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.