Proposition 47 and criminal defense

Proposition 47 and criminal defense

by | Oct 19, 2014

In case it wasn’t obvious, I am a vocal proponent of legalizing the personal use of most drugs. Yes, even the hard drugs.  Many people can use drugs and still remain functional in society.  Those who cannot are not deterred by criminalization.  Rather, they are people who need treatment and a chance to take their lives back. The current state of California criminal law does the exact opposite.  While I am all for full legalization, I understand that it is unlikely. So, just like recent legislation that provides defenses to marijuana use, I will support every baby-steps measure that tends to decriminalize drugs, generally.

The big issue that I have found in my 9 years of criminal defense practice is that, under the current penal code provisions, those who get caught possessing small amounts of methamphetamine, cocaine or heroin for personal use are often charged with felonies. Felonies can carry horrific consequences, such as loss of employment or employment opportunities, loss of professional licenses, loss of educational financial aid, loss of one’s right to possess firearms, loss of voting rights, and loss of freedom. Not to mention the massive amount of money spent in fines, fees, probation supervision and, yes, defense attorneys.

Except in the case of methamphetamine, even the rare sympathetic prosecutor has little discretion when charging these offenses. The law, as it stands, gives them no discretion to charge crimes such as cocaine possession as a misdemeanor. However, in the case of methamphetamine possession, prosecutors can charge it as a felony or a misdemeanor. Unfortunately, most prosecutors will charge the crime as a felony at the outset.  The reason for this is to increase their bargaining position and induce the defendant to give up on his right to trial by accepting a misdemeanor plea deal.  Afraid to risk a felony conviction at trial, most defendants will take the misdemeanor deal, even if they are innocent.

These are crimes that ought to be misdemeanors if they must be criminalized at all. If the person is abusing drugs, he or she is already operating at a disadvantage in society. Once they have incurred the stain of a felony, particularly one involving cocaine or heroin, the consequences I mentioned above make it virtually impossible for them to kick the addiction and reintegrate back into society. They are placed on probation where the only support they get is in the form of an unsympathetic probation officer who is eagerly looking forward to a “hot” pee test.  The felony conviction will prevent any possibility of obtaining employment since that is the main question on any employment application. Even if the probationer was able to obtain employment, he will be visited at his place of work by law enforcement to ensure he is in compliance.  The end result is often homelessness, despair and multiple violations of probation. And, of course, imprisonment.

The sheer costs to our community of this cycle are hard to contemplate. It saddens me to see people who would otherwise be worthwhile contributors to society so marginalized. I recently had a client who was once a skilled woodworker. His methamphetamine use was the result of a number of very sad factors in his life.  He had an extensive history of personal use convictions, which undermined any possibility of being employed or any future to look forward to. I often thought of how things might have been different if he had received the help he needed years ago rather than constant punitive consequences. In the end, he is warehoused in prison along with thousands of others at our expense.

These days, it is difficult enough for the non-addicted, well-adjusted among us to create success. We cannot continue to sabotage people who suffer from addiction with the burdens of a felony conviction. Voting in favor of Proposition 47 goes a long way to fix this problem and give these people a second chance.