A Fiscal Analysis of Marijuana Decriminalization

CHAPTER 1.

REASONS FOR ESCALATING ENFORCEMENT COSTS:

CALIFORNIA DRUG AND MARIJUANA ARRESTS, 1960-67

LEGISLATIVE HISTORY

Marijuana has been illegal in California since 1915, when the State Legislature made it unlawful to possess or sell the flowertops, leaves, extracts, tinctures or any narcotic preparations of hemp, Indian hemp or "loco weed" except when prescribed by a physician. Originally these were misdemeanor offenses punishable by a $100- $400 fine or 50-1830 days in jail, but subsequent legislation gradually increased penalties to the felony level (Source 1).

A felony is defined in California law as an offense for which confinement in state prison is either an alternative or the sole penalty. By 1939, possession or sale of any amount (or any part) of the plant Cannabis sativa L. drew up to a year in county jail or up to six years in prison.

In 1953-54 minimum mandatory sentences were established for cannabis crimes, with "escalator clauses" punishing repeat offenders more severely. Most marijuana offenses were felonies with minimums of one to ten years in prison for possession,) or five to life for sale. Practically the only marijuana misdemeanors were "use of marijuana" (a crime since 1949), and "maintaining premises where narcotics are used." These were punished by a mandatory 90 days to one year in jail.

A U.S. Supreme Court decision in the Robinson case in 1962, however, held that addiction or use of drugs per se was not a crime, leaving "use of marijuana" exclusively a juvenile offense thereafter. California's delinquent tendency laws allow juveniles to be punished for offenses such as using marijuana, or being a runaways which would not be crimes if they were committed by adults (Source 2).

The marijuana laws covering most of the first eight-year (1960-67) period of this study were established in 1961. Simple possession of any amount of marijuana drew a minimum 1-10 years in prison, with no parole until a year had been served. An offender with any prior felony conviction got 2-20 years, and with two priors five years to life in prison.

Possession of marijuana for sales a new offense in 1961, drew two to ten years in prison (5-15 with any prior; 10-life with two priors). Sale of marijuana was punished by a mandatory five or ten years to life, with no possibility of parole until three years had been served (Source I).

By putting virtually all marijuana offenses in the same felony class as heroin% murder, rapes and arson, legislators placed marijuana offenders in the most expensive law enforcement judicial, and correctional categories. Malting any crime a felony sends a message to the police and Courts that this offense has top priority in terms of time and money spent pursuing and prosecuting the offender. This was feasible as long as there were only a few thousand marijuana arrests per year.., but when arrests started doubling and tripling it soon became evident that treating marijuana like heroin was going to be a very expensive proposition indeed.

THE BCS INDIVIDUAL REPORTING SYSTEM, 1959-67

California has one of the best statistical databases on drug offenders in the world today because the 1959 State Legislature appropriated funds to establish a unit within the Justice Department's Bureau of Criminal Statistics to keep track of every known drug law violator from the point of arrest through the final disposition.

Information such as the age, sex, race, drug usage, prior criminal record, and probation or parole status of each new offender was recorded on a 5x8 card at the time of his or her drug arrest. Subsequent events (disposition and sentence) in processing the offender through the criminal justice system were recorded on this same card., along with any later criminal involvements (Source 3).

This was the first attempt in any state to gather information about individual drug offenders from all available sources. Federal agencies as well as city, county and state agencies contributed data from police arrest reports, rap sheets, court records, jail and prison files, juvenile hall and California Youth Authority records, and probation and parole reports. A total of 120,248 persons were included in these files between 1960 and 1967 (Source 3i, p.7). These persons accumulated a total of 214,809 drug arrests during this time, of which 91,529 were marijuana arrests (Table 1).

The wealth of detail on drug offenders preserved by the Individual Reporting System allows us to determine why enforcement costs skyrocketed. The eight-year period 1960-67 has been chosen because thereafter the method of recording arrests no longer included detailed offender characteristics.

CHANGES IN DRUG OFFENDER CHARACTERISTICS 1960-67

Changes in drug arrest patterns and drug offender characteristics in the early 1960s were the primary reasons for the sudden escalation of drug law enforcement costs in California during the ensuring years. A brief survey of these changes between 1960 and 1967 will help us understand why enforcement costs rose so drastically. Fuller detail can be found in Sources 3 and 4i, and in the RACE67 appendix to this report.

