Drug Laws in California

Two pieces of California legislation were instrumental in deciding how the United States tried to solve the drug problem. The first was the infamous Three Strikes law; the second was controversial Proposition 47. Both exemplified the evolution in how the legal system tried to tackle the issue of the distribution, possession, and use of dangerous drugs: from being hard on crime to being smart on crime. But in the most populous state in America, where do things stand now?

laws in California

Three Strikes

California’s Legislative Analyst’s Office explains that the Three Strikes law was drafted as a response to a number of murders being committed by ex-felons, which raised local (and national) concerns that violent offenders were being released from the prison system to commit new crimes, sometimes crimes that were far more egregious than their initial charge.

offenses and prison

According to the office, state and local justice systems have the hardest time managing repeat offenders. The fact that they commit serious crimes upon their release from prison renders them unresponsive to the tactic of incarceration in order to improve their behavior, as they evidently are undeterred by the threat of future prison time.

In 1994, the California legislature passed what is commonly known as the “Three Strikes and You’re Out” law, which requires a minimum sentence of 25 years to life for offenders who commit a third offense, with pre-existing serious or violent felony convictions to their name. The law imposed longer prison sentences for certain repeat offenders, on the basis that violent felons would be removed from society for longer periods of time, and threatened individuals who were previously convicted of one or more serious felonies that even a non-serious and nonviolent charge (such as receiving stolen property) would be treated with the same legal weight as more grievous charges.

Despite opposition, the law had an immediate effect. By the end of the 10th year of the law’s existence, it had sent almost 43,000 offenders to prison, which accounted for 26 percent of California’s prison population. By 2005, the rate of growth had slowed, as the so-called “second strikers” were sufficiently deterred by the threat of a third strike and paroled out of jail upon completion of their sentence.[1]

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Cruel and Unusual

California’s crime rates dropped as the prison population soared, but that presented another problem. While the state’s general population grew by 57 percent between 1980 and 2010, its prisons grew by 570 percent in that same time period, as even the most trivial and petty of infractions were given equal weight as charges relating to drugs, assault, and sex crimes. In calling the Three Strikes law “Cruel and Unusual Punishment,” Rolling Stone magazine writes of how a man with two prior convictions was sentenced to life behind bars for stealing a pair of socks worth $2.50. Another man stole a pair of baby shoes; another stole a slice of pizza. Both received life sentences.[2]

Reason magazine went further, claiming that the once-popular Three Strikes law was the most draconian legislation in America. As California’s prisons surged with inmates sentenced to long jail times for any crimes they committed (regardless of the severity), the prison system could not keep up. Healthcare standards failed, basic housing deteriorated (prisoners had to sleep in stairwells, for example), and the inmate suicide rate was 80 percent more than the national average.[3], [4]

In 2011, the U.S. Supreme Court decided 5-4 that the conditions created by California’s prison systems violated the “cruel and unusual” provisions of the Eighth Amendment. In doing so, the court ordered California to reduce its prison population by 30,000 inmates.[5]

inmate suicide rate

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From ‘Tough’ to ‘Smart’

The beginning of the end of the Three Strikes law was a significant moment in California’s legal history, but the effect this would have on drugs would be seen in the next landmark.

Once the flaws of the “tough on crime” approach were made visible (and prominent), the focus shifted to being “smart on crime,” with even prominent members of the Republican Party – the same party that had spurred on the efforts to implement the Three Strikes law – agreeing that long prison sentences for nonviolent offenders was the wrong solution.[6] California lawmakers devised a solution to recategorize nonviolent felony charges, such as drug possession, to misdemeanors, The solution was supported by The New York Times, which praised California for realizing that simply locking people up did more harm than good. Recategorizing low-level drug offences would reduce the prison sentences of up to 10,000 inmates by half a year, saving anywhere from $750 million, to $1.25 billion, In turn, that money would be invested in mental health and drug abuse treatment programs, both for returning inmates and to keep people out of jail overall.[7], [8], [9]

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Proposition 47

proposition 47

The solution had a name: the Reduced Penalties for Some Crimes Initiative, also known as the Safe Neighborhoods and Schools Act and commonly referred to as Proposition 47. Inmates convicted of crimes that are not legally considered serious, violent, or sex-related would be sent to county jails, not state prisons. Up to 7,000 prisoners would be eligible to petition the courts for an early release, and 40,000 felony convictions could be downgraded to misdemeanors. Drug possession accounts for some of California’s most common crimes (along with shoplifting, petty theft, and writing bad checks), and 20 percent of people convicted of those offenses could see their penalties either reduced or completely nullified. This would mean that someone guilty of one of these crimes would no longer have the burden of a felony conviction lingering in a background check.[10], [11]

