De-Felonization: My Approach to Reducing the Cost of Incarcerating Addicts

This post is a reprint of an article to be published in the next issue of The Barrister Magazine[1] by John R. Murphy, J.D., With Research Conducted by Bradley Richardson (U.S.D. School of Law) Several months ago I was able to attend one of the Governor’s Criminal Justice Stakeholder Meetings. These meetings have occurred throughout the state. The purpose of the meetings was to seek solutions to the pending financial problems the State of South Dakota is facing based on the cost of incarcerating criminal defendants. The Governor’s initiative should be applauded. At the meeting I attended, it appeared that his staff was committed to addressing the problem in a meaningful way. His staff made it clear that all suggestions would be considered. In that spirit, I’ve spent several months thinking about the issue. Below is a description of the problem and my proposal for a solution to part of the problem. It is not meant as a panacea for the entire problem, nor is it meant to suggest that other proposals like drug courts and expansion of the 24/7 program are improper or unnecessary. Rather, I believe that a multi-faceted approach that begins by limiting the number of people labeled as felons is the best way of reducing the costs of incarcerating individuals. The reason the Governor and others are putting so much time and thought into this issue is because the situation is dire. If we continue to lock people up at the rates we have done so in the past 20 years, we will need to invest hundreds of millions of dollars building new prisons within the next decade. The statistics are shocking. Our incarceration rate (indexed to population) has increased by 495% since 1980.[2] It doubled between 1980 and 1990, and then almost doubled again between 1990 and 2000. South Dakota incarcerates at a higher rate than any other state in the Midwest,[3] and higher than any of our neighboring states. We incarcerate men at roughly twice the rate of North Dakota, Minnesota and Nebraska. We incarcerate women at over four times the rate of Minnesota, and over twice the rate of North Dakota, Iowa, Nebraska, the Midwest average, and the national average.[4] The economic costs of this trend are substantial. Our women’s prison, which was built just a few years ago, will be out of capacity by 2014. Our men’s prisons will be out of medium security beds by 2020 and out of capacity system wide by 2026. The cost to the state of incarcerating individuals has quadrupled since 1980. If we continue locking people up at the rates we have in the past several years, we will need to begin building new prisons and/or substantially expanding the ones we already have.[5] The rise in our inmate population is not due to an increase in violent crimes, sex crimes or property crimes. Incarceration rates have fallen in those categories over the last two decades.[6] Our prison population has increased because we are locking up more people for drug and alcohol related crimes. Incarceration rates for drug offenses have increased by almost 300% in the last 20 years, and incarceration rates for DUI offenses have gone up by 50%.[7] For years, policy makers have focused on over-incarceration as the issue. Essentially, their solution has been to stop locking people up as a way to reduce prison populations. It sounds obvious and has an immediate appeal. However, it hasn’t been very successful except in states where the legislature has mandated the use of diversionary programs instead of incarceration. If you have a system based on the premise that drug users are felons and subject to penitentiary sentences, drug users are going to end up in the penitentiary. That is the system South Dakota presently has. I am urging the Governor, his staff, and the legislature, to consider a different approach to the problem. Instead of focusing on over-incarceration, I suggest we look at it as an issue of over-criminalization and, more specifically, over-felonization. Over-felonization, as I am using the word, means making too many crimes felonies, and, thus, subjecting too many criminals to penitentiary sentences. My emphasis on over-felonization stems from the efficient ways it addresses the issue. People can only be sent to prison if they are convicted of a felony. Thus, if fewer people are convicted of felonies, fewer people can go to prison. One way of limiting the number of people convicted of felonies is to make fewer crimes felonies. This will limit the number of crimes for which a judge may impose a penitentiary sentence. This approach is radically different that the approaches most often mentioned when the issue of over-incarceration is discussed. Many good people with great intentions have focused a tremendous amount of time and thought to create alternatives to incarceration for felony offenders. Programs like the 24/7 program, community corrections facilities, halfway houses, and increased funding for treatment programs, are all attempts at preventing recidivism and lowering the cost of managing felons. And, they are all good ideas. But, they strike me