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On November 4, 2014, voters in California changed yesterday’s felony drug possession into today’s misdemeanor.  Voters passed a significant ballot measure, Proposition 47, a criminal reform initiative to dramatically reduce the punishment for a variety of crimes. The passage of Proposition 47 made California the first state in the U.S. to downgrade certain “nonserious and nonviolent property and drug crimes” from felonies to misdemeanors. Affected charges include drug possession, grand theft, shoplifting, writing bad checks, check forgery and receiving stolen property.  The downgrade from a felony to a misdemeanor results in a reduced penalty for offenders convicted of those crimes.

Not surprisingly, drug offenders will be the largest group impacted by the passage of Proposition 47. Its passage signals a strong shift in public opinion away from myopic “lock ’em up” policies and toward more pragmatic classifications and sentences. Proposition 47 sends a clear message that citizens recognize the need to replace our current policy of incarceration with one of rehabilitation for drug crimes and other nonviolent crimes.

According to an article in the Los Angeles Times, “[l]egislative analysts predict that about 40,000 California offenders each year will now draw misdemeanor convictions instead of felonies. Prison officials said they have identified 4,770 felons in custody who are eligible to seek resentencing. And L.A. prosecutors have identified almost 4,000 offenders in the pipeline between arrest and sentencing who might qualify for more lenient treatment under the new law.” Additionally, California will experience a number of fiscal effects such as the likely reduction of “state prison, parole, and court costs.”

An important component of Proposition 47 is the built-in funding mechanism for mental health and substance abuse treatment. Proposition 47 requires 65 percent of the money saved through new sentencing guidelines to be allocated directly to programs that address the illnesses and other issues plaguing many charged with nonviolent drug crimes. This prong of Proposition 47 should result in more resources and broader access to treatment for individuals suffering with substance addiction and mental illness.

There appears to be support mounting for criminal justice and sentencing reform, especially for drug possession charges, and that groundswell extends beyond California, as evidenced by Chicago Mayor Rahm Emanuel’s similar call for reform which would ease penalties for drug possession offenses. As reported in our September 23, 2014, blog, Mayor Emanuel asked the Illinois General Assembly to decriminalize marijuana and downgrade drug possession from a felony to a misdemeanor for any person charged with possession of less than one gram of any controlled substance. Emanuel’s administration asserts that this reclassification would result in approximately 3,500 fewer felony cases and fewer addicts being imprisoned. In a show of support for Emanuel’s proposed reforms, Chicago Police Superintendent Garry McCarthy told members of the Illinois General Assembly’s Joint Criminal Justice Reform Committee that “crime reduction isn’t about putting more people in jail, it’s about putting the right people in jail.”

By imprisoning fewer addicts, the reformed classification addresses the needs of addicts through treatment and without the negative impacts on employability caused by felony convictions. Fiscally, the downgrade from a felony to a misdemeanor for possession of less than one gram of any controlled substance means that many of the more than 17,000 drug offenders typically jailed each year for an average of 56 days in Cook County pretrial may no longer be housed in jail for that extended period at the taxpayers’ expense. If the Illinois legislature passes the reforms proposed by Emanuel, Illinois should see an impact comparable to that in California, fewer incarcerations of nonviolent offenders and lower court costs.

Reforms to criminal classification like those seen in California’s Proposition 47 and the changes proposed by Mayor Emanuel attempt to address a current criminal justice system that has failed. The decriminalization of certain drugs and the downgrading of drug related charges are not attempts to ignore the seriousness of drug use but rather to reduce the negative consequences felony drug offenders face after incarceration. Incarceration compounds problems for individuals suffering with drug addiction, but decriminalization and downgrading felonies to misdemeanors may combat the problem in a more productive and effective way.

Perhaps constitutional lawyer and author Glenn Greenwald said it best in his report on the decriminalization of drugs in Portugal: “[D]ecriminalization was driven not by the perception that drug abuse was an insignificant problem, but rather by the consensus view that it was a highly significant problem, that criminalization was exacerbating the problem, and that only decriminalization could enable an effective government response.”