Details Still Being Finalized on Drug Law

SACRAMENTO — Robert Downey Jr. has been the face of young Hollywood, drug addiction and possibly now the nation’s most sweeping drug treatment experiment.

Released from prison in August, the award-winning actor has since added two more drug arrests that ended his role on Fox television’s “Ally McBeal” and could send him back to prison. He has already served one year of a three-year California sentence for violating his probation by missing scheduled drug tests.

But thanks to Proposition 36, a law California voters approved in November, Downey may not serve any time in prison. Although the law doesn’t take effect until July 1, some prosecutors are already following it.

If the 36-year-old Downey avoids prison, he would be like every other Californian with a nonviolent drug record and start with a clean slate under the new law. That’s because Proposition 36 takes away the threat of prison for drug offenders unless they are charged three more times with drug violations or repeatedly fail to cooperate in treatment programs.

Arizona started four years ago, but California--the nation’s most populous state--poses greater challenges and presents a larger proving ground for a plan that drug treatment advocates hope will spread elsewhere.

In Arizona, about 6,000 offenders go through the system each year. Early projections indicate that California will have to find room in already crowded community treatment programs for six times as many, or 36,000, offenders. California’s county probation departments were also far less prepared to oversee the coming flood of offenders.

The new law takes away the threat of jail or prison as an element of punishment for addicts, said Alameda County Dist. Atty. Tom Orloff, president of the California District Attorneys Assn.

But Robert Waters, Downey’s attorney, said prison works for neither his client nor other addicts.

“What they need is treatment through either counseling or medication,” Waters said. “Jail doesn’t even address the problem.”

Sixty percent of voters agreed with Waters, so California will spend $660 million over 5 1/2 years to funnel drug offenders to community treatment programs instead of prison and jail.

Although estimates in some counties suggest that fewer offenders will qualify for treatment than originally anticipated, officials said more money is needed to give addicts long-term treatment and frequent drug tests to ensure they stay clean.

At the greatest premium are more expensive live-in drug treatment programs, which county treatment coordinators said means some offenders who need residential programs will end up in outpatient counseling instead.

However, they generally expect to expand existing community treatment programs to handle the influx, ending fears that treatment programs without an established reputation might spring up across California to address the demand.

County probation departments and treatment providers are competing with each other for their share of the limited state allotment of $120 million a year, but joining in support of a bill budgeting money for limited drug tests.

“You’re seeing a bunch of people who were handed a bag of lemons and are really making lemonade,” said Helen Harberts, Butte County chief probation officer.

However, the law goes into effect as many provisions remain unclear and will almost certainly end up in court:

* State public defenders say anyone convicted after July 1 qualifies for Proposition 36 treatment, but prosecutors say the offense itself must take place after July 1.

Downey, for instance, was arrested in November at a Palm Springs hotel, but his case likely won’t be resolved until after the new law takes effect, said Tamara Capone, the Riverside County prosecutor handling his case.

She said she doesn’t know how the law will affect him if he is convicted.

* Prosecutors also say they’re not required to give offenders Proposition 36 treatment until after July 1, but many believe that they should follow “the spirit of the law” as passed by voters, Capone said.

Downey, who won a Golden Globe for his role on “Ally McBeal” and was nominated for an Academy Award for his starring role in “Chaplin,” faces up to four years and eight months in prison if convicted, but Capone said that’s unlikely. “He definitely needs treatment. I think everybody across the board would agree to that.”

* The District Attorneys Assn. believes judges can jail probation violators without waiting until they go through the three-step process outlined by Proposition 36. It says that’s a way for judges to apply the “shock incarcerations,” or threat of short jail sentences, that are a centerpiece of California’s existing system of drug courts. Authors of the proposition strongly object to that interpretation.

Under the proposition, those convicted for the first or second time of being under the influence of drugs or possessing drugs for personal use would go to court-supervised community treatment programs instead of prison or jail. Those who complete treatment have their records erased. Those who repeatedly fail or refuse treatment are sent to prison for one to three years.

* About 7,200 parolees will be arrested on drug charges that would qualify them for Proposition 36 treatment during the first year, according to Department of Corrections projections. But the prison system has the option of hauling them back to prison or allowing them to go into counties’ treatment programs.

The decision will be left to the Board of Prison Terms, said spokesman Russ Heimerich, but parole officers are unlikely to imprison offenders for the kind of possession charges that would qualify for Proposition 36 treatment.

For instance, Downey was on parole in April when he was arrested on suspicion of being under the influence of drugs near Los Angeles. He will be on parole up to three more years. His parole agent could have sent him back to prison, but opted to send him to a detoxification center and then a live-in drug treatment center for at least six months, with increased drug testing.

“A guy like Downey, if he’s popped on a new offense, the thinking is Proposition 36 would take precedence because the idea is to divert to treatment,” Heimerich said. “And frankly, why tie up another [prison] bed?”

The initiative tracks efforts in other states to put addicts in treatment programs and not behind bars.

For instance, a Florida judge recently sent troubled former baseball star Darryl Strawberry to rehabilitation for two years, followed by a year of probation, instead of agreeing to prosecutors’ request that he go to prison for 18 months.

Backers of California’s initiative hope that its success will prompt other states to follow its example.

On the Net:

Arguments for and against stiff drug sentences:

www.drugpolicy.org

www.dfaf.org