1960 was the first full calendar year of the Individual Reporting System, and in many ways reflects the narcotics scene of the late 1950s. Drug arrests were split about evenly between heroin offenders and a quite different group of marijuana or dangerous drug offenders (see Table 1). The replacement of the first group by the second is essentially what caused the costs of law enforcement to rise.

The chief concern of law enforcement was heroin arrests, which were nearly half (48 percent) of all drug arrests. There were twice as many heroin arrests as marijuana arrests among adults, with dangerous drug arrests taking third place (Table 1). Police priority was given to heroin and marijuana offenses because most were felonies while dangerous drug offenses were practically all amphetamine and barbiturate misdemeanors.

Nearly three-fourths (74.1 percent) of heroin arrests were for simple use of the drug-- a felony. Forty percent of heroin offenders were Hispanic; about a third were white, and a fourth were black (Race67).

TABLE 1. CALIFORNIA DRUG ARRESTS 1960-67

By Offense Category and Percentage of All Drug Arrests

YEAR ALLDRUG    MJ   MJ%      HEROIN H%      D.DRS. DD%     OTHER 0%
1960	19265	5155	27	9295	48	4048	21	767	4
1961	15185	3794	21	8307	46	5239	29	848	5
1962	17613	3743	21	6022	34	6771	38	1077	6
1963	19226	5518	30	6064	33	5443	30	1201	7
1964	21729	7560	35	7701	35	5216	24	1252	6
1965	24374	10002	41	6164	25	6881	28	1327	5
1966	33622	18243	54	6482	19	7071	21	1826	5
1967	61792	37514	61	8469	14	12367	20	3442	6

TOTAL    214809    91529 43% 58504 27%           53036   25% 11740      5.5%

Note: Percentages may not total 100% due to rounding.

Source: Drug Arrests and Dispositions in California 1969, p.l.

The typical adult heroin offender in 1960 was a male heroin addict of Mexican descent from Los Angeles. He was 25 years of age or older, and had a lengthy criminal record for drugs and crimes against property. Seven out of ten heroin offenders had already served prison or jail sentences at the time of their 1960 arrest (Source 4).

Juveniles in the early 1960s, however, had many more marijuana and dangerous drug arrests than heroin arrests. In 1961 juvenile drug offenders were 39 percent Mexican descent, 37 percent white, 22 percent black, and 1.6 percent "other" races (RACE67 Appendix).

The main reason for these ethnic distributions in the early Sixties was that Los Angeles County, with its large Hispanic and black populations was responsible for about 70 percent of all drug arrests in the state. There was considerable variation between Los Angeles and the rest of the state in ethnicity of arrests. "A much higher percentage of whites was arrested outside Los Angeles County. The percentage of Negroes arrested in Los Angeles County was substantially higher than in the rest of the state" (Source 3c, p.20).

The establishment of the California Rehabilitation Center (CRC) for narcotics addicts in 1961, and the U. S. Supreme Court decision in the Robinson case in 1962, had the cumulative effect of greatly reducing the number of arrests for heroin addiction or use in the next few years. Since these were about three-fourths of all heroin arrests, the percentage of drug arrests which were for heroin steadily declined (Sources 3b-3i).

Meanwhile, arrests for marijuana and dangerous drugs started to climb. A surge of dangerous drug arrests in 1961-62 was the first sign that drug arrest patterns were about to change radically. Dangerous drug arrests exceeded heroin arrests for the first time in 1962 (Table 1).

In 1960, felony marijuana arrests were only 3.72 percent of all the felony arrests in California (MJSPRD line 43), and marijuana arrests were about one-fourth (27 percent) of all drug arrests in the state (Table 1). Seventy percent of marijuana arrests were made in Los Angeles. Whites accounted for nearly half (48.5 percent) of adult marijuana arrests, blacks for 28 percent, and Hispanics for 22 percent (RACE67).

The typical adult marijuana or dangerous offender in 1960 was a white male under 25 years of age from Los Angeles. He had never been arrested before on a drug charge, but was likely to have been arrested for some crime against property. One out of seven adult marijuana offenders in 1960 progressed to heroin involvement within five years (Source 4).

