When Eric Holder announced sweeping changes to the federal government’s enforcement of drug laws and its pursuit of mandatory minimums for non-violent, small quantity drug possession offenses, perhaps the biggest change came two weeks later when Mr. Holder informed the states that the government would allow the states to create a regime that would regulate and implement the ballot initiatives that legalized the use of marijuana for adults.
This is a marked contrast to how the Justice Department under Presidents Bill Clinton, George W. Bush, and the first term of Barack Obama dealt with California’s medical marijuana law, where the federal government was often criticized for raiding facilities, treating terminally ill cancer patients, which dispensed marijuana under state law.
While the federal government is reserving the right to file a preemption lawsuit at a later date, in a memo from Deputy Attorney General James Cole, the position is currently: “The Department’s guidance in this memorandum rests on its expectation that states and local governments that have enacted laws authorizing marijuana-related conduct will implement strong and effective regulatory and enforcement systems that will address the threat those state laws could pose to public safety, public health and other law enforcement interests.”
They add, “A system adequate to that task must not only contain robust controls and procedures on paper; it must also be effective in practice.”
While the DOJ will still prosecute crimes such as the distribution to minors, money going to criminal enterprises, and violence, the signal to back off and allow the states to deal with enforcement is a tremendous step forward.
California has been at work on this for some time. Three weeks after U.S. Attorney General Holder announced the nation’s plan to scale back prison sentences for low-level drug crimes, the California Assembly passed legislation authored by Senator Mark Leno that reforms California’s drug sentencing laws for simple possession.
SB 649 allows counties to significantly reduce incarceration costs by giving prosecutors the flexibility to charge low-level, non-violent drug offenses as misdemeanors or felonies (known as wobblers).
The bill, which passed the Assembly with a bipartisan vote, also gives judges discretion to deem a non-violent drug possession offense to be either a misdemeanor or felony after consideration of the offense and the defendant’s record.
“We know we can reduce crime by offering low-level offenders rehabilitation and the opportunity to successfully reenter their communities, but we are currently doing the opposite,” said Senator Leno, D-San Francisco.
He added, “We give non-violent drug offenders long terms, offer them no treatment while they’re incarcerated, and then release them back into the community with few job prospects or options to receive an education. SB 649 gives local governments the flexibility to choose reduced penalties so that they can reinvest in proven alternatives that benefit minor offenders and reserve limited jail space for serious criminals.”
If signed by the governor, supporters say, the law “will significantly reduce jail spending and allow local governments to dedicate resources to probation, drug treatment and mental health services that have proven most effective in reducing crime. It will also help law enforcement rededicate resources to more serious offenders. The Legislative Analyst’s Office estimates reducing penalties for drug possession will save counties about $159 million annually.”
Senator Leno’s office believes that the reforms proposed in this legislation will “complement federal plans that Attorney General Holder announced on August 12. The U.S. Justice Department will phase out mandatory minimum sentences for low-level drug crimes, reserving the most severe penalties for those who commit more serious crimes.”
“Based on my 38 years in the criminal justice system, including 5 years presiding over an adult drug court, I’ve seen firsthand how fundamentally unjust it is for simple possession offenses to be charged as straight felonies when many more serious and harmful offenses are prosecuted as misdemeanors,” said the Hon. Harlan Grossman, a retired Superior Court Judge from Contra Costa County.
He added, “It’s time to rethink how low-level drug offenses are prosecuted in California. As a judge, I can tell you that there is nothing fair or just about a punishment that does not fit the crime.”
Across the country, 13 states, the District of Columbia, and the federal government treat drug possession as a misdemeanor. Drug crime is not higher in those states, Senator Leno’s office argued.
A statewide poll conducted by Tulchin Research late last year showed that an overwhelming majority of Californians support this type of drug sentencing reform, with 75% of Californians favoring investment in prevention and alternatives to jail for non-violent offenders. In addition, 62% of Californians agree that the penalty for possessing a small amount of illegal drugs for personal use should be reduced to a misdemeanor.
The LA Times Editorial Board in June came out in support of AB 649, writing, “Counties have the opportunity and now the incentive to offer treatment and alternative monitoring, and inmates and outpatients alike are treated closer to the neighborhoods to which they will (one way or another) soon return.”
Though they note, as I often have, “It would be better to divert addicts from the criminal justice system entirely if they could be successfully treated without ever going to jail or even to court.”
However, they add, “But for many addicts, there remains a role for punishment, or at least the threat of punishment. Addiction may be a disease, but the afflicted include families, neighborhoods and, ultimately, all of society, and they all have a stake in successful rehab. When the carrot of a clean life is insufficient to keep an addict in recovery, the stick – the prospect of a criminal sentence – remains there for backup.”
The bottom line is that we can no longer afford to take the heavy-handed criminal approach to the war on drugs. It has taken nearly 30 years of harsh penalties to get to the point where more reasonable heads have started to prevail, even in the US Department of Justice.
—David M. Greenwald reporting
[quote]However, they add, “But for many addicts, there remains a role for punishment, or at least the threat of punishment. Addiction may be a disease, but the afflicted include families, neighborhoods and, ultimately, all of society, and they all have a stake in successful rehab. When the carrot of a clean life is insufficient to keep an addict in recovery, the stick – the prospect of a criminal sentence – remains there for backup.”
[/quote]
Even though it has been demonstrated over many, many years to be completely ineffective and destructive as a deterrent in the face of addiction ? This grudging opening to their opinion “addiction may be a disease” forms the lens through which they are assessing the “benefit” of incarceration. They do not truly perceive addiction as disease. Many diseases have equally devastating effects on family, the community and the society…
schizophrenia, Alzheimers, depression, cancer to name a few. Would their conclusion be the same if the discussion involved any of these diseases ?
“They do not truly perceive addiction as disease.”
I don’t see that the statement warrants this conclusion.
All the Times is observing is that the community shouldn’t fear this approach, that there’s a backup in case the addict refuses treatment and commits crimes, they won’t be excused from their actions against society. The third DUI, for example, might land someone in jail not because we don’t recognize addiction as a disease, but we do (and realize that treatment refusal isn’t a victimless act).
What qualifies as a minor possession charge?
the law doesn’t state it.
[quote]Existing law provides that the unlawful possession of certain controlled substances, including, among others, opiates, opium, opium derivatives, mescaline, peyote, tetrahydrocannabinols, and cocaine base, is a felony punishable by imprisonment in a county jail for 16 months, or 2 or 3 years. Existing law imposes, as a condition of probation for a felony conviction of these provisions, a fine of $1,000 or community supervision for a first offense, and a fine of $2,000 or community supervision for a second or subsequent offense.
This bill would make the unlawful possession of any of those substances punishable as either a felony punishable in county jail or as a misdemeanor by imprisonment in a county jail for not more than one year[/quote]
JustSaying
You took away a much more benign interpretation than I did of the Times point of view. I still think that there is tremendous irony in the fact that it is the society at large that has chosen to criminalize this behavior making it virtually impossible for addicts to support their habit legally, and then fearing the very situation that the societal choices have created.
To paraphrase a very ironic and iconic platitude of the NRA : “If you criminalize certain drugs, only outlaws will have those drugs.” We have created the monster that we now feel the need to protect ourselves from.