Rulings on Drug Rehab Fought

In what is believed to be the first legal challenge over how Proposition 36 is enforced in court, prosecutors in Anaheim have filed seven appeals accusing judges of authorizing drug treatment for defendants whose crimes they say are not covered by the initiative.

The Anaheim city attorney’s office contends several Orange County judges have unlawfully used Proposition 36 in misdemeanor cases in which defendants have been arrested for possessing drug paraphernalia, including pipes and syringes.

The ballot measure, which took effect this month, permits treatment for defendants convicted of possessing or using drugs but does not mention other related crimes.

The dispute, to be heard by an Orange County Superior Court appeals panel, is one of several bubbling up in courts across the state as authorities debate how broadly to interpret Proposition 36.

The law is intended to provide counseling rather than jail time for first- and second-time drug offenders.

“The law says only certain types of crimes apply,” said Anaheim Assistant City Atty. Pat Ahle. “We’re trying to uphold the law as it is stated.”

Ahle and other prosecutors said it’s important to take a stand now to avoid even looser interpretations of the law later on. They said the goal is to have a state appellate court clarify which offenses are eligible for counseling.

“What do you do if someone comes in with a burglary charge and says, ‘I did it while I was on drugs,’ or ‘to support my drug habit’?” Ahle asked.

“The list could be expanded for any number of scenarios someone wants to make up.”

Defense attorneys acknowledge that Proposition 36 is not as specific as they would like but said Anaheim’s challenge goes against the spirit of the voter-approved measure.

“That’s one of the flaws in the design of Proposition 36. There are ambiguities and gaps. But I think a prosecutor has a duty not just to enforce the law, but to act in the public’s interest,” said Los Angeles County Public Defender Michael Judge.

“The strategy of locking people up and releasing them has been a colossal failure.”

The stakes are significant for defendants like Daisy Greer, a 36-year-old woman arrested last year after Anaheim police said they found eight syringes in her Lincoln Avenue motel room.

Anaheim prosecutors planned to seek a jail sentence for Greer--30 days is their routine request--but Judge Richard E. Behn sentenced her July 9 to counseling under Proposition 36.

The Anaheim city attorney’s office is appealing this and six similar cases, contending the law doesn’t cover drug-paraphernalia possession.

Kevin Phillips, an Orange County deputy public defender, said Anaheim is splitting hairs.

“It’s ludicrous to say you get a program if you possess drugs, but you don’t get the program if you have paraphernalia to use them,” he said.

Not all prosecutors are taking a hard-line stance on the issue. In San Diego, prosecutors have elected not to oppose use of the law on paraphernalia cases.

“We agree with the Anaheim city attorney that the paraphernalia cases are not included under a strict reading of the law,” said San Diego Assistant City Atty. Susan Heath. “We’ve decided to look at the spirit of the law, rather than the letter of the law.”

Officials from other counties, including Los Angeles, said they are going to watch for the outcome of the Anaheim case before deciding how to proceed.

The Anaheim challenges are among several controversies to develop during the first three weeks of California’s new drug policy.

In Los Angeles County, a judge dismissed a theft charge against a defendant over the prosecution’s objection. By doing this, the judge was able to bypass a portion of Proposition 36 that excludes counseling for defendants facing multiple offenses.

Anaheim prosecutors also are challenging the use of Proposition 36 for defendants arrested before the initiative’s July 1 launch. This issue has also been debated between judges and prosecutors elsewhere, including Los Angeles County.

Officials say that 3,500 to 4,500 drug offenders are expected to seek treatment each year in Orange County under Proposition 36. In Los Angeles County, about 20,000 people a year are expected to be treated.

Prosecutors say the interpretations ultimately may need to be hashed out by the California Supreme Court.

“We’re going to spend years and perhaps hundreds of thousands and maybe millions of taxpayers’ dollars litigating this,” said Douglas Pipes, a senior deputy district attorney in Contra Costa County.