Drug Penalties: Too Harsh for Anyone’s Good


Posted on 16 December 2011

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By Margaret Dooley-Sammuli
Drug Policy Alliance

Under recently enacted AB 109 and subsequent legislation (“public safety realignment”), most people convicted of a drug law violation are no longer being sent to state prison. Instead, they now remain under supervision at the county level. That means it’s now up to the counties to decide how to respond to most drug law violations, but only up to a point. State laws continue to dictate penalties.

Under state law, possession of even a tiny amount of an illicit substance (other than marijuana) for personal use is typically a felony offense – which is punishable by up to three years behind bars and which also carries many lifelong collateral consequences (including barriers to employment and housing).

These harsh penalties are relics from the height of the drug war. It’s time to step back and ask ourselves what's the best way to solve the problem we're trying to solve – how to reduce drug abuse and addiction – and use the best available evidence to guide us.

Research has consistently associated harsh penalties with higher costs and worse outcomes. In one 2002 study on the effect of imprisonment on drug law violators, for example, researchers found:

…no evidence that imprisonment reduced or delayed recidivism, either for felony offenders generally or for drug offenders specifically. To the contrary, we found that offenders sentenced to prison failed more often and more quickly than offenders placed on probation and that incarcerated drug offenders had significantly higher recidivism rates than any other offenders. [i]

All that imprisoning hundreds of thousands of Californians for nonviolent drug offenses over the years has done is bankrupt us financially and morally, turning people with debilitating addictions into people with debilitating convictions.

California voters agree with the evidence. In March 2011, a Lake Research Partners poll found that 72% of surveyed California voters favor reducing the penalty for personal drug possession, including majorities of Democrats (79%), independents (72%), and Republicans (66%).

Sacramento’s plan to keep people convicted of personal drug possession at the county level doesn’t address the belief of a majority of Californians – as identified in the same Lake poll – that drug possession shouldn’t be a felony and that people shouldn’t be locked up for longer than three months for this offense.

To reduce incarceration for drug offenses, to improve the outcomes of drug law violators, to preserve resources and to protect public safety, the state must reduce the penalty for personal drug possession from a felony to a misdemeanor.

But what can counties do in the meantime to manage drug laws and drug law violators?

Counties should devise policies aimed at addressing and preventing problematic drug use – not simply punishing people because they have possessed or ingested an illicit substance. Specifically, these policies should:

  • Reduce drug arrests by, for example, allowing law enforcement officers to issue a warning and/or treatment referral to an individual in possession of a small amount of an illicit substance who does not pose a substantial risk to public safety, or by assigning case workers and services to some of the individuals most often arrested for these same petty offenses [See Seattle’s Law Enforcement Assisted Diversion (LEAD) [ii] and San Diego’s Serial Inebriate Program (SIP) [iii]];
  • Implement and expand pre-plea and pre-conviction diversion programs for people arrested for a low-level drug offense in order to prevent the collateral consequences that hinder those with a past conviction, including barriers to employment [iv], public housing, welfare and student loans [v];
  • Create a continuum of interventions – from pre-arrest, pre-plea and pre-conviction diversion and advancing to post-conviction diversion (Prop 36) – in order to reduce criminal justice involvement and stretch limited resources the furthest [vi];
  •  Focus drug and other specialty courts on non-drug offenses committed by people who appear to be motivated by addictive behavior [vii], particularly those who pose a higher risk to public safety or who have lengthier criminal histories [viii];
  • Limit the use of incarceration, including “flash incarceration,” as a response to low-level drug offenses and positive drug tests, and provide services or other sanctions instead, in order to reduce costs and improve outcomes for people convicted of drug offenses [ix];
  • Leverage all available resources to expand access to treatment, for example, by allocating a sizeable percentage of realignment funds to support services, including drug treatment; by including alcohol and drug treatment services in your county’s healthcare reform plans [x]; and by directing federal Byrne Justice Assistance Grants and/or civil asset forfeiture funds to drug treatment [xi];
  • Expand access to alcohol and drug treatment outside of the criminal justice system and for pre-arrest, pre-plea and pre-conviction diversion, in order to reduce costs to the criminal justice system and allow health systems to more effectively manage these health issues [xii];
  • Expand and protect access to demonstrated alcohol and drug treatments, including medication-assisted treatments (such as methadone and buprenorphine), where medically indicated [xiii];
  • Reserve drug treatment for those who need it and tailor treatment approaches based on individual needs [xiv]; make a variety of other interventions and non-incarceration sanctions available for people arrested for a low-level drug offense or who have a positive drug test but who do not need treatment;
  • Evaluate individuals’ success based on several measures (including stability, employment, and family participation); do not use drug tests as the singular measure of “success” or “failure” [xv]; and
  • Collect data and measure program outcomes – and adjust practices in response – in order to ensure that public safety and community resources are protected and interventions are effective.

