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tv   [untitled]    August 21, 2012 3:00am-3:30am PDT

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you're obviously part of the california district attorney's association, as we were talking before the panel began, you shared with me that your organization has previously supported a measure that mark leno brought forward to lower the punishment for possession of less than an ounce of marijuana to a misdemeanor to an infraction. in this case your organization is essentially opposed to it. what do you say to mr. adelman and mr. gascon? >> i think one of the things i want to point out is that in terms of the changes currently taking place in california's criminal justice system is that we have embarked on a very, very large experiment and that's called realignment. prison population in california is going to approach by -- or
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sometime next year the federal mandate of 130,000. we've already released some 50,000 individuals to serve their time locally, and these offenses that we were talking about here are currently in the list of offenses that were to be served in county jails now. and if the notion here is to provide services and treatment to these individuals from a practical point of view, and i lean heavily on my experience as a misdemeanor prosecutor for all those years when we did possession offenses, when we tried many, many under the influence offenses, especially heroin, i don't see that under the current system that reducing these penalties from
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felony to misdemeanor is going to have any incentive for this population to obtain treatment. i also do not agree that under this measure that locally there will be additional moneys available for treatment. i noticed in the list of supporters for senator leno's measure, it's heavily supported by people in the treatment community. i think that that's great because we all understand that treatment does work. treatment in these forms of addiction will help these people get on track because they are broken. i think there is a general understanding among the prosecution community that that is the case, that treatment is the goal. but in my mind and in the minds of the majority of the d.a.'s around the state, the current state of misdemeanors and with
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our county jails being overcrowded, no person sentenced to a misdemeanor offense is going to do any jail time whatsoever. if they don't have jail as an incentive to engage in treatment, then there's nothing there, other than their own will to finally do something about their addiction. >> let me just ask you as a follow-up, what do you say, then, that the only thing -- if you're saying that currently being charged with a felony is going to result in drug treatment or maybe a sentence that isn't going to send someone to state prison, what do you say to someone that says well, what do you do with the felony conviction? you're making a lot of felons out of people who are committing simple drug offenses. >> i think probably if you were to look at a lot of individuals who end up getting convicted of
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possession, the arrest charge was probably either possession for sales or sales case, and the individual took a deal for simple possession. i think that you still have the majority of those individuals who were incarcerated with state prison for possession either had strike priors, serious offenses, or they had pled down from a sales case. >> tal, let me ask you to respond to perhaps marty's point. you're a deputy public offender in san francisco and you've handled dozens of drug case, drug possession cases, you've been -- a lot of people caught their attention when you were quoted in the press saying the way we handle drug enforcement here in california is in effect a war on crumbs instead of the
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often used phrase on drugs. how do you respond to his remarks? >> well, i think the first thing that we have to recognize is that the majority of people who are caught up in the criminal justice system and who are prosecuted for this type of offense for possession offenses and to some degree possession for sale offenses, the vast majority are indigent people and the vast majority of those indigent people are people of color. so what you have are two systems in place. you have a system where privileged white middle class people basically use drugs, college campuses, frat parties, not clubs, they use drug with impunity, they don't have to worry about being caught. then you have a system that comes down like a ton of bricks on indigent poor people and that's one of the reasons why i think this type of reform is a positive first step because if
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you aren't going to make drug possession illegal, at least make it a misdemeanor and not a felony. at least don't stigmatize and label an entire population of people as felons and prevent them from getting housing, getting an education -- [applause] >> i guess the question is of fairness. you shouldn't have two systems, one where based on your race or class you can access treatment and move on with your life and another one where because of law enforcement tactics and focus, you end up caught up in a system where you can never move on. you're permanently trapped and weighed down by having a felony conviction. the reason i call it a war on crumbs is the type of people we see at the hall of justice, i brought with me some props. i brought with me a sweetener packet. this is a gram of sweetener. most of the time this is on the
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high end of the amount of narcotics we see people in possession of. sometimes people have two or three sweetener packages on them and we call them drug dealers, you know. that's why we call it a war on crumbs because the amounts we are talking about are mine us schedule. -- minnesota us schedule. the fact -- are miniscule. and based on less than a packet of sweetener, to me is outrageous. and to me this is a positive first step, in my opinion, because at least you remove some of the stigma attached to this type of issue which in my opinion should be a public health issue. it's a public health issue for a certain segment of the community and should be a public health community issue for everybody. [applause] >> tal, let me follow up and
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just say opponents of mark leno's measure would say it's not the amount of drug that somebody is in possession of, the fact that they're using drugs indicates they've got to find a way to supply themselves with ongoing, you know, sources of drugs or by taking the drugs, they're going to place themselves in a state that makes them more likely to commit crime. is this a valid argument? >> well, i think there are -- i think not everybody who uses drug is a drug addict. and there's a segment of the population that recreationally uses narcotics and don't necessarily need treatment and they certainly don't need a felony conviction. that having been said, if you are an addict, it doesn't make any sense to turn you into a felon addict. we just heard that person before very eloquently talk about spending most of his life incarcerated.
