Sounding Off: Drug offenders not entitled by law

California Proposition 36, the Substance Abuse and Crime Prevention Act of 2000, was an initiative statute that permanently changed state law to allow qualifying defendants convicted of non-violent drug possession offenses to receive a probationary sentence in lieu of incarceration.

As a condition of probation, defendants are required to participate in and complete a licensed and/or certified community drug treatment program. If the defendant fails to complete this program or violates any other term or condition of their probation, then probation can be revoked and the defendant may be required to serve an additional sentence, which may include incarceration.

Secondary conditions such as compulsive gambling, kleptomania, pyromania, intermittent explosive disorder, trichotillomania [the compulsive urge to pull out one's own hair] and additional impulse-control disorders may be associated with drug/alcohol addiction and may be recognized disorders, but they are not covered under the Americans with Disabilities Act or Proposition 36.

As such these disorders should not be allowed the same privileges in Newport Beach as are granted to drug/alcohol addiction patients.

For example: Not all defendants convicted of a non-violent drug possession offense are eligible for probation and treatment under Proposition 36.

The California Penal Code deems the following defendants ineligible:

— Any defendant incarcerated within the last five years for a serious or violent felony.

— Any defendant convicted in the same proceeding of a non-drug related crime.

— Any defendant who, during the commission of the offense, possessed a firearm and, at the same time, was either in possession of or under the influence of cocaine, heroin, methamphetamine or PCP.

— Any defendant who refuses treatment.

— Any defendant who has two separate drug-related convictions, has participated in Proposition 36 twice before, and who is found by the court by convincing evidence to be unamenable to any and all forms of available drug treatment.

Any of the exampled criteria would exclude non-violent drug/alcohol offenders from participating in residential rehab recovery facilities — and I'd venture a guess that these criteria are applied in an effort to protect the community. No such exclusionary criteria exist for all "other" conditions and these conditions could actually result in more harm to the residential neighborhoods in which these patients would be treated because of the lack of exclusionary criteria.

The city of Newport Beach should exercise extreme caution in granting the same rights to "other-condition patients" in an effort to stay out of lawsuits by patronizing the city's numerous, new rehab "partners." Failure to protect the Newport Beach community by granting rights to people not entitled to such rights, and thereby force our community to be exposed to a patient roster they would not otherwise be obligated to accept into the community, would then make the city primarily liable to a community that is injured as a result. God forbid that a fatality occur because city officials won't call this a "sham."

There is no law mandating our Newport Beach community house "other condition" patients among us.

BOB RUSH lives in Newport Beach. He is a board member with the West Newport Beach Assn.

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