The Defelonization of Drugs: California's Proposition 47

California, the nation’s leader in incarceration rates, is now on the forefront of prison reform after passing Proposition 47, which defelonizes petty drug possession and theft.

All simple possession offences previously classified as felonies, which can carry sentencing of twenty-five years to life, have become one year misdemeanors effective immediately following the passage of the proposition, which received 59 percent of the vote. Since the new penal code also works retroactively, it has already benefitted thousands of inmates: anyone who is already serving a felony conviction in the state of California for petty theft or drug possession can petition and receive new sentencing. It is estimated that 10,000 current inmates will be eligible for retroactive resentencing. Drug-related offenses are the primary target of the legislation; those convicted of a sexual offense or homicide are not eligible to petition their sentences.

The modern felonization of drug possession dates back to 1971, when President Nixon formally declared a “War on Drugs” as a response to drug use that characterized the social upheaval that occurred in the 1960s. President Reagan expanded the drug war exponentially by introducing a zero tolerance policy. Under the new policy, eight times as many individuals were incarcerated for nonviolent offenses, jumping from 50,000 to 400,000 in seventeen years, from 1980 to 1997.

The approval of Prop 47 comes on the heels of a major 2012 vote that eased mandates on the state’s “Three Strikes Law” (Prop 36). The law previously required anyone with three violent or nonviolent felonies to serve life sentences. These two recent votes are partly in response to a U.S. Supreme Court ruling that the overcrowding of California prisons is a violation of the Eighth Amendment’s ban on cruel and unusual punishment. California’s thirty-three prisons have been operating at between 120 and 150 percent of their maximum capacity.

In addition to reducing prison time significantly for criminals once they are convicted, the new procedure will speed up the judicial process. Public defender Christine O’Hanlon of Marin County has an intimate knowledge of the laborious procedure required when someone is accused of crime that is punishable by a life sentence. In her experience, “the time and expense of litigation increase significantly with the hiring of experts for evaluations, court time through added hearings, and sometimes jury trials that would otherwise be unnecessary but for the life sentence consequence.” This is a process that would keep an accused (but still unconvicted) felon in prison for up to six years while the judicial system proceeds through the necessary channels. Because of the reduced charges under the new legislation, that time is shortened to a maximum of one year and the inmate is kept in a local jail. Housing a prisoner in a local jail is much cheaper for the state. Local jails cost much less to staff because are designed to keep low-risk inmates awaiting trial and those serving sentences less than one year. This is a stark contrast to prisons, which are designed to house inmates for anywhere from four years to a life sentence.

The financial resources required for a criminal justice system of this size is a significant drain on taxpayer funds. Each inmate costs approximately $50,000 each year to incarcerate, sending California’s annual expenditure on prisons to upwards of $9.6 billion as of 2011. This is a staggering amount, considering that the state spends only $8,667 per student. Approximately 40,000 people were convicted of simple drug crimes each year which, until now, were mandated to carry felonious sentences; California will benefit financially from this reform.

Prop 47 is backed by the Safe Neighborhood and Schools Fund, which plans to use the money saved from incarceration reform and reallocate it to K-12 schools and convict rehabilitation programs. It is estimated that $750 million to $1.25 billion will be saved in the next five years, which will boost the annual budget for schools and rehab programs significantly.

Convict rehabilitation programs are very scarce in California. Former corrections officer, prison warden and expert on the correctional system, Richard Subia, states that only 20 percent of the inmates who want rehabilitation programs receive access to these resources. Rehabilitation, currently overlooked by a heavily burdened system, is a necessary part of the corrections process, and is especially important for dependent or addicted drug users. In the year after Proposition 36, the “three strikes” law, was repealed, only 2 percent of those released committed another crime, which is well below the national average recidivism rate of 16 percent. This low rate is additionally impressive because those who have benefitted from Prop 36 are not eligible for state and county support services. It is likely that the reason for the low, unaided recidivism rates stem from the non-violent and negligible nature of the original crimes. However, it is estimated that the cost of treatment for drug abuse is one fifth that of the cost of incarceration. Treatment, then, is a viable option to reduce expenditure of incarceration all while reducing drug abuse in the state.

Because of the nonviolent and relatively simple nature of the newly classified crimes and the reallocation of funds towards rehabilitation programs, it is likely that Prop 47 will also experience lower recidivism rates. Additionally, O’Hanlon is hopeful that her clients will have more success in finding employment once they have served their sentence for a reduced charge. She sees them struggle post incarceration because “employers are much more reluctant to hire someone with a felony conviction, no matter how petty the underlying facts, than someone who has a misdemeanor conviction.”

California has led the nation in percentage of population incarcerated for the last quarter century. In 2010, California’s prison population grew by 735 percent since 1969, while the number of residents in the state only grew by 192 percent. These staggering statistics are largely due to the increased incarceration of nonviolent drug offenders.

The efforts that California has taken to alleviate that burden that the criminal justice system imposes on taxpayers and criminals alike is a significant break from the policies of the past. It is encouraging that the state will be putting a higher premium on education and rehabilitation, programs that work to stop crime before it happens, rather than allocate unnecessary resources towards excessive punishment and incarceration.