With over 38 million residents, California is the largest state in the United States, and it is often seen as the bellwether for the rest of America. The state’s controversial “three-strikes law” raised eyebrows for its unforgiving approach to minor infractions, and that may have gone some way in influencing other California drug laws, especially Proposition 47.
What Is a Three-Strikes Law?
Proposition 47 is a reform ballot that reduces the punishment and legal consequences of small crimes, including possessing a certain amount of drugs.
The reasons behind the passage of Prop 47 can be traced to California’s implementation of its three-strikes law in 1994, whereby individuals who committed a third crime after being convicted for two prior offenses would receive harsher court sentences.
The idea behind the three-strikes laws (legally known as “habitual offender laws”) was to:
- Offer two opportunities to persistent criminals to escape significant jail time (from 25 years to life imprisonment) for their recurring criminal behavior
- Offer deterrence to people who were tempted to commit their third crime after having two prior convictions to their name
The program was implemented after a convicted felon kidnapped and murdered a teenage girl in Petaluma in 1993. State Democrats, seeing the opportunity to regain lost political ground and shed the image of a “bleeding heart party,” capitalized on the wave of public outrage and revulsion following the murder. Championed by President Bill Clinton in his 1994 State of the Union address, a national three-strikes law passed that year. By the end of the decade, 24 states and the federal government had adopted similar provisions for dealing with unrepentant criminals.
Three Strikes and Big Problems
California’s program, however, became heavily criticized for sending people to jail for even the most inconsequential of third offenses. Calling it “cruel and unusual punishment,” Rolling Stone reported the story of a man who was sentenced to life behind bars for stealing a $2.50 pair of socks after two prior convictions from almost 15 years earlier. Other examples included a man who received a life sentence for stealing a slice of pizza or another for stealing a pair of baby shoes.
As a result of the law (which Reason.com termed “the nation’s most draconian”), California’s prison population increased astronomically, a staggering 570 percent from 1980 to 2010, while the state itself grew by only 57 percent during those 30 years. Prisons overcrowded by people jailed for trivial offences led to correctional facilities so bad (with minimal health care, “needless suffering and death,” and an inmate suicide rate that was nearly 80 percent higher than the national average for a prison population) that the U.S. Supreme Court decided that the conditions violated the Eighth Amendment’s terms of cruel and unusual punishment. In a 5-4 decision in 2011, the court ordered the Californian government to decrease its prison population by 30,000 inmates.
From the ashes of California’s controversial three-strikes system arose the equally polarizing Proposition 47.
‘Safe Neighborhoods and Schools’
To address the issue of deplorable living conditions and fatal overcrowding, the state decided to “realign” its categories of conviction. Under the terms of Prop 47 (known in full as the “Safe Neighborhoods and Schools Act”), inmates guilty of crimes that are not serious, not violent, and not sex-related are sent to county jails instead of state prisons. This will reduce almost 40,000 felony convictions to misdemeanors, and 7,000 prisoners would be eligible to petition the court system for an early release. One in five criminals, guilty of some of California’s most common crimes (shoplifting, petty theft, writing bad checks, and drug possession) could see their penalties reduced or even wiped out, thereby saving these criminals from the lifelong stigma of being ineligible for jobs or government assistance because they have a felony conviction on their criminal record.
As stated, drug possession is one of the categories in Prop 47’s “realignment.” The passage of the ballot means that California became the first state in the union to “de-felonize” the use and possession of all forms of drugs: having methamphetamines and heroin would now only net a misdemeanor, instead of a felony conviction. For example, a man who received a six-year sentence in a state prison for possession of a small amount of cocaine was released the week after the measure’s approval, with four years of his sentence served. Another individual who was convicted for five years for possession of a small amount of methamphetamine was also released, as court staff worked over the Veteran’s Day holiday weekend to process the glut of realigned cases.
Saving Money and Changing Times
Since literally tens of thousands of crimes will no longer be processed by the district courts, Proposition 47 is expected to save California anywhere from $750 million to $1.25 billion. As part of the program, the state plans on investing the windfall into K-12 schools (25 percent of savings generated from Proposition 47 would go toward reducing student truancy and supporting students at risk for dropping out of school or being victims of crime) and convict rehabilitation programs. Sixty-five percent of the savings generated from Proposition 47 would support substance abuse treatment, mental health treatment, and programs for recidivist convicts of less serious crimes. Ten percent will be used to fund trauma recovery centers and provide essential services to victims of abuse.
Talking to The Huffington Post about Proposition 47, a drug addiction expert who supported the measure explained that times have changed. Americans’ opinions of crime and punishment shift and people don’t live in fear, as they did when they backed the passage of the Three Strikes Law in 1994.
While Proposition 47 received massive support from The New York Times, the Los Angeles Times, the American Civil Liberties Union (who donated $3.5 million to the measure), and prominent politicians from both sides of the aisle who praised the measure for its “smart on crime” approach, skeptics raised a number of points in opposition and concern.
Among them was that a bevy of controlled substances were being “de-felonized” by the ballot, one such drug being flunitrazepam, better known as the date-rape drug Rohypnol (colloquially known as “roofies”). Flunitrazepam belongs to the benzodiazepine family of drugs, which are used for treating anxiety and convulsions. Rohypnol, however, has the added effect of inducing retrograde amnesia in people who consume the drug. For this reason, it is a weapon of choice in drug-assisted sexual assault, as victims are prevented from accurately remembering or describing the circumstances surrounding their attack. The benzodiazepine nature of flunitrazepam further renders victims incapable of defending themselves against rape.
