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July 21, 2017

"Should California drop criminal penalties for drug possession?"

The question in the title of this post is the headline of this effective new opinion piece in the San Francisco Chronicle authored by Beau Kilmer and Robert MacCoun. Here are excerpts:

For better or worse, California likes to decide drug policy at the ballot box.  Voters have already approved marijuana legalization, but criminal sanctions against users of heroin, cocaine and other drugs are very much intact, though they’ve been moving in a more lenient direction.  It would not be surprising to see a proposition entirely eliminating criminal penalties for drug possession in the near future.

The removal of criminal penalties for drug possession — which is very different from allowing legal sales — is not a new idea. It has been implemented in other countries, and a joint statement from the United Nations and World Health Organization last month recommended the review and repeal of “laws that criminalize or otherwise prohibit … drug use or possession of drugs for personal use.”

California already moved in this direction in 2014 when voters approved Proposition 47, which reduced to a misdemeanor the possession of heroin, methamphetamine and other drugs. Possession of these drugs, however, is still a criminal offense.

Possession arrests and convictions can have devastating effects on users and their families — especially for young men of color, who are disproportionately targeted, and for immigrants, who can be deported for a criminal offense.  There are a number of additional sanctions associated with drug convictions; for example, they can make it harder to receive federal aid for college, or access public housing.  The stigma around criminalization can also make it harder for users to get help or discuss their problems with family members and health professionals.

On the other side, there are two main arguments for criminalizing possession.  First, there’s deterrence, with the goal of discouraging use by threatening users with sanctions. Second, there’s leverage — that is, using arrest and prosecution to steer those with substance-use disorders toward treatment....

We think that a constructive new debate about decriminalizing drug possession can start with three observations:

Decriminalizing drug possession and use does not give users a free pass to commit other crimes.  If substance use leads individuals to drive impaired or engage in violence, they should be punished for those offenses.  Jurisdictions could consider “bundling” decriminalization with innovative treatment and/or sanctioning regimes for those whose use leads them to commit crimes that threaten public safety.

Eliminating criminal penalties needn’t mean eliminating all sanctions on use. Many jurisdictions outside California punish cannabis possession with civil fines, and the same could be done for other drugs.  (A failure to pay the fine could still be punishable by jail time.)  Many citizens will be subjected to drug testing at work. And the informal social sanctions of stigma and shame will continue to play an important role, as we see with tobacco smoking and heavy alcohol use.

Decriminalizing possession does not have to be permanent. Risk-averse decision makers could adopt a sunset provision that automatically reimposes criminal penalties after a fixed amount of time unless the Legislature acts to extend the change in policy.

Californians have a lot to consider when it comes to decriminalizing possession, especially because we are still learning about the consequences of Prop. 47.  But now is the time for a rigorous discussion about removing criminal penalties for drug possession, rather than rushing to judgment in the heat of a future election season.

July 21, 2017 at 01:41 AM | Permalink


"Should California drop criminal penalties for drug possession?"


Posted by: anon1 | Jul 21, 2017 9:11:26 AM

Lee Robins followed vets returning from Vietnam. Over 15 were opiate addicts due to lack of enforcement in Vietnam. Upon return the rate dropped to that of the US population, about a tenth that rate. The remaining addicts had features closer to those of our addicts, than to the rest of the veteran population.

This is the Bill Otis argument, why add to addiction if it can be avoided by prosecution? The Robins studies support his contention.

There are other natural, historic experiments, such the needle parks of Switzerland. 20,000 addicts from all over Europe turned up at one of them. That experiment did not turn out well either.

Posted by: David Behar | Jul 21, 2017 10:30:04 AM

I haven't seen Lee Robins's report, but there's nothing in that synopsis of it that suggests enforcement is a deterrent and that's the problem we've seen nationwide. California has reduced these charges to misdemeanors, which at least removes the extremely hypocritical argument of "helping" people by making them convicted felons.

There's a separate issue whether we should be so paternalistic by forcing people to not be addicts by incarcerating them, but I think the lack of deterrent power is a stronger case.

Posted by: Erik M | Jul 21, 2017 2:21:44 PM

"Over 15 [Vets from Vietnam] were opiate addicts due to lack of enforcement in Vietnam"

Right, our guys were being horribly maimed and wounded by Vietcong and seeing their buddies shot, maimed and killed, and our guys, in turn, killed and saw others kill and burn men, women and children, and you blame "lack of enforcement" for their use of and addiction to drugs. Give me a break.

