Brown Vetoed 'Wiser Choice' in Drug Possession Prosecution with SB 649

Posted on 18 November 2013

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By Dan Aiello

California's drug laws will remain steeped with inconsistent consequences for those convicted of simple possession after Governor Jerry Brown's October veto of a bill to make unlawful possession of certain controlled substances, including opiates, punishable as either a felony or as a misdemeanor.

Current law mandates a felony charge for possession of any opiate-based narcotic, while allowing for other drugs like L.S.D. and Methamphetamine to be "wobblers," allowing local District Attorneys to prosecute as either felony or misdemeanor.

Brown, a Democrat whose first term in office decades ago included the appointment of Liberal Chief Justice Rose Bird and inspired appointments like that of highway construction protester Adriana Gianturco to head the Department of Transportation, sided this time with a handful of law enforcement unions whose members are worried about potential job loss with the forced state prison population reduction. Brown opposed the "common sense" legislation foresaking more than a dozen civil rights and minority groups that seek greater consistency and sentence reductions in the state's "personal use" drug possession laws.

In his veto message, Brown argued SB 649 was premature as California was soon to "examine in detail California's criminal justice system, including the current sentencing structure," under SB 105, his sponsored legislation to meet the realignment population reductions imposed by a Federal Court in response to California's "Three Strikes, No Tax Hikes" overcrowded prison system.

Brown's veto will keep California as the nation's "leading manufacturer of felons in the the nation," according to Asm. Tom Ammiano (D-SF) in an interview with California Progress Report late last year. California also has the shameful top ranking as the state with the highest correctional failure rate in the nation, known as a recidivism rate.

Ammiano called the Governor's veto of SB 649 "disappointing."

The bill's author, Senator Mark Leno (D-San Francisco), told the Bay Area Reporter the governor's veto explanation was "a bit of a fig leaf. All the bill did was give the local district attorney the choice of prosecuting the defendant under felony or misdemeanor charges, should circumstances [and a county's law enforcement budget] lead them to believe it was a wiser choice."

"It took nothing away from law enforcement," he added.

In the 13 states that no longer apply the life-altering serious felony charge to personal use– simple drug possession– data indicates crime rates are lower and those seeking drug treatment services are slightly higher than in California and other states where felony charges are ostensibly based on the addictiveness of certain drugs.

"If we want our communities safer," Leno told the Bay Area Reporter, "we know how to get there."

Citing Proposition 36, in which those convicted of felony possession can have their records expunged through civil court proceedings if they successfully complete drug treatment, one California Narcotics Officer's Association lobbyist claimed SB 649 would "serve as a disincentive for those entering a drug treatment program."

"With the expansion and continuation of state prison system realignment, county jails no longer have the capacity to incarcerate misdemeanants, and the convicted would be removed from oversight or supervision [of law enforcement], resulting in these addicts engaging in criminal activity with grave public safety consequences for California communities," he argued.

California's sentencing mandates have historically been disproportionately and unequally applied to various drugs since the City of San Francisco enacted the nation's first law forbidding narcotic use by an individual on November 18, 1875. The law was thinly veiled anti-Chinese immigrant and joined other California laws forbidding the Chinese from owning land or using public bathing facilities.

In fact, the law itself was not actually against the use of opium, but against its use in certain locations, what were then defined as Chinese opium "dens," making the anti-immigrant sentiment behind the the ordinance even more apparent. Victorian households in San Francisco had many legal uses for opiate-based narcotics that were not affected by the law.

Later, laws barring the use of marijuana were imposed using similar discriminatory practices, in this case against Mexican migrant farm workers during the 1930s in the southwest U.S.

Kim Horiuchi, Criminal Justice and Drug Policy attorney for the ACLU of California, commented on the historical nature of California's drug laws.

"You've cited at least two instances where drug laws were passed in an effort to control Chinese and Mexican immigrant populations," Horiuchi told the Bay Area Reporter. "Changes in the code were driven by public perception of the drug user."

"It's certainly no secret that in the mid 1980's when many of these changes took place in California's sentence structure that methamphetamine was perceived as often being used by caucasians," said Horiuchi. "It would be naive to suggest the differences in sentencing didn't have anything to do with race though the connection between race and charging is more nuanced."

"Certainly methamphetamine is just as addictive as cocaine," she added.

The intent was twofold with SB 649, according to Horiuchi, whose organization sponsored the legislation originally to remove the felony charge entirely from personal use cases. "County budgets constrained by arrest and conviction of all cocaine based possession, and secondarily, providing flexibility for best treatment options for those convicted under the new rules," she said.

Not a single county District Attorney supported bill.

California's and the nation's drug law sentence structure is ostensibly based on the addictiveness of the drug but in reality based more on the political whims and demons of the time the law is passed, affect different cultural, ethnic and socio-economic groups disproportionately and unequally.

Such laws can impoverish and politically silence not just the addict, but the recovered as well, leading to entire communities with higher rates of unemployment, homelessness and politically weakened, potentially for generations.

Due to California's felony mandate for cocaine-based drugs, the African American community has 7 percent barred from the voting booth, compared with 1.8 percent of the total population.

A felony charge can have life-long consequences for the individual. Adele Woods, 41, is working for the first time in 14 years after a felony drug conviction essentially made her unemployable.

"It makes no sense to take away the ability for someone who has successfully turned their lives around to find work. It's not surprising that people who are convicted of a felony turn to crime to earn an income," Woods told the Bay Area Reporter. Woods said that only when she stopped admitting to having a felony record and enough years went by did she find employment.

A felony conviction also can cause the loss of some professional licenses and business permits.

This article was originally published at Examiner.