Counties should take advantage of realignment to put research ahead of ideology in order to develop health-oriented drug policies that allocate resources wisely, preserve jail space, lower recidivism, and appropriately address their communities’ drug problems.

If the state reduced the penalty for personal drug possession from a felony to a misdemeanor, it would save counties hundreds of millions of dollars annually (some of which could be put toward drug treatment), protect public safety by addressing the root of the problem, and remove obstacles to successful reentry and reduce recidivism.

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[i] Spohn, Cassia and David Holleran, “The Effect of Imprisonment on Recidivism Rates of Felony Offenders: A Focus on Drug Offenders.” Crimonology. Vol 40, no. 2 (2002): 329 – 58.

[ii]  The Defender Association-Racial Disparity Project. “Law Enforcement Assisted Diversion (LEAD): A Pre-Booking Diversion Model for Low-Level Drug Offenses.” Seattle, WA: 2010

[iii] San Diego Police Department. “Serial Inebriate Program” http://www.sandiego.gov/sip/

[iv] Natividad Rodriguez, Michelle and Maurice Emsellem, 65 Million “Need Not Apply”: The Case for Reforming Criminal Background Checks for Employment, National Employment Law Project, March 2011.

[v] The Sentencing Project. Invisible Punishment: The Collateral Consequences of Mass Imprisonment, eds. Marc Mauer and Meda Chesney-Lind. January 2002. http://www.sentencingproject.org/detail/publication.cfm?publication_id=1

[vi] Justice Policy Institute. Addicted to Courts: How a Growing Dependence on Drug Courts Impacts People and Communities. March 2011; and National Association of Criminal Defense Lawyers, America’s Problem-Solving Courts: The Criminal Costs of Treatment and the Case for Reform, Washington D.C.: NACDL, 2009.

[vii] Drug Policy Alliance. Drug Courts Are Not the Answer: Toward a Health-Centered Approach to Drug Use. March 2011. http://www.drugpolicy.org/drugcourts

[viii] Stevens, Alex, Tim McSweeney, Marianne van Ooyen and Ambros Uchtenhagen, “On Coercion,” International Journal of Drug Policy 16 (2005): 207-209.

[ix] See Goldkamp, J., “The Drug Court Response: Issues and Implications for Justice Change,” Albany Law Review 63 (2000): 923-961; Gottfredson et al., “The Effectiveness of Drug Treatment Courts,” Harrell, Adele, “Judging Drug Courts: Balancing the Evidence,” Criminology and Public Policy 2, no. 2 (2003): 207-212.

[x] California Society of Addiction Medicine. Expansion of Substance Use Disorder Treatment Within Reach Through Health Care Reform. April 2011. http://csam-asam.org/pdf/misc/CSAM_HCR.pdf

[xi] Drug Policy Alliance. Federal Byrne Grants: Drug War Funds Available for Drug Treatment. September 2010.