Rohypnol is illegal to manufacture, sell, or use in the United States. The U.S. Drug Enforcement Administration considers it a Schedule IV drug in the United States, meaning it has a relatively low potential for abuse when compared to other drugs. However, given the criminal implications, the penalties for owning, distributing, or selling Rohypnol are the same as they would be for a Schedule I drug, such as heroin and MDMA.
Rohypnol and Proposition 47
However, the approval of Proposition 47 means that possession of Rohypnol – a drug used exclusively with the intention of assaulting others, as opposed to the self-harming nature of heroin or cocaine – is no longer a felony. Instead, points out an opinion in the Los Angeles Times, an individual caught with Rohypnol would be charged with a misdemeanor, sentenced to a year in jail, and receive a fine of $1,000. There is even a possibility that no jail time may be involved.
In expressing opposition to the passage of Prop 47, a spokesperson for the California Coalition Against Sexual Assault testified that there are three million victims of sexual assault facilitated by the administration of substances like Rohypnol. The Coalition joined forces with a number of other organizations in claiming that Prop 47 would amount to nothing more than a “slap on the wrist” for people found with Rohypnol in their possession.
These organizations include:
- California District Attorneys Association
- California Police Chiefs Association
- California Retailers Association
- California State Sheriffs’ Association
- Crime Victim Action Alliance
- Crime Victims United of California
Rohypnol and Proposition Opposition
If an individual used Rohypnol in an assault (and if this was discovered/proven by prosecutors), the possession of the drug would remain usable as evidence of intent in a felony assault case, and thus still be considered a felony. The Times concludes it is unlikely that would-be rapists would use the passage of Proposition 47 to start amassing their arsenal of date-rape drugs, free from the deterrent of a felony conviction, since alcohol – not flunitrazepam – is the substance most used in the facilitation of sexual assault, and there already exists a plethora of laws regulating alcohol. Nonetheless, the Chief of Police of the City of Monrovia warned that Proposition 47 would allow sexual predators who possess date-rape drugs (and are caught with them) to avoid jail time.
The Californian government is well aware of the risks, listing the following as a “con” of Proposition 47 on the state-sanctioned voter guide: “Reduces penalties for possession of ‘date rape’ drugs. Opposed by prosecutors, law enforcement, and the business community. Opposed by crime victims and sexual abuse victims.”
Proposition 47 and Drug Courts
The National Association of Drug Court Professionals (NADCP) pointed out other limitations Proposition 47 placed on the crossroads of the law of the land and substances of abuse and harm. For example, the ballot’s downgrading of the penalties for drug possession could remove legal incentive for addicted individuals to seek treatment, if their possession of controlled drugs will amount to nothing more than a fine and court date.
Drug courts – part of a specialized court program that focuses on criminal offenders who have substance abuse and dependency problems – are primarily responsible for referring offenders to treatment (more so than any other type of criminal justice program) because they offer a legal incentive to offenders. The NADCP points out that people who enter drug programs under threat of legal sanctions tend to perform better in treatment than people who voluntarily enroll themselves. Drug courts often leverage the weight and power of the criminal justice system to keep offenders in treatment programs for a long enough period of time for them to reap the benefits of rehabilitation.
Without that leverage, however, the NADCP warns that there would be no system of accountability, supervision, or treatment for drug-addicted offenders. With no threat of a felony looming over their heads if they do not check in to a treatment program, drug users will feel emboldened to continue their habit, knowing that the worst that could legally happen to them is a fine, a court date, and an outside chance of jail time. Indeed, a Los Angeles City Councilman (who spent five years as the Chief of Police for Los Angeles) wrote to the Los Angeles Times to say that the real losers of Proposition 47 will be inmates who would otherwise have been forced to seek treatment as part of their incarceration.
It’s a possibility that is echoed by the Los Angeles County District Attorney, who said that getting drug users to accept treatment will become a challenge. Similarly, the executive director of the Countywide Criminal Justice Coordination Committee, which runs drug courts, told the Los Angeles Times that “there is little incentive to participate” in court-affiliated drug programs. Without the “carrot-and-stick” method – whereby a sentence will be commuted if a person goes into a rehab – “the outcomes are quite poor,” a member of the NADCP tells The Fix.
The Effects of Proposition 47
But what has actually happened since the passage of Proposition 47? Two months after its approval, an opinion in the Los Angeles Times says that it’s too soon to deliver a final verdict on the effectiveness of the proposition. As expected, narcotics arrests have dropped, and perhaps not unexpectedly, thefts and burglaries are on the rise.
That’s because, according to the LA City Councilman who said that inmates were the real losers from Prop 47, the voters who approved Proposition 47 don’t understand that the people who abuse drugs also commit other crimes. Because there is a reduced threat of incarceration for the possession of drugs, there is one less barrier between getting high and breaking the law to maintain that drug habit.
The lack of deterrent has led to some police officers refusing to arrest meth users at homeless camps in Santa Clarita. Despite complaints by neighborhood residents, the meth users stand their ground, knowing that even if they were apprehended by the police, they’d be back on the streets in a matter of hours. For their part, certain police officers feel that cracking down on drug users now has only nominal effect, and so they focus their efforts elsewhere.
Proposition 47 was approved, with 59.6 percent of the seven million votes cast. Despite the hundreds of millions of dollars in projected savings, it might yet be years until any of those funds actually materialize. Until then, the voters of California will have to trust that by addressing the problem of a bloated and expensive prison system, they did not create another problem of legitimizing the ownership of dangerous drugs.
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