In 1963 the number of marijuana arrests began to rise rapidly. In 1964 marijuana and heroin arrests were each about 35 percent of all drug arrests, and in 1965 marijuana arrests surpassed heroin arrests both in number and as a percentage of drug arrests (Table 1).

For the first time in California history, whites were involved in more than half of all drug and all marijuana arrests in 1965. The Los Angeles component of statewide drug arrests steadily declined, from 70 per-cent in 1960 to 64 percent in 1965 and only 50 percent in 1967 (RACE67).

The Bureau of Criminal Statistics noted in 1966 that "a new segment of California's population is entering the drug picture. Here there is an indication that an important component of the new segment is made up of persons of Caucasian descent ... The proportion of white (adult) arrestees has risen to 56 percent from 44 percent in 1960... This development appears to stem in part from the influx of large numbers of novice users into the drug arrest population" (Source 3h, p.14).

This trend was even more pronounced in 1967, when whites became 64.5 percent of adult drug arrests, 70.9 percent of juvenile drug arrests, and 66 percent of all drug arrests. The surge in white arrests occurred in all categories. Many amphetamine-barbiturate offenses were raised to felony level in 1965, and LSD and similar hallucinogens were made illegal in 1966, which caused dangerous drug arrests to double between 1965 and 1967 (Table 19 and Sources 3h, pp.1-49 and 3i, pp.1-39 12).

The most significant increase however, was in marijuana arrests, where the proportion of white offenders in 1967 rose to 68 percent for adults, 72.9 percent for juveniles) and 64 percent of all marijuana arrests, with concomitant decreases of about 5 percent each in black and Hispanic marijuana arrests (Source 3i, p.12).

Marijuana arrests doubled between 1966-1967 and became 61 percent of all drug arrests in the state, compared with 27 percent in 1960. Despite the explosion of dangerous drug arrests in 1967, they constituted only about 20 percent of all drug arrests-- down slightly from 21 percent in 1960. And heroin arrests, which had been 48 percent of drug arrests in 1960, were now only 14 percent of all drug arrests in California (Table 1).

Accompanying the increase in white offenders was a continuing rise in the proportion of offenders who had never been arrested on drug or criminal charges before. In 1965, 53 percent of adult drug arrestees were first offenders; in 1967 they were 61 percent. The highest proportion of these were new marijuana offenders-- 67 percent of adult marijuana arrests in 1965 were initial arrests, rising to 71 percent in 1967 (Sources 3g, P.8; 3h, p.9; 3i, p.7).

The median (average) age of marijuana offenders fell from 24 years old in 1961 to 22 in 1965 and 19 in 1967. This drove down the median age of all drug offenders from 26 in 1961 to 20 in 1967. About 85 percent of drug offenders were male (Sources 3g, p.11; 3h, p.14; 3i, pp.12-13).

Thus by 1967 the typical person arrested for drugs in California was no longer an aging Hispanic heroin addict with a lengthy criminal record, but a young white pot smoker who had usually not been involved with drugs or crime before. This change was permanent, at least through 1985, and had great impact on the costs of drug law enforcement in California.

Generally an ethnic-minority heroin addict does not have the financial resources available to a first-time white marijuana offender, with which to fight a felony case through the criminal justice system. It was not the change in skin color, but the changes in drug of choice, place of arrest, and financial circumstances of the average drug offender that caused the costs of law enforcement to skyrocket. The single most important influence on these costs was the rising number of white felony marijuana arrests, which by 1967 were 42 percent of all drug arrests in California (RACE67).

MARIJUANA ARREST ANALYSIS, 1960-67

The following analysis of marijuana arrest patterns will be helpful in understanding the predominant role of these arrests in increasing the costs of law enforcement in California. The frequency counts (Tables 1, 2, and 3) and the MJSPRD table on which this analysis is based may be found in the reference table section at the back of this report.

Marijuana arrests increased tenfold between 1962 (3743) and 1967 (37514). As can be seen in graph DRMJ6067 above, it was. this rise in marijuana arrests which fueled the statewide surge in drug arrests, so the drug arrest curve generally matches the marijuana arrest curve.

