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June 26, 2006 - Orange County Register (CA)

Jail Time Sought For Drug Offenses

Legislature Considers Rolling Back Prop. 36's Sentencing Guidelines for Nonviolent Users

By Brian Joseph, The Orange County Register

Return to Drug War News: Don't Miss Archive

SACRAMENTO - In 2000, California voters approved a drug-treatment initiative that was set to become, in the words of one legal newsletter, "the most significant piece of sentencing reform anywhere in the country since the end of Prohibition."

Known as Proposition 36, the initiative mandated treatment and probation instead of jail time for nonviolent drug offenders. Voters approved it with 61 percent of the vote in Orange County and statewide.

But despite its popularity with voters, the Legislature in coming days could vote to alter the law dramatically.

Sen. Denise Ducheny, D-San Diego, has proposed a bill as part of the state budget package that would permit judges to incarcerate offenders who violate their probation by using or possessing drugs again. Gov. Arnold Schwarzenegger has indicated he would withhold funding for Prop. 36 if reforms aren't made now.

The proposed sentences would be short -- up to two days for the first violation, up to five days for the second -- but the Drug Policy Alliance, the original sponsor of Prop. 36, contends the change runs counter to the initiative's intent.

"What they're doing might be legal, but it's not right," said Prop. 36 supporter the Rev. Gary Collins of St. Mark Presbyterian Church in Newport Beach and the Progressive Christians Uniting Orange County chapter. "I think if you want to help drug users, treatment without incarcerations would be more helpful."

Ducheny's proposal comes at the behest of a justice community that opposed Prop. 36 in 2000 as soft on crime, and remains critical of the policy. Law enforcement officials say treatment completion rates aren't high enough. Judges complain they don't have leverage to make offenders attend treatment.

"People need to know there's accountability. I think people need to know they're responsible for their actions," said Orange County Superior Court Judge Erick Larsh, who is critical of Prop. 36, though he thinks it can help offenders.

Backers of Prop. 36 say the governor's threat of withholding funds is an empty one. By law, courts have to sentence nonviolent offenders to drug treatment. If there's no money for treatment, there are no consequences. That means without funding for Prop. 36, drugs effectively would be decriminalized in California, they say.

"That would be an interesting re-election tactic," said Margaret Dooley, Prop. 36 outreach coordinator for the Drug Policy Alliance.

As part of the budget package, Ducheny's proposal, SB 1137, would be voted on immediately after the Legislature approves the budget for the coming year, as early as this week. Unlike most proposed legislation, budget bills are typically approved without committee debates.

Ducheny, however, says her proposal has been fully vetted in public because it is virtually identical to another bill she's carrying, SB 803, which has been through several committee hearings.

The Drug Policy Alliance counters that using a so-called budget "trailer bill" is a stealthy way to get the proposal into law.

"Trailer bills are usually approved. I'm sure that's the plan," Dooley said.

Under current law, nonviolent drug users in treatment who violate probation once or twice by using drugs don't face jail time. Instead, the typical response is increased treatment. Ducheny's bill would allow brief sentences, or "flash incarcerations," as punishment for violations. Critics don't think jail works.

"I think that jail is a great sanction and a good attention-getter but it reminds me of the mother at Kmart whose child is crying and she keeps spanking his bottom and telling him to stop crying. It doesn't make sense," said Nancy Clark of the Nancy Clark Recovery Center in Newport Beach.

A UCLA study released in April found that 34 percent of offenders who enter Prop. 36 treatment each year complete it.

"Prop. 36 has been a tremendous failure," said John Lovell, a lobbyist for six law enforcement organizations that support the proposed changes.

Supporters of Prop. 36 point to another statistic in the UCLA study: $2.50 was saved for every $1 spent on Prop. 36. The savings come primarily from reducing incarceration costs.

Legal advisers to the Legislature told Ducheny and other lawmakers in April 2005 that jailing offenders under Prop. 36 is such a drastic change of a voter-approved initiative that it would require voter approval.

Ducheny disagrees, but has included in the bill an unusual provision that says if a court rules it is unconstitutional, the issue will automatically go before voters for another vote.

"It's unconstitutional and they know it," Dooley said.

Some believe the proposed reforms don't go far enough. Assemblyman Todd Spitzer, R-Orange, said Ducheny's bill should include harsher regulations for repeat offenders. He and Assembly Republicans have asked the governor to push for more reforms.

A two-thirds majority of the Legislature is required to amend Prop. 36.

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