Simple drug possession shouldn’t be felony, Nevada justice panel says
November 29, 2018
Lawmakers are likely to see a recommendation they reduce the penalty for possession of small amounts of illegal drugs to a misdemeanor.
Led by the two judges and one cop on the panel, members of the Commission on the Administration of Justice made clear Thursday they'll recommend reducing the penalty for possession of small amounts of drugs including heroin, meth and cocaine that are now considered felonies.
Carson District Judge Jim Wilson told the group studying sentencing in Nevada it's not uncommon for a young person to be in a vehicle stopped for a traffic violation to get arrested for possession. While that charge is normally diverted and the defendant put on probation, Wilson said too often the defendant fails because he's addicted and winds up in prison.
Wilson said addiction is a disease and putting addicts in prison, "makes no sense to me on any level."
He said the law should be changed to make first and second offense drug possession convictions misdemeanors and the third offense possibly a gross misdemeanor because it'll take more than one try for the person to beat the problem.
Wilson was joined by Chuck Callaway representing the Metropolitan Police Department who said officers should have the discretion to issue citations in those types of cases instead of having to arrest the person. But he expressed concern without the threat of a felony conviction, the defendant might not get help and treatment.
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"If it's a misdemeanor, there needs to be programs to provide mandatory treatment for folks charged with possession," he said.
"All of us here know those with substance abuse problems are not cured on the first time," said Supreme Court Justice Jim Hardesty. "What if the citation said you have to show up in drug court Monday?"
Deputy Washoe Public Defender Christine Brady said too often the existing law, "takes someone for simple possession and 'feloniz's them," potentially starting their lives on a downward spiral.
The panel was told by consultants from the Crime and Justice Institute that upward of 250 inmates a year are imprisoned in Nevada for failing probation on drug possession charges.
Hardesty said he agrees with Wilson that the state is using its prisons to house addicts.
"Is that the best use of our dollars?"
He said making possession a misdemeanor would free up significant resources now being spent keeping addicts in prison to fund treatment and rehabilitation programs to fix them instead.
"I think Judge Wilson's sentiments are shared by most drug court judges," said Hardesty.
In addition, the panel is expected to seek some serious changes in Nevada's drug trafficking laws. Hardesty said when he was a trial judge in Washoe County, "there were way too many cases in which I was compelled to sentence someone to prison for trafficking when the circumstances of the case just didn't warrant it."
He said judges need out from under the mandatory sentencing rules now in place so they can decide who belongs in prison and for how long. He said he knows of no judges in the state who would let a real drug trafficker off the hook.
Wilson agreed saying the mandatory sentencing law, "sometimes results in unjust sentences."
The problem is the weight of the drug in someone's possession is the key to a trafficking charge instead of possession and, in Nevada, that weight for drugs such as heroin is just 4 grams.
Amy Rose of the ACLU said there should be a requirement to establish the person actually had the intent to sell drugs in Nevada law. But Callaway pointed out above a certain amount or weight of drugs it's pretty obvious the intention was to sell.
The issues will be taken up for a formal vote at the commission's next scheduled meeting Dec. 19.