Surprise Lone Dissenter: Conservative Justice Brown

The California Supreme Court limited the reach of Proposition 36, the
measure that sends nonviolent drug offenders to treatment programs
instead of jail, ruling Monday that it doesn't apply to offenders who
were pursuing appeals when the law went into effect in 2001.

By a 6-1 vote, the justices said drug treatment is not an option for
offenders who had been sentenced but whose convictions were not yet
final on July 1, 2001.

In an unexpected move, the only member of the court to disagree was
Justice Janice Rogers Brown, a conservative who is rumored to be up
for a nomination to the powerful U.S. Court of Appeals for the
District of Columbia Circuit, considered a steppingstone to the U.S.
Supreme Court.

Accusing her colleagues of taking an "unnecessarily narrow assessment
of the electorate's intent," Brown said the law should be interpreted
to apply broadly to save taxpayers the cost of incarcerating
nonviolent drug offenders and to reduce drug abuse.

State officials were not certain how many inmates would be affected by
Monday's ruling. A UCLA study released earlier this month said that
53,690 offenders were found eligible for drug treatment programs in
the first year Prop. 36 was in effect.

Monday's case involved Andre Rene Floyd of Bakersfield, who was
arrested in April 2000 for possessing a quarter-gram of cocaine.

After his conviction, Floyd was sentenced in November 2000 to 26 years
to life under the three-strikes sentencing law because he had five
previous felony convictions.

Two days before his sentencing, voters approved the initiative
requiring judges to give certain nonviolent drug offenders the option
of getting treatment instead of going to jail. Eight months later, the
law formally went into effect.

Floyd argued that he was entitled to the benefits of the new law
because his conviction was not yet final while he was pursuing appeals.

But the state Supreme Court rejected that argument, saying the law
applied only to cases that arose after the law went into effect -- not
to those pending on appeal.

"The act was not intended to apply retroactively to this subset of
cases," wrote Justice Marvin Baxter in the court's decision.

He also noted that in the ballot arguments, proponents specifically
referred to those convicted after July 1, 2001, as being covered by
the initiative.

In her dissent, Brown noted that the cost of a year's worth of drug
treatment is about $4,000, while the yearly cost of housing someone in
state prison is $24,000. "The majority's construction frustrates
rather than promotes the purpose and intent of the initiative," she
wrote.

Deputy Attorney General Patrick Whalen, who represented the state on
the appeal, said he was not surprised by the court's decision because
there is little ambiguity in the wording of the law. "The intent is
pretty clear," he said.

He said he was slightly surprised by Brown's dissent, especially since
she is considered a conservative on criminal matters.

Conrad Petermann of Beverly Hills, the court-appointed lawyer for
Floyd, said he hadn't read the opinion but was disappointed by the
result.

"Instead of being in a drug rehabilitation program," he said, "the
state of California will have the pleasure of paying for his housing
for some $24,000 for the next 30 years."