Yorick Thomastie asks Adrian Kamada, Stacey Eads, Michael Acosta…
Drug sentencing guidelines
What guidelines would you issue to the DA’s office regarding drug possession? Will you prosecute people for simple possession and, if so, will you seek jail time, rehab, or other.
If you’d care to expand your answer to also address drug trafficking or dealing, I’d be interested in responses to that as well.
— Yorick Thomastie
Responses
Michael Acosta
I don’t support the prosecution of simple drug possession cases. The war on drugs has been a war on the poor and on the American counterculture. You never read about the DEA raiding Merrill Lynch or Charles Schwab Corporation for cocaine. It’s almost invariably impoverished neighborhoods or the political enemies of wealthy special interests that are targeted. It’s time our policy caught up with other countries such as Portugal, which decriminalized drugs 20 years ago, yet is nonetheless ranked by empirical studies as safer than the United States. Furthermore, from a fiscal conservative’s standpoint, moral paternalism is a nonessential, government function, and should be an exceedingly low prosecutorial priority, if at all.
Confiscation by itself effectively removes drugs from the streets, and it costs only a fraction of what prosecution and incarceration cost. Please remember that, according to the California Legislative Analyst’s Office, it costs the taxpayers $106,131 per year to incarcerate an inmate. For misdemeanors, a sentence can be up to one year, which ends up being 180 days with §4019 good time credits. That’s up to $50,000 to incarcerate a person for simple possession, a cost which is not recoverable through restitution. More typically, however, sentences for simple possession or violations of probation for simple possession range in sentencing from zero to 180 days, which, again is zero to 90 days actual time with §4019 credits. So typically it costs up to $25,000 per inmate per case just to house a misdemeanant (i.e. not including arrest and booking time, prosecution time, nor court time). We are spending that kind of money over maybe $100 or less worth of contraband per midemeanor case. That’s a 250:1 ratio of incarceration cost to street value of the drugs confiscated.
This calculus can get far worse with felony drug cases, many of which are required to be executed locally under AB109. So, for example, a transportation for sale across non-contiguous county lines (like we are seeing coming from the San Francisco Tenderloin lately) carries up to 9 years locally, which is 4.5 years with the §4019 credits. That’s $450,000 dollars to the local government in housing costs alone per case potentially.
Fortunately, 14 years of Prohibition clearly demonstrated the failure of such a policy, which our nation acknowledged in ratifying the 21st Amendment in 1933 (which repealed the 18th Amendment as ratified in 1919). Prohibition made risky behavior riskier, as manufacturers and consumers alike switched to more potent liquor, and the potency of most alcohols increased by 50%. Prohibition diverted law enforcement resources away from criminal conduct that directly harmed third parties, as the concept of harm to a person was expanded to indirect or hypothetical macro-harms to society that suddenly needed police regulation. Prohibition exacerbated the social problems it set out to remedy, as the alcoholic death rate skyrocketed 600% from 1920 to 1930. Prohibition put the market for alcohol squarely into the hands of organized criminal enterprises, which resulted in an incremental increase in the homicide rate, and which, by nearly the same increment, dropped again when Prohibition was repealed. The only Constitutional Amendment to ever be repealed in US history was the 18th Amendment, clearly denoting a mistake in policy. And here we are again.
For the same reasons that Prohibition was a mistake with alcohol, the War on Drugs is a political mistake that nurtures black market economics by inflating prices and creating incentives for high-risk criminal behavior. An inflated risk/reward ratio means that there will always be someone willing to meet the demand for profit. It was estimated by the Wickersham Commission in 1931 that only one in five rum-runners had to succeed for criminal enterprises to make a profit. The correlation between black market economics, the proliferation of firearms, and organized violence has also been well-established since the Prohibition Era and through modern times, from Al Capone to Oliver North to Freeway Ricky.
Probably the most frustrating thing about the modern Prohibition era (aka the War on Drugs) is that the most common street drugs the possession of which we prosecute locally are presently being sold legally somewhere in the United States by corporate America. Duragesic (fentanyl skin patch), Fentanyl Transdermal System, Sublimaze (injectable), and Actiq (fentanyl citrate, oral transmucosal), inter alia, are approved by the FDA and distributed legally in the United States for a variety of medical uses. Methamphetamine is also FDA approved and distributed legally in the United States in tablet form by three companies named Recordati Rare Diseases, Inc. in New Jersey, Hikma Pharmaceuticals from London (each of whom market it as Desoxyn), and Mayne Pharma out of North Carolina, which markets it as plain old, unadulterated methamphetamine hydrochloride.
Also, FDA approved and available for distribution to men, women, and children alike for ADHD is dextroamphetamine, under the brand name Aderoll, which purports to calm hyperactive children down by over-amping them with amphetamine. How wonderfully paternalistic.
Hypocrisy? Of course. It’s “Do as we say, not as we do” politics. But remember what Gordon Gekko (Michael Douglas) told us in the movie Wall Street?) Greed is good for America. In other words, subsidizing pharmaceutical companies with massive government expenditures on law enforcement to enforce these pharma-corporate monopolies benefits all of society through supply-side, trickle down Reaganomics….somehow, right?