as expensive and inefficient ways of addressing the problem from the back end, rather than preventing the problem from occurring in the first place. Every day in South Dakota’s courts a common scenario occurs. A defendant appears in felony court for possession of a controlled substance. That substance could be something as dangerous as methamphetamine, as innocuous as hashish, or as common as prescription pain pills. There are hundreds of drugs for which the penalty in South Dakota is a 5 or 10 year felony. And, under South Dakota law, the defendant’s possession does not mean that he is an actual possession of any useable amount of the drug. If there are metabolites of a controlled substance in the defendant’s blood or urine, or if there are trace amounts of the drug found in a baggy, snort tube, or other item within the defendant’s control, possession has occurred. In South Dakota, it is a class 4 felony, punishable by up to 10 years in prison, to have any amount of most controlled substances in your urine, or any testable amount, however small, in your possession. Forensic scientists are able to test microscopic amounts of a substance. Further, possession of a single pill that is listed as a controlled substance is a felony if you do not have a prescription for it. Thus, the spouse who gives her husband one of her leftover pain pills to ease an aching back is committing a felony (distribution of a controlled substance), as is her husband who takes the pill (possession of a controlled substance). Every day defendants face a felony record and years in prison for having miniscule amounts of a controlled substance in their possession or in their urine. The vast majority of defendants enter a guilty plea to the charge as these cases are typically tough to beat absent proof that the search or seizure of the defendant was unconstitutional. First time felony offenders for offenses such as those described above rarely go to prison absent aggravating circumstances. Most of these individuals are sent to jail for a relatively short period of time, and are placed on probation for a few years. Thus, it may seem like the felonization of the defendant does not impact our incarceration rate. This process, however, starts an almost inevitable chain of events that leads to the increase in our prison population and our present problem with over-incarceration. To understand this, we must acknowledge some obvious factors within the criminal justice system. First, we are often dealing with addicts. The defendant who had methamphetamine in his urine or a trace amount of cocaine in a snort tube probably wasn’t caught the first time he used. He used before and it is likely he’ll use again. These are highly addictive substances. Addicts use. Recovering addicts relapse. Complete recovery is possible, but it is the exception and not the rule. Thus, many felons that got probation and a local jail sentence for their first offense are going to be back before the court system on a probation violation. Most drug defendants who get probation are required to do regular or random urine analysis tests. Ask any judge what the most common reason for probation violations are and you are likely to hear, “Hot UA.” This brings us to the second factor. Probation violators and repeat offenders are more likely to get sent to prison than first time offenders. Discuss this matter with any prosecutor or judge. The odds of a defendant being sent to prison go up exponentially if they are a repeat offender. And, probation violators in South Dakota often face a double whammy. Because South Dakota makes it a crime to have any amount of a controlled substance in your urine, the guy who tests positive for a controlled substance while on probation may be hauled back before the court for violating his probation (and face a penitentiary sentence for that act) and be charged with a whole new crime of possession of a controlled substance. There is no double jeopardy protection for being prosecuted for the probation violation and the new crime for the same act. To make matters worse, because the defendant is now before the court on a new felony, he is subject to the habitual offender laws, which increase his penitentiary exposure. Thus, a guy can get a 10 year suspended sentence for possessing a tiny amount of methamphetamine. But, when he tests positive for methamphetamine while on probation, he can face imposition of that 10 year sentence for violating probation, and he can be charged with another count of possession, which now carries a maximum penalty of 15 years under the habitual offender law. Not only is the defendant facing huge consequences, but the court system is bearing the costs of handling multiple felony prosecutions for garden variety addict behavior. This is how the initial felonization of a defendant for personal use of controlled substances and hashish lead to a situation where that defendant is likely to be sent to prison. By making the person a felon in the first place, we have made it more likely that the person will end up incarcerated. A common response to this scenario is to say that the defendant