California Gov. Jerry Brown (D) Saturday vetoed a bill that would have allowed prosecutors or judges to charge simple drug possession as a misdemeanor instead of a felony. The bill would have made drug possession a “wobbler,” meaning it could be charged either way, based on judicial or prosecutorial discretion.
Some 10,000 people are convicted of drug possession felonies each year in California, and experts estimated that, under the bill, 15% to 30% of them would have been charged instead with misdemeanors. The exact number is unknown because the bill would have left those decisions up to prosecutors and judges. But in any case, the bill would have resulted in hundreds of millions of dollars in criminal justice system savings, which would have provided local governments with more flexibility to invest in drug treatment and mental health services and focus law enforcement resources on more serious offenses, along with lightening up on some of the people caught up in the criminal justice system.
The bill, Senate Bill 649, was sponsored by Sen. Mark Leno (D-San Francisco) and passed the legislature with bipartisan support, but was opposed by law enforcement and some prosecutors. Leno and supporters had argued that the bill would save the state money on incarceration and related costs.
The bill was premature, given that a broader criminal justice system reform is in the works, Brown said in a veto message. “We are going to examine in detail California’s criminal justice system, including the sentencing structure,” he said. “We will do so with the full participation of all the necessary parties, including law enforcement, local government, courts, and treatment providers. That would be the appropriate time to evaluate our existing drug laws.”
Even after the state’s vaunted prison realignment, California prisons remain overcrowded, and the more than 4,100 people currently imprisoned on simple drug possession charges only add to that burden. The cost of imprisoning them comes to $207 million a year.
Under current California law, which will now stay in place, simple possession of drugs such as cocaine, meth, and heroin is a felony punishable by up to three years in prison. Leno’s bill left that maximum sentence in place, but would have given either judges or prosecutors the discretion to punish possession as a misdemeanor, with a year in jail as a maximum sentence. Similarly, under the Leno bill, judges or prosecutors could have diverted drug users to treatment or community programs in a bid to reduce recidivism.
Charging drug possessors with misdemeanors instead of felonies would also have created criminal justice system savings with each lower-level prosecution. That’s because felony charges require a preliminary hearing, while misdemeanor charges do not.
But law enforcement groups, including the California State Sheriffs Association, the California Police Chiefs Association, and the California District Attorneys Association all opposed the bill, labeling it a threat to public safety. They argued that the bill would reduce incentives for drug possessors to voluntarily seek drug treatment because they would only face jail time, and the jails are so full — thanks to prison realignment — that people sentenced to jail time do only a tiny fraction of that time.
Brown could have let the bill become law without his signature, Leno noted in an interview with the Chronicle earlier this month, and pronounced himself “surprised” at the veto.
“It’s quite surprising that the governor would veto a modest attempt at sentencing reform in light of our prison overcrowding crisis,” Leno said Saturday.
“By vetoing SB 649, Gov. Brown has thwarted the will of the voters and their elected representatives by rejecting a modest reform that would have helped end mass incarceration in this state,” said Kim Horiuchi, criminal justice and drug policy attorney for the ACLU of California.
“California voters and the legislature recognize the urgent need to reevaluate our sentencing laws and enact smart reforms, especially for low level, non-violent drug crimes,” Horiuchi continued. “Doing so will allow California to reduce its reliance on incarceration and free up limited resources for the sorts of community-based treatment, education and job training programs proven to reduce crime and create safe and healthy communities. Despite this, Gov. Brown remains inexplicably opposed to meaningful sentencing reform.”
“The governor let down the people of California, the majority of whom support going even farther than this bill would have gone,” said Lynne Lyman, California state director for the Drug Policy Alliance. “The vast majority of voters agree with the experts — locking up drug users is stupid, unproductive, cruel and expensive.”
Despite the opposition of the law enforcement establishment, California public opinion wants to see sentencing reform. A 2012 Tulchin poll found that 75% of Californians preferred prevention and treatment as an alternative to jail for nonviolent offenders and 62% agreed that possession of small amounts of drugs for personal use should be a misdemeanor.
Thirteen other states and the District of Columbia already have such laws, and an effort to pass similar legislation is gearing up in Washington state. But in Sacramento, Gov. Brown was listening to the cops instead of the people.
“Our system is broken,” said DPA’s Lyman. “Felony sentences don’t reduce drug use and don’t persuade users to seek treatment, but instead, impose tremendous barriers to housing, education and employment after release — three things we know help keep people out of our criminal justice system and successfully reintegrating into their families and communities.”