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Proposition 36 not retroactive

 State high court narrows drug rehab law
Surprise lone dissenter: conservative Justice Brown



The California Supreme Court limited the reach of Proposition 36, the measure that sends nonviolent drug offenders to treatment programs instead of jail, ruling Monday that it doesn't apply to offenders who were pursuing appeals when the law went into effect in 2001.

By a 6-1 vote, the justices said drug treatment is not an option for offenders who had been sentenced but whose convictions were not yet final on July 1, 2001.

In an unexpected move, the only member of the court to disagree was Justice Janice Rogers Brown, a conservative who is rumored to be up for a nomination to the powerful U.S. Court of Appeals for the District of Columbia Circuit, considered a steppingstone to the U.S. Supreme Court.

Accusing her colleagues of taking an "unnecessarily narrow assessment of the electorate's intent," Brown said the law should be interpreted to apply broadly to save taxpayers the cost of incarcerating nonviolent drug offenders and to reduce drug abuse.

State officials were not certain how many inmates would be affected by Monday's ruling. A UCLA study released earlier this month said that 53,690 offenders were found eligible for drug treatment programs in the first year Prop. 36 was in effect.

Monday's case involved Andre Rene Floyd of Bakersfield, who was arrested in April 2000 for possessing a quarter-gram of cocaine.

After his conviction, Floyd was sentenced in November 2000 to 26 years to life under the three-strikes sentencing law because he had five previous felony convictions.

Two days before his sentencing, voters approved the initiative requiring judges to give certain nonviolent drug offenders the option of getting treatment instead of going to jail. Eight months later, the law formally went into effect.

Floyd argued that he was entitled to the benefits of the new law because his conviction was not yet final while he was pursuing appeals.

But the state Supreme Court rejected that argument, saying the law applied only to cases that arose after the law went into effect -- not to those pending on appeal.

"The act was not intended to apply retroactively to this subset of cases," wrote Justice Marvin Baxter in the court's decision.

He also noted that in the ballot arguments, proponents specifically referred to those convicted after July 1, 2001, as being covered by the initiative.

In her dissent, Brown noted that the cost of a year's worth of drug treatment is about $4,000, while the yearly cost of housing someone in state prison is $24,000. "The majority's construction frustrates rather than promotes the purpose and intent of the initiative," she wrote.

Deputy Attorney General Patrick Whalen, who represented the state on the appeal, said he was not surprised by the court's decision because there is little ambiguity in the wording of the law. "The intent is pretty clear," he said.

He said he was slightly surprised by Brown's dissent, especially since she is considered a conservative on criminal matters.

Conrad Petermann of Beverly Hills, the court-appointed lawyer for Floyd, said he hadn't read the opinion but was disappointed by the result.

"Instead of being in a drug rehabilitation program," he said, "the state of California will have the pleasure of paying for his housing for some $24,000 for the next 30 years."