n the bench outside the probation office in Somerville District Court, Jose Toledo readily admits that he deserved to be arrested for drug trafficking when he was a teenager.
''We should be tough on kids so that they can learn,'' he says sheepishly, recalling how he racked up so much cash back then that he owned a BMW and houses in Puerto Rico.
At age 18, he was sentenced to five years in the state prison at Walpole, where he picked up a still-festering heroin addiction; when he got out, he says, drugs led him to commit still more crimes. Now, at 32, he has spent over a third of his life locked up on drug-related charges, and he wishes he could have gotten drug treatment sooner.
The private regrets of addicts like Toledo, their fights to stay clean (he is in treatment and has applied for a job at Sears), and their relapses (he blames his last one on New Year's Eve) will become a matter of public consideration Tuesday. Voters will cast ballots on Question 8, which steers drug policy away from law enforcement's zero-tolerance stance and toward greater leniency for addicts.
The measure would make some defendants in drug cases eligible to swap prison time for treatment, sidestepping mandatory minimum sentences that are considered crucial weapons in the war on drugs. All 11 of the state's district attorneys oppose the measure, which also seeks to use forfeited money seized in drug raids for treatment instead of law enforcement.
This week, the prosecutors launched an 11th-hour attack, using prime-time radio spots to combat what polls have called overwhelming public support of the measure. In one ad, tense, urgent music plays as Middlesex District Attorney Martha Coakley warns that Question 8 is good for drug dealers and ''bad for our state.''
Throughout bitter debates with opponents on the airways and at public meetings over the past fortnight, the district attorneys have touted a solid alliance with some of the state's most powerful lawmakers: Governor Paul Cellucci, House Speaker Thomas M. Finneran, and Senate President Thomas F. Birmingham.
Proponents have countered with expensive TV ads, paid for in part by New York billionaire George Soros. The ads feature a doctor, a retired policeman, and a reformed addict assuring voters that a yes vote on Question 8 is the right choice: drug treatment instead of incarceration for low-level offenders.
But for voters who wonder how many addicts would become eligible for treatment if Question 8 passes - or how many drug kingpins would elude justice - the ads fall short. Both sides say that's because the statistics are complicated, each case is different, and the distinction between drug dealers and drug users is often blurred.
Supporters of the measure say it targets only those convicted of crimes involving less than an ounce of an illicit drug. Crimes in that category represent roughly 97 percent of all drug convictions in 1999, according to statistics from the Massachusetts Sentencing Commission.
All 237 defendants convicted of cocaine trafficking in Massachusetts last year are serving mandatory sentences of three years or more, according to the sentencing commission. If Question 8 had been in effect, about one quarter of them - those caught dealing between 14 and 28 grams - would have been eligible for treatment, ordered at a judge's discretion.
And that's the largest point of contention.
''It's almost farcical to say that someone that far up the food chain is an addict in need of treatment,'' said Victor Theiss, a top Suffolk prosecutor. ''I see that this new Question 8 will allow people at the top of the chain to ask for treatment that the people at the bottom of the pyramid already have a right to ask for. I guess it's up to the voters to decide how far up the food chain they want to offer treatment.''
But Al Gordon, a spokesman for Question 8, said the measure will help reduce crime by solving one of its root causes: drug addiction.
''What do I see in these numbers? What I see is very few kingpins going to jail and a lot of small-time drug addicts going to jail,'' said Gordon. ''Treatment is a better solution for this level of drug abusers.''