got what he deserved. If a guy doesn’t “turn his life around” after being given a break, he deserves a consequence. That response, regardless of its appeal to base morality, does little to address the problem. How much do we want to pay to teach someone a lesson? Can addicts be penalized into sobriety? Do we spend millions of dollars of tax payer’s money to make ourselves feel better when an addict doesn’t follow the rules? Incarcerating addicts (and alcoholics) because they are non-compliant only makes sense if you believe that prison is going to make them sober. I’ve yet to hear anyone in the criminal justice system assert that prison makes people sober. Day after day in our court system, folks who have 5, 10 or 15 year prison sentences hanging over their heads choose to use, notwithstanding the consequence they face. It may make us mad, but that is what addicts do. As Mike Huckabee once said, “We’ve got to quit locking up all the people that we’re mad at and lock up the people that we’re really afraid of.”[8] In other words, don’t lock up addicts, lock up rapists. How does de-felonization address this issue? It takes away the possibility of prison for non-compliance. Imagine you are a judge. You’ve sentenced a drug user to a suspended imposition of sentence and probation. He violates by continuing to use. You resentence him to probation, but take away his suspended imposition. You threaten him that if he is back before the court, he will go to prison. He violates again. He is also charged with new felonies. For each of his acts, the legislature has authorized a punishment of up to 10 or 15 years in the penitentiary. How many times can you, as the judge, lecture the defendant before the failure to send him to the penitentiary becomes a mockery of your prior orders? At what point does your failure to send the guy to the penitentiary make a mockery of the legislature’s decision to authorize long prison sentences for the crime? Aren’t judges expected, at some point, to honor the legislature’s determination that this is an offense worthy of the penitentiary? If the crimes are not felonies in the first place, then this whole dynamic goes away. For these reasons, I suggest that the focus shouldn’t exclusively be on giving judges more options (the over-incarceration approach). Drug courts, 24/7 and diversionary programs are great. But, to foist upon the judiciary the responsibility of creating solutions to problems like chronic addiction seems less than fair. This is especially true when the programs don’t work for particular defendants. If a defendant repeatedly violates 24/7, and the legislature has authorized a lengthy penitentiary sentence for the offense, aren’t judges duty bound to make use of the more significant sanction? Thus, my suggestion is that we seriously consider whether many of the offenses that are presently classified as felonies need to be. I am not alone in believing that the de-felonization of conduct is a reasonable response to the over-incarceration issue. William Shepherd, Chairperson of the American Bar Association’s Criminal Justice Section, wrote an excellent editorial on the matter in the Fall 2012 issue of Criminal Justice. Shepherd has identified over-criminalization as one of the Section’s top three priorities for 2013.[9] He is working in conjunction with prosecutors and defense attorneys to explore the area. Shepherd frames the issue as such: “This is not simply a discussion of over-incarceration, but instead an equally important question of what conduct do we actually want to criminalize.” I fully expect that legislators may be reluctant to reduce certain crimes from felonies to misdemeanors, or to limit prosecutions for certain offenses. Few folks get elected if they are considered “soft on crime.” However, legislators working in conjunction with the Governor, prosecutors, the private and public bar, and the judiciary, can address the matter without appearing to have turned South Dakota into the republics of Boulder or Berkeley. It is sound fiscal policy, not liberal social policy. Cautious politicians and policy makers may be guided by how other states have addressed the issue of drug usage and possession of small amounts of controlled substances and hashish. Most states do not make possession of a drug within the body (possession by ingestion) a felony. Many states make actual possession of small amounts of controlled substances a misdemeanor. Numerous states make possession of select drugs, such as hashish, non-narcotic schedule I and II drugs, and possession of all schedule III, IV and V drugs, misdemeanors. Below is a summary of many state’s laws.[10] In Alaska, the use (ingestion) or possession of small amounts of various controlled substances is considered misdemeanor misconduct.[11] Possession of three grams or less of hashish or hash oil is a misdemeanor.[12] Synthetic marijuana[13] and ketamine hydrochloride possession can also be charged as a misdemeanor.[14] Arizona makes it a misdemeanor to use or administer prescription drugs without a prescription, and allows prosecutors to charge the use or possession of controlled substances (except methamphetamine and LSD) as misdemeanors.