A proposed ballot initiative would fund drug-treatment programs with assets seized from offenders
by Kristen Lombardi
MICHAEL CUTLER:"If people really want to do something about drug abuse -- and not just say they do -- this proposition is a step in the right direction."
Even in an era of unparalleled skepticism about America's war on drugs, the Massachusetts drug-policy-reform movement is used to being ignored. For years, activists pushing to improve what are seen as "useless" and "unfair" drug policies have found themselves up against the same impenetrable barrier: the law-and-order lobby. Police, in general, liken change to a public-safety threat, while politicians shy away from any stance that could be perceived as soft on crime.
Rather than clamor for legislators' attention, reformers, under the banner of the Coalition for Fair Treatment, are now taking their movement to the electorate. As one member explains, "We believe the public is more ready to change injustices of the drug war than legislators acknowledge." Since last summer, the statewide coalition, a broad and rather unlikely group of educators, attorneys, and civil-rights advocates, has launched an aggressive campaign, collecting more than 75,500 signatures in an attempt to put an initiative on the ballot this November. Petition P, as it's known, focuses on two basics in drug policy: substance-abuse treatment and the state's civil-asset-forfeiture law, which allows the government to take ownership of all property that "facilitated" a drug crime -- even before any conviction occurs. The ballot initiative, if approved by voters, would use the forfeited assets to fund treatment for drug users. And it would make it harder for authorities to seize property from suspected drug offenders.
Petition P has drawn fire from anti-crime activists and law-enforcement officials, who call it a "ruse" that would force cutbacks in drug enforcement and allow dealers to escape prosecution. Their resistance was on display at an April 25 legislative hearing, during which all 11 of the state's district attorneys voiced opposition to the initiative. They even put forth an unexpected alternative -- funding drug-treatment programs through fines imposed on dealers -- that, in effect, jeopardizes the ballot initiative's future. But although the alternative proposed by the DAs would help fund treatment, it overlooks a crucial component of Petition P -- namely, state forfeiture funds. So it's questionable whether it is, in fact, an acceptable legal substitute.
The signatures collected have brought the initiative before state legislators, who now have until May 3 to either pass it, offer options, or take no action and thereby send it to the voters. And now that an alternative backed by the powerful police unions exists, legislators could easily give the thumbs-up to its language instead.
Yet Petition P remains the first substantial chance to reform the drug war's woeful effects in Massachusetts. The ballot initiative would funnel millions of much-needed dollars into drug-treatment programs for low-level offenders, a tactic that has proven effective at combating drug-related crime, and it would get that money from state forfeiture funds, which currently amount to a slush fund for law enforcement. In other words, it would eliminate what's described as the current law's most pernicious aspect: giving forfeited assets to the very agencies seizing them. And by so doing, Petition P would make Massachusetts the first state to correct the conflict of interest inherent in the forfeiture law.
"This gives voters a chance to say `Enough' to tired rhetoric," says Richard Evans, a Northampton civil lawyer and the force behind the initiative, "and [instead] make Massachusetts a leader in drug-policy reform."
Despite what the state's DAs would have the public believe, Petition P is not an outrageous proposal. It would, after all, increase funds for drug-treatment programs with money and assets taken from the very people feeding addiction: the dealers.
Expanded treatment, for sure, is a good thing. Study after study has shown that treatment can be more effective than jail time at combating drug use and drug-related crime. In 1994, the state of California surveyed 150,000 participants in substance-abuse programs and discovered that their criminal activity had dropped by 60 percent.
Treatment also costs less than incarceration. In 1997, the Rand Corporation, a relatively conservative think tank, determined that annual prison expenses are approximately $30,000 per inmate, and that treatment ranges from $2000 to $16,000 per person.
"We're concerned about effective, just, and humane policy," says Stephen Saloom, a Petition P proponent and director of the Criminal Justice Policy Coalition, a statewide advocacy organization. "Incarcerating addicts does not address addiction."
To boost resources available for treatment, Petition P authors have focused on the problematic civil-asset-forfeiture law -- and, specifically, on what are seen as "troublesome" and "unfair" loopholes. Right now, Massachusetts legislation allows police to seize everything from cars to houses to bank accounts before people are convicted of crimes -- a practice that, in effect, presumes guilt. It's then up to property owners to prove that their belongings aren't the product of drug sales.
" `Forfeiture' is a nice word," says Michael Cutler, a former criminal-defense lawyer who advocates drug-policy reform. "But the real word is `confiscation.' Current law goes way too far."
In 1992, for instance, state troopers grabbed $38,000 from the briefcase of Tom Russo (not his real name) after stopping him and then charging him with drunk driving, among other violations. Although a state judge ordered the cash returned because of an illegal search, police had already transferred it to the federal government, essentially leaving the money -- profits, it turned out, from a family-owned gas station -- lost forever. A jury later acquitted Russo of all charges.
Petition P aims to correct such injustices. First, the proposed law would raise the standard for confiscating property, forcing police to provide clear evidence that forfeited assets relate to drug crimes and shifting the onus back onto the government.
