Jail Provision Angers Drug Reform Advocates

Advocates for drug policy reform said Wednesday that they are angered by the Legislature’s approval of tough new provisions for Proposition 36, the drug treatment initiative voters passed six years ago, and believe that such changes are unconstitutional.

Lawmakers made the changes with the backing of Gov. Arnold Schwarzenegger as part of the $131-billion state budget plan. They include a new provision giving judges discretion to send relapsing offenders to jail for “flash incarcerations” of up to five days.

Daniel Abrahamson, director of legal affairs for the Drug Policy Alliance, said such a provision is antithetical to what 61% of voters approved in 2000 and that advocates will fight it.

“First, we’re going to be sending a letter to the governor informing him that it’s unconstitutional and that he should veto it on those grounds,” Abrahamson said. “On the assumption that he goes ahead and signs it Friday, we’ll be in court on Monday seeking a stay.”

Under current law, repeat offenders do not face jail until their third violation.

Abrahamson said advocates are also troubled by a clause in the budget plan that calls for the modifications to be placed on the next ballot automatically should the courts determine they are unconstitutional, Abrahamson said.

That would violate the initiative process, he said.

“Once the public begins to understand the radical and unprecedented nature of that clause, you’re going to see a variety of organizations who’ve used the initiative process in the past come out of the woodwork and join the challenge of this clause,” he said.

Sen. Denise Ducheny (D-San Diego), who wrote the changes, said she wanted to give judges more discretion in dealing with repeat offenders.

“It allows judges to have an extra tool in the toolbox for people who violate probation, to consider -- not to mandate -- jail for them,” she said.

With the revised provisions, judges would be able to incarcerate someone who violated parole by using drugs for 48 hours for the first offense and up to five days for the second. For a third offense, Ducheny’s provisions would give judges the power to send them to rehab again. It also would allow judges to recommend 18 months of rehab instead of the current cap of 12.

Drug policy advocates said they were disheartened.

“Five years of work defeated by secretive backroom process in the Legislature,” said Bill Zimmerman, the political consultant who managed the campaign for Proposition 36. “We’re going to go to court, and we’re confident this will not fly. We told them months ago that we had a law firm on retainer. We’re going to be very aggressively seeking a change in the court.”

A study by UCLA found that Proposition 36 has saved California $1.3 billion. But it also found that nearly one-third of clients did not complete rehab. Another study, published in the journal Criminology & Public Policy in November 2004, found that nearly a third of drug offenders who volunteered for treatment under Proposition 36 were arrested on drug charges within a year of entering rehab.

Judges, district attorneys, public defenders, probation officers and law enforcement agencies have generally been critical of Proposition 36 and began lobbying years ago for alterations.

The fundamental disagreement with the Drug Policy Alliance, Ducheny said, is whether jail time is appropriate for someone who relapses once or twice while battling addiction. She and many law enforcement organizations say yes.

“Fundamentally, this is not giving them jail time for the drug offense but to say, ‘Look, we gave you that opportunity and you decided, for whatever reason, not to take advantage of it.... You didn’t meet your responsibility to us, so we need some accountability,’ ” Ducheny said.

The alliance says jailing addicts only hinders recovery.

If jailing addicts could help them to overcome addiction, America would not have a drug problem, said Gretchen Burns Bergman, executive director of the San Diego-based advocacy group A New PATH (Parents for Addiction Treatment and Healing) and former state chairwoman for Proposition 36.

Her sons were addicted to heroin, she said, and struggled for some time before being able to kick the habit.

“Addiction is a chronic, relapsing disease. That’s why we feel so strongly about keeping the handling of it with health care professionals who really understand the disease,” Bergman said.