Commentary: Bill Would Repeal Ineffective Enhancements for Prior Drug Convictions

Mass Incarceration

Advocacy groups argue that the so-called war on drugs drives mass incarceration and racial disparities in the US judicial system, with more than 1.5 million drug arrests in the U.S. in 2014, 80 percent of which, according to data from the Drug Policy Alliance, were for possession only.

While California has dealt with part of this problem by making simple possession charges misdemeanors through Proposition 47, there are layers to the problem of mass incarceration and one of them is a three-year sentence enhancement for prior drug convictions.

SB 966, sponsored by Senator Holly Mitchell, “repeals the three-year sentence enhancement for each of a defendant’s prior convictions for one of a list of drug commerce crimes, where the defendant is convicted in the current case of another such crime.”

The enhancement for prior drug crime convictions was enacted in 1985 through AB 2320.  The bill included legislative intent “to punish more severely those persons who are in the regular business of trafficking in, or production of, narcotics and those persons who deal in large quantities of narcotics as opposed to individuals who have a less serious, occasional, or relatively minor role in this activity.”

At the time, the sponsor of the bill explained that the bill was modeled after federal drug crime laws with the intent to eliminate any incentive “to traffic [in drugs] in California where sentences are significantly lighter than in federal law.”

However, as the current bill sponsor states, “These enhancements have the effect of sentencing thousands of people — mainly young men and women of color — to long periods of incarceration in overcrowded state prisons and county jails, destabilizing families and communities.”

Senator Mitchell and others believe that this approach failed, and produced an “enormously expensive” system that has, instead of reducing drug use, robbed “state and local budgets that should be spent on schools, health and social services, and policies that actually reduce drug use — drug treatment, after-school programs, and housing, among them.”

The so-called RISE Act, they argue, “will free up taxpayer dollars for investment in cost-effective community-based programs instead of costly jail expansion.” By repealing these enhancements, SB 966, they argue, “would reduce jail overcrowding and stop the rush to build and staff costly new jails.”

Senator Mitchell argues, “Sentence enhancements based on prior convictions target the poorest and most marginalized people in our communities – those with substance use and mental health

Senator Holly Mitchell has been a leading advocate for criminal justice reform
Senator Holly Mitchell has been a leading advocate for criminal justice reform

needs, and those who have struggled to integrate into free society. Counties are building new jails to imprison more people with long sentences, funneling money away from community-based programs and services. People with drug issues, particularly those in low-income communities of color, are increasingly left with the choice of seeking help in a jail or not seeking help at all.”

“Because people of color are often the targets of criminalization and incarceration, drug sentencing enhancements disproportionately impact them,” said Emily Harris, State Field Director at the Ella Baker Center for Human Rights. “We need to stop wasting money on this harmful, punitive policy, and instead invest in what works: education, health, housing, and drug and mental health treatment in our communities.”

“Decades of research have failed to show that long sentences improve public safety,” says Lizzie Buchen, Statewide Advocacy and Communications Coordinator of Californians United for a Responsible Budget. “If anything, long sentences exacerbate the root causes of incarceration, including poverty, social exclusion, homelessness, unemployment, substance use, and mental illness.”

“Long prison sentences break up families. Because of my prior drug sales case, this enhancement resulted in me being sentenced to 6 years for a $5 drug sale,” said Theresa Martinez, who has been imprisoned for a total of 23 years as a result of her addiction to drugs. “ The thousands of dollars California has wasted on punishing me could have gone to what I really needed: medical treatment, therapy, housing, and a job.”

“Drugs are cheaper, more powerful, and more widely available than at any time in our history. The lock-em-up policies of the drug war don’t work, and we need to focus our tax-supported resources on our communities, not jails,” said Eunisses Hernandez, Policy Associate at the Drug Policy Alliance.

“As a public defender, I have witnessed how the three-year prison enhancement has relentlessly punished my indigent clients, the mentally ill and drug addicted, imprisoning them for unconscionable sentences over crumbs of drugs,” said Vilaska Nguyen, who is an attorney at the San Francisco Public Defender’s office. “Repealing this enhancement will force the criminal justice system to focus on meaningful rehabilitation, which is a promising step towards justice. The RISE Act offers hope that we can treat our fellow citizens with compassion, dignity and mercy.”

However, opponents like the California Police Chiefs Association argues “that it is wrong to treat repeat drug offenders the same as a person convicted of his first offense.”  They are concerned about the current opioid epidemic and states, “Clearly there is an enhanced level of seriousness posed to [the public] by career opioid traffickers and the enhanced sentence under current law should be retained.”

But such laws seem to have proven ineffective in the war on drugs.  The Drug Policy Alliance, a national advocacy for drug law reform, argues that the war on drugs is a driver of mass incarceration and racial disparities in our system.  They write, “People of color experience discrimination at every stage of the judicial system and are more likely to be stopped, searched, arrested, convicted, harshly sentenced and saddled with a lifelong criminal record. This is particularly the case for drug law violations.”

Blacks and Hispanics together make up 13 and 17 percent of the U.S. population respectively, however, blacks comprise 31 percent of those arrested and 40 percent of those incarcerated in state or federal prison for drug law offenses.  Meanwhile, Latinos comprise 20 percent of people in state prisons for drug offenses and 37 percent of those incarcerated in federal prison for drug offenses.

