Crime and prejudice in California

By ANDREW GUMBEL

Robert Downey jun could never have imagined he would one day become a sounding-board for everything that is wrong with the American criminal justice system.

For a while, he was content to be hailed as one of the finest film actors of his generation: the precocious Oscar-winner (for Chaplin) and reliable stock player for everyone from Robert Altman to Oliver Stone.

But as his drug addictions have spiralled out of control and he has had to interrupt his shooting schedule to shuttle from courtroom to rehab clinic to jail cell and back again, survival has been his main concern. This week has been no exception, what with his arrest last Saturday on drugs charges in a hotel in Palm Springs.

For much of the mid-90s Downey was so out of it that there are whole films he has no recollection of making.

He has pleaded with judges to keep him out of prison to allow him to clean up, only to respond by skipping drug tests, dropping out of treatment programmes and failing to show any sign of overcoming his addiction.

On one occasion he discharged himself from rehab by climbing through a window and hitch-hiking back to Malibu.

He spent much of the past year in one of California's nastiest state prisons, an institution notorious for gladiator fights between inmates, orchestrated gang rapes and guards firing live ammunition at the prisoners.

Just three months after his release Downey was arrested again with a stash of cocaine and metham-phetamine. It is not clear whether he will go back behind bars or if a flurry of new work, including a role opposite Michael Douglas in Wonder Boys and a temporary star turn on the television series Ally McBeal, will be allowed to continue. Downey won't find out until his court appearance on December 27.

Nobody looking at this record of misadventure, self-destructive behaviour and repeat violations of the law could argue that Downey has suffered some gross abuse of his civil rights. But his case has shed light on a murky legal process.

Six years ago, California passed some of the most draconian criminal justice laws in the United States, notably a so-called "three strikes" law that mandates a minimum sentence of 25 years for anyone convicted of three crimes in a row.

Addicts who committed petty thefts to fuel their habits were put away in their tens of thousands - some had stolen no more than a slice of pizza - while some first-degree murderers qualified for parole after six to eight years.

The attitude of the populist media was that drug addicts were scum. Race and class prejudice had more than a little to do with this attitude, since most addicts were Latinos or African Americans.

Downey has hardly tasted the worst of the system, since he was offered just about every rehabilitation programme in the book. But what he has been through has been bad enough. When he was first locked up he was beaten so badly that he lost consciousness and woke "in a pool of my own blood." He spent days in solitary confinement.

He has been buoyed by a wave of sympathy from prominent friends and colleagues, including bad-boy actor Sean Penn and directors Curtis Hanson and Robert Altman. Many were instrumental in procuring him work when he came out of prison and have ensured the media coverage has been upbeat.

His judicial travails have contributed to a changing tide in public opinion that increasingly believes prison criminalises addicts without addressing the root cause.

In the presidential election, Californians voted overwhelmingly for a ballot initiative that will keep almost all first- and second-time drug offenders out of jail and offer them court-ordered treatment programmes.

The logic is seemingly impeccable: the state is wasting billions of dollars on prisons so drug addicts, who now make up 30 per cent of the prison population, can be squeezed into more cells. Instead of spending $US25,000 ($NZ58,500) on each prisoner a year, the state could be spending just $US4000 ($NZ9360) a person on rehab.

The irony is that for all the public sympathy Downey might have generated for the plight of his fellow-addicts, he is hardly a poster-child for the effectiveness of treatment.

That might help to explain why the battle over the drug treatment initiative (known as Proposition 36) attracted the attention of Martin Sheen, who stood full-square on the opposite side of the argument.

Sheen gave up booze 11 years ago, but his son Charlie's problems with hard drugs two years ago fired his zeal. When Charlie failed to follow a rehab course, his father shopped him back to the courts in the belief that only the threat of jail would make him wise up. The strategy worked.



The effect of debating the issue has been refreshing. Sensing which way the wind is blowing, Proposition 36's opponents are working overtime to make it a success when it takes effect next July.

The legislature will look at the issues it throws up. Will there be enough money? Will there be enough trained staff? Will the probation system be able to cope? And it will attempt to fill in the cracks.

What the legislature won't be able to do is promise Ally McBeal fans that Downey will be back in the show.