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and he's made it. but the fact of the matter is, encumbrance of a felony conviction is so debilitating. countless of times you run into people who can't get housing, can't get education, can't get jobs, it's a trap. if we deal with addiction it makes no sense to turn an addict into a felon. [applause] >> chief, you've been committed to evidence-based practices in your administration of the adult probation department. to what extent does that inform your approach when you look at senator leno's measure and deciding whether or not to support it? >> my view is not only from evidence-based practices but also from spending almost 30 years working in the california prison system, managing prisons, working in prisons, performing oversight, and what i know and what i can
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definitively say after 30 years is that prison does not address more change behavior. in fact, it actually, for those who do have addictions and illnesses, in fact it actually makes them worse. it's like sending individuals that have a sickness to criminal camp, they learn how to be better criminals but still don't get their addiction addressed. and the research out there tells us that incapacitation, period, does not change behavior. it also tells us that basically what changes behavior is approximate 200 hours of intensive treatment. and you do not have to go to prisoner jail in order to get those services, but yet we're spending $56,000 a year, and in fact, overcrowded are prisons so much the supreme court had to weigh in basically and put a cap on the state prison system which still, their plan, they're working towards it but
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not getting there. realignment took us in a good direction in terms of trying to reduce the population that's going to state prison, but i think what 1506 does is it takes that next step to say we really need to look at a criminal justice system, you know, what we're doing, who we're sending into prison or to jail and what we're spending our money on. and evidence-based practices tells us that the majority of these individuals, they need treatment. and they need intensive treatment and they're more cost-effective and provides a better return on investment to the taxpayers to provide intensive services as well as then it reduces the victimization because you don't have addicts out there stealing to support the habit and other subsequent crimes. and in addition to that, dealing with the addiction breaks the cycle of crime and breaks that inner generational cycle that exists, looking in prisons and managing them, i've
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seen generations of families come through the system. and it's because their behavior, their addictions have not been appropriately dealt with. and we researched, we've seen millions in the prison system researching substance abuse treatment. and what we know and what the research told us was the fact that it wasn't putting somebody in prison and it wasn't the amount of treatment in prisoner jail that changed the behavior, it was the treatment out in the community after that individual was released and had to deal with life stressors. so what evidence -- practices tells us is that there is a more effective way in which we can get a better return on our investment, 1506 is one of those strategies and it also reduces victimization and breaks the cycle of crime so we don't have the next generation coming into the system. >> let me ask you this, it seems that over the years there's been an acceptance that somebody could be on probation
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and perhaps get caught when they give, let's say, urine tests or whatever is the requirement of their probation, but let's say a dirty test, testing positive for marijuana and slowly over the years it seems like the probation department gave that less importance. there was a time when that would have been treated as a violation, over time it hasn't been treated as a very serious violation. tal raised the issue about responsible drug use, and when we get into the area of heroin or cocaine or other drugs, are you seeing that there are some probationers that can in fact use these substances in a recreational manner and still be otherwise law-abiding? >> well, first i'll say as an officer of the court, my job is to, of course, enforce the law, but with that said, i think
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what probation has realized, and not just san francisco probation, i think we're a very progressive leader, is the fact that there are underlying problems that are causing the drug usage. there is trauma out there. people talk about rehabilitating but in reality, for the majority of our clients, you know, they haven't been rehabilitated in the first place. the circumstances in which they grew up, the lack of parenting, the lack of role modeling, we talk about being disadvantaged which i completely agree with. all we have to do is take a look at the demographics of our adult population, 60% are african-americans. and, you know, that begins to tell the story. and so while our job is responsible for certainly holding the clients in compliance with their term and condition which no drug usage would be one of them, we also recognize that we have to deal with the underlying problem, just not lock people up.
