Pubdate: Fri, 15 Sep 2006 Source: Alameda Times-Star, The (CA) Copyright: 2006 ANG Newspapers Contact: http://www.insidebayarea.com/timesstar Details: http://www.mapinc.org/media/731 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