California doesn’t want any part of Jeff Sessions’ new war on drugs

Despite the Sessions-Trump backlash, 40 million Americans are getting smarter drug sentencing rules.

A corrections officerat Pelican Bay State Prison near Crescent City, CA. CREDIT: AP Photo/Rich Pedroncelli, File
A corrections officerat Pelican Bay State Prison near Crescent City, CA. CREDIT: AP Photo/Rich Pedroncelli, File

Courts in California will no longer tack three extra years onto prison terms in drug cases where the defendant has prior drug convictions, under a law passed Tuesday by the lower chamber of the state legislature.

Since the 1980s, state law has mandated strict sentencing enhancements in minor drug crimes. Sale or possession with intent to sell sends you on 3- to 5-year bid, with an additional 3-year tack-on for each separate prior drug conviction on your record. Judges could cancel the enhancements in certain cases if they chose to, but absent such a willful act the years were simply stapled on automatically.


The reforms passed this week would cancel those extra years. Tuesday’s vote sends the bill to Gov. Jerry Brown (D). The measure had passed the state Senate, where it originated, back in May.

Sentencing enhancements, like those revoked in the California bill, are a relic of a bygone age where paranoia and assumption governed criminal justice policy, rather than data and humanity. The old intuition that keeping a given offender in a cage for longer would make him less likely to continue offending upon release is, like other supposed exemplars of common sense, untrue. The focus on punishment at the expense of rehabilitation has turned American prisons into factories of violence that put out rougher customers than they receive.

The core logic of sentencing enhancements runs counter to the premise of criminal justice and rehabilitative incarceration. People convicted of a crime are effectively treated as though they’ve committed a different crime than the one they were convicted for, specifically because of prior crimes for which they have already served the time the system mandates. They’ve made restitution for those past deeds, yet have them counted again afresh under enhanced sentences — spreadsheets depicting the federal version of sentence enhancements direct judges to impose an “adjusted offense level” above the statutory crime and penalty set for the offense that has the repeat offender in the judge’s dock.

This doesn’t work. Criminologists record a “modest at best” downward effect on recidivism rates from mandatory tack-on years in enhanced sentencing policies. The guidelines are premised on the idea that repeat offenders are bent on crime, but can be unbent if you use a heavier stick to beat them. That’s not so, according to a raft of research into recidivism and the “career criminal.” There is “little support, aside from incapacitation, for increased use of confinement, emphasis on longer terms, or more acceptance of specific deterrence as a crime control strategy,” a 1999 study from the National Institute of Justice found. In other words, to use longer sentences in the name of driving down crime is to assume that the repeat offender is unsalvageable to society and can only be prevented from crime by being kept under lock and key.


The law now awaiting Brown’s signature in California does make one exception. After a previous iteration failed in 2016 when opponents accused the bill’s author of seeking to let hardened drug kingpins off the hook, the 2017 edition retains the automatic sentencing enhancements for people convicted of using minors as dealers in broader drug retail enterprises.

While California’s break from mandatory sentencing enhancements for low-level drug offenders is laudable, it’s hardly a cure for the national illness these enhancement rules represent. The primary venue for automatic sentence-elongation rules continues to be the federal code, where the enhancements rapidly escalate sentences all the way to life in prison for people with prior felonies. Judges hate these rules because they strip a key piece of the judiciary’s role: adjudicating particular circumstances for particular crimes and particular criminals.

Sentencing rules for drug crimes at the federal level are likely to remain stuck in neutral until Americans decide they want a different president. One of Attorney General Jeff Sessions’ first acts in office was to reverse a 2015 directive that federal prosecutors should make less frequent use of sentencing enhancements, stripping the system of the modest amount of discretion that former Attorney General Eric Holder had installed. The new stasis in sentencing reform defies years of hard work and careful legislative bargaining between right and left members of Congress who have in recent years coalesced around calls to abandon hidebound sentencing laws that do more harm than good.

But while Sessions and his boss can ice the reform movement in Washington, D.C., the same policy consensus continues to drive change at other levels of government to massive effect. When a state like California changes its approach to crime and punishment, for example, it invites an eighth of the U.S. population to greet the dawn Trump wants to cancel.