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"De-felonizing" Drug Possession: The Sky Will Not Fall

Jail Inmate CaliforniaIt wasn't MEANT to be the biggest announcement during the Prison Relocation Commission meeting on October 22.

But because there was (once again) no public confirmation as to where Utah's new prison would be built, the media (Fox13, Deseret News) and others jumped on this tidbit of news:

As part of his presentation on the state's Justice Reinvestment Initiative (JRI), Ron Gordon, Director of the Commission on Criminal and Juvenile Justice, mentioned that after months of data review and dialogue, CCJJ's JRI Sentencing Subcommittee would likely recommend that Utah statute be changed so that all simple drug possession crimes would be charged as "A" misdemeanors instead of third-degree felonies. 

The subcommittee's reasoning was simple: Felony drug charges can result in prison sentences; A misdemeanors almost never do. This recommendation was meant to address the following systemic issues discovered by the Pew Public Safety Project found, as part of the JRI data analysis process: 

  • Non-violent 2nd and 3rd degree offenders are driving prison growth in Utah with more admissions and longer time served;
  • Drug possession offenders continue to occupy a large number of prison beds because of longer time served; and 
  • 33& of property offenders and 30% of drug offenders entering prison had one or no prior felony convictions. 


Pew analysts projected that Utah Dept. of Corrctions could empty between 350 and 500 beds - within the next two or three years! - if drug laws regarding simple possession (as well as some tweaks to commercial drug sales laws) were altered. 

This would be an important contribution to potential bed savings over the next 20 years, which we're all desperately hoping for, so that we can build a REPLACEMENT for the Draper prison, rather than an EXTENDED VERSION (requiring 2,700 additional beds by 2033, as projected by the Prison Relocation Commission's consultant). 

The recommendation that simple drug possession be changed from a felony to a misdemeanor, however, has drawn a strong reaction from certain corners of the criminal justice system. In particular, county prosecutors - the district attorneys and their offices responsible for charging people with crimes - feel that this change feel that this changes goes too far.

Another gentle reminder: it was a CCJJ subcommittee, led by former Senator Carlene Walker and inclusive of Salt Lake County District Attorney Sim Gill, that generated this recommendation. It's not as if this idea came out of nowhere - or, even less plausible, from the ACLU of Utah!

In the Fox13 News story by Ben Winslow, Paul Boyden of the Statewide Association of Prosecutors (SWAP) is quoted as saying, "We actually agree that significant reductions are in order, but we are very concerned that reducing the penalty for possession of hard drugs such as heroin and methamphetamines to a class A misdemeanor will not provide enough incentive for the defendant to resolve the case and follow through with treatment.”

Many substance abuse treatment providers, as well as defense attorneys and former addicts, say this concern is unwarranted. There are a variety of reasons that different individuals - depending on their level of substance addiction, as well as other existing criminogenic risk factors - will pursue and complete treatment. And there are also a variety of reasons that people fail treatment. 

The truth is, many of even the most motivated individuals fail a few times on their way to recovery. Continuing to charge individuals with felonies for simple drug possession leaves the door open to sending these people to prison, as well as forcing them to deal with the many serious collateral consequences of being a "drug felon" for the rest of their lives.  

The BBC recently reported on a UK government study that, in examining the respective approaches of 13 different nations to drugs and drug activity, could find no conclusive link between harsh drug laws and lessened drug use. Because the different nations have varying levels of cultural tolerance of drug use, as well as varying historical approaches to drugs (as either a public health or criminal justice problem), we can't assume that there is one single best approach. However, the BBC report introduces a variety of perspectives that challenge the notion that "only the threat of a felony can stop people from using drugs."

Conveniently, we don't need to look so far afield for evidence that drug de-felonization won't cause the criminal justice system to crumble. The federal government has been moving in this direction for several years. The feds no longer charge first-time drug possession as a felony offense, and, as of Nov. 1 of this year, other dramatic sentencing changes are taking effect.

Twelve U.S. states have de-felonized drug possession for at least the first offense, and several of those for subsequent offenses, as well. These aren't all hippy-dippy far-left states, either: South Carolina, Mississippi, Tennessee, West Virginia, Wyoming, and Iowa have all de-felonized simple possession...for ALL drugs. South Carolina in particular has been heralded as a Justice Reinvestment victory, by Pew and other, for the dramatic drop in that state's prison population accomplished by this and other reforms.

Perhaps Utah is just not ready to take this significant step toward criminal justice reform just yet. After all, California only JUST got around to taking on de-felonization. Proposition 47, a ballot initiative approved by California voters just last week, will lower penalties in that state for non-violent drug and property crimes (of course, being California, the state went even further than most states have gone so far). But it's just one step in California's long journey of unwinding decades of destructive "tough on crime" practices that left the state's prisons and jails full beyond bursting. Prop 47 won't cure everything but most reformers consider this kind of change the lowest-hanging fruit on the mass incarceration tree.

Utah shouldn't wait to get to the absolute breaking point - as California has done - before we take the drug de-felonization step. We have a system that is many measures smaller than California's - or South Carolina's, or Mississippi's, or Tennessee's....you get the idea. They are figuring out how to make this long-needed policy change work in their states. Figuring out how to make it work in Utah would be an effort that could save tax dollars, prison beds, and - most importantly - lives, because when we make prison time and a felony record part of the recovery equation, we end up hurting people more than we help them.

If you have any comments, corrections or questions related to this blog, please contact ACLU of Utah Public Policy Advocate Anna Brower at This email address is being protected from spambots. You need JavaScript enabled to view it..

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