(One possible reform to consider. – promoted by Brian Leubitz)

With less and less time left to resolve the now-$26.3 billion deficit, California continues its march towards insolvency.  Instead of contemplating the relatively moderate savings to be had by cutting such “frills” as health care for the state’s uninsured children, lawmakers should consider a simple measure that would free up over $1.5 billion annually.  It is time to get rid of the “wobbler.”

Under California law, some nonviolent offenses (petty drug possession being the most common) can be charged either as a misdemeanor or a felony.  These offenses, known as “wobblers,” can carry a sentence of up to one year in county jail or years in state prison, depending on whether the prosecutor decides to charge the conduct as a misdemeanor or a felony.  For the taxpayers of California, the difference in sentencing represents billions of dollars in additional spending for what is essentially the same offense.  Making these offenses straight misdemeanors punishable at the county jail level would free up precious resources now wasted housing such offenders in the state prison system.  

Wobblers undermine the integrity of the state criminal justice system in more than just a fiscal sense.  The discretion wobblers grant prosecutors produces vast disparities in the treatment of equally culpable offenders, with the severity of a defendant’s sentence potentially depending less on what crime was committed than where it was committed.  In addition to the geographically arbitrary and inconsistent treatment of wobblers, defendants in wobbler cases are subject to the whim of a prosecutor’s personal principles or professional ambitions.  More insidiously, such open-ended sentencing practices enable extra-legal factors like racial bias to influence the choice between harsher punishment and a more proportionate sentence.  For example, a black defendant is more likely to be sent to state prison for a wobbler offense than a white defendant convicted of the same offense.

But it’s money, not mores, that commands the attention of the state’s lawmakers at the moment.  More pragmatically, then, it costs taxpayers $49,000 per year to keep someone in state prison according to the California Department of Corrections and Rehabilitation (CDCR).  The state Legislative Analyst’s Office (LAO) reports that over 30,000 Californians are in state prison for simple drug possession and other nonviolent wobblers.  That means that treating these offenses exclusively as misdemeanors would save the state almost $1.5 billion a year.  This figure does not include the additional millions of dollars in collateral savings that would result from a smaller parole population and decreased spending on inmate health care.

The LAO has endorsed converting wobblers to misdemeanors as the best way to cut costs by reducing state prison populations while also maximizing public safety.  By relieving the overcrowding of state prisons that results in part from prosecuting wobblers as felonies, not only would the state save billions, but what limited resources remain could be properly focused on actually violent and serious offenders.  

Governor Schwarzenegger has also recognized that changing sentencing options for low-level offenses would reduce the number of people housed in the state’s costly prisons.  However, unlike the early release and summary parole programs the governor has proposed, which the LAO says would cost tens of millions of dollars and require an already overstretched CDCR to complete thousands of case file reviews, converting wobblers to misdemeanors and eliminating state prison as a sentencing option for these offenders would cost next to nothing to implement.  

Almost every other possible response to the budget crisis seems to be on the table, from closing over 75% of the state’s parks to the wholesale gutting of crucial social services such as health care for children.  Converting wobblers and keeping petty drug offenses at the local government level (though not as sensational or “sexy” a topic as marijuana legalization) is one simple cost-saving measure that has received little press but which should appeal to a broad spectrum of the public.  Supporters of drug policy reform can take heart that people convicted of low-level drug-related wobblers will no longer be sent to state prisons and will have greater access to county level probation-supervised addiction treatment.  Those with a more socially and fiscally conservative bent can be satisfied that such offenders will remain under the supervision of the criminal justice system at a cost greatly reduced to the taxpayer; and less money spent on petty drug offenders means expensive state prison beds can be prioritized for violent and serious offenders.

It’s absurd that we are being asked to consider cutting health services for people with HIV and AIDS and programs like Healthy Families, which provides health insurance for 1 million California children.  At most, such drastic measures would save the public $400 million-a fraction of what we could save by simply recategorizing non-violent drug and property offenses and converting wobblers to misdemeanors.

A state that thinks locking up 30,000 petty offenders in state prison instead of county jail is more important than the health of a million of its children faces the prospect not only of financial insolvency but moral bankruptcy as well.



Zack Wiley is a legal intern at the Drug Policy Alliance’s Office of Legal Affairs.