Controversy over Prop 36 ensues

Opponents of the bill say it undermines the current drug court system, which automatically diverts first-time drug offenders into treatment programs. They also argue drug courts work. San Mateo Sheriff Don Horsley said the recidivism rate for drug court is about ten percent. "That means it is working for 90 percent of the people," Horsley said.

However, proponents of Prop 36 argue that drug courts are very selective and only service a small percentage of the population. "It is currently up to the judges and the prosecutors if they will refer a case to drug court," said Deborah Vargas, of the Center on Juvenile and Criminal Justice. "On top of that, not even one-half of the counties in California have drug courts."

District Attorney Jim Fox held a press conference on Monday with Sheriff Don Horsley, Judge Barbara Malach and Chief Probation officer Loren Buddress to address the public concerning Prop 36. They teamed up in order to inform the public on drug policies, Fox said. He believes the initiative will be detrimental to policies already in place and he wants the community to be informed.

Fox's primary concern with Prop 36 is that drug offenders will no longer have to seek treatment under the threat of jail time. "If we take away the threat of jail time, it is our fear that no one will go to their treatment programs."

He said under Prop 36 if a person goes through drug treatment twice and does not succeed, the penalty he/she would receive is 30 days in the county jail. "Now, if you are a drug addict and you can either go back to drug treatment or spend 30 or 20 days in county jail, what would you pick?"

The Center on Juvenile and Criminal Justice (CJCJ), a non-profit organization in San Francisco, supports Proposition 36 on the grounds that too many drug offenders are going to jail instead of receiving treatment.

According to Dan Macallair, Vice President of the Center on Juvenile and Criminal Justice, in 1999 there were 12,749 people in state prison for drug possession. This exceeds the number of people in prison for drug sales and manufacturing by 1,406.

"I can't speak for the other counties," Fox said. "But in San Mateo County the people who end up in jail are people who have gone through drug treatment and it hasn't worked."

The CJCJ reports that there are currently 165 people incarcerated in San Mateo County who would be eligible for drug treatment programs under Proposition 36.

According to Macallair, this translates as 165 people who are incarcerated for non-violent first-time drug offenses.

But Fox disagrees, "The reason those 165 people would be eligible is because Prop 36 does not take into account prior offenses," he said. "I would stake my career on the fact that not a single one of those 165 people in prison is there for a first offense felony conviction. No one goes to prison for the first offense."

Deborah Vargas of the CJCJ said for women admissions to prison alone, first time drug offenders receive an average sentence of 13.4 months in prison. The average sentence for a man is 15.2 months.

According to legislative law, possession of any controlled substance other than marijuana is a felony. "I had a case which was a felony because he had residue in a baggy," Vargas said.

While the CJCJ insists first-time non-violent drug offenders go to prison under current law, Fox says this is simply not true. "I don't believe those figures because I have never seen it happen in my time as D.A," Fox said.

The actual text of the Proposition reads, "To divert from incarceration into community-based substance abuse treatment programs non-violent defendants, probationers and parolees charges with simple drug possession or drug use offenses."

Vargas said if a person is violent this Proposition will not affect him/her. "If he's deemed dangerous to himself or others he won't be admitted to the drug treatment program," Vargas said. "Their backgrounds will always follow them."

Another aspect of the Proposition which Fox finds questionable is that drug testing is not mandated. "This shows what a sham this is," Fox said. "Testing is a necessary component, but they basically don't want to know the program isn't working."

Vargas disagrees, "What they're saying is they don't want the money to go to mandatory drug testing," she said. "Probation and parole dictate drug testing and the cost can be paid by the individual, that won't stop."