Can Counties Act Where the State Has Failed?


Posted on 01 November 2011

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By Margaret Dooley-Sammuli
Drug Policy Alliance

Ask any prosecutor or defense attorney, and they'll tell you about a recent case in their county where someone with a history of petty offending was once again in front of a judge - this time facing two decades or more behind bars. Sacramento resident Herbert Hale Sr., a 64-year-old, disabled and chronically ill Vietnam War combat veteran who suffers from a decades' old addiction to heroin, is one of these cases. He was arrested for purchasing heroin and has no history of prior serious or violent offenses.

Enter Governor Jerry Brown's "realignment" plan, which changed the rules in California so that only people with a prior or current serious or violent conviction can be sent to state prison. As of October 1, cases like Mr. Hale's no longer result in a prison sentence, but in a sentence at the county level - to be served in jail, under supervision, or a combination of the two. Instead of 21 years in state prison, the prosecutor has recommended Mr. Hale serve six years in Sacramento's county jail followed by another five on probation.

Similar deals are being struck around the state, meaning that for some people realignment is resulting in shorter terms behind bars - at least for now.

For the time being, courts are forced to live within their means. Jail cells are limited and counties must prioritize who fills them. In the longer term, however, there's a substantial risk that some counties will repeat the state's mistake of building more detention space rather than investing in smart, safe and affordable alternatives. The state has made $600 million available for county jail expansion.

California cannot rely on jail scarcity to reduce incarceration. We need sentencing reform from Sacramento. In the very language of the realignment statute, Assembly Bill 109, the state encourages counties to expand alternatives to incarceration. In so doing, Sacramento acknowledged that there are more people currently behind bars than public safety demands. Only sentencing reform can ensure that people are not locked up for lengthy sentences or saddled with a felony criminal record for a petty offense.

No other sentencing reform would have as dramatic a positive impact on public safety, government coffers and community wellbeing as reducing the penalty for drug possession from a felony to a misdemeanor. By investing less in punishment for addiction and more in drug treatment, people like Mr. Hale might be reached years earlier, their addictions addressed and their petty crime career stopped long before now.

California has made important strides to reduce the incarceration of people for drug possession. Just a decade ago, California had more than 20,000 people in state prison for nothing more than possession of a small amount of an illicit substance for personal use. After voters approved the nation's largest treatment-instead-of-incarceration law, Proposition 36, in 2000, the number of people locked up for this same offence plummeted to 9,000 in just ten years.

Under realignment, the number of people in state prison for drug possession will fall further. But the number of people in county jail for the same offense may actually increase. Only sentencing reform will continue the trend California voters demanded when they approved Prop. 36 over ten years ago - and which they still support.

In March this year, a Lake Research survey of 800 California voters found 72% support for reducing the penalty for personal drug possession from a felony to a misdemeanor. Support crosses all the partisan, regional, and demographic lines that normally divide California voters. Solid majorities of Democrats (79%), Independents (72%), and Republicans (66%) from every corner of the state overwhelmingly agree that it's time for a new approach.

Most Californians know what drug abuse and addiction look like, either through their own experience or the struggles of a close friend or family member, and they are interested in real solutions. When it comes to drugs, California voters - and even Sacramento politicians - know that incarceration and a felony record for personal drug possession is wasteful, harmful and counterproductive. It's also the wrong thing to do.

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Margaret Dooley-Sammuli is deputy state director with the Drug Policy Alliance, the proponent of Proposition 36 in 2000 and the nation's leading organization working to end the war on drugs.

Due to the tyrannic and mindless actions of prohibitionists, tens of millions of people world-wide (both users and non-users) have been either killed, maimed, incarcerated or had their lives very seriously disrupted. Prohibitionists are solely responsible for an immense increase in violent organized crime, an AIDS Pandemic, the undermining of international development and security and a grave abuse of human rights on a scale barely witnessed in human social history.

Corporate greed and individual bigotry have accelerated us towards a situation where all the usual peaceful and democratic methods needed to reverse the acute damage done by prohibition no longer function as envisaged by the Founding Fathers of our once great and free nation. Such a political impasse coupled with great economic tribulation is precisely that which throughout history has invariably ignited violent revolution.

In order to avert what will surely be a far more violent situation than we are already experiencing, and to restore our Republic to a system "OF THE PEOPLE, BY THE PEOPLE, FOR THE PEOPLE," there appears to be just one last avenue left to us – Jury Nullification.

Jury Nullification is a constitutional doctrine that allows juries to acquit defendants who are technically guilty, but who don’t deserve punishment. All non-violent drug offenders who are not selling to children, be they users, dealers or importers, fall into this category. If you believe that prohibition is a dangerous and counter-productive policy, then you don’t have to help to apply it. Under the Constitution, when it comes to acquittals, you the juror have the last word!

The idea that jurors should judge the law, as well as the facts, is a proud and vital component of American history.

The most shining example of Jury Nullification occurred during the shameful period in US history when slavery was legal. People who helped slaves escape were committing a federal crime - violation of the Fugitive Slave Act. Jurors would often acquit, even when the defendants admitted their guilt. Legal historians credit these cases with advancing the abolition of slavery.

No amount of money, police powers, weaponry, wishful thinking or pseudo-science will make our streets safer; only an end to prohibition can do that. How much longer are you willing to foolishly risk your own survival by continuing to ignore the obvious, historically confirmed solution? - When called for Jury Service concerning any non-violent prohibition-related offense, it is your moral and civic duty to VOTE TO ACQUIT!

“To function as the founders intended, our republic requires that “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.”
~ THOMAS JEFFERSON, letter to William Stephens Smith, November 13, 1787.

To avoid such carnage and turmoil on a scale not seen in this land since the 1860s, we may have just one last chance: If you wish to see this insane prohibition replaced by a workable policy based on science, public health and sound principles of Justice & Human Rights, one that will ensure a safe future for your children and grandchildren, PLEASE VOTE TO ACQUIT! — We must now create what we can no longer afford to wait for.

Sorry - third strikers deserve all the prison/jailtime they get.. The problem isn't too much sentencing - the problem is not enough prisons!!! Lock these worthless animals up and throw away the key.. They are likely already bleeding our tax dollars on social welfare programs - might as well lock them up and attempt to do something useful with them - like license plates..

California has 690 people doing 25 years to life for simple drug possession,350 for shoplifting, 181 for receiving stolen property. Most had priors that were decades old. It cost $50,000 a year to house each inmate! That's 1.25 million dollars for each and every one listed above. I find it hard to believe an intelligent person thinks a drug user,or shoplifter are "worthless animals". But then again, it could have been a child posting this as a prank?

It appears sentencing reform was never on the table. While other states close prisons, California continues to invest $7.7 billion dollars into prison and jail expansion!Even after admitting publicly we can not build our way out of this crisis, California plows ahead adding two new prisons,expanding others.All the while slashing programs such a prop 36! Reserve prisons for those that are truly a threat to public safety, not those we are simply mad at!