Fight over drug law headed to court

Backers of California’s drug-treatment law for nonviolent criminals say they
are prepared to file suit against the Legislature and Gov. Schwarzenegger
for making substantive changes to the voter-approved law that includes
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 nonviolent drug offenders from the crowded prison system into
drug-treatment programs. Proposition 36 supporters, noting that the original
law overwhelmingly was approved in 2000, say the Legislature had no
authority to pass those changes.

“We’re going to be challenging certainly the provisions in the bill that
allow judges to propose jail sanctions for people in Prop. 36
treatment,” said Daniel Abrahamson, a lawyer representing the Drug Policy Alliance (DPA), which supports Proposition 36. “And we’re going to be challenging the wacky clause that puts it back on the ballot.”

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.

Abrahamson said the suit would be filed “as soon as this bill becomes law.
If the governor signs this on Friday, we hope to be in court by Monday,” he
said. And, he said, there could be a diverse ideological coalition ready to
challenge the bill.

“It’s not just DPA, but all sorts of organizations across the political
spectrum who have used the initiative process over the last umpteen years
coming out of the woodwork to challenge this ridiculous provision,” he said.

Talk of changing Proposition 36 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,
Proposition 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 placed before voters on the next
ballot.

Constitutional scholars have questioned whether that provision is itself
unconstitutional.