[xii] Justice Policy Institute. Addicted to Courts: How a Growing Dependence on Drug Courts Impacts People and Communities. March 2011.

[xiii] Kleber, Herbert D., M.D., “Methadone Maintenance Four Decades Later: Thousands of Lives Saved But Still Controversial,” Journal of the American Medical Association 300, no. 19 (2008): 2303-230. O’Donnell, Colleen, and Marcia Trick, Methadone Maintenance Treatment and the Criminal Justice System, Washington D.C.: National Association of State Alcohol and Drug Abuse Directors, Inc., April 2006.

[xiv] Lutze, Faith E., and Jacqueline G. van Wormer, “The Nexus Between Drug and Alcohol Treatment Program Integrity and Drug Court Effectiveness: Policy Recommendations for Pursuing Success,” Criminal Justice Policy Review 18, no. 3 (2007): 226-24

[xv] Sung, Hung-en, and Steven Belenko, “Failure After Success: Correlates of Recidivism Among Individuals Who Successfully Completed Coerced Drug Treatment,” Journal of Offender Rehabilitation 42, no. 1 (2005): 75-97;

Substance Abuse and Mental Health Services Administration (SAMHSA), Office of Applied Studies, Employment Status and Substance Abuse Treatment Admissions: 2006

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Margaret Dooley-Sammuli is deputy state director in Southern California with the Drug Policy Alliance, the nation’s leading organization working to end the war on drugs.

Understand that under realignment, ALL parolees are required to serve their violation time, which has been reduced from a max of 1 year to 90 days, in County Jail. That is ALL parolees - child molesters, gang members, murderers and rapists included. These are the people being released early into our communities and without consequence.

Some of those who are released early are committing more serious crimes. 39-year-old James Whitaker had been arrested for a series of burglaries. He was released after just a few hours in the Fresno County jail. Four days later, he allegedly held up a bank.

Earlier in the week the story was Tino Tufono – Fresno’s Number Two car thief. He’d been in and out of the jail the past few months. He was most recently released November 28th due to overcrowding. A week later, he allegedly shot a man to death.

And Brown just cancelled a contract to house prisoners out of state, which will result in 10,000 prisoners being returned to our Prisons, and ultimately our county probation departments and jails. All this after only 2 months or realignment, and tens of thousands slated to be transferred to our counties in the next couple of years. Realignment is not a sustainable system, and must be repealed or drastically amended sooner than later. Or things will only get worse with time.

so, if an offender serves a revocation in jail rather then in prison they are more likely to commit a new crime when they are released? That's the dumbest damn thing I have ever heard in my life

What you are not seeing is that most of these individuals being jailed on drug charges also have a history of gangs, weapons, residential burglary and violence - as well as MULTIPLE drug related charges - on their rap sheets. And it is typical for many of these offenders to commit their spousal batteries, burglaries, assaults, and gang crimes while under the influence of meth, cocaine, etc. As far as marijuana, I agree that it should be decriminalized and regulated. But in reality you are not going to find hardly any in prison for marijuana related crimes, unless it involved large scale dealing/cultivation or weapons were involved. Does a Probation or Parole Officer wait for the 5th or 6th dirty test for crack cocaine before intervening and placing the offender in custody before he victimizes yet another innocent civilian? A 5th or 6th dirty test, by the way, while the offender is participating in "drug treatment." Most parolees have ZERO interest in rehabilitation - that is just the facts.

Steve Cooley in LA County is happy to put all of these low level offenders behind bars. He created this crisis and has said he will continue to search for all possible ways to up the charges. His pick for the next DA, Alan Jackson, Jackie Lacey and Mario Trujillo are all stating they will step in line and continue the same plan.

I am voting for Steve Ipsen for Los Angeles DA in 2012. He is the only one with a real plan and real solutions similar to what you are talking about. Check out his ideas on www.SteveIpsen.com

Time for new people and new leaders. Cooley's corruption must end.