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August 21, 2013
Editorial: State should adopt drug sentences that make sense

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(Aug. 21 -- By the Editorial Board)

If you want to see just one illustration of what's wrong with California's inconsistent and labyrinthine criminal sentencing system, take a look at the penalties for possessing small amounts of a drug for personal use.

Simple possession of cocaine, heroin or synthetic cannabis ("K2" or "Spice") for personal use is a felony punishable by up to three years in state prison. But simple possession of methamphetamine, Ecstasy or hashish for personal use is a "wobbler." That means prosecutors can charge it either as a felony or as a misdemeanor punishable by up to one year in county jail, with first- and second-time possession-only offenders given the option of a treatment program instead of jail.

These inconsistencies among cocaine, heroin and meth make no sense whatsoever.

California would be better off following other states in making probation and drug treatment mandatory for people convicted for a first or second time of simple drug possession. That would help relieve state prison and county jail overcrowding - and allow law enforcement to concentrate on nabbing those who traffic in illegal drugs, the dealers.

Senate Bill 649 by Sen. Mark Leno, D-San Francisco, doesn't go that far but it would help some. It would change the penalty for simple possession of drugs from a felony to a wobbler, giving local prosecutors the discretion to charge possession as a misdemeanor instead of a felony, depending on individual circumstances.

SB 649 would not apply to anyone arrested for selling, transporting, manufacturing or possessing drugs for sale, as it should be.

The Senate has passed the bill, 23-14. But it faces an uphill climb in the Assembly. Key county prosecutor and law enforcement groups oppose the bill, believing the threat of felony penalties is necessary to get drug users to engage in treatment. That fear, however, does not bear out in states where drug possession is a misdemeanor. In fact, studies show that drug use rates are slightly lower in misdemeanor states than in felony states. And treatment rates in misdemeanor states are significantly higher than in felony states. New York, for example, has very high treatment rates for those arrested for misdemeanor possession. California, by contrast, has a treatment rate that is one-third of New York's.

New York's experience is instructive. Since the 1990s, New York has reduced its state prison and local jail populations by decreasing the number of felony arrests and increasing the number of misdemeanor arrests, a deliberate shift in policing strategies.

As of the end of 2012, 4,144 people were in California prisons for drug possession for personal use - at a cost of more than $200 million a year. Our aim for drug users should be intervention to stop use, not incarceration.

SB 649 would be just a small start in making California's sentencing system more coherent - and relieving prison overcrowding. What's really needed, however, is a sentencing commission - as North Carolina, Virginia and 21 others have implemented - to get California beyond the accretion of "drive-by bill-of-the-week" laws that have created widely varying penalties for similar crimes.

California today has more than 1,000 felony sentencing laws and more than 100 felony sentence enhancements spread across 21 sections in the California Penal Code. We need a new, simpler organizing framework. That is what a sentencing commission would do.

The Assembly should pass SB649 and then legislators in both houses should get serious about passing a sentencing commission bill.

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