Californians caught growing peyote shouldn’t expect any leniency from the criminal justice system. Judges are required by state law to sentence people to time behind bars for cultivating the psychedelic cactus, no matter the circumstances of the case.
This rule is among the more obscure mandatory minimum sentencing requirements in force in the Golden State. Collectively, mandatory minimums — for selling, producing, transporting, or, for repeat offenders, merely possessing a wide range of substances — have been a major weapon in the war on drugs, and a key driver of mass incarceration in California.
But all that could soon change. A bill on Governor Gavin Newsom’s desk would reverse these policies, leaving it up to a judge to decide whether a given drug offense merits incarceration. If signed into law, the bill, from state Senator Scott Wiener, would be a significant step in the San Francisco legislator’s drug policy reform agenda. For activists, the law could help ease the frustration of two other drug-related bills from Wiener, one decriminalizing psychedelics and one legalizing safe consumption sites, being delayed earlier this year.
At a press conference Friday, Wiener painted a picture of how mandatory minimums for drug offenses came to be, and how they’ve affected Californians.
“California, despite our progressive reputation, was a leader and a pioneer in mass incarceration. In the 1980s and 1990s we increased prison sentences like crazy, and enacted all sorts of sentence enhancements, built dozens of new prisons, and enacted various mandatory minimum sentences where we took discretion away from judges.” As a result of these policies, “we filled up our jails with people who were using drugs” and “people who were addicted.” Those who have been incarcerated on drug charges are disproportionately Black and Latino.
Wiener’s bill, SB 73, would eliminate mandatory minimum sentences for a range of felony drug offenses. Currently, individuals convicted of possession for sale of cocaine, heroin, or meth face a minimum sentence of two years; and transportation for sale of these substances carries a three-year minimum. Offenses like growing peyote and forging a prescription also require judges to sentence defendants to incarceration, not probation. For repeat offenders, merely possessing an illegal substance for personal use can trigger mandatory minimums.
If SB 73 is signed into law, judges would still have the authority to sentence people to prison if they believe that’s warranted by the facts of the case.
Oftentimes, however, people convicted of felony drug offenses — most commonly drug dealing — themselves struggle with addiction, says Jeannette Zanipatin, California state director for the Drug Policy Alliance. “There are drug dealers who are subsistence sellers. They’re selling maybe to provide for their own habit. Some of these individuals also need access to treatment.”
Few prisons and jails in California offer adequate drug treatment opportunities, Zanipatin says, contributing to high incidences of drug overdoses when incarcerated individuals are released.
Another benefit touted by SB 73 supporters is cost savings. While it’s impossible to calculate the exact dollar amount the state will recoup by striking down these mandatory minimums, the fact that it costs $87,000 to incarcerate someone for a year means savings could add up fast. If just 10 people are granted probation who otherwise would be subject to a two-year minimum sentence, the state would save $1.7 million.
Of course, many more people are arrested and charged for felony drug offenses in California every year. Out of 25,000 felony drug arrests in 2020, about 8,000 people were convicted, and more than 1,500 people sentenced to state institutions, according to data from the California Attorney General.
Overall drug-related arrests and convictions are actually down considerably in recent years, following the legalization of cannabis, and other criminal justice reforms. Yet the Golden State remains behind the curve on mandatory minimums. “Oftentimes in California, we say, California tends to lead the way. But not in this case,” Assemblymember Wendy Carrillo of Los Angeles, a cosponsor of SB 73, said at the Friday press conference. “We are, in this case, behind.”
Twenty nine states have passed laws eliminating or reforming mandatory minimums in recent years, Carrillo said, including red states such as Texas and Louisiana.
“This is not a liberal or conservative agenda; it’s really an agenda that puts people first and that gives judges the opportunity to be able to look at the case holistically, and make a decision that is in the interest of public safety and in the interests of the individuals themselves.”
SB 73 represents the third time the state legislature has attempted to reverse mandatory minimums for drug offenses in recent years. This time around, the bill’s only organized opposition came from law enforcement groups and the conservative California Family Council.
Eliminating mandatory minimums for drug offenses might not be particularly radical, but for politicians like Wiener and activists like Zanipatin, SB 73 is just one of many proposed policies that could amount to a fundamental shift in how society treats drugs.
“The criminalization approach to drug use has been a complete failure, a huge waste of money, and torn communities apart,” Wiener said. “And so we’re working to try to take a more treatment-based approach to drug use.” That includes efforts to create safe consumption sites, increasing access to rehab programs, and a proposal to provide financial incentives to help wean people off meth. Wiener also is continuing to push for a bill in the state legislature that would decriminalize psychedelics.
Zanipatin is thinking even bigger. Following Oregon voters last year decriminalizing the possession of nearly all drugs, Zanipatin is hoping SB 73 “could help build the infrastructure in California for all drug decrim within the next few years as well… we’re looking at having a treatment-first as opposed to enforcement-first policy.”
Benjamin Schneider is a staff writer at SF Weekly. Twitter @urbenschneider