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Substance-abuse treatment mandated for non-violent drug offenders under Proposition 36 isn’t available retroactively for defendants sentenced before the measure’s effective date, even if a conviction isn’t final. The California Supreme Court’s 6-1 ruling Monday means that an unknown number of criminal defendants will remain in prison and not be referred instead to treatment programs. In a dissent, Justice Janice Rogers Brown called the majority ruling “unnecessarily narrow,” and ultimately costly in that, she said, an individual’s drug treatment costs the state $4,000 annually, whereas a year’s imprisonment for the same person would cost $24,000. “Even one year’s incarceration of defendant will far exceed the amount taxpayers would pay to divert him from the criminal justice system altogether,” Brown wrote. “Since he will not be eligible for parole for many years, the actual cost will likely be ‘the wasteful expenditure’ of hundreds of thousands of dollars for an individual ‘who would be better served by community-based treatment,’” she added, quoting from ballot language presented to voters. In People v. Floyd, 03 C.D.O.S. 6400, Bakersfield resident Andre Rene Floyd was convicted of possessing a quarter of a gram of cocaine after he coughed a baggie out of his mouth and onto the body of his deceased girlfriend on April 30, 2000. A police officer was present to investigate the woman’s death. On Nov. 9, 2000, jurors sentenced Floyd, who fell within the “Three Strikes” law because of five prior felony convictions, to 25 years to life in prison. Prop 36, the Substance Abuse and Crime Prevention Act of 2000, which was aimed at diverting non-violent drug offenders into treatment programs, had been approved by voters two days earlier, but didn’t go into effect until the following July 1. Floyd argued that he deserved drug treatment because his conviction was on appeal and thus wasn’t final at the time Prop 36 became effective. Disagreeing, the Supreme Court said ballot language made it quite clear that the measure was meant to apply only prospectively. “Resentencing numerous defendants was plainly a result the voters sought to avoid by according the statute prospective effect,” Justice Marvin Baxter wrote for the majority. “In addition, the voters may not have wanted to encourage defendants to file meritless appeals designed simply to stretch out the time to finality.” Justice Brown took exception to the ruling by arguing that the statute’s wording on its effective date was “hardly self-explanatory.” She insisted that the rule of lenity, invoked when there are two reasonable interpretations of a statute, should apply and that Floyd should receive the lesser punishment. “This result,” she wrote, “is all the more compelling since the majority’s construction frustrates rather than promotes the purpose and intent of the initiative.” Beverly Hills lawyer Conrad Petermann, who represented Floyd, could not be reached for comment. Sacramento Deputy Attorney General Patrick Whalen, who argued the case for the state, said he doesn’t think the ruling affects many people, even though the state has no method of tracking others who might be in a situation similar to Floyd. “The reason I say I don’t think it’s a large number is because the number of defendants raising a Floyd-type claim on appeal throughout our office — in what was a very informal survey — was a very small number of defendants,” Whalen said Monday. “Also, simply by the mere passage of time . . . this case is largely moot,” he said. “There’s not likely to be anybody else today that’s going to be affected by this, since the effective date is two years in the past.”

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