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Prop 36 Update |
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Vol. 1, No. 2 August 15, 2001
LA County District Attorney Applauded
for Applying Prop. 36 to Drug Offenders Convicted
Before July 1
As reported in last week’s Los
Angeles Times, the LA County DA’s office said
it would not ask for jail time for people convicted
but not sentenced before July 1, when Prop. 36 went
into effect. Head county Deputy District Attorney
Lawrence Mason said the new policy (treatment instead
of jail for nonviolent first- and second-time drug
offenders) will apply to those arrested and convicted
after November 7, when voters approved the initiative.
Lindesmith-DPF applauds this decision.
Others who agree the sentencing date should be the
date of conviction include the California Judicial
Council, the California Department of Alcohol and
Drug Programs (which officially oversees Prop. 36)
and the California Public Defender’s Association.
Possession of Drug Paraphernalia:
Incurring a Harsher Sentence than Actual Possession
of Drugs?
The Debate
In addition to debates around who
is eligible for drug treatment under Prop. 36 based
on dates of conviction vs. dates of sentencing, another
eligibility debate has emerged around the issue of
paraphernalia. It seems prosecutors in Orange County
are trying to limit eligibility to as few defendants
as possible. Last month district attorneys in the
city of Anaheim filed seven appeals accusing judges
of authorizing treatment for defendants whose crimes
do not entitle them to treatment. The crimes in question
are misdemeanor charges of drug paraphernalia possession.
“Drug paraphernalia” is
defined as any object intended for use in the manufacture,
storage, or ingestion of illicit drugs.1
Examples include specialty items sold specifically
for such purposes like pipes, cocaine spoons, or syringes,
or common every-day items such as cotton, razor blades,
or cigarette rolling papers. The common element of
all drug paraphernalia is the intent to use the item
in conjunction with illegal drugs. Possession of
drug paraphernalia under California law is punishable
by up to one year in jail.
Because Prop. 36 authorizes probation
and treatment for first- and second-time non-violent
offenders convicted of possessing or being under the
influence of illicit drugs, the Anaheim prosecutors
argue defendants convicted of merely possessing drug
paraphernalia can’t be sentenced to treatment.
But this stance would create a controversial and nonsensical
situation where persons convicted of possessing objects
that might be as innocuous as your average household
tablespoon (provided there was proof that the defendant
intended to use the object to ingest drugs) might
receive harsher punishment that persons convicted
of possessing actual drugs. In other words, depending
on how Prop. 36 is interpreted, someone possessing
only a marijuana pipe could face prison, while someone
possessing marijuana itself - or most paradoxically,
a pipe and marijuana together -- would get treatment.
While possession of drug paraphernalia
is not listed as one of the non-violent drug offenses
for which Prop. 36 probation is mandated, it is interesting
to note that the drafters of the initiative were careful
to specify that defendants convicted of possessing
both drugs and paraphernalia should not be excluded
from treatment on that basis.2
The reason for this consideration is based on common
sense: drug users are very likely to possess paraphernalia,
as many drugs are not readily ingestible without such
tools. In cases where drug offenders are not caught
red-handed either under the influence of drugs or
with drugs in their possession, paraphernalia may
be the only way to identify them as drug users.
The Alliance’s Position
We urge judges and prosecutors not
to violate the spirit of the law and the intent of
the voters by sending those found in possession only
of drug paraphernalia to prison. The stated intent
of Prop. 36 was that the problem of drug abuse would
be better addressed, and tax dollars better spent,
if non-violent drug offenders received community-based
drug treatment instead of jail. As such, the benefits
of treatment should be made available to as many,
not as few, non-violent drug users as possible.
While the terms of the initiative
clearly describe a class of offenders who must
receive treatment and enumerate which defendants
may not 3 receive
it, we feel California judges retain judicial discretion
to decide who may receive treatment. The judges in
Anaheim were astute enough to recognize that non-violent
offenders in possession of paraphernalia would be
better served by the opportunity to receive drug treatment
than by occupying a jail cell and properly sentenced
them according to the intent of the voters.
If you would like to receive the
Prop. 36 update by fax please contact Julie Ruiz-Sierra
at (916) 444-3751 or [email protected].
To receive the update via e-mail, click
here.
NOTES:
1. California Health and Safety Code
section 11014.5.
2. See California Penal Code sections
1210(d) and 1210.1(b)(2) regarding misdemeanors related
to the use of drugs.
3. Certain defendants, including
those concurrently convicted of serious or violent
felonies are not eligible for treatment under Prop.
36.
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