As California's Proposition 36, which gives first- and second-time nonviolent drug possessors the option to choose drug treatment over a possible prison sentence, enters its third month, prosecutors and defense attorneys are skirmishing over the new law's reach. With implementation of the Substance Abuse and Crime Prevention Act, as Prop. 36 is formally known, taking place at the county level, the 58 county district attorneys play a key role in making the act work. Some have apparently not yet gotten over their November loss and are contesting the law's scope in a variety of ways, but they are still taking their lumps.
In a victory for reformers, an Orange County appeals court ruled last month that Prop. 36's provisions apply not just to drug offenders, but also to persons charged with possession of drug paraphernalia, such as needles or crack pipes, and that the new law applies even to those arrested before it went into effect on July 1. Meanwhile, a similar appeal is underway in Northern California, and in Alameda County, prosecutors and defense attorneys are tangling over whether to jail Prop. 36 offenders prior to conviction.
In the Orange County case, a two-judge Superior Court Appellate Department panel upheld trial judges who had extended Prop. 36's provisions to those two classes of defendants. The city of Anaheim had challenged the broadening of the law's scope, with prosecutors arguing that paraphernalia offenses were not explicitly mentioned in the law. But the judges ruled that to deny needle possessors the same protections afforded to drug offenders "would lead to absurd results that run contrary to the expressed intent of the voters."
Deputy Orange County DA Brian Gurwitz still didn't get it, though. "Drug offenders should only receive Proposition 36 treatment for offenses listed in the statute," he told the Orange County Register. "We disagree with the court's expansion of the program."
Be that as it may, Anaheim prosecutors announced late last week that they were dropping any further appeals on the two types of cases and would quit seeking jail sentences for paraphernalia law violators. Nine defendants had faced further hearings and possible jail sentences in connection with the paraphernalia and arrest date issues. Now they will join more than 1,400 others ordered to treatment programs in Orange County under Prop. 36 so far.
Prop. 36 supporters and defense attorneys, however, were pleased by the court ruling and the subsequent retreat by the city of Anaheim. Assistant Public Defender Robert Knox told the newspaper he applauded the decision. "We really thought these people were eligible and the sentencing judges were acting the way the law was intended," he said.
And Bill Zimmerman of the Campaign for New Drug Policies, which spearheaded the Prop. 36 initiative effort, told the newspaper, "We're gratified by the announcement by Anaheim." A similar case is underway in Northern California, said Zimmerman.
In Alameda County, meanwhile, prosecutors are trying to keep Prop. 36 offenders in jail pending conviction, even though they cannot be sentenced to jail time. Prosecutors argued that time in jail could motivate defendants to settle their cases quickly and asserted that the strategem is consistent with Prop. 36 because it will help get people into treatment more rapidly. They also argued that Prop. 36 is a "sentencing only" law that does not affect release pending trial.
Defense attorneys weren't buying that argument, and neither was the Oakland Tribune. It blistered the Alameda DA in an editorial last week for a mind-set "a little too much like the philosophy behind the gulag in the Soviet Union." The newspaper noted that if Prop. 36 defendants cannot be jailed after conviction, "it makes no sense to hold them in jail before they are convicted. It is illogical to treat someone more harshly before he or she has been proven guilty of anything.
"The fact is," the newspaper continued, "prosecutors and judges in Alameda County opposed Proposition 36 from the beginning and this latest tactic is simply another attempt to circumvent it. But the voters of California, recognizing the futility of incarcerating people with drug addictions, were very clear about their intention to provide treatment as an alternative. It's the law, and those charged with upholding it should put their resistance aside."
Neither the Campaign for New Drug Policies nor The Lindesmith Center-Drug Policy Foundation Sacramento office, which is monitoring the progress of Prop. 36, was available for comment on Thursday. Both were involved in statewide meetings measuring the implementation of the act. Stay tuned.