More important, though, Petition P would eliminate a potential motive for abuse -- namely, that law-enforcement agencies benefit financially from seized cash. By redirecting such revenue into a drug-treatment trust fund, the ballot initiative would make court-sanctioned treatment available to first- and second-time drug offenders whom judges see fit to sentence to rehabilitation instead of prison.
To supporters, using forfeiture funds this way is reasonable. "Drug proceeds would get people off drugs," says Rob Stewart, communications director for the Coalition for Fair Treatment. "It makes perfect sense to me."
Opponents of Petition P charge that the coalition has "duped" Massachusetts residents, and that the ballot initiative is little more than "a wolf in sheep's clothes." Worcester activist Billy Breault, who's crisscrossed the state to fight medical-marijuana and needle-exchange efforts, sums up the sentiment best: "They delivered us an initiative under the guise of treatment, but this will devastate our drug laws."
Opponents claim that Petition P would permit not only those charged with buying drugs, but also those charged with selling up to 28 grams of a drug, to claim themselves at risk of dependency. That means that dealers, as well as addicts, could request treatment in lieu of prosecution. (It should be noted that the initiative would merely give judges the discretion to decide which offenders would benefit from treatment instead of jail.)
Plymouth County district attorney Michael Sullivan, who describes the ballot initiative as "ill-conceived at best," insists that the current system is a success. Violent crime continues to decline, he says, partly because of all the dealers in jail today. "Mandatory minimums are important public-safety tools, especially in urban neighborhoods," he says.
Another vital public-safety device, opponents say, is the forfeited money that's funneled back to police departments and district attorneys' offices for sting operations, drug busts, and equipment. Undercover operations, in particular, carry hefty price tags, quickly exhausting the normal budgets of local police departments. Police have come to count on state forfeiture funds, which, it's estimated, range from $1 million to $3 million each year. Taking away the entire pool, initiative opponents assert, would hamper the ability of police to defend neighborhoods from drug activity.
Perhaps what irritates opponents more, though, is the money behind Petition P. Three rich out-of-state philanthropists have contributed nearly $400,000 to jump-start the campaign. The trio includes John Sperling of Phoenix and Peter Clark of Cleveland, but the most famous, or infamous, is New York billionaire George Soros, who helped finance medical-marijuana propositions in California and Arizona. Soros also funds the Lindesmith Center in New York, a drug-policy think tank viewed as the leading voice among those who want to legalize drugs.
That Soros would be connected to a ballot question here is enough to spark suspicion among opponents. Some, in fact, are convinced that Petition P is designed to be the first step in a long, carefully plotted crusade to decriminalize drugs.
"Soros is king of kings in the legalization movement," Breault warns, "and this petition is his Trojan horse."
There's no doubt that Petition P proponents fundamentally disagree with America's relentless, ever-intensifying drug war. Many are tied to progressive national institutions pushing for drug reform, including the Drug Policy Foundation, the American Civil Liberties Union, and the Voluntary Committee of Lawyers.
But challenging the country's drug policy isn't necessarily the same as championing legalization. And because Petition P boasts such mainstream backers as former attorneys general Scott Harshbarger, James Shannon, and Frank Bellotti, Coalition for Fair Treatment members cannot easily be dismissed as people on the fringe.
This isn't to say that the more conservative types will make the coalition's task any easier. Now that the state's 11 district attorneys have submitted their own legislative alternative -- which, however sudden, looks to be a legitimate attempt to fund drug treatment -- coalition members expect state legislators to look favorably on that language instead, especially since it affords them the chance to bow out of a politically risky debate.
"DAs and police hold a lot of sway on Beacon Hill," Saloom says, "and they'll try to make the lives of allies miserable. It's easier for politicians not to act on our petition."
But even if legislators flat-out reject Petition P, the coalition plans to press forward. Members will crisscross the state, collecting another 9500 signatures to secure a ballot slot. (The added signatures must be supplied if legislators fail to take action on the proposal.) And if their "hunch" about Massachusetts public opinion turns out to be incorrect, and voters reject the proposal, members have already pledged to try again next year.
Until then, though, they find promise in the fact that, at the federal level, civil-asset-forfeiture reform has enjoyed rare, far-reaching support -- so much so that fiercely conservative, tough-on-crime politicians such as Henry Hyde, Jesse Helms, and Bob Barr favor it. A bill that tightens federal law in ways similar to Petition P has passed Congress, and Bill Clinton has vowed to sign it.
"Forfeiture reform is one of the few issues where liberals and conservatives actually agree," notes Ron Madnick, who heads the ACLU office in Worcester and backs Petition P. "I don't know how Massachusetts could buck the trend."
Whether the state becomes a national leader in drug-policy reform remains to be seen, of course. But the ballot initiative, if anything, is sure to prompt people to rethink conventional thought about America's ongoing drug war. And those seeking a rational, effective approach may find Petition P to be the long-sought solution.
As veteran reformer Cutler puts it, "If people really want to do something about drug abuse -- and not just say they do -- this proposition is a step in the right direction."
Kristen Lombardi can be reached atklombardi[a]phx.com.