Legislation Introduced That Would End Mandatory Incarceration for Nonviolent Drug Offenders

Under current law, certain drug offenses in California carry with them mandatory jail and prison sentences.  On Monday, Senator Scott Wiener along with co-sponsor Assemblymember Wendy Carrillo announced SB 378, which would grant judges more discretion by repealing laws that were established during the height of the War on Drugs era in 1986—which enacted these mandatory minimum sentences for nonviolent drug offenses.

“For a lot of people in progressive California it is surprising to hear that in 2020, with all of the reforms that we’ve been working on for years, that there are still mandatory jail or prison sentences for non-violent drug offenses,” Senator Wiener explained.

The current law denies judges the discretion to sentence drug offenders to more appropriate terms such as probation or diversion.

“But here we are in California, in 2020, with mandatory prison or jail sentences for non-violent drug sentences,” he said.

SB 378 would give the judge the ability to decide whether to incarcerate or whether to put someone on probation or diversion.

“In California, we tragically were pioneers in the 70s and 80s and 90s in mass incarceration,” Senator Wiener said.  California led the way in mass incarceration, finding ways to sentence people to longer periods of time for more and more crimes.

Courts eventually found that prison conditions were so overcrowded that they were unconstitutional—and it was unconstitutional despite the fact that we built dozens of new prisons.

“We have seen the damage that mass incarceration has caused tearing communities apart, tearing families apart,” he said.

Senator Wiener argued that mass incarceration is a public health issue in California, and in the short and long term, he said, we must work to offer non-incarceration options to drug offenders—particularly those struggling with substance use disorder—instead of defaulting to prison or jail time.

Not only is mass incarceration bad for public health, Senator Wiener said, it’s also a giant expense for California in a time when we face massive budget cuts and a potentially catastrophic recession due to the COVID-19 pandemic and economic shutdown. Mass incarceration costs our state unnecessary billions that should be going to things like schools, healthcare, and infrastructure.

Assemblymember Wendy Carrillo and Senator Nancy Skinner have introduced previous versions of this bill in past years, and will co-author SB 378. It is sponsored by the Drug Policy Alliance.

“Incarcerating non-violent drug offenders is the wrong direction for California, and it’s time repeal these jail and prison mandates,” said Senator Scott Wiener.

“Mass incarceration is deeply harmful to our state — part of the structural racism afflicting our entire criminal justice system— and we must end it. It makes no sense to force judges to sentence non-violent drug offenders to jail or prison,” he said.  “California’s addiction to over-incarceration tears families and communities apart, doesn’t make us safer, and costs taxpayers dearly. California needs to reduce our jail and prison population and begin closing down prisons. Now is the time to take this step toward decarceration.”

Assemblymember Carrillo noted, “This legislation is important especially as we address issues of institutionalized systemic racism that plagues our communities.”

She noted that, under the current law, judges are prohibited from evaluating all of the circumstances and applying their own discretion in sentencing.  Instead, judges are forced to incarcerate people who would better be treated and evaluated in their own community.

“These minimums disproportionately impact and affect minority communities,” she said.  “Every year mass incarceration impacts our families across our state and consumes billions that California should be investing in education, health and mental health programs.”

San Francisco District Attorney Chesa Boudin said, “Mandatory minimums for far too long have disproportionately impacted people of color in poor working communities.”

He said it is unusual for him to advocate for a law that would strip power away from his office.

“Mandatory minimums have been a tremendous power grab by district attorneys from judges,” he said.  “(The) power has been abused—it has led to spiraling incarceration, it’s led to disproportionate sentencing for people of color.”

At the same time, Boudin said, “The war on drugs has continued to cost the state of California over $47 billion a year even though we know it is a failure—it does not work.”

He said it “is not an effective or empirically founded response to the very real challenges that our communities face.”

Senator Wiener noted that this law would not eliminate maximum punishment in cases where judges deemed it warranted, “it simply takes away the mandate.”

San Francisco Public Defender Mano Raju called this “clearly a step in the right direction.”

He noted that a lot of the amount that people go to prison for “are really tiny amounts that are being sold.”

Many of these people are attempting to support addiction or have mental health issues or are housing insecure.

He noted the case of a 40-year-old Black woman, with a documented history of mental health problems.  She was in possession of .04 grams of crack—4/100ths of a Sweet N’ Low packet.  She sold to an undercover officer who was willing to pay $20 for a crumb that she had just bought for $5.

“It is not uncommon for someone in that situation in courtrooms across the state to be sentenced to prison and then to be ineligible for housing or other benefits,” he said.

“This is expensive injustice,” he said.  “The racial inequalities [exist] because of where law enforcement is choosing to use their resources [to] start.”

Nick Stewart-Oaten, speaking for the California Public Defender Association, noted that the bill attempts to address an inequity created from a bill passed in 1986—during the heart of the drug war.

“The current mandatory minimums that this bill is trying to address are incredibly disproportionate,” he explained.  “Right now if I sell a small amount of drugs I’m ineligible for proobation.  But if I assault somebody I am eligible for probation.”

“This kind of discrepancy in the law between nonviolent and violent offenders really needs to be addressed,” he said, noting that, with the cost of incarceration at over $80,000 per year and the length of these sentences which often extends to ten years or more, the costs figure to be nearly $1 million for many of these cases.

“Mandatory minimums are a remnant of the failed, costly and racist War on Drugs,” said Glenn Backes, policy consultant for Drug Policy Alliance. “Current law ties the hands of judges, they are powerless. This bill gives the judge the authority to order probation services and supervision, when it makes sense, given local norms and local resources.”

In a release from Senator Wiener’s office, they said, “As our country reckons with the police killings of George Floyd and Breonna Taylor, and begins a massive rethinking of our criminal justice system, we must take seriously the ways we can begin to end our system of mass incarceration. The War on Drugs – and its disproportionate criminalization of Black and brown communities – must end, and SB 378 would repeal one of the era’s worst leftover laws.”

—David M. Greenwald reporting

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