[15] Arkansas classifies possession of numerous personal use amounts of various controlled substances, including hashish, as misdemeanors.[16] California considers possession of personal use amounts of many controlled substances, marijuana and hashish, as a misdemeanor.[17] Colorado has decriminalized possession of personal use amounts of marijuana, and it makes the use or ingestion of controlled substances a misdemeanor.[18] To help pay for the costs associated with illegal drug use, the Colorado legislature has added Drug Offender Surcharges to most drug offenses (from $200.00 to $4,500.00).[19] In Delaware, the unlawful use of prescription drugs is a misdemeanor, as is the use or consumption of illegal controlled substances, unless statutorily defined aggravating factors exist.[20] Florida considers possession of small amounts of synthetic marijuana a misdemeanor.[21] In Georgia possession of one ounce or less of hashish is a misdemeanor.[22] Idaho makes it a misdemeanor to possess non-narcotic schedule I drugs and all schedule III, IV or V controlled substances, and it makes it a misdemeanor to be under the influence of these substances.[23] In Indiana, possession of two grams or less of hashish is a misdemeanor.[24] Iowa classifies hash and hash oil as marijuana, and possession thereof is punishable as a misdemeanor.[25] Kansas makes possession of most controlled substances a misdemeanor, as is the ingestion of these substances.[26] In Kentucky, possession of hashish, non-narcotic schedule I and II drugs, and all schedule III, IV and V drugs, are misdemeanors.[27] Both Maine and Massachusetts cap the punishment for the possession of many controlled substances at one year, making the offenses effectively misdemeanors.[28] Michigan lists the possession of a wide range of controlled substances and hashish as misdemeanors, and makes it a misdemeanor to use (ingest) cocaine and methamphetamine.[29] Mississippi makes the possession of less than one dose (.1 gm) of all controlled substances an offense that may be charged as a misdemeanor, as well as possession of less than 50 grams or 100 doses of schedule III, IV and V drugs.[30] This presumably also covers use and ingestion, as the amount of drugs existing within a person’s urine or blood would be less than a dose. In Montana less than a gram of hashish is a misdemeanor.[31] Five grams or less of hashish is a misdemeanor in New Hampshire.[32] In New Jersey, ingesting, using or being under the influence of a controlled substance, and possession of less than five grams of hashish, constitutes the misdemeanor crime of being a “disorderly person.” This offense carries a huge fine but little chance of incarceration.[33] New Mexico makes possession of a variety of controlled substances a misdemeanor.[34] In New York, possession of small amounts of controlled substances is a misdemeanor. For instance, possession of up to one half gram of cocaine is a misdemeanor.[35] In North Carolina, possession of many schedule II, III, IV and V substances, and possession of some synthetic marijuana products, are punishable as misdemeanors.[36] In North Dakota, ingestion of a controlled substance is a misdemeanor.[37] Ohio makes it a misdemeanor to possess some schedule I and II drugs, up to 10 grams of hashish, or to possess any schedule III, IV and V substances.[38] Oklahoma treats hash like marijuana and allows for misdemeanor possession of it as well as schedule III, IV and V substances.[39] Pennsylvania makes possession of controlled substances and less than eight grams of hashish a misdemeanor.[40] South Carolina makes first offense possession of all controlled substances (including cocaine, heroin, LSD, and methamphetamine) a misdemeanor, possession of hashish a misdemeanor, and possession of many controlled substances (whether or not a first offense) a misdemeanor.[41] In Tennessee, possession or the “casual exchange” of all controlled substances is a misdemeanor, and hashish is treated the same as marijuana.[42] Our state could save substantial money by making a few changes to our present drug laws. We could make possession of any controlled substances within one’s body a misdemeanor. No longer would a person face 10 years in prison for simply being a user of controlled substances. We could make possession of personal use amounts (e.g. one gram or less) of other controlled substances a misdemeanor. No longer would a person caught with a baggy with some residue be labeled a felon or face 10 years in prison. And, we could treat small amounts of hashish like we treat personal use amounts of marijuana: as misdemeanors. The cost savings to our system could be enormous. Both the judicial system and prison systems could save money. The felony court system is remarkably complex and cumbersome. Defendants are typically initially charged in magistrate court. After a couple of court hearings, an indictment or information is returned, and the case is transferred to felony court. Once in felony court, even if the defendant has no defense, several court hearings occur. If