Opinion: California’s Prop. 47 revolution: Do prosecutors really need a ‘felony hammer’ to deal with drug offenders?

President Obama shakes hands with Los Angeles Police Chief Charlie Beck during a forum on criminal justice reform last week in Washington. At right is John Walsh, U.S. attorney for the District of Colorado.

President Obama shakes hands with Los Angeles Police Chief Charlie Beck during a forum on criminal justice reform last week in Washington. At right is John Walsh, U.S. attorney for the District of Colorado.

(Pablo Martinez Monsivais / Associated Press)

President Obama’s defense of Black Lives Matter was no doubt the biggest news that came out of last week’s White House meeting with law enforcement leaders. But Proposition 47 came up as well, because Los Angeles Police Chief Charlie Beck was on the panel with Obama, and because just as California was the vanguard of the tough-on-crime movement in the 1970s, it is leading the way now as many people around the nation rethink their criminal justice attitudes and policies.

Proposition 47 is the initiative that California voters passed a year ago to change drug possession and five theft felonies into misdemeanors. After the vote, several categories of crime went up in several cities around the state, including Los Angeles, and the obvious question is whether the ballot measure is directly responsible.

For those who answer “yes,” the explanation has been gradually distilled over many months into two catchphrases: There’s the “hammer.” And there’s the “get-out-of-jail-free card.”


The hammer came up at the White House meeting.

In police and prosecutorial parlance, the hammer is the weapon of choice that gets drug defendants to go to treatment. The hammer is the felony charge, or in some cases, the “wobbler” that prosecutors could choose to charge as either a felony or a misdemeanor. With the hammer of a felony charge in hand, the prosecutor used to be able to tell the defendant that he was looking at three to five years in state prison on a drug possession charge. The defense lawyer might advise his client that his actual exposure was more like 18 months, but still -- that’s real time in prison. Plus a felony rap sheet, which forever after would affect the defendant’s ability to get a job, get a professional license, go to school, get housing, adopt a child, become a foster parent, and interfere with numerous other aspects of daily life.

So the drug defendant could allow himself to get hit with that hammer.

Or, to avoid being hit, he could choose drug treatment. In some counties, even that meant pleading guilty to a felony, with the plea held by the judge but tossed out when the treatment program was completed, or reinstated when the defendant failed. Other counties had “pre-plea” programs, which allowed defendants to complete the program without first entering a guilty plea.

I first heard prosecutors talk about the hammer several years ago when the Los Angeles Times editorial board was considering whether to support a bill to decrease charges for possession of cocaine from felony to misdemeanor. Don’t do it, the district attorneys told us. It will take away our hammer, and we’ll never be able to get an addict to choose treatment.

If ... the felony hammer is the only way to get people ... to change their behavior, how did California ever get by before making possession of many of these substances felonies?

Why not? Isn’t a misdemeanor still a crime, and doesn’t it still carry up to a year in county jail, and wouldn’t defendants still rather take a treatment program than spend a year locked up in a jail that, by all accounts (in Los Angeles County, anyway), is more awful and more dangerous than state prison? Isn’t being hit by a one-pound (or one-year) iron hammer only slightly less painful than being hit with a three-pound sledge?

No, the prosecutors said, explaining that a year means just six months because of mandatory good conduct credits, and that with jail crowding, even that could be reduced to 60 days, and anyone who’d stay for only 60 days was a “short” who wouldn’t spend more than a few hours in the building. No, they said, there could be no drug treatment without the hammer. Drug possession absolutely had to be a felony or a wobbler.

Of course, defense lawyers have a different take. They say the felony hammer is a weapon that prosecutors use to force defendants to plead guilty, inform on a dealer or testify against another defendant. But we decided that the wobbler option was a good one, and that the state shouldn’t completely take away the hammer.

We reconsidered last year when grappling with whether to endorse Proposition 47, after hearing from policy advocates and substance abuse experts and clinicians about the role of the hammer in treatment. There was a lot of evidence suggesting that failure -- multiple failures, in fact -- were part of the treatment process.

