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Deciphering drug laws

Variables in California narcotics guidelines make sentencing unclear

Posted: May 2, 2009 8:44 p.m.
Updated: May 3, 2009 4:55 a.m.
 

Drug laws in California can seem as hazy as the effect of the narcotics the laws are designed to stop.

Part of the reason is the way in which the laws were established.

Two documents set the stage for California drug sentencing: the Uniform Controlled Substances Act and Proposition 36.

The Uniform Controlled Substances Act, passed in 1972, wiped away conflicting statutes set by county and municipal governments.

It made state drug laws the uniform measure for punishing drug offenders, said Shiara Davila, Los Angeles County District Attorney spokeswoman.

The Uniform Controlled Substances Act also established schedules, or classifications, for drug offenses. The schedules, which were established by the state legislature with the help of law enforcement and drug counselors, help determine drug-sentencing guidelines.

The schedules also separate drugs by the danger each presents to the community, said Gary Schons, California Attorney General senior assistant. The drug laws are regularly revisited by the state legislature for review with the help of law enforcement and drug counselors, he said.   

But how much they actually help depends upon your point of view.

“Prop 36 and the Uniform Controlled Substances Act create haphazard sentencing,” said John Lovell, legislative counsel for the California Narcotics Officers’ Association.

Schons said sentencing for simple possession — described as an amount possessed for personal use rather than sale — varie — can vary greatly depending on the drug in question.

Under the controlled-substances laws, a person in possession of any quantity of methamphetamine faces felony charges that carry at least two years and as much as six years in state prison.

“The danger of the drug, and the activity associated with the drug, determine how it is prosecuted,” Schons said, explaining the reasoning behind the different sentences.

Methamphetamine is often associated with violent street crime, so the penalties for possession are harsher than for marijuana or hallucinogenic drugs, he said.

In California, if a person possesses up to an ounce of marijuana, the punishment is a $500 fine. A person can be arrested up to three times in two years for simple possession of marijuana. The harshest penalty is mandatory counseling, according the controlled substances act.

Lovell considers this inadequate.

Lovell, a former prosecutor with the Los Angeles County District Attorney’s Office, spends his time lobbying Sacramento on behalf of law enforcement to advocate for stricter penalties for drug offenders.

He said “slaps on the wrists” for drug-possession arrests are the product of Proposition 36.  

Proposition 36, passed in 2000, established mandatory drug treatment and no incarceration for any person convicted of possession, transportation or being under the influence of drug less than three times.

 “It was represented as drug treatment,” said Lovell. “Proposition 36 is decriminalization masquerading as drug treatment.”

Drug sentencing under the Uniform Controlled Substance Act is supposed to punish drug dealers with harsher sentences than drug users might receive. However, Lovell said laws that go soft on first-time drug dealers do little to deter the crime.

An example of this might be found in the case of a local man arrested with hallucinogenic mushrooms.

When David Dunnell was arrested by Santa Clarita Valley sheriff’s deputies in March, the quantity of mushrooms found in his apartment by deputies exceeded the amount that would have constituted simple possession. A sheriff’s detective described the drug seizure  from the Canyon Country apartment as one of largest of its kind in SCV history.

Dunnell had pots in which he cultivated the hallucinogenic mushrooms, scales used to measure the drugs and all the tools consistent with the production and sale of hallucinogenic mushrooms.

Since Dunnell was in possession of more than a dozen jars full of mushrooms, as well as equipment commonly associated with the drug trade, the sentencing stakes were higher when he came to court, according to the substances act. Under the state substances act, Dunnell faced up to a year in prison.

“This is what we call an enhancement. It elevates the crime and the sentence,” Schons said.

Other enhancements include where the drug is sold, and to whom. If the drug is sold in a school zone, for example, or to a person less than 14 years of age, the possession and sale of marijuana rises to felony level, according to the substance-control laws.

Dunnell ultimately was sentenced to 90 days in county jail and 36 months of probation. L.A. County Deputy Public Defender Christina Behle said Dunnell’s light sentence stemmed from his clean criminal record. “He’s not a hardened criminal,” she said.

“That happens more often than it should,” Lovell said about Dunnell’s sentence. “(Dunnell’s) in the distribution side. The 90 days (in county jail), is an enforced furlough. When he gets out, he going back to selling drugs,” Lovell said.

The answer is repealing Proposition 36 and harsher penalties for repeat offender, he said.

“(The current drug laws) don’t make people accountable, Lovell said.   

 

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