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Fight over drug law headed to court

Backers of California’s drug treament law for non-violent criminals say they are prepared to file suit against the Legislature and Gov. Schwarzenegger for making substantive changes to the voter-approved law that include allowing jail time for first offenders.

SB 1137, which was passed by both houses of the Legislature Tuesday night during the budget debate, will toughen Proposition 36, the California law that diverts non-violent drug offenders from the crowded prison system into drug treatment programs. Prop. 36 supporters, noting that the original law was overhwhelmingly approved in 2000, say the Legislature had no authority to pass those changes.

“It’s asking for a lawsuit. You can pretty much guarantee it,” said Margaret Dooley of the Drug Policy Alliance. “This bill violates the intent and purposes of Prop 36. That means it’s unconstitutional.”

Under the new version passed Tuesday, judges will have the ability to dole out jail sentences of up to five days for people who violate the terms of their drug treatment sentence.

The bill is now awaiting Gov. Schwarzenegger’s signature.

Dooley said she did not know exactly when the lawsuit would be filed, but surmised it would be soon. “I don’t think there’s any rush to do it this week, but it’s something that’s been talked about,” she said.

Talk of changing the law was tangled in budget negotiations because of wording in the original law. Under the initiative, the funding for drug treatment programs – about $125 million per year – was set to expire at the end of this fiscal year.

Even though the funding ran out, the law itself did not expire. But with line-item veto authority, the governor had the power to “blue pencil” out funding for the program if the Legislature did not make some substantive changes to the measure. Those changes included the option of so-called “flash incarceration,” an option demanded by law enforcement groups.

“The evidence is in and Proposition 36 has not worked as advertised,” said Sen. Charles Poochigian, R-Fresno, the GOP nominee for attorney general. He said the changes “are better than what we have today. As written, Prop. 36 is all carrot and no stick.”

But Assemblyman Mark Leno, D-San Francisco, chairman of the Assembly Public Safety Committee, said the changes alter the intent of Proposition 36. Leno voted against the bill on the Assembly floor Tuesday night.

“I have long been opposed to this concept of flash incarceration,” he said. “There’s no evidence at all that it works.”

The compromise, pushed by Sen. Denise Ducheny, D-San Diego, and brokered with help from Assemblyman Dario Frommer, D-Glendale, earned support from both Democrats and Republicans. Frommer said the modifications to the law will simply give judges more leeway when dealing with drug offenders.

“I think these changes are fair,” said Frommer. “It’s not a mandatory thing. This just gives judges far more discretion to deal with people on an individual basis.”

But others were not convinced. Assemblywoman Jackie Goldberg, D-Los Angeles, said the changes “fly in the face of the 61.5 percent of the people who voted for” Proposition 36.

And now, it appears, the battle is headed to court. But the bill passed by the Legislature Tuesday contains language that attempts to protect it from a court ruling. The bill states that if the changes to the law are found to be unconstitutional, then the measure will be palced before voters on the next ballot.

Constitutional scholars have questioned whether that provision is itself unconstitutional.


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