To be fair, it appeared that the underlying charge for people choosing treatment was often not merely possession of drugs, but some kind of theft that the defendant allegedly committed to feed his addiction, and we certainly wanted a proven process to change that kind of behavior.

But it also appeared that too many people failed their first treatment program and got walloped with the hammer anyway, and went to prison, where they also didn’t get treatment, and they came home to their old neighborhoods even more desperate than when they went in and were still addicted, but now had felony records and no honest way to get decent paying jobs or (until a recent change in the law) even qualify for food stamps. Too many were destined to go back to prison, with treatment having done them no good.

In his remarks last week, Obama walked through what he said were his administration’s three criminal justice principles -- people should be treated fairly and consistently, the punishment should fit the crime, and incarceration is just one tool to reduce crime and violence. Because if we think that the only tool we have is a hammer, he said, “then everything becomes a nail.”

Maybe it was because he warned about the penchant to overuse hammers, or maybe it’s because the L.A. police chief chooses his words more carefully than many, but Beck, when asked about Proposition 47, poked around for a different tool in the toolbox to make the same point.

There needs to be “a stronger lever for the courts to encourage folks to go into treatment,” he said.

“Lever” is a more apt description than hammer anyway. A lever moves something that is tough to move.

But whether it’s a hammer, a lever or a band saw, the appropriate question is whether police, prosecutors and judges need some kind of weapon or power tool to get people who are committing criminal acts to feed their drug habits to get treatment and, if so, if only the threat of a felony conviction will be sufficient.

If they do, it’s hard to believe that a year in jail is too small a tool to get the addict to go. It’s too small only if it’s completely illusory -- if the defendant accurately believes that he will never serve time. But by keeping more petty offenders out of jail, Proposition 47 greatly reduced overcrowding. That in turn frees up space to selectively put back into jail a few of those very same offenders, if the prosecutor, the court and the sheriff have the ability to determine whether jail will be effective in that particular case in changing behavior.

That ability requires officials to exercise some judgment based on their wisdom and experience. Critics balk at giving these officials that kind of discretion; but when drug possession was a wobbler, society relied on their wisdom and experience to determine whether to charge a particular instance of possession as a felony or a misdemeanor, taking into account public safety, the defendant’s health and the likelihood of recidivism.

Besides, by the time a defendant comes to drug court, there is usually more than one misdemeanor charge hanging over his or her head, including multiple possession and theft counts. That’s up to one year for each count -- a substantial hammer, lever or anything else.

The felony hammer may now be gone, but otherwise not much has changed.

All of that that ignores the question of whether it ever made any sense to treat drug addicts as criminals in the first place. Los Angeles County, after many years of delay, is finally working on a program for diversion from jail and the criminal justice system of offenders who are suffering mental illness. One of their biggest challenges is working out methods for assuring that patients stick with their treatment. Some, it turns out, must be confined in a locked facility. For many, though, proper measures of monitoring, persuasion, counseling and reward are proving effective in administering treatment and changing behavior. For many drug addicts, the answer is likely the same -- and in fact, many drug addicts and mental patients who have trouble with the law are the very same people and require a more effective approach than being cycled in and out of jail.

If we truly believe that the felony hammer is the only way to get people off drugs and to change their behavior, how did California ever get by before making possession of many of these substances felonies in 1972? How do European nations get by now when they treat drugs as a health problem rather than a criminal justice problem? How does Portugal manage to do away with criminal drug penalties altogether?

Beck was correct when he said, at the White House meeting, that society must have somewhere for drug offenders to go. “And it can’t just be 48 hours in the local lockup and then right back on the street,” he said.

He began his comments, in fact, with a public health metaphor. “If you view the criminal justice system as a response to a sickness in America,” he said, “if you view it through the medical aspect, then you have to look at sentencing as a dosage. And I think that we are now experiencing a time in the United States where crime is at a level where we require a different dosage.”

With crimes that spring from drug use, though, the problem may not be that we need to lower the dose, but rather that we have the wrong prescription.

Twitter: @RGreene2

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