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because that's not going to deal with the problem and not going to change the behavior. i think that's what we've learned to focus on is what can we do, what kind of intervention to create a strength-based approach to where we're providing rewards, also when someone is doing good and recognizing their progress, not just sanctioning them when in fact they relapse because relapse is a fact, and it's part and parcel to addiction recovery. >> george, let me ask you, marty raisesed the point that the reason that we need felony possibilities with drug possession offenses is that we need an incentive for people to choose treatment when they are charged with a crime. do you agree with them [ >> i don't. i understand where marty is coming from. i think we have to make sure when we're treating this as a misdemeanor we do have a tool to ensure that people who need
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treatment are going to be afforded the opportunity and are going to have treatment. i also agree with tal, not necessarily everybody that uses drugs is an addict, and not necessarily everybody who uses drugs needs to have treatment. but having said that, people that we often come in contact with will be people who have a severe drug abuse problem and generally they also have a mental health issue problem, there are often housing problems, employment, many other problems, and that's the population we deal with often. and i think that figuring a way to have an intervention so that services are available for those that need it i think is really important. i don't necessarily agree a felony conviction is the vehicle to do so, but i think we have to make sure that as we lower the sanctions here, that we do have the tools and that we have the ability to distinguish between people that have a drug addiction problem, people that are using drugs
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recreationally and otherwise are a functional person. >> we're going to be taking audience questions shortly, so if you have a question, just try to get the attention of someone in the aisles. ethan, let me ask you this. you know, in california, there are a number of offenses, drug possession offenses, that are punished already as misdemeanors. i think met amphetamine, p.c.p., i think valium, certain steroids, and yet we treat as felonies, the possession of cocaine and heroin as felonies. did you see this kind of discrepancy in the other states that your organization has worked to -- >> matt, if i could, i think the perspective i could offer would be more useful in that is really putting what the u.s. is doing, california is doing in a more global perspective. because what one sees around
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the world is a growing number of countries that are choosing to decriminalize the possession of all drugs, when the proposals now are merging -- new jersey did this a few years ago in a small way, colombia, argentina, ecuador, guatemala, some with right wing governments, very tough on crime, and in europe, similarly. it's not generally the standards to be putting people behind bars for a possession of any drug in small amounts for one's own personal use. and perhaps the paramount example of success in this regard is portugal. portugal 11 years ago decriminalized the possession of all drugs in personal use amounts. drug selling is illegal and you can still be arrested for that. they began doing evaluations a few years ago. you do not go to jail for possession of any drug in a small amount. and you are not drug tested. nobody gets thrown back in for dirty urines and all this sort of stuff. it's now been in place for 11
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years. the research on that, and i recommend the piece in the british journal of crin knowledge and kid send it to -- cridge -- criminolgy. cases of h.i.v. and hepc and crime went down and people continued to seek treatment, that the rates of drug use in portugal did not go up at the same rates as comparable countries in europe. that suggests powerful evidence that you cannot just turn smling from a felony to a misdemeanor but eliminate the criminalization of drug possession, small amounts, without suffering negative consequences in terms of public health or public safety. now, when marty said before about people have no incentive to go into drug treatment, you know, if i could, it reminded me of the comedian, when you said all you have is humor, a hammer and everything looks like a nail, i think the
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perspective for prosecutors is when all you have is a criminal sanction, everything looks like a nail. and the only way to get people into treatment is threaten them with a criminal sanction. tens of millions of people have gone to a.a. and n.a. without the criminal sanction. and when you have evidence -- i remember this, one of the first exchange programs at tacoma, washington, what they found was the needle exchange program was the principal point of source of recommendations into drug treatment. think about it. people come to a needle exchange program so they can safely use their drugs without getting an infection and spreading it to other people. there is no coercion involved. it is the most important you can have for someone who is a known drug user what that suggests is that when people need to get help, when people are trying to get better, what they most need is to have the opportunity to find their own dignity, their own self, their
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own worth. having a judge or prosecutor with a hammer over your head saying you better be clear or i'm throwing you in jail. you better give me clean urines or i'm throwing you in jail. that may work for some people but that's no reason to make it a one size fits all model. in fact, huge numbers do seek out treatment whether it's 12 step or anything else, if that treatment is respectful, if it's quality, if it has evidence of success. we do not need the criminal sanction in order to get people into drug treatment. [applause] >> i find it relatively interesting that we have on the books, and it was passed by the people of california initiative, proposition 36, which provided a means for individuals to give treatment and avoid the criminal sanction. we have practically every
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county around the state has both preplea or foast plea diversion programs for individuals who are charged with felony possession can complete that program and not have that conviction. and yet this overlays now under senator leno's bill, this would create a parallel system but only for misdemeanors. and i note the only sanction for an individual who refuses probation for a misdemeanor is to pay a $500 drug program fee, or if it's a second offense, he gets charged with $1,500. but if he accepts probation, then the fee is cut down to $250 or $500 for a second or subsequent offense. now, where are these individuals?
