The question now is whether Act 161 should be strengthened or abolished.

Only 190 drug defendants were sentenced to probation and treatment under the law's provisions during the first 15 months after it went into effect in July 2002.

But only 51 were placed in treatment programs during that time, and just 12 of those offenders completed treatment by then, according to state probation officials.

Another 29 drug offenders were paroled from prison through Act 161 over the first six months, but more than half failed in outside treatment programs and were re-incarcerated, according to the Hawai'i Paroling Authority.

Act 161 didn't include any money to pay for the treatment, and it created a tangle of arguments over who is eligible.

The law aimed to improve Hawai'i's strategy to control the crystal meth epidemic by giving first-time offenders probation and treatment rather than prison sentences.

Act 161's proponents say the state must make a major shift so that drug abusers don't become hardened criminals in prison and the state doesn't build itself into a gulag archipelago. The law has the right intent, and the Legislature can straighten its flaws out this year, they say.

"We have this law in place which could be fixed and could become a really terrific vehicle for doing what I think needs to be done," said Pam Lichty, president of the Drug Policy Forum of Hawai'i.

But others say offenders who deserve a second chance can be funneled into treatment in ways that provide more accountability, such as through Drug Court. Defendants who don't take the opportunity seriously and fail to comply with the court's requirements can be locked up more swiftly, creating a strong incentive to change, they say.

"It's the carrot-and-stick approach," Honolulu Prosecutor Peter Carlisle said. "The other way, it's the carrot, the carrot, the carrot and no stick. That's what Act 161 is."

The law states that its intent is "to require first-time nonviolent drug offenders, including probation and parole violators, to be sentenced to undergo and complete drug treatment instead of incarceration."

Under Act 161, an offender cannot be locked up the first time they violate probation solely by using or possessing drugs. They can be imprisoned for drug dealing or manufacturing, however, or if there is ample evidence they are a danger to the community.

But the law wasn't clear in other ways, and critics say it didn't deliver on its promises.

The defendants sentenced under Act 161 so far had indeed been charged with drug use or possession for the first time. But some were far from first-time law-breakers. They had long arrest records, even multiple misdemeanor and felony convictions for charges that didn't involve drugs.

Though the law is meant to apply to nonviolent offenders, it does not bar those who were convicted of violent felonies more than five years earlier from being sentenced to probation for their first drug offenses. It doesn't specify what felonies are considered violent and should disqualify someone if committed more recently. Nor does it spell out whether a recent arrest for a violent crime should bar someone, even if felony charges are pending and likely to result in conviction.

For more than a year, it was unclear whether Act 161 superceded an earlier law that required incarceration of repeat offenders. Different judges ruled each way, and prosecutors and defense attorneys appealed 10 cases to the Hawai'i Supreme Court.

Last month, the high court ruled unanimously that Act 161 does not override the repeat offender law or its mandatory prison sentences.

The Supreme Court upheld a Circuit Court ruling that denied probation and treatment to a woman who pleaded guilty to felony drug and paraphernalia charges.

Faye A. Smith had previously been convicted of felony forgery and theft charges, and was sentenced as a repeat offender to up to five years in prison for the drug charges.

Another flaw, some say, is that Act 161 doesn't preclude someone from being sent to treatment instead of jail if their first drug case was tied to another offense that would not normally entitle them to probation.

"So if you're a smart criminal, just keep drugs in your pocket every time you commit a burglary so that if you get caught, 'Oh, I using drugs'; therefore Act 161 should apply and, technically, it does," one judge observed in another case appealed to the Supreme Court, according to sentencing transcripts.

The bill creating Act 161 was introduced as part of then-Gov. Ben Cayetano's legislative package. The original version excluded repeat offenders and those charged with concurrent offenses, but lawmakers amended it repeatedly to make more people eligible for treatment. The final version was approved with bipartisan support by the full Senate, but 10 House Republicans voted against it.

The law didn't require any comprehensive tracking of who is sentenced under its provisions, how they fare in treatment and whether they commit new crimes.

But limited information compiled by probation officials shows that although Act 161 "requires" treatment, many defendants aren't getting it.

Of the 190 drug offenders sentenced to treatment by October, 21 were judged to not need it, 14 were on a waiting list to get in and 36 could not be found for treatment assessments.

In the meantime, Act 161 has created competition for a limited number of publicly financed treatment slots, limiting opportunities for others who may be more responsive to help.

Act 161 was modeled loosely on laws voters approved in Arizona and California, which also diverted some drug offenders to treatment programs. But there was a key difference in those states: money.

The 1996 Arizona law was linked to a luxury tax on liquor sold in the state, which paid for drug-treatment programs and a parental commission on drug education and prevention programs. The 2001 California law included an annual appropriation of $120 million for treatment.

But some say it's too early to regard Act 161 as a failure, and that the proper support is needed to make it work.

"It certainly has allowed people who didn't otherwise need to be in prison, but did need treatment, to get it," said Deputy Public Defender Susan Arnett. "There's no question that we need more treatment, but I think the proponents of Act 161 rightly recognized that if we waited to enact something like that until we had all the treatment that was necessary, it would never happen. Somebody has to take the first step."