JUDGE DISALLOWS CHANGE IN DRUG LAW

Legislature's Allowing 'Flash Incarceration' May Violate Prop. 36

OAKLAND -- A change to the state's treatment-not-jail law for drug
users cannot take effect until a lawsuit challenging its
constitutionality runs its course, an Alameda County Superior Court
judge ruled Thursday.

After a 35-minute hearing, Judge Winifred Smith did not deviate from
her tentative ruling that a temporary restraining order she issued in
July should become a preliminary injunction.The plaintiffs are likely
to succeed on the merits of their case because SB 1137's provisions
are at odds with Proposition 36's purposes, she found.

The Drug Policy Alliance, the California Society of Addiction Medicine
and Prop. 36 co-author Cliff Gardner of Oakland sued over the bill's
amendment of the drug-treatment law to include "flash incarceration"
- -- letting judges impose up to five days of jail time to punish
drug-use relapses.

Supporters say it is a vital "stick" to augment the "carrot" of
treatment; Prop. 36's original backers say there is no evidence it
helps treatment and it undermines voters' intent in passing the
original law.

The lawsuit claims it is unconstitutional to significantly amend Prop.
36 -- approved by 61 percent of voters in November 2000 -- without
another popular vote. The nonpartisan Legislative Counsel's office
said so in 2005, but the Legislature overwhelmingly passed the changes
in June and Gov. Arnold Schwarzenegger signed the measure in July.

Deputy Attorney General Kathleen Lynch argued Thursday that the
plaintiffs -- who sued under the broad authority of taxpayers, not in
the narrower category of people who potentially could be jailed under
the new bill -- lack standing to seek and get a preliminary injunction.

But plaintiffs' attorney Jonathan Weissglass noted one of Prop. 36's
stated purposes was to save taxpayers millions of dollars by diverting
people from jail to treatment, and this lawsuit aims to ensure that
happens.

Lynch also argued that SB 1137 does not significantly alter Prop. 36's
ultimate goal of rehabilitation; it just takes information gathered
from the measure's mandated efficacy studies and seeks to tweak the
program to make it work better.

Smith replied that whether or not flash incarceration is a good idea,
the Legislature is severely limited in changes it can make to
voter-approved initiatives and this is "a very different scheme when
interspersed in the rehabilitation process is the threat of
incarceration."

Weissglass argued the same: "The argument about purpose completely
ignores the specific language of the proposition," explicitly
forbidding incarceration.

The new bill specifies that if a court strikes down any part of it,
all its changes automatically will be put on the ballot for a popular
vote.