Jerry Brown Vetoes Modest Drug Policy Reform

On Saturday, Governor Jerry Brown vetoed Senate Bill 649, which would have given prosecutors discretion in charging suspects arrested of drug possession with a misdemeanor rather than a felony. In vetoing the modest reform, Governor Brown rejected an opportunity to alleviate overcrowded prisons and jails, and save taxpayer money in the process.

The bill would have provided prosecutors discretion in charging suspects arrested for drug possession with either a misdemeanor or a felony upon considering the particular circumstances of each case. Presently, prosecutors must charge individuals arrested for possession of certain drugs, such as heroin or cocaine, with felonies. Under current California law, possession of less than an ounce of marijuana is an infraction and possession of methamphetamine is currently eligible for a misdemeanor charge. Senate Bill 649, then, would have merely extended the option to possession of other substances, such as heroin and cocaine, and would not have gone so far as California has with marijuana.

According to the Senate Public Safety Committee analysis of the bill, the change would “give prosecutors and courts wide discretion and flexibility in charging and sentencing a defendant. The prosecutor and the court can consider the facts of the charged crime, the defendant’s record and the defendant’s attitude as these matters are developed through the process. The prosecutor can offer the defendant a plea bargain…such as probation…or the case can proceed to trial.”

The veto comes as California scrambles to figure out how to meet a January 2014 deadline to reduce overcrowding in the state prison system. As an indication of the sorry state of corrections in California, the most significant and successful reforms in recent years have been forced on California politicians. In 2010, California was ordered by the United States Supreme Court to reduce the prison population from a 150,000 to about 110,000.

In 2012, California voters approved Proposition 36, which amended the “Three Strikes” law that established mandatory life sentences for third-time felony offenders, regardless of what the felony was. Proposition 36 requires that the “third strike” must be for violent or serious offenses, or offenses committed with a firearm. Proposition 36 also allowed for “third strikers” convicted of non-violent, non-serious offenses to petition for resentencing. Of the three thousand lifers who qualify for resentencing, 1,000 have already been released upon review of their convictions.

A recent study by the NAACP and Stanford University Law School has found a remarkably low 4.4 month recidivism rate of 2% among those released so far, compared to 90-day recidivism rates of 16% among other California offenders. In 2011, there were 1,350 individuals sentenced to life terms for non-violent drug offenses, including 682 for simple drug possession. As of June 2013, there are still 1,027 non-violent drug offenders (500 for possession) in California prisons serving life terms under “three strikes.”

But more to the point. California politicians, for whatever series of reasons, have decided to continue the policy of arresting and incarcerating people for involving themselves with forbidden substances. Further, California politicians have decided that the resources of the criminal justice system and the institutions of jails and prisons ought to be devoted, in part, to punish people for merely possessing “bad” chemicals. While SB 649 was certainly underwhelming legislation, in that it upholds the idea that the criminal justice system needs to be involved in combating voluntary, victimless activity, it also could have given some relief to county jails, courts, and individuals caught up in the execution of flawed drug policy.