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September 28, 2006
CA: Prop 36 violated if new bill passes
Posted on Wed, Jun. 28, 2006, San Jose Mercury News
Lawmakers back jail terms for drug offenders despite Prop. 36
DON THOMPSON
Associated Press
SACRAMENTO - Gov. Arnold Schwarzenegger will trigger a court battle if he signs a bill allowing judges to send nonviolent drug offenders to jail for brief periods if they violate conditions of their treatment programs, opponents pledged Wednesday.
Voters passed Proposition 36 in 2000, requiring treatment instead of jail for first- and second-time nonviolent drug offenders. But a measure sent to Schwarzenegger late Tuesday as part of the state budget package would permit jailing offenders up to five days to force their participation in treatment programs.
"If you can improve the number of people who complete the programs, you can reduce the number of people committing new crimes. That's the goal," Schwarzenegger spokeswoman Margita Thompson said Wednesday, indicating the governor will sign the bill.
She noted the measure had bipartisan support, passing the Senate, 27-2, and the Assembly, 64-8.
Assembly and Senate budget negotiators said they were told Schwarzenegger would veto $151 million for treatment programs unless lawmakers also sent him the bill permitting jailing of offenders.
Daniel Abrahamson, legal affairs director for the Drug Policy Alliance, said his group will immediately sue once Schwarzenegger signs the bill.
A provision in the legislation will automatically put the issue before voters in an upcoming election if a judge upholds the legal challenge.
"Prop. 36 clearly stated that courts could not jail people for relapsing during their treatment," Abrahamson said. "That is a direct contradiction of voters' will."
The $151 million included in the budget sent to Schwarzenegger is an increase from the $120 million that has been spent on Proposition 36 programs each of the five years since 61 percent of voters approved the measure.
Most of the increase would be distributed as incentives to counties with the best drug program completion rates.
But the accompanying measure would let judges order "flash incarcerations" of offenders who test positive for drugs or fail to attend treatment programs. A first offense could result in two days in jail, with up to five days for repeat offenders.
Bill supporters point to a study by the University of California, Los Angeles, that found about 30 percent of offenders sent to treatment under Proposition 36 never show up, and just 24 percent complete their treatment.
"The threat of a short period of time in jail may be enough to save someone's life by scaring them into taking treatment seriously," said John Ferrera, chief of staff to state Sen. Denise Ducheny, D-San Diego, who carried the legislation.
Jail could be ordered "only for the purpose of compelling someone to take treatment seriously. It's a treatment tool. It's not meant to be punishment," he said.
A judge would first have to consider other ways to encourage the offender to get treatment, and would have to consider the impact of jail on the offender's treatment, job and family.
In addition, the bill would let a judge send a drug offender to a drug court or through the regular judicial process if he or she had five or more non-drug offenses in the previous two years, or if the judge found the offender was a threat to public safety or that treatment wouldn't work.
"I have never heard anybody say with a straight face that going to jail is not punishment," said Abrahamson. "To claim otherwise is disingenuous."
ON THE NET
Read SB1137 at http://www.sen.ca.gov
Posted by lois at September 28, 2006 07:30 PM