Capitol Alert: Mark Leno proposes to make drug possession a 'wobbler'

Drug charges could become a little more wobbly in California.

Sen. Mark Leno, D-San Francisco, has introduced a bill that would redefine simple possession of drugs -- essentially, having a small amount for personal use -- from a felony to a so-called "wobbler," meaning that district attorneys would have the flexibility to charge a defendant with either a misdemeanor or a felony.

The measure would not affect sentencing for marijuana. Simple possession of marijuana is currently an infraction, which is less severe than a misdemeanor.

In a conference call Wednesday detailing Senate Bill 649, Leno said altering the sentencing guidelines was an alternative to a "failed and expensive war on drugs" that he said has fed soaring incarceration rates.

He argued that locking up low-level drug offenders on felony charges sustains a vicious cycle in which those users become more likely to commit additional crimes, "perpetuating an underclass of citizens."

"If our common goal is to have safer and healthier community with less recidivism and lower crime rates, then this is the way to go," Leno said.

Mandatory drug sentencing laws disproportionately affect communities of color, Lynne Lyman, California director of the Drug Policy Alliance, said on the call. She said the "devastating collateral consequences" of a felony conviction -- which include being barred from financial aid and public housing and having difficulty finding employment -- last long after the crime.

"This is an important step towards dismantling what has really been a system of racial injustice in California," Lyman said.

A similar bill, Senate Bill 1506, died on the floor last session under opposition from the California District Attorney Association and law enforcement groups. Leno said the prospects are brighter this time around because the current proposal doesn't dictate which crimes should be charged as misdemeanors, instead giving counties the discretion to choose.

The District Attorneys Association hasn't yet taken a stance on the bill. Cory Salzillo, its director of legislation, said that while the increased sentencing flexibility would be an improvement, he is still wary.

"I still think some of our concerns would apply," Salzillo said, particularly that "it sends the message that drug possession is not as serious as it used to be."

John Lovell, a lobbyist for the California Police Chiefs Association, said the bill could backfire and undercut treatment programs. Whereas under Proposition 36, drug offenders can now opt to go into rehabilitation programs in lieu of incarceration, Lovell said users would have less of an incentive to enter treatment if the alternative is not a felony.

Under prison "realignment," a sweeping effort to reduce California's swollen prison population by redirecting less serious offenders to county jails, lower-level drug offenders are already being diverted to county facilities. Supporters of Leno's bill said it would help facilitate that effort by giving counties more control.

"This supports counties' efforts to implement realignment in a way where they can avoid the mistakes states have made in starting a cycle" of incarceration and crime, Margaret Dooley-Sammuli, a senior policy advocate for the American Civil Liberties Union of Northern California, said during the conference call.

Dooley-Sammuli also underscored the potential savings, pointing to a Legislative Analyst's Office analysis of last session's bill finding that, statewide, counties could save a combined $160 million they would otherwise spend on felony drug convictions.

"This legislation would allow counties to decide how much of that savings they want to recoup and redirect to crime prevention programs such as drug treatment," Dooley-Sammuli said.

PHOTO CREDIT: California state Sen. Mark Leno, pictured here on Aug. 31, 2010. By Andy Alfaro/ Sacramento Bee file, 2010

EDITOR'S NOTE: This post was updated at 1:31 p.m. to clarify current law on marijuana possession.