Decriminalizing Drug Law Violations
Addressing the Collateral Consequences of Incarceration
The life-long penalties and exclusions that follow a drug conviction have created a permanent second-class status for millions of Americans, who may be prohibited from voting, being licensed, getting a job, securing a student loan, accessing housing or other forms of public assistance, and any number of other activities and opportunities. The drug war’s racially disproportionate enforcement means that all of these exclusions fall more heavily on people and communities of color. Even if a person does not face jail or prison time, a drug conviction record – particularly a felony record – often creates a lifelong ban on many aspects of social, economic and political life.
In 2013, DPA is cosponsoring SB 283 (Hancock), the Successful Reentry and Access to Jobs Act. This bill would allow individuals who have been convicted of a drug felony – but who meet all other eligibility rules – to receive basic needs services, employment training and work supports through the federally-funded California Work Opportunity and Responsibility to Kids (CalWORKS) and CalFresh programs, provided that they are complying with the conditions of probation or parole, or have successfully completed probation or parole. Other cosponsors are the Western Center for Law and Poverty and the California Welfare Directors Association. Click here to view our official support letter and use it as a template for your own letter.
Nationally, an estimated 5.3 million Americans are denied the right to vote because of laws that disenfranchise people with felony convictions. Felony disenfranchisement is exacerbated by racial disparities in the criminal justice system – as a result,an estimated 13 percent of black men are unable to vote. In California, 278,477 people (or 1 percent of the state’s population) are disenfranchised because of a felony conviction. Yet 78,164 black people have been disenfranchised – or 4 percent of the state’s black population.
Our allies in California have introduced AB 938 (Weber) Realignment Voters, which would clarify the voting rights of offenders sentenced pursuant to realignment, including offenders placed on PRCS (and clarify who can be expunged by registrars).
Other important legislation on collateral consequences includes:
AB 218 (Dickinson) Ban the Box
This bill, a reintroduction from 2012, would remove the criminal background check requirement from the initial application process for local employees, which would reduce unnecessary barriers to employment for the one in four adult Californians who have an arrest or conviction record. This bill is modeled on the “ban the box” hiring process for state public employees adopted in 2010.
AB 651 (Bradford) Expungement of Convictions for Realignment Offenders
This bill, a reintroduction of a similar bill from 2012, will allow people with low-level felony convictions who are sentenced under the new Realignment laws to petition for expungement after completion of their sentences. A similar remedy currently exists for lower-level felons – this bill extends that remedy to people convicted of low-level felonies under the new Realignment laws.
Reducing Penalties for Drug Possession
SB 649 (Leno) Drug Possession Sentencing
DPA is proud to cosponsor Senator Mark Leno’s drug possession bill again this year, as we did for SB 1506 in 2012. SB 649 aims to revise the penalty for drug possession from a felony under current state law, to an alternate felony/misdemeanor (“wobbler”), providing judicial discretion in sentencing. The legislation will not change the penalties for sale, transportation, manufacture or possession for sale. In thirteen states, the District of Columbia and the federal government, the penalty for simple drug possession is already a misdemeanor and those states have slightly lower crime rates than felony states and slightly higher rates of people entering drug treatment.
The ACLU, California NAACP, William C. Velasquez Institute, Friends Committee on Legislation, Californians for Safety and Justice, and the California Public Defenders Association are also cosponsoring this bill.
SB 649 will:
- Help counties implement realignment. Local prosecutors will be able to make judgments that can help safely reduce the number of jail bed days taken by those serving time for low-level drug law violations and preserve jail space for people convicted of more serious offenses.
- Reduce burden on the courts. Because felony charges require a preliminary hearing, whereas misdemeanor offenses do not, SB 649 will reduce pressure on the courts.
- Support reentry and reduce recidivism. Those convicted of a misdemeanor will be spared the lifelong collateral consequences that accompany a felony conviction, including barriers to housing, employment, professional licenses and even public support. Removing these barriers will support successful rehabilitation.
- Reduce the racially disproportionate impact of drug law enforcement. Despite similar levels of drug use and selling among all races, people of color are arrested, prosecuted and incarcerated for drug law violations at vastly disproportionate rates. Revising the drug possession penalty will have a tremendous positive impact for families and communities of color.
- Ensure offender supervision is maintained. Probation can be imposed for both misdemeanants and felons for terms of typically three years (sometimes up to five years) with conditions such as drug treatment or other programs.
- Implement the will of the public. A statewide 2012 Tulchin Research poll found that 75 percent of Californians favor investing in prevention and alternatives to jail for people convicted of low-level drug law violations, while 62 percent support reducing the penalty for low-level drug possession to a misdemeanor.
Eliminating Racial Disparities in California’s Cocaine Sentencing Laws
In many ways, the racial disparities in California’s criminal justice system are more severe than the country’s as a whole. The ratio of blacks to whites in prison in California is 6.5:1, while nationally it is 5.6:1. Blacks comprise just 6.2 percent of California’s population, yet in 2010 blacks represented more than 18 percent of all people arrested for drug felonies in the state. In 2009, the last year for which comprehensive data are available, blacks represented a staggering 29 percent of the state prison population and 27.7 percent of the state’s parolees.
At the same time, people of color are seriously underrepresented in the state’s drug treatment and mental health services systems. According to the California Department of Alcohol and Drug Programs, “African Americans are, indeed, disproportionately represented in arrest statistics for practically all misdemeanor and felony drug violations, despite being the least likely to be referred to treatment from the criminal justice system.”
Not only are black Californians more likely to be arrested for nonviolent offenses, but they are also significantly more likely to be incarcerated – and for longer periods of time – than whites for the same offenses. The average prison sentence for a nonviolent offense is longer for blacks than whites (16 months versus 12 months), and the average probation sentence is longer for blacks than whites as well (43 months versus 41 months).
For certain categories of drug law violations, the overrepresentation of black Californians among the state’s felony drug arrests is even more dramatic: blacks represented 31.3 percent of all arrests for those violations defined as “felony narcotic offenses”. This is especially true when it comes to arrest and prosecution for cocaine base (crack). According to the State Attorney General, in 2000 only 63 white men and women were convicted of possessing cocaine base for sale while 1,163 black men and women were convicted of the same crime, representing a disparity ratio of more than 18-to-1.
California is one of only 12 states, along with the federal government, that still maintains a disparity in sentencing for crack cocaine versus powder cocaine. Whatever their intended goal, disparate sentencing guidelines for two forms of the same drug result in a pattern of institutional racism. Even though the rates of crack use among different racial groups is roughly equal, longer prison sentences are given to blacks since they are more likely than whites or Latinos to be arrested and incarcerated for crack cocaine law violations.
DPA hopes to sponsor the Fair Sentencing Act in California’s 2013-2014 legislative session. This proposal would equalize sentencing, probation eligibility and asset forfeiture guidelines for the two types of cocaine. Partners in this effort include the ACLU, California NAACP, William C. Velasquez Institute, and Californians for Safety and Justice.