State Sen. Scott Wiener on Monday announced legislation that would empower judges to order probation rather than time behind bars for certain drug offenses. (Kevin N. Hume/S.F. Examiner)

Bill seeks to give judges discretion over prison time for nonviolent drug crimes

Legislation from Sen. Wiener would repeal mandatory minimum sentences for certain offenses

State Sen. Scott Wiener of San Francisco is leading a renewed effort to repeal a so-called vestige of California’s “failed” war on drugs that requires judges to impose jail or prison sentences for various nonviolent drug crimes.

Wiener joined state and local leaders including District Attorney Chesa Boudin to announce legislation Monday that would empower judges to order probation — instead of time behind bars — for certain drug offenders.

Proponents of the legislation, called Senate Bill 378, argue that the mandatory minimum sentences enacted in 1986 have fueled mass incarceration and disproportionately impacted Black and Latino communities.

“We have seen the damage that this mass incarceration in California has caused, tearing communities apart, tearing families apart, making it harder and harder to rehabilitate people and reintegrate people into society,” Wiener said.

“Today we are making a proposal to say let’s not mandate incarceration for people who are convicted of nonviolent drug offenses, let’s give judges the ability to pursue a non-incarceration option,” he later added.

Wiener said the urgency for reducing the inmate population has grown at a time when the coronavirus pandemic threatens the health and safety of inmates in facilities like San Quentin State Prison, where an outbreak is unfolding.

Wiener is co-authoring the legislation with Assemblymember Wendy Carrillo, D-Los Angeles, and Senator Nancy Skinner, D-Berkeley, who made previous attempts to pull back on mandatory minimums.

While state law currently requires judges to order incarceration for crimes like possession for personal use if a person has a prior drug felony, the legislation would put a probation sentence on the table.

The legislation would also make probation an option for those convicted for the first time of a range of drug crimes including possession for sale of .5 ounces or more of heroin or an ounce or more of methamphetamine.

Boudin argued that judges need the discretion to “treat each and every individual that stands before them for sentencing as a three-dimensional human being with a future, with a past and a present.”

He said it is important for judges to be able to impose a sentence that meets the crime.

“Mandatory minimums prevent judges from doing that,” Boudin said.

Boudin acknowledged that the legislation would “strip power” away from his office but said it is “high time that we recognize that the power that they implicate for district attorneys has been abused.”

“It’s led to spiraling incarceration,” Boudin said. “It’s led to disproportionate sentencing for people of color.”

Public Defender Mano Raju is also among the supporters of the bill.

“It’s crucial in this moment that we empower judges to use their discretion to make individualized considerations,” Raju said.

“A lot of individuals who should be going to trial to contest their cases are afraid to because they are afraid of the exorbitant prison sentences being doled out prior to reforms like this coming forward,” he later added.

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