Graph %AMJAD67 shows that marijuana arrests rose from 27 percent of all drug arrests in 1960 to 61 percent in 1967. This important change in the typical offender's drug of choice occurred in 1965, when marijuana arrests surpassed heroin arrests, and was solidified when marijuana arrests surpassed non-marijuana arrests in 1966 (graph DAD672 below).

95 to 99 percent of California marijuana arrests were felonies at this time. Most misdemeanor marijuana arrests were of juveniles, for use of marijuana. A few adults each year were arrested for maintaining premises.

Adults were arrested for marijuana far more frequently than juveniles, contrary to the public impression that most marijuana arrests are of juveniles (Table 3, graph MJ6067) However, the rate of increase for juvenile arrests was much greater than for adult arrests.., and the average marijuana offender was only 19 years old by 1967 (Source 3i, p.13).

Adult marijuana arrests increased vastly in number, but declined as a percentage of all marijuana arrests, from 92 percent in 1962 to 71 percent in 1967 (graph %AJMJ67). Juvenile arrests rose from 8 to 29 percent.

Possession of any amount of marijuana was a felony, and was the most frequent marijuana offense, ranging from 77 percent in 1962 to 84 percent in 1967. When possession for sale is included possession arrests were nearly 90 percent of all marijuana arrests by 1967 (Table 3, graphs above).

Non-possession offenses were 19.5 percent (1962) to 11 percent (1967) of marijuana arrests. The most common non-possession felony was sale of marijuana; the least common -felonies were cultivation of marijuana and sale of some other substance in lieu of marijuana.

SUMMARY: REASONS FOR RISING ENFORCEMENT COSTS

The following are the most important reasons for -the escalation of marijuana law enforcement costs in California. Unless otherwise stated, the data given are for 1967.

1. ARREST VOLUME: There were ten times as many marijuana arrests in 1967 (37,514) as there were in 1962 (3,743), and still rising.

2. FELONY STATUS: Virtually all marijuana offenses (99 percent) were classified as felonies, which put them into the costliest "top priority" law enforcement judicial and correctional classes.

3. MOSTLY POSSESSION: Eighty-four percent of felony marijuana arrests were for simple possession (Table 3). The minimum mandatory penalty for simple possession was 1-10 years in state prison.

4. PERCENTAGE OF STATEWIDE FELONY ARRESTS: Felony marijuana arrests were 18.23 percent of all felony arrests, compared with only 3.72 percent in 1960 (MJSPRD line 43). It was the easiest felony bust in the state for police to make, and this too contributed to the sharp rise in arrests.

5. %AMJAD: Marijuana arrests were 61 percent of all drug arrests, compared with 27 percent in 1960 (Table 1, and MJSPRD line 53).

6. PLACE OF ARREST: Drug arrests, particularly marijuana arrests., spread statewide instead of being concentrated in Los Angeles. Los Angeles County made 70 percent of drug arrests and 66 percent of marijuana arrests in 1960, declining to 50 and 48 percent in 1967. "Areas which previously had little illegal drug activity... now found it necessary to add highly specialized narcotic officers to their law enforcement staffs" (Source 3h, p.12).

7. DRUG OF CHOICE: The typical drug offender in California was no longer a heroin addict, scrambling to support an expensive habits but a marijuana smoker with better financial resources available.

B. RACE AND FINANCIAL CONDITION: White people, who received fewer than half of all drug arrests in 1960, now accounted for twothirds (66 percent) of all drug arrests and for 70 percent of all marijuana arrests. Whites in general have better financial resources than ethnic minorities with which to fight a felony case.

9. CRIMINAL RECORD: the typical drug offender no longer had a criminal record. This meant that he or she was harder to convict, and often that he or she would fight a first offense with all available resources. With more defendants fighting their cases,, costs rose across the board, especially in Superior Court.

10. AGE: The typical drug offender was now 19 years old, and prosecutors and judges found it increasingly difficult to send 19-year-old first offenders to state prison for simple possession. In 1960, 93 percent of all drug offenders were convicted as charged; by 1967 this had fallen to 70 percent overall, with only 48 percent of marijuana offenders convicted as charged (Source 3i, p.29).

In sums the underlying reason for the rise in enforcement costs was a radical change in offender characteristics. The typical Californian arrested for drugs was no longer an ethnic-minority heroin addicts but a young white marijuana user. The arrest statistics themselves thus reveal a major sociocultural change in California, directly connected to the rise of white marijuana and dangerous drug (psychedelic) arrests. This was the rise of the youthful counterculture.

