[One in a series of articles on California’s Prop 47; reducing less serious felony offenses,(drug and non-drug) to misdemeanors]

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San Francisco District Attorney George Gascon

 San Francisco District Attorney George Gascon has been quoted as saying, “The [Criminal Justice] System isn’t broke  because of Prop 47, the System was broke before Prop. 47”.  To hear San Francisco District Attorney and former Police Chief  Gascon make such a bold statement is surprising, and more than that, a challenge to those of us working in the Criminal justice System across the nation.

 I agree with District Attorney Gascon. Prop. 47 is a huge change in course for a  criminal justice system that is used to increasing penalties and consequences for drug users for over a century. Over the past forty years, these less serious drug felonies have become a big part of the criminal justice system’s food chain (and we are paying for it with much needed community resources and overflowing prisons and jails).

 Clearly, the courts are a critical tool for getting the drug addicted into treatment and keeping them there. But one dosesn’t need a felony offense and the threat of prison to get it the job done. I have watched from my perch as a judicial officer since 1985, and while drug addiction is a  very serious medical and public health problem, drug possession offenses are being over-charged and over-incarcerated by the criminal justice system, even if its intent is to encourage sobriety.

I developed the Oakland Drug Court in 1990 to try to bring reason to a broken system. I went to Washington D.C. and founded the National Assocaition of Drug Court Professionals, to take that rational approach to the national level. Before returning to California in 2001, I wrote a mongraph, “Rational Drug Policy Reform” ( Center for Problem-Solving Courts, 2001). In it I proposed a simple but critical change in the law; the reduction of drug possssion felonies to misdemeanors (Chapter 2, pp. 7-11).

 Since then I have sat as a retired Judge ( on assignment) in some 50 courthouses throughout northern and central California. Nothing I have seen in those courts has changed my opinion that a felony conviciton is unacceptable as a moral, humane, or pragmatic response to drug dependency . The district attorney typically gets their felony conviction, but with little sentencing consequence, other than an often devastaing mark on the individual’s criminal record and a stigma that can last a lifetime.

Change is hard and hardest stil for bureaucracies, but current existing drug policies need to be reviewed with eyes open to the possibilities of new and more effective systems.The L.A. Times recently ran a series of excellent editorials on the apparent success of Prop. 47.  But when it came to a redistribution of resources from law enforcement to community services  (such as the drug dependent and mentally ill), the Times in an editorial entitled, “How to Spend the Savings”,  backed down, making it clear that when it comes to law enforcement, “The Times does not advocate layoffs”.

More than anything else, the system is broken because there is no system. Agencies would rather fight with one another over funding than develop shared rational criminal justice drug policies. It is my belief that the relief provided by Prop. 47 needs to apply to all less serious drug and non-drug felonies, as a part of each community’s systemic evidence-based sentencing structure (more on that systemic sentencing structure in the next Commentary)











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