Metropolitan News-Enterprise


Monday, November 9, 2009


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C.A. Rules Law on Jailing of Drug Probationers Unconstitutional




Legislation that would expand the circumstances under which judges may impose jail terms on persons who violate probation conditions imposed under Proposition 36 is unconstitutional, the First District Court of Appeal has ruled.

Div. One on Thursday affirmed a lower court injunction barring enforcement of SB 1137, enacted in 2006.

Proposition 36, approved by voters in November 2000, provides that most first- or second-time offenders convicted of possessing small amounts of drugs without intent to sell must be placed on probation. The probation conditions must include drug treatment and may not include jail time.

Sentencing Limitations

If a defendant violates probation by committing another minor drug offense, or by failing to adhere to the treatment program, the court may not revoke probation or impose a jail term as a condition of probation, unless there have been two prior such violations or the court finds that the defendant is a danger to the public or is not amenable to treatment.

 If a defendant commits a non-drug-related violation, probation may be revoked.

Under SB 1137, however, judges would be allowed to sentence offenders to short jail terms if they relapse or drop out of their treatment programs, or commit non-drug-related violations. It would also permit the court to deny probation to a defendant with three prior convictions for non-drug-related felonies, or with five criminal convictions of any kind within a 30-month period.

UCLA Study

Supporters of the legislation said it would address problems such as those identified in a UCLA study, which showed that one-third of Proposition 36 offenders never showed up for treatment, one-third showed up and did well, and one-third showed up, but relapsed back into drug use.

The study also concluded that repeat drug offenders were several times more likely than the average person to commit non-drug-related crimes. Supporters of the voter-approved measure, who filed suit challenging the new law as soon as the governor signed it, did not dispute the study’s conclusions but argued that the results were no different than under drug court programs similar to the regime envisioned by SB 1137.

The Drug Policy Alliance; the California Society of Addiction Medicine; and San Francisco attorney Cliff Gardner, the official proponent of Proposition 36, challenged the initiative in court. They were supported on appeal by the California Medical Association and California Psychiatric Association, which joined in an amicus brief.

The plaintiffs argued that SB 1137 violates Art. II, Sec. 10(c) of the state Constitution. Under that provision, an initiative statue may only be amended by public vote, or as provided in the initiative itself.

Proposition 36 states that any legislative amendment must “further the act” and be “consistent with its purposes.” Alameda Superior Court Judge Jon Tigar agreed with the plaintiffs that because the measure envisions treatment rather than incarceration for eligible offenders, an expansion of the circumstances under which those offenders may be jailed would be contrary to its purposes.

Ballot Proposal

Apparently anticipating a lawsuit, the law’s drafters included a provision putting the bill’s provisions in a ballot proposal for a vote of the people if the law was struck down in court. But Tigar declared that provision a nullity because it cannot be separated from the rest of SB 1137.

Presiding Justice James Marchiano, writing for the Court of Appeal, said the trial judge was correct. He noted that the court had previously struck down legislative attempts to amend the 1988 insurance initiative, Proposition 103, which also permits legislative amendment only to further its purposes.

The presiding justice wrote:

“According to the Proposition’s expressed purposes, its findings and declarations, and the Voter Information Guide arguments for its passage, Proposition 36 diversion was intended to: (1) promote public health by expanding treatment for drug addiction and abuse; (2) enhance public safety by freeing jail cells for violent criminals; and (3) save money by affording treatment in lieu of incarceration. Senate Bill 1137’s expansion of authority to jail Proposition 36 probationers for drug-related probation violations clearly contravenes the second and third of these purposes because the amendment would reduce the jail space available for violent criminals, and increase the costs incurred in connection with nonviolent drug possession offenders.”

The state’s contention that the sanctions in SB 1137 are needed because Proposition 36 treatment is otherwise “all carrot and no stick” is a policy argument that cannot be considered by a court, Marchiano said.

As for Sec. 9 of SB 1137, the alternative provision allowing a public vote only in the event the law was struck down, Marchiano agreed that because Sec. 10(c) allows amendment “by another statute that becomes effective only when approved by the electors,” SB 1137—which was briefly in effect before its enforcement was enjoined—cannot be the vehicle to create a vote on itself.

“Section 9 is therefore invalid along with the rest of Senate Bill 1137,” the jurist wrote.

The case is Gardner v. Schwarzenegger, 09 S.O.S. 6370.


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