Reclassify All Drug Possession Charges as Misdemeanors: Study

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Strategies aimed at reducing the number of drug offenders sent to state prisons need to focus more broadly on scrapping all felony convictions for possession, suggests a new study by the Urban Institute.

The study examined the impact of drug law reforms passed by the Utah legislature in 2015 to downgrade first and second convictions for drug possession from a felony to a misdemeanor.

The legislation, which made Utah one of just five states to “de-felonize” drug possession, led to a 59 percent drop in individuals incarcerated for possession between 2014 and 2014, researchers found.

This represented a mark reversal of a trend in which Utah’s prison population increased 18 percent in the previous two decades, six times faster than the national average. Projections that prison numbers would rise by another 37 percent over the next 20 years —adding an estimated $500 million to the taxpayers’ bill for new prison construction—helped persuade lawmakers to reform the existing sentencing guidelines, as well as invest more money in alternative programs for substance abuse counselling and court diversion programs.

But the sharp decline in Utah’s prison numbers was offset by an accompanying trend of increasing drug arrests during the same period, and an absolute increase in the number of people sent to prison for dealing or distributing drugs under charges of “possession with intent to distribute (PWID),” the researchers found.

The study, based on data from the Utah Bureau of Criminal Investigation and the state department of corrections, found a 209 percent increase in arrests for all forms of drug possession over the same period, as well as an increase in the share of drug offenders who were sent back to prison for technical violations of parole.

“Sharp increases in arrest charges for drug possession were a major driver” in a 22 percent increase in the number of all arrests in Utah that resulted in charges between 2014 and 2018, the researchers found.

The study did not offer an explanation for the contradictory trends, but the figures suggested that despite the drug reform laws, Utah police and courts continued to take a hard line on individuals with repeat arrests for drug possession.

In Utah, a third conviction for drug possession can lead to a felony sentence and prison time. The authors of the study suggested the rise in drug possession arrests threatened to put new ”strains” on the state’s correction system.

“Although this increase in total convictions has not led to a sharp increase in prison admissions or probation starts, it is relevant for anticipating future trends,” the study said.

“As more people receive multiple possession charges in the same arrest and subsequently receive multiple drug possession convictions, more people will be eligible for felony sentences and prison time in the future.”

Noting that there was little evidence that reconviction rates since the Utah legislation was passed remained low—suggesting that the rising number of arrests had little connection with any risk to public safety—the researchers suggested their figures pointed to the continued inadequacy of public health responses to drug abuse.

In Utah, an estimated 70 percent of residents who need substance abuse counselling and mental health treatment had been involved in the justice system.

“Research has shown that public health responses to drug abuse are more effective than criminal justice responses,” the authors said.

Under the 2015 legislation, Utah has reinvested between $4.5 million and $6 million annually in expanding behavioral treatment capacity—but the study recommended additional spending, together with more radical changes in sentencing guidelines.

The recommendations included:

      • Reclassify all drug possession arrests as Class A misdemeanors—eliminating felony convictions for all possession charges, including third or more convictions;
      • Deepen the “burden of proof” for convictions of possession with intent to distribute by requiring evidence of commercial activity, lists of buyers and other details;
      • Limit re-incarceration for “technical violations” committed by drug offenders in community supervision.

Such measures would not only help ensure that the state’s 2015 commitment to reducing its prison population would continue to be realized, but also help reduce the “collateral consequences” to families and individuals caught in the justice system for drug possession.

The “evidence suggests that increasing arrests and convictions for drug possession does not deter drug use, and could be causing more harm than good,” the study said.

The study authors were Brian Elderbroom, president of Justice Reform Strategies, a consulting firm; Leah Sakala, senior associate at the Urban Institute’s Justice Policy Center; and Anmar Khalid, a policy analyst at the Urban Institute’s Justice Policy Center.

The complete study can be downloaded here.

This summary was prepared by TCR executive editor Stephen Handelman

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