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[whitespace] Marlene Teehan
Photograph by George Sakkestad

Jail Is Good: Marlene Teehan, a recovering addict, opposes Proposition 36's softer touch on jail time for addicts. In her case, she says, jail was the only thing that convinced her to change her life.

Hugs Not Drugs

A new initiative, Prop. 36, seeks to reduce the prison population and save taxpayers millions. So why are so many drug professionals against it?

By Dara Colwell

MARLENE TEEHAN'S '93 Volkswagen Cabriolet was a good investment. It was something she could post for bail; a forfeit she could exchange for instant access to the streets, but more importantly, for dope. The marketing sales rep had circled through several treatment programs and landed herself in the Penal Code 1000 program, California's court deferral program for

first-time drug offenders, where she was put on probation and schooled on how to quit. But the treatment program, which she attended a year and a half ago, never stopped her smoking "eight-balls," or solid sixteenths of methamphetamine. Often, Teehan toked up down the street before teetering, high, into her drug treatment class, where she'd push it. "I made connections. I met a wide base of users there," she says with a gruff, knowing laugh.

Teehan finished the 12-week program but she never completed the mandatory drug tests because she was baked from day one. She was later arrested in her car, with half an ounce stowed under the ashtray, but this time, she got sent down. When she begged her father to put the Cabriolet up for bail, he refused, and as Teehan remembers it, the next five months were a brutal but necessary lesson. "Before, it was always my way," she says. "In jail, it's their way. They dictate everything you do. This time, I got the message."

When Teehan, a sturdy, sporty-looking woman, read about Proposition 36, an upcoming initiative that seeks to put most first- and second-time drug offenders into treatment programs instead of in jail, her reaction to the proposition's "treatment, not jails" tagline was strong and immediate. "No way!" she says, her dark eyebrows shooting up. "You've got to answer to someone. Jail is a hell of a wake-up call."

In California, Proposition 36 looks to be the next battle in the drawn-out, national war on drugs. If passed, the initiative would divert approximately 37,000 nonviolent drug offenders from California's prisons, which hold the highest rate of admissions for drug-related offenses in the country. But the proposition's drafters and campaign heads--which include two staffers from the voter approved medical marijuana initiative--couldn't have done a worse job building consensus for their plan. Not only did they fail to approach drug court judges, seeming natural allies whose goals largely parallel theirs, they've also whipped them into a fury over the initiative's removal of an iron fist--mainly, court sanctions allowing for flash incarcerations.

"The initiative won't usurp the drug courts, it will cripple them," says Steven Manley, president of the executive committee of the California Association of Drug Court Professionals and a Santa Clara County Superior Court judge. "[The initiative's authors] have missed the point."

Perhaps they were stoned.

Block Busters

VOTERS MIGHT HAVE expected more from Proposition 36's authors, some of the same folks who put together the wildly successful medical marijuana initiative of 1996, Proposition 215.

If passed, Proposition 36, which is backed by the same deep-pocket trio that financed Proposition 215--George Soros, Peter Lewis and John Sperling, would reduce the state's prison population, saving taxpayers an annual $150 million to $200 million.

For decades now, as illicit drug use has continued to fluctuate, drug law professionals and reformers have split hairs over how, exactly, to address addiction. Only this time, opponents of Proposition 36 are not the usual suspects. To be expected, there's the California Correctional Peace Officers Association, the paradoxically named prison guard union, which opposes reforms aimed at easing convictions. The CCPOA, which boasts 28,000 members, a $17 million budget and 17 staff attorneys, exercises little financial restraint when it comes to attacking laws it sees as soft on drugs.

But surprisingly, some of the most vocal opposition has come from California's own drug treatment courts, established in the early '90s to treat drug abuse as a chronic and progressive disease. Proposition 36's intent--to place drug offenders in treatment instead of jail--would seem in line with the drug courts' objective. So why oppose it? "I don't think there's any dispute we need more treatment," says Judge Manley, an impassioned and outspoken opponent. "What the proposition will do is deny judges the tools needed to hold [defendants] accountable. Without supervision, without sanctions, there will be no success in treatment." What Manley is referring to is the proposition's stance to prohibit sanctions before the defendant's third violation.

According to Manley, short jail stays are the effective means judges use to keep addicts in treatment. "You don't realize how sly an addict is, the craving and addiction are so strong," says Teehan. "I was conniving, manipulative--a liar." The drug treatment court, Manley explains, works like this: the defendant must have a job, undergo weekly drug tests, attend daily 12-step meetings, make frequent appearances before the judge, and put in hours of volunteer work. If the defendant relapses, his treatment can be upped or he can be incarcerated for a few days as a warning. Basically, it's far from easy street.

Under Proposition 36, the court cannot impose short-term jail time as an additional condition of probation. Instead, the judge can sentence the defendant to 30 days in jail only after he chalks up two separate convictions for nonviolent drug possession and two failed attempts at treatment. This means that sanctions only kick in after the third offense. And after 30 days, well, according to the proposition, the defendant is on his own. He can either clean up, or--if he gets caught again, which, for an addict trying to feed an addiction, is likely--he goes to jail.