the defendant pleads guilty, a pre-sentence report is commissioned. This requires that a probation officer spends substantial time interviewing the defendant, reviewing court records and gathering data. The defendant is then sentenced, and possibly put in prison. In comparison, the magistrate court system (where misdemeanors are handled) is relatively simple. No transfer from one court to the other occurs. Pre-sentence reports and interviews are not required. And, no prison term can be imposed. That is not to suggest magistrate courts could not adequately handle the cases. Magistrate judges can mandate completion of drug or alcohol treatment as a condition of the sentence just as felony court judges can. The money saved within the court system and by reducing prison numbers could be diverted to funding the drug treatment programs that addicts need. After all, there is almost universal agreement that access to treatment, not access to prison, is what is going to solve the issue of chronic addiction. [1] This article was written by John R. Murphy. However, substantially all of the research for the article was conducted by Bradley Richardson, a third year law student at the University of South Dakota. Mr. Richardson’s research was invaluable to the project. Notwithstanding the demands of school and his summer internship, Mr. Richardson prepared a summary of the drug laws of every state in the nation. These codes are often complex and rules related to drugs are often scattered throughout many titles and chapters, yet he persisted in finding and summarizing the rules for every jurisdiction. His thoroughness, promptness and efficiency were greatly appreciated by the author. And, when compensation was offered for his work, Mr. Richardson insisted that instead of compensating him, a donation to the Native American Law Students Association would be more appropriate. [2] In 1980 we incarcerated 84.54 persons per 100,000. In 2010 we incarcerated 416.92 people per 100,000. [3] Illinois, Indiana, Iowa, Kansas, Michigan, Minnesota, Nebraska, North Dakota, Ohio, South Dakota, and Wisconsin [4] South Dakota incarcerates 100 women per 100,000. The U.S. average is 59 per 100,000, and the Midwest average is 53 per 100,000. [5] And, this doesn’t account for all the indeterminate costs of a large population of incarcerated individuals: children and spouses put on welfare when a wage earner is incarcerated; increased involvement by social services agencies; lost revenue when people are incarcerated rather than working and living in our communities; etc. [6] Between 1991 and 2011, the percentage of people locked up for violent, sex or property crimes dropped by 14%. [7] In 1991, 6% of inmates were incarcerated for drug cases, but by 2011 drug crimes accounted for 17% of the inmate population. In 1991 DUI cases accounted for 8% of the prison population, but that had rises to 12% by 2011. [8] GOP Presidential Forum, Morgan State University, September 27, 2007 [9] Over-criminalization is broader than over-felonization. Over-criminalization considers whether certain acts should be considered criminal at all. I haven’t gone that far in this article, as I don’t see de-criminalization of drugs a solution to the issue. [10] I haven’t summarized every state’s drug laws. There were several state statutory schemes that were extremely complicated to summaries (e.g. Texas), and others whose laws were similar to our own (e.g. Louisiana). However, several generalizations can be made. Almost no states specifically criminalize possession of a drug within one’s body. Most states make it a misdemeanor to possess small amounts of all or most controlled substances. Many states treat possession of small amounts of hashish as a misdemeanor. [11] A.S. §§ 11.71.050/060/100 [12] A.S. §§ 11.71.050/160 [13] An irony of existing South Dakota law is that possession of less than two ounces of marijuana is a misdemeanor, whereas the possession of any quantity of synthetic marijuana is a felony. [14] A.S. §§ 11.71.050/060/160/170 [15] Ariz. Rev. Stat. Ann. §§ 13-3406/3407 [16] Ark. Code Ann. §§5-64-215/419/436/438/439 [17] Cal. Health & Safety Code §§11357/11383/11006.5/11356 [18] Col. Rev. Stat. §§18-19-406; 18-18-403/404/412/418 [19] Col. Rev. Stat. § 18-19-101 [20] Del. Code Ann. 16 § 4751/4761/4763 [21] Fla. Stat. § 893.12 [22] Ga. Code Ann. §§ 16-13-2/21 [23] Idaho Code Ann. §§ 37-2705/2732 [24] Ind. Code §§ 35-48-1-19; 35-48-4-11 [25] Iowa Code §§ 124.101/401/410 [26] Kan. Stat. Ann. §§ 21-5760/5712 [27] Ken. Rev. Stat. Ann. §§ 218A.050/1416/1417 [28] Me. Rev. Stat. Ann. 17 §§ 1102/1107; Mass. Gen. Laws. Ann. 94C §§ 1/31/32 [29] Mich. Comp. Laws Ann. §§ 333.7106/7403/7404 [30] Miss. Code Ann. §§ 41-29-139 [31] Mont. Code Ann § 45-9-102 [32] N.H. Rev. Stat. § 318-B:26 [33] N.J. Stat. Ann. §§ 2C:35-10; 2C:43-3 [34] N.M. Stat. §30-31-23 [35] N.Y. Penal Law §§ 220.03/06 [36] N.C. Gen. Stat. §§ 90-95 [37] N.D. Cent. Code § 19-03.1-22.3 [38] Ohio Rev. Code Ann. §§2925.11 [39] Okla. Stat. 63 § 2-101/402 [40] 35 Pa. Cons. Stat. Ann. §§780-113 [41] S.C. Code Ann. § 44-53-370 [42] Tenn. Code Ann. §§ 39-17-415/418/420