Drug Cases, Proposition 36, and Three Strikes

Proposition 36, the "Substance Abuse and Crime Prevention Act of 2000" was passed by California voters on November 7, 2000. It calls for probation and drug treatment, not incarceration, for any person convicted of a nonviolent drug possession offense. (A "nonviolent drug possession offense" is the unlawful possession, use, or transportation for personal use of a controlled substance, or being under the influence of a controlled substance. It does not include possession for sale.) Even persons previously convicted of serious or violent crimes are covered by the act, except for those who, during the five years preceding the current drug possession offense, were convicted of a felony (other than a nonviolent drug possession offense) or a misdemeanor involving physical injury or the threat of physical injury to another person, or were in prison. The act states that it becomes effective July 1, 2001 and shall be applied prospectively.

Tommy Lee Fryman, was sentenced to 25 years to life under the Three Strike law after pleading guilty to possession of cocaine. His conviction occurred prior to July 1, 2001, so Proposition 36, by its terms, did not apply to him. Fryman argued that he should not suffer so harsh a penalty when others in the same situation, but convicted after July 1, 2001, got probation. On April 30, 2002, the Sixth District of the Court of Appeal agreed, ruling that Fryman should be sentenced not under the Three Strikes law but under Proposition 36. (People v. Fryman, 97 Cal.App.4th 1315.) So it appears that instead of 25 to life, Fryman will get probation.

The California Supreme Court has agreed to review the Sixth District decision, however, and may decide that the Sixth District got it wrong. Even if the Supreme Court does not reverse the Sixth District's decision, Fryman may not be entirely in the clear. When the case goes back to the superior court for resentencing, the state may attempt to prove that Fryman does not meet the other requirements of Proposition 36. If, for instance, Fryman spent time in state prison within the five years preceding the commission of the drug possession offense, he will be ineligible for Proposition 36's lenient treatment.

Fryman had claimed that the law violated equal protection by distinguishing between persons convicted of drug possession after July 1, 2001, who enjoy the benefit of Proposition 36's requirement of probation and treatment, and those convicted before July 1, 2001, who are denied Proposition 36's lenient treatment. These two groups are the same in all but the date of conviction, and yet the difference in their punishment is dramatic. In Fryman's case it was the difference between a life sentence and no incarceration at all.

At stake was Fryman's fundamental interest in liberty, the court observed, and therefore the classification had to be subjected to strict scrutiny. This meant that the state had to prove that it had a compelling interest in distinguishing between the two groups and that the distinction was necessary to further that interest. The state did not sustain that burden, and so the court held that the prospective-only provision of Proposition 36 "is unconstitutional insofar as it excludes from the Act those nonviolent offenders convicted before July 1, 2001, and whose judgments are not yet final."

What about those whose judgments are final? Does it violate equal protection for someone who committed a drug possession offense at the same time as Fryman, but whose case has already made its way through the system and become final, to receive a life sentence? The defendant whose appellate lawyer was efficient may be stuck with a life sentence, while the defendant with the lawyer who kept asking for extensions of time gets probation. The court did not address that question. No doubt all those in prison under the Three Strikes law due to drug possession convictions are eager to find out what the answer will be.

Even before Proposition 36, it was possible for drug offenders to avoid prison through a program called deferred entry of judgment under Penal Code section 1000. On March 22, 2000, Division Three of the Second Appellate District in People v. Davis, 79 Cal.App.4th 251, decided that prior strikes do not preclude participation in that program. Under the deferred entry of judgment program for drug abuse, a defendant charged with certain drug offenses may plead guilty, participate in a drug rehabilitation program, and have the charges dismissed when he completes the program. Deferred entry of judgment requires a plea of guilty and the defendant must participate in a rehabilitation for a period of 18 months to 3 years. If he fails, he is sentenced.

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Date last modified: 10/6/02.