They write, “National-level data on arrests of people of Latino ethnicity are incomplete. Yet among drug arrest incidents in 2014 in which ethnicity was reported, more than 22 percent of those arrested were Latino.  State and local level data show that Latinos are disproportionately arrested and incarcerated for drug possession violations.”

All told, “Nearly 80 percent of people in federal prison and almost 60 percent of people in state prison for drug offenses are black or Latino.”

Senator Mitchell argues that SB 966 is part of the answer to this puzzle.  The bill, advocates say, will address extreme sentences, reduce racial disparities in the criminal justice system, restore balance in the judicial process, and stop “the cruel punishment of persons suffering from a substance abuse disorder. “

They argue, “Sentencing enhancements do not prevent or reduce drug sales and have destabilizing effects on families and communities. Research finds that the length of sentences does not provide any deterrent or significant incapacitation effect: longer sentences for drug offenses do not reduce recidivism, nor do they affect drug availability. Most people who commit crimes are either unaware of penalties or do not think they will be caught. Research shows that people incarcerated for selling drugs are quickly replaced by other people.”

Governor Brown has endorsed a “measure for the 2016 ballot that will allow persons to be paroled after they complete their base sentence, regardless of enhancements. However, that measure only applies to persons sentenced to state prison, and will have no effect on jail overcrowding.”

In late April, this bill fell short on a close vote in the State Senate.  The bill needed 21 votes to pass the Senate, but received 18 votes, with 14 Republican Senators and three Democrats opposed.

Five Senators abstained, including Senator Lois Wolk who represents Davis.  Please contact Senator Wolk’s office either by phone ((916) 651-4003) or email: senator.wolk@senate.ca.gov and ask her to vote yes on SB 966.

“Piling extra years onto jail sentences for repeat offenders of non-violent crimes overcrowds our prisons, sucks money out of taxpayers’ pockets and makes punishing a greater priority than preventing crime,” said Senator Mitchell. “It doesn’t work. Why continue to waste lives and money on a failed policy?”

—David M. Greenwald reporting

About The Author

David Greenwald is the founder, editor, and executive director of the Davis Vanguard. He founded the Vanguard in 2006. David Greenwald moved to Davis in 1996 to attend Graduate School at UC Davis in Political Science. He lives in South Davis with his wife Cecilia Escamilla Greenwald and three children.

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4 thoughts on “Commentary: Bill Would Repeal Ineffective Enhancements for Prior Drug Convictions”

  1. The Pugilist

    I don’t think most people recognize how much ad on charges can ad up.  It’s one thing if you are a violent criminal who proves they cannot quell their violent conduct, but when you are talking about drug offenses, most of the behavior is self-inflicted and most drug dealers are doing it to support their habit.

    1. zaqzaq

      Drug dealers who are convicted of poisoning our fellow citizens with their product (meth, heroin, cocaine, … .) and keep doing it and get convicted again deserve an additional punishment.  Hence the enhancement.  I do not think most people recognize the inherently violent nature of the drug trade.  There are acts of violence over turf wars between gangs and/or dealers.  Although the singular act of selling drugs is not itself violent the trade is violent.  The goal of enhanced sentences is to incentivize good behavior and punish bad behavior.

      The claim that we will save money sounds eerily similar to the alleged enormous cost savings that would result from Prop 47 which was only $29,000,000 which is a drop in the bucket for our state budget.  What Prop 47 did accomplish was to reduce the incentive for criminals to participate in drug treatment programs and other services coupled with a rise in crime in 2015.

      If blacks and Hispanics are disproportionately participating in the drug trade they will logically be arrested, convicted and imprisoned at a higher rate.  The belief that this is unfair is ridiculous.

  2. Frankly

    Then there is this

    But the evidence is not looking good for those who dismiss the Ferguson effect, from the president on down. That group once included Richard Rosenfeld, a criminologist at the University of Missouri, St. Louis, who was an early and influential critic. Mr. Rosenfeld has changed his mind after taking a closer look at the worsening crime statistics. “The only explanation that gets the timing right is a version of the Ferguson effect,” he told the Guardian recently. “These aren’t flukes or blips, this is a real increase.”

    A study published this year in the Journal of Criminal Justice found that homicides in the 12 months after the Michael Brown shooting rose significantly in cities with large black populations and already high rates of violence, which is precisely what the Ferguson effect would predict.

    A study of gun violence in Baltimore by crime analyst Jeff Asher showed an inverse correlation with proactive drug arrests: When Baltimore cops virtually stopped making drug arrests last year after the rioting that followed the death of Freddie Gray while in police custody, shootings soared. In Chicago, where pedestrian stops have fallen nearly 90%, homicides this year are up 60% compared with the same period last year. Compared with the first four and half months of 2014, homicides in Chicago are up 95%, according to the police department. Even the liberal website Vox has grudgingly concluded that “the Ferguson effect theory is narrowly correct, at least in some cities.”

     

    1. David Greenwald Post author

      Heather Mac Donald certainly hasn’t changed her view in the last year, but that doesn’t mean she’s right. Part of the problem is that there uneven effects – crime is down in some places, up in others. There is a common denominator with cities that have increasing crime – bad police leadership and lack of trust in the community. San Francisco doesn’t have a huge black population but their crime went up – why – in part bad leadership. But that’s not what this article is about.

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