A few critical caveats, however, before I end this superfluous tirade… First, the weaponized use of fentanyl is entirely a different subject and should be treated as assaultive behavior up to and including murder when someone dies and intent can be proven. Second, the manufacturing of controlled substances is an entirely different subject where volatile chemicals are involved and should be regulated by felony prosecution and sentencing per statute. Third, as with the new marijuana laws, distribution or sale to minors of any controlled substance should always be felonious and prosecuted to the maximum extent of the law. Fourth, commercial services that might cause harm to third parties under the influence of controlled substances should remain felonious and prosecuted to the fullest extent of the law, and that goes for both illegal “medications” and legallyprescribed medications. The same holds true for misdemeanor driving under the influence of drugs or alcohol, which should always be unacceptable and fully prosecuted. Outside of these caveats, sentencing for felony possession with intent to sell or transportation for sale of controlled substances should, until real legislative reform similar to Portugal’s sweeping policies, continue as it normally has been. That is, sentencing should begin from the midterm and be adjusted upwards or downwards depending on aggravating and mitigating factors, ad enumerated in the Penal Code and California Rules of Court.
One final aside: I don’t, however, support trumping up drug cases to felonies without clear evidence of the intent to sell, in the form of communications recovered from cell phones, actual controlled buys, or other reliable and tangible evidence. Too often, we see cases that are trumped up to a felony drug sales or intent to sell cases in order to just strong arm a defendant into agreeing to supervised probation, when really there is no evidence of intent to sell, beyond the “expert opinion” of a POST certified officer. The problem with that sort of evidence is that the term “expert” in court doesn’t have the same meaning as “expert” outside of court. You wouldn’t want an expert heart surgeon operating on your body, or an expert commercial pilot flying you across the country with only an eight hour seminar in the identification of body parts or plane mechanisms. Much of the felony drug prosecution “business” is unfortunately based on third party opinion and speculation about a person’s intent. Drug felonies are tossed around by prosecutors as if they didn’t create lifelong barriers to employment and economic stability. Greater care should be taken by prosecutors in assessing what probable cause requires when “expert opinion” (which is just a glorified form of speculation by a uniformed agent of the state) of a defendant’s intentions is not corroborated by observable evidence, such as a controlled buy or recovered text messages tangibly demonstrating intent.
My real point is this: If we want felony drug offenders to become productive citizens and reconnect with mainstream society, then we are going the opposite direction by creating barriers to their employment by mainstream society.
Adrian Kamada
Simple drug possession under California law is generally a misdemeanor offense and subject to a statutory diversion under Penal Code section 1000. As with many laws there are a few exceptions to that general rule based on the offender’s prior criminal history and prior opportunities at a drug diversion.
The basic process is that when a person is accused of simple drug possession the D.A. will charge them with misdemeanor simple possession. At the first stage of the criminal proceedings, the arraignment when a defendant goes before judge and is informed of the specific charges, the D.A. is required to inform the defendant of their eligibility for statutory drug diversion.
Most people are eligible for that drug diversion program, which requires the defendant to complete a drug education element and a substance abuse assessment. If the defendant successfully completes those conditions of the diversion they are entitled to a dismissal of the misdemeanor drug possession charges.
As part of my due diligence as D.A. I intend to review the programs, in particular the education element, to see what specifics are being taught regarding the high risks of all drugs but particularly fentanyl, which is commonly mixed into many other drugs including heroin, methamphetamine, cocaine, and even cannabis.
Regarding drug dealers, we need to take a multifaceted approach. The arrest and prosecution of drug dealers is necessary, but the state criminal laws about drug dealing have been significantly weakened over the past decade.
Our local Drug Task Force (DTF), which I worked with closely for years, does a solid job of making solid cases beyond the street level dealers. They focus on local distributors and transporters into the county. While the DTF makes good use of their limited resources drugs, particularly fentanyl and methamphetamine, are flooding into our county at alarming rates. Local law enforcement lacks resources to make a serious dent in the drug market.
In addition to enforcement, we must make meaningful efforts to significantly reduce the demand. If there is a market for drugs there will be dealers supplying it. It’s a simple supply-and-demand equation, the same thing that’s at play when you buy a gallon of milk at the market. We must strengthen and expand our prevention and harm reduction efforts to reduce the demand for drugs. Ultimately, this is a public health problem.
In its simplest terms: If you decrease the demand for drugs you decrease the activity of the drug dealers. If you decrease the financial “needs” caused by demand you decrease theft, robberies, and violence. If you lock up a drug dealer there will be another one in their place the next day – we must curb the demand, and it is proven that locking up users doesn’t work.
I commit to seeking collaborative approaches from stakeholders across multiple disciplines to address this paramount problem in our community. It is important that we have the medical experts, treatment providers, and specially trained law enforcement experts all at the table, sharing information and coordinating efforts.
I am honored to have many active and former members of the Humboldt’s specialized law enforcement drug units endorse me for District Attorney, including: prosecutor Investigator Alan Aubuchon; prosecutor Investigator Marvin Kirkpatrick; prosecutor Investigator Tom Cooke; prosecutor Investigator (ret.) Jack Bernstein; Captain Bryan Quenell; Lieutenant Jesse Taylor; Sgt. Conan Moore; Sgt. Josh Comer; Acting-Captain Greg Hill; Agent Chandler Baird; Officer Joey Couch; Deputy Shane Steele; Deputy Spellman Stallworth; Officer Don Arminio; and Officer (ret.) Richard Bergstresser, who is also a co-manager of my campaign. Please visit ak4da.com/endorsements for the full list.
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