"You can't just send [addicts] out to treatment programs and tell them 'go forth and be well,'" says Santa Clara County Superior Court Judge Sharon Chatman, who sits on the board of Drug Court Professionals with Manley. "If you have 120 days hanging over your head, that forces you to adhere to the drug court plan." Chatman argues that by putting a lid on the number of days a judge can impose custody, the proposition is enabling.

"It was poorly drafted and poorly conceived," says Contra Costa County Superior Court Judge Harlan Grossman, who suspects the Proposition 36 team--funded by Proposition 215's same backers--gleaned that public support lay in treatment rather than legalization when it drew up the initiative. "It goes a long, long way toward decriminalizing drug offenses. I'm not going to take a position on that, but saying it will complement drug court operations is the furthest thing from the truth."

Another thorn in the drug court's side is the initiative's failure to earmark funds for drug testing. The act specifically states that distribution of money is to go to services "other than drug testing." "I don't believe they consulted anyone in California who knows anything about drug addicts and the criminal justice system," says Manley. "[Drug testing] is the only way you can tell if someone's using." Chatman, who agrees, feels the campaign's lack of oversight goes much deeper. "It boggles my mind why they didn't sit down with us. We've got a different view of success--we're committed to a system of strict accountability," she says, adding, "but the focus is the same."

Judge Sharon Chatman
Photograph by David Heller

Robed Warrior: Judge Sharon Chatman, who has been presiding over drug court for two years, says Proposition 36 eliminates the only accountability the system has.

The Word Is Unheard

THE PROPOSITION 36 campaign hasn't been too successful getting the word out on treatment. Of five different treatment houses in the San Jose area, not a single person--from drug counselors up to administration--had heard of it. But all were eager to learn more.

The drug courts, however, have been adamant about pulling the covers over the bill. Last week, Manley and Proposition 36's spokesman, Dave Fratello, spoke on National Public Radio's "Talk of the Nation." Manley's cry for unforgiving penalties captured host Juan Williams' attention. When asked how successful drug courts were in California, Manley cited a report by the General Accounting Office. According to the report, rearrest rates were extremely low for drug court graduates, hovering at 8 percent for those in the city of San Jose. For defendants who did not participate in a drug court treatment program with sanctions, the rearrest rate was 47 percent.

Narcotic Effect

PROPOSITION 36's team boasts veteran political consultant Bill Zimmerman and Dave Fratello, former spokesman for Americans for Medical Rights, and Soros, Sperling and Lewis's political action committee.

Fratello, who runs the Proposition 36 campaign from Los Angeles, answers questions carefully after measured pauses. He says the sour feelings and vigorous opposition exhibited by the drug courts have been surprising. "We knew there would be tension, but there were aspects of the drug court that we didn't want to duplicate," he says. "[The judges] are so preoccupied with killing this initiative, they've never asked if it was possible to make it work."

Dan Abrahamson, head lawyer at the Lindesmith Drug Policy Foundation in San Francisco and who drafted the initiative, sees the judges' response as defensive. "It's a question of turf, territory and ego," he says, adding that it's too late to approach them. "The fact that they're so vocal suggests the drug courts are omnipresent. They're not." Abrahamson says he did consult judges and treatment providers across the country--none voiced any dissent. Fratello says he spoke to a public defender, a deputy district attorney and a few treatment providers--all of whom asked for anonymity and remain nameless.

When it comes down to the bones of the argument, Fratello is well-versed. "We get tarred as having an initiative that isn't about accountability," he says. "The truth is, it's about flexibility, where the judge is really in the driver's seat. The initiative allows them to impose accountability by their standards." Regarding money and drug testing, the proposition poses no legal barriers to drug testing, Fratello says. Proposition 36's budget instead aims to direct money toward the serious shortfall of treatment services.

The lack of treatment opportunities for offenders has important implications. And, if anything, Proposition 36 accurately pinpoints this growing need. If passed, Proposition 36 would make every court in California a drug court. Currently, the drug court system, both on the state and national levels, is overburdened and small. In all of California, there are 104 drug courts. In Santa Clara County, the adult drug court has a total of 696 active participants. Using rough numbers to estimate how many offenders the Santa Clara County drug court reaches, only 7.5 percent of those convicted actually make it in. Considering 28 percent of California's current inmate population has been locked up for drug-related offenses, we have a long way to go.

Fratello, though sometimes sluggish with his other responses, voices this concern eloquently. "The drug court hasn't hitched their wagon to ours, but we both have a lot at stake in the success of this measure. If this is defeated," he says, "it doesn't logically follow that the drug courts will have an easy time expanding the system." As it stands, the drug courts are desperate for funding.

But in crafting an initiative without the input of those sitting on the front lines, the campaign's proponents missed a valuable opportunity to make a workable system. Instead, drug court judges, fearing the initiative lacks the heavy-handed approach they consider vital to success, will be against it.

"You're not going to cooperate if you have no fear," Teehan says. "That's what prison does--you have fear. It takes away your dignity, your respect, your right to privacy, even the choice of food you eat. I wouldn't have stopped [using] without intervention."

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From the August 17-23, 2000 issue of Metro, Silicon Valley's Weekly Newspaper.

Copyright © 2000 Metro Publishing Inc. Metroactive is affiliated with the Boulevards Network.

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