Enhanced Drug Sentences: Repealing an Injustice

On April 25 state Sen. Holly Mitchell (D-Los Angeles) presented her case in Sacramento for the Repeal Ineffective Sentencing Enhancement (RISE) Act, a bill to roll back a 1985 law extending jail terms for certain repeat drug offenders. The new law, Mitchell explained to Capital & Main, would apply only to the “non-non-nons” – people caught selling drugs but not involved in violent, sexual or otherwise serious crimes. It would not affect sentences for transporting large amounts of drugs or manufacturing drugs; it would not amend the code that prescribes heavier sentences based on weight and volume.

“Possession for sale” has a murky definition in California, she said; current law adds three years for every prior conviction to the sentences of the petty drug dealer and cartel trafficker alike. The result has been the mass incarceration of people caught with small amounts of drugs, many of whom suffer from mental illness, drug addiction and poverty.

“This bill does not impede authority to punish drug crimes,” Mitchell said. “It only says you are not allowed to pile on.”

The video of that day’s proceedings shows Republican state senators Jim Nielsen (Tehama) and Jeff Stone (Temecula) rebutting their Democratic colleague. But it was as if they hadn’t heard her. Stone brought up the 10 people who had died in Sacramento since late March, due to overdoses of fentanyl, a powerful prescription opioid sometimes sold on the street. Nielsen asserted that there’s no such thing as a nonviolent drug peddler – that drug sales, as the fentanyl deaths prove, are violent by their very nature. Mitchell’s law would do nothing to deter them.

“If an individual, starting at our own children, gets away with bad behavior, is that a signal to stop that behavior?” Nielsen asked. “Hardly. It is an invitation to continue it. And in fact to escalate it, do something a little worse.”

No evidence exists, however, that the “sentence enhancement” law Mitchell seeks to repeal, passed at the height of the nation’s drug-war panic, ever reduced the availability of any street drug, be it crack cocaine or fentanyl. Nor have the longer sentences prescribed by the current law changed the behavior of drug dealers, making it less likely that they’ll commit the same offense again. In the 31 years since then-Assemblyman Gary Condit authored the “Dealer Statute,” reams of scholarly research have established that longer jail terms for drug offenders often achieve the exact opposite result of their intent. One frequently cited 2002 study, by researchers Cassia Spohn and David Holleran, found that, instead of deterring the use and distribution of illegal drugs, long incarcerations seem to encourage both crimes. “Incarcerated drug offenders had significantly higher recidivism rates than any other offenders,” the researchers wrote.

Even by 2002, there was little debate about the failure of sentence enhancements. Spohn and Holleran quote Carnegie Mellon criminologist Jacqueline Cohen as saying that “observers of the criminal justice system, who in general agree on little else,” agree that “increased penalties for drug use and distribution” have had little impact on the availability of illicit drugs.” The research is also nearly unanimous, according to Quinnipiac University law professor Sarah French Russell, that “there is clear evidence that enhancements based on prior drug convictions exacerbate racial disparities in the criminal justice system.” (Two-thirds of the drug offenders confined in state prisons are African-American or Latino, according to the Sentencing Project, a Washington, D.C. nonprofit.)

Holly Mitchell

Despite all that evidence, however, when Mitchell’s Senate Bill 966 came up for a vote in the full State Senate. All but one of 14 Republican senators voted against it, along with three Democrats; one Republican and five other Democrats abstained.

“My colleagues got hung up on this notion of the ‘drug dealer,’ and who this drug dealer is,” Mitchell said in a phone interview. “They took that notion to the extreme, and imagined this bill was going to affect the drug cartels, the people on the high end of the drug trade. What they forget is that in California, it’s up to the arresting entity to decide whether the amount of drugs I have on me is for sale or personal use. And if I am black and brown, and have two bags of weed, the assumption is that the two bags are for sale.”

Considering the wealth of data on the counterproductive nature of sentence enhancements for drug crimes, opposing their repeal might seem like a kind of science denial, almost on the order of arguing that the climate isn’t changing. Still, most law enforcement agencies, including the California District Attorneys Association and the Association for Los Angeles Deputy Sheriffs, oppose the repeal of Condit’s law, insisting, as does Nielsen, all drug crimes are inherently violent, whether they involve two bags of weed or seven kilos of cocaine. “[T]he drug dealer . . . is a willing and an integral part of an illegal enterprise that at its core relies on and promotes violence,” wrote Eric Siddall, vice president of the Los Angeles Association of  Deputy District Attorneys.

Similar arguments against Mitchell’s bill presumably held sway over some progressive Democrats, including Sen. Bob Hertzberg (D-Van Nuys), Sen. Hannah-Beth Jackson (D-Santa Barbara) and Sen. Lois Wolk (D-Davis), who declined to either support or oppose the bill. Capital & Main reached out to Hertzberg and Jackson but received no responses; a representative from Wolk’s office spoke only on background and offered no insight as to why the senator declined to support Mitchell’s bill.

Glenn Backes, a policy consultant to SB 966’s co-sponsor, the Ella Baker Center for Human Rights in Oakland, has been working to educate lawmakers about not just the discriminatory effect of adding unnecessary extra time to drug sentences, but the high cost of mass incarceration. He said that “the majority of Democrats have been willing to step up and end [prison] spending on a policy that didn’t work.” But for many of them, sentencing reform continues to be a difficult issue. “They don’t have the kind of [party] discipline around the issue that they have around the environment and women’s health care,” he says.

This is particularly true, he says, of lawmakers over the age of 60, who were part of the initial push to toughen criminal penalties of all kinds 30 or 40 years ago. “Their political compass is skewed to the past.”

“Mitchell is doing something that’s logical, incremental and politically gutsy,” Backes said. “Outside the Capitol, it’s common sense. But when we enter the Capitol, somehow common sense becomes radical and scary.”

Mitchell will have another chance to present her bill before the end of May, possibly with amendments that would make it more palatable, though no one will say what those amendments might be. Backes says only that Mitchell won’t turn the bill into a “fig leaf” in any way, such as “taking the word shall and turning it into may.” That would still leave the choice to enhance a sentence up to the presiding judge, something that case law already allows judges to do.

Whatever the fate of the RISE Act, Mitchell says she won’t stop what she calls her “Monday-morning quarterbacking of the war on drugs,” by looking for ways to reverse laws like Condit’s, which have only landed more people — particularly young black and brown men — in jail, and have done nothing to solve the nation’s drug problem.

“It was fear-based, reactionary policy making,” Mitchell says of those 1980s laws. “Research has never supported the notion that any of it has made us any safer.”