Ideological rifts are dominating negotiations as legislative leaders from
both parties rewrite Proposition 36, the voter-approved ballot initiative
that requires treatment instead of prison for first-time drug offenders.
Major changes to the law, authored by Sen. Denise Ducheny, D-San Diego, have
been tucked into an obscure bill, SB 1137, linked to the health portion of
state budget. Among the most significant changes being discussed is a
provision that would allow drug-court judges to incarcerate first-time
Constitutional questions loom about the Legislature’s power to rewrite
Proposition 36. In anticipation of those challenges, the budget proposal
automatically would place the issue before voters if the courts reverse the
Legislature’s action. That is an unprecedented move that critics say is
Capitol sources say Gov. Schwarzenegger is threatening to allow the $145
million for Proposition 36 to lapse unless the new language is approved by
lawmakers. But pressures from treatment advocates and law-enforcement groups
have touched off a battle over how best to change Proposition 36, if at all.
Proposition 36 was approved in November 2000 and took effect six months
later. Money for the program expires on July 1, unless Schwarzenegger
approves the new money–$120 million in state funds and another $25 million
in state and county matching money.
“The law does not expire, but the funding does. If the governor refuses to
re-fund drug treatment, he would recriminalize drug use in California,” said
Margaret Dooley of the Drug Policy Alliance, which spearheaded Proposition
36 and opposes Ducheny’s bill. The proposed changes were “written entirely
by law enforcement. Unfortunately, it would undo what Proposition 36 does to
put people into treatment outside of a jail cell,” Dooley added.
In essence, the governor has the power to allow Proposition 36 to lapse by
default. That has given incarceration advocates considerable leverage as the
talks move along, even in a Legislature run by Democrats.
The Capitol dispute over the bill has evolved into a tangled political
fight. Pro-law-enforcement Republicans generally support prison time for
first-time drug offenders, but oppose other language in the bill that limits
sentences for third-time offenders. Democrats, meanwhile, oppose mandatory
incarceration for first-time convicts, but favor limiting sentences for
“I think the concept of drug treatment has its merits. The funding needs to
be protected. The question is, ‘Are we getting true accountability?'” said
Assemblyman Todd Spitzer, R-Orange, who has been hand-picked by Assembly GOP
leaders to negotiate the issue on their behalf.
Spitzer said he is sensitive to the concerns of law-enforcement groups that
would like to see short-term jail sentences for first- and second-time
nonviolent drug offenders–known as “flash incarceration.”
“Law enforcement wants ‘flash incarceration.’ They’re adamant that it’s in
there,” Spitzer added. Majority Democrats, he noted, “really need
Republicans to do this, and there are no votes for this in our caucus as
drafted. It doesn’t go far enough.”
“Budget talks are fluid so it would be premature to say anything,” said
Schwarzenegger spokeswoman Sabrina Demayo Lockhart. “The governor provided
$120 million in his budget proposal for this program. He also stands by the
reforms to enhance this valuable programs.
When asked if those reforms include flash incarceration, she said, “jail
sanctions could be a potential reform.”
As important as the politics are the legal issues that cloud the Ducheny
bill, which has been simmering for a year in the Legislature in various
forms. An earlier version, rewritten at least nine times, emerged from the
Senate in a 36-2 vote, then was stymied in the Assembly amid opposition from
the Assembly Public Safety Committee, headed by Mark Leno, D-San Francisco.
That bill, SB 803, was scheduled for a hearing in Leno’s committee, but was
withdrawn at the request of the author.
Ducheny’s SB 1137 is an attempt to bypass the Assembly Public Safety
Committee, where sentiment is strong against harsher sentencing bills. She
is trying to shepherd the bill through, placating concerns on the left and
the right simultaneously as leaders closely track the negotiations.
While her current language seems to be more punitive than Proposition 36 for
the incarceration of first- and second-time offenders, GOP leaders are
concerned that it removes judge’s discretion to suspend Proposition 36 on a
third offense. In essence, it would, as written, only allow a judge to
sentence a third-time offender to 30 days in custody.
Among the key players in the Capitol discussions are Spitzer, deputized to
negotiate the deal for Assembly Republicans, and Assemblyman Dario Frommer,
D-Glendale, who represents the Assembly Democratic leadership.
But by late Monday, agreement on the final trailer-bill language had not
At the center of the political dispute is Proposition 36, which was
bankrolled by New York millionaire George Soros, the Hungarian-born
speculator who has donated millions of dollars to set up drug-addiction
programs. It went before California voters as a ballot initiative, won 61
percent of the vote and amended the California constitution.
Presumably, changing Proposition 36 would require voter approval for another
constitutional amendment. But the Ducheny bill would alter Proposition 36
without voter approval–unless the courts rule that the bill violated the
state constitution. In that event, the bill’s provisions automatically would
go before California voters at the next statewide election.
“I like the use of these things. It lets the court know that the Legislature
has a second choice,” said Rick Hasen, a Loyola Law School professor.
That automatic referral is unique in legislative experience, critics
contend. Constitutionally, there are only two ways that issues can go before
voters: either through legislative approval or through a ballot initiative.
“This would be the Legislature doing it through the courts, which opens up a
whole Pandora’s Box of problems,” one Democratic staffer said.
“Our opponents apparently know they are on shaky constitutional ground.
Otherwise, why insert such an outlandish provision calling for an automatic,
self-generated ballot initiative?” Daniel Abrahamson, a lawyer for the Drug
Policy Alliance, said in a prepared statement. “What’s particularly
troubling, such a provision sweeps well beyond Proposition 36. Any ballot
measure passed by the voters which politicians in Sacramento don’t like
could be attacked and gutted this way.”
Also negotiating on behalf of the Alliance is former Senate Leader John
Burton who was a major backer of the original Proposition 36. Other
supporters included the California Nurses Association and assorted
drug-therapy and treatment specialists. Opponents included the California
Correctional Peace Officers Association, which represents state prison