The fact that drug possession fell under Proposition 47’s recategorization puts the evolution of Californian drug laws – from the “tough on crime” Three Strikes law, to “smart on crime” Prop 47 – in perspective. With Proposition 47, California became the first state in the country where possessing and using any form of drug – from marijuana to the date rape drug Rohypnol – was no longer a felony.[12] Even being caught with methamphetamine or heroin (a Schedule II drug and a Schedule I drug, respectively) would only result in a misdemeanor charge.[13] In a report entitled “Walking Out of Jail,” Al-Jazeera America writes of a man sentenced to six years in jail for possessing a small amount of cocaine, being released a week after Proposition 47 was approved, with four years of his time served.[14]

The bill’s effects were lauded not just by money- and vote-centric politicians, but by drug addiction experts as well, who explained that the way to deal with drug possession and use evolved from the days of just throwing people in jail and hoping that the problem would sort itself out. The Huffington Post wrote that since crimes rates are lower than they were during the days before the Three Strikes law in 1994, and members of the general public don’t live in the same fear that they used to, scaling down drug charges is seen as the better approach to tackling the drug crisis.[15]

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Changing the Incarceration Nation

Being “smart on crime” seems to be the order of the day, after the “tough on crime” era led the United States to becoming the “incarceration nation,” in the words of the American Psychological Association: despite the country having 5 percent of the world’s population, and 25 percent of the world’s prisoners, the dent made by mass incarcerations in the drug trade was negligible.[16] Refocusing the crime and punishment efforts away from low-level dealers and users, and focusing more on treatment and rehabilitation, would gradually erode the reach of the cartels and the crime bosses.

That part of the idea has had some encouraging results, with the U.S. Border Patrol reporting that the amount of marijuana seized on the Mexican border has been gradually dropping since a number of states legalized the distribution and possession of legal cannabis. While South American cartels are still smuggling harder drugs into American cities, TIME magazine suggests that the “smart on crime” approach to marijuana is enjoying some measure of success in how it has impacted illegal smuggling and distribution of marijuana in the United States.[17]

Unlike the states that have legalized marijuana, California still considers the recreational possession of marijuana a crime, hence the Sacramento Bee describing Proposition 47 as the state still “embracing” being “smart on crime.”[18]

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California and Medical Marijuana

When it comes to medical marijuana, however, California has led the way (much like how the Three Strikes law and Proposition 47 were hugely influential beyond the West Coast). But the state’s complicated relationship with the federal government over the legality of selling marijuana for medical purposes is an ironic echo of the crossroads at which California finds itself.

While six other states (and the District of Columbia) have enacted cannabis legalization (or decriminalization) laws, California was the first state to legalize marijuana for medical use. In 1996, Proposition 215 was passed with 56 percent of the vote, allowing patients with cancer, AIDS, arthritis and other chronic illnesses the legal right to purchase, grow and use marijuana with a doctor’s recommendation. Prop 215 also protected doctors who recommended that their patients use medical marijuana, and called for government on the federal and state level to collaborate to ensure that patients who needed marijuana for medical purposes were able to obtain cannabis safely and efficiently.[19]

legalize marijuana

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The Murky Landscape

california cannabis law

However, the fear of the medical marijuana industry being used as a front for dealers and smugglers of (still illegal) recreational marijuana has led to what the Los Angeles Times calls a “murky landscape.” Even as Congress refused to challenge California’s medical cannabis laws, it still categorizes marijuana alongside heroin and LSD, two drugs with no legitimate medical use.

While Proposition 215 (and its various amendments) protects medical marijuana dispensaries from investigations and raids by California state authorities, federal prosecutors are nonetheless attempting to seize marijuana and other assets from medical marijuana dispensaries, including the largest such facility in the country (located in Oakland), which serves 150,000 medical marijuana patients in the city and has produced a tax windfall for a city that the Times says is “cash-strapped.”[20], [21]

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California vs. the Federal Government

The controversy has united California’s Republicans and Democrats, who decry what they see as government overreach by the Department of Justice in suing medical marijuana dispensaries. The U.S. Attorney Melinda Haag sued the Oakland dispensary in 2012, claiming that what appears to be a dispensary for medical marijuana is “large-scale commercial enterprise,” a move that California legislators claim is unlawful.[22]

One of those legislators, a “very patriotic Republican,” argued in favor of “changing the drug laws of our country because [they are] inconsistent with the freedom of our people.”[23] A federal judge agreed, ruling that federal drug enforcers are prohibited from going after medical marijuana dispensaries, as long as those dispensaries follow California laws. The Department of Justice cannot spend any money to prevent California (or other states) from implementing their own laws, with regard to the legal use of medical marijuana.

