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California bill would let DAs go easier on minor drug offenders

Published: Thursday, Aug. 22, 2013 - 12:00 am
Last Modified: Friday, Sep. 6, 2013 - 8:43 am

The first time Maria Alexander's drug addiction caught up to her, the reckoning came in the form of a small chunk of crack cocaine that sent her to jail for six months.

The next time, after a small amount of heroin - "scrapings on a spoon," Alexander recalled - earned her another stint in the correctional system, she sought treatment.

"I was no big drug dealer," Alexander said. "I was a big user."

In an announcement hailed as a sea change for the decades-old federal war on drugs, Attorney General Eric Holder said last week that he would direct federal prosecutors to avoid charging low-level drug offenders in ways that carry "draconian" minimum sentences.

"By reserving the most severe penalties for serious, high-level, or violent drug traffickers, we can better promote public safety, deterrence, and rehabilitation while making our expenditures smarter and more productive," Holder told a San Francisco gathering of the American Bar Association last week.

State Sen. Mark Leno, D-San Francisco, would agree. Like Holder, he believes cracking down on drug offenders has spurred a self-perpetuating spiral of excessive punishment - particularly felony charges that remain on someone's record for life. He has authored a bill to give California district attorneys more discretion in how they prosecute possession of small amounts of drugs.

"How does this impact the next generation when we continue to place the burden of felonies on more and more people for no good reason?" Leno said in an interview. "It becomes intergenerational, and the problem will only grow."

Under Senate Bill 649, sponsored by a coalition of organizations like the American Civil Liberties Union, the Drug Policy Alliance and the California Public Defenders Association, simple drug possession would become a "wobbler" - a term meaning prosecutors could charge Californians caught with small amounts of drugs with either a misdemeanor or a felony.

Holder's policy change and Leno's bill differ in some key ways: one applies to federal drug offenses, the other to cases brought by county district attorneys; Holder's proposal encompasses a broader universe of crimes, including nonviolent offenses like transporting drugs, whereas Leno's bill concerns only simple possession. But the underlying intents overlap.

"We want California to follow Holder's lead and to exercise prosecutorial discretion the way he's talking about," said Margaret Dooley-Sammuli, a senior policy advocate for the American Civil Liberties Union of California.

Alexander says she gradually recovered, enrolling in a program aimed at helping people find stable employment and rising to become the organization's executive director.

Now she deals regularly with people trying to surmount the effects of past drug convictions.

Some are "children who were just experimenting," she said, non-addicts permanently burdened by a bad decision.

Some are rejected or fired when employers learn of their criminal record; some struggle to find housing; some discover they cannot receive student loans.

"It's setting us all up for failure," Alexander said. "We spend all our time getting ourselves together, and it costs all this money getting us together, and you get us out the door, so now what?"

California voters backed leniency for drug users in 2000, when they overwhelmingly passed Proposition 36. That initiative - distinct from a Proposition 36 that passed in 2012 and amended the state's "three-strikes" sentencing guidelines - redirects first- and second-time lower-level drug offenders into rehabilitation.

The fact that Proposition 36 already emphasizes treatment over incarceration renders Leno's law redundant, according to John Lovell, a lobbyist for the California Police Chiefs Association. The group opposes the law, as do the California District Attorneys Association and the California State Sheriffs' Association.

"No one goes to prison for a simple drug possession conviction," Lovell said. "The only way you would go to prison is by avoiding treatment, and if you include a misdemeanor option, the reality is there is no longer much of an incentive, if any, to go to treatment."

And as California's bursting prisons shift more inmates into county jails, responding to a federal mandate to reduce prison overcrowding, Lovell said that minor drug offenders sentenced with misdemeanors would evade meaningful punishment.

"As a practical matter, no one spends any time in jail for a misdemeanor violation," Lovell said. "Measured against the backdrop of realignment, that kind of sentencing change is singularly inappropriate."

But the supporters of Leno's bill say Proposition 36's effectiveness depends too much on the vagaries of the budget process. They point to former Gov. Arnold Schwarzenegger's decision to defund Proposition 36 programs back in 2009, which led some counties to suspend their drug treatment programs. California hasn't provided funding since.

"Prop. 36 doesn't exist anymore," said Lynne Lyman, the Drug Policy Alliance's state director for California. "It's on the books but not in practice."

Beyond the question of time behind bars, a felony conviction can carry repercussions that include being barred from receiving federal student aid, blocked from living in low-income housing or drawing food stamps, and encountering difficulty finding employment or securing home loans.

Saddling offenders with those types of burdens, proponents of the wobbler bill argue, makes it more difficult for drug users to rehabilitate themselves and enter mainstream society.

"What cannot be overlooked are the unintended consequences of a felony on a young record," Leno said. "The very three things that keep someone stable in recovery - access to education, housing and employment - are the very three things a felony puts out of reach."

Leno attempted similar legislation year. Rather than give prosecutors discretion in simple drug possession cases, that bill would have mandated misdemeanor charges. The bill foundered in the face of opposition from the same law enforcement organizations that stand unified against this year's version.

Despite the additional flexibility this year's bill affords, district attorneys still worry it would undermine prosecutors who seek felony charges. If simple drug possession qualifies as a wobbler, judges still have the ability to swap a felony charge leveled by prosecutors for a misdemeanor.

"Proponents say hey, all this does is give prosecutors discretion to decide whether to charge a felony or a misdemeanor," said Cory Salzillo, a lobbyist for the California District Attorneys Association. "And our response is, prosecutors aren't asking for this discretion."

Senate Bill 649 passed the Senate on a 23-14 vote, with most of the votes against coming from Republicans. It becomes eligible for an Assembly floor vote Thursday.

Call Jeremy B. White, Bee Capitol Bureau, (916) 326-5543. Follow him on Twitter @CapitolAlert.

Read more articles by Jeremy B. White

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