If there’s a common thread that runs through our criminal justice system, it’s drug addiction. Without it, my caseload as a prosecutor would probably be one-tenth of what it is now. That isn’t to say that 90 percent of my cases are drug possession – far from it. But when you see people breaking into houses, stabbing their roommates, stealing your identity, or robbing the local fruit smoothie joint at gunpoint, it’s a safe bet they aren’t living a clean and sober lifestyle.
Nonetheless, because the relationship between drug addiction and criminal activity is so obvious, the drugs themselves remain – and should remain – illegal. But are they criminalized correctly?
Last month, I wrote about Nevada’s new Sentencing Commission, a body tasked with reviewing and evaluating whether or not our punishments fit our crimes. Since then, I’ve kept a legal pad in my office at work, jotting down ideas for reform as I encounter various rough edges in our criminal statutes that ought to be sanded out. Reconsidering the penalties for personal drug possession is a great opportunity for the commission to break out some nice sandpaper.
Current law and the problem
NRS 453.336 makes it a Category E felony to unlawfully possess up to four grams of a Schedule I – IV controlled substance. Schedule I drugs include things like cocaine, methamphetamine, and heroin, of course, although the entire list is immense. Various prescription drugs, including opiates like codeine and hydrocodone, as well as common antidepressants, are lower down the scale but still carry the same punishment for unlawful possession.
(Marijuana is also a Schedule I controlled substance, but even before legalization the penalties for personal possession were far different, and didn’t even allow for jail time.)
Category E felonies require a judge to grant probation in most circumstances, and diversion opportunities through drug court and other specialty courts are common. But unsuccessful completion of these programs or a probation violation or two, and you’re still looking at a prison sentence of 1 to 4 years. For perspective, most forgery crimes also carry a potential penalty of 1-4.
In most cases, simple possession cases are pled down to misdemeanors. In my experience, this has become more and more common with the increased availability of misdemeanor specialty treatment court programs operated out of our justice and municipal courts. But sometimes someone wants his day in court, either because “those weren’t my pants!” (a far more common excuse than you would ever think possible if you’ve never been a public defender), or because they have a legitimate defense to their charge. What then?
Like any felony, they’re entitled to a jury trial. Even the simplest jury trial takes several days, and disrupts the lives of a hundred or so random citizens who must report for jury duty. Among those random citizens are an increasingly large number who simply refuse to convict on a drug charge, and all it takes is one juror voting to acquit to prevent a conviction and forcing the case to be dismissed or re-tried.
Jury trials can be a hell of a lot of fun (there’s a reason so many movies and TV shows feature them), but consume an enormous amount of time and resources that can’t be focused on more serious crimes. And even if that addict is convicted, he’s unlikely to spend any significant amount of time in prison – rather, he’s probably going to ordered to seek drug treatment, just as if he would have taken a misdemeanor deal.
In most jurisdictions I’ve seen, the vast majority of prosecutors would prefer to handle cases like this at a lower level, but that isn’t universally true. I once dealt with a particularly obnoxious DA who wanted a felony plea for 1.4 ounces of marijuana, and once heard a (now retired) rural district court judge describe mere drug possession as a crime of “moral turpitude.” Prosecutorial and judicial discretion are important components of a just system, but the difference between a routine misdemeanor plea deal and a felony conviction ought not depend so much on which prosecuting attorney just happens to get your case.
Update the law to match reality
For the sake of fairness and consistency, simple possession of controlled substances should be made misdemeanors, at least for the first several offenses. It’s already common practice, so why not make it official? And for repeat offenders, penalties could increase based on the number of prior convictions for similar offenses.
I don’t agree with the idea that we should simply decriminalize hard drugs. There’s no such thing as casual heroin or meth use, and often the threat of legal consequences is the only thing that will get someone to start seeking an escape from the monkeys on their back. And legalizing a product doesn’t necessarily eliminate black markets, make it more available (right, marijuana distributors?), or make meth affordable enough to make tweakers stop stealing to get it.
But dropping something from a felony to a misdemeanor isn’t “decriminalizing” anything. A misdemeanor still carries up to six months in jail, which is often the amount of time judges suspend over peoples' heads to ensure they follow through with their drug treatment programs. (If six months doesn’t seem like much, imagine spending even one month in a cell, away from your job, your house, your pets, your family…)
Felonies in drug cases should be reserved for dealers and traffickers, or for unusual circumstances such as bringing drugs into schools or jails.
Orrin, this doesn’t sound very conservative of you
First, how dare you! Second, my political philosophy is predicated on the idea that the raw power of government ought to be judiciously wielded, and that public resources ought to be marshaled in a way that maximizes the cost-benefit ratio to society. A belief that government’s mandate is to maximize individual liberty also requires that the interests of justice be served in matching sentences to conduct.
Treating low level drug possession cases as misdemeanors serves all of these purposes, and is a place where people of all philosophical stripes can find a great deal of common ground.
Orrin Johnson has been writing and commenting on Nevada and national politics since 2007. He started with an independent blog, First Principles, and was a regular columnist for the Reno Gazette-Journal from 2015-2016. By day, he is a deputy district attorney for Carson City. His opinions here are his own, and don’t necessarily reflect any official policies or views of the office for which he works. Follow him on Twitter @orrinjohnson, or contact him at email@example.com.