Posted by: Dave from Texas | Jul 21, 2017 3:21:10 PM

Sadly this opinion piece makes no mention of Prop 36 (the one from 2000) which eliminated the ability to incarcerate, for even one single day, the vast majority of drug poss/use offenders, but instead requiring treatment as a condition of probation. The fact is that drug use and possession are largely de-criminalized already in CA given that all defendants granted probation are entitled to a record clearance (dismissal) after successful completed of probation.

It is outrageous to say that young men of color are "targeted." The linked article supports no such reality. There is little doubt that young men of color are overrepresented in criminal justice, but the idea that they are "targeted" in the drug context is highly controversial and frankly would not be tolerated in progressive CA if it were a reality not subject to serious debate. As a prosecutor, I can say that the targeting argument is nothing short of a lie.

The author's suggestions that we could substitute treatment for incarceration is already law of the land in CA under Prop 36 (Penal Code 1210.1) for the vast majority of offenders. Decriminalization would assist mostly persons previous and recently convicted of a serious or violent crimes (currently exempted from Prop 36). Not exactly the target population they want to talk about. Regardless, given their comment about men of color, it is not clear to me that fining drug users and jailing them when they don't pay resolves the problem by substitution a misd. criminal conviction with a ticket and a fine.

I find it fascinating that they fail to provide the data of increased use in the Portugal experiment. What was the increase in heroin, methamphetamine, heroin and PCP use? Are we willing to accept any increased use of these dangerous drugs?

Finally, a sunset to show this is an experiment; laughable. They are arguing for wholesale decriminalization, knowing full well that any sunset, will not actually apply. Only if the experiment was an unambiguous failure would this CA legislature simply let the law expire. Given the forces of legalization, we can be assured that this will be around to stay.

That being said, I am open to the idea of decriminalization, if for no other reason than we waste a massive amount of money prosecuting people just to offer them treatment. Skip the prosecution, offer treatment. I suspect very few are amenable to treatment solely because of the threat of sanction. Maybe some data on this point would be useful.

One final note, however. There is little debate that many crimes are drug abuse driven. Decriminalizing drugs will have an enormous impact on criminal enforcement and will substantially change the ability of the police to lawfully search a lot of things, people and places. While there is no debate in my mind that is what many want, these legalization groups certainly do not talk about this reality because it will likely result in fewer arrests for other crimes that are revealed as part of a drug investigation. Because the drug war substantially changed law enforcement, it is nothing short of naïve not to realized the surrender of criminal enforcement will bring wholesale, and unknown changes going forward.

Posted by: David | Jul 21, 2017 5:20:41 PM

We have our own, home grown, historic experiment. Prohibition was not really enforced. Nevertheless it dropped alcohol consumption only 50%. Yet, as a result, a period of unprecedented drops in crime, and in economic prosperity ensued. The Hollywood propaganda of crime waves as gangs competed for territory was the result of slack enforcement.

I support legalization or Draconian enforcement of prohibition. The half assed situation of today is just about the worse choice.

Why are we in this situation, of the very worst condition? You should know the answer, by now. The lawyer profession running this show is the very stupidest set of people in the world. Stupid but greedy. And both legalization and effective prohibition would lead to massive lawyer unemployment and shrinkage of the size of government. Their extreme stupidity is also in bad faith and self dealing. Extremely stupid and pure evil.

Posted by: David Behar | Jul 22, 2017 8:39:01 PM

Erik M. Lee Robins was a female sociologist contracted by the military to study the stunning revelation of massive addiction, in response to the restriction on drinking in Vietnam. Heroin and morphine were easy to get.

The remaining, hard core, often relapsong cohort of vetrans in the US led to the turn around of thinking aoubt addiction as an involuntary disease.

It was quite influential.

This site summarizes her findings, and leads you to her words, and eventually to her studies.



She had other seminal work on the life span of criminals. When I say, they are identified accurately at age 3, because the crime meter has started to spin, that comes from her work.

I recommend her work to lawyers who want to learn more about crime in the real world.

Posted by: David Behar | Jul 22, 2017 10:05:54 PM

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