The judge further pointed out that there is evidence that the medical marijuana dispensaries that had been closed by the Justice Department had deprived patients with breast and prostate cancer local access to a drug with established medical benefits.”[24]

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The Changing Drug Laws of California

In the same way that a “very patriotic Republican” advocated changing California’s drug laws on medical marijuana, California finds itself at a crossroads on the question of all other drugs. Notwithstanding the improvement of the prison system and astronomical savings created by Proposition 47, what this does to the state of drug laws in California has raised many questions.

Chief among the skeptics is the law enforcement system itself. The National Association of Drug Court Professionals, a nonprofit drug court organization that seeks to use the judicial system to help people with addiction problems change their lives, warns that by recategorizing drug possession charges from felonies to misdemeanors, there no longer exists a viable (or effective) method of legal accountability or incentive to rehabilitate drug users.

Specifically, says the association, removing the threat of a felony conviction if such people do not adhere to a court-mandated treatment program (updating probation officers, checking in to treatment programs, performing community service, etc.), there is nothing to prevent people with drug addictions from resuming their behavior once they are discharged from the courts.[25]

laws in california

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James Rabenberg

Police officers have expressed similar issues with what Prop 47 does for California’s drug enforcements, for different reasons. A former chief of police of Los Angeles, who now serves as a city councilman, argued that Proposition 47 will rob potential addicts and criminals of any incentive (or coercion) to change their ways.[26]

The point is vividly illustrated by the Washington Post, which quotes San Diego’s police chief as saying that Prop 47 is a “virtual get-out-of-jail-free” card. The Post tells the story of a 36-year-old homeless resident of San Diego named James Rabenberg, who had been arrested in a park for possessing a small amount of methamphetamine. On that day, November 4, 2014, his crime was a felony; by nightfall of

that same day, it was a misdemeanor. Under the previous drug law in California, Rabenberg would have spent more than a year in jail or a year in a drug treatment program; however, since his crime was now merely a misdemeanor, he faced a small fine, a short period of probation, and immediate release.

Since Rabenberg had no prior convictions and no history of violence, a public defender held up Rabenberg’s case as “the ideal example” of what Proposition 47 was meant to do. The presiding judge charged Rabenberg $700, gave him three years of probation, and rescheduled the hearing for December, telling Rabenberg that his release was an “opportunity.”

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Six Arrests in Four Months


Rabenberg was arrested for meth possession on January 2 and released the following day. On February 6, he was arrested for possessing drug paraphernalia and issued a citation. He was arrested for drug possession on February 19, March 1, March 8, and April 1.

By April 26, summarizes the Post, James Rabenberg had been arrested for six misdemeanors in less than four months and released every single time, all under the aegis of Prop 47. Even after being arrested for brandishing a deadly weapon while possessing drugs (both misdemeanors), Rabenberg was released 72 hours later, then arrested again the following month; and again a month after that. Then again that same month, and again a few weeks later.

All the while, the San Diego city attorney and police chief looked at thousands of cases like Rabenberg’s and asked each other what it would take to change the behavior of the so-called “frequent fliers,” who would rather do a few days of jail time and then return to their drug use than the court-mandated treatment programs of the previous laws.

Those struggling with addiction, says the city attorney, don’t work on the honor system. Since Rabenberg wasn’t causing trouble and refused to seek help, there was nothing anyone could do for him.

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‘Catch and Release’

By the time the Post story was published in October 2015, Rabenberg had been arrested 19 times, so much so that someone in the San Diego courts had written “Enough!” on his case file. He was not present for his scheduled court date.[27]

A police officer in Huntington Beach, Orange County tells NPR that the heroin users he arrested, who were also in possession of stolen property, were released while the officer and his partner were still doing the paperwork.

Despite the headaches Proposition 47 has given law enforcement, the people at the center of the controversy – those addicted to drugs — prefer their freedom under the new drug law, saying it’s preferable than spending significant time in jail for a problem they cannot control. However, with property crimes rising as a result of low-level dealers and users committing robberies to feed their habits, police can do nothing but issue citations.

Supporters of Proposition 47 point to other Californian cities, where crime rates haven’t spiked, and suggest that police are merely resentful toward the new drug laws. In response, police say they are trying to adapt, sometimes appointing specially trained officers to liaise with homeless populations.[28]

possession and arrest

The impasse suggests that the novelty and goodwill of Proposition 47 – easing California’s burdened prison system, and being smarter on drug crime and saving hundreds of millions of dollars – are running out, replaced by drug users who are not motivated by the promise of freedom and police who are frustrated at enforcing drug laws that they feel are too lenient.

