Modeled on California's Proposition 36, which passed in 2000, the initiative would amend Florida's constitution to mandate that nonviolent first- and second-time drug offenders be either sent to rehabilitation programs or let go. It would also take the likelihood of relapses into account by giving addicts multiple chances at treatment. In effect, it would force the state to treat all defendants the way it's treated Noelle Bush.

But led by Gov. Bush, opposition to the measure is fierce. "I can assure you that unless we have a change in leadership in the governor's office and the attorney general's office, prosecutors and law enforcement will mount a very active campaign against the passage of this," says Jerry Blair, president of the Florida Prosecuting Attorneys Association.

When talking about his daughter, the governor is the model of empathy. "The road to recovery is a difficult and long journey for those afflicted with addiction," he said on Sept. 10. But he took a very different tone in August 2001, when arguing against the Right to Treatment initiative. "To suggest that there should be no penalties for continued drug use," he said, "is to stick our head in the sand."

To be fair, it's not just the Bush team that is opposing the measure. Many in the rehab community are against it as well, arguing that the threat of jail is necessary to make addicts stick with their program. While drug-law reformers insist that addiction treatment should be removed from the criminal realm altogether, Bruce Hayden, the president of Spectrum Programs, a group of four rehab clinics, says that the threat of jail is "absolutely" necessary. "For the most part the criminal justice system and treatment system work very well together," he says.

But how well they work together has a lot to do with how much money defendants have. While first-offense possession of crack in Florida carries a maximum five-year prison sentence (15 years for heroin), most nonviolent defendants can opt for Florida's system of drug courts, designed to divert nonviolent addicts into treatment programs rather than prison. That's what Noelle Bush did. People who complete the treatment emerge with a clean criminal record.

It sounds like a great system, and in many ways it is. It's certainly far better than New York's, where mandatory minimum sentences send people away for decades. Randy Credico, a drug reform activist who heads the New York-based William Moses Kunstler Fund for Racial Justice, cites the case of a Long Island addict currently serving 12.5 to 25 years for a second-offense crack possession.

But there are two problems with Florida's system. McDonough concedes that there aren't enough drug courts to handle everyone eligible for them -- only half who would opt for drug court get in. And those offenders who want treatment instead of prison often have to find their own rehab center -- and a way to pay for it.

There are state-subsidized places within the various clinics, but there's a long waiting list for these, so some defendants go to jail for lack of treatment options. The problem has been exacerbated by recent budget cuts, which, according to a January article in the St. Petersburg Times, eliminated more than 600 subsidized beds -- a third of the total. (McDonough says he thinks the article exaggerated the loss of beds.) Those who don't go to treatment don't get their records cleared, Smith says, so if they're arrested again they can be charged as habitual offenders, which carries a doubled prison sentence.

"A lot of my clients have to suffer jail because they can't afford the kind of program that a prosecutor would find acceptable," says Smith. "If I've got a client with an unlimited budget, I can find a program for him that is probably going to satisfy everyone." Furthermore, he says, "programs that are designed for paying customers tend to be more accommodating," as Noelle Bush's has been. Smith says that the referendum would put the onus on the state, rather than the defendant, to find a treatment bed for everyone who qualifies for one.

Opponents of the Right to Treatment initiative don't really dispute the fact that the system favors people with money. Asked whether the current system discriminates against the poor, Blair says: "In terms of drug treatment, well, it probably discriminates to the extent that the state does not furnish adequate drug treatment programs. It discriminates in the sense that a wealthier defendant might be given the option to voluntarily enter a drug treatment program at his or her own expense in order to avoid the consequences of a criminal offense, and that same drug treatment alternative might not always be available to indigent defendants."

Hayden agrees. "I would like to think that money should not determine whether you go to jail or not," he says. "But it does. Are we talking fair? I think we're talking reality."

At least, reality Bush style.

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