Social commentary on the predominantly white counterculture is beyond the scope of this papers but it should be pointed out that black and Hispanic marijuana and dangerous drug arrests show increases parallel to the white increases but more modest (RACE67 annual tables). Whether this was due to countercultural influence and assimilations to increased availability of these drugs, or to other factors, cannot be ascertained from the statistics.

Likewise, it is difficult to be more specific about the costs of arresting and prosecuting heroin addicts (usually repeat of-fenders) versus marijuana smokers (usually first offenders). The key question here would be whether the cost of repeated incarceration of those financially unable to defend themselves is more or less than the cost of fruitless prosecution of those who can. The former calculation would have to include the capital costs of correctional facilities for addicts (including prisons, jails, and the CRC)-- and capital expenditures are not included in the enforcement cost statistics collected by BCS. Other variables such as how many white and nonwhite offenders were able to hire lawyers, are also not available.

Nevertheless, it is generally true that a white marijuana offender has better financial resources with which to fight a felony charge than an ethnic-minority heroin addict does, and this is reflected in the declining conviction rates for drug offenders (see item 10 on page 8).

This fact, coupled with the extraordinary increase in arrest volume (marijuana arrests leaping beyond 37,000 a year and still rising), led to increased costs at every stage of the criminal justice system, including expanded police forces, the need for more public defenders, huge caseloads in probation and parole departments and a major logjam in the courts.

Because the law continued to treat marijuana like heroin (as a felony)$ enforcement costs started exploding the moment this change occurred in 1965. The resulting rise in enforcement costs will be examined in the next chapter.

SOURCES

1. Letter to Senator Arlen Gregorio (titled "Marijuana - #17361"), from Peter Melnicoe, Deputy Legislative Counsel, Office of the Legislative Counsel of California (George H. Murphy)* Sacramento, January 18, 1974. Printed as an appendix to the Moscone Report ("Marijuana: Beyond Misunderstanding%" Final Report of the California Legislature Senate Select Committee on Control of Marijuana), Sacramento, May 1974.

2. "While all (juvenile) narcotic arrests have been grouped Linder the heading, major offenses (felonies), it is very difficult to identify in detail the exact nature of these offenses. The Bureau of Criminal Statistics publishes a separate series of reports on narcotic arrests each year which indicates that about one-half of the juvenile arrests fall into a felony category and the other half either in a misdemeanor category or in an area of delinquency not defined by the Penal Code. The fact that an adult has admitted the use of marijuana or dangerous drugs is not a criminal offense defined by the Penal Code; however% a ,juvenile who has admitted to the use of such substances can be filed on in the juvenile court as a delinquent." -- Crime and Delinquency in California 1965 (Sacramento: BCS, 1966), p.143.

3. A detailed history of the Individual Reporting System drug offender study and its methodology may be found in its first report (#3a below), and as appendices to the BCS reports for 1960 through 1963 (#3b-#3e). Retroactive revisions of data are discussed in the reports for 1965 (#3g) through 1967 (#3i). See also Michael R. Aldrich, "Legislative and Reporting-System Changes Relevant to Statistics on Cost of Enforcing California Marijuana Laws," in the Moscone Report, Sacramento, 1974.

3a. Narcotic Arrests in California July 1, 1959- June 30, 1960. Sacramento: Bureau of Criminal Statistics, 1960.

3b. Narcotic Arrests and Their Dispositions in California, 1960.

3c. Narcotic Arrests and Dispositions in California, 1961.

3d. Drug Arrests and Dispositions in California, 1962.

3e. Drug AT-rests and Dispositions in California, 1963.

3f. Drug Arrests and Dispositions in California, 1964.

3g. Drug Arrests and Dispositions in California, 1965.

3h. Drug Arrests and Dispositions in California, 1966.

3i. Drug Arrests and Dispositions in California, 1967.

4. "Follow-Up Study of 1960 Adult Drug Offenders," Sacramento: Bureau of Criminal Statistics, 1968. See also RACE67 file appended to this Study and, for an interesting comparison, the "Five Year Follow-Up of 1966 Juvenile Drug Arrestees," Sacramento: BCS, 1973.