The New Yorker wonders if California will lead the way on prison reform – again, like how the state led the way on mass incarcerations and like how the state led the way on medical marijuana. The Golden State has taken ambitious and progressive steps on trying to win the drug war. While it has learned from its mistakes, the discontent surrounding Proposition 47 and the state’s tussles with the federal government suggest that there is a lot more learning to be done.[29]

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[1]A Primer: Three Strikes — The Impact After More Than a Decade.” (October 2015). Legislative Analyst’s Office. Accessed January 25, 2016.

[2]Cruel and Unusual Punishment: The Shame of Three Strikes Laws.” (March 2013). Rolling Stone. Accessed January 25, 2016.

[3]California’s “Cruel and Unusual” Prisons.” (February 2015). Reason.com. Accessed January 25, 2016.

[4]Californians Vote to Weaken Mass Incarceration.” (November 2014). The Atlantic. Accessed January 25, 2016.

[5]Justices, 5-4, Tell California to Cut Prison Population.” (May 2011). The New York Times. Accessed January 25, 2016.

[6]Republicans Join Fight to Reduce Prison Terms for Drug Crimes.” (March 2015). NPR. Accessed January 26, 2016.

[7]California Leads on Justice Reform.” (October 2014). New York Times. Accessed January 25, 2016.

[8]California Just Became the First State to De-Felonize Drug Use.” (November 2014). Vice. Accessed January 26, 2016..

[9]California Votes Make Possession of Most Drugs a Misdemeanor Offense.” (November 2014). Reason.com. Accessed January 26, 2016.

[10]Prop. 47 Would Cut Penalties for 1 in 5 Criminals in California.” (October 2014). Los Angeles Times. Accessed January 25, 2016.

[11]California Proposition 47, Reduced Penalties for Some Crimes Initiative (2014).” (n.d.) Ballotpedia. Accessed January 26, 2016.

[12]What Does California’s Proposition 47 Have to do With Date Rape?” (October 2014). Los Angeles Times. Accessed January 26, 2016.

[13]A Proposal on California’s Ballot Would De-Felonize Drug Use.” (November 2014). Vice News. Accessed January 26, 2016.

[14]”Walking Out of Jail”: Prop 47 Frees Felons With Downgraded Charges.” (November 2014). Aljazeera America. Accessed January 26, 2016.

[15]California Voters Deal Blow to Prisons, Drug War.” (November 2014). The Huffington Post. Accessed January 26, 2016.

[16]Incarceration Nation.” (October 2014). American Psychological Association. Accessed January 26, 2016.

[17]U.S. Legalization of Marijuana Has Hit Mexican Cartels’ Cross-Border Trade.” (April 2015). TIME. Accessed January 26, 2016.

[18]Prop. 47 Victory Shows California Embracing “Smart on Crime” Approach, Supporters Say.” (November 2014). The Sacramento Bee. Accessed January 26, 2016.

[19]23 Legal Medical Marijuana States and DC.” (January 2016). Procon.org. Accessed January 27, 2016.

[20]A Year After Congress Voted to End War on Medical Pot, Raids Continue in California.” (December 2015). Los Angeles Times. Accessed January 27, 2016.

[21]Oakland’s Largest Marijuana Dispensary Under Threat From Department of Justice.” (February 2015). KRON4. Accessed January 27, 2016.

[22]Oakland: U.S. Reps Say Feds Overstepping by Suing Medical Marijuana Dispensary.” (February 2015). San Jose Mercury News. Accessed January 27, 2016.

[23]Congressman San Francisco Blasts Medical Pot Prosecutions.” (February 2015). SF Gate. Accessed January 27, 2016.

[24]Federal Ruling Protects Pot Dispensaries that Follow State Law.” (October 2015). SF Gate. Accessed January 27, 2016.

[25]NADCP Opposes California’s Proposition 47.” (n.d.). National Association of Drug Court Professionals. Accessed January 26, 2016.

[26]Prop. 47 is Achieving Its Main Goal, But With Unintended Consequences.” (January 2015). Los Angeles Times. Accessed February 8, 2015.

[27]In California, Prop 47 Has Turned into a Virtual “Get-Out-of-Jail-Free” Card.” (October 2015). Washington Post. Accessed January 27, 2016.

[28]California Cops Frustrated With “Catch-And-Release” Crime-Fighting.” (January 2016). NPR. Accessed January 27, 2016.

[29]Will California Again Lead the Way on Prison Reform?” (November 2014). The New Yorker. Accessed January 27, 2016.