that the old regime of capture-and-imprisonment is still the reality.

Already there are fears that the new law will be de-fanged in courts and in
the State executive in Sacramento.

Albert Senella, the president of the California Association of Alcohol and
Drug Program Executives, said this week that he was afraid of conservative
judges, not rehabilitation experts, deciding on the specific kind of
treatment offenders will receive. On the other side, police representatives
are concerned that defence lawyers will defer cases until they can be heard
by judges favourable to treatment.

There is also a question of timing. Proposition 36 comes into effect on
July 1 next year, which leaves judges with the question in the meantime of
whether they should imprison a drug user who, a few months hence, would
receive treatment instead.

Then there is a question of the money. With 60 per cent of the State
District Attorney's office caseload currently going to drug matters, will
there be enough funding to make the new system work? The November 7 vote
allocated $US120 million ($218 million) to the program, which is likely to
see 36,000 drug offenders in California, 20,000 of them in Los Angeles
County, diverted from jail to treatment.

At the moment, Los Angeles has only 300 contracted treatment centres, which
operate much like rehabilitation clinics in Australia. A first tranche of
$US60 million has been allocated to upgrade and add to the stock of centres
by the time of the "deluge" on July 1, but supporters of Proposition 36
have been incensed by the State Government's tardiness in handing the money

"We think it's critical that treatment capacity be increased as soon as
possible to meet this new need," said Bill Zimmerman, manager of the
campaign for Proposition 36. "We don't think this can wait until next

Moreover, the average cost of outpatient treatment for drug users is
$US4,000 per year, an amount which, if extrapolated to the expected number
of users being ordered to take treatment instead of going to jail, would
quickly deplete the other $US60 million earmarked for the program after
July 1.

Complicating the picture, Democrat Governor Gray Davis opposed Proposition
36 at last month's election and has indicated that the program will have
difficulty getting any more funding in its first year. Even though the
voters backed it so comprehensively, the new law's opponents have ways of
setting up roadblocks.

Typifying the scale of the forces opposing the drug progressives, the US
Supreme Court announced this week that it would hear a case arguing that
California's medical marijuana distribution centres violate strict Federal
anti-drug laws.

When it hears the case early next year, the Supreme Court will decide
whether "medical necessity" is sufficient cause to make an exception to the
Federal prohibition on marijuana distribution. In August, the Supreme Court
halted the Oakland Cannabis Buyers' Collective's legal distribution of the
drug to cancer and AIDS sufferers.

For the Supreme Court to reverse its customary deference to States' rights
- -- the Compassionate Use Act was expressly mandated by Californian voters in
1996 -- would be unusual, but, as has been observed with its intervention in
the presidential election in Florida this week, the Supreme Court will
gladly bend its own principles to satisfy ideological leanings.

Membership of the eight marijuana growers' collectives operating around San
Francisco has trebled in the past two years, according to figures collected
by the Oakland club, but some medical marijuana advocates have hardly
helped their cause. Todd McCormick, 29, was sentenced in March to five
years in prison for cultivating marijuana for profit after drug agents
found 4,000 plants growing in his Bel Air house. McCormick, a cancer
sufferer, grew the plant to supply the Los Angeles Cannabis Collective -- a
legal body under Proposition 215 -- but had no legal defence against
evidence that he profited from the supply.

Steve Kubby, a 53-year-old Orange County cancer sufferer who stood for
State governor in 1998 on the Libertarian Party ticket, is awaiting trial
on charges that he was growing 249 marijuana plants at his Squaw Valley
home for profit, not medical use.

"We are not demonstrators; we are not defending recreational marijuana
use," Kubby said at the time of his arrest. "We are organised for the
specific purpose of enforcing this law. We're tired of defending marijuana
and that the law is right. We passed it. It's there."

If only it were that simple, say officials in the neighbouring State of
Arizona, where a de facto system of diverting drug-possession offenders
away from jail has been operating for some years. Arizona drug offenders
can win movie and sports tickets if they complete treatment programs, a
system Barbara Broderick, Arizona's director of adult probation, says has
"changed the whole way in which we kind of play the game".

Rather than threaten jail, Arizona's probation department hits drug
offenders with a heavier than usual burden of community service, court
appearances, and, says Broderick, "We'll even have them read books and give
book reviews to the court. We're as creative as we can be, within the law."

(Arizona also has laws mandating the use of marijuana for medical purposes.
The other States that have medical-marijuana laws are Alaska, Colorado,
Hawaii, Maine, Nevada, Oregon, and Washington. But so far, only California
has enacted the treatment-not-jail law.)

Yet the Arizona district attorney's office has produced figures stating
that as many as 75 per cent of people sentenced to probation and treatment,
rather than jail, simply fail to turn up.

In California, San Francisco's "mentor diversion court", set up for
small-time drug dealers aged between 18 and 25, has imposed a regime of
high school or college classes as an alternative to incarceration. But it
admits that in three years of operation fewer than 200 offenders have
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MAP posted-by: Eric Ernst