Margaret Dooley of the Drug Policy Alliance has prepared the following piece for Speak Out California in response to the demand by Gov. Schwarzenegger that incarceration be included as part of the Prop. 36 funding in this year’s budget. As you will see, the action by the Legislature in capitulating to the Governor’s continued bullying not only threatens the integrity of the work being done in the fight against drug addiction, it has serious constitutional implications as well.
The Drug Policy Alliance has announced that it will file suit to challenge the legislation and we’ll be following the progress of that litigation as it proceeds through the courts. Given that this Governor always says he follows the
will of the people, it is ironic and very Bush-like that he has insisted the will of the people be ignored when it doesn’t suit his purposes. Looks like another lawsuit of the People vs. the Governor. I suspect we’ll be seeing many more of these to come:
The Legislative Abandonment of Prop. 36 And California Voters
By Margaret Dooley
In a single vote this week, our state Legislature turned its back on the people of California. Our representatives passed a bill late Tuesday night that, if signed by the Governor, would not only override Prop. 36, the treatment-instead-of-incarceration law passed by 61 percent of voters in 2000, but would undermine the entire initiative process in California.
The bill passed Tuesday, SB 1137, would alter Prop. 36 to exclude from the program many nonviolent drug offenders (many of whom would instead receive jail or prison terms) and allow the incarceration of people engaged in treatment. Prop. 36 currently protects people in treatment so that they get a real chance at recovery before they can be removed from the program and, if a judge orders, incarcerated.
Thanks to in-depth analyses by University of California at Los Angeles scientists, there is copious evidence that the program is working wonders just as it is. In just five years, over 60,000 Californians have graduated from Prop. 36 treatment and taxpayers have saved $1.3 billion. At the same time, public support of Prop. 36 has surpassed 70 percent, according to a 2004 Field Research Corporation poll.

The author of SB 1137, Senator Denise Ducheny (D — Imperial County), says that incarcerating drug users will help them abstain from drug use and therefore improve Prop. 36 success rates. This is sheer lunacy, of course. If jail were an effective “cure” for drug addiction or even an effective deterrent to drug use, California would have eradicated drug use long ago and voters wouldn’t have needed to approve Prop. 36! But incarceration itself is only one part of what is wrong with SB 1137.
The more fundamental problem with SB 1137 is that it is unconstitutional. The state constitution prohibits the Legislature from making any change to a voter-approved ballot initiative that does not further the initiative’s purpose and intent. Period. Incarceration of people in Prop. 36 treatment clearly violates the intent of the voter-approved law, which mandates treatment as an alternative to incarceration for most low-level nonviolent drug offenders.
In case there were any doubts about whether there is a place for incarceration in Prop. 36, the Office of Legislative Counsel issued an opinion on SB 1137’s policy changes (originally proposed in Senator Ducheny’s
earlier, almost identical bill, SB 803, which was abandoned just weeks ago after it stalled in committee) and found that they did not further the purpose or the intent of Prop. 36, making them unconstitutional.
So, despite a landslide victory on the ballot and still massive public support, volumes of evidence showing that Prop. 36 works, and a Legislative Counsel opinion that found SB 1137 policies unconstitutional, the Legislature passed the bill by over two-thirds in both houses.
It gets worse.
Legislators didn’t just unlawfully override the voters’ mandate last week by passing SB 1137 with language that allows judges — in direct violation of the intent of Prop. 36 — to incarcerate people engaged in drug treatment. They also allowed that bill to pass with a unique provision that calls for an “automatic ballot initiative” if any part of the legislation is shown to be “invalid,” or unconstitutional.
This means that if any court (SB 1137 doesn’t clarify which one) found any part of the legislation invalid, as the Legislative Counsel has already suggested will happen, SB 1137 would go to the ballot in the next election.
Californians would be forced to vote not on Prop. 36, which they approved in 2000, but on Senator Ducheny’s treatment-and-incarceration law. If it passed, it would replace Prop. 36.
SB 1137 threatens to set a dangerous precedent and no ballot initiative would be safe from political meddling. Any politician that didn’t like any initiative passed by the voters – even one generated by the Ducheny legislation in question – could draft his or her own bill complete with an automatic initiative provision, making substantive alterations to the voter-approved law. If challenged in court, that legislation too would be placed on the next state ballot for voter approval. And round and round we go!
Unfortunately, it’s too late for the Legislature or the Governor to right this wrong. It will now be up to the courts, and we are confident it will be struck down.

Margaret Dooley is the Prop. 36 Outreach Coordinator for the Drug Policy Alliance. Based in Southern California, she works with some of the state’s 60,000 Prop. 36 graduates to build links between them and their legislators, to educate the community on the success of drug treatment and to protect the voter-approved law so that Californians can continue to turn their lives around.