Drug Law Ushers In a New Era

Misti Kerns, Christina Nixon and Nicholas Hernandez sat shoulder to shoulder last week in Division 42 of the Los Angeles Criminal Courts Building, joined together by handcuffs and their small roles in a major new chapter of California law.

With little more in common than their addictions to cocaine, the three appeared before Superior Court Judge Stephen A. Marcus and were sentenced to drug treatment--rather than state prison--under a landmark voter initiative that took effect two weeks ago.

The speedy disposition of their cases underscored what so far has been the relatively smooth implementation of Proposition 36, the complicated law that transforms the way California handles nonviolent drug offenders.

“So far,” said Los Angeles County Public Defender Mike Judge, “it’s been fairly quiet.”

Still, officials caution that the real impact of Proposition 36, like a slowly cresting wave, will build over time. And it is already clear that some significant legal and logistical issues must be resolved.

In Los Angeles County, home to about 40% of the state’s eligible drug cases, the district attorney’s office is expected to appeal judges’ rulings that have allowed drug offenders arrested before July 1 to participate in Proposition 36 programs. Thus far, most judges in Los Angeles County have ruled that Proposition 36 should include any defendants--Kerns, Nixon and Hernandez among them--whose convictions did not occur until after July 1.

Another area of contention is the eligibility of drug defendants whose arrests included separate misdemeanor charges.

“There are likely to be a number of issues, from the effective date of the law to some actions on the part of the courts to really circumvent the law by separating out the drug cases from other charges that would otherwise exclude defendants from Proposition 36 eligibility,” said district attorney’s special counsel Lael Rubin.

Other officials up and down the state report day-to-day missteps, including confusion over processing court papers and problems in matching individual drug offenders to specific levels of drug care.

“Some people aren’t really aware of all the procedures, and there have been some training issues . . . all the way from judges to the [drug treatment] assessment centers,” said Bob Mimura, director of Los Angeles County’s Criminal Justice Coordinating Committee.

Dispute Over Health Records

In Orange County, prosecutors and public defenders are in a dispute over the release of offenders’ health records.

The disagreement involves waiver forms that program participants sign to allow the release of records from treatment centers--forms that help officials determine whether defendants have or have not recovered from addictions.

The district attorney’s forms require disclosure of detailed information, while the public defender’s waiver forms allow release of only those documents that prove whether participants attended the treatment programs and whether they met the requirements.

The dispute has been the topic of several meetings among court officials. In the meantime, some judges are asking that enrollees sign both forms, while others are requiring that just the prosecutor’s forms be signed. Still others are leaving the matter up to probation officials.

In Ventura County, probation officials say they have been overwhelmed by nearly 200 referrals since the measure was implemented.

As in many other counties, scores of defendants in Ventura waited until Proposition 36 went into effect before entering pleas so they could receive treatment instead of jail time, said Presiding Superior Court Judge Bruce Clark.

Whether those defendants show up for treatment programs, however, remains a question.

“Some of these people have been using drugs for 20 to 30 years and you don’t know if they are motivated,” he added. “Many don’t want to quit.”

For those who do, Ventura County also faces a problem common to much of the state. With Ventura officials estimating that local courts will divert up to 5,000 offenders each year into treatment programs, officials warn that there will not be enough money for all of the programs required for Proposition 36 defendants.

“Some of these people obviously need residential treatment for a long period of time,” said Judge Clark, “and the funding isn’t there.”

In Sacramento County, the rift between treatment advocates and the criminal justice system was wide during the negotiation period before July 1. There were clashes between the district attorney and the public defender about how large a say the probation department had in assessing a drug offender’s eligibility for treatment.

‘It’s Time to Get Clean’

But most people say the months of forced collaboration in Sacramento have resulted in sound relations.

Christopher Dodge, 32, of Citrus Heights was one of the first defendants there to be sentenced under Proposition 36. Placed in a counseling and education program, Dodge said he is grateful for the new law, and views it as a chance to kick a longtime methamphetamine habit.

“It’s time to get clean,” Dodge said. “And it beats 90 days in jail.” In San Francisco, which already had one of the most generously funded public drug treatment programs in California, the county has yet to see a Proposition 36 defendant go through the system and into a program.

Phyllis Harding, director of the city’s Community Substance Abuse Services, attributes the lack of participants to the pre-conviction options already available to drug offenders in San Francisco.

“There is a different political atmosphere here,” said Harding. “We don’t have to prove that treatment works; the criminal justice side knows it.”

But even those who believe in drug treatment see problems as inevitable under Proposition 36.

“The statute is unnecessarily complex, self-contradictory in places and hard to understand on the first bounce,” said Los Angeles Superior Court Judge Michael A. Tynan.

The vagaries have been in evidence in courtroom after courtroom as judges--weighing defendants’ criminal histories, current offenses and other factors--decide who is eligible for Proposition 36 treatment and who is not.

In Van Nuys, for example, Superior Court Judge Darlene Schempp denied one defendant’s request for Proposition 36 diversion last week on the grounds that the woman’s cocaine possession arrest occurred months before the statute took effect and that the woman’s two prior convictions--and probation violations--showed she was not serious about drug treatment.

“I looked back at her record and she had been in and out of drug programs,” Schempp said after sentencing the woman to 16 months in state prison. “I felt I would be dooming her to failure if I sent her to treatment.”

In Long Beach Superior Court, Judge Charles D. Sheldon faced a different issue Friday when prosecutors argued that a drug defendant was ineligible for Proposition 36 treatment because his drug offense was accompanied by a separate misdemeanor--in this case a charge of resisting arrest.

“The defense says he ran away and the prosecution says he turned around and made a threat by running toward the officers,” Sheldon said.

The entire case has been held over for two weeks.

“It is not an earthshaking event,” Sheldon said, “but it is an issue that has to be resolved.”

As thousands of cases wend their way through California courts, the ultimate issue, of course, is whether the new law will lead drug offenders to kick their addictions while avoiding prison time.

After three prior cocaine arrests in the past decade, 43-year-old Christina Nixon appeared before Judge Tynan and said she was ready to enter treatment and avoid further scrapes with the law.

“Are you tired of this?” Tynan asked her.

“Yes,” she said.

Five days later, Nixon sat between Misti Kerns, a 26-year-old strawberry blond, and Nicholas Hernandez, a 36-year-old security guard from Belize, as all three were declared eligible for treatment under Proposition 36.

No ‘Get Out of Jail Free’ Card

Were it not for the measure, authorities said, each of the three defendants would have faced at least 16 months in prison. Instead, by pleading guilty to new drug possession charges, they were released from custody to report to drug treatment programs.

Before releasing them, Judge Marcus warned them that they should not take their good fortune lightly.

“Since you are the pioneers of this program, I want to make something absolutely clear to you,” Marcus told them. “You must abide by the program. If you do, there is a tremendous benefit to you. But . . . if you violate probation, I can send you to prison up to three years.

“This is not a ‘get out of jail free’ card,” Marcus said. “You have got to come back to court. You have got to go to treatment.”

*

Times staff writers Alex Gronke, Monte Morin and Tracy Wilson contributed to this story.