Pubdate: Fri, 15 Sep 2006
Source: Oakland Tribune, The (CA)
Copyright: 2006 MediaNews Group, Inc. and ANG Newspapers
Contact:  http://www.oaklandtribune.com/
Details: http://www.mapinc.org/media/314
Cited: Drug Policy Alliance http://www.prop36.org
Cited: California Society of Addiction Medicine http://csam-asam.org
Bookmark: http://www.mapinc.org/prop36.htm (Proposition 36)
Bookmark: http://www.mapinc.org/rehab.htm (Treatment)
Bookmark: http://www.mapinc.org/prison.htm (Incarceration)
Bookmark: http://www.mapinc.org/find?247 (Crime Policy - United States)

COUNTY JUDGE DELAYS DRUG TREATMENT LAW CHANGE

OAKLAND - A change to the state's treatment-not-jail law for drug 
users can't 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 wasn't inclined to 
deviate from her tentative ruling that a temporary restraining order 
she'd issued in July should become a preliminary injunction.The 
plaintiffs are likely to succeed on the merits of their case, she found.

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

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

The lawsuit claims it's unconstitutional to significantly amend 
Proposition 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 it 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 Proposition 
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 doesn't significantly alter 
Proposition 36's ultimate goal of rehabilitation; it just takes 
information gathered from the measure's mandated efficacy studies and 
seeks to tweak the program in order 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. 
- ---
MAP posted-by: Richard Lake