DRUG-LAW REFORM IS THE MESSAGE WITHIN PROPOSITION 36

For the past four years, Bill Zimmerman has been busy pounding holes into
the country's failing drug policies.

It was Zimmerman, a Santa Monica-based liberal activist, who ran the
successful campaign for California's Proposition 215 and similar
initiatives in six other states legalizing the medical use of marijuana.

This fall, he's running medical marijuana measures in two more states and
initiatives reforming asset-forfeiture laws in three others.

But the big one on the menu is California's Proposition 36, which would
require that in most cases, anyone convicted of a "nonviolent drug
possession offense" be sentenced to probation and treatment rather than
jail or prison.

Zimmerman had been hoping, so far with little success, that the medical
marijuana initiatives would prompt a review in Congress of drug policies
that are based largely on billion-dollar attempts at suppression of crops
and traffickers abroad, interdiction at the border and criminal sanctions
for users at home. But if Proposition 36 passes, he's confident the message
will be heard.

The opponents of Proposition 36, headed by the state's prison guards union
(which promised to spend "serious money" to beat it), say the measure
would, in effect, decriminalize hard drugs. They also claim that
Proposition 36 would prohibit testing of those in treatment, which is often
crucial in enforcing compliance, and that it would allow date-rapists to
escape punishment.

The latter charges are mostly false.

Proposition 36 appropriates $120 million for treatment, none of which may
be used for testing, but there is nothing in the measure to stop the
Legislature from appropriating additional money for that purpose. And since
the measure does not cover anyone possessing drugs intended for use on
others, and since, in any case, as Zimmerman points out, the primary
date-rape drug is alcohol, which is legal, the date-rape charge is absurd.

But even Zimmerman acknowledges that his big backers -- billionaire
financier George Soros; John Sperling, president of the for-profit
University of Phoenix; and Cleveland insurance millionaire Peter Lewis --
don't like testing and would have prohibited it outright if Zimmerman's
focus groups hadn't shown "that testing is popular." Zimmerman says this
campaign is not about decriminalization. But in the end, decriminalization
is probably the direction he and his backers would like to go. They stress
the fact that the United States has 2 million people in prison -- far more
than any other nation on Earth -- in large part, they point out, because of
its punitive drug laws.

Ethan Nadelmann, who heads the Soros-funded Lindesmith Center Drug Policy
Foundation and speaks for the Hungarian-born Soros on drug issues, says
Soros sees the incarceration of drug addicts as a "human rights issue" and
regards the nation's drug laws as an area in which "the U.S. is not an open
society." (In California, according to the legislative analyst, some 24,000
people are sent to prison every year for nonviolent drug offenses.

If they were diverted to treatment, says the analyst, prison costs could be
reduced by upward of $200 million annually, and save the state some $500
million in capital costs for new prison space.)

But what may be most significant about the California campaign is that not
even the opponents of Proposition 36 defend existing policy. Both sides say
they favor treatment over incarceration wherever possible.

The most visible spokespeople for the No-on-36 campaign are drug court
judges who even now are sending a small percentage of drug offenders to
treatment and who say that if they had the kind of money that Proposition
36 provides, they could handle many more.

"Nobody says that the existing [punishment-based] system works," said
Alameda County Superior Court Judge Peggy Hora. "We're showing that
favoring treatment over incarceration is not tantamount to political
suicide. But this initiative does not promote recovery and treatment.

If [its backers] want flat-out legalization, let them say so." What
troubles the judges is that Proposition 36 reduces their discretion by
imposing greater procedural hurdles before a drug offender who does not
comply with his treatment regimen can be sent to jail.

Perhaps most telling is the fact that both sides in the debate are lauding
a policy being put in place by New York's Chief Judge Judith Kaye, who in
June ordered the state's courts to begin phasing in a program under which
most drug-addicted nonviolent offenders would be offered treatment instead
of jail. (Though the opponents of Proposition 36 point out, correctly, that
Kaye's plan has more stringent enforcement criteria, including testing,
than what Proposition 36 proposes.)

In a reasonable political system, you'd think that the state's political
leaders would begin to address an issue where the voters -- judging by most
polls -- understand the folly and ineffectiveness of existing policies.

Despite dire warnings from the nation's drug czar, Zimmerman has a 7-0
record with his medical marijuana initiatives. Early polls also indicate
strong support for Proposition 36.

That doesn't mean it will pass; it has enough flaws, particularly those
that restrict the discretion of judges and other law enforcement officials,
that the opponents can exploit.

But the very terms on which this debate is being conducted ought to be a
signal, even to the most timid of politicians, that drug policy is ready
for review and reform.

When even the prison guards claim that they favor less incarceration and
more treatment, and when everybody seems to like the Kaye plan, somebody
ought to take them up on it.

PETER SCHRAG appears on this page Wednesdays. He can be reached at Box
15779, Sacramento, CA, 95852-0779 or at pschrag@sacbee.com