Prosecutors need more discretion when it comes to charging drug offenses 

The “war on drugs” is one of the greatest ongoing governmental failures of our lifetime. This policy with roots in the Nixon administration has swollen U.S. prison populations without decreasing criminal activity. It is long past time to reform the prosecution and sentencing of low-level drug offenses.

In California, state Sen. Mark Leno of San Francisco has introduced legislation that would give district attorneys greater flexibility when it comes to charging people for possession for personal use of a small amount of drugs other than marijuana.

Leno’s legislation, Senate Bill 649, would change the prosecutorial treatment of possession of such drugs as opiates and cocaine. The legislation would give prosecutors the discretion to charge such possession as a misdemeanor instead of automatically treating it as a felony. In a conference call about the legislation, Leno called his proposal an alternative to the “failed and expensive war on drugs,” The Sacramento Bee reported.

The reform of marijuana prosecution and sentencing in California, which was spearheaded by state Assemblyman Tom Ammiano of San Francisco, shows that Leno’s idea could help. In 2010, Gov. Arnold Schwarzenegger signed the law that made simple possession of 1 ounce or less of marijuana an infraction that carries a fine of $100, except for certain instances such as being at or near a school. Previously, possession of the same amount of marijuana was a misdemeanor.

Statistics from the California Attorney General’s Office show that the number of arrests for misdemeanor marijuana offenses plummeted between 2010 and 2011. “Some misdemeanor marijuana statutes were re-classified as infractions, leading to a significant decline in misdemeanor marijuana arrests,” the report stated. The number of misdemeanor arrests in 2010 was nearly 55,000; in 2011 it was less than 8,000.

These misdemeanor cases did not involve traffickers, drug dealers or hardcore users. And even if they did involve people who need help with drug addiction, the answer is diversion to a treatment program, not sending them to prison.

This is the second go-round for Leno on this topic. Last year, similar legislation died after the California District Attorneys Association and state and local law enforcement groups opposed it. This time, Leno’s bill does not dictate what sentences possession of specific drugs should carry. Rather, he leaves the sentencing open to district attorneys.

Ideally, Leno’s legislation would mandate lessened penalties statewide. District Attorney George Gascón, who supported Leno’s previous version, called this legislation a “watered-down bill.” He believes it is less than ideal to allow California’s district attorneys to perpetuate disparate prosecutions across the state.

But incremental reform is better than no reform at all. To Leno’s credit, he has reintroduced this legislation with concessions that may make it more politically palatable to the diverse group of lawmakers it must pass muster with to become law.

True reform of our failed war on drugs must be far more sweeping, but Leno’s bill would be another step in the right direction, by putting a law on the books that enlightened district attorneys could use to reform the sentencing of low-level drug offenders.


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