Prop. 36 Keeps Downey Out of Prison, in Drug Treatment

Actor Robert Downey Jr. became the first high-profile beneficiary of Proposition 36 on Monday, avoiding prison by pleading no contest to drug charges stemming from his November arrest at a Palm Springs resort.

Had he entered his plea just a month ago, Downey almost certainly would have landed behind bars, prosecutors said. Instead, he will be sent back to rehabilitation under a ballot measure approved by voters last fall that mandates treatment, not prison, for many drug offenders.

“With the new law, my hands are tied,” said Riverside County Deputy Dist. Atty. Tammy Capone. “It’s what the voters wanted, and since I represent them, basically, I have to go along with that. But I am concerned about the consequences of that and whether it will work.”

Ending a drawn-out dance between prosecutors and his attorneys, Downey, 36, appeared in an Indio courtroom to plead no contest to possession of cocaine, a felony, and being under the influence of a controlled substance, a misdemeanor.

Downey was placed on three years’ probation. He will serve the first year or so at Wavelinks International, a live-in drug rehabilitation facility in Malibu. Downey also will be subject to surprise drug tests like those he has passed in recent weeks, and will pay fines to be set later of between $5,000 and $6,000, Capone said.

If he fails to uphold the terms of the agreement, he could face four years in prison.

“This is going to be hard work,” Riverside County Superior Court Judge Randall White told Downey. “If you choose not to work at it, if you choose to allow yourself to fail in this program, then the consequences will be severe to you and possibly to the public as well.”

“Thank you for your consideration, your honor,” Downey replied.

The actor’s career, which includes an Academy Award nomination and an acclaimed stint on the television series “Ally McBeal,” has repeatedly stumbled into legal problems.

He was arrested in 1996 and charged with drug possession, driving under the influence and carrying a concealed weapon. He pleaded no contest and was placed on probation. He violated the terms of his probation twice, and in 1999 was sent to Corcoran State Prison for a year.

Released last August, he was arrested three months later at Merv Griffin’s Resort Hotel and Givenchy Spa after an anonymous caller led police to his hotel room, where investigators said they found cocaine and methamphetamine.

While out on bail in April, Downey was arrested again in a Culver City alley with traces of cocaine in his system. Although Los Angeles County prosecutors declined to file criminal charges, the incident cost him his “Ally McBeal” role.

Despite the extensive record of failure, “Rehab will work if he wants it to work,” Capone said.

He does, Downey’s West Los Angeles defense attorney, James Epstein, said after Monday’s hearing.

“His motivation is extremely high right now,” Epstein said. “This time he’s really motivated to get over the problem. And he’s doing very well. When I see him, he is not depressed. His cravings are going down. He’s glad to have this behind him.”

Downey’s case is not a sign that Proposition 36 is too broad, Epstein said, but that it is overdue.

“Addicts are not criminals,” he said. “This is an illness, not a crime. And he’s very appreciative for the new outlook by the voters of California and the district attorney’s office.”

Backers of Proposition 36 also lauded the plea bargain.

“Robert Downey Jr.’s case shows that Proposition 36 is already doing what the voters of California intended: providing treatment, not prison, for people with drug problems,” said Whitney A. Taylor of the Lindesmith Center-Drug Policy Foundation in Sacramento.

The drug policy institute was a key proponent of the ballot initiative and is working with government agencies in California to implement the law.

“Proposition 36 takes the essential first step by recognizing that prison is not the answer,” Taylor said in a statement. “Step 2 is to experiment patiently with different approaches until we find something that will work for Mr. Downey and the tens of thousands of others like him.”

Downey continues to receive regular offers for acting work and eventually could rejoin “Ally McBeal” now that the case has been resolved, Epstein said.

“He needs to take care of himself right now,” Epstein said. “Right now the No. 1 priority is getting well.”