DECIPHERING DRUG LAWS

Variables In California Narcotics Guidelines Make Sentencing Unclear

Drug laws in California can seem as hazy as the effect of the
narcotics the laws are designed to stop.

Part of the reason is the way in which the laws were
established.

Two documents set the stage for California drug sentencing: the
Uniform Controlled Substances Act and Proposition 36.

The Uniform Controlled Substances Act, passed in 1972, wiped away
conflicting statutes set by county and municipal governments.

It made state drug laws the uniform measure for punishing drug
offenders, said Shiara Davila, Los Angeles County District Attorney
spokeswoman.

The Uniform Controlled Substances Act also established schedules, or
classifications, for drug offenses. The schedules, which were
established by the state legislature with the help of law enforcement
and drug counselors, help determine drug-sentencing guidelines.

The schedules also separate drugs by the danger each presents to the
community, said Gary Schons, California Attorney General senior
assistant. The drug laws are regularly revisited by the state
legislature for review with the help of law enforcement and drug
counselors, he said.

But how much they actually help depends upon your point of
view.

"Prop 36 and the Uniform Controlled Substances Act create haphazard
sentencing," said John Lovell, legislative counsel for the California
Narcotics Officers' Association.

Schons said sentencing for simple possession -- described as an amount
possessed for personal use rather than sale -- varie -- can vary greatly
depending on the drug in question.

Under the controlled-substances laws, a person in possession of any
quantity of methamphetamine faces felony charges that carry at least
two years and as much as six years in state prison.

"The danger of the drug, and the activity associated with the drug,
determine how it is prosecuted," Schons said, explaining the reasoning
behind the different sentences.

Methamphetamine is often associated with violent street crime, so the
penalties for possession are harsher than for marijuana or
hallucinogenic drugs, he said.

In California, if a person possesses up to an ounce of marijuana, the
punishment is a $500 fine. A person can be arrested up to three times
in two years for simple possession of marijuana. The harshest penalty
is mandatory counseling, according the controlled substances act.

Lovell considers this inadequate.

Lovell, a former prosecutor with the Los Angeles County District
Attorney's Office, spends his time lobbying Sacramento on behalf of
law enforcement to advocate for stricter penalties for drug offenders.

He said "slaps on the wrists" for drug-possession arrests are the
product of Proposition 36.

Proposition 36, passed in 2000, established mandatory drug treatment
and no incarceration for any person convicted of possession,
transportation or being under the influence of drug less than three
times.

"It was represented as drug treatment," said Lovell. "Proposition 36
is decriminalization masquerading as drug treatment."

Drug sentencing under the Uniform Controlled Substance Act is supposed
to punish drug dealers with harsher sentences than drug users might
receive. However, Lovell said laws that go soft on first-time drug
dealers do little to deter the crime.

An example of this might be found in the case of a local man arrested
with hallucinogenic mushrooms.

When David Dunnell was arrested by Santa Clarita Valley sheriff's
deputies in March, the quantity of mushrooms found in his apartment by
deputies exceeded the amount that would have constituted simple
possession. A sheriff's detective described the drug seizure from the
Canyon Country apartment as one of largest of its kind in SCV history.

Dunnell had pots in which he cultivated the hallucinogenic mushrooms,
scales used to measure the drugs and all the tools consistent with the
production and sale of hallucinogenic mushrooms.

Since Dunnell was in possession of more than a dozen jars full of
mushrooms, as well as equipment commonly associated with the drug
trade, the sentencing stakes were higher when he came to court,
according to the substances act. Under the state substances act,
Dunnell faced up to a year in prison.

"This is what we call an enhancement. It elevates the crime and the
sentence," Schons said.

Other enhancements include where the drug is sold, and to whom. If the
drug is sold in a school zone, for example, or to a person less than
14 years of age, the possession and sale of marijuana rises to felony
level, according to the substance-control laws.

Dunnell ultimately was sentenced to 90 days in county jail and 36
months of probation. L.A. County Deputy Public Defender Christina
Behle said Dunnell's light sentence stemmed from his clean criminal
record. "He's not a hardened criminal," she said.

"That happens more often than it should," Lovell said about Dunnell's
sentence. "(Dunnell's) in the distribution side. The 90 days (in
county jail), is an enforced furlough. When he gets out, he going back
to selling drugs," Lovell said.

The answer is repealing Proposition 36 and harsher penalties for
repeat offender, he said.

"(The current drug laws) don't make people accountable, Lovell said.