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the majority of whom are involved in this trade are indigents. where is this money going to come from? there's already an escape provision for ability to pay that a judge has to consider whether or not these individuals have that ability to pay. so again, i get back to we've got these programs that allow an escape from the criminal sanction and people don't take advantage of it. maybe i am looking at the fact that with a hammer, everything out there is a nail. but i just don't see senator leno's legislation fostering any different. now, if you're talking ultimately decriminalization, because i think this is where this is headed, then that's a different story. >> marty, let me just ask you,
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has your organization put together any information that would counter claims that decriminalization in this manner has been successful in these other states that have moved in that direction? >> we have not. we have not done any white papers on that issue. >> wendy, can you respond to marty's last argument? he's in effect saying if you come into the criminal justice system with a drug possession charge as a felony, you probably won't end up with a felony conviction if you're willing to seek treatment and very unlikely you would go to prison. you agree with that? >> i think it depends on which county you're in. i think san francisco is the only county in the state that currently has a prop 36 court that is still actively working because the state has defunded all the prop 36 courts in efforts across the state. so i think this provides
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senator leno's bill really does the right thing and tries to move in a direction that's not contingent to how much money is available within one jurisdiction or not and actually frees up $64 million of general fund at the state level that could be reinvested into services. i know when you look at realignment, for example, here in san francisco, a 1/3 of our plan, a third of our dollars for realignment has been invested in substance abuse treatment, mental health treatment and housing but we've made that choice. i think if you compare us, though, to many other jurisdictions, we have a collaborative court continuum that is unmatched in other parts of the state. so i think to say they wood, it's not happening. and if you look at other jurisdictions throughout the state, you'll find heavy incarceration rates and not
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used. in fact the prosecutor is not using those programs. we're very fortunate in our district attorney. he is very visionary, and i just commend him for his stepping out there and taking this position which i support, also, in terms of we have got to focus on treatment rather than say, well, there's this program or that program when in fact the state hasn't funded it. so it's placed that burden on the local counties. >> tal, can you respond to marty's point and wendy's? >> i can say just based on my experience in dealing with individuals who have drug problems, most of the time i don't think that the threat of a quote, unquote, felony conviction is going to necessarily prevent them from using. i think what would make more sense is to provide them with more services and to be more individualized in terms of treatment and how we address specific individuals. i also would note that when you are facing a misdemeanor
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charge, you're facing up to a year in county jail. now, sometimes you don't do a year in county jail because of changes that we've made to good time credits, but there is a threat potentially of incarceration that's attached to a misdemeanor conviction. so i think that's threatened us, if you're really looking for hammers and nails, why not just have a threat of a misdemeanor, period, of incarceration. the other thing i would say is that the respect trend has actually has been to implement shorter periods of flash incarceration so you actually provide an immediate sanction to address a particular problem which has had -- based on the research i've seen, greater success in changing behaviors because it's more of a cognitive behavior model and like a reward-punishment immediate system, whereas just putting people in state prison and browsing he -- warehousing them for extended periods of time where we all know going to prison doesn't mean you have
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access to illegal nhra catics, that doesn't seem either to necessarily be a solution. -- illegal narcotics that that doesn't seem either to be necessarily a solution. >> i promised to marty we'd be careful to give him equal time here. >> that's all right. that's all right. i already feel the glow of san francisco's progressive approach to things. and in defense to the other counties, i think that, you know, that's the challenge we always face with legislation, should one size fit all? and i think that the whole purpose of the realignment approach was to allow individual counties to experiment with programs in dealing with individuals who are charged with crimes, either
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providing treatment a little bit more treatment model, and a locally based model because those individuals are from those specific communities. and i think those communities need to have the flexibility to be able to develop those local solutions. obviously, san francisco is blessed with a probation chief and she told me earlier that certain people are supervised by probation and is not the general rule throughout california. i think los angeles, where i'm from, there was no supervision for misdemeanors by the probation department. those individuals were on court summary probation which meant go home and sin no more. and if you do, you'll be back here to see us. and so,


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