People outside of California believe that Californians are getting high or stoned and watching the waves crash on the beach. But California is not the drug haven that people think it is, in reality. The National Survey on Drug Use and Health found that 9.07% of Californians reported using illicit drugs in the last month compared to the national average of 8.02%. 3.94% of Californians reported using an illicit drug other than marijuana in the last month, compared to a national average of 3.58%. Being under the influence of a controlled substance is a misdemeanor offense. If you have a small amount of methamphetamine for personal use, this can be charged either as a misdemeanor or a felony depending on the prosecutor's discretion or extenuating circumstances. This type of law is commonly referred to as a wobbler. But if you're in possession of either cocaine or heroin, it is ALWAYS a felony. A felony can be punishable by up to three years in prison. A misdemeanor, on the other hand, can be punishable by one year in prison, or three to five years on probation. It is often a combination of the two punishments.
If you have been following the news in California, especially with regards to prisons, you know that the California prison system is beyond overcrowding. Governor Jerry Brown has been ordered by a three judge panel to continue efforts to release prisoners in order for prisons to no longer be so overcrowded. In 2011, the Criminal Justice Realignment Act of 2011 transferred authority from state to local officials over most convicted of low-level non-violent offenses. But the state did not change any of the sentencing laws. So county officials have limited flexibility in handling the public space they have, such as jail space, court dockets, crime prevention programs, and drug treatment programs. Since the act was passed, a significant percentage of criminals were convicted for drug offenses. 43% of all individuals sentenced under this act in San Diego were convicted of a drug offense.
The state of California estimates that it costs about $50,000 per year to incarcerate a prisoner in the California prison system. That's a pretty good salary if you can get it, really. Even in California. As of December 31, 2012, there was over 4,000 prisoners in California prisons for drug possession for personal use. The cost of this is $207 million per year for the state. According to the state of California, there are 10,000 convictions for felony drug possession for personal use each year in California. Most of these are eventually sentenced with felony probation. What's more is that the bill will save courts money, too. Felony charges require setting a preliminary hearing, whereas misdemeanor charges do not.
State Senator Mark Leno (D-San Francisco) introduced SB 649 to try to correct some of these problems. SB 649 gives counties greater flexibility by expanding prosecutorial discretion in charging for possession of a controlled substance for personal use. SB 649 equalizes the penalties for possession of methamphetamine, heroin, and cocaine by giving prosecutors to charge a felony or misdemeanor as the case happens. The law does not change for those who are arrested for selling, manufacturing, possessing drugs for sale. Additionally, the law would give counties more control over handling their criminal population and would allocate more resources to drug treatment.
The current felony penalties for possession of personal use have not deterred that many people away from using cocaine and heroin. They do not persuade users to seek treatment. With a felony on their record, users are stigmatized when they search for housing, employment, and even education to help reintegrate themselves into the communities.
The nonpartisan Legislative Analyst Office estimates that SB 649 would save counties $160 million annually. Despite the promise of real savings and the reduction of nonviolent offenders from the prison system, Republicans opposed any change in reducing prison time for people who are there for possession of drugs for personal use. Since many Republicans have been stating poll results when it comes to things such as Obamacare or Syria or really anything Obama says, I think it is interesting that 62% of Californians think that the possession of drugs for personal use should be a misdemeanor instead of a felony. These type of laws also agree with 75% of Californians who think that alternatives to prison should be used for those who are non-violent offenders.
SB 649 is a step in the right direction for better drug reform but it has a flaw, as well. Prosecutorial discretion still plays a large role in determining someone will be charged with a felony or misdemeanor. In some cases, the decision has been made because of something as small as having Ziploc bags near drugs or having a large amount of cash on hand. Other times, it can be even used in a more nefarious way. A prosecutor can use his or her discretion to go for a felony for black or Hispanic "criminals." But SB 